RIVERA NOTES (BAR 2024)
BOOK V: LABOR RELATIONS
LABOR RELATIONS – the laws, rules and regula/ons which govern the
rela/onship between employees and their employers, promote the
right of the employees to self-organiza/on and collec/ve bargaining,
strikes and picke/ng, penalize unfair labor prac/ce and provide modes
for the se<lement of labor disputes such as concilia/on, media/on,
grievance machinery, voluntary arbitra/on and compulsory
arbitra/on.
DECLARATION OF POLICY (Art 218)
A. It is the policy of the State:
a) To promote and emphasize the primacy of free collec/ve
bargaining and nego/a/ons, including voluntary arbitra/on,
media/on and concilia/on, as modes of se<ling labor or
industrial disputes;
B.
b)
To promote free trade unionism as an instrument for the
enhancement of democracy and the promo/on of social
jus/ce and development;
c)
To foster the free and voluntary organiza/on of a strong and
united labor movement;
d)
To promote the enlightenment of workers concerning their
rights and obliga/ons as union members and as employees;
e)
To provide an adequate administra/ve machinery for the
expedi/ous se<lement of labor or industrial disputes;
f)
To ensure a stable but dynamic and just industrial peace;
and
g)
To ensure the par/cipa/on of workers in decision and
policy-making processes affec/ng their rights, du/es and
welfare.
To encourage a truly democra/c method of regula/ng the
rela/ons between the employers and employees by means of
agreements freely entered into through collec/ve bargaining, no
court or administra/ve agency or official shall have the power to
set or fix wages, rates of pay, hours of work or other terms and
condi/ons of employment, except as otherwise provided under
this Code. (As amended by Sec/on 3, Republic Act No. 6715,
March 21, 1989)
CHAPTER II: DEFINITIONS
DEFINITIONS (Art 219)
“COMMISSION” means the Na/onal Labor Rela/ons Commission or
any of its divisions, as the case may be, as provided under this Code.
“BUREAU” means the Bureau of Labor Rela/ons and/or the Labor
Rela/ons Divisions in the regional offices established under
Presiden/al Decree No. 1, in the Department of Labor.
“BOARD” means the Na/onal Concilia/on and Media/on Board
established under Execu/ve Order No. 126.
“COUNCIL” means the Tripar/te Voluntary Arbitra/on Advisory
Council established under Execu/ve Order No. 126, as amended.
“EMPLOYER” includes any person ac/ng in the interest of an
employer, directly or indirectly. The term shall not include any labor
organiza/on or any of its officers or agents except when ac/ng as
employer.
“EMPLOYEE” includes any person in the employ of an employer. The
term shall not be limited to the employees of a par/cular employer,
unless the Code so explicitly states. It shall include any individual
whose work has ceased as a result of or in connec/on with any current
labor dispute or because of any unfair labor prac/ce if he has not
obtained any other substan/ally equivalent and regular employment.
“LABOR ORGANIZATION” means any union or associa/on of
employees which exists in whole or in part for the purpose of
collec/ve bargaining or of dealing with employers concerning terms
and condi/ons of employment.
“LEGITIMATE LABOR ORGANIZATION” means any labor organiza/on
duly registered with the Department of Labor and Employment, and
includes any branch or local thereof.
Note: Such local or chapter becomes a legiAmate labor
organizaAon upon compliance with the aforemenAoned
provision of Sec 3(a) and (e) without having to be issued a
CerAficate of RegistraAon in its favor by the Bureau of Labor
RelaAons (BLR). Absent of compliance with these mandatory
requirements, the local or chapter does not become a legiAmate
labor organizaAon.
§
Statutory right: exclusive representaAve f all the employees
in an appropriate bargaining unit (San Miguel Foods, Inc –
Cebu v Hon. Laguesma, et al, G.R. No. 116172, October 10,
1996)
“COMPANY UNION” means any labor organiza/on whose forma/on,
func/on or administra/on has been assisted by any act defined as
unfair labor prac/ce by this Code.
“BARGAINING REPRESENTATIVE” means a legi/mate
organiza/on whether or not employed by the employer.
labor
“UNFAIR LABOR PRACTICE” means any unfair labor prac/ce as
expressly defined by the Code.
“LABOR DISPUTE” includes any controversy or ma<er concerning
terms and condi/ons of employment or the associa/on or
representa/on of persons in nego/a/ng, fixing, maintaining, changing
or arranging the terms and condi/ons of employment, regardless of
whether the disputants stand in the proximate rela/on of employer
and employee.
“MANAGERIAL EMPLOYEE” is one who is vested with the powers or
preroga/ves to lay down and execute management policies and/or to
hire, transfer, suspend, lay-off, recall, discharge, assign or discipline
employees. Supervisory employees are those who, in the interest of
the employer, effec/vely recommend such managerial ac/ons if the
exercise of such authority is not merely rou/nary or clerical in nature
but requires the use of independent judgment. All employees not
falling within any of the above defini/ons are considered rank-and-file
employees for purposes of this Book.
“VOLUNTARY ARBITRATOR” means any person accredited by the
Board as such or any person named or designated in the Collec/ve
Bargaining Agreement by the par/es to act as their Voluntary
Arbitrator, or one chosen with or without the assistance of the
Na/onal Concilia/on and Media/on Board, pursuant to a selec/on
procedure agreed upon in the Collec/ve Bargaining Agreement, or
any official that may be authorized by the Secretary of Labor and
Employment to act as Voluntary Arbitrator upon the wri<en request
and agreement of the par/es to a labor dispute.
“STRIKE” means any temporary stoppage of work by the concerted
ac/on of employees as a result of an industrial or labor dispute.
“LOCKOUT” means any temporary refusal of an employer to furnish
work as a result of an industrial or labor dispute.
“INTERNAL UNION DISPUTE” includes all disputes or grievances
arising from any viola/on of or disagreement over any provision of the
cons/tu/on and by laws of a union, including any viola/on of the
rights and condi/ons of union membership provided for in this Code.
“STRIKE-BREAKER” means any person who obstructs, impedes, or
interferes with by force, violence, coercion, threats, or in/mida/on
any peaceful picke/ng affec/ng wages, hours or condi/ons of work or
in the exercise of the right of self-organiza/on or collec/ve bargaining.
RIVERA NOTES (BAR 2024)
“STRIKE AREA” means the establishment, warehouses, depots, plants
or offices, including the sites or premises used as runaway shops, of
the employer struck against, as well as the immediate vicinity actually
used by picke/ng strikers in moving to and from before all points of
entrance to and exit from said establishment. (As amended by Sec/on
4, Republic Act No. 6715, March 21, 1989)
TITLE II: NATIONAL LABOR RELATIONS COMMISSION
APPOINTMENT AND QUALIFICATIONS (Art 222)
a)
b)
CHAPTER I: CREATION AND COMPOSITION
NATIONAL LABOR RELATIONS COMMISSION (NLCR) (Art 220)
COMPOSITION:
a) Chairman
b) 23 Members
§
8 members shall be chosen from among the nominees of
the workers, and members from the employer’s
organiza/on.
c)
d)
e)
The Chairman and the 7 remaining members shall come from the
public sector – chosen preferably from among the incumbent
labor arbiters.
The Commission may sit en banc or in eight divisions – each
composed of 3 members.
§
SIT EN BANC – only for purposes of promulga/ng rules and
regula/ons governing the hearing and disposi/on of cases
before any of its divisions and regional branches and
formula/ng policies affec/ng its administra/on and
opera/ons.
§
1ST – 6TH DIVISION – Handle Cases coming from the NCR and
other parts of Luzon;
§
7TH AND 8TH DIVISION – Handle cases from Visayas and
Mindanao;
Divisions of the Commissions shall have EAJ over cases within
their respec/ve territorial jurisdic/on.
COMMISSION ATTORNEYS (CA)
•
The Commission and its eight divisions shall be assisted by the
CA in its appellate and adjudicatory func/ons.
•
Term shall be coterminous with the Commissioners with whom
they are assigned.
QUALIFICATION:
a) Member of the Philippine Bar;
b) At least 1 year experience or exposure in the field of labor
management rela/ons;
c) They shall receive annual salaries and shall be en/tled to the
same allowances SG 26;
d) There shall be as many CA as may be necessary for the
effec/ve and efficient opera/on of the Commission but in
no case more than 3 assigned to the Office of the Chairman
and each Commissioner.
HEADQUARTERS, BRANCHES AND PROVINCIAL EXTENSION UNITS
(Art 221)
a) Metro Manila – 1st – 6th Division;
b) Cebu – 7th Division;
c) Cagayan de Oro – 8th Division
Regional Arbitra/on Branch:
a) I – San Fernando La Union;
b) II – Tuguegarao City
c) III – San Fernando, Pampanga;
d) IV – Calamba City;
e) V – Legazpi City;
f) VI – Bacolod City;
g) VII – Cebu City
f)
CHAIRMAN AND OTHER
COMMISSIONERS
Members of the Philippine
Bar;
Must have engaged in the
prac/ce of law in the
Philippines for at least 15
years;
With at least 5 yearsexperience or exposure in
the
field
of
labor
management rela/ons;
Preferably be residents of
the region where they shall
hold office;
The Chairman, the other
Commissioners and the
Labor Arbiters shall hold
office
during
good
behavior un/l they reach
the age of 65;
The President of PH may
extend the services of the
Commissioners and the LA
up to the maximum age of
70 years upon the
recommenda/on of the
Commission en banc
LABOR ARBITERS
a)
b)
c)
d)
e)
Members of the Philippine
Bar;
Must have been engaged
in the prac/ce of law in the
PH for at least 10 years;
With at least 5 yearsexperience or exposure in
the field of labormanagement rela/ons;
LA shall hold office during
good behaviour un/l they
reach the age of 65 years,
unless sooner removed for
cause as provided by law
or become incapacitated
to discharge the du/esof
their office; nad
The President of the PH
may extend the services of
the Commissioners and
the LA up to the maximum
age of 70.
Note; The Chairman and Commissioners of the NLRC are not
subject to ConfirmaAon of the Commissions on Appointments.
NLRC are not among the officers menAoned in Sec 16, Art VII,
1987 ConsAtuAon, whose appointments require confirmaAon by
the Commission on Appointments. (Calderon v Carale, G.R. No.
91636, April 23, 1992; U-Sing BuOon and Buckle Ind., et al v.
NLRC, et al., G.R. No. 94754, May 11, 1993)
SALARIES, BENEFITS AND OTHER EMOLUMENTS (Art 221)
CHAIRMAN AND MEMBERS OF
THE COMMISSION
Same rank, salary, allowances
and re/rement and benefits as
those Presiding Jus/ce and of
the CA.
LABOR ARBITERS
Same rank, annual salary,
allowances, re/rement and
other benefits and privileges as
those of the RTC Judges
Note: SG 30
Note: SG 29
In no case shall the provision of this Ar/cle result in the diminu/on
of the exis/ng salaries, allowances and benefits of the
aforemen/oned officials.
RIVERA NOTES (BAR 2024)
CHAPTER II: POWERS AND DUTIES
PRELIMINARY INJUNCTION
JURISDICTION OF THE LABOR ARBITERS AND THE COMMISSION (Art
224)
An order granted at any stage of
an ac/on or proceeding prior to
the judgment or final order,
requiring a party or a court,
agency or a person to refrain
from a par/cular act/s.
JURISDICTION OF THE COMMISSION:
a) EAJ over all cases decided by Labor Arbiters;
b) Cases decided by the DOLE Regional Directors or his duly
authorized Hearing Officers (Under Art 129) involving recovery of
wages, simple money claims and other benefits not exceeding
P5K and not accompanied by claim for reinstatement;
c) Jurisdic/on over cases arising from the interpreta/on or
implementa/on of CBA.
Note: Those cases arising from the interpretaAon or enforcement
of company personnel policies shall be disposed of by the LA by
referring the same to the grievance machinery and voluntary
arbitraAon as may be provided in said agreement.
INJUNCTIONS IN LABOR DISPUTES/TRO
§
May be granted by the Commission through its Divisions
(Art. 225, par (e), Labor Code)
§
A cer/fica/on of non-forum shopping shall accompany the
pe//on for injunc/on.
§
Writ of Preliminary Injunc/on or TRO shall become effec/ve
only upon pos/ng of the required cash bond in the amount
to be determined by the Commission to answer for any
damage that may be suffered by the party enjoined, if it is
finally determined that the pe//oner is not en/tled
thereto.
§
Injunc/on in ordinary labor disputes is issued:
i. To enjoin or restrain any actual or threatened
commission of any or all prohibited or unlawful acts; or
ii. To require the performance f a par/cular act in any
labor dispute which, if not restrained or performed
forthwith, may cause grave or irreparable damage to
any party.
GROUNDS IN GRANTING PRELIMINARY OR PERMANENT
INJUNCTION IN STRIKES AND LOCKOUTS
§
A Preliminary or Permanent Injunc/on may be granted by
the Commission only aker hearing the tes/mony of
witnesses and with opportunity for cross-examina/on in
support of the allega/ons of the complaint or pe//on made
under oath, and the tes/mony by way of opposi/on thereto,
if offered, and only aker a finding of fact by the Commission:
i. That prohibited or unlawful acts have been threatened
and will be commi<ed and will be con/nued unless
restrained, but no injunc/on or temporary restraining
order shall be issued on account of any threat,
prohibited or unlawful act, except against the person
or persons, associa/on or organiza/on making the
threat or commilng the prohibited or unlawful act or
actually authorizing or ra/fying the same aker actual
knowledge thereof;
ii. That substan/al and irreparable injury to
complainant’s property will follow;
iii. That as to each item of relief to be granted, greater
injury will be inflicted upon complainant by the denial
of relief than will be inflicted upon defendants by the
gran/ng of relief;
iv. That complainant has no adequate remedy at law; and
v. That the public officers charged with the duty to
protect complainant’s property are unable or unwilling
to furnish adequate protec/on.
TEMPORARY RESTRAINING
ORDER
It is intended only as a restrain
the proceedings un/l such
determina/on.
It
also
requires
the
performance of a par/cular
act/s, in which case it shall be
known as a preliminary
mandatory injunc/on.
PROCEDURE FOR ISSUANCE OF TRO/INJUNCTIONS
i. Filing of verified pe//on accompanied by a cer/fica/on of
non-forum shopping;
ii. Hearing aker due and personal no/ce;
iii. Recep/on at the hearing of the tes/monies of witnesses;
iv. Finding of fact:
1) Unlawful act has been or will be commi<ed and will
con/nue unless restrained;
2) That substan/al and irreparable injury to the
complainant’s property will follow;
3) That greater injury will be inflicted on the complainant
by the denial of the relief than to the defendants by
gran/ng the relief;
4) That the complainant has no adequate remedy in law;
and
5) That public officers charged with the duty to protect
the complainant’s property are unable or unwilling to
furnish adequate protec/on;
6) Pos/ng of a bond.
EFFECTIVITY OF THE WRIT OF PRELIMINARY INJUNCTION
§
Effec/ve only upon pos/ng of the required cash bond in the
amount to be determined by the Commission.
§
Purpose of Cash Bond: To recompense those enjoined for
any loss, expense or damage caused by the improvident or
erroneous issuance of such order or injunc/on, including all
reasonable costs, together with a reasonable a<orney’s fee,
and expense of defense against the order or against the
gran/ng of any injunc/ve relief sought in the same
proceeding and subsequently denied by the Commission.
§
TRO shall be effec/ve for no longer than 20 days reckoned
from the pos/ng of the cash bond of P50K or Higher.
§
The order or resolu/on enjoining the performance of illegal
acts shall be immediately executory in accordance with the
terms thereof.
WHEN AND HOW MAY A TRO BE ISSUED?
§
If a substan/al and irreparable injury to pe//oner’s
property will be unavoidable – TRO may be issued upon:
i. Tes/mony under oath;
ii. Affidavits of the pe//oner’s witnesses – sufficient, if
sustained, to jus/fy the Commission in the issuance.
GR:
No TRO or Writ of Preliminary Injunc/on shall be
issued.
XPN:
On the condi/on that Pe//oner shall first file an
undertaking to answer for the damages and post a cash
bond in the amount of P50K, or such higher amount as
may be determined by the Commission.
SANCTIONS FOR NON-COMPLIANCE
§
In case of non-compliance – the Commission shall impose
such sanc/ons, and shall issue such orders, as may be
necessary to implement the said order or resolu/on,
including the enlistment of law enforcement agencies
having jurisdic/on over the area for the purpose of
enforcing the same.
RIVERA NOTES (BAR 2024)
REQUISITES FOR THE ISSUANCE OF TRO EX PARTE
i. Allega/ons that unless TRO is issued without no/ce – a
substan/al and irreparable injury to the complainant’s
property is unavoidable;
ii. Tes/mony under oath;
iii. Filing of an undertaking with adequate security in an
amount to be fixed by the Commission sufficient to
recompense those enjoined for any loss.
The TRO shall be effec/ve not longer than 20 days from the
pos/ng of the bond and shall become void aker the lapse of such
period.
INJUNCTIONS IN STRIKES OR LOCKOUTS (Art 279)
§
Cer/fied Labor Disputes causing or likely to cause a strike or
lockout in an industry indispensable to the na/onal interest,
cer/fied to it by the Secretary of Labor and Employment for
compulsory arbitra/on.
g)
Wage distor/on disputes in unorganized establishments not
voluntarily se<led by the par/es pursuant to RA 6726;
h)
Enforcement of compromise agreements when there is noncompliance by any of the par/es pursuant to Art 233
(Compromise Agreements) of the Labor Code;
i)
Cases arising from the interpreta/on and implementa/on of the
CBA and company personnel policies shall be referred to the
grievance machinery and voluntary arbitra/on
JURISDICTION OVER MONETARY CLAIMS OF WORKERS IN CASES OF:
a) REHABILITATION RECEIVERSHIP
ISSUE: WON DOLE, LA and NLRC may legally act on the claims of
respondents despite the order of the SEC suspending all ac/ons
against a company under rehabilita/on by a management
commi<ee created by the SEC - NO
PERSONS AUTHORIZED TO ISSUE INJUNCTIONS:
i. President of the Philippines (Art 278(g), LC);
ii. Secretary of Labor (Art 278(g), LC);
iii. Labor Arbiters (Art 224, LC);
Note: The foregoing ancillary power may be exercised only
as an incident to the cases pending before them in order to
preserve the rights of the parAes during the pendency of the
case, but excluding labor disputes involving strikes or lockout
(Pondoc v NLRC)
iv.
v.
NLRC (Art 225, LC);
DOLE Regional Directors
JURISDICTION OF LABOR ARBITERS:
a) Unfair labor prac/ce cases;
b)
Termina/on disputes;
c)
If accompanied with a claim for reinstatement, those cases that
workers may file involving wages, rates of pay, hours of work and
other terms and condi/ons of employment;
d)
Claims for actual, moral, exemplary and other forms of damages
arising from the employer-employee rela/ons;
Note: Where the plainAffs COA for damages arose out of or was
necessarily intertwined with an alleged ULP – LA has jurisdicAon
HELD: PD 902-A states that “All acAons for claims against C/P/A
under management or receivership pending before any court,
tribunal, board or body shall be suspended accordingly”.
If NLRC decide the case despite the SEC suspension order – the
NLRC acted without or in excess of its jurisdic/on to hear and
decide the case. Hence, any resoluaon, decision or order
rendered or issued without jurisdicaon is null and void
(Rubberworld Phils., Inc. v NLRC, G.R. No. 128003, July 26, 2000)
b)
LIQUIDATION
Once the receivership proceedings have ceased and the
receiver/liquidator is given the imprimatur to proceed with
corpora/on liquida/on – the SEC order become functus officio.
Thus, there is no legal impediment for the execu/on of the
decision of the LA for the payment of separa/on pay by
presen/ng it with the rehabilita/on receiver and liquidator,
subject to the rules on preference of credits (Alemar’s Sibal and
Sons, Inc. v NLRC, G.R. No. 114761, January 19, 2000)
JURISDICTION OVER OVERSEAS FILIPINO WORKERS
Jurisdicaon:
LA has EOJ
Venue:
Regional Arbitra/on Branch where:
i. The complainant resides; or
ii. The principal office of the respondent(s)
employer is situated, at the op/on of the
complaint. (Sec 1(e), Revised Rules of
Procedure of NLRC)
Cases:
Claims arising out of an EE Rela/onship or by
virtue of any law or contract involving Filipino
workers for overseas employment, including
claims for actual, moral, exemplary, and other
forms of damages.
Computaaon:
Claim for unpaid salaries of OFW should be
between salaries for unexpired por/on of the
contract or 3mos every year of the remaining
unexpired por/on of the contract (in case
contract is 1 year or more), whichever is lower.
(Sec 10, RA 8049) – Declared UnconsVtuVonal
Period
to
decide Case:
LA shall render his decision within 30 calendar
days, without extension, aker the submission
of the case by the par/es for decision, even in
the absence of stenographic notes.
Where the damages separately claimed by the employer were
allegedly incurred as a consequence of stroke or pickeAng of the
union – LA has EJ.
LA was already divested of its jurisdicAon to entertain PAL’s claim
for damages as such issue was deemed included in the issue of
legality of strike. However, PAL’s failure to raise the claim during
the pendency of the illegal strike case before the SOLE, the same
is deemed waived. (PAL v Airline Pilots AssociaVon of the PH,
G.R. No. 200088, February 26, 2018)
e)
Cases arising from any viola/on of Ar/cle 264 of this Code,
including ques/ons involving the legality of strikes and lockouts;
Except: Strikes and lockouts in industries indispensable to the
na/onal interest – Either NLRC (in cer/fied cases) or DOLE
Secretary (in assumed cases) has jurisdic/on.
f)
All other claims arising from employer-employee rela/ons,
including those of persons in domes/c or household service,
involving an amount exceeding (P5,000.00) regardless of
whether accompanied with a claim for reinstatement.
Except: Claims for Employees Compensa/on, Social Security,
Medicare and maternity benefits,
Cases involving OFW: LA shall be decided
within 90 calendar days aker the filing of the
complaint which shall commence to run upon
acquisi/on by the LA of jurisdic/on over the
respondent (Sec 17, Rule V, 2011, NLCR ROP)
RIVERA NOTES (BAR 2024)
(BAR Q 2018 NO. III)
Due to his employer's dire financial situaaon, Nicanor was prevailed
upon by his employer to voluntarily resign. In exchange, he
demanded payment of salary differenaals, 13th month pay, and
financial assistance, as promised by his employer. Management
promised to pay him as soon as it is able to pay off all was akack.
retrenched able His to rank-and-file widow, pay Nicanor Norie,
employees. the filed amount a money Five promised claim years
against to later, him, and the Nicanor company before died
management before the Naaonal Labor Relaaons Commission
(NLRC), including interest on the amount of the unpaid claim. She
also claimed addiaonal damages arguing that the supposed
resignaaon leker was obtained from her spouse through undue
pressure and influence. The employer filed a moaon to dismiss on
the ground that (A) the NLRC did not have jurisdicaon over money
claims, and (8) the acaon has prescribed.
(a) Does the NLRC have jurisdicaon to award money claims
including interest on the amount unpaid? (2.5%)
POWERS OF THE COMMISSION (ART 225, LC)
a) To promulgate rules and regula/ons governing the hearing and
disposi/on of cases before it and its regional branches, as well as
those pertaining to its internal func/ons and such rules and
regula/ons as may be necessary to carry out the purposes of this
Code; (As amended by Sec/on 10, Republic Act No. 6715, March
21, 1989)
b)
To administer oaths, summon the par/es to a controversy, issue
subpoenas requiring the a<endance and tes/mony of witnesses
or the produc/on of such books, papers, contracts, records,
statement of accounts, agreements, and others as may be
material to a just determina/on of the ma<er under
inves/ga/on, and to tes/fy in any inves/ga/on or hearing
conducted in pursuance of this Code;
c)
To conduct inves/ga/on for the determina/on of a ques/on,
ma<er or controversy within its jurisdic/on, proceed to hear and
determine the disputes in the absence of any party thereto who
has been summoned or served with no/ce to appear, conduct its
proceedings or any part thereof in public or in private, adjourn
its hearings to any /me and place, refer technical ma<ers or
accounts to an expert and to accept his report as evidence aker
hearing of the par/es upon due no/ce, direct par/es to be joined
in or excluded from the proceedings, correct, amend, or waive
any error, defect or irregularity whether in substance or in form,
give all such direc/ons as it may deem necessary or expedient in
the determina/on of the dispute before it, and dismiss any
ma<er or refrain from further hearing or from determining the
dispute or part thereof, where it is trivial or where further
proceedings by the Commission are not necessary or desirable;
and
The LA of the NLRC has jurisdicAon over the case. The NLRC has
jurisdicAon over money claims arising from an EE RelaAonship
where the amount claimed exceeds for P5,000.00 regardless of
whether or not there is a claim for reinstatement.
