c.

d.

Labor Relations
Answers to Boxed Questions in Azucenas Labor Code
Book II
3.

Box 1
1.

What are the policy objectives of our labor

relations law?

Employer-employee relationship must exist so

that labor relations may apply within an
enterprise. What factors determine the
existence of such relationship?
Ans.:
The existence of employer-employee
relationship is determined by the presence of
the following elements;
a. Selection and engagement of the
employee
b. Payment of wages

What are considered labor disputes? What are

the available remedies?
Ans.:
Labor disputes are any controversy or
matter concerning terms and conditions of
employment
or
the
association
or
representation of persons in negotiating, fixing,
maintaining, changing or arranging the terms
and conditions of employment, regardless of
whether the disputants stand in the proximate
relation of employer and employee.

Ans.: It is the policy of the State;

a. To promote and emphasize the primacy of
free collective bargaining and negotiations,
including voluntary arbitration, mediation
and conciliation, as modes of settling labor
or industrial disputes;
b. To promote free trade unionism as an
instrument for the enhancement of
democracy and the promotion of social
justice and development;
c. To foster the free and voluntary
organization of a strong and united labor
movement;
d. To promote the enlightenment of workers
concerning their rights ansd obligations as
union members and as employees;
e. To provide an adequate administrative
machinery for the expeditious settlement
of labor or industrial disputes;
f. To ensure a stable but dynamic and just
industrial peace; and
g. To ensure the participation of workers in
decision and policymaking processes
affecting their rights, duties and welfare.
2.

Power to dismiss; and

Power to control the employees
conduct.

Remedies in Labor Disputes;

a. Grievance procedure.
b. Conciliation
c. Mediation
d. Enforcement or compliance order
e. Certification of bargaining
representatives.
f. Arbitration (either Voluntary or
Compulsory).
g. Assumption of jurisdiction
h. Certification of NLRC
i. Injunction.
j. Judicial action
k. Appeal.
l. Review by Court.
m. Compromise agreement.
Box 2
1.

What is the NLRC?

Answer: The NLRC is the National Labor
Relations Commission. It exercises exclusive
appellate jurisdiction over cases decided by the
Labor Arbiter.

2.

Is the NLRC independent of the Department of

Labor and Employment?
Answer: Yes. It is attached to the DOLE for
program and policy coordination only. The

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Secretary of Labor merely exercises

administrative supervision over the NLRC. Such
supervision does not extend to the power to
4.
review, reverse, revise or modify decisions of
the NLRC in the exercise of its judicial
functions.
5.

1.

conditions of employment;
Claims for actual, moral, exemplary and other
forms of damages arising from the employeremployee relations;

Cases arising from any violation of Article 264 of

3. How is the NLRCs adjudicatory powers this Code, including questions involving the legality
of strikes and lockouts; and
distributed?
Answer: The NLRC shall exercise its
6. Except claims for Employees Compensation, Social
adjudicatory and all other powers, functions
and duties through its divisions. The division Security, Medicare and maternity benefits, all other
claims arising from employer-employee relations,
is a legal entity, not the persons who sit in it.
including those of persons in domestic or
The law lodges the adjudicatory power on each
household service, involving an amount exceeding
of the 8 divisions, not on the individual
five thousand pesos (P5,000.00) regardless of
commissioners nor on the whole commission.
whether accompanied with a claim for
reinstatement.
Box 3
7.
3. What are Corporate Disputes? Who has
1. What is RAB? Regional Arbitration Board
jurisdiction over them?
Regional Arbitration Branch" shall
mean any of the regional arbitration
Corporate disputes are controversies arising out of
branches or sub-regional branches of the
intra-corporate or partnership relations, between and
Commission.
among stockholders, members, or associates; between
any or all of them and the corporation, partnership or
2. What cases fall within the jurisdiction of the
associates of which they are stockholders, members or
Labor Arbiter?
associates respectively; and between such corporation,
partnership or association and the state insofar as it
Art. 217. Jurisdiction of the Labor Arbiters and the
concerns their individual franchise or right to exist as
Commission.
Except as otherwise provided under this Code, the
such entity.
Labor Arbiters shall have original and exclusive
Jurisdiction Over Intra-Corporate Disputes
jurisdiction to hear and decide, within thirty (30)
Transferred
from SEC to RTC
calendar days after the submission of the case by
the parties for decision without extension, even in
the absence of stenographic notes, the following
cases involving all workers, whether agricultural or
non-agricultural:

1.

Unfair labor practice cases;

2.

Termination disputes;

3.

If accompanied with a claim for reinstatement,

those cases that workers may file involving wages,
rates of pay, hours of work and other terms and

4.

Where is the venue of the compulsory

arbitration cases?.
All cases which Labor Arbiters have
authority to hear and decide may be filed in
the Regional Arbitration Branch having
jurisdiction over the workplace of the
complainant or petitioner.

Box 4
1) What are the powers of the NLRC? (See Art 218 o
f LC, now Art 224, 2013 Codal)
>> POWERS OF THE COMMISSION

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(i) RULE-MAKING POWER

The Commission has the power to promulgate
rules and regulations:

relative to the object of the investigation.

Note: Author believes this power is adjunct to the adju
dicatory function and exercised only to assist or

a) governing the hearing and dispostition of

cases before it and regional branches;

expedite adjudication or a pending dispute. Not

meant to duplicate the visitorial-enforcement

b) pertaining to its internal functions

authority under Art 128.

c) those that may be necessary to carry out t

(vi) ADJUDICATORY POWER

he powers of this Code.

(ii) POWER TO ISSUE COMPULSORY PROCESSES
The Commission has the power to :

Original: Each of the NLRC has original jurisdi

ctions over petition for injunction or temporary restraini
ng order under Art. 218 (e). It also had the original jurisd

a) administer oaths;

iction to hear and decide "National Interest" cases certif

b) summon parties;

ied to it by the Sec.of Labor under Art. 263 (g).

c) issue subpoenas ad testificandum and duc

es tecum

Appellate: The NLRC has exclusive appellate

jurisdiction over all cases decided bu the lanor arbiters a

(iii) POWER TO INVESTIGATE AND HEAR DISPUTES

WITHIN ITS JURISDICTION

nd the DOLE regional director or hearing of officers und

er Art. 219.

The Commission has the power to:

(vii) POWER TO ISSUE INJUNCTION OR TEMPOR

a) conduct investigations for the determinat ARY RESTRAINING ORDER

ion of a question, matter or controversy within

See Art 218 par. [e]

its jurisdiction;
b) proceed to hear and determine the dispu
tes in the manner laid down under paragraph (c)
Art. 218 (now Art 224, 2013 Codal)

2) Injunction is frowned upon in labor disputes. Wh

at are the pre-conditions before an injuctive writ be is
sued? (See Art 218 par. [e]) (Art 224, 2013 Codal)

(iv) CONTEMPT POWER

The procedures and penalties thereof are pr
ovided under paragraph (d) Art. 218
(now Art. 224 , 2013 Codal)

>> As a rule, restraining orders or injunctions do no

t issue ex parte and only after compliance with the follo
wing requisites, to wit:
a.

(v). POWER TO CONDUCT OCULAR INSPECTION

of has been served, in such a manner as the Commi

Under Art 219 (now Art. 225), the chairman,

ssion shall direct, to all known persons against who

any commissioner, labor arbiter or their duly

m relief is sought, and also to the Chief Executive a

authorized representatives may, at any time

nd other public officials of the province or city with

during working hours:

in which the unlawful acts have been threatened or

a) conduct an ocular inspection on any est

committed charged with the duty to protect compl

ablishment, building, ship or vessel, place or

ainant's property;

premises, including any work, materiak, i b.

mplement, machinery, appliance or any object

reception at the hearing of "testimony of witnesses

, with opportunity for cross-examination, in suppor

therein;

t of the allegations of a complaint made under oath

b) ask any employee, laborer or any perso

," as well as "testimony in opposition thereto, if off

n, as the case may be, for any information or

data concerning any matter or question

a hearing held "after due and personal notice there

ered x x";
c.

"A finding of fact by the Commission, to the effect:

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(1) that the prohibited or unlawful acts have bee

c.

n threatened and will be committed and will be continu

d.

ed unless restrained, but no injunction or TRO shall be is

sued on account of any threat,

prohibited or unla

e.

wful act, except against the person or persons, associati

on or organization making the threat or committing the
prohibited or unlawful act or actually authorizing or ratif
ying the same after actual knowledge thereof;

f.

(2) that substantial and irreparable injury to co

mplainant's property will follow;
(3) that as to each item of relief to be granted, g
reater injury will be inflicted upon the complainant by t
he denial of relief than will be inflicted upon defendants

g.

by the granting of relief;

(4) that the complainant has no adequate reme
dy at law;

Decision must be supported by

something (evidence)
Supporting evidence must be
substantial
Decision must be rendered on the
evidence presented or at least
contained in the record and
disclosed to the parties affected
The body or any of its judges must
act on its own independent
consideration of the law and
facts, and not simply accept the
views of the subordinate in
arriving at a decision: and
Decide in such a manner that
parties can know the various
issues involved and the reason for
the decision.

(5) that the public officers charged with the duty

to protect complainant's property are unable or unwillin

2.

g to furnish adequate protection.

Box 5
1.

Technical rules are not strictly followed in

proceedings before the NLRC and the Labor
Arbiter. How is this rule reconciled with the
requirement of procedural due process?
*Simplification of procedure, without regard to
technicalities of law or procedure and without
sacrificing the fundamental requisites of due
process.
In Ang Tibay vs CIR case, the court ruled that, it
is not narrowly constrained by the technical
rules of procedure. However this does not
mean that it can entirely ignore or disregard
the fundamental and essential requirements of
Box 6
due process in trials and investigation of
administrative character. There are cardinal
1.
primary rights which must be respected even in
proceedings of this character:
a. Right to hearing
b. Tribunal must consider the
evidence presented

How are compulsory arbitration cases heard

and decided?
The NLRC or Labor Arbiter to deicide case
on the basis of position papers and other
documents submitting without resorting to
technical rules of evidence as observed in
the regular court of justice. The evidence
presented before it must at least have a
modicum of admissibility for it to be given
some probative value. Not only must there
be some evidence to support a finding or
conclusion, but evidence must be
substantial. Substantial evidence is more
that a mere scintilla. It means such
relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion.

A labor arbiters decision is appealable to the

NLRC & up to the CA/SC. On what grounds?
When?
ANS: As provided by law, labor arbiters
decision is appealable to the NLRC within 10

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calendar days from receipt of such decision

only on any of the following grounds:
a. If there is a prima facie evidence
of abuse of discretion on the part
of the Labor Arbiter;
b. If the decision was secured
through fraud or coercion,
including graft & corruption;
c. If made purely on questions of
law; and
d. If serious errors in the findings of
fact are raised which would cause
grave or irreparable damage or
injury to the appellant.
2.

At each level of appeal what are the

prerequisites? Is a motion for reconsideration
a prerequisite?
ANS: The following are the perquisites for the
perfection of appeal:
a. It must be filed within the
reglementary period;
b. It must be verified by appellant
himself;
c. It must be in the form of a
memorandum of appeal in three
(3) legibly typewritten copies
which shall state the grounds
relied upon, the supporting
arguments, the relief prayed for&
the date the appellant received
the appealed decision or order.
The appeal memorandum should
be accompanied by a certificate
of non-forum shopping, proof of
service on the other party, proof
of payment of appeal fee, & cash
or surety bond.

A motion for reconsideration is not a

prerequisite in order that an appeal maybe
perfected because technical rules is not binding in
labor cases. Hence, if a motion for reconsideration
is filed, it considered an appeal, provided that all
the requisites for perfection of appeal are present

3.

What are the limits to NLRCs appellate

jurisdiction?
ANS: The NLRC shall, in case of perfected
appeals, limit itself to reviewing those issues
which are raised on appeal. Those which are
not raised shall be final & executory.

4.

How is a final decision of the labor arbiter or

the NLRC executed?
ANS: The decision or order of the NLRC or a
Labor Arbiter that finally disposes of a case is
enforced by an order or writ of execution upon
motion of the winning party or upon the
initiative of the Labor Arbiter or the NLRC that
issued such decision. A copy of such decision or
order should have been furnished to the
parties and their counsels or authorized
representatives.

5.

May a regional trial court issue an injunction

against a NLRC decision?
ANS: As a general rule, Regional Trial Court has
no jurisdiction to issue temporary restraining
order in labor cases. However, when a thirdparty to the action, asserts a claim over the
property levied upon, the third-party may
vindicate his claim by an independent action
which may stop the execution. Thus, the
above-stated rule applies only when there is no
third-party claimant is involved.

If the judgment includes

monetary award, appeal is
perfected by posting a bond
in a form money or security Box 7
bond.
1. What kind of cases fall within BLR's jurisdiction.?

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Inter/intra union dispute

cba registration
Labor education
2. May labor standards violations be settled by
compromise? How this done?
It must be voluntarily agreed upon by the parties with
the assistance of the BLR or the regional office of DOLEfinal and binding upon the parties and can no longer be
repudiated.
The only time NLRC or any courts can assume
jurisdiction over issues involved therein: a. in case of
non-compliance thereof b. if there is prima facie
evidence that the settlement was obtained through
fraud, misrepresentation or coercion.
The assistance of the BLR or the regional office of the
DOLE in the execution of a compromise settlement is a
basic requirement. Without it, there can be no valid
compromise settlement. Mere appearance before BLR
or the regional office of the DOLE to file the already
executed compromise settlement is not the assistance
required by the law.
3. May such compromise be valid if the agreement sets
terms lower than the statutory standards?
In order for compromise agreement to be valid, one of
its substantial requirement is that it must not be
contrary to law, morals or public policy. Thus, this
agreement must not set terms contrary to what the law
requires as minimum standards.
4. Where, when, and how is CBA registered?
Registration of Collective Bargaining Agreements
Where to file:
With the Regional Office which issued the certificate of
registration/certificate of creation of chartered local.
If the certificate of creation of the chartered local was
issued by the bureau, the agreement shall be filed with

the Regional Office which has jurisdiction over the place

where it principally operates.
Multi-employer collective bargaining agreements shall
be filed with the Bureau
When to file:
within 30 days from execution of the CBA.
Requirements for registration
The application for CBA registration shall be
accompanied by the original and 2 duplicate copies of
the following documents.
1. CBA
2. A statement that the CBA was posted in at least 2
conspicuous places in the establishment concerned for
at least 5 days before its ratification.
3. Statement that the CBA was ratified by the majority
of the employees in the bargaining unit. The following
documents must be certified under oath by the
representative of the employer and the labor union. No
other document shall be required in the registration of
the CBA.
Procedure
1. Submission of chores of CBA to the BLR or regional
office of dole within 30 days from execution,
accompanied by the Requirements for registration.
2. Action upon the application fir registration within 5
calendar days from receipt thereof.
3. The regional office shall furnish the blr with copy of
cba within 5 days from submission.
4. The blr regional office shall assess the employer for
every cba, registration fee of not less than 1,000 or any
amount deemed appropriate by secretary of labor.
5. Issuance of certificate of registration.
Box 8

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1.

a.
b.

c.

d.

e.

a.

b.