(b) Assuming that the NLRC has jurisdicaon, has the acaon
prescribed? (2.5%)
The acAon may have exceeded the 3-year prescripAve period
under Art 306, LC. But based on the facts of the case, Nicanor
relied on the promise of the employer that he would be paid as
soon as the claims of retrenched employees were paid. If not for
this promise, Nicanor would have not waited that long. So, there
was bad faith on the part of the employer. As such prescripAon
may not be use to shield the employer from its liability.
(c) May Nicanor's spouse successfully claim addiaonal damages as
a result of the alleged undue pressure and influence? (2.5%)
Note: It does not provide blanket authority to the NLRC or any of
its divisions to issue writs of injuncAon
d)
As a rule, moral damages are recoverable only if the party from
whom it is claimed has acted fraudulently or in bad faith or in
wanton disregard of his contractual obligaAons. Bad faith does
not simply connote bad judgment or negligence. (Yamauchi v
Suñiga, G.R. No. 199513, April 18, 2018) Based on the facts the
employer was in bad faith in delaying the release of monetary
benefits promised to Nicanor as such, damages may be claimed
against the employer.
A person guilty of misbehavior in the presence of or so near the
Chairman or any member of the Commission or any Labor Arbiter
as to obstruct or interrupt the proceedings before the same,
including disrespect toward said officials, offensive personali/es
toward others, or refusal to be sworn, or to answer as a witness
or to subscribe an affidavit or deposi/on when lawfully required
to do so, may be summarily adjudged in direct contempt by said
officials and punished by fine not exceeding five hundred pesos
(P500) or imprisonment not exceeding five (5) days, or both, if it
be the Commission, or a member thereof, or by a fine not
exceeding one hundred pesos (P100) or imprisonment not
exceeding one (1) day, or both, if it be a Labor Arbiter.
NLRC MAY DETERMINE ISSUES RELATION TO RIGHTS ARISING FROM
AN EE RELATIONSHIP
•
NLRC has jurisdic/on to determine the par/es’ rights over a
property – when it is necessary to determine an issue related to
rights or claims arising from an EE Rela/onship.
•
The preferen/al treatment given by our law to labor is not a
license for abuse. It is not a signal to commit acts of unfairness
that will unreasonably infringe on the property rights of the
company.
•
Both labor and employer have social u/lity, and the law is not
biased that it does not find a middle ground to give each their
due (Milan v NLRC, G.R. No. 202961, February 4, 2015)
MONEY CLAIMS IN WHICH THE LA HAS NO JURISDICTION
REASONABLE CAUSAL CONNECTION RULE – there is a
reasonable causal connec/on between the claim asserted and
the EE Rela/ons, the case is within the Labor Court. In the
absence thereof, Regular Courts have jurisdic/on.
To hold any person in contempt directly or indirectly and impose
appropriate penal/es therefor in accordance with law.
The person adjudged in direct contempt by a Labor Arbiter may
appeal to the Commission and the execu/on of the judgment
shall be suspended pending the resolu/on of the appeal upon
the filing by such person of a bond on condi/on that he will abide
by and perform the judgment of the Commission should the
appeal be decided against him. Judgment of the Commission on
direct contempt is immediately executory and unappealable.
Indirect contempt shall be dealt with by the Commission or Labor
Arbiter in the manner prescribed under Rule 71 of the Revised
Rules of Court; and (As amended by Sec/on 10, Republic Act No.
6715, March 21, 1989)
e)
To enjoin or restrain any actual or threatened commission of any
or all prohibited or unlawful acts or to require the performance
of a par/cular act in any labor dispute which, if not restrained or
performed forthwith, may cause grave or irreparable damage to
any party or render ineffectual any decision in favor of such
party: Provided, That no temporary or permanent injunc/on in
any case involving or growing out of a labor dispute as defined in
this Code shall be issued except aker hearing the tes/mony of
witnesses, with opportunity for cross-examina/on, in support of
the allega/ons of a complaint made under oath, and tes/mony
RIVERA NOTES (BAR 2024)
in opposi/on thereto, if offered, and only aker a finding of fact
by the Commission, to the effect:
1)
That prohibited or unlawful acts have been threatened and
will be commi<ed and will be con/nued unless restrained,
but no injunc/on or temporary restraining order shall be
issued on account of any threat, prohibited or unlawful act,
except against the person or persons, associa/on or
organiza/on making the threat or commilng the
prohibited or unlawful act or actually authorizing or
ra/fying the same aker actual knowledge thereof;
Art. 219. Ocular inspec/on. The Chairman, any Commissioner, Labor
Arbiter or their duly authorized representa/ves, may, at any /me
during working hours, conduct an ocular inspec/on on any
establishment, building, ship or vessel, place or premises, including
any work, material, implement, machinery, appliance or any object
therein, and ask any employee, laborer, or any person, as the case may
be, for any informa/on or data concerning any ma<er or ques/on
rela/ve to the object of the inves/ga/on.
2)
That substan/al and irreparable injury to complainant’s
property will follow;
3)
That as to each item of relief to be granted, greater injury
will be inflicted upon complainant by the denial of relief
than will be inflicted upon defendants by the gran/ng of
relief;
4)
That complainant has no adequate remedy at law; and
[ Art. 220. Compulsory arbitra/on. The Commission or any Labor
Arbiter shall have the power to ask the assistance of other
government officials and qualified private ci/zens to act as
compulsory arbitrators on cases referred to them and to fix and assess
the fees of such compulsory arbitrators, taking into account the
nature of the case, the /me consumed in hearing the case, the
professional standing of the arbitrators, the financial capacity of the
par/es, and the fees provided in the Rules of Court.] (Repealed by
Sec/on 16, Batas Pambansa Bilang 130, August 21, 1981)
5)
That the public officers charged with the duty to protect
complainant’s property are unable or unwilling to furnish
adequate protec/on.
Such hearing shall be held aker due and personal no/ce thereof
has been served, in such manner as the Commission shall direct,
to all known persons against whom relief is sought, and also to
the Chief Execu/ve and other public officials of the province or
city within which the unlawful acts have been threatened or
commi<ed, charged with the duty to protect complainant’s
property: Provided, however, that if a complainant shall also
allege that, unless a temporary restraining order shall be issued
without no/ce, a substan/al and irreparable injury to
complainant’s property will be unavoidable, such a temporary
restraining order may be issued upon tes/mony under oath,
sufficient, if sustained, to jus/fy the Commission in issuing a
temporary injunc/on upon hearing aker no/ce. Such a
temporary restraining order shall be effec/ve for no longer than
twenty (20) days and shall become void at the expira/on of said
twenty (20) days. No such temporary restraining order or
temporary injunc/on shall be issued except on condi/on that
complainant shall first file an undertaking with adequate security
in an amount to be fixed by the Commission sufficient to
recompense those enjoined for any loss, expense or damage
caused by the improvident or erroneous issuance of such order
or injunc/on, including all reasonable costs, together with a
reasonable a<orney’s fee, and expense of defense against the
order or against the gran/ng of any injunc/ve relief sought in the
same proceeding and subsequently denied by the Commission.
The undertaking herein men/oned shall be understood to
cons/tute an agreement entered into by the complainant and
the surety upon which an order may be rendered in the same suit
or proceeding against said complainant and surety, upon a
hearing to assess damages, of which hearing, complainant and
surety shall have reasonable no/ce, the said complainant and
surety submilng themselves to the jurisdic/on of the
Commission for that purpose. But nothing herein contained shall
deprive any party having a claim or cause of ac/on under or upon
such undertaking from elec/ng to pursue his ordinary remedy by
suit at law or in equity: Provided, further, That the recep/on of
evidence for the applica/on of a writ of injunc/on may be
delegated by the Commission to any of its Labor Arbiters who
shall conduct such hearings in such places as he may determine
to be accessible to the par/es and their witnesses and shall
submit thereaker his recommenda/on to the Commission. (As
amended by Sec/on 10, Republic Act No. 6715, March 21, 1989)
NOTES:
Art. 221. Technical rules not binding and prior resort to amicable
se<lement. In any proceeding before the Commission or any of the
Labor Arbiters, the rules of evidence prevailing in courts of law or
equity shall not be controlling and it is the spirit and inten/on of this
Code that the Commission and its members and the Labor Arbiters
shall use every and all reasonable means to ascertain the facts in each
case speedily and objec/vely and without regard to technicali/es of
law or procedure, all in the interest of due process. In any proceeding
before the Commission or any Labor Arbiter, the par/es may be
represented by legal counsel but it shall be the duty of the Chairman,
any Presiding Commissioner or Commissioner or any Labor Arbiter to
exercise complete control of the proceedings at all stages.
Any provision of law to the contrary notwithstanding, the Labor
Arbiter shall exert all efforts towards the amicable se<lement of a
labor dispute within his jurisdic/on on or before the first hearing. The
same rule shall apply to the Commission in the exercise of its original
jurisdic/on. (As amended by Sec/on 11, Republic Act No. 6715, March
21, 1989)
Art. 222. Appearances and Fees.
Non-lawyers may appear before the Commission or any Labor Arbiter
only:
If they represent themselves; or
If they represent their organiza/on or members thereof.
No a<orney’s fees, nego/a/on fees or similar charges of any kind
arising from any collec/ve bargaining agreement shall be imposed on
any individual member of the contrac/ng union: Provided, However,
that a<orney’s fees may be charged against union funds in an amount
to be agreed upon by the par/es. Any contract, agreement or
arrangement of any sort to the contrary shall be null and void. (As
amended by Presiden/al Decree No. 1691, May 1, 1980)
Chapter III
APPEAL
Art. 223. Appeal. Decisions, awards, or orders of the Labor Arbiter are
final and executory unless appealed to the Commission by any or both
par/es within ten (10) calendar days from receipt of such decisions,
awards, or orders. Such appeal may be entertained only on any of the
following grounds:
If there is prima facie evidence of abuse of discre/on on the part of
the Labor Arbiter;
If the decision, order or award was secured through fraud or coercion,
including grak and corrup/on;
If made purely on ques/ons of law; and
If serious errors in the findings of facts are raised which would cause
grave or irreparable damage or injury to the appellant.
In case of a judgment involving a monetary award, an appeal by the
employer may be perfected only upon the pos/ng of a cash or surety
bond issued by a reputable bonding company duly accredited by the
Commission in the amount equivalent to the monetary award in the
judgment appealed from.
In any event, the decision of the Labor Arbiter reinsta/ng a dismissed
or separated employee, insofar as the reinstatement aspect is
concerned, shall immediately be executory, even pending appeal. The
employee shall either be admi<ed back to work under the same terms
and condi/ons prevailing prior to his dismissal or separa/on or, at the
op/on of the employer, merely reinstated in the payroll. The pos/ng
of a bond by the employer shall not stay the execu/on for
reinstatement provided herein.
RIVERA NOTES (BAR 2024)
of the union, including any viola/on of the rights and condi/ons
of union membership provided for in the Labor Code.
c)
All disputes, grievances or problems arising from or affec/ng
labor-management rela/ons in all workplaces, except those
arising from the interpreta/on or implementa/on of the CBA
which are subject of grievance procedure and/or voluntary
arbitra/on.
ADMINISTRATION FUNCTIONS OF THE BLR:
a) Registra/on of Labor Unions;
b) Keeping of registry of labor unions; and
c) Maintenance and custody of CBAs
To discourage frivolous or dilatory appeals, the Commission or the
Labor Arbiter shall impose reasonable penalty, including fines or
censures, upon the erring par/es.
In all cases, the appellant shall furnish a copy of the memorandum of
appeal to the other party who shall file an answer not later than ten
(10) calendar days from receipt thereof.
The Commission shall decide all cases within twenty (20) calendar
days from receipt of the answer of the appellee. The decision of the
Commission shall be final and executory aker ten (10) calendar days
from receipt thereof by the par/es.
INTER/INTRA-UNION DISPUTES AND OTHER RELATED LABOR
RELATIONS DISPUTES: (Sec 1, Rule XI, D.O. No. 40-03)
a) Cancella/on of registra/on of a labor organiza/on filed by its
members or by another labor organiza/on;
Any law enforcement agency may be depu/zed by the Secretary of
Labor and Employment or the Commission in the enforcement of
decisions, awards or orders. (As amended by Sec/on 12, Republic Act
No. 6715, March 21, 1989)
b)
Conduct of elec/on of union and workers’ associa/on
officers/nullifica/on of elec/on of union and workers’
associa/on officers;
c)
Audit/accounts examina/on of union or workers’ associa/on
funds;
The Secretary of Labor and Employment or any Regional Director, the
Commission or any Labor Arbiter, or Med-Arbiter or Voluntary
Arbitrator may, motu proprio or on mo/on of any interested party,
issue a writ of execu/on on a judgment within five (5) years from the
date it becomes final and executory, requiring a sheriff or a duly
depu/zed officer to execute or enforce final decisions, orders or
awards of the Secretary of Labor and Employment or regional director,
the Commission, the Labor Arbiter or med-arbiter, or voluntary
arbitrators. In any case, it shall be the duty of the responsible officer
to separately furnish immediately the counsels of record and the
par/es with copies of said decisions, orders or awards. Failure to
comply with the duty prescribed herein shall subject such responsible
officer to appropriate administra/ve sanc/ons.
d)
Deregistra/on of CBA;
e)
Validity/Invalidity of:
i. Union affilia/on or disaffilia/on;
ii. Acceptance/non-acceptance for union membership;
iii. Impeachment/expulsion of union and workers associa/on
officers and members;
iv. Voluntary recogni/on;
f)
Opposi/on to applica/on for union and CBA registra/on;
g)
Viola/ons of or disagreements over any provision in a union or
workers’ associa/on cons/tu/on and by-laws;
The Secretary of Labor and Employment, and the Chairman of the
Commission may designate special sheriffs and take any measure
under exis/ng laws to ensure compliance with their decisions, orders
or awards and those of the Labor Arbiters and voluntary arbitrators,
including the imposi/on of administra/ve fines which shall not be less
than P500.00 nor more than P10,000.00. (As amended by Sec/on 13,
Republic Act No. 6715, March 21, 1989)
h)
Disagreements over chartering or registra/on of labor
organiza/ons and CBA;
i)
Viola/ons of the rights and condi/ons of union or workers’
associa/on membership;
j)
Viola/ons of the rights of legi/mate labor organiza/ons except
interpreta/on of CBA;
k)
Such other disputes or conflicts involving the rights to selforganiza/on, union membership and CBA:
i. Between and among legi/mate labor organiza/on;
ii. Between and among members of a union or workers’
associa/on;
Art. 224. Execu/on of decisions, orders or awards.
Art. 225. Contempt powers of the Secretary of Labor. In the exercise
of his powers under this Code, the Secretary of Labor may hold any
person in direct or indirect contempt and impose the appropriate
penal/es therefor.
Title III: BUREAU OF LABOR RELATIONS
BUREAU OF LABOR RELATIONS (Art. 232, LC)
JURISDICTION OF THE BLR: (EOJ)
a) INTER-UNION DISPUTES OR REPRESENTATION DISPUTES – cases
involving pe//on for cer/fica/on elec/on filed by a duly
registered labor organiza/on which is seeking to be recognized
as the sole and exclusive bargaining agent of the rank-and-file
employees in the appropriate bargaining unit of a company, firm
or establishment.
b)
INTRA-UNION DISPUTES OR INTERNAL UNION DISPUTES –
disputes or grievances arising from any viola/on of or
disagreement over any provision f the cons/tu/on and by-laws
Other related labor rela/ons disputes shall include any conflict
between a labor union and the employer or any individual, en/ty or
group that is not a labor organiza/on or workers’ associa/on. This
includes: (Sec 2, Rule XI, D.O. No. 40-03)
a) Cancella/on of registra/on of unions and workers associa/ons;
and
b) A pe//on for interpleader
EFFECTS OF THE FILING/PENDENCY OF INTER/INTRA-UNION AND
OTHER RELATED LRD:
•
The rights, rela/onship and obliga/ons of the par/es’ li/gants
against each other and other par/es-in-interest prior to the
ins/tu/on of the pe//on – con/nue to remain during the
•
•
pendency of the pe//on and un/l the ate of finality of the
decision rendered therein;
The RRO of the par/es’ li/gants against each other and other
par/es-in-interest – governed by the decision so ordered.
The filing or pendency is not a prejudicial ques/on to any pe//on
for cer/fica/on elec/on and shall not be aground for the
dismissal of a pe//on for cer/fica/on elec/on or suspension of
proceedings for cer/fica/on elec/on.
WHO MAY FILE:
a) Any legi/mate labor organiza/on or member/s thereof under Sec
1, Rule XI, DO 40-3;
RIVERA NOTES (BAR 2024)
The Bureau of Labor Rela/ons and the Labor Rela/ons Divisions in the
regional offices of the Department of Labor, shall have original and
exclusive authority to act, at their own ini/a/ve or upon request of
either or both par/es, on all inter-union and intra-union conflicts, and
all disputes, grievances or problems arising from or affec/ng labormanagement rela/ons in all workplaces, whether agricultural or nonagricultural, except those arising from the implementa/on or
interpreta/on of collec/ve bargaining agreements which shall be the
subject of grievance procedure and/or voluntary arbitra/on.
The Bureau shall have fikeen (15) working days to act on labor cases
before it, subject to extension by agreement of the par/es. (As
amended by Sec/on 14, Republic Act No. 6715, March 21, 1989).
Note: Where the issue involves the enAre membership of the
labor organizaAon – the Complaint/PeAAon shall be supported by
at least 30% of its members (Sec 4, Rule XI, DO 40-3)
b)
Any party-in-interest under Sec 2, Rule XI, DO 40-3;
WHERE TO FILE:
a) REGIONAL OFFICE that issued its ceraficate of
registraaon/ceraficate of creaaon of chartered local –
Complaints/Pe//on involving labor unions with independent
registra/on, chartered locals, workers’ associa/ons, its officers or
members;
b)
BUREAU – Complaints involving federa/ons, na/onal unions,
industry unions, its officers or member organiza/ons;
c)
REGIONAL DIRECTOR
i. Pe//ons for cancella/on of registra/on of labor unions with
independent registra/on, chartered locals and workers
associa/on; and
ii. Pe//ons for deregistra/on of CBA.
o
d)
He/She may appoint a Hearing Officer from the Labor
Rela/ons Divisions (LRD)
MED-ARBITER IN THE REGIONAL OFFICE – Other inter/intraunion disputes and related labor rela/ons disputes.
FORMAL REQUIREMENTS OF THE COMPLAINT/PETITION
•
The C/P shall be in wri/ng, verified under oath and shall, among
others contain the following:
a) Name, address and other personal circumstances of the
complainant/s or pe//oner/s;
b) Name, address and other personal circumstances of the
respondent/s or person/s charged;
c) Nature of the complaint or pe//on;
d) Facts and circumstances surrounding the C/P;
e) Cause/s of ac/on or specific viola/on/s commi<ed;
f) A statement that the administra/ve remedies provided for
in the cons/tu/on and by-laws have been exhausted or such
remedies are not readily available to the complainant/s or
pe//oner/s through no fault of his/her/their own, or
compliance with such administra/ve remedies does not
apply to complainant/s or pe//oner/s;
g) Relief/s prayed for;
h) Cer/ficate of non-forum shopping; and
i) Other relevant ma<ers
RAFFLE OF THE CASE:
•
Upon filing of the C/P – the RD or his authorized representa/ve
and the Docket Sec/on of the Bureau – allow the party filing the
C/P to determine the Med-Arbiter or Hearing Officer assigned to
the case by means of a raffle.
•
NOTICE OF PRELIMINARY CONFERENCE
COMPROMISE AGREEMENTS (Art 233, LC)
•
Any compromise seilement, including those involving labor
standard laws, voluntarily agreed upon by the parAes with the
assistance of the Bureau or the regional office of the Department
of Labor, shall be final and binding upon the parAes.
•
NLRC or any court, shall not assume jurisdicAon over issues
involved therein except in case of non-compliance thereof or if
there is prima facie evidence that the seilement was obtained
through fraud, misrepresentaAon, or coercion.
REQUISITES OF A VALID QUITCLAIM (2016 BAR Q)
a) There is clear proof that the waiver was wangled from an
unsuspec/ng or gullible person; or
b) Where the terms of se<lement are unconscionable on their
faces.
In these cases, the law will step in to annul the ques/onable
transac/ons. Such quitclaims are regarded as ineffec/ve to bar
the workers from claiming the full measure of their legal rights
(Mindoro Lumber and Hardware v Bacay, G.R. No. 158753, June
8, 2005)
Note: Quitclaims do not bar employees from filing labor
complaints and demanding benefits to which they are legally
enAtled.
The acceptance of those benefits would not amount to estoppel.
The amounts already received by the retrenched employees as
consideraAon for signing the quitclaims should be deducted from
their respecAve monetary awards (Aldovino v Gold and Green
Manpower Management and Development Services, Inc., G.R.
No. 200811, June 19, 2019)
However, not all waivers and quitclaims are invalid as against
public policy. If the agreement was voluntarily entered into and
represents a reasonable seilement – it is binding on the parAes
and may not later be disowned simply because of a change of
mind.
§
Only where there is clear proof that the waiver was wangled
from an unsuspecAng or gullible person or the terms of
seilement are unconscionable on its face – that the law will
step in to annul the quesAoned transacAon.
§
Hence, quitclaims where the workers voluntarily accept a
reasonable amount or consideraAon as seilement are
deemed valid and cannot be set aside merely because the
parAes have subsequently changed their minds (Garcia v
NLRC, G.R. No. 119649, July 23, 1997)
Quitclaims executed by employees may be given effect If
employer is able to prove the following requisites: (Goodrich
Manufacturing Corp v AVvo, G.R. No. 188002, February 1, 2010)
a) The employee executes the deed of quitclaim voluntarily;
b) There is no fraud or deceit on the part of any of the parAes;
c)
d)
The consideraAon of the quitclaim is credible and
reasonable; and
The contract is not contrary to law, public order, public
policy, morals or good customs, or prejudicial to a third
person with a right recognized by law.
COMPROMISE SHOULD BE DULY AUTHORIZED: Aiorneys and
other representaAves of parAes shall have authority to bind their
clients in all maiers of procedure; But they cannot, without SPA
or express consent, enter a compromise agreement with the
opposing party in full or parAal discharge of a client’s claim (Sec
7, Rule III, New Rules of Procedure of the NLRC)
WHEN TO EFFECT COMPROMISE: A compromise agreement may
be effected at any stage of the proceedings, even when there is
already a final executory judgment. (Magbanua v Uy, G.R. No.
161003, May 6, 2005)
THE LABOR ARBITER’S ABSENCE when those waivers were
executed does not invalidate them. (Magbanua v Uy); Even if
contracted without the assistance of labor officials – compromise
agreements between workers and their employers remain valid
and are sAll considered desirable means of seiling disputes
(Eurotech Hair Systems Inc v Go, G.R. No. 160913, February 6,
1996)
REMEDIES WHEN THE COMPROMISE AGREEMENT IS VIOLATED:
a) Pe//on for the enforcement of the compromise by writ of
execu/on.
b) The compromise is regarded as rescinded and par/es may insist
upon the original demand.
Note: Seiled rule that a compromise agreement, once approved
by final order of the court, has the force of res judicata between
the parAes and should not be disturbed except for vices of
consent or forgery.
A PeAAon for CerAorari against a court which has jurisdicAon
over a case will prosper only if grave abuse of discreAon is
manifested. The burden is on the part of the peAAoner to prove
not mere reversible error but GADALEJ on the part of the court
issuing the order. Mere abuse of discreAon is not enough, it must
be grave (Sonley v Anchor Savings Bank, G.R. No. 205623,
August 10, 2016)
MANDATORY CONCILIATION AND ENDORSEMENT OF CASES (Art
234, LC)
Except as provided in paragraph (b) of this Ar/cle, the Labor Arbiter
shall entertain only cases endorsed to him for compulsory arbitra/on
by the Bureau or by the Regional Director with a wri<en no/ce of such
indorsement or non-indorsement. The indorsement or nonindorsement of the Regional Director may be appealed to the Bureau
within ten (10) working days from receipt of the no/ce.
The par/es may, at any /me, by mutual agreement, withdraw a case
from the Concilia/on Sec/on and jointly submit it to a Labor Arbiter,
except deadlocks in collec/ve bargaining.] (Repealed by Sec/on 16,
Batas Pambansa Bilang 130, August 21, 1981)
DO No. 107-10 (SINGLE ENTRY APPROACH (SEnA) – which is an
administra/ve mechanism to provide a speedy, impar/al, inexpensive
and accessible se<lement procedure for all issues/complaints arising
from EE Rela/ons to prevent them from ripening into full blown
disputes.