What are the requirements for organizing and

registering a union?
Under the Labor Code of the Philippines, the
following are the requirements for organizing
and registering a union:
Art. 234. Requirements of registration. Any
applicant labor organization, association or
group of unions or workers shall acquire legal
personality and shall be entitled to the rights
and privileges granted by law to legitimate
labor organizations upon issuance of the
certificate of registration based on the
following requirements.
Fifty pesos (P50.00) registration fee;
The names of its officers, their addresses, the
principal address of the labor organization, the
minutes of the organizational meetings and the
list of the workers who participated in such
meetings;
The names of all its members comprising at
least twenty percent (20%) of all the
employees in the bargaining unit where it
seeks to operate; (As amended by Executive
Order No. 111, December 24, 1986)
If the applicant union has been in existence for
one or more years, copies of its annual
financial reports; and
Four (4) copies of the constitution and by-laws
of the applicant union, minutes of its adoption
or ratification, and the list of the members who
participated in it. (As amended by Batas
Pambansa Bilang 130, August 21, 1981)
In addition,
Art. 237. Additional requirements for
federations or national unions. Subject to
Article 238, if the applicant for registration is a
federation or a national union, it shall, in
addition to the requirements of the preceding
Articles, submit the following:
Proof of the affiliation of at least ten (10) locals
or chapters, each of which must be a duly
recognized collective bargaining agent in the
establishment or industry in which it operates,
supporting the registration of such applicant
federation or national 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. Conditions for registration of
federations or national unions. No federation

or national union shall be registered to engage

in any organization activity in more than one
industry in any area or region, and no
federation or national union shall be registered
to engage in any organizational activity in more
than one industry all over the country.
The federation or national union which meets
the requirements and conditions 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 federation or
national union organizes such locals or
chapters within its assigned organizational field
of activity as may be prescribed by the
Secretary of Labor.
The Bureau shall see to it that federations and
national unions shall only organize locals and
chapters within a specific industry or union.]
(Repealed by Executive Order No. 111,
December 24, 1986)
2.

What is a collective bargaining unit? How

does it differ from a union?
As provided by the Implementing
Rules of the Labor Code, a bargaining unit
refers to a group of employees sharing mutual
interest within a given employer unit,
comprised of all or less than all of the entire
body of employees in the employer unit or any
specific occupational or geographical grouping
within such employer unit.
One of the requirements to register an
independent union is that the applicant should
have a membership of at least 20 percent of
the employees in the bargaining unit where it
seeks to operate.
Azucena differentiated CBU and Union
in this manner:
CBU is different from and bigger than
a union. Union members come from the CBU
and there can be several rival unions within a
CBU. While officers lead and represent a union,
a union represents a CBU. But only one union
should represent the whole CBU in bargaining
with the employer. The representative is the
union; the group represented is the CBU. The
representative union, once determined, will
represent even the members of other unions

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as long as they are part of the CBU. This is why

the representative union is called exclusive
bargaining representative (EBR).
3.

Merger of labor organizations is the process

where a labor organization absorbs another
resulting in the cessation of the absorbed labor
organizations existence and the continued
existence of the absorbing labor organization;
that is if Union A absorbs Union B, Union A
remains and Union B disappears, or it can be B
absorbing A. Another name for merger is
absorption.

What is union affiliation and what are its

implications? May an affiliate disaffiliate?
Union affiliation is defined in two ways:
a) When an independently registered union
enters into an agreement of affiliation with
a federation or a national union;
b) A chartered local which applies for and is
granted an independent registration but
does not disaffiliate from its mother
federation or national union.
Implications:
a) The relationship between a local or
chapter and the labor federation or
natonal union is generally understood to
be that of agency, where the local is the
principal and the federation the agent.
b) Affiliation by a duly registered local union
with a national union or federation does
not make the local union lose its legal
personality. Despite the affiliation, the
local union remains the basic unit free to
serve the common interest of all its
members;

Consolidation of unions refers to the creation

or formation of a new union arising from the
unification of two or more unions; that is, if
union A and union B consolidate themselves,
both of them disappear and Union C is born.
Another
name
for
consolidation
is
amalgamation.
How?
A. Notice of merger or consolidation of
independent labor unions, chartered locals
and workers association shall be filed with
and recorded by the Regional Office that
issued
the
Certificate
of
Registration/Creation. Notice of merger or
consolidation of federations or national
unions shall be filed with and recorded by
the Bureau.
B. The notice shall be accompanied by the
following documents:
a) Minutes of Merger/consolidation
meeting with the list of members who
approve the same; and
b) Amended Constitution and by-laws
and minutes of its ratification, unless
ratification
transpired
in
the
Convention.
C. The Certificate of registration issued to
merged labor organizations shall bear the
registration number of one of the merging
labor organizations as agreed upon by the
parties.

The right of a local union to disaffiliate from its

mother union is well settled. It has been held
that a local union, being a separate and
voluntary association, is free to serve the
interest of all its members including the
freedom to disaffiliate when circumstances
warrant. This right is consistent with the
constitutional guarantee of freedom of
association. To disaffiliate is a right, but to
observe the terms of affiliation is an
obligation.
SUBSTITUTIONARY
DOCTRINE-employees
cannot revoke the validly executed collective
bargaining contract with their employer by the
simple expedient of changing their bargaining
agent. The CBA continues to bind the members
of the new or disaffiliated and independent
union up to the CBAs expiration date.
4.

How do unions merge or consolidate?

5.

On what grounds and upon whose petition

may a unions registration be cancelled?
The Labor Code provides the following:
Art. 238. Cancellation of registration; appeal.
The certificate of registration of any labor
organization, whether national or local, shall be
cancelled by the Bureau if it has reason to
believe, after due hearing, that the said labor

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organization no longer meets one or more of

the requirements herein prescribed.
Art. 239. Grounds for cancellation of union
registration. The following shall constitute
grounds for cancellation of union registration:
a. Misrepresentation, false statement or
fraud in connection with the adoption or
ratification of the constitution and by-laws
or amendments thereto, the minutes of
ratification and the list of members who
took part in the ratification;
b. Misrepresentation, false statements or
fraud in connection with the election of
officers, minutes of the election of officers,
the list of voters;
c. Voluntary dissolution by the members.
D.O. No. 40-03(Rule XIV, Section 2) states: Any
party-in-interest may commence a petition for
cancellation of a unions registration, except in
actions involving violations of Article 241, which can
only be commenced by members of the labor
organization concerned. The employer is a partyin-interest, and jurisprudence reveals cases of
cancellation of union registration based on
petitions filed by the employer.
Box 9
1.

2.

What are the rights of union members?

a. Political right members right to vote and
be voted for, subject to lawful provisions
on qualifications and disqualifications.
b. Deliberative and decision making right
right to participate in deliberations on
major policy questions and decide them by
secret ballot.
c. Right over money matters rights against
excessive fees; unauthorized collections of
contribution or disbursement; the right to
require adequate records of income and
expenses and access to financial records;
the
right
to
vote
on
officers
compensations, on proposed special
assessments and be deducted a special
assessment only with the members
written authorizations.
d. Right to information right to be informed
about the orgs constitution and by-laws
and CBA and about labor laws.
When, how and by whom are union officers
elected?

They are elected directly by the

members in secret ballot voting. The
elections take place at intervals of five
years which is their term of office.
How it is done are matters left by law
to the unions constitution and bylaws or to agreements among the
members. In the absence thereof,
book V applies.
How may they be impeached or removed?
They may be impeached by the ff
procedure:
-Initiated by petition signed by at least 30%of
all bona fide members of union;
- General membership meeting shall be
convened by the board chairman;
- Union officer against whom impeachment
charges have been filed, before impeachment
vote be taken, shall be given ample opportunity
to defend himself;
- Majority of all the members of union be
required to impeach or recall union officers.
They may be expelled if they violate
the rights and conditions of the
membership.
3. May a union member seek cancellations of his
unions registration?
Yes, provided the ff requisites must
concur:
Member desire to dissolve or
cancel the registration should have been
voted upon through secret balloting;
The balloting should take place in a
meeting duly called for the purpose of
deciding WON to dissolve the union;
The vote to dissolve should represents
2\3 affirmative vote of the general
memberships;
- Members resolution should be followed
by an application for cancellation passed
and submitted by the unions governing
board, which must be attested to by the
president.
4. What is check-off? When may it properly be
done?
Check-off is a method of deducting
from an employees pay at prescribed
period, the amounts due the union for
fees,
fines,
or
assessments.
Deductions for union service fees are
authorized by law and do not require
individual checkoff authorizations.

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Box 10
1.

2.

Box 11

What are the rights of a legitimate labor

organization?
The following are the rights of a
legitimate labor organization: (Art. 242)
1. To act as representatives of its
members for the purpose of
collective bargaining.
2. To be certified as the exclusive
representative
of
all
the
employees in an appropriate
collective bargaining unit for
purposes of collective bargaining.
3. To be furnished by employer,
upon written request, with its
annual
audited
financial
statements.
4. To own property, real or personal,
for the use and benefit of the
labor organization and its
members.
5. To sue and be sued in its
registered name.
6. To undertake all other activities
designed
to
benefit
the
organization and its members,
including cooperative, housing
welfare and other projects not
contrary to law.
7. Its income, properties, grants,
endowments, gifts, donations,
and contributions, used for their
lawful purposes, shall be free
from
taxes,
duties
and
assessments, except when this
provision is expressly repealed by
a special law.
May a union, as representative, settle by
compromise its members money claims?
No. The exception is when there is a
specific individual consent of each laborer
concerned.

1.

In the private and public sectors, who are

the persons allowed and not allowed to
form and join labor organization?
>In private sectors all person employed in
commercial, industrial and agricultural
enterprise and in religions, charitable,
medical/educational institutions whether
for profit or not are allowed to form or join
labor organization. Ambulant, intermittent
and itinerant workers, self-employed
people, rural workers and those without
any definite employees may form/join
labor organization.
>Those who are not allowed are
employees of such cooperative who is a
member and co-owner; Managerial
employees.
>In public sectors, employees of Govt.
Corporation established under the
corporation code shall have the right to
organize with their respective employers.
All other employees in civil service shall
have the right to form association for
purpose not contrary to law.
>Exempted employees are those members
of the AFP, including police officers,
policemen, fireman and jai guard; High
level employee.

2.

What law governs labor realations in the

public secto?
>The law that governs in the public sector
is the Civil Service Law.

3.

May government employees hold protest

actions? May they go on a strike legally?
>Yes, the resolution of complaint and
cases involving govt. employees is not
ordinarily
left
to
collective

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bargaining/other related activities but to

civil service law and labor law whenever
Box 12
applicable.
1.

Unfair Labor practice is an act of abridgment

which Article 246 prohibits. Is it ULP to stop
protest action by ununionized employees?
Ans.:
Because self-organization is a prerequisite
the lifebloodof industrial democracy, the right
to self-organize has been enshrined in the
Constitution, and any act intended to weaken or
defeat the right is regarded by law as an offense.
ULP, therefore has a limited, technical meaning
because it is a labor relations concept with a
statutory definition. It refers only to acts opposed
to workers right to organize. Without the element,
the act, no matter how unfair, is not unfair labor
practice as legally defined.

2.

Under article 247, ULP is both civil and criminal

offense. Why?

>Terms and condition of employment in

govt. including any political subdivision or
instrumentality thereof and GOCC with
original charters are governed by law, the
employees therein shall not strike for
purpose of securing changes thereof.
4.

In the private sector how does a manger

differ from a supervisor?
>In private sector a manager differs from a
supervisor is that a manager makes policy
decision or people decision/both, while
supervisor recommends those decisions.
One is a decision maker while the other
recommends.

5.

Supervisor and rank and file employees

cannot join the same union. What
happens if they do?
>As a rule the inclusion as union members
of employees outside the bargaining unit
shall not be ground for the cancellation of
registration of the union. Said employees
are automatically deemed removed from
the list of membership of said union.

6.

Who
are
considered
confidential
employees? May confidential employee
join unions?

Ans.:
The victim of the offense is not just the
workers as a body and the well-meaning
employers who value industrial peace, but the
State as well. Thus, the attack to constitutional
right is considered a crime which therefore carries
both civil and criminal liabilities.
3.

What are the elements of ULP as an offense?

Ans.:
First, there is employer-employee relationship
between the offender and the offended; and
Second, the act done is expressly defined in the
Code as an act of unfair labor practice.

>Confidential employees assist and act in a

confidential capacity to, or have access to
confidential matters of, persons who
exercise managerial functions in the field
Box 13
of labor relations.
1.
>Confidential employees cannot form, join, or assist
rank-and-file unions however When the employee does
not access to confidential employees, there is no legal
prohibition against confidential employee from forming,
assisting or joining a union.

What acts are considered unfair labor practice

by an employer?
Answer: Art. 248 of the Labor Code
enumerated unfair labor practices of
employers.

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a.

b.

c.

d.

e.

f.

g.
h.

i.

2.

To interfere with, restrain or coerce

employees in the exercise of their right to
self-organization.
To require as a condition of employment
that a person or an employee shall not join
a labor organization or shall withdraw
from one to which he belongs.
To contract out services or functions being
performed by union members when such
will interfere with, restrain or coerce
employees in the exercise of their right to
self-organization;
To initiate, dominate, assist or otherwise
interfere with the formation or
administration of any labor organization,
including the giving of financial or other
support to it or its organizers or
supporters;
To discriminate in regard to wages, hours
of work, and other terms and conditions of
employment in order to encourage or
discourage membership in any labor
organization.
To dismiss, discharge or otherwise
prejudice or discriminate against an
employee for having given or being about
to give testimony under this Code;
To violate the duty to bargain collectively
as prescribed by this Code;
To pay negotiation or attorneys fees to
the union or its officers or agents as part of
the settlement of any issue in collective
bargaining or any other dispute;
To violate a collective bargaining
agreement.

3.

Is it ULP for an employer to contract out jobs

being done by union members?
Answer: No. It is not ULP for an employer to
contract out jobs being done by union
members UNLESS such act will interfere with,
restrain, or coerce employees in the exercise of
their right to self-organization. Hence,
contracting out by itself is not ULP. It is the illintention that makes it so.

4.

Is it ULP for an employer to favour a particular

union?
Answer: Yes, if the act of favouring a particular
union amounts to domination of a labor union
such as in the following:
initiation of company union idea; giving
financial support to the union; employer
encouragement
and
assistance;
and
supervisory assistance.

5.

Is it lawful to compel an employee to join a

union?
Answer: No. There is a form of encouragement
of union membership which is not considered
ULP. This is where the management and union
enters into a collective bargaining agreement
containing a union security clause. A union
security
clause
essentially
requires
membership in the union so that an employee
may retain his job and the unions existence is
assured. It is compulsory union membership
whose objective is to assure continued
existence of the union. In a sense, there is
discrimination when certain employees are
obliged to join a particular union. But it is
discrimination favouring unionism; it is a valid
kind of discrimination.