•
All labor and employment disputes shall undergo a 30-day
mandatory concilia/on process to effect se<lement among the
contending par/es.
•
It covers all issues arising from labor and employment which may
include the following:
a) Termina/on or suspension of employment issues;
b) Claims from any sum of money, regardless of amount;
c)
d)
e)
f)
g)
h)
i)
j)
RIVERA NOTES (BAR 2024)
Intra-union and inter-union issues except pe//on for
cer/fica/on elec/on, aker exhaus/on of administra/ve
remedies;
Unfair labor prac/ces;
Closures, retrenchments, redundancies, temporary lay-offs;
OFW cases;
Occupa/onal safety and health standards issues except
those involving imminent danger situa/on;
Issues arising from other labor and related issuances (OLRI);
Any other claims arising from EE Rela/onship; and
Cases falling under the administra/ve and quasi-judicial
jurisdic/on of all DOLE offices and a<ached agencies,
including NLRC.
WHO MAY FILE: Any aggrieved worker, union, group of workers or the
employer.
WHERE TO FILE: Request for SEnA can be filed at the Single-Entry
Assistance Desk (SEAD) in the region where the employer principally
operates.
•
In case of a union or federa/on represen/ng a local chapter – the
request shall be made at regional/provincial/district office where
the union or local chapter is registered.
•
In case of Labor rela/ons disputes, par/cularly illegal dismissals
with or without claim for reinstatement, unfair labor prac/ces,
strikes and lockouts and claims for damages – filed with the Labor
Arbiter of the NLRC-Regional Arbitra/on Branch
ISSUANCE OF SUBPOENAS (Art 235, LC)
•
The Bureau shall have the power to require the appearance of
any person or the produc/on of any paper, document or ma<er
relevant to a labor dispute under its jurisdic/on, either at the
request of any interested party or at its own ini/a/ve.
SUBPOENA
A
command
to
appear at a certain
/me and place to give
tes/mony upon a
certain ma<er.
SUBPOENA DUCES
TECUM
It
requires
the
produc/on of books,
papers and other
things
SUBPOENA AD
TESTIFICANDUM
It requires a
person to tes/fy.
APPOINTMENT OF BUREAU PERSONNEL (Art 236, LC)
•
The Secretary of Labor and Employment may appoint, in addi/on
to the present personnel of the Bureau and the Industrial
Rela/ons Divisions, such number of examiners and other
assistants as may be necessary to carry out the purpose of the
Code. (As amended by Sec/on 15, Republic Act No. 6715, March
21, 1989)
REGISTRY OF UNIONS AND FILE OF CBA (Art 237, LC)
ADMINISTRATIVE FUNCTIONS OF THE BLR
a) Registra/on of labor unions;
b) Keeping of registry of legi/mate labor organiza/ons;
c) Maintenance and custody of CBA’s;
d) Keeping of records of se<lement of labor disputes and orders
and decisions of voluntary arbitrators.
The file shall be open and accessible to interested par/es under
condi/ons prescribed by the Secretary of Labor and
Employment, provided that no specific informa/on submi<ed in
confidence shall be disclosed unless authorized by the Secretary,
or when it is at issue in any judicial li/ga/on, or when public
interest or na/onal security so requires.
PERIODS TO BE OBSERVED:
A. The CBA must be submi<ed directly to the BLR/RO of DOLE for
registra/on – within 30-days from the execu/on, accompanied
with:
a)
b)
Verified proofs of its pos/ng in two conspicuous places in
the place of work;
Ra/fica/on by the majority of all the workers in the
bargaining unit;
B.
The Bureau or RO shall act upon the applica/on for registra/on
of such CBA – within 5 calendar days from receipt thereof;
C.
The RO shall furnish the Bureau with a copy of the CBA – within
5 days from its submission
e)
SEC REGISTRATION OF LABOR ORGANIZATION:
§
To be considered a legi/mate labor organiza/on with the
right to enjoy all the rights and privileges recognized by law
– it is necessary that it be registered and permi<ed to
operate as required by law.
§
Labor union organized as non-stock corpora/on and has
obtained a COI from the SEC has only the effect of giving to
it juridical personality before the courts of jus/ce; Such
incorpora/on cannot be availed of by it to enjoy the rights
and privileges granted by law to a legi/mate labor
organiza/on (PH Land-Air-Sea Labor Union v Court of
Industrial RelaVons, G.R. Nos. L-5664 and L-5698,
September 17, 1953)
The Bureau or Regional Office shall assess the employer for every CBA
a registra/on fee of not less than (P1,000.00) or in any other amount
as may be deemed appropriate and necessary by the Secretary of
Labor and Employment for the effec/ve and efficient administra/on
of the Voluntary Arbitra/on Program. Any amount collected under
this provision shall accrue to the Special Voluntary Arbitra/on Fund.
The Bureau shall also maintain a file and shall undertake or assist in
the publica/on of all final decisions, orders and awards of the
Secretary of Labor and Employment, Regional Directors and the
Commission. (As amended by Sec/on 15, Republic Act No. 6715,
March 21, 1989)
PROHIBITION ON CERTIFICATION ELECTION (Art 238, LC)
The Bureau shall not entertain any pe//on for cer/fica/on elec/on or
any other ac/on which may disturb the administra/on of duly
registered exis/ng collec/ve bargaining agreements affec/ng the
par/es except under Ar/cles 253, 253-A and 256 of this Code. (As
amended by Sec/on 15, Republic Act No. 6715, March 21, 1989)
GR:
XPN:
CONTRACT BAR RULE which prohibits the BLR and/or the
RD of the DOLE from entertaining any pe//on for
cer/fica/on elec/on while a valid CBA agreement is exis/ng
in an industry.
a)
b)
c)
Pe//on is filed during the freedom period – the period
of 60 days prior to the expira/on of the CBA.
When the CBA is not registered with the RO of the
DOLE or BLR.
Devia/on from the contract-bar rule is jus/fied only
where the need for industrial stability is clearly shown
to be impera/ve.
PRIVILEGED COMMUNICATION (Art 239, LC)
PRIVILEGED COMMUNICATION – the statements and conversa/ons
made under circumstances of assured confiden/ality which must not
be disclosed in court or in any administra/ve proceedings.
Note: Maiers which the parAes may have revealed or may have
learned from each other during mediaAon and conciliaAon
proceedings shall not be used as evidence before the proceedings in
the LA or NLRC or any court or tribunal
Title IV: LABOR ORGANIZATIONS
CHAPTER I: REGISTRATION AND CANCELLATION
REQUIREMENTS OF REGISTRATION (Art 240, LC)
•
Any applicant labor organiza/on, associa/on or group of unions
or workers shall acquire legal personality and shall be en/tled to
the rights and privileges granted by law to legi/mate labor
organiza/ons upon issuance of the cer/ficate of registra/on
based on the following requirements.
a) P50.00 registra/on fee;
b) The names of its officers, their addresses, the principal
address of the labor organiza/on, the minutes of the
organiza/onal mee/ngs and the list of the workers who
par/cipated in such mee/ngs;
c) In case the applicant is an independent union – the names
of all its members comprising at least (20%) of all the
employees in the bargaining unit where it seeks to operate;
(As amended by E.O. No. 111, December 24, 1986)
d) If the applicant union has been in existence for one or more
years, copies of its annual financial reports; and
RIVERA NOTES (BAR 2024)
(4) copies of the cons/tu/on and by-laws of the applicant
union, minutes of its adop/on or ra/fica/on, and the list of
the members who par/cipated in it. (As amended by BP
130, August 21, 1981)
REGISTRATION OF LABOR ORGANIZATIONS:
WHERE TO FILE:
a) APPLICATIONS FOR REGISTRATION OF INDEPENDENT LABOR
UNIONS, CHARTERED LOCALS, WORKERS’ ASSOCIATIONS
§
Filed with the Regional Office with DOLE where the labor
organiza/ons operates.
§
It shall be processed by the LRD at the Regional Office
b)
APPLICATIONS FOR REGISTRATION OF FEDERATIONS,
NATIONAL UNIONS OR WORKER’S ASSOCIATIONS OEPRATING
IN MORE THAN 1 REGION
§
Filed with the BLR or the DOLE Regional Office.
§
It shall be processed by the BLR
§
It shall be immediately forwarded to the Bureau within 48
hours from filing, together with all the documents
suppor/ng the registra/on.
ACTION ON APPLICATION (Art 241, LC)
The Bureau shall act on all applica/ons for registra/on within thirty
(30) days from filing.
All requisite documents and papers shall be cer/fied under oath by
the secretary or the treasurer of the organiza/on, as the case may be,
and a<ested to by its president.
DENIAL OF REGISTRATION; APPEAL. (Art 242, LC)
The decision of the Labor Rela/ons Division in the regional office
denying registra/on may be appealed by the applicant union to the
Bureau within ten (10) days from receipt of no/ce thereof.
Addi/onal requirements for federa/ons or na/onal unions. (Art 243,
LC)
Subject to Ar/cle 238, if the applicant for registra/on is a federa/on
or a na/onal union, it shall, in addi/on to the requirements of the
preceding Ar/cles, submit the following:
Proof of the affilia/on of at least ten (10) locals or chapters, each of
which must be a duly recognized collec/ve bargaining agent in the
establishment or industry in which it operates, suppor/ng the
registra/on of such applicant federa/on or na/onal union; and
The names and addresses of the companies where the locals or
chapters operate and the list of all the members in each company
involved.
[ Art. 238. Condi/ons for registra/on of federa/ons or na/onal
unions. No federa/on or na/onal union shall be registered to engage
in any organiza/on ac/vity in more than one industry in any area or
region, and no federa/on or na/onal union shall be registered to
engage in any organiza/onal ac/vity in more than one industry all over
the country.
The federa/on or na/onal union which meets the requirements and
condi/ons herein prescribed may organize and affiliate locals and
chapters without registering such locals or chapters with the Bureau.
Locals or chapters shall have the same rights and privileges as if they
were registered in the Bureau, provided that such federa/on or
na/onal union organizes such locals or chapters within its assigned
organiza/onal field of ac/vity as may be prescribed by the Secretary
of Labor.
The Bureau shall see to it that federa/ons and na/onal unions shall
only organize locals and chapters within a specific industry or union.]
(Repealed by Execu/ve Order No. 111, December 24, 1986)
Art. 238. Cancella/on of registra/on; appeal. The cer/ficate of
registra/on of any legi/mate labor organiza/on, whether na/onal or
local, shall be cancelled by the Bureau if it has reason to believe, aker
due hearing, that the said labor organiza/on no longer meets one or
more of the requirements herein prescribed.
[The Bureau upon approval of this Code shall immediately ins/tute
cancella/on proceedings and take such other steps as may be
necessary to restructure all exis/ng registered labor organiza/ons in
accordance with the objec/ve envisioned above.] (Repealed by
Execu/ve Order No. 111, December 24, 1986)
Art. 239. Grounds for cancella/on of union registra/on. The following
shall cons/tute grounds for cancella/on of union registra/on:
Misrepresenta/on, false statement or fraud in connec/on with the
adop/on or ra/fica/on of the cons/tu/on and by-laws or
amendments thereto, the minutes of ra/fica/on and the list of
members who took part in the ra/fica/on;
Failure to submit the documents men/oned in the preceding
paragraph within thirty (30) days from adop/on or ra/fica/on of the
cons/tu/on and by-laws or amendments thereto;
Misrepresenta/on, false statements or fraud in connec/on with the
elec/on of officers, minutes of the elec/on of officers, the list of
voters, or failure to submit these documents together with the list of
the newly elected/appointed officers and their postal addresses
within thirty (30) days from elec/on;
Failure to submit the annual financial report to the Bureau within
thirty (30) days aker the closing of every fiscal year and
misrepresenta/on, false entries or fraud in the prepara/on of the
financial report itself;
Ac/ng as a labor contractor or engaging in the “cabo” system, or
otherwise engaging in any ac/vity prohibited by law;
Entering into collec/ve bargaining agreements which provide terms
and condi/ons of employment below minimum standards established
by law;
Asking for or accep/ng a<orney’s fees or nego/a/on fees from
employers;
Other than for mandatory ac/vi/es under this Code, checking off
special assessments or any other fees without duly signed individual
wri<en authoriza/ons of the members;
Failure to submit list of individual members to the Bureau once a year
or whenever required by the Bureau; and
Failure to comply with requirements under Ar/cles 237 and 238.
Art. 240. Equity of the incumbent. All exis/ng federa/ons and na/onal
unions which meet the qualifica/ons of a legi/mate labor
organiza/on and none of the grounds for cancella/on shall con/nue
to maintain their exis/ng affiliates regardless of the nature of the
industry and the loca/on of the affiliates.
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Chapter II
RIGHTS AND CONDITIONS OF MEMBERSHIP
Art. 241. Rights and condi/ons of membership in a labor organiza/on.
The following are the rights and condi/ons of membership in a labor
organiza/on:
No arbitrary or excessive ini/a/on fees shall be required of the
members of a legi/mate labor organiza/on nor shall arbitrary,
excessive or oppressive fine and forfeiture be imposed;
The members shall be en/tled to full and detailed reports from their
officers and representa/ves of all financial transac/ons as provided
for in the cons/tu/on and by-laws of the organiza/on;
The members shall directly elect their officers, including those of the
na/onal union or federa/on, to which they or their union is affiliated,
by secret ballot at intervals of five (5) years. No qualifica/on
requirements for candidacy to any posi/on shall be imposed other
than membership in good standing in subject labor organiza/on. The
secretary or any other responsible union officer shall furnish the
Secretary of Labor and Employment with a list of the newly-elected
officers, together with the appoin/ve officers or agents who are
entrusted with the handling of funds, within thirty (30) calendar days
aker the elec/on of officers or from the occurrence of any change in
the list of officers of the labor organiza/on; (As amended by Sec/on
16, Republic Act No. 6715, March 21, 1989)
The members shall determine by secret ballot, aker due delibera/on,
any ques/on of major policy affec/ng the en/re membership of the
organiza/on, unless the nature of the organiza/on or force majeure
renders such secret ballot imprac/cal, in which case, the board of
directors of the organiza/on may make the decision in behalf of the
general membership;
No labor organiza/on shall knowingly admit as members or con/nue
in membership any individual who belongs to a subversive
organiza/on or who is engaged directly or indirectly in any subversive
ac/vity;
No person who has been convicted of a crime involving moral
turpitude shall be eligible for elec/on as a union officer or for
appointment to any posi/on in the union;
No officer, agent or member of a labor organiza/on shall collect any
fees, dues, or other contribu/ons in its behalf or make any
disbursement of its money or funds unless he is duly authorized
pursuant to its cons/tu/on and by-laws;
Every payment of fees, dues or other contribu/ons by a member shall
be evidenced by a receipt signed by the officer or agent making the
collec/on and entered into the record of the organiza/on to be kept
and maintained for the purpose;
The funds of the organiza/on shall not be applied for any purpose or
object other than those expressly provided by its cons/tu/on and bylaws or those expressly authorized by wri<en resolu/on adopted by
the majority of the members at a general mee/ng duly called for the
purpose;
Every income or revenue of the organiza/on shall be evidenced by a
record showing its source, and every expenditure of its funds shall be
evidenced by a receipt from the person to whom the payment is
made, which shall state the date, place and purpose of such payment.
Such record or receipt shall form part of the financial records of the
organiza/on.
Any ac/on involving the funds of the organiza/on shall prescribe aker
three (3) years from the date of submission of the annual financial
report to the Department of Labor and Employment or from the date
the same should have been submi<ed as required by law, whichever
comes earlier: Provided, That this provision shall apply only to a
legi/mate labor organiza/on which has submi<ed the financial report
requirements under this Code: Provided, further, that failure of any
labor organiza/on to comply with the periodic financial reports
required by law and such rules and regula/ons promulgated
thereunder six (6) months aker the effec/vity of this Act shall
automa/cally result in the cancella/on of union registra/on of such
labor organiza/on; (As amended by Sec/on 16, Republic Act No. 6715,
March 21, 1989)
The officers of any labor organiza/on shall not be paid any
compensa/on other than the salaries and expenses due to their
posi/ons as specifically provided for in its cons/tu/on and by-laws, or
in a wri<en resolu/on duly authorized by a majority of all the
members at a general membership mee/ng duly called for the
purpose. The minutes of the mee/ng and the list of par/cipants and
ballots cast shall be subject to inspec/on by the Secretary of Labor or
his duly authorized representa/ves. Any irregulari/es in the approval
of the resolu/ons shall be a ground for impeachment or expulsion
from the organiza/on;
The treasurer of any labor organiza/on and every officer thereof who
is responsible for the account of such organiza/on or for the
collec/on, management, disbursement, custody or control of the
funds, moneys and other proper/es of the organiza/on, shall render
to the organiza/on and to its members a true and correct account of
all moneys received and paid by him since he assumed office or since
the last day on which he rendered such account, and of all bonds,
securi/es and other proper/es of the organiza/on entrusted to his
custody or under his control. The rendering of such account shall be
made:
At least once a year within thirty (30) days aker the close of its fiscal
year;
At such other /mes as may be required by a resolu/on of the majority
of the members of the organiza/on; and
Upon vaca/ng his office.
The account shall be duly audited and verified by affidavit and a copy
thereof shall be furnished the Secretary of Labor.
The books of accounts and other records of the financial ac/vi/es of
any labor organiza/on shall be open to inspec/on by any officer or
member thereof during office hours;
No special assessment or other extraordinary fees may be levied upon
the members of a labor organiza/on unless authorized by a wri<en
resolu/on of a majority of all the members in a general membership
mee/ng duly called for the purpose. The secretary of the organiza/on
shall record the minutes of the mee/ng including the list of all
members present, the votes cast, the purpose of the special
assessment or fees and the recipient of such assessment or fees. The
record shall be a<ested to by the president.
Other than for mandatory ac/vi/es under the Code, no special
assessments, a<orney’s fees, nego/a/on fees or any other
extraordinary fees may be checked off from any amount due to an
employee without an individual wri<en authoriza/on duly signed by
the employee. The authoriza/on should specifically state the amount,
purpose and beneficiary of the deduc/on; and
It shall be the duty of any labor organiza/on and its officers to inform
its members on the provisions of its cons/tu/on and by-laws,
collec/ve bargaining agreement, the prevailing labor rela/ons system
and all their rights and obliga/ons under exis/ng labor laws.
For this purpose, registered labor organiza/ons may assess
reasonable dues to finance labor rela/ons seminars and other labor
educa/on ac/vi/es.
Any viola/on of the above rights and condi/ons of membership shall
be a ground for cancella/on of union registra/on or expulsion of
officers from office, whichever is appropriate. At least thirty percent
(30%) of the members of a union or any member or members specially
concerned may report such viola/on to the Bureau. The Bureau shall
have the power to hear and decide any reported viola/on to mete the
appropriate penalty.
RIVERA NOTES (BAR 2024)
Criminal and civil liabili/es arising from viola/ons of above rights and
condi/ons of membership shall con/nue to be under the jurisdic/on
of ordinary courts.
Chapter III
RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS
Art. 242. Rights of legi/mate labor organiza/ons. A legi/mate labor
organiza/on shall have the right:
To act as the representa/ve of its members for the purpose of
collec/ve bargaining;
To be cer/fied as the exclusive representa/ve of all the employees in
an appropriate bargaining unit for purposes of collec/ve bargaining;
To be furnished by the employer, upon wri<en request, with its annual
audited financial statements, including the balance sheet and the
profit and loss statement, within thirty (30) calendar days from the
date of receipt of the request, aker the union has been duly
recognized by the employer or cer/fied as the sole and exclusive
bargaining representa/ve of the employees in the bargaining unit, or
within sixty (60) calendar days before the expira/on of the exis/ng
collec/ve bargaining agreement, or during the collec/ve bargaining
nego/a/on;
To own property, real or personal, for the use and benefit of the labor
organiza/on and its members;
To sue and be sued in its registered name; and
To undertake all other ac/vi/es designed to benefit the organiza/on
and its members, including coopera/ve, housing, welfare and other
projects not contrary to law.
Notwithstanding any provision of a general or special law to the
contrary, the income and the proper/es of legi/mate labor
organiza/ons, including grants, endowments, giks, dona/ons and
contribu/ons they may receive from fraternal and similar
organiza/ons, local or foreign, which are actually, directly and
exclusively used for their lawful purposes, shall be free from taxes,
du/es and other assessments. The exemp/ons provided herein may
be withdrawn only by a special law expressly repealing this provision.
(As amended by Sec/on 17, Republic Act No. 6715, March 21, 1989)
Title V
COVERAGE
Art. 243. Coverage and employees’ right to self-organiza/on. All
persons employed in commercial, industrial and agricultural
enterprises and in religious, charitable, medical, or educa/onal
ins/tu/ons, whether opera/ng for profit or not, shall have the right
to self-organiza/on and to form, join, or assist labor organiza/ons of
their own choosing for purposes of collec/ve bargaining. Ambulant,
intermi<ent and i/nerant workers, self-employed people, rural
workers and those without any definite employers may form labor
organiza/ons for their mutual aid and protec/on. (As amended by
Batas Pambansa Bilang 70, May 1, 1980)
Art. 244. Right of employees in the public service. Employees of
government corpora/ons established under the Corpora/on Code
shall have the right to organize and to bargain collec/vely with their
respec/ve employers. All other employees in the civil service shall
have the right to form associa/ons for purposes not contrary to law.
(As amended by Execu/ve Order No. 111, December 24, 1986)
Art. 245. Ineligibility of managerial employees to join any labor
organiza/on; right of supervisory employees. Managerial employees
are not eligible to join, assist or form any labor organiza/on.
Supervisory employees shall not be eligible for membership in a labor
organiza/on of the rank-and-file employees but may join, assist or
form separate labor organiza/ons of their own. (As amended by
Sec/on 18, Republic Act No. 6715, March 21, 1989)
Art. 246. Non-abridgment of right to self-organiza/on. It shall be
unlawful for any person to restrain, coerce, discriminate against or
unduly interfere with employees and workers in their exercise of the
right to self-organiza/on. Such right shall include the right to form,
RIVERA NOTES (BAR 2024)
Labor Arbiters shall give utmost priority to the hearing and
resoluAon of all cases involving ULP. They shall resolve such
cases within 30 calendar days from the Ame they are
submiied for decision.
join, or assist labor organiza/ons for the purpose of collec/ve
bargaining through representa/ves of their own choosing and to
engage in lawful concerted ac/vi/es for the same purpose for their
mutual aid and protec/on, subject to the provisions of Ar/cle 264 of
this Code. (As amended by Batas Pambansa Bilang 70, May 1, 1980)
Recovery of civil liability in the administraAve proceedings
shall bar recovery under the Civil Code.
b)
CRIMINAL ASPECT
§
Who commits: By the officers and agents of the employer
who par/cipated, authorized and/or ra/fied the act.
§
Jurisdicaon: This ULP falls within the jurisdic/on of regular
courts.
§
Quantum of Proof: Proof beyond reasonable doubt
§
Prescripave Period: Within 1 year from the accrual of the
act of ULP
Note: Criminal proceeding is suspended once the civil or
administraAve aspect is filed. It will only conAnue once the
administraAve case has aiained finality.
TITLE VI: UNFAIR LABOR PRACTICES
CHAPTER I: CONCEPT
CONCEPT OF UNFAIR LABOR PRACTICE AND PROCEDURE FOR
PROSECUTION (Art 258, LC)
UNFAIR LABOR PRACTICE (ULP) – any unfair labor prac/ce (Art.
219(k), LC); Any act of an employer, his representa/ves and
agents and any labor union, its officers and members which
affects the rights of any employee to self-organiza/on; Acts that
violate the workers’ right to organize.
The prohibited acts are related to the worker’s right to selforganiza/on and to the observe of a CBA. Without that element,
the acts, no ma<er how unfair, are not ULP (Philcom Employees
Union v PH Global CommunicaVon
Note: ULP are violaAve of the consAtuAonal right of workers to
self-organize.
If the unfair treatment does not relate to or affect the workers’
right to self-organize. It cannot be deemed ULP.
A dismissal of a union officer is not necessarily discriminatory,
especially when that officer commiied an act of misconduct. In
fact, union officers are held to higher standards (Adamson
University Faculty and Employees Union v Adamson University,
G.R. No. 227070, March 9, 2020)
CONSEQUENCES OF ULP: In order for ULP to be commi<ed:
Existence of EE-Rela/onship between the offender and the
offended par/es must exist.