What is the discrimination that may constitute

ULP?
Answer: To constitute an unfair labor practice, Box 14
the discrimination committed by the employer
1. What acts are considered ULP by a Labor
must be in regard to the hire or tenure of
organization?
employment or any term or condition of
employment to encourage or discourage Art. 249. Unfair labor practices of labor
organizations. It shall be unfair labor practice for a labor
membership in any labor organization.
organization, its officers, agents or representatives:

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a.)
To restrain or coerce employees in the
exercise of their right to self-organization.
However, a labor organization shall have the right
to prescribe its own rules with respect to the
acquisition or retention of membership;
b.)
To cause or attempt to cause an employer
to discriminate against an employee, including
discrimination against an employee with respect to
whom membership in such organization has been
denied or to terminate an employee on any ground
other than the usual terms and conditions under
which membership or continuation of membership
is made available to other members;
c. )
To violate the duty, or refuse to bargain
collectively with the employer, provided it is the
representative of the employees;
d. )
To cause or attempt to cause an employer
to pay or deliver or agree to pay or deliver any
money or other things of value, in the nature of an
exaction, for services which are not performed or
not to be performed, including the demand for fee
for union negotiations;
e .)
To ask for or accept negotiation or
attorneys fees from employers as part of the
settlement of any issue in collective bargaining or
any other dispute; or
f.)
To violate a collective bargaining
agreement

4.

for membership, and a closed-shop provision

would not justify the employer in discharging,
or a union in insisting upon the discharge of, an
employee whom the union thus refuses to
admit to membership, without any reasonable
ground therefor.
What is featherbedding? Is it featherbedding
to object to the abolition of certain jobs or
positions in the company?

Article 249(d) To cause or attempt to cause an

employer to pay or deliver or agree to pay or deliver any
money or other things of value, in the nature of an
exaction, for services which are not performed or not to
be performed, including the demand for fee for union
negotiations; refers to featherbedding, a term given
to employee practices which create or spread
employment by unnecessarily maintaining or
increasing the number of employees used,or the
amount of time consumed, to work on a particular job.
No. Most of these practices stem from a desire on
the part of employees for job security in the face of
technological improvements or in the face of employer
subcontracting. However, most courts at common law
found these practices to be economically wasteful and
without any legitimate employee justification.
Box 15

1) How is collective bargaining done? May the parti

es devise their own procedure? (See Art.250)
>>The mechanics of collective bargaining are set in

2.

3.

May a union charge with ULP another union in

the same enterprise?
No, Unfair Labor Practices can only be
invoked by an employee against an employer
and and by a union member against the labor
union when such employer or labor union
violates the Constitutional right of workers or
Employees to self-organization.
May a union member charge with ULP his own
union?
Yes. Labor Union can be charged with
ULP by a union member where in a case such
Union arbitrarily exclude qualified applicants

motion only when the following jurisdictional preconditi

ons are present, namely: (1) possession of the status of
majority representation of the employees' representativ
e in accordance with any of the means of selection or de
signation provided for by the Labor Code; (2) proof of m
ajority representation; (3) a demand to bargain under A
rt 250, par.[a] of the New Labor Code. If the three jurisdi
ctional preconditions are present, the collective bargaini
ng should begin within 12 months following the determi
nation and certification of the employees' exclusive bar
gaining representative.

Bukidnon State University College of Law

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>> Yes. Art 251 provides, "In the absence of an agr

gain or not to bargain.

eement or other voluntary arrangement providing for a

more expeditious manner of collective bargaining, it sha
ll be the duty of the employer and the representatives o
f the employees to bargain collectively in accordance wi
th the provisions of this Code."

5) What are the requirements of valid ratification of

a CBA?
>> The agreement negotiated by the employees' b
argaining agent should be ratified or approved by the m
ajority of all the workers in the bargaining unit. The post

2) The prevailing practice is single enterprise bargai

ning. Is multi-employer bargaining allowed?

ing of the CBA in two conspicuous places for five days is

also required.

>> Yes. Multi-employer bargaining unit is particula

rly advantageous to both sides in industries composed o
f many small, financially weak employers.

6) When does a CBA take effect? Up to when is it ef

fective? May its life be extended by non-renewal
or by mutual agreement?

3) What are the elements of the duty to bargain, vi

olation of which may constitute ULP?
>> There are four essential elements:

>> It has been held that a CBA was effective on rati

fication by union members.
>> RA No. 6715 has introduced through Art. 253-A
a significant change in setting the durations or terms of

otiating an agreement.

a CBA at five years for the "representation aspect" and

Its contents specify the terms and c not more than three years for "all other provisions".
onditions of employment (e.g., salary/wage increase, be

>> Art. 253 provides, It shall be the duty of both pa

rties to keep the status quo and to continue in full force

Political. The agreement is a product of a neg

and effect the term and conditions of the existing agree

ment during the 60-day period and/or until a new agree

Moral. It involves a system of shared responsi

bility and decision- making.
Forms of ULP

ment is reached by the parties.

Box 16
1.

a) failure or refusal to meet and convene;

b) evading the mandatory subjects of bargainin
g;
c) bad faith in bargaining including failure or ref
usak to execute the collective agreement, if requested;
d) gross violation of the CBA
4) What are the compulsory and optional subjects o
f bargaining?
>> The mandatory subjects of collective bargaining
are wages, hours of work and all other terms and condit
ions of employment. Those matters outside the terms a
nd conditions of employment are not within the employ
er's duty to bargain, such other matters he is free to bar

2.

What are the methods of selecting the union

that will bargain with the employer?
a.) Voluntary recognition
b.) Certification Election
c.) Consent election
What is certification election (C.E.)? Who can
petition for a C. E.?
*Certification election is the process of
determining through secret ballot the sole and
exclusive representative of the employees in
an appropriate bargaining unit, for purposes of
collective bargaining or negotiation.
*may be filed by the (1)registered union or (2)
by an employer. (3) Any legitimate labor
organization including a(4) national union or
federation that has issued a charter certificate
to its local/chapter.

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Box 17
3.

On what grounds may a petition for C. E. be

denied?

1.

*Med-arbiter may disapprove or deny the

petition to hold a C.E. on the following ground:

A CBA is said to be the law between the

parties. What are the consequences of its
violation?
ANS: If the violation of the CBA is not gross, it is
considered as grievance, but if the violation of
the CBA is gross, it considered as unfair labor
practice.

a.) Non- appearance

b.) Illegitimacy-Unregistered Union
c.) Illegitimacy- no charter

In the event of any violation in the

CBA, the aggrieved party has the right to go to
court for redress.

d.) Absence of employment relationship

e.) election bar- the 12 month bar
f.) election bar- negotiation or deadlock

2.

A CBA is in personam. What are the

implications? The exceptions?

g.) election bar- existing CBA

ANS: CBA is said to be in personam, thus, it
implies that labor contracts is only binding
between the parties and it does not create any
real right which should be respected by third
parties.

h.) election bar-lack of support

4.

5.

Who votes in C. E.? Who wins?

*all employees who are members of the
appropriate bargaining unit sought to be
represented by the petitioner at the time of
the issuance of the order granting the conduct
off a certification election shall be eligible to
vote.
* results of the election and certifying the
union which obtained a majority of the valid
votes cast. Where majority of the valid votes
cast results in no-union obtaining the
majority, the med-arbiter shall declare such
fact in the order.
Is the employer a party to a C. E.?
*no, employers are mere bystanders in the
CE proceedings.

6.

What is meant by duty of fair

representation?
*this duty, enjoined explicitly in American
jurisprudence and implicitly in Philippine law,
obligates the majority union to serve the
interest of all members of the whole bargaining
unit without hostility or discrimination.