ASPECTS OF ULP:
a) CIVIL ASPECT
§
Who commits: By the officers and agents of the employers
or officers and agents of the labor organiza/on;
§
Quantum of Proof: Substan/al Evidence
§
Prescripave Period: Within 1 year from the accrual of the
act of ULP
Note: The civil aspects of all cases involving ULP, which may
include claims for actual, moral, exemplary and other forms
of damages, aiorney’s fees and other affirmaAve relief,
shall be under the jurisdicAon of the Labor Arbiters – subject
to the exercise by the President or by the Secretary of Labor
and Employment vested under Art 264 and 264.
The final judgment in the administraAve proceeding (civil
aspect) finding ULP is a pre-requisite in the filing of the
criminal case for ULP. However, the final judgment in the civil
case is only a condiAon precedent for the filing of the
criminal case and is not binding and cannot be used as
evidence in the criminal case for ULP.
PENALTY FOR ULP:
GR:
Any viola/on declared to be unlawful or penal in nature
shall be punished with a fine of P1K – P10K or imprisonment
of 3mos – 3 years or both such fine and imprisonment at the
discre/on of the court. (Art 303, LC)
XPN:
Otherwise provided in this Code or unless the acts
complained of hinge on a ques/on of interpreta/on or
implementa/on of ambiguous provisions of an exis/ng CBA
Any Alien found guilty shall be summarily deported upon
comple/on of service of sentence
JURISDICTION: Any criminal offense shall be under the
concurrent jurisdic/on of the Municipal/City Courts and CFI
Note: While an act or decision of an employer may be unfair – not
every unfair act or decision consAtutes ULP. Thus, an employer
may be held liable if his conduct affects in whatever manner the
right of an employee to self-organize.
CHAPTER II: UNFAIR LABOR PRACTICES OF EMPLOYERS
UNFAIR LABOR PRACTICES OF EMPLOYERS (Art 259, LC)
a) INTERFERING, RESTRAINING OR COERCING EMPLOYEES: To
interfere with, restrain or coerce employees in the exercise of
their right to self-organiza/on;
Note: If an employer interferes in the selecAon of its negoAators
coerces the Union to exclude from its panel of negoAators a
representaAve of the Union, and if it can be inferred that the
employer adopted the said act to yield adverse effects on the free
exercise to right to self-organizaAon or on the right to CBA of the
employees.
In order to show that employer commiied ULP – substanAal
evidence is required to support the claim. (Standard Chartered
Bank Employees Union (NUBE) v Confessor, G.R. No. 11497,
June 16, 2004)
Factual findings of labor officials, who are deemed to have
acquired experAse in maiers within their respecAve jurisdicAons,
are binding on the SC – their conclusions are accorded great
weight upon appeal, especially when supported by substanAal
evidence. (Hacienda FaVma v NLRC, G.R. No. 1149440, January
28, 2003); The finding of ULP done in bad faith carries with it the
sancAon of moral and exemplary damages.
b)
YELLOW DOG CONTRACT OR IRONCLAD OATH: To require as a
condi/on of employment that a person or an employee shall not
join a labor organiza/on or shall withdraw from one to which he
belongs;
YELLOW DOG CONTRACT – an undertaking by the employees
that as a condi/on for employment they will not join, assist, form
or even a<empt to foster a union for the dura/on of their
employment with the employer – the undertaking is void.
c)
CONTRACTING OUT SERVICES: To contract out services or
func/ons being performed by union members when such will
interfere with, restrain or coerce employees in the exercise of
their rights to self-organiza/on;
It becomes ULP if the following condiAons exist:
i. The services contracted out are being performed by union
members; and
ii. Such contracAng out services interfere with, restrains, or
coerces employees in the exercise of their right to selforganizaAon
Note: Management is free to regulate, according to its own
discreAon and judgment, all aspects of employment, including
hiring, work assignments, supervision and transfer of employees,
working methods, Ame, place, and manner of work.
d)
COMPANY UNIONISM: To ini/ate, dominate, assist or otherwise
interfere with the forma/on or administra/on of any labor
organiza/on, including the giving of financial or other support to
it or its organizers or supporters;
It is commiied when the employer or its agent commit the
following acts:
i. IniAaAon of company union;
ii. Financial support to the union;
iii. AssisAng and encouraging the union; and
iv. Supervisory assistance and passivity of the union.
e)
DISCRIMINATION: To discriminate in regard to wages, hours of
work and other terms and condi/ons of employment in order to
encourage or discourage membership in any labor organiza/on.
Nothing in this Code or in any other law shall stop the par/es
from requiring membership in a recognized collec/ve bargaining
agent as a condi/on for employment, except those employees
who are already members of another union at the /me of the
signing of the collec/ve bargaining agreement.
Employees of an appropriate bargaining unit who are not
members of the recognized collec/ve bargaining agent may be
assessed a reasonable fee equivalent to the dues and other fees
paid by members of the recognized collec/ve bargaining agent,
if such non-union members accept the benefits under the
collec/ve bargaining agreement: Provided, that the individual
authoriza/on required under Ar/cle 242, paragraph (o) of this
Code shall not apply to the non-members of the recognized
collec/ve bargaining agent;
f)
RIVERA NOTES (BAR 2024)
It will tend to impair the objecAvity of the union officers in dealing
and in bargaining with the employer, thus affecAng the
employees’ right to self-organizaAon.
i)
REFUSAL TO BARGAIN WITH UNION: To violate a collec/ve
bargaining agreement.
Note: REFUSAL TO BARGAIN WITH UNION. The violaAon of the
CBA that would amount to ULP is that GROSS VIOLATION of the
CBA – flagrant and/or malicious refusal to comply with the
economic provisions of such agreement.
RUN-AWAY SHOP – an industrial plant moved by its owners from
one locaAon to another to escape union labor regulaAons or state
laws; But the terms is also used to describe a plant removed to a
new locaAon in order to discriminate against employees at the
old plant because of their union acAviAes. (BAR Q 2009)
BLUE-SKY BARGAINING – act of making exaggerated or
unreasonable proposals. The bank failed to show that the
economic demands made by the Union were exaggerated or
unreasonable – The minutes of the meeAng show that the Union
based its economic proposals on data of rank-and-file employees
and the prevailing economic benefits received by bank employees
from other foreign banks doing business in the Ph and other
branches of the Bank in the Asian region (Standard Chartered
Bank v Confesor, G.R. No. 114974, June 16, 2004)
SURFACE BARGAINING – going through the moAons of
negoAaAng” without any legal intent to reach an agreement.
(BAR Q 2010)
§
It involves the quesAon of whether an employer’s conduct
demonstrates an unwillingness to bargain in good faith or is
merely hard bargaining (Standard Chartered Bank v
Confesor, G.R. No. 114974, June 16, 2004)
The provisions of the preceding paragraph notwithstanding, only the
officers and agents of corpora/ons, associa/ons or partnerships who
have actually par/cipated in, authorized or ra/fied unfair labor
prac/ces shall be held criminally liable. (As amended by BP Blg. 130,
August 21, 1981)
ILLUSTRATIONS (2018 BAR Q)
In Northern Lights CorporaAon, union members Nad, Ned, and Nod
sought permission from the company to distribute flyers with respect
to a weekend union acAvity. The company HR manager granted the
request through a text message sent to another union member,
Norlyn.
While Nad, Ned, and Nod were distribuAng the flyers at the company
assembly plant, a company supervisor barged in and demanded that
they cease from distribuAng the flyers, staAng that the assembly line
employees were trying to beat a producAon deadline and were
thoroughly distracted. Norlyn tried to show the HR manager's text
message authorizing flyer distribuAon during work hours, but the
supervisor brushed it aside.
ULP for an employer to discriminate in regard to wages in order
to encourage or discourage membership in any labor
organizaAon (InternaAonal School Alliance of Educators (ISAE) v
Quisumbing, G.R. No. 128845, June 1, 2000)
As a result, Nad, Ned, and Nod were suspended for violaAng company
rules on trespass and highly-limited union acAviAes during work hours.
The Union filed an unfair labor pracAce (ULP) case before the NLRC for
union discriminaAon.
RETRENCHMENT: To dismiss, discharge or otherwise prejudice or
discriminate against an employee for having given or being about
to give tes/mony under this Code;
a) Will the ULP case filed by the Union prosper? (2.5%)
g)
REFUSAL TO BARGAIN WITH UNION: To violate the duty to
bargain collec/vely as prescribed by this Code;
h)
PAID NEGOTIATION: To pay nego/a/on or a<orney’s fees to the
union or its officers or agents as part of the se<lement of any
issue in collec/ve bargaining or any other dispute; or
Yes. The ULP Case will prosper. The supervisor of Nad, Ned, and
Nod directly interfered with union acAviAes and ulAmately with
the right to self-organizaAon. Nad, Ned, and Nod’s acAons were
in good faith as prior permission was obtained thru the HR
Manager who apparently failed to communicate such permission
to the plant supervisor.
b) Assume the NLRC ruled in favor of the Union. The Labor Arbiter's
judgment included, among others, an award for moral and exemplary
damages at PhP50,000.00 each for Nad, Ned, and Nod. should
RIVERA NOTES (BAR 2024)
The Contract or CBA is considered as a SD/SC because it does not
substanAally improve the employee’s wage and benefits. Worst,
the contract may even provide for benefits far below those that
are provided by law.
Northern be Lights given to CorporaAon the Union, and argued not
that individually any award to its of members. Is Northern Lights
CorporaAon correct? (2.5%)
No. Nothern Light is not correct. The SC ruled that the award of
moral and exemplary damages to illegal dismissal cases resulAng
from ULP may be made in individual or aggregate amounts.
Damages
may
be
awarded
individually
(Digitel
TelecommunicaVons Ph, Inc. v Digitel Employees Union (DEU),
G.R. Nos. 184903-04, October 10, 2012)
g)
To violate a collec/ve bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the
officers, members of governing boards, representa/ves or agents or
members of labor associa/ons or organiza/ons who have actually
par/cipated in, authorized or ra/fied unfair labor prac/ces shall be
held criminally liable. (As amended by BP Blg. 130, August 21, 1981)
Note: A Labor Union may also be liable for ULP.
UNION SECURITY CLAUSE – a s/pula/on contained in the CBA
whereby the employer undertakes to recognize the right of the union
who nego/ated the CBA to maintain and protect its membership by
imposing certain terms and condi/ons in hiring employees and
reten/on of employment.
Purpose: It provides protecAon to the cerAfied bargaining agent
and ensure that the employer is dealing with a union that
represents the interest of the legally mandated percentage of the
members of the bargaining unit (BPI v BPI Employees UnionDavao Chapter-FederaVon of Unions in BPI Unibank, G.R. No.
164301, August 10, 2010)
CHAPTER III: UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS
UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS (Art 260)
a) It shall be unfair labor prac/ce for a labor organiza/on, its
officers, agents or representa/ves;
b) To restrain or coerce employees in the exercise of their right to
self-organiza/on. However, a labor organiza/on shall have the
right to prescribe its own rules with respect to the acquisi/on or
reten/on of membership;
c) To cause or a<empt to cause an employer to discriminate against
an employee, including discrimina/on against an employee with
respect to whom membership in such organiza/on has been
denied or to terminate an employee on any ground other than
the usual terms and condi/ons under which membership or
con/nua/on of membership is made available to other
members;
d) To violate the duty, or refuse to bargain collec/vely with the
employer, provided it is the representa/ve of the employees;
e)
FEATHERBEDDING: To cause or a<empt to cause an employer to
pay or deliver or agree to pay or deliver any money or other
things of value, in the nature of an exac/on, for services which
are not performed or not to be performed, including the demand
for fee for union nego/a/ons;
TYPES OF UNION SECURITY CLAUSES:
a)
No person may be employed in any or certain agreed
departments of the enterprise unless he or she is, becomes, and,
for the duraAon of the agreement, remains a member in good
standing of a union enArely comprised of or of which the
employees in interest are a part (SLORD Development Corp v
Noya, G.R. No. 232687, February 4, 2019)
A closed shop is a valid form of union security and such provision
in a CBA is not a restricAon of the right of freedom of associaAon
guaranteed by the ConsAtuAon (Lirag TexVle Mills, Inc. v Blanco,
G.R. No. L-27029, November 12, 1981)
b)
FEATHERBEDDING – the pracAce of hiring more workers than are
needed to perform a given job, or to adopt work procedures
which appear pointless, complex and Ame-consuming merely to
employ addiAonal workers
There is union shop when all new regular employees are required
to join the union within a certain period for their conAnued
employment (SLORD Development Corp v Noya, G.R. No.
232687, February 4, 2019; BPI v BPI-Employees Union-Davao
Chapter FederaVon of Unions in BPI Unibank, G.R. No. 164301,
August 10, 2010)
There is no featherbedding if the paid work is performed made
no maier how unnecessary or useless it may be to the employer.
SWEETHEART’S CONTRACT: To ask for or accept nego/a/on or
a<orney’s fees from employers as part of the se<lement of any
issue in collec/ve bargaining or any other dispute;
SWEETHEART’S DEAL/CONTRACT – a contractual agreement,
usually worked out in secret, that greatly benefits some of the
parAes while inappropriately disadvantaging other parAes or the
public at large.
UNION SHOP AGREEMENT – whereby an employer binds himself
to hire only members of the contrac/ng union who must
con/nue to remain members of the union in good standing for
the dura/on of the agreement as a condi/on for con/nued
employment (Bar 2015)
A union-shop clause can require employees to join the union not
sooner than 30-days arer the date of their employment or the
date of the union contract, whichever is later. No employee may
be fired for lack of good standing in the union for reasons other
than failure to pay regular dues and iniAaAon fees.
It is an ULP of the union through coercive means for exacAng or
aiempAng to exact from employers for services not rendered or
not intended to be rendered.
f)
CLOSED SHOP AGREEMENT – an agreement whereby an
employer binds himself to hire only members of the contrac/ng
union who must con/nue to remain members of the union in
good standing for the dura/on of the agreement as a condi/on
for con/nued employment.
c)
MAINTENANCE OF MEMBERSHIP CLAUSE – when employees,
who are union members as of the effec/ve date of the
agreement or who becomes members, must maintain union
membership as a condi/on for con/nued employment un/l they
are promoted or transferred out of the bargaining unit, or the
agreement is terminated (SLORD Development Corp v Noya,
G.R. No. 232687, February 4, 2019)
b)
It does not require non-members to join the union but provides
that those who do not joint must maintain their membership for
the duraAon of the union contract, under penalty of discharge.
(Bar 2015)
c)
d)
While respondent company, under the Maintenance Membership
of the CBA, is bound to dismiss any employee expelled by PAFLU
for disloyalty, upon its wriien request, this undertaking should
not be done hasAly and summarily – The company acted in bad
faith in dismissing peAAoner workers without giving them the
benefit of a hearing. It did not even bother to inquire from the
workers concerned and from PAFLU itself about the cause of the
expulsion of the peAAoner workers. Instead, the company
immediately dismissed the workers.
d)
RIVERA NOTES (BAR 2024)
Employees already in the service and already members of a
union other than the majority at the Ame the union shop
agreement took effect;
ConfidenAal employees who are excluded from the rankand-file bargaining unit; and
Employees excluded from the union shop by express terms
of the agreement,
Note: Union Security Clause in a CBA is not a restricAon of the
right of freedom of associaAon guaranteed by the ConsAtuAon.
Hence, when certain employees are obliged to join a parAcular
union as a requisite for conAnued employment is considered a
valid restricAon of the freedom or right not to join any labor
organizaAon because it is in favor of unionism.
AGENCY SHOP (ANTI-FREE RIDER/HITCHHIKER) – an
arrangement that requires an employee, as a condi/on of
employment to pay the contrac/ng union a service fee known as
agency fee for the benefits these employees receive from the
CBA as a result of the efforts of the contrac/ng union. A limited
exemp/on to the Agency Shop requirement exists for employees
with bona fide religious objec/ons to joining a labor union.
Employees may come within the coverage of the CBA but may sAll
exempt from compulsory union membership under the union
security clauses
e)
PREFERENTIAL SHOP AGREEMENT
It recognizes the right of the employer to select his employees but
requires him to give preference to members of the contracAng
union who are qualified.
Non-membership due to religious beliefs: Members of religious
groups may not be compelled to join labor organizaAons if their
religions prohibit their members from joining such organizaAons.
VALID TERMINATION OF EMPLOYMENT PURSUANT TO UNION
SECURITY CLAUSE
•
Employers must see to it that:
a) The agreement is expressed in a clear and unequivocal way
so as not to leave room for interpreta/on because it is a
limita/on to the exercise of the right to self-organiza/on.
Any doubt must be resolved against the existence of a
closed-shop agreement.
b) The agreement can only have prospec/ve applica/on.
c) The right of every employee to due process must be strictly
observed. Thus, dismissal from service of the employee is
not automa/c upon the request of the union.
d) The agreement cannot be applied to employees who are
already members of the rival union or to the employees
who do not join unions pursuant to their religious belief.
TO VALIDLY TERMINATE THE EMPLOYMENT OF AN EMPLYEE
THROUGH THE ENFORCEMENT OF THE USC, THE FF REQUISITES
MUST CONCUR:
a) The USC is applicable;
b) The union is reques/ng for the enforcement of the US
provision in the CBA; and
c) There is sufficient evidence to support the decision of the
union to expel the employee from the union
Note: All employees in the bargaining unit covered by a Union
Shop Clause in their CBA with management are subject to its
terms.
The following employees are exempted from its coverage:
a) Employees who at the Ame the union shop agreement takes
effect are bona fide members of a religious organizaAon
which prohibits its members from joining labor union on
religious grounds;
Title VII: COLLECTIVE BARGAINING AND ADMINISTRATION OF
AGREEMENTS
PROCEDURE IN COLLECTIVE BARGAINING (Art 261)
a) When a party desires to nego/ate an agreement – it shall serve
a wri<en no/ce upon the other party with a statement of its
proposals. The other party shall make a reply thereto not later
than (10) calendar days from receipt of such no/ce;
b)
Should differences arise on the basis of such no/ce and reply,
either party may request for a conference which shall begin not
later than (10) calendar days from the date of request.
c)
If the dispute is not se<led, the Board shall intervene upon
request of either or both par/es or at its own ini/a/ve and
immediately call the par/es to concilia/on mee/ngs. The Board
shall have the power to issue subpoenas requiring the
a<endance of the par/es to such mee/ngs. It shall be the duty
of the par/es to par/cipate fully and promptly in the concilia/on
mee/ngs the Board may call;
d)
During the concilia/on proceedings in the Board, the par/es are
prohibited from doing any act which may disrupt or impede the
early se<lement of the disputes; and
e)
The Board shall exert all efforts to se<le disputes amicably and
encourage the par/es to submit their case to a voluntary
arbitrator. (As amended by Sec/on 20, Republic Act No. 6715,
March 21, 1989)
(DUKA, 2023)
COLLECTIVE BARGAINING – consist of negoAaAon between an
employer and the labor organizaAon which was cerAfied as the
exclusive bargaining representaAve of the collecAve bargaining unit so
as to determine and seile issues concerning wages, hours of work,
and other terms and condiAons of employment, as well as the
seilement of disputes in the workplace.
Notes: The result of collecAve bargaining procedure is a CBA.
Purpose: the acquisiAon or aiainment of the best possible
covenants or terms relaAng to economic and non-economic
benefits granted by employers and due the employers.
Failure to reach an agreement arer negoAaAons have conAnued
for a reasonable period does not establish a lack of good faith –
the duty to bargain does not include the obligaAon to reach an
agreement (Union of Filipro Employees-Drug, Food and Allied
Industries Unions-Kilusang Mayo Uni (UFE-DFA-KMU) v NestlePh, Incorporated, G.R. Nos. 158930-31, March 3, 2008)
COLLECTIVE BARGAINING AGREEMENT – the negoAated contract
between a legiAmate labor organizaAon and the employer concerning
wages, hours of work, and all other terms and condiAons of
employment in a bargaining unit.
Note: Terms and condiAons of a CBA consAtute the law between
the parAes. Those who are enAtled to its benefits can invoke its
provisions
InterpretaVon of CBA as contract: Where the CBA is clear and
unambiguous – it becomes the law between the parAes and
compliance is mandated by the express policy of the law.
iii.
PROCEDURES IN MEB
i. LegiAmate labor unions (LLU) who desire to negoAate with
their employers collecAvely shall execute a wriien
agreement among themselves, which shall contain the
following:
1) The names of the labor unions who desire to avail of
MEB;
2) Each labor union in the employer unit;
3) The fact that each of the labor unions are the
incumbent exclusive bargaining agents for their
respecAve employer units;
4) The duraAon of the CBA, if any, entered into by each
labor union with their respecAve employers
Note: LLU who are members of the same registered
federaAon, naAonal, or industry union are exempt from
execuAon of this wriien agreement.
Nature: It is not merely contractual in nature but impress with
public interest.
Who may iniVate: Labor Unions or Employers
The Employer’s failure to make a Amely reply to the proposals
presented by the union is indicaAve of its uier lack of interest in
bargaining with the union – its excuse that it felt the union is no longer
represented the workers was mainly dilatory as it turned out to be
uierly baseless (General Milling CorporaVon v CA, G.R. No. 146728,
February 11, 2004)
The company’s refusal to make counter-proposal to the union’s
proposed CBA is an indicaAon of its bad faith.
ii.
GOOD FAITH BARGAINING:
•
There is no per se test of good faith in bargaining.
•
Issue: WON a party has met his statutory duty to bargain in good
faith typically turns on the facts of the individual case.
TYPES OF BARGAINING
a) SINGLE ENTERPRISE BARGAINING (SEB) – Any voluntarily
recognized or cerAfied labor union may demand negoAaAons
with its employer for terms and condiAons of work covering
employees in the bargaining unit concerned (Sec 3, Rule XVI, D.O.
No. 40-03)
b)
MULTI-EMPLOYER BARGAINING (MEB) – a legiAmate labor
union(s) and employers may agree in wriAng to come together
for the purpose of CB, provided:
i. Only legiAmate labor unions who are incumbent exclusive
bargaining agents may parAcipate and negoAate in mulAemployer bargaining;
ii. Only employers with counterpart legiAmate labor unions
who are incumbent bargaining agents may parAcipate and
negoAate in mulA-employer bargaining; and
LegiAmate labor unions who desire to bargain with mulAemployers shall send a wriien noAce to this effect to each
employer concerned. The wriien agreement stated in the
preceding paragraph, or the cerAficate of registraAon of the
federaAon, naAonal, or industry union, shall accompany
said noAce.
Employers who agree to group themselves or use their
exisAng associaAons to engage in MEB shall send a wriien
noAce to each of their counterpart LLU indicaAng their desire
to engage in MEB. Said noAce shall indicate the following:
1) The names of the labor unions who desire to avail of
MEB;
2) Their corresponding legiAmate labor organizaAons;
3) The fact that each corresponding legiAmate union is
any incumbent exclusive bargaining agent;
4) The duraAon of the current CBA, if any, entered into by
each employer with the counterpart LLU
DUTY TO BARGAIN COLLECTIVELY IN THE ABSENCE OF COLLECTIVE
BARGAINING AGREEMENTS. (Art 262)
•
In the absence of an agreement or other voluntary arrangement
providing for a more expedi/ous manner of collec/ve bargaining,
it shall be the duty of employer and the representa/ves of the
employees to bargain collec/vely in accordance with the
provisions of this Code.
JURISDICTIONAL PRECONDITIONS IN CB:
•
The mechanics of CB is set in moAon only when the following
jurisdicAon pre-condiAons are present, namely:
i. Possession of the status of majority representaAon of the
employees’ representaAve in accordance with any of the
means of selecAon and designaAon provided for by the
Labor Code;
ii. Proof of majority representaAon; and
iii. A demand to bargain under Art 261 (a);
RIVERA NOTES (BAR 2024)
Only those legiAmate labor unions who pertain to employer
units who consent to mulA-employer bargaining may
parAcipate in mulA-employer bargaining (Sec 5, Rule XVI,
D.O. No. 40-03)
Who may iniVate: Labor Unions or Employers
iii.
Each employer or concerned labor union shall express its
willingness or refusal to parAcipate in MEB in wriAng,
addressed to its corresponding exclusive bargaining agent
or employer. NegoAaAons may commence only with regard
to respecAve employers and labor unions who consent to
parAcipate in MEB;
Who may iniVate: Labor Unions or Employers
iv.