However, as an exception to the said

rule, the parties may be held liable to the
employees if the transaction between the
parties is colored or clothed with bad faith.
3.

What is grievance machinery & why is it

required provision in a CBA?
ANS: Refers to a mechanism for the adjustment
of controversies or disputes arising from the
interpretation or implementation of the CBA &
the interpretation or enforcement of the
company personnel policies.
It is intended to promote friendly
dialogue between labor and management as a
means of maintaining industrial peace and
therefore considered to be an extension of the
parties to bargain as required by law.

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4.

In what cases is resort to the grievance

machinery a prerequisite or jurisdictional, and
when is it optional?

ANS: The rules that governs voluntary

arbitration is based on the labor code and its
implementing rules & regulations, the CBA, &
other agreement of the parties, the directives
of the arbitrator, & the procedural guidelines in
conduct of voluntary arbitration proceedings.

ANS: Resort first to grievance machinery is

jurisdictional when it is expressly & validly
entered into the CBA. Hence, all grievances
arising from the implementation or
interpretation of the CBA and/or interpretation
& enforcement of company personnel policies Box 18
are compulsory subject to the grievance
1. Concerted activity an activity undertaken by two or
machinery.
more employees, by one on behalf of others.
However, resort to the said grievance
2. Factors to be examined
machinery may be optional when it is proven
to be ineffective in the past, or when the
Factors affecting legality of strike:
parties inadvertently failed to include a
grievance machinery provision in the CBA.
1. Statutory prohibition
5.

Who are voluntary arbitrators? In what sense

are they voluntary? Are their decisions
appealable?

2. Procedural requirements of the law

3. Purpose must be ULP and economic

4. Lawful means and methods

ANS: Voluntary Arbitrators consist of persons
5. Injunction
mostly involved as employees or officials in the
government or in education, civic, and religious
institutions, trade union organizations &
private enterprises.
3. Government Employee may strike?
They are considered to be voluntary in
the sense that they are chosen by the parties
themselves, thus the preferred method of
selection of voluntary arbitrators is by mutual
agreement of the parties.

No. By reason of peculiar character of the public service,

it must necessarily regard the right to strike given to
unions in the private industry as not applying to public
employees.
Moreover, the csc declared that the right to self
organization accorded to government employees shall
not carry with it the right to engage in any form of
prohibited concerted activity or mass action causing or
intending to cause work stoppage or service disruption,
albeit of temporary nature.

6.

As a general rule, decisions of

Voluntary Arbitrator must be accorded with
finality, however, the Supreme Court may take
cognizance a petition for certiorari by the
aggrieved party under Rule 65 of the Rules of
Court which allege a grave abuse of discretion
4. Goodfaith strike doctrine - A strike may be
or an act without or excess of jurisdiction on
considered legal when the union believed that the
the part of the Voluntary Arbitrator.
respondent company committed unfair labor acts and
the circumstances warranted such belief in good faith
What rules govern voluntary arbitration?
although subsequently such allegation of unfair labor

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practices are found out as not true. (Peoples Industrial

and Commercial Employees and Workers Organization
(FFW) v. Peoples Industrial and Commercial Corp. GR
No. 37687 15 March 1982
5. Striker and employer may not do on occasion of
strike.
Prohibited activities [Art.264]
(a) No labor organization or employer shall declare a
strike or lockout without first having bargained
collectively in accordance with Title VII of this Book or
without first having filed the notice required in the
preceding Article or without the necessary strike or
lockout vote first having been obtained and reported to
the Ministry.
No strike or lockout shall be declared after assumption
of jurisdiction by the President or the Minister or after
certification or submission of the dispute to compulsory
or voluntary arbitration or during the pendency of cases
involving the same grounds for the strike or lockout.
(b) No person shall obstruct, impede, or interfere with,
by force, violence, coercion, threats or intimidation, any
peaceful picketing by employees during any labor
controversy or in the exercise of the right to
selforganization or collective bargaining, or shall aid or
abet such obstruction or interference.
(c) No employer shall use or employ any strike-breaker,
nor shall any person be employed as a strike-breaker.

May employer hire workers in place of strikers?

An employer is entitled to carry out his business. But in
unfair labor practice strike, such replacements may not
be permanently employed. In case of defiance of return
to work order, or certification or assumption order, a
hearing is not required for the employer to validly hire
replacement for workers who committed the defiance.
6. What is National interest dispute? In what ways it is
subjected to police power?
Labor dispute involving national interest. When there
exist a labor dispute causing or likely to cause a strike or
lock out in an industry indispensable to the national
interest. The power of (a) assumption of jurisdiction and
decide it or (b) certify the same to the NLRC for
Compulsory arbitration by the secretary of labor is in
nature a police power measure.
7.No Strike-No Lockout Clause valid?
A "no strike, no lock-out" provision in the CBA is a valid
stipulation although the clause may be invoked by an
employer only when the strike is economic in nature or
one which is conducted to force wage or other
concessions from the employer that are not mandated
to be granted by the law itself. It would be inapplicable
to prevent a strike which is grounded on unfair labor
practice. [Panay Electric Co. v. NLRC, 1995; Malayang
Samahan ng mga Manggagawa sa Greenfield v. Ramos ,
2000BLR

(d) No public official or employee, including officers and

personnel of the New Armed Forces of the Philippines
Box 19
or the Integrated National Police, or armed person, shall
bring in, introduce or escort in any manner, any
1. What are the legal limits to a picket? May
individual who seeks to replace strikers in entering or
picketing be conducted without a strike?
leaving the premises of a strike area, or work in place of
the strikers. The police force shall keep out of the picket
Picketing involves the presence of striking workers
lines unless actual violence or other criminal acts occur
of their union brothers who pace back and forth before
the place of business of an employer considered unfair
therein:
to organized labor, in the hope of being able to
persuade peacefully other workers not to work in the
(e) No person engaged in picketing shall commit any
act of violence, coercion or intimidation or obstruct the establishment, and customers not to do business there.
Picketing as a concerted activity is subject to the
free ingress to or egress from the employers premises
same limitations as strike, particularly as to lawful
for lawful purposes, or obstruct public thoroughfares.

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purpose and lawful means. Like the freedom of

expression in general, it has limits. Thus, to the extent
that it is an instrument of coercion rather than a
persuasion, it cannot rightfully be entitled to the
protection associated with free speech.
Picketing almost always accompanies a strike. But
there may be picketing without a strike because
employees may picket without engaging in work
stoppage. Although picketing is a form of concerted
action, not every concerted action is a strike.
2.

A picketing labor union has no right to prevent innocent

bystander from getting in and out of its premises,
otherwise it will be held liable for damages for its act
against innocent bystanders.
3.

What is the recourse of an employer when

employees conduct a group action without
work stoppage? (No answer found in the book,
I just infer this based on the annotations)
The following are concerted actions
without work stoppage:
a) Collective letter;(Republic Savings Bank vs.
CIR)
b) Publicity;
c) Placards and Banners;
d) Wearing of Armbands;(Bascon et al vs. CA
et al)
e) Speeches, Music, and Broadcasts
f) Employees Demonstration to Protest
Police Abuses (Phil Blooming Mills
Employees vs.PBM Inc)
There was no finding by the Court that the
following group action constitutes illegal act. In
fact, per se, they are within the mantle of
constitutional protection under freedom of
speech. Being so, an employer who terminates
employment constitutes illegal dismissal not
being for any of the just or authorized causes.
Therefore, as long as the group action
constitutes a guarantee of the freedom of
speech, the employer has no recourse but to
respect such exercise of right.

4.

When is a group action a strike even if there is

no work stoppage? Is boycott a strike?

What is the recourse of a neutral party being

affected by a picket?