During the court of negoAaAons, consenAng employers and
the corresponding legiAmate labor unions shall discuss and
agree on the following:
1) The manner by which negoAaAons shall proceed;
2) The scope and coverage of the negoAaAons and the
agreement; and
3) Where appropriate, the effect of the negoAaAons on
current agreements or condiAons of employment
among the parAes (Sec 6, Rule XVI, D.O. No. 40-03)
Who may iniVate: Labor Unions or Employers
STAGES IN COLLECTIVE BARGAINING
a)
PRELIMINARY – sending of a wriien noAce to bargain;
b)
NEOGTIATION – stage when parAes provide proposals and
counter proposals;
c)
EXECUTION – signing of the agreement;
d)
PUBLICATION – posAng of the agreement – 2 copies of the signed
CBA shall be posted for at least 5 days prior to the day of
raAficaAon in 2 conspicuous areas in each workplace of the
employer units concerned (Rule XVI, Sec 7, D.O. No. 40-03);
RIVERA NOTES (BAR 2024)
or the Bureau shall, within 5 days from receipt of the
applicaAon, noAfy the applicants in wriAng of the
requirements needed to complete the applicaAon.
Where the applicants fail to complete the requirements
within 10 days from receipt of noAce – the applicaAon shall
be denied without prejudice.
DENIAL OF REGISTRATION AND GROUNDS FOR APPEAL
§
The denial of registraAon shall be in wriAng, staAng in clear
terms the reasons and served upon the applicant union and
employer within 24hours from issuance.
Note: Non-posAng of the CBA is a fatal defect. These
requirements being mandatory, non-compliance rendered the
said CBA ineffecAve. (Associated Trade Unions (ATU) v Trajano,
G.R. No. 75321, June 20, 1988)
PosAng of CBA is employer’s responsibility because the purpose
of the requirement is to inform the employees in the bargaining
unit of the contents of said agreement so that they could
intelligently decide whether to accept the same or not
(Associated Labor Unions (ALU) v Ferrer-Calleja, G.R. No. L77282, May 5, 1989)
e)
f)
RATIFICATION – by the majority of all the workers in the
bargaining unit represented in the negoAaAon. Said CBA shall
affect only those employees in the bargaining units who have
raAfied it;
REGISTRATION – the CBA shall be registered with DOLE
Where to file: within 30 days from execuAon of CBA – the parAes
shall submit 2 duly signed copies of the CBA to the Regional Office
which issued the cerAficate of registraAon/cerAficate of creaAon
of chartered local of the labor union-party to the agreement.
Where the cerAficate of creaAon of the concerned chartered local
was issued by the Bureau – the agreement shall be filed with the
Regional Office which has jurisdiciAon over the palce where it
principally operates.
MulA-Employer CBA shall be filed with the Bureau.
REQUIREMENTS FOR REGISTRATION:
§
It shall be accompanied by the 1 original and 2 duplicate
copies of the following documents, which must be cerAfied
under oath by the representaAve of the employer and labor
union concerned:
i. The CBA;
ii. A statement that the CBA was posted in at least 2
conspicuous places in the establishment/s concerned
for at least 5 days before its raAficaAon; and
iii. A statement that the CBA was raAfied by the majority
of the employees in the bargaining unit of the
employer/s concerned
No other documents shall be required in the registraAon of
the CBA
Payment of RegistraVon Fee: The COR of CBA shall be issued by
the Regional Office upon payment of the prescribed fee (P1,000)
ACTION ON THE APPLICATION FOR REGISTRATION:
§
The Regional Office and the Bureau shall act on applicaAons
for registraAon of CBA within 5 days from receipt thereof,
either by:
i. Approving the applicaAon and issuing the COR; or
ii. Denying the applicaAon for failure of the applicant to
comply with the requirement for registraAon.
Where the documents supporAng the applicaAon are not
complete or are not verified under oath, the Regional Office
§
The denial by the Regional Office of the registraAon of
i. SINGLE ENTERPRISE CBA – may be appealed to the
Bureau within 10 days from receipt of the noAce of
denial.
ii. MULTI-EMPLOYER CBA – may be appealed to the Office
of the Secretary within 10 days from receipt of the
noAce of denial
§
The Memorandum of appeal shall be field with the RO or the
Bureau, as the case may be. It shall be transmiied, together
with the enAre records of the applicaAon, to the Bureau or
the Office of the Secretary within 24 hours from receipt of
the memorandum of appeal.
EFFECT OF NON-REGISTRATION OF CBA: It remains valid and
binding between the parAes. However, it may not be used to
apply the contract bar rule (Art 238) and prevent any LLU from
filing a peAAon for cerAficaAon of elecAon.
g)
ADMINISTRATION – the implementaAon of the CBA provision
which shall be jointly administered by the management and the
bargaining agent for a period of 5 years;
h)
INTERPRETATION AND APPLICATION – in case of ambiguity in the
interpretaAon, it shall be construed in favor of labor.
DUTY TO BARGAIN COLLECTIVELY (Art 263) – means the performance
of a mutual obliga/on to meet and convene promptly and
expedi/ously in good faith for the purpose of nego/a/ng an
agreement with respect to wages, hours of work and all other terms
and condi/ons of employment including proposals for adjus/ng any
grievances or ques/ons arising under such agreement and execu/ng
a contract incorpora/ng such agreements if requested by either party
but such duty does not compel any party to agree to a proposal or to
make any concession.
In short, the Duty to bargain collecAvely – means the
performance of a mutual obligaAon to meet and convene
promptly and expediAously in good faith for the purpose of
negoAaAng an agreement.
ISSUE: WON a party has met his statutory duty to bargain in good
faith typically turns on the facts of the individual case
BOULWAREISM – an offer or counteroffer that is not meant to
negoAated.
§
TAKE IT OR LEAVE IT strategy/First, last and best offer
§
It is prohibited in the PH because the employer and the labor
union are mandated to bargain in good faith.
DUTY TO BARGAIN COLLECTIVELY WHEN THERE EXISTS A
COLLECTIVE BARGAINING AGREEMENT. (Art 264)
§
When there is a CBA – the duty to bargain collec/vely shall
also mean that neither party shall terminate nor modify
such agreement during its life/me.
§
However, either party can serve a wri<en no/ce to
terminate or modify the agreement at least (60) days prior
to its expira/on date.
§
It shall be the duty of both par/es to keep the status quo
and to con/nue in full force and effect the terms and
condi/ons of the exis/ng agreement during the 60-day
period and/or un/l a new agreement is reached by the
par/es.
CONTRACT BAR RULE – the existence of the CBA bars the filing of
a peAAon for cerAficaAon elecAon except during the freedom
period.
§
No PeAAon for CerAficaAon may be filed arer the lapse of
the 60 days freedom period.
§
The old CBA is extended unAl a new one is signed. The rule
is that despite the lapse fo the formal effecAvity of the CBA
– the law sAll considers the same as conAnuing in force and
effect unAl a new CBA shall have been validly executed.
Hence, Contract bar rule sAll applies.
§
In the event that the parAes, by mutual agreement, enter
into a renegoAated contract with a term of 3 years or one
which does not coincide with the said 5 year term, and said
agreement is raAfied by majority of the members in the
bargaining unit – the subject contract is valid and legal,
binding among the contracAng parAes. It will not adversely
affect the right of another union to challenge the majority
status of the incumbent bargaining agent within 60 days
before the lapse of the original 5 year term of the CBA.
Rule: Only a cerAfied CBA may serve as bar to cerAficaAon
elecAons
Note: When there is a CBA, neither the employer no the union
may terminate or modify the CBA during its lifeAme.
Art. 253-A. Terms of a collec/ve bargaining agreement. Any Collec/ve
Bargaining Agreement that the par/es may enter into shall, insofar as
the representa/on aspect is concerned, be for a term of five (5) years.
No pe//on ques/oning the majority status of the incumbent
bargaining agent shall be entertained and no cer/fica/on elec/on
shall be conducted by the Department of Labor and Employment
outside of the sixty-day period immediately before the date of expiry
of such five-year term of the Collec/ve Bargaining Agreement. All
other provisions of the Collec/ve Bargaining Agreement shall be
renego/ated not later than three (3) years aker its execu/on. Any
agreement on such other provisions of the Collec/ve Bargaining
Agreement entered into within six (6) months from the date of expiry
of the term of such other provisions as fixed in such Collec/ve
Bargaining Agreement, shall retroact to the day immediately following
such date. If any such agreement is entered into beyond six months,
the par/es shall agree on the dura/on of retroac/vity thereof. In case
of a deadlock in the renego/a/on of the Collec/ve Bargaining
Agreement, the par/es may exercise their rights under this Code. (As
amended by Sec/on 21, Republic Act No. 6715, March 21, 1989)
Art. 254. Injunc/on prohibited. No temporary or permanent
injunc/on or restraining order in any case involving or growing out of
labor disputes shall be issued by any court or other en/ty, except as
otherwise provided in Ar/cles 218 and 264 of this Code. (As amended
by Batas Pambansa Bilang 227, June 1, 1982)
Art. 255. Exclusive bargaining representa/on and workers’
par/cipa/on in policy and decision-making. The labor organiza/on
designated or selected by the majority of the employees in an
appropriate collec/ve bargaining unit shall be the exclusive
representa/ve of the employees in such unit for the purpose of
collec/ve bargaining. However, an individual employee or group of
employees shall have the right at any /me to present grievances to
their employer.
Any provision of law to the contrary notwithstanding, workers shall
have the right, subject to such rules and regula/ons as the Secretary
of Labor and Employment may promulgate, to par/cipate in policy
and decision-making processes of the establishment where they are
employed insofar as said processes will directly affect their rights,
benefits and welfare. For this purpose, workers and employers may
form labor-management councils: Provided, That the representa/ves
of the workers in such labor-management councils shall be elected by
at least the majority of all employees in said establishment. (As
amended by Sec/on 22, Republic Act No. 6715, March 21, 1989)
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Art. 256. Representa/on issue in organized establishments. In
organized establishments, when a verified pe//on ques/oning the
majority status of the incumbent bargaining agent is filed before the
Department of Labor and Employment within the sixty-day period
before the expira/on of the collec/ve bargaining agreement, the
Med-Arbiter shall automa/cally order an elec/on by secret ballot
when the verified pe//on is supported by the wri<en consent of at
least twenty-five percent (25%) of all the employees in the bargaining
unit to ascertain the will of the employees in the appropriate
bargaining unit. To have a valid elec/on, at least a majority of all
eligible voters in the unit must have cast their votes. The labor union
receiving the majority of the valid votes cast shall be cer/fied as the
exclusive bargaining agent of all the workers in the unit. When an
elec/on which provides for three or more choices results in no choice
receiving a majority of the valid votes cast, a run-off elec/on shall be
conducted between the labor unions receiving the two highest
number of votes: Provided, that the total number of votes for all
contending unions is at least fiky percent (50%) of the number of
votes cast.
At the expira/on of the freedom period, the employer shall con/nue
to recognize the majority status of the incumbent bargaining agent
where no pe//on for cer/fica/on elec/on is filed. (As amended by
Sec/on 23, Republic Act No. 6715, March 21, 1989)
Art. 257. Pe//ons in unorganized establishments. In any
establishment where there is no cer/fied bargaining agent, a
cer/fica/on elec/on shall automa/cally be conducted by the MedArbiter upon the filing of a pe//on by a legi/mate labor organiza/on.
(As amended by Sec/on 24, Republic Act No. 6715, March 21, 1989)
Art. 258. When an employer may file pe//on. When requested to
bargain collec/vely, an employer may pe//on the Bureau for an
elec/on. If there is no exis/ng cer/fied collec/ve bargaining
agreement in the unit, the Bureau shall, aker hearing, order a
cer/fica/on elec/on.
All cer/fica/on cases shall be decided within twenty (20) working
days.
The Bureau shall conduct a cer/fica/on elec/on within twenty (20)
days in accordance with the rules and regula/ons prescribed by the
Secretary of Labor.
Art. 259. Appeal from cer/fica/on elec/on orders. Any party to an
elec/on may appeal the order or results of the elec/on as determined
by the Med-Arbiter directly to the Secretary of Labor and Employment
on the ground that the rules and regula/ons or parts thereof
established by the Secretary of Labor and Employment for the
conduct of the elec/on have been violated. Such appeal shall be
decided within fikeen (15) calendar days. (As amended by Sec/on 25,
Republic Act No. 6715, March 21, 1989)
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Title VII-A: GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION
GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION (Art 273)
The parAes to a CBA shall include therein provisions that will ensure
the mutual observance of its terms and condiAons.
NOTES:
GRIEVANCE – any quesAon by either the employer or the union
regarding the interpretaAon or implementaAon of any provision of the
CBA or interpretaAon or enforcement of company personnel policies
(Sec 1(v) Rule I, D.O. No. 40-03)
It is a complaint filed by an employee or by his union
representaAve regarding working condiAons and for resoluAon of
which there is procedural machinery provided in a union contract.
Airing grievances over the radio
§
When laborers air out their grievances regarding their
employment in a public forum – considered exercise o their
right to free expression. Thus, dismissing employees merely
on the basis that they complained about their employer in a
radio show is unconsAtuAonal. (Hubilla v HSY MarkeVng
Ltd., Co., G.R. No. 207354, January 10, 2018)
Establishment of Grievance Machinery
§
The parAes to a CBA shall establish a machinery for the
expediAous resoluAon of grievances arising from:
a) the interpretaAon or implementaAon of the CBA;
b) the interpretaAon or enforcement of company
personnel policies.
§
Unresolved grievances – referred to voluntary arbitraVon.
o The parAes to a CBA shall name and designate in
advance a voluntary arbitrator or panel of voluntary
arbitrators or include in the agreement a procedure for
the selecAon of such voluntary arbitrator or panel of
voluntary arbitrators, preferably from the lisAng of
qualified voluntary arbitrators duly accredited by the
Board.
STEPS:
No parAcular set-up for a grievance machinery is mandated by
law. Rather, Art 273 of LC as incorporated by RA 6715, provides
for only a single grievance machinery in the company to seile
problems arising from:
a) the interpretaAon or implementaAon of the CBA;
b) the interpretaAon or enforcement of company personnel
policies.
Such disputes must be referred first to the grievance machinery
and, if unresolved within 7 days – they shall be automaAcally be
referred to voluntary arbitraAon (Santuyo v Remerco Garments,
G.R. No. 174420, March 22, 2010)
ParAes to a CBA shall:
a) name and designate in advance a Voluntary Arbitrator or
panel of Voluntary Arbitrators;
b) Include in the agreement a procedure for the selecAon of
such Voluntary Arbitrator or panel of Voluntary Arbitrators
duly accredited by the Board
In case the parAes fail to select a VA or Panel of VA – the
board shall designate the VA or panel of VA, as may be
necessary, pursuant to the selecAon procedure agreed upon
in the CBA, which shall act with the same force and effect as
if the VA or Panel of VA has been selected by the parAes
(CREA v Brillantes, G.R. No. 123782, September 16, 1997)
Establishment of a Grievance CommiOee
§
In the absence of applicable provision in the CBA – a
grievance commiiee shall be created within 10 days from
signing of the CBA.
o Commiiee – composed of at least 2 representaAves
each from the members of the bargaining unit and the
employer unless otherwise agreed upon by the parAes.
o The representaAves from among the members of the
bargaining unit shall be designated by the union. (Sec
1, Rule XIX, D.O. No. 40-03)
JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF
VOLUNTARY ARBITRATORS. (Art 273)
VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS:
•
EOJ to hear and decide all unresolved grievances arising from:
a) the interpretaAon or implementaAon of the CBA; and
b) the interpretaAon or enforcement of company personnel
policies
Note: Both employers and bargaining representaAve of the
employees are required to go through the grievance machinery
in case a grievance arises.
It does not provide who should iniAate but it is only logical, just
and equitable that whoever is aggrieved should iniAate
seilement of the grievance through the grievance machinery.
ARBITRATION – it is a voluntary process in which one or more
arbitrators – appointed according to the parAes’ agreement or
according to the applicable rules of the ADR – to resolve a dispute by
rendering an award.
Note: It is an alternaAve mode of dispute resoluAon outside of
the regular court system. Although it is adversarial in character,
arbitraAon is technically not a liAgaAon.
SUBMISSION TO VOLUNTARY ARBITRATION
Where grievance remains unresolved, either party may serve
noAce upon the other of its decision to submit the issue to
voluntary arbitraAon.
The noAce shall state the issue/s to be arbitrated, copy furnished
the board or the VA or Panel of VA named or designated in the
CBA.
If the party upon whom the noAce is served fails or refuses to
respond favorably within 7 days form receipt thereof – the VA or
panel of VA designated in the CBA shall commence voluntary
arbitraAon proceedings.
Where the CBA does not so designate – the board shall call the
parAes and appoint a VA or Panel of VA, who shall therearer
commence arbitraAon proceedings in accordance with the
preceding paragraph.
In instances where parAes fail to select a VA or Panel of VA – the
regional branch of the Board (NCMB) shall designate the VA or
Panel of VA, as may be necessary, which shall have the same force
and effect as if the parAes have selected the arbitrator (Sec 3,
Rule XIX, D.O. No. 40-03)
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VOLUNTARY ARBITRATION – mode of seiling labor-management
disputes by which the parAes select a competent, trained and
imparAal third person who shall decide on the merits of the case and
whose decision is final and executory
Note: Resort to arbitraAon is voluntary. It requires consent from
both parAes in the form of an arbitraAon clause that pre-existed
the dispute or a subsequent submission agreement.
This wriien arbitraAon agreement is an independent and legally
enforceable contract that must be complied with in good faith.
The contractual nature of arbitral proceedings affords the parAes
substanAal autonomy over the proceedings. The parAes are free
to agree on the procedure to be observed during the proceedings.
ARBITRATORS
Expected to decide those
quesAons expressly stated and
limited in the submission
agreement.
VOLUNTARY ARBITRATORS
Any person accredited by
the Board as such or
b) Any person named or
designated in the CBA
1) by the parAes to act
as their VA, or
2) one chosen with or
without
the
assistance of the
NCMB, pursuant to a
selecAon procedure
agreed upon in the
CBA, or
3) Any official that may
be authorized
QUALIFICATIONS
a)
b)
c)
a)
Of Legal Age
Full enjoyment of their civil
rights; and
The ability to read and
write
Art. 262-A. Procedures. The Voluntary Arbitrator or panel of Voluntary
Arbitrators shall have the power to hold hearings, receive evidences
and take whatever ac/on is necessary to resolve the issue or issues
subject of the dispute, including efforts to effect a voluntary
se<lement between par/es.
All par/es to the dispute shall be en/tled to a<end the arbitra/on
proceedings. The a<endance of any third party or the exclusion of any
witness from the proceedings shall be determined by the Voluntary
Arbitrator or panel of Voluntary Arbitrators. Hearing may be
adjourned for cause or upon agreement by the par/es.
Unless the par/es agree otherwise, it shall be mandatory for the
Voluntary Arbitrator or panel of Voluntary Arbitrators to render an
award or decision within twenty (20) calendar days from the date of
submission of the dispute to voluntary arbitra/on.
The award or decision of the Voluntary Arbitrator or panel of
Voluntary Arbitrators shall contain the facts and the law on which it is
based. It shall be final and executory aker ten (10) calendar days from
receipt of the copy of the award or decision by the par/es.
Upon mo/on of any interested party, the Voluntary Arbitrator or panel
of Voluntary Arbitrators or the Labor Arbiter in the region where the
movant resides, in case of the absence or incapacity of the Voluntary
Arbitrator or panel of Voluntary Arbitrators, for any reason, may issue
a writ of execu/on requiring either the sheriff of the Commission or
regular courts or any public official whom the par/es may designate
in the submission agreement to execute the final decision, order or
award.
Art. 262-B. Cost of voluntary arbitra/on and Voluntary Arbitrator’s
fee. The par/es to a Collec/ve Bargaining Agreement shall provide
therein a propor/onate sharing scheme on the cost of voluntary
arbitra/on including the Voluntary Arbitrator’s fee. The fixing of fee of
Voluntary Arbitrators, whether shouldered wholly by the par/es or
subsidized by the Special Voluntary Arbitra/on Fund, shall take into
account the following factors:
Note: Arbitrators do not
necessarily have a background
in law. Thus, there is a greater
risk that an arbitrator might
misapply
the
law
or
misappreciate the facts en route
to an erroneous decision
Nature of the case;
The errors of an arbitral tribunal
are not subject to correcAon by
the judiciary. As private
alternaAve
to
court
proceedings, arbitraAon is
meant to be an end, no the
beginning, of liAgaAon.
Fees provided for in the Revised Rules of Court.
Title VIII
STRIKES AND LOCKOUTS AND FOREIGN INVOLVEMENT IN TRADE
UNION ACTIVITIES
Accordingly, violaAons of a CollecAve Bargaining Agreement, except
those which are gross in character, shall no longer be treated as unfair
labor pracAce and shall be resolved as grievances under the CollecAve
Bargaining Agreement. For purposes of this arAcle, gross violaAons of
CollecAve Bargaining Agreement shall mean flagrant and/or malicious
refusal to comply with the economic provisions of such agreement.
The Commission, its Regional Offices and the Regional Directors of the
Department of Labor and Employment shall not entertain disputes,
grievances or maiers under the exclusive and original jurisdicAon of
the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall
immediately dispose and refer the same to the Grievance Machinery
or Voluntary ArbitraAon provided in the CollecAve Bargaining
Agreement.
Art. 262. Jurisdic/on over other labor disputes. The Voluntary
Arbitrator or panel of Voluntary Arbitrators, upon agreement of the
par/es, shall also hear and decide all other labor disputes including
unfair labor prac/ces and bargaining deadlocks.
Time consumed in hearing the case;
Professional standing of the Voluntary Arbitrator;
Capacity to pay of the par/es; and
Chapter I: STRIKES AND LOCKOUTS
STRIKES – any temporary stoppage of work by the concerted ac/on of
employees as a result of any industrial or labor dispute (Art 212(o))
Who may declare:
a) Any cer/fied or duly recognized bargaining representa/ve
may declare strike in cases of bargaining deadlocks and ULP;
b) Employer in cases of lockout;
Grounds:
a) A Collec/ve bargaining deadlock; or
b) A ULP act of the employer or the labor organiza/on.
SLOWDOWN – a strike on installment plan; An ac/vity by which
workers, without a complete stoppage of work, retard
produc/on or their performance of du/es and func/ons to
compel the management to grant their demands. Inherently
illicit and unjus/fiable.
MASS LEAVE – a simultaneous availment of authorized leave
benefits by a large number of employees in a company.
REQUIREMENTS OF STRIKE:
a)
b)
Strike must be based on a valid and factual ground;
Strike no/ce filed with NCMB:
i. ULP: At least 15 days before intended day of the strike;
ii. Bargaining Deadlock: At least 30 days before the intended
date.
iii. Union Busang: 15 days cooling off period shall not apply
c)
A strike must be approved by a majority vote of the members of
the union by secret ballot in a mee/ng called for that purpose;
Note: NoAce must be served to the NCMB-DOLE – at least 24
hours prior to the taking of strike/lockout vote by secret balloAng.
Informing said office of the decision to conduct a strike/lockout
vote, date, place and Ame.
d)
The strike vote shall be reported to the NCMB-DOLE Regional
Branch at least 7 days before the intended strike subject to
cooling-off period; and
Note: Cooling-off period and 7-day strike ban must both complied
e)
The dispute must not be the subject of an assump/on of
jurisdic/on by the Pres/Secretary of DOLE
WHAT KIND OF STRIKES ARE COVERED BY THE NO STRIKE NO
LOCK OUT CLAUSE:
§
Applicable only to economic strikes – those which is to force
wage or other concessions from the employer which is not
required by law to grant;
§
Art. 263. Strikes, picke/ng and lockouts.
It is the policy of the State to encourage free trade unionism and free
collec/ve bargaining.
Workers shall have the right to engage in concerted ac/vi/es for
purposes of collec/ve bargaining or for their mutual benefit and
protec/on. The right of legi/mate labor organiza/ons to strike and
picket and of employers to lockout, consistent with the na/onal
interest, shall con/nue to be recognized and respected. However, no
labor union may strike and no employer may declare a lockout on
grounds involving inter-union and intra-union disputes.
In case of bargaining deadlocks, the duly cer/fied or recognized
bargaining agent may file a no/ce of strike or the employer may file a
no/ce of lockout with the Ministry at least 30 day before the intended
date thereof. In cases of unfair labor prac/ce, the period of no/ce
shall be 15 days and in the absence of a duly cer/fied or recognized
bargaining agent, the no/ce of strike may be filed by any legi/mate
labor organiza/on in behalf of its members. However, in case of
dismissal from employment of union officers duly elected in
accordance with the union cons/tu/on and by-laws, which may
cons/tute union bus/ng, where the existence of the union is
threatened, the 15-day cooling-off period shall not apply and the
union may take ac/on immediately. (As amended by Execu/ve Order
No. 111, December 24, 1986)
The no/ce must be in accordance with such implemen/ng rules and
regula/ons as the Minister of Labor and Employment may
promulgate.
During the cooling-off period, it shall be the duty of the Ministry to
exert all efforts at media/on and concilia/on to effect a voluntary
se<lement. Should the dispute remain unse<led un/l the lapse of the
requisite number of days from the mandatory filing of the no/ce, the
labor union may strike or the employer may declare a lockout.
A decision to declare a strike must be approved by a majority of the
total union membership in the bargaining unit concerned, obtained
by secret ballot in mee/ngs or referenda called for that purpose. A
decision to declare a lockout must be approved by a majority of the
board of directors of the corpora/on or associa/on or of the partners
RIVERA NOTES (BAR 2024)
in a partnership, obtained by secret ballot in a mee/ng called for that
purpose. The decision shall be valid for the dura/on of the dispute
based on substan/ally the same grounds considered when the strike
or lockout vote was taken. The Ministry may, at its own ini/a/ve or
upon the request of any affected party, supervise the conduct of the
secret ballo/ng. In every case, the union or the employer shall furnish
the Ministry the results of the vo/ng at least seven days before the
intended strike or lockout, subject to the cooling-off period herein
provided. (As amended by Batas Pambansa Bilang 130, August 21,
1981 and further amended by Execu/ve Order No. 111, December 24,
1986)
When, in his opinion, there exists a labor dispute causing or likely to
cause a strike or lockout in an industry indispensable to the na/onal
interest, the Secretary of Labor and Employment may assume
jurisdic/on over the dispute and decide it or cer/fy the same to the
Commission for compulsory arbitra/on. Such assump/on or
cer/fica/on shall have the effect of automa/cally enjoining the
intended or impending strike or lockout as specified in the assump/on
or cer/fica/on order. If one has already taken place at the /me of
assump/on or cer/fica/on, all striking or locked out employees shall
immediately return-to-work and the employer shall immediately
resume opera/ons and readmit all workers under the same terms and
condi/ons prevailing before the strike or lockout. The Secretary of
Labor and Employment or the Commission may seek the assistance of
law enforcement agencies to ensure compliance with this provision as
well as with such orders as he may issue to enforce the same.
In line with the na/onal concern for and the highest respect accorded
to the right of pa/ents to life and health, strikes and lockouts in
hospitals, clinics and similar medical ins/tu/ons shall, to every extent
possible, be avoided, and all serious efforts, not only by labor and
management but government as well, be exhausted to substan/ally
minimize, if not prevent, their adverse effects on such life and health,
through the exercise, however legi/mate, by labor of its right to strike
and by management to lockout. In labor disputes adversely affec/ng
the con/nued opera/on of such hospitals, clinics or medical
ins/tu/ons, it shall be the duty of the striking union or locking-out
employer to provide and maintain an effec/ve skeletal workforce of
medical and other health personnel, whose movement and services
shall be unhampered and unrestricted, as are necessary to insure the
proper and adequate protec/on of the life and health of its pa/ents,
most especially emergency cases, for the dura/on of the strike or
lockout. In such cases, therefore, the Secretary of Labor and
Employment may immediately assume, within twenty four (24) hours
from knowledge of the occurrence of such a strike or lockout,
jurisdic/on over the same or cer/fy it to the Commission for
compulsory arbitra/on. For this purpose, the contending par/es are
strictly enjoined to comply with such orders, prohibi/ons and/or
injunc/ons as are issued by the Secretary of Labor and Employment
or the Commission, under pain of immediate disciplinary ac/on,
including dismissal or loss of employment status or payment by the
locking-out employer of backwages, damages and other affirma/ve
relief, even criminal prosecu/on against either or both of them.
The foregoing notwithstanding, the President of the Philippines shall
not be precluded from determining the industries that, in his opinion,
are indispensable to the na/onal interest, and from intervening at any
/me and assuming jurisdic/on over any such labor dispute in order to
se<le or terminate the same.
Before or at any stage of the compulsory arbitra/on process, the
par/es may opt to submit their dispute to voluntary arbitra/on.
The Secretary of Labor and Employment, the Commission or the
voluntary arbitrator shall decide or resolve the dispute, as the case
may be. The decision of the President, the Secretary of Labor and
Employment, the Commission or the voluntary arbitrator shall be final
and executory ten (10) calendar days aker receipt thereof by the
par/es. (As amended by Sec/on 27, Republic Act No. 6715, March 21,
1989)
Art. 264. Prohibited ac/vi/es.
No labor organiza/on or employer shall declare a strike or lockout
without first having bargained collec/vely in accordance with Title VII
of this Book or without first having filed the no/ce required in the
preceding Ar/cle or without the necessary strike or lockout vote first
having been obtained and reported to the Ministry.
No strike or lockout shall be declared aker assump/on of jurisdic/on
by the President or the Minister or aker cer/fica/on or submission of
the dispute to compulsory or voluntary arbitra/on or during the
pendency of cases involving the same grounds for the strike or
lockout.
Any worker whose employment has been terminated as a
consequence of any unlawful lockout shall be en/tled to
reinstatement with full backwages. Any union officer who knowingly
par/cipates in an illegal strike and any worker or union officer who
knowingly par/cipates in the commission of illegal acts during a strike
may be declared to have lost his employment status: Provided, That
mere par/cipa/on of a worker in a lawful strike shall not cons/tute
sufficient ground for termina/on of his employment, even if a
replacement had been hired by the employer during such lawful
strike.
No person shall obstruct, impede, or interfere with, by force, violence,
coercion, threats or in/mida/on, any peaceful picke/ng by employees
during any labor controversy or in the exercise of the right to selforganiza/on or collec/ve bargaining, or shall aid or abet such
obstruc/on or interference.
No employer shall use or employ any strike-breaker, nor shall any
person be employed as a strike-breaker.
No public official or employee, including officers and personnel of the
New Armed Forces of the Philippines or the Integrated Na/onal
Police, or armed person, shall bring in, introduce or escort in any
manner, any individual who seeks to replace strikers in entering or
leaving the premises of a strike area, or work in place of the strikers.
The police force shall keep out of the picket lines unless actual
violence or other criminal acts occur therein: Provided, That nothing
herein shall be interpreted to prevent any public officer from taking
any measure necessary to maintain peace and order, protect life and
property, and/or enforce the law and legal order. (As amended by
Execu/ve Order No. 111, December 24, 1986)
No person engaged in picke/ng shall commit any act of violence,
coercion or in/mida/on or obstruct the free ingress to or egress from
the employer’s premises for lawful purposes, or obstruct public
thoroughfares. (As amended by Batas Pambansa Bilang 227, June 1,
1982)
Art. 265. Improved offer ballo/ng. In an effort to se<le a strike, the
Department of Labor and Employment shall conduct a referendum by
secret ballot on the improved offer of the employer on or before the
30th day of the strike. When at least a majority of the union members
vote to accept the improved offer the striking workers shall
immediately return to work and the employer shall thereupon
readmit them upon the signing of the agreement.
In case of a lockout, the Department of Labor and Employment shall
also conduct a referendum by secret ballo/ng on the reduced offer of
the union on or before the 30th day of the lockout. When at least a
majority of the board of directors or trustees or the partners holding
the controlling interest in the case of a partnership vote to accept the
reduced offer, the workers shall immediately return to work and the
employer shall thereupon readmit them upon the signing of the
agreement. (Incorporated by Sec/on 28, Republic Act No. 6715,
March 21, 1989)
Art. 266. Requirement for arrest and deten/on. Except on grounds of
na/onal security and public peace or in case of commission of a crime,
no union members or union organizers may be arrested or detained
for union ac/vi/es without previous consulta/ons with the Secretary
of Labor.
Chapter II
ASSISTANCE TO LABOR ORGANIZATIONS
Art. 267. Assistance by the Department of Labor. The Department of
Labor, at the ini/a/ve of the Secretary of Labor, shall extend special
assistance to the organiza/on, for purposes of collec/ve bargaining,
of the most underprivileged workers who, for reasons of occupa/on,
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organiza/onal structure or insufficient incomes, are not normally
covered by major labor organiza/ons or federa/ons.
Art. 268. Assistance by the Ins/tute of Labor and Manpower Studies.
The Ins/tute of Labor and Manpower Studies shall render technical
and other forms of assistance to labor organiza/ons and employer
organiza/ons in the field of labor educa/on, especially pertaining to
collec/ve bargaining, arbitra/on, labor standards and the Labor Code
of the Philippines in general.
Chapter III
FOREIGN ACTIVITIES
Art. 269. Prohibi/on against aliens; excep/ons. All aliens, natural or
juridical, as well as foreign organiza/ons are strictly prohibited from
engaging directly or indirectly in all forms of trade union ac/vi/es
without prejudice to normal contacts between Philippine labor unions
and recognized interna/onal labor centers: Provided, however, That
aliens working in the country with valid permits issued by the
Department of Labor and Employment, may exercise the right to selforganiza/on and join or assist labor organiza/ons of their own
choosing for purposes of collec/ve bargaining: Provided, further, That
said aliens are na/onals of a country which grants the same or similar
rights to Filipino workers. (As amended by Sec/on 29, Republic Act
No. 6715, March 21, 1989)
Art. 270. Regula/on of foreign assistance.
No foreign individual, organiza/on or en/ty may give any dona/ons,
grants or other forms of assistance, in cash or in kind, directly or
indirectly, to any labor organiza/on, group of workers or any auxiliary
thereof, such as coopera/ves, credit unions and ins/tu/ons engaged
in research, educa/on or communica/on, in rela/on to trade union
ac/vi/es, without prior permission by the Secretary of Labor.
“Trade union ac/vi/es” shall mean:
organiza/on, forma/on and administra/on of labor organiza/on;
nego/a/on and administra/on of collec/ve bargaining agreements;
all forms of concerted union ac/on;
organizing, managing, or assis/ng union conven/ons, mee/ngs,
rallies, referenda, teach-ins, seminars, conferences and ins/tutes;
any form of par/cipa/on or involvement in representa/on
proceedings, representa/on elec/ons, consent elec/ons, union
elec/ons; and
other ac/vi/es or ac/ons analogous to the foregoing.
This prohibi/on shall equally apply to foreign dona/ons, grants or
other forms of assistance, in cash or in kind, given directly or indirectly
to any employer or employer’s organiza/on to support any ac/vity or
ac/vi/es affec/ng trade unions.
The Secretary of Labor shall promulgate rules and regula/ons to
regulate and control the giving and receiving of such dona/ons,
grants, or other forms of assistance, including the mandatory
repor/ng of the amounts of the dona/ons or grants, the specific
recipients thereof, the projects or ac/vi/es proposed to be supported,
and their dura/on.
Art. 271. Applicability to farm tenants and rural workers. The
provisions of this Title pertaining to foreign organiza/ons and
ac/vi/es shall be deemed applicable likewise to all organiza/ons of
farm tenants, rural workers, and the like: Provided, That in
appropriate cases, the Secretary of Agrarian Reform shall exercise the
powers and responsibili/es vested by this Title in the Secretary of
Labor.
Chapter IV
PENALTIES FOR VIOLATION
Art. 272. Penal/es.
Any person viola/ng any of the provisions of Ar/cle 264 of this Code
shall be punished by a fine of not less than one thousand pesos
(P1,000.00) nor more than ten thousand pesos (P10,000.00) and/or
imprisonment for not less than three months nor more than three (3)
years, or both such fine and imprisonment, at the discre/on of the
court. Prosecu/on under this provision shall preclude prosecu/on for
the same act under the Revised Penal Code, and vice versa.
Upon the recommenda/on of the Minister of Labor and Employment
and the Minister of Na/onal Defense, foreigners who violate the
provisions of this Title shall be subject to immediate and summary
deporta/on by the Commission on Immigra/on and Deporta/on and
shall be permanently barred from re-entering the country without the
special permission of the President of the Philippines. (As amended
by Sec/on 16, Batas Pambansa Bilang 130 and Sec/on 7, Batas
Pambansa Bilang 227)
Title IX
SPECIAL PROVISIONS
Art. 273. Study of labor-management rela/ons. The Secretary of Labor
shall have the power and it shall be his duty to inquire into:
the exis/ng rela/ons between employers and employees in the
Philippines;
the growth of associa/ons of employees and the effect of such
associa/ons upon employer-employee rela/ons;
the extent and results of the methods of collec/ve bargaining in the
determina/on of terms and condi/ons of employment;
the methods which have been tried by employers and associa/ons of
employees for maintaining mutually sa/sfactory rela/ons;
desirable industrial prac/ces which have been developed through
collec/ve bargaining and other voluntary arrangements;
the possible ways of increasing the usefulness and efficiency of
collec/ve bargaining for se<ling differences;
the possibili/es for the adop/on of prac/cal and effec/ve methods of
labor-management coopera/on;
any other aspects of employer-employee rela/ons concerning the
promo/on of harmony and understanding between the par/es; and
the relevance of labor laws and labor rela/ons to na/onal
development.
The Secretary of Labor shall also inquire into the causes of industrial
unrest and take all the necessary steps within his power as may be
prescribed by law to alleviate the same, and shall from /me to /me
recommend the enactment of such remedial legisla/on as in his
judgment may be desirable for the maintenance and promo/on of
industrial peace.
Art. 274. Visitorial power. The Secretary of Labor and Employment or
his duly authorized representa/ve is hereby empowered to inquire
into the financial ac/vi/es of legi/mate labor organiza/ons upon the
filing of a complaint under oath and duly supported by the wri<en
consent of at least twenty percent (20%) of the total membership of
the labor organiza/on concerned and to examine their books of
accounts and other records to determine compliance or noncompliance with the law and to prosecute any viola/ons of the law
and the union cons/tu/on and by-laws: Provided, That such inquiry
or examina/on shall not be conducted during the sixty (60)-day
freedom period nor within the thirty (30) days immediately preceding
the date of elec/on of union officials. (As amended by Sec/on 31,
Republic Act No. 6715, March 21, 1989)
Art. 275. Tripar/sm and tripar/te conferences.
Tripar/sm in labor rela/ons is hereby declared a State policy. Towards
this end, workers and employers shall, as far as prac/cable, be
represented in decision and policy-making bodies of the government.
The Secretary of Labor and Employment or his duly authorized
representa/ves may, from /me to /me, call a na/onal, regional, or
industrial tripar/te conference of representa/ves of government,
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workers and employers for the considera/on and adop/on of
voluntary codes of principles designed to promote industrial peace
based on social jus/ce or to align labor movement rela/ons with
established priori/es in economic and social development. In calling
such conference, the Secretary of Labor and Employment may consult
with accredited representa/ves of workers and employers. (As
amended by Sec/on 32, Republic Act No. 6715, March 21, 1989)
Art. 276. Government employees. The terms and condi/ons of
employment of all government employees, including employees of
government-owned and controlled corpora/ons, shall be governed by
the Civil Service Law, rules and regula/ons. Their salaries shall be
standardized by the Na/onal Assembly as provided for in the New
Cons/tu/on. However, there shall be no reduc/on of exis/ng wages,
benefits and other terms and condi/ons of employment being
enjoyed by them at the /me of the adop/on of this Code.
Art. 277. Miscellaneous provisions.
All unions are authorized to collect reasonable membership fees,
union dues, assessments and fines and other contribu/ons for labor
educa/on and research, mutual death and hospitaliza/on benefits,
welfare fund, strike fund and credit and coopera/ve undertakings. (As
amended by Sec/on 33, Republic Act No. 6715, March 21, 1989)
Subject to the cons/tu/onal right of workers to security of tenure and
their right to be protected against dismissal except for a just and
authorized cause and without prejudice to the requirement of no/ce
under Ar/cle 283 of this Code, the employer shall furnish the worker
whose employment is sought to be terminated a wri<en no/ce
containing a statement of the causes for termina/on and shall afford
the la<er ample opportunity to be heard and to defend himself with
the assistance of his representa/ve if he so desires in accordance with
company rules and regula/ons promulgated pursuant to guidelines
set by the Department of Labor and Employment. Any decision taken
by the employer shall be without prejudice to the right of the worker
to contest the validity or legality of his dismissal by filing a complaint
with the regional branch of the Na/onal Labor Rela/ons Commission.
The burden of proving that the termina/on was for a valid or
authorized cause shall rest on the employer. The Secretary of the
Department of Labor and Employment may suspend the effects of the
termina/on pending resolu/on of the dispute in the event of a prima
facie finding by the appropriate official of the Department of Labor
and Employment before whom such dispute is pending that the
termina/on may cause a serious labor dispute or is in implementa/on
of a mass lay-off. (As amended by Sec/on 33, Republic Act No. 6715,
March 21, 1989)
Any employee, whether employed for a definite period or not, shall,
beginning on his first day of service, be considered as an employee for
purposes of membership in any labor union. (As amended by Sec/on
33, Republic Act No. 6715)
No docket fee shall be assessed in labor standards disputes. In all
other disputes, docket fees may be assessed against the filing party,
provided that in bargaining deadlock, such fees shall be shared equally
by the nego/a/ng par/es.
The Minister of Labor and Employment and the Minister of the Budget
shall cause to be created or reclassified in accordance with law such
posi/ons as may be necessary to carry out the objec/ves of this Code
and cause the upgrading of the salaries of the personnel involved in
the Labor Rela/ons System of the Ministry. Funds needed for this
purpose shall be provided out of the Special Ac/vi/es Fund
appropriated by Batas Pambansa Blg. 80 and from annual
appropria/ons thereaker. (Incorporated by Batas Pambansa Bilang
130, August 21, 1981)
A special Voluntary Arbitra/on Fund is hereby established in the Board
to subsidize the cost of voluntary arbitra/on in cases involving the
interpreta/on and implementa/on of the Collec/ve Bargaining
Agreement, including the Arbitrator’s fees, and for such other related
purposes to promote and develop voluntary arbitra/on. The Board
shall administer the Special Voluntary Arbitra/on Fund in accordance
with the guidelines it may adopt upon the recommenda/on of the
Council, which guidelines shall be subject to the approval of the
Secretary of Labor and Employment. Con/nuing funds needed for this
purpose in the ini/al yearly amount of fikeen million pesos
(P15,000,000.00) shall be provided in the 1989 annual general
appropria/ons acts.
The amount of subsidy in appropriate cases shall be determined by
the Board in accordance with established guidelines issued by it upon
the recommenda/on of the Council.
The Fund shall also be u/lized for the opera/on of the Council, the
training and educa/on of Voluntary Arbitrators, and the Voluntary
Arbitra/on Program. (As amended by Sec/on 33, Republic Act No.
6715, March 21, 1989)
The Ministry shall help promote and gradually develop, with the
agreement of labor organiza/ons and employers, labor-management
coopera/on programs at appropriate levels of the enterprise based
on the shared responsibility and mutual respect in order to ensure
industrial peace and improvement in produc/vity, working condi/ons
and the quality of working life. (Incorporated by Batas Pambansa
Bilang 130, August 21, 1981)
In establishments where no legi/mate labor organiza/on exists, labormanagement commi<ees may be formed voluntarily by workers and
employers for the purpose of promo/ng industrial peace. The
Department of Labor and Employment shall endeavor to enlighten
and educate the workers and employers on their rights and
responsibili/es through labor educa/on with emphasis on the policy
thrusts of this Code. (As amended by Sec/on 33, Republic Act No.
6715, March 21, 1989)
To ensure speedy labor jus/ce, the periods provided in this Code
within which decisions or resolu/ons of labor rela/ons cases or
ma<ers should be rendered shall be mandatory. For this purpose, a
case or ma<er shall be deemed submi<ed for decision or resolu/on
upon the filing of the last pleading or memorandum required by the
rules of the Commission or by the Commission itself, or the Labor
Arbiter, or the Director of the Bureau of Labor Rela/ons or MedArbiter, or the Regional Director.
Upon expira/on of the corresponding period, a cer/fica/on sta/ng
why a decision or resolu/on has not been rendered within the said
period shall be issued forthwith by the Chairman of the Commission,
the Execu/ve Labor Arbiter, or the Director of the Bureau of Labor
Rela/ons or Med-Arbiter, or the Regional Director, as the case may be,
and a copy thereof served upon the par/es.
Despite the expira/on of the applicable mandatory period, the
aforesaid officials shall, without prejudice to any liability which may
have been incurred as a consequence thereof, see to it that the case
or ma<er shall be decided or resolved without any further delay.
(Incorporated by Sec/on 33, Republic Act No. 6715, March 21, 1989)
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BOOK SIX POST EMPLOYMENT
TITLE I: TERMINATION OF EMPLOYMENT
(2006 BAR EXAMINATION QUESTION NO. I(3))
What property right is conferred upon an employee once
there is an EE Relaaonship? Discuss briefly.
COVERAGE (Art. 293)
Rule: apply to all establishments or undertakings, whether for profit
or not.
The existence of EE RelaAonship is conferred upon the
employee the right to treat his job as his property.
Note: It shall cover all employees in all establishments
regardless of whether the establishment is a profit
establishment or a non-profit establishment.
Under Sec 3, Art XVI of the ConsAtuAon, it is the policy of the
State to assure the workers of security of tenure and free
them from the bondage of uncertainty of tenure woven by
some employers into their contracts of employment. The
guarantee is an act of social jusAce.
EMPLOYER-EMPLOYEE RELATIONSHIP ELEMENTS:
a. The selec/on and engagement of the employee;
b. The payment of wages;
c. The power of dismissal; and
d. The employer’s power to control.
Note: An EE RelaAonship exists where the person for whom
the services are performed reserves the right to control not
only the end achieved, but also the manner and means to be
used in reaching that end (Atok Big Wedge Company, Inc. v
Gison, G.R. No. 169510, August 8, 2011)
(2017 BAR EXAMINATION QUESTION NO. I (B))
Applying the tests to determine the existence of an
employer-employee relaaonship, is a jeepney driver
operaang under the boundary system an employee of his
jeepney operator or a mere lessee of the jeepney? Explain
your answer. (3%)
Yes, Jeepney driver under the boundary system is under
Employer-Employee RelaAonship because the jeepney
owners/operators exercises supervision and control over the
jeepney driver. The fact that the drivers do not receive fixed
wages but get only that in excess of the boundary that they
pay to the owner/operator is not sufficient to withdraw the
relaAonship between them from that of employer and
employee.
Thus, private respondents were employees because they
had been engaged to perform acAviAes which were usually
necessary or desirable in the usual business or trade of the
employer (Gabriel v Bilon, G.R. No. 146989, February 7,
2007)
(2015 BAR EXAMINATION QUESTION NO. VI)
Ador is a student working on his master's degree in
horaculture. To make ends meet, he takes on jobs to come
up with flower arrangements for friends. His neighbor,
Nico, is about to get married to Lucia and needs a floral
arranger. Ador offers his services and Nico agrees. They
shake hands on it, agreeing that Nico will pay Ador
P20,000.00 for his services but that Ador will take care of
everything. As Ador sets about to decorate the venue, Nico
changes all of Ador's plans and ends up designing the
arrangements himself with Ador simply execuang Nico's
instrucaons.
(a) Is there an employer-employee relaaonship between
Nico and Ador? (4%)
There is no EE RelaAonship between Nico and Ador. The
elements of EE RelaAonship are not present in this case and
instead the agreement between them wasa contract of
service.
(b) Will Nico need to register Ador with the Social Security
System (SSS)? (2%)
No, since there is no EE RelaAonship between Nico and Ador,
Nico has no obligaAon under the SSS Law to register Ador
with the SSS.
When a person has no property, his job may possibly be his
only possession or means of livelihood and those of his
dependents. When a person loses his job, his dependents
suffer as well. The worker should be protected and insulated
against any arbitrary deprivaAon (Philips Semiconductors
Phils, Inc. v Fadriquela, G.R. No. 141717, April 14, 2004)
SECURITY OF TENURE (Art. 294)
SECURITY OF TENURE – cons/tu/onal and statutory right of every
employee not to be dismissed from his work without just or
authorized cause and in the absence of due process.
In cases of regular employee: (Art. 294)
GR:
The employer shall not terminate the services of an
employee
XPN:
Except for:
a. Just Cause; or
b. Authorized Cause.
In cases of Probaaonary Employee: (Escorpizo v University of Baguio,
G.R. No. 121962, April 30, 1999)
GR:
ProbaAonary Employees are enAtled to security of tenure in
the sense that during their probaAonary employment they
cannot be dismissed except for cause, such as when he fails
to qualify as a regular employee in accordance with
reasonable standards made known by the employer to the
employee at the Ame of his engagement.
XPN:
However, upon expiraAon of their contract of employment –
probaAonary academic personnel cannot claim security of
tenure and compel their employers to renew their
employment contracts.