In Philippine Association of Free Labor Unions (PAFLU)

v.
Cloribel,
the
Court,
through
Justice
J.B.L. Reyes, stated the innocent bystander rule as
follows:
The right to picket as a means of communicating the
facts
of
a
labor
dispute
is
a phase of the freedom of speech guaranteed by the
constitution.
If
peacefully
carried out, it cannot be curtailed even in the absence
of
employer-employee
relationship.
The right is, however, not an absolute one. While
peaceful picketing is entitled to protection as
an exercise of free speech, we believe the courts are not
without power to confine or localize the sphere of
communication or the demonstration to the parties to
the labor dispute, including those with related interest,
and to insulate establishments or persons with no
industrial
connection
or
having interest totally foreign to the context of the
dispute. Thus the right may be regulated at
the instance of third parties or innocent bystanders if
it appears that the inevitable result of its exercise is to
create an impression that a labor dispute with which
they have no connection or interest exists between
them and the picketing union or constitute an invasion
of their rights.
Thus, an innocent bystander, who seeks to enjoin a
labor strike, must satisfy the court it is
entirely different from, without any connection
whatsoever to, either party to the dispute and,
therefore, its interests are totally foreign to the context
thereof.

The word strike in its broad

significance has reference to a dispute
between an employer and his workers, in the
course of which there is a concerned
suspension of employment. As a form of labor
activity, it is rarely carried on without the
concomitants of picketing or boycotting. Thus,
a group action is considered a strike even if
there is no work stoppage in instances of picket
and boycott.
The term boycott as applied to
labor unions, is generally understood to ba a
combination to harm one person by coercing
others to harm him-that is, a combination of
many to cause a loss to one person by causing

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others, against their will, to withdraw from him

means or where they attempt to
their beneficial business intercourse through
attain unlawful objectives; or
threats that unless others do so, the many will
When they personally authorized or
cause similar loss to him or them.
participated in the particular acts.
Whether a boycott is a strike or not
depends upon the means or methods to carry
out the boycott. The striking employees not Box 21
only have a right to acquaint the public with
1. What are the kinds of employment and which
the fact of the existence of a strike and the
ones are entitled to the right to security of
cause thereof, but may appeal for sympathetic
tenure?
aid by a request to withhold patronage from
the employer.
The kinds of employment are:
1. Regular employment
2. Casual employment
3. Project employment
4. Seasonal employment
Box 20
5. Probationary employment
6. Fixed-term employment
(but marag pwd ra muingon
1. Who are the strikers that may return to their
og regular and temporary
jobs when the strike is over?
employment)
Those who were discriminatorily

2.

3.

4.

dismissed for union activities; and

Those who voluntarily went on strike
even if it is in protest of an ULP.
Either in economic or ULP strike, the strikers
are not to be paid for the period they were on
strike. What are the exceptions?
Involuntary strikers illegally locked
out; or
Voluntary strikers in ULP strike who
offered
to
return
to
work
unconditionally.
On what grounds may the employment of
strikers be terminated? By whom? When?
Through what process?
An ordinary striking worker cannot be
terminated for mere participation in
an illegal strike. There must be proof
that he committed illegal acts during
strike.
A union officer, on the other hand,
may be terminated from work when
he knowingly participates in an illegal
strike, or when he commits an illegal
act during a strike.
What liabilities may employees incur by
holding a strike?
They may be held liable for damages
where they attempt to attain their
legitimate objectives by unlawful

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The right to security of tenure shall be

enjoyed by employees in all kinds of
employment. (According to Consti and court
rulings. Art 279, which recognizes security of
tenure only to regular employees, is defective.)
(But if dli regular employee, ang security of
tenure kay for a limited period lng pud. Hehe!)
2.

What is project employment? When does a

project employee becomes regular?
A project employment is one
whereby the employment has been fixed
for a specific project or undertaking, the
completion or termination of which has
been determined at the time of the
engagement of the employee or where the
work or service to be performed is seasonal
in nature and the employment is for the
duration of the season.
A project employee becomes a
regular employee when he is repeatedly
rehired and his services continually needed
for a long span of time.

3.

4.

A regular casual employee is one

who has rendered at least one year of
service, whether continuous or broken with
respect to the activity in which he is
employed. He is regular only for that work
activity for which he was hired. His
employment may be on-and-off, but every
time the particular work activity occurs, he
is the one to be rehired. (He is originally a
casual employee. After 1yr he becomes a
regular casual ee)
5.

What are the rights of a probationary

employee?
The following are the rights of a
probationary employee:
1. Security of tenure;
2. To be considered a regular
employee if he is allowed to
work after the probationary
period.

6.

May the employer contract out a regular

job?
Yes, an employer may contract out
a regular job, provided that it is done in
good faith and justified by exigencies of the
business.

What are the kinds of fixed-period

employment
and
under
what
circumstances are they considered valid?
The following are the kinds of
fixed-period employment: (sorry, wla koy
naread nga kinds )
The fixed-period employment shall
be considered valid when:
(1.) it is entered into by the parties
without force, duress or improper pressure
being brought to bear upon the employee
and absent any other circumstance vitiating
consent; or
(2.) it satisfactorily appears that
the employer and the employee dealt with
each other on more or less equal terms
with no moral dominance exercised but he
former or the latter. (Brent Doctrine)

Who is considered regular seasonal and

regular casual employee?
A regular seasonal employee is one
who is called to work from time to time.
During a season they are employed;
temporarily laid off during off-season. They
are not, strictly speaking, separated from
the service but are merely considered on
leave of absence without pay until they are
reemployed.

Box 22

1.

Serious misconduct as a valid

reason of dismissal require a
certain elements. What are those?

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>The misconduct to be serious

must be of such a grave aggravated
character and not merely trivial or
unimportant.
2.

If an employee, on ground of
inconvenience, disobeys and
order transferring him to another
location or job, may such
employee be dismissed?
>In order to constitute a valid
reason to dismiss an employee for
disobeying an order the two
requisite
must
concur
(1)
employees attitude wrongful and
perverse and (2) qualities of the
order lawful, reasonable, made
known to the employee and
pertain to the duties of the
employee when it shown that it is
unnecessary, convenient, and
prejudicial to the displaced
employee such dismissal is valid.

3.

4.

C. It may not be arbitrarily asserted

in the face of overwhelming
evidence to the contrary.
D. it must be genuine, not mere
afterthought to justify earlier
action taken in bad faith.
E. Employee involved holds a
position of trust and confidence.

Is ignorance an excuse for having

violated a company policy or
regulation?
>Yes, ignorance of company policy
or regulation may be an excuse
when the act or omission is not
grave or where the act does not
constitute gross negligence.
Under what conditions or
circumstances may an employee
be dismissed on ground of loss of
confidence?
A. Loss of confidence should not be
simulated
B. It should not be used as a
subterfuge for causes which are
improper illegal/unjustified;

Box 23
1.

In what respects are the authorized

causes and the just causes the same
and different?
Ans. They are the same in the sense that
they are the causes and modes of
termination of employment and differs in
the sense that dismissal for just cause is
where an employee is dismissed for causes
which are attributable to his fault or
culpability while termination for authorized
cause is where an employee is dismissed for
causes independent of his fault.
In just cause a dismissed employee is
not entitled to separation pay while in
authorize cause is entitled to separation
pay.

2.

What are the authorized causes and the

corresponding rates of separation pay?
What authorized cause does not entail
payment of separation pay?
Ans. The following are the authorized
causes and corresponding rates of
separation pay:
a. Automation/Robotics and Redundancy
equivalent to at least one month pay
or at least one month pay for every
year of service, whichever is higher, a
fraction of six(6) months is considered
as one (1) year.