RIGHTS OF ILLEGALLY DISMISSED EMPLOYEE: (Art. 294)
a. REINSTATEMENT WITHOUT LOSS OF SENIORITY RIGHTS AND
OTHER PRIVILEGES;
GR:
Reinstatement without loss of seniority rights and
other privileges
XPN:
In lieu of reinstatement, employee may instead be
awarded separa/on pay.
CAUSES WHICH REINSTATEMENT IS IMPOSSIBLE:
1. OLD AGE
In the absence of a reArement plan, agreement or policy –
an employee may be reAred upon reaching the age of 60
years. Thus, an employee may reAre, or may be reAred by
his employer, upon reaching 60 years old.
An employee illegally dismissed cannot be reinstated if he
had already reached the 60 years of age at the Ame of his
second complaint for reinstatement before the LA’s Office.
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2.
POSITION NO LONGER EXISTS
Considering that more than 10 years have since elapsed
from the date of their dismissal, Employer is directed to pay,
in lieu of reinstatement and in addiAon to the 3-year back
salaries, separaAon pay equivalent to at least 1 month for
every year of service. (Tanduay DisVllery Labor Union, et al.
v NLRC and Tanduay DisVllery Inc, G.R. No. 13352,
December 6, 1994)
3.
ESTABLISHMENT IS TAKEN OVER BY ANOTHER COMPANY
There is no law requiring that the purchasing corporaAon
should absorb the employees of the selling corporaAon
unless there is an express agreement on assumpAon of
liabiliAes by the purchasing corporaAon. (Callanta v
CarnaVon Ph, Inc. v NLRC, G.R. No. 70615, October 28,
1986)
4.
INSOLVENCY OF THE EMPLOYER
Since the Employer already filed a peAAon for insolvency,
which was granted by the RTC Bataan. Reinstatement is no
longer feasible, thus, payment to employees of separaAon
pay equivalent to 1 month pay for every year of service
(Electruck Asia, Inc v Meris, G.R. No. 147031, July 27, 2004)
5.
Note: SeparaAon pay is not deducAble from back wages because
both are disAnct and separate from each other (Solis v NLRC, G.R.
No. 116175, October 28, 1996)
BURDEN OF PROOF IN THE TERMINATION OF EMPLOYMENT:
a. REGULAR EMPLOYEE
Rests upon the employer to show that the dismissal is for a
just and valid cause. Failure to do so means the dismissal is
illegal.
Employer must present substanAal evidence (Such amount
of relevant evidence which a reasonable mind might accept
as adequate to jusAfy a conclusion)
b.
PROPER APPLICATION: This doctrine only arises when there
is an order for reinstatement that is no longer feasible. It
cannot be invoked by the employer to prevent the
employee’s return to work nor by the employee to jusAfy
payment of separaAon pay. (Rodriguez v Sintron Systems,
Inc. G.R. No. 240254, July 244, 2019)
REGULAR AND CASUAL EMPLOYMENT (Art. 295)
KINDS OF EMPLOYEES:
a. REGULAR EMPLOYEES – those who have been engaged to
perform ac/vi/es which are usually necessary or desirable in the
usual business or trade of the employer;
TWO TYPES OF REGULAR EMPLOYEES:
1. Engaged to perform ac/vi/es which are usually necessary
or desirable in the usual trade or business or trade of the
employer; and
FULL BACK WAGES, INCLUSIVE OF ALLOWANCES AND OTHER
BENEFITS OR THEIR MONETARY EQUIVALENT;
Note: Payment of full back wages is the price or penalty that the
employer must pay for having illegally dismissed an employee
(Equitable Banking Corp v Sadac, G.R. No. 164772, June 8, 2006)
COMPUTATION: It is computed from the Ame employee’s
compensaAon was withheld up to the Ame of his actual
reinstatement
BASE FIGURES: Basic Salary (Salary rate of the employee at the
Ame of his dismissal), Allowances, and 13th Month Pay.
Note: The employee should only receive back wages that
included the amounts being received by him at the Ame of
his illegal dismissal but not the benefits granted to his coemployees arer his dismissal (United Coconut Chemicals,
Inc. v Valmores, G.R. N. 201018, July 12, 2017)
ProspecAve salary increase cannot be part of the
computaAon of back wages. (Equitable Banking Corp v
Sadac, G.R. No. 164772, June 8, 2006)
ABOUT THE COMPLETION OF A CONTRACT OR PHASE, OR
BY FAILURE OF AN EMPLOYEE TO MEET THE STANDARDS OF
THE EMPLOYER IN CASE OF PROBATIONARY EMPLOYMENT
It shall be sufficient that a wriien noAce is served the
employee within a reasonable Ame from effecAve date of
terminaAon (Eastern Employment Center, Inc. v Bea, G.R.
No. 143023, November 29, 2005)
STRAINED RELATIONS
The doctrine on strained relaAons cannot be applied
indiscriminately since every labor dispute almost invariably
results in strained relaAons; otherwise, reinstatement can
never be possible simply because some hosAlity in
engendered between the parAes as a result of their
disagreement.
b.
AMOUNT OF SEPARATION PAY: 1 month salary for every year of
service.
CLOSURE OF BUSINESS
Award of at least 1 month pay or 1 month pay for every year
of service, whichever is higher. (A fracAon of at least 6mos is
considered 1 year), in addiAon to his full backwages,
allowances and other benefits (Philtread Tire & Rubber
CorporaVon v Vicente, G.R. No. 142759, November 10,
2004)
6.
SEPARATION PAY IS ONLY AWARDED TO A DISMISSED EMPLOYEE IN
THE FOLLOWING INSTANCES:
a. In case of closure of establishment;
b. In case of termina/on due to disease or sickness;
c. As a measure of social jus/ce in those instances where the
employee is validly dismissed for causes other than serious
misconduct or those reflec/ng on his moral character;
d. Where posi/on no longer exists;
e. Strained Rela/ons;
f. Dismissed Employee opted not to be reinstated, or the payment
of separa/on benefits would be for the best interest of the
par/es involved.
TEST: Whether the employee is usually necessary or
desirable in the usual business or trade of the employer.
2.
CASUAL EMPLOYEES – employees who have rendered at
least 1 year of service, whether such service is con/nuous
or broken – it shall be considered regular employee with
respect to the ac/vity in which he is employed, and his
employment shall con/nue while such ac/vity exists; those
who are not regular, project, or seasonal employees;
Note: if the employee has been performing the job for at
least a year, even if the performance is not conAnuous and
merely intermiient – the law deems repeated and
conAnuing need for its performance as sufficient evidence of
the necessity if not indispensability of that acAvity to the
business. Hence, the employment is considered regular but
only with respect to such acAvity and while such acAvity
exists (UST v Samahang Manggagawa ng UST, G.R. No.
184262, April 24, 2017)
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Note: Casual Employees in the Civil Service may be laid-off any
Ame before the expiraAon of the employment period provided
any of the following occurs:
1. When their services are no longer needed;
2. Funds are no longer available;
3. The project has already been completed/finished; or
4. Their performance is below par
b.
PROJECT EMPLOYEES – those whose employment has been fixed
for a specific project or undertaking, the comple/on or
termina/on of which has been determined at the /me of the
employees’ engagement;
Note: A Project Employee is assigned to a project that starts and
ends at a determined or determinable Ame.
TEST: To determine if an employee is a project employee –
whether he or she is assigned to carry out a parAcular project or
undertaking which duraAon or scope was specified at the Ame of
engagement.
RULES:
GR:
XPN:
A worker is presumed a regular employee.
Unless the employer establishes that:
1. The employee was hired under a contract
specifying that the employment will last only
for a specific undertaking, the termina/on of
which is determined at the /me of
engagement;
2. There was indeed a project undertaken; and
3. The par/es bargained on equal terms, with
no vices of consent.
REPEATED REHIRING OF PROJECT EMPLOYEE:
GR:
The repeated and successive rehiring of
respondents as project-based employees does not
also, by and of itself qualify them as regular
employees.
Thus, the length of service (through rehiring) is not
the controlling determinant of the employment
tenure (of project-based employees) whether the
employment has been fixed for a specific project
or undertaking, with its compeAAon having been
determined at the Ame of their engagement.
XPN:
If iniAally engaged as a project employee, such
nature of employment may ripen into regular
status if:
1. There is a conAnuous rehiring of project
employees even arer cessaAon of a project;
and
2. The tasks performed by the alleged “project
employee” are vital, necessary and
indispensable to the usual business or trade
of the employer.
Note: Project-based employment will not ripen into
regularity if the construcAon worker was truly engaged as a
project-based employee, and between each successive
project – the employer made no manifestaAons of any intent
to treat the worker as a conAnuing resource for the main
business.
The project could either be:
1. A parAcular job or undertaking that is within the
regular or usual business of the employer company, but
which is disAnct and separate, and idenAfiable as such,
form the other undertakings of the company; or
2. A parAcular job or undertaking that is not within the
regular business of the corporaAon;
Purpose of this requirement is to delineate WON the
employer is in constant need of the services of the specified
employee.
BOP: The employer has the burden to prove that the employee is
indeed a project employee
For employment to be regarded as project-based, it is incumbent
upon the employer to prove that:
1. The employee was hired to carry out a specific project or
undertaking; and
2. The employee was noAfied of the duraAon and scope of the
project.
Note: It is not enough that the employee is made aware of the
duraAon and scope of employment at the Ame of engagement. A
wriien contract serves as proof that employees were informed
of the duraAon and scope of their work and their status as project
employee at the commencement of their engagement.
(2015 BAR EXAMINATION QUESTION NO. VI)
Don Don is hired as a contractual employee of CALLHELP, a call
center. His contract is expressly for a term of 4 months. Don Don
is hired for 3 straight contracts of 4 months each but at 2-week
intervals between contracts. Arer the third contract ended,
Don Don is told that he will no longer be given another contract
because of "poor performance." Don Don files a suit for
"regularizaaon" and for illegal dismissal, claiming that he is a
regular employee of CALLHELP and that he was dismissed
without cause. You are the Labor Arbiter. How would you
decide the case? (4%)
Don Don is a regular employee of CALLHELP.
Under Art 295, those who have rendered at least one year of
service whether such service is conAnuous or broken are regular
employees.
Here, Don Don is hired for 3 straight contracts of 4mos each but
at 2-week intervals between contracts. That being the case he
has become a regular employee and dismiss him without cause
and due process is clearly illegal.
(2005 BAR EXAMINATION QUESTION NO. II (2)
Mariano Marallo was a mason employed by the ABC
Construcaon Company. Every ame that ABC had a project, it
would enter into an employment contract with Marallo for a
fixed period that coincided with the need for his services,
usually for a duraaon of three to six months.
Since the last project involved the construcaon of a 40-storey
building, Marallo was contracted for 14 months. During this
period, ABC granted wage increases to its regular employees,
composed mostly of engineers and rank-and-file construcaon
workers as a result of the just concluded CBA negoaaaons.
Feeling aggrieved and discriminated against, Marallo and other
similarly-situated project workers demanded that the increases
be extended to them, inasmuch as they should now be
considered regular employees and members of the bargaining
unit.
(a) If you were ABC’s legal counsel, how would you respond to
this demand?
MarAllo was a project employee and his services were engaged
for a specific project and the compleAon or terminaAon of his
employment was determined at the start of his engagement. The
fact that the contract lasted for 14mos does not make him a
regular employee of ABC. The rule that an employee who has
rendered more than 1 year of service becomes a regular
employee applies only to casual employees and MarAllo does not
belong to this category of employees.
(b) How is a project worker different from a casual or
contractual worker?
A project worker is one whose employment has been fixed for a
specific project or undertaking the compleAon or terminaAon of
which has been determined at the Ame of the engagement of the
employee or where the work or services to be performed is
seasonal in nature and the employment is for the duraAon of the
season. (PNCC v NLRC, G.R. No. 85323, June 20, 1989)
RIVERA NOTES (BAR 2024)
A casual employee is one who is neither regular nor project
employee. In short, he is engaged to perform a work or service
which is incidental to the business of the employer and his period
of employment is made known to him at the Ame of the
engagement and if his services lasted for more than 1 year he
becomes a regular employee.
1.
2.
c.
REGULAR EMPLOYEES
Engaged to perform
ac/vi/es which are
usually necessary or
desirable in the usual
trade or business or
trade of the employer;
and
CASUAL EMPLOYEES –
employees who have
rendered at least 1 year
of service, whether such
service is con/nuous or
broken – it shall be
considered
regular
employee with respect
to the ac/vity I n which
he is employed, and his
employment
shall
con/nue while such
ac/vity exists.
PROJECT EMPLOYEES
Employment exists when the
employee is hired under a
contract which specifies that
the employment will last
only for a specific project or
undertaking, the comple/on
or termina/on of which is
determined at the /me of
engagement.
SEASONAL EMPLOYEES – those who perform services which are
seasonal in nature, and whose employment lasts during the
dura/on of the season; and
To be classified as seasonal employees, the following must
concur:
1. They must be performing work or services that are
seasonal in nature; and
2. They have been employed for the duraAon of the season.
These seasonal employees only receive payment of work
rendered during the period for which they were hired. The
wages and other monies seasonal employees may receive
for the duraAon of their limited employment period
consAtute bulk or wholesale payment for services rendered.
Note: FARM WORKERS ARE REGULAR SEASONAL EMPLOYEES
since they performed services necessary and indispensable to the
business for over years, even if their work was only during
tobacco season.
d.
FIXED TERM EMPLOYEES – those hired only for a definite period
of /me.
Criteria for fixed term employment
1. The fixed period of employment was knowingly and
voluntarily agreed upon by the parAes without any force,
duress, or improper pressure being brough to bear upon the
employee and absent any other circumstances viAaAng his
consent; or
BOP: One who alleges defect or lack of valid consent to a
contract by reason of fraud or undue influence must
establish by full, clear and convincing evidence such specific
acts that viAated a party’s consent.
2.
It saAsfactorily appears that the employer and the employee
dealt with each other on more or less equal terms with no
moral dominance exercised by the former or the laier.
Note: Employee has the capability to be on equal fooAng in
dealing with her employer when it came to her employment
terms.
PROBATIONARY EMPLOYMENT (Art. 296)
TerminaVon of ProbaVonary Employee:
1. Just Cause
2. Authorized Cause;
3. Failure to qualify as a regular employee in accordance with
reasonable standards made known by the employer at the
employee at the Ame of the engagement.
PROCEDURE: If the terminaAon is failure of an employee to meet
the standards of the employer – it shall be sufficient that a wriien
noAce is served the employee, within a reasonable Ae form the
effecAve date of terminaAon.
Length of ProbaVonary Period:
GR:
Shall not exceed 6mos or 180 days from the date the
employee started working.
XPN:
When the parAes to an employment contract may agree
otherwise, such as:
1. When the same is established by company policy;
2. When the same is required by the nature of work to be
performed by the employee.
Example: Extension of ProbaVonary Period. The employer has
the burden of proof to show that the extension is warranted and
not simply a stratagem to preclude the worker’s aiainment of
regular status.
In the absence of any evaluaAon or valid extension, there is no
valid dismissal of probaAonary employee. Thus, employee is
enAtled to reinstatement without loss of seniority rights, and
other privileges and benefits.
Note: DOUBLE PROBATIONARY PERIOD IS ILLEGAL
PROBATIONARY PERIOD OF PRIVATE SCHOOL TEACHERS:
Legal requisites for acquisiVon by a teacher of permanent
employment or security of tenure are:
1. The teacher is a full-Ame teacher/employee;
2. The teacher must have rendered 3 consecuAve years of
service; and
3. Such service must have been saAsfactory.
Length of ProbaVonary Period: 6sem or 9 terms = 3 years of
service
Note: Mere compleAon of the probaAonary period does not make
the employee a permanent employee of the educaAonal
insAtuAon. He could only qualify as such upon fulfilling the
reasonable standards for permanent employment as faculty
member.
Hence, upon the expiraAon of their probaAonary period, they
cannot automaAcally claim security of tenure and compel their
employers to renew their employment contracts which would
then transform them into regular and permanent employees.
Master’s Degree requirement for permanency in terAary
educaAon is not unreasonable. The operaAon of terAary
educaAonal insAtuAons involves public interest. The government
has a right to ensure that only qualified persons, in possession of
sufficient academic knowledge and teaching skills, are allowed to
teach in such insAtuAon.
PART TIME EMPLOYEES DOES NOT ATTAIN PERMANENT STATUS:
Only when one has served as a full-Ame teacher can acquire
permanent or regular status.
SCHOOL ADMINISTRATORS CANNOT ATTAIN PERMANENT
STATUS AS ADMINISTRATORS: The teacher designated as
administraAve officer ordinarily serves for a definite term or at
the pleasure of the school head or board of trustees or regents,
depending of the rules of school and the agreement he may enter
into with the insAtuAon.
RIVERA NOTES (BAR 2024)
TERMINATION BY EMPLOYER (Art. 297, LC)
JUST CAUSE
(Art 297 (282))
As a rule, payment of
separa/on pay is not
required.
CONSTRUCTIVE DISMISSAL exists when an act of clear
discriminaAon, insensibility or disdain by an employer has
become so unbearable to the employee leaving him with no
opAon to forego with his conAnued employment.
AUTHORIZED CAUSE
(Art 298 (283))
The law requires payment of
separa/on pay
GR: Management Prerogaave: It is the preroga/ve of
management to regulate, according to its discre/on and
judgment, all aspects of employment.
NOTE: A dismissal for just cause implies that the employee
concerned has commiied, or is guilty of, some violaAon against
the employer
Criterion to guide the exercise of its management
prerogaAve: The policies, rules and regulaAons on workrelated acAviAes of the employees must be fair and
reasonable and the corresponding penalAes, when
prescribed, commensurate to the offense involved and to
the degree of the infracAon.
RIGHTS OF EMPLOYERS:
a. Right to Discipline Employees: An employer’s management
prerogaAve to dismiss an employee is valid as long as it is done
in good faith and without malice.
b.
c.
d.
Right to Prescribe Company Rules and Policies: An employer has
the prerogaAve to prescribe reasonable rules and regulaAons
necessary for the proper conduct of its business, to provide
certain disciplinary measures in order to implement said rules
and to assure that the same would be complied with; Exercised
in good faith
Right to Penalize Employees: The penalty must be
commensurate with the act, conduct or omission imputed to the
employee and imposed in connecAon with the employer’s
disciplinary authority; ImparAal tribunals do not rely only on the
statement made by the employer that there is “loss of
confidence” unless duly proved or sufficiently substanAated.
Transferring an Employee: The employer has the preroga/ve of
making transfers and reassignment of employees to meet the
requirements of the business.
Example of valid transfers:
i. Where the rotaAon of employees from the day shir to
the night shir was a standard operaAng procedure of
management – an employee who had been on the day
shir for some Ame may be transferred to the night shir
(CasVllo v CIR, 39 SCRA 81)
ii. Transfers effected pursuant to a company policy to
transfer employees from one theater toother theaters
operated by the employer, in order to prevent
connivance among them, was sustained (Cinema,
Stage and Radio Entertainment Free Workers v CIR, 18
SCRA 1071)
iii. Re-assignment of employees from a posiAon of
supervisor to that of engineer at the power house
(Interwood Employees Assn v Interwood, 99 Phil 82)
iv. Transfer of the union president form his posiAon of
messenger clerk in a hotel to purely office work and two
other unionists from the posiAon of hotel guard to line
and elevator men, without diminuAon of pay or other
employee’s rights (Bay view hotel employees union v
Bay view hotel, L-10393, March 30, 1960)
v. The temporary assignment of a sales clerk to another
secAon of the store (Marcaida v PECO, 63 OG, 8559: Ph
Telegraph and Telephone Corp v Laplana, G.R. No.
76645, July 23, 1991)
If the transfer of an employee is not unreasonable, or
inconvenient, or prejudicial to him, and it does not involve a
demoAon in rank or a diminuAon of his salaries, benefits and
other privileges – the employee may not complain that it
amounts to a construcAve dismissal. Hence, such transfer is a
valid exercise of management prerogaAve. (Peckson v Robinsons
Supermarket CorporaVon, G.R. No. 198534, July 3, 2013)
The employer must be able to show that the transfer is not
unreasonable, inconvenient or prejudicial to the employee; nor
does it involve a demoAon in rank or a diminuAon of his salaries,
privileges and other benefits. Otherwise, it would tantamount to
construcAve dismissal.
LimitaVons: Those imposed by labor laws and the principles
of equity and substanAal jusAce. The exercise of
management prerogaAve is not absolute – the employer
does not have the same freedom in the hiring of his
employees as in their dismissal.
GR:
An employee cannot be dismissed.
XPN:
Just or Authorized Cause found in the labor code and aker
due process.
GROUNDS FOR JUST CAUSES:
a. Serious misconduct or willful disobedience by the employee of
the lawful orders of his employer or representaave in
connecaon with his work;
SERIOUS MISCONDUCT – the act must be of such a grave and
aggravated character and not merely trivial or unimportant.
Note: if the misconduct is only simple, not grave, the
employee cannot be validly dismissed (Adamson University
Faculty and Employees Union v Adamson University, G.R.
No. 227070, March 9, 2020)
Examples of Serious Misconduct:
i. Sexual Harassment (The Manager’s act of fondling the
hands, massaging the shoulder and caressing the nape
of a secretary);
ii. FighAng within company premises;
iii. Uiering obscene, insulAng or offensive words against
a superior;
iv. MisrepresenAng that a student is his nephew and
pressuring and inAmidaAng a co-teacher to change
that student’s failing grade to passing
v. Throwing of stapler and uiering abusive language
upon the person of the plant manager. Provided that, it
must have been done in relaAon to the performance of
her duAes as would show her to be unfit or conAnue
working for her employer.
vi. Teacher’s Extra Marital Affair (Illicit relaAonship with
his co-teacher) (Santos, Jr. v NLRC, G.R. No. 115795,
March 6, 1993);
Note: When a teacher marries a student, it is not considered
a serious misconduct because the deviaAon of the
circumstance of their marriage from the usual societal
paiern cannot be considered as a defiance of contemporary
social mores. (Chua-Qua v Clave, G.R. No. 49549, August
30, 1990)
RIVERA NOTES (BAR 2024)
SERIOUS MISCONDUCT
In order to consAtute serious
misconduct, it is not sufficient
that the act or conduct
complained of has violated
some established rules or
policies. It is required that the
act or conduct must have been
performed with wrongful intent
(NLRC, et al v Salgarino, G.R.
No. 164376, July 31, 2006);
The employer has the BOP to show a deliberate and
unjusAfied refusal of the employee to resume his
employment without any intenAon of returning (Claudia’s
Kitchen, Inc v Tanguin, G.R. No. 221096, June 28, 2017)
The misconduct must be
serious, which implies that it
must be of such grave and
aggravated character and not
merely trivial or unimportant.
REQUISITES
a) It must be serious;
a) The employee’s assailed
b) Must relate to the
conduct must have been
performance
of
the
willful,
that
is,
employee’s duAes; and
characterized
by
a
c) Must show that the
wrongful and perverse
employee has become
autude; and
unfit to conAnue working b) The order violated must
for the employer.
have been reasonable,
lawful, made known to the
employee and must pertain
to the duAes which he had
been engaged to discharge
b.
GROSS AND HABITUAL NEGLECT BY THE EMPLOYEE OF HIS
DUTIES;
To be valid ground for dismissal, neglect of duty must be both
gross and habitual.
GROSS NEGLIGENCE
Implies want of or failure to
exercise slight care or
diligence in the performance
of one’s duAes
Note: Mere failure to report to work is insufficient to support
a charge of abandonment. The intent to disconAnue the
employment must be shown by clear proof that it was
deliberate and unjusAfied (Agabon v NLRC, G.R. No.
158693, November 17, 2004)
DISOBEDIENCE
Disobedience must be willful or
intenAonal.
HABITUAL NEGLECT
Implies repeated failure to
perform one’s duAes for ap
period of Ame
Note: Mateo as undisputedly negligent when he ler the
motorcycle without locking it despite clear, specific
instrucAons to do so. Although Mateo’s infracAon was not
habitual, the court take into account the substanAal amount
lost. In this case, LBC lost a motorcycle with a book value of
P46K, which by any means could not be considered a trivial
amount.
This case was not a simple case of oversight and could not
be aiributed to a simple lapse of judgment. No amount of
good intent, or previous conscienAous performance of duty,
can assuage the damage Mateo caused LBC when he failed
to exercise the requisite degree of diligence required of him
under the circumstances. Hence, Mateo’s dismissal was for
just cause and was validly carried out (LBC Express Metro
Manila, Inc. v Mateo, G.R. No. 168215, June 9, 2009)
POOR PERFORMANCE – inefficiency and incompetence in the
performance of official duAes. An unsaAsfactory raAng can be a
just cause for dismissal only if it amounts to gross and habitual
neglect of duAes.
ABANDONMENT – the deliberate and unjusAfied refusal of an
employee to resume his employment; It consAtute neglect of
duty.
To consAtute abandonment, two elements must concur:
i. Failure to report for work or absence without valid or
jusAfiable reason; and
ii. A clear intenAon to sever the RR RelaAonship or There
must be a clear and deliberate intent to disconAnue
one’s employment without any intenAon of returning.
Proof of Abandonment of Work: the employer must show
that the employee deliberately and unjusAfiably refused to
resume his employment without any intenAon of returning.
There must be a concurrence of the intenAon to abandon
and some overt acts from which an employee may be
deduced as having no more intenAon to work.
The law does not enumerate what specific overt acts can be
considered as strong evidence of the intenAon to sever the
EE RelaAonship (Sta. Catalina College v NLRC, G.R. No.
144483, November 19, 2003)
c.
FRAUD OR WILLFUL BREACH BY THE EMPLOYEE OF THE TRUST
REPOSED IN HIM BY HIS EMPLOYER OR DULY AUTHORIZED
REPRESENTATIVE;
Willful breach of trust is founded on the fact that the employee
concerned:
i. Holds a posiAon of trust and confidence – a managerial
personnel or those vested with powers and prerogaAves to
lay down management policies and/or to hire, transfer,
suspend, lay-off, recall, discharge, assign or discipline
employees; or
ii. Is rouAnely charged with the care and custody of the
employer’s money or property (Cashiers, Auditors, Property
Custodians, or those who in normal and rouAne exercise of
their funcAons, regularly handle significant amounts of
money or property.
Note: It is the employee’s breach of the trust that his/her
posiAon holds which results in the employer’s loss of
confidence.
For an employer to validly dismiss an employee on the ground of
loss of trust and confidence, the employer must observe the
following guidelines:
i. Loss of confident should not be simulated;
ii. It should not be used as subterfuge for causes which are
improper, illegal or unjusAfied;
iii. It may not be arbitrarily asserted in the face of
overwhelming evidence to the contrary; and
iv. It must be genuine, not a mere arerthought to jusAfy earlier
acAon taken in bad faith
v. The employee involved holds a posiAon of trust and
confidence.
Two types of posiVons in which trust, and confidence are
reposed by the employer
1. MANAGERIAL EMPLOYEES – considered to occupy
posiAons of trust and confidence because they are
entrusted with confidenAal and delicate maiers;
2.
FIDUCIARY RANK-AND-FILE EMPLOYEE – those
employees, who, in the normal and rouAne exercise of
their funcAons, regularly handle significant amounts of
the employer’s money or property.
Note: it must be emphasized that the nature and scope of
work and not the job Atle or designaAon determine whether
an employee holds a posiAon of trust and confidence.
RIVERA NOTES (BAR 2024)
d.
COMMISSION OF A CRIME OR OFFENSE BY THE EMPLOYEE
AGAINST THE PERSON OF HIS EMPLOYER OR ANY IMMEDIATE
MEMBER OF HIS FAMILY OR HIS DULY AUTHORIZED
REPRESENTATIVES;
This could be used by the parAes as an opportunity to come
to an amicable seilement.
iii.
IMMEDIATE FAMILY – limited to spouse, ascendants,
descendants, or legiAmate, natural, adopted brothers or
sisters of the employer or of his relaAve by affinity in the
same degrees and those by consanguinity within the 4th civil
degree.
Note: Arer determining that terminaAon of employment is
jusAfied, the employers shall serve the employees a wriien
noAce f terminaAon indicaAng that:
1. All circumstances involving the charge against the
employees have been considered; and
2. Grounds have been established to jusAfy the severance
of their employment. (DistribuVon & Control Products,
Inc. v Santos, July 10, 2017)
Note: ConvicAon in a criminal case is not necessary to find
just cause for terminaAon of employment. Criminal and
labor cases involving an employee arising from the same
infracAon are separate and disAnct proceedings which
should not arrest any judgment from one to the other (St.
Luke’s Medical Center, Inc. v Sanchez, G.R. No. 212054,
March 11, 2015)
The dismissal for a just or lawful cause must sAll be made
upon compliance with the requirements of due process
under the Labor Code; Otherwise, the employer is liable to
pay nominal damages as indemnity to the dismissed
employee (Concepcion v Minex Import CorporaVon, G.R.
No. 153569, January 24, 2012)
(2015 BAR EXAMINATION QUESTION NO. XI)
Rico has a temper and, in his work as Division Manager of
Matatag Insurance, frequently loses his temper with his staff.
One day, he physically assaults his staff member by slapping
him. The staff member sues him for physical injuries. Matatag
Insurance decides to terminate Rico, aper noVce and hearing,
on the ground of loss of trust and confidence. Rico claims that
he is enVtled to the presumpVon of innocence because he has
not yet been convicted. Comment on Matatag's acVon in
relaVon to Rico's argument. (4%)
FOR
TERMINATION
OF
EMPLOYMENT
UNDER
AUTHORIZED CAUSES (Art 293): The requirement of due
process shall be deemed complied with upon service of a
wriien noAce to the employee and the appropriate Regional
Office of the DOLE at least thirty days before effecAvity of
the terminaAon, specifying the ground/s for terminaAon.
GROUNDS FOR AUTHORIZED CAUSES:
a. INSTALLATION OF LABOR-SAVING DEVICES (AUTOMATION) –
contemplates the installa/on of machinery to effect economy
and efficiency in its method of produc/on.
Note: The installaAon of these devices is a management
prerogaAve, and the courts will not interfere with its exercise in
the absence of abuse of discreAon, arbitrariness, or
maliciousness on the part of management.
Note: In order for the dismissal to be valid under these causes:
1. the employer must give a wriien noAce to:
i. The employees concerned; and
ii. DOLE
A: Rico’s argument is wrong on the basis the law does not require
criminal convicAon for an employee to be dismissed from his
work. The law only requires commission of a crime for as long as
the crime commiied by the employee is against the person of his
employer or any immediate member of his family or his duly
authorized representaAve.
e.
At least 1 month before the intended date of terminaAon of
employment and must pay separaAon pay.
Failure of peAAoner to serve the wriien noAce to private
respondent and to the DOLE does not ipso facto make
private respondent’s terminaAon from service illegal so as
to enAtle her reinstatement and payment of back wages. If
at all, her terminaAon from service is merely defecAve
because it was not tainted with bad faith or arbitrariness
and was due to a valid cause.
OTHER CAUSES ANALOGOUS TO THE FOREGOING.
REQUISITES FOR VALID DISMISSAL
a. The dismissal must be or any of the causes expressed in Art 297;
b. The employee must have been accorded due process, basic of
which is the opportunity to be heard and to defend himself. (RDS
Trucking v NLRC, G.R. No. 123941, August 27, 1998)
PROCEDURE IN DISMISSING AN EMPLOYEE – TWIN NOTICES
i. A wri<en no/ce served on the employee specifying the
ground/s for termina/on and giving the said employee
reasonable opportunity within which to explain his side;
Note: a period of at least 5 calendar days from receipt of the
noAce – the employee is given an opportunity to answer the
allegaAons against him.
ii.
A hearing or conference during which the employee
concerned, with the assistance of counsel if he so desires is
given opportunity to respond to the charge, present his
evidence, or rebut the evidence presented against him;
Note: Arer serving the first noAce, the employers should
schedule and conduct a hearing or conference wherein the
employees will be given opportunity to:
1. Explain and clarify their defenses to the charge against
them;
2. Present evidence in support of their defenses; and
3. Rebut the evidence presented against them by the
management.
A wri<en no/ce of termina/on served on the employee,
indica/ng that upon considera/on of all the circumstances,
grounds have been established to jus/fy his termina/on.
In case of terminaVon due to the installaVon of laborsaving devices: the worker affected is enAtled on the
following:
1. Must be paid a separaAon pay equivalent to at least 1
month pay or at least 1 month pay for every year of
service, whichever is higher.
2. SeparaAon Pay
b.
REDUNDANCY – it exists when the service capability of the
workforce is in excess of what is reasonably needed to meet the
demands of the business enterprise.
A valid redundancy must comply with the following requisites:
1. Wriien noAce served on both the employees and the DOLE
at least 1 month prior to the intended date of terminaAon of
employment.
2. Payment of separaAon pay equivalent to at least 1 month
pay for every year of service;
3. Good faith in abolishing the redundant posiAons; and
4. Fair and reasonable criteria in ascertaining what posiAons
are to be declared redundant and accordingly abolished,
taking into consideraAon such factors as:
i. Preferred Status;
ii. Efficiency; and
iii. Seniority, among others.
RIVERA NOTES (BAR 2024)
Note: While a declaraAon of redundancy is ulAmately a
management decision in exercising its business judgment, and
the employer is not obligated to keep in its payroll more
employees than are needed for its day-to-day operaAons –
management must not violate the law nor declare redundancy
without sufficient basis.
d.
Note: the law authorizes terminaAon of employment due to
business closure, regardless of the underlying reasons and
moAvaAons, be it financial losses or not.
Fair and reasonable criteria for redundancy: (Golden Thread
Knisng Industries, Inc. v NLRC)
1. Less preferred status (Temporary Employee)
2. Efficiency; and
3. Seniority
c.
CLOSING OR CESSATION OF THE ESTABLISHMENT OR UNDER
TAKING UNLESS THE CLOSING IS FOR THE PURPOSE OF
CIRCUMVENTING THE PROVISIONS OF LAW.
For validity, the closure/cessaAon of business must be bona fide
BOP: Rests upon the employer. The bona fides of the employer
must be proven.
The presence of these criteria used by the employer shows good
faith on its part and is evidence that the implementaAon of
redundancy was painstakingly done by the employer in order to
properly jusAfy the terminaAon from the service of its employees.
Note: An employer’s closure or cessaAon of business or operaAon
is regarded as an invalid ground for terminaAon of employment:
Only when the closure or cessaAon is made for the purpose of
circumvenAng the tenurial rights of the employees.
In case of terminaVon due to redundancy – the worker affected
must be paid a separaAon pay equivalent to at least 1 month pay
or at least 1 month pay for every year of service, whichever is
higher.
Note: In order for the dismissal to be valid under these causes:
1. the employer must give a wriien noAce to:
iii. The employees concerned; and
iv. DOLE
RETRENCHMENT TO PREVENT LOSSES (DOWNSIZING) –
severance of employment, through no fault of and without
prejudice to the employee, which management resorts to during
the period of business recession, industrial depression, or
seasonal fluctua/ons, or during lulls caused by lack of orders,
shortage of materials, conversion of the plant to a new
produc/on program or the introduc/on of new methods or more
efficient machinery, or of automa/on.
At least 1 month before the intended date of terminaAon of
employment and must pay separaAon pay.
In case of retrenchment to prevent losses and in cases of
closures or cessaVon of operaVon of establishment or
undertaking not due to serious business losses or financial
reverses – the separaAon pay of the affected employees shall be
equivalent to 1 month pay or at least 1/2 month pay for every
year of service, whichever is higher. A fracAon of at least 6mos
shall be considered 1 whole year.
LAY-OFF – an act of the employer of dismissing employees
because of losses in the operaAon, lack of work, and considerable
reducAon on the volume of its business.
When lay-off is temporary – the employment status of the
employee is not deemed terminated but merely suspended.
The bona fide suspension of the operaAon of the business or
undertaking for a period not exceeding 6mos does not
terminate employment.
Three basic requirements are:
1. Proof that the retrenchment is necessary to prevent losses
or impending losses;
2. Service of wriien noAces to the employees and to DOLE at
least 1 month prior to the intended date of retrenchment;
and
3. Payment of separaAon pay equivalent to 1 month pay or at
least 1/2 month pay for every year of service, whichever is
higher. A fracAon of at least 6mos shall be considered 1
whole year.
Standards for losses which may jusAfy retrenchment:
1. The losses incurred are substanAal and not de minis;
2. The losses are actual or reasonably imminent;
3. The retrenchment is reasonably necessary and is likely to be
effecAve in prevenAng the expected losses; and
4. The alleged losses, if already incurred, or the expected
imminent losses sought to be forestalled, are proven by
sufficient and convincing evidence.
BOP: Rests upon the employer. Not every loss incurred or
expected to be incurred by an employer can jusAfy retrenchment.
The employer must prove, among others that the lossesare
substanAal and that the retrenchment is reasonably necessary to
aver such losses.
CLOSURE OF ESTABLISHMENT AND REDUCTION OF PERSONNEL
(ART. 298)
The employer may also terminate the employment of any employee
due to the installa/on of labor-saving devices, redundancy,
retrenchment to prevent losses or the closing or cessa/on of
opera/on of the establishment or undertaking unless the closing is for
the purpose of circumven/ng the provisions of this Title, by serving a
wri<en no/ce on the workers and the Ministry of Labor and
Employment at least one (1) month before the intended date thereof.
In case of termina/on due to the installa/on of labor-saving devices
or redundancy, the worker affected thereby shall be en/tled to a
separa/on pay equivalent to at least his one (1) month pay or to at
least one (1) month pay for every year of service, whichever is higher.
In case of retrenchment to prevent losses and in cases of closures or
cessa/on of opera/ons of establishment or undertaking not due to
serious business losses or financial reverses, the separa/on pay shall
be equivalent to one (1) month pay or at least one-half (1/2) month
pay for every year of service, whichever is higher. A frac/on of at least
six (6) months shall be considered one (1) whole year.
e.
Disease as ground for termina/on. An employer may terminate
the services of an employee who has been found to be suffering
from any disease and whose con/nued employment is
prohibited by law or is prejudicial to his health as well as to the
health of his co-employees: Provided, That he is paid separa/on
pay equivalent to at least one (1) month salary or to one-half
(1/2) month salary for every year of service, whichever is greater,
a frac/on of at least six (6) months being considered as one (1)
whole year.
Art. 285. Termina/on by employee. a. An employee may terminate
without just cause the employee-employer rela/onship by serving a
wri<en no/ce on the employer at least one (1) month in advance. The
employer upon whom no such no/ce was served may hold the
employee liable for damages. b. An employee may put an end to the
rela/onship without serving any no/ce on the employer for any of the
following just causes:
1. Serious insult by the employer or his
representa/ve on the honor and person of the employee;
2.
Inhuman and unbearable treatment accorded the employee by the
In addi/on to such penalty, any alien found guilty shall be summarily
deported upon comple/on of service of sentence. Any provision of
law to the contrary notwithstanding, any criminal offense punished in
this Code, shall be under the concurrent jurisdic/on of the Municipal
or City Courts and the Courts of First Instance. (As amended by Sec/on
3, Batas Pambansa Bilang 70) Art. 289. Who are liable when
commi<ed by other than natural person. If the offense is commi<ed
by a corpora/on, trust, firm, partnership, associa/on or any other
en/ty, the penalty shall be imposed upon the guilty officer or officers
of such corpora/on, trust, firm, partnership, associa/on or en/ty. Title
II PRESCRIPTION OF OFFENSES AND CLAIMS Art. 290. Offenses.
Offenses penalized under this Code and the rules and regula/ons
issued pursuant thereto shall prescribe in three (3) years. All unfair
labor prac/ce arising from Book V shall be filed with the appropriate
agency within one (1) year from accrual of such unfair labor prac/ce;
otherwise, they shall be forever barred. Art. 291. Money claims. All
money claims arising from employer-employee rela/ons accruing
during the effec/vity of this Code shall be filed within three (3) years
from the /me the cause of ac/on accrued; otherwise they shall be
forever barred.
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regula/ons of the Code; otherwise, they shall be forever barred.
Workmen’s compensa/on claims accruing prior to the effec/vity of
this Code and during the period from November 1, 1974 up to
December 31, 1974, shall be filed with the appropriate regional offices
of the Department of Labor not later than March 31, 1975; otherwise,
they shall forever be barred. The claims shall be processed and
adjudicated in accordance with the law and rules at the /me their
causes of ac/on accrued. Art. 292. Ins/tu/on of money claims. Money
claims specified in the immediately preceding Ar/cle shall be filed
before the appropriate en/ty independently of the criminal ac/on
that may be ins/tuted in the proper courts. Pending the final
determina/on of the merits of money claims filed with the
appropriate en/ty, no civil ac/on arising from the same cause of
ac/on shall be filed with any court. This provision shall not apply to
employees compensa/on case which shall be processed and
determined strictly in accordance with the per/nent provisions of this
Code. Title III TRANSITORY AND FINAL PROVISIONS Art. 293.
Applica/on of law enacted prior to this Code. All ac/ons or claims
accruing prior to the effec/vity of this Code shall be determined in
accordance with the laws in force at the /me of their accrual. Art. 294.
Secretary of Labor to ini/ate integra/on of maternity leave benefits.
Within six (6) months aker this Code takes effect, the Secretary of
Labor shall ini/ate such measures as may be necessary for the
integra/on of maternity leave benefits into the Social Security System,
in the case of private employment, and the Government Service
Insurance System, in the case of public employment. Art. 295. Funding
of the Overseas Employment Development Board and the Na/onal
Seamen’s Board referred to in Ar/cles 17 and 20, respec/vely, of this
Code shall ini/ally be funded out of the unprogrammed fund of the
Department of Labor and the Na/onal Manpower and Youth Council.
Art. 296. Termina/on of the workmen’s compensa/on program. The
Bureau of Workmen’s Compensa/on, Workmen’s Compensa/on
Commission, and Workmen’s Compensa/on Units in the regional
offices of the Department of Labor shall con/nue to exercise the
func/ons and the respec/ve jurisdic/ons over workmen’s
compensa/on cases vested upon them by Act No. 3428, as amended,
otherwise known as the Workmen’s Compensa/on Act un/l March
31, 1976. Likewise, the term of office of incumbent members of the
Workmen’s Compensa/on Commission, including its Chairman and
any commissioner deemed re/red as of December 31, 1975, as well
as the present employees and officials of the Bureau of Workmen’s
Compensa/on, Workmen’s Compensa/on Commission and the
Workmen’s Compensa/on Units shall con/nue up to that date.
Thereaker, said offices shall be considered abolished and all officials
and personnel thereof shall be transferred to and mandatorily
absorbed by the Department of Labor, subject to Presiden/al Decree
No. 6, Le<ers of Instruc/ons Nos. 14 and 14-A and the Civil Service
Law and rules. Such amount as may be necessary to cover the
opera/onal expenses of the Bureau of Workmen’s Compensa/on and
the Workmen’s Compensa/on Units, including the salaries of
incumbent personnel for the period up to March 31, 1976 shall be
appropriated from the unprogrammed funds of the Department of
Labor. Art. 297. Con/nua/on of insurance policies and indemnity
bonds. All workmen’s compensa/on insurance policies and indemnity
bonds for self-insured employers exis/ng upon the effec/vity of this
Code shall remain in force and effect un/l the expira/on dates of such
policies or the lapse of the period of such bonds, as the case may be,
but in no case beyond December 31, 1974. Claims may be filed against
the insurance carriers and/or self-insured employers for causes of
ac/on which accrued during the existence of said policies or authority
to self-insure. Art. 298. Aboli/on of the Court of Industrial Rela/ons
and the Na/onal Labor Rela/ons Commission. The Court of Industrial
Rela/ons and the Na/onal Labor Rela/ons Commission established
under Presiden/al Decree No. 21 are hereby abolished. All
unexpended funds, proper/es, equipment and records of the Court of
Industrial Rela/ons, and such of its personnel as may be necessary,
are hereby transferred to the Commission and to its regional
branches. All unexpended funds, proper/es and equipment of the
Na/onal Labor Rela/ons Commission established under Presiden/al
Decree No. 21 are transferred to the Bureau of Labor Rela/ons.
Personnel not absorbed by or transferred to the Commission shall
enjoy benefits granted under exis/ng laws.
All money claims accruing prior to the effec/vity of this Code shall be
filed with the appropriate en//es established under this Code within
one (1) year from the date of effec/vity, and shall be processed or
determined in accordance with the implemen/ng rules and
Art. 299. Disposi/on of pending cases. All cases pending before the
Court of Industrial Rela/ons and the Na/onal Labor Rela/ons
Commission established under Presiden/al Decree No. 21 on the date
of effec/vity of this Code shall be transferred to and processed by the
employer or his representa/ve; 3. Commission of a crime or offense
by the employer or his representa/ve against the person of the
employee or any of the immediate members of his family; and 4.
Other causes analogous to any of the foregoing. Art. 286. When
employment not deemed terminated. The bona-fide suspension of
the opera/on of a business or undertaking for a period not exceeding
six (6) months, or the fulfillment by the employee of a military or civic
duty shall not terminate employment. In all such cases, the employer
shall reinstate the employee to his former posi/on without loss of
seniority rights if he indicates his desire to resume his work not later
than one (1) month from the resump/on of opera/ons of his
employer or from his relief from the military or civic duty
Title II RETIREMENT FROM THE SERVICE
Art. 287. Re/rement. Any employee may be re/red upon reaching the
re/rement age established in the collec/ve bargaining agreement or
other applicable employment contract. In case of re/rement, the
employee shall be en/tled to receive such re/rement benefits as he
may have earned under exis/ng laws and any collec/ve bargaining
agreement and other agreements: Provided, however, That an
employee’s re/rement benefits under any collec/ve bargaining and
other agreements shall not be less than those provided therein. In the
absence of a re/rement plan or agreement providing for re/rement
benefits of employees in the establishment, an employee upon
reaching the age of sixty (60) years or more, but not beyond sixty-five
(65) years which is hereby declared the compulsory re/rement age,
who has served at least five (5) years in the said establishment, may
re/re and shall be en/tled to re/rement pay equivalent to at least
one-half (1/2) month salary for every year of service, a frac/on of at
least six (6) months being considered as one whole year. Unless the
par/es provide for broader inclusions, the term ‘one-half (1/2) month
salary’ shall mean fikeen (15) days plus one-twelkh (1/12) of the 13th
month pay and the cash equivalent of not more than five (5) days of
service incen/ve leaves. Retail, service and agricultural
establishments or opera/ons employing not more than ten (10)
employees or workers are exempted from the coverage of this
provision. Viola/on of this provision is hereby declared unlawful and
subject to the penal provisions under Ar/cle 288 of this Code. BOOK
SEVEN TRANSITORY AND FINAL PROVISIONS
Title I PENAL
PROVISIONS AND LIABILITIES Art. 288. Penal/es. Except as otherwise
provided in this Code, or unless the acts complained of hinge on a
ques/on of interpreta/on or implementa/on of ambiguous provisions
of an exis/ng collec/ve bargaining agreement, any viola/on of the
provisions of this Code declared to be unlawful or penal in nature shall
be punished with a fine of not less than One Thousand Pesos
(P1,000.00) nor more than Ten Thousand Pesos (P10,000.00) or
imprisonment of not less than three months nor more than three
years, or both such fine and imprisonment at the discre/on of the
court.
corresponding labor rela/ons divisions or the Na/onal Labor
Rela/ons Commission created under this Code having cognizance of
the same in accordance with the procedure laid down herein and its
implemen/ng rules and regula/ons. Cases on labor rela/ons on
appeal with the Secretary of Labor or the Office of the President of
the Philippines as of the date of effec/vity of this Code shall remain
under their respec/ve jurisdic/ons and shall be decided in accordance
with the rules and regula/ons in force at the /me of appeal. All
workmen’s compensa/on cases pending before the Workmen’s
Compensa/on Units in the regional offices of the Department of Labor
and those pending before the Workmen’s Compensa/on Commission
as of March 31, 1975, shall be processed and adjudicated in
accordance with the law, rules and procedure exis/ng prior to the
effec/vity of the Employees Compensa/on and State Insurance Fund.
Art. 300. Personnel whose services are terminated. Personnel of
agencies or any of their subordinate units whose services are
terminated as a result of the implementa/on of this Code shall enjoy
the rights and protec/on provided in Sec/ons 5 and 6 of Republic Act
numbered fiky-four hundred and thirty five and such other per/nent
laws, rules and regula/ons. In any case, no lay-off shall be effected
un/l funds to cover the gratuity and/or re/rement benefits of those
laid off are duly cer/fied as available. Art. 301. Separability provisions.
If any provision or part of this Code, or the applica/on thereof to any
person or circumstance, is held invalid, the remainder of this code, or
the applica/on of such provision or part to other persons or
circumstances, shall not be affected thereby. Art. 302. Repealing
clause. All labor laws not adopted as part of this Code either directly
or by reference are hereby repealed. All provisions of exis/ng laws,
orders, decrees, rules and regula/ons inconsistent herewith are
likewise repealed.
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