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b.

c.

d.

Retrenchment equivalent to one

month pay or at least one-half month
pay for every year of service, whichever
is higher, a fraction of six (6) months is
considered as one (1) whole year.
Closures or cessation of operations not
due to serious business losses or
financial reverses equivalent to one
month pay or at least one-half month
pay for every year of service, whichever
is higher, a fraction of six (6) months is
considered as one (1) whole year.
Disease- equivalent to at least onemonth salary or to month salary for
every year of service, whichever is
greater, a fraction of at least 6 months
shall be considered one (1) whole year.
The following are the authorized cause
that does not entail payment of
separation pay:
a.

b.

If due to severe business losses or

financial reverses there is no
separation pay due;;
Closure due to an act of
government.

3. How does preventive retrenchment differ from

redundancy?
There is retrenchment where employer
reduces the number of its personnel in order to
prevent further losses in his business operations.
There will be redundancy when for
purposes of economy a company decides to
reorganize its departments by imposing on
employees of one department the duties performed
by the employees of the other department, thus
rendering unnecessary the job of the latter, the
services of the employees whose functions are now
being performed by the former, may be validly
terminated on the ground of redundancy.
4. Explain the four
retrenchment (SINS)

standards

of

valid

a.
b.

c.

d.

The losses expected are substantial and

not merely de minimis in extent;
The apprehended substantial loss are
reasonably imminent, can be perceived
objectively and in good faith by the
employer;
Retrenchment must be reasonably
necessary to prevent the expected
losses; and
Expected or actual losses must be
proved by sufficient and convincing
evidence.

Box 24

1.

In employment termination what does

procedural due process consists of- for the
just causes? For the authorized?
Ans. As a general rule the law requires that
the employer must furnish the worker
sought to be dismissed with two written
notices before termination of employment
can be legally effected.
For termination based on just causes:
a)

a written notice served on the

employee specifying the ground
or grounds for termination, and
giving
to
said
employee
reasonable opportunity within
which to explain his side;
b) a hearing or conference during
which the employee concerned,
with the assistance of counsel if
the employee so desires, is given
opportunity to respond to the
charge, present his evidence or
rebut the evidence presented
against him; and
c) a written notice of termination
served
on
the
employee
indicating
that
upon due

Bukidnon State University College of Law

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consideration
of
all
the
circumstances, grounds have
been established to justify his
termination
For termination of employment based
on authorized causes;
a)

2.

upon service of a written notice

to the employee and the
appropriate Regional Office of
the Department at least thirty
days before the effectivity of the
termination,
specifying
the
ground
or
grounds
for
termination.

If the termination is justified by a valid

cause but done without observance of due
process, is the termination legal?

Generally, no because the law is very clear as to

the due process requirements that an employer who
seeks to terminate the employment of its employee
must notify him in writing at least 30 days before the
intended dismissed.
However, if an employee consented to his
retrenchment
or
voluntarily
applied
for
retrenchment with the employer the required
previous notice to the DOLE is not necessary as the
employee thereby acknowledged the existence of a
valid cause for termination of his employment.

dismissal or diminution in rank, compensation,

benefit and privileges.
There may be constructive dismissal if an act
of clear discrimination, insensibility, or disdain by an
employer becomes so unbearable on the part of the
employee that it could foreclose any choice by him
except to forego his continued employment.
4. Who has the burden of proof in criminal
cases?
The burden of proof rests upon the
employer to show that the dismissal is for
just and valid cause. Failure to do so would
necessarily mean that the dismissed was
not justified and therefore, was illegal.
Box 25
1.

If the termination is based on any

authorized cause, the employee is entitled
to separation pay, and nothing if it is due
to a just cause. What are the exceptions?
As a general rule, employee is not entitled
to separation pay if cause of dismissal is due
to an act imputable to him. Exceptions to
these are as follows, to wit;
a)

If the act committed by the employee

does not amount to serious misconduct
or does not reflect on the employees
moral character, the court may require
the employer to pay as a measure of
social justice, separation pay to the
employee.

3. What is constructive dismissal? Is

preventive suspension exceeding thirty days
considered constructive dismissal?

Constructive dismissal is defined as quitting

because continued employment is rendered
impossible, unreasonable or unlikely, as an offer
involving demotion in rank and a diminution in pay.
Yes, preventive suspension exceeding 30
days is constructive dismissal because constructive
dismissal does not always involve forthright

When the court finds justification in

applying the principle of social justice
well entrenched in 1987 Constitution.

b) On the ground of compassionate

justice.

c)

It is stipulated in the employment

contract or collective bargaining
agreement (CBA), or it is in by
established employer practice or policy.

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2.

in arriving at a complete and just resolution

of the case or to serve the interests of
justice or to avoid dispensing piecemeal
justice. Substantive rights like the award of
backwages resulting from illegal dismissal
must not by a rigid and technical application
of the rules.

What are the kinds of separation pay?

Under the present law and jurisprudence
separation pay may be viewed in four ways
or contexts:
a)

Separation pay as employers statutory

obligation in cases of legal termination
due to authorized causes under Article
283 or 284;

4.

In what situations may reinstatement be

denied even if the termination is invalid?
a)

b) Separation pay as financial assistance,

as an act of social justice, even in cases
where the employee is ordered
reinstated but reinstatement is not
feasible;

c)

Separation pay in lieu reinstatement in

illegal dismissal cases where the
employee is ordered reinstated but
reinstatement is not feasible;

b) Illegally dismissed employee who is

approaching or has reached the
retirement age shall not be ordered
reinstated.

d) Separation pay as an employment

benefit granted in CBA or company
policy.

3.

I f between the time the wrongful

discharged occurred and reinstatement
order was issued, the employers
commercial or financial circumstances
have changed, the court cannot compel
the employer, despite the unfair labor
practice , to reinstate such number of
employees as may exceed his needs
under the altered conditions.

c)

Reinstatement not feasible due to

strained relations.

May backwages be awarded on appeal if

the employee did not appeal its denial?
5.
Earlier court decisions gave different
answers: one ignored technicality adisnd
granted the backwages, the other denied
backwages because of technicality. By 2001
the more liberal decision has prevailed. In
St. Michaels Institute, the court state that,
The NLRC did not
award backwages to the respondents or
that the respondents themselves did not
appeal the NLRC decision does not bar the
Court of Appeal from awarding backwages.
While as a general rule, a party who has
not appealed is not entitled to affirmative
relief other than the ones granted in the
decision of the court below, the Court of
Appeals is imbued with sufficient authority
and disretion to review matters, not
otherwise assigned as or rrors on appeal, if
it finds that their consideration is necessary

In termination disputes, what is

indemnity? May it be imposed in addition
to backwages ?
Indemnity is meant to vindicate or
recognize the right of an employee to due
process which have been violated by the
employer.
The Wenphil doctrine says essentially that a
dismissal for a valid reason is legal and
valid, but the employer who does not
observe procedural due process must pay
some indemnity. As a general rule,
indemnity is imposed for the failure of the
employer to observe due process
requirement as enunciated in the
Constitution. The Serrano ruling which
grants full backwages is not meant to do
away with indemnity to the employee

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whose right to due process was violated;

that is, the indemnity is aside from the full
wages.
Backwages-is based on equity to workers
for earnings lost due to their illegal
dismissal from work.

6.

Is a manager personally liable for the

illegal dismissal of an employee?
As a general rule the manager is not
personally liable for the illegal dismissal of
an employee as enunciated in Sunio
Doctrine.
Generally, officers of a corporation are not
personally liable for their official acts unless
it is shown that they have exceeded their
authority. However, the legal fiction that a
corporation has a personality separate and
distinct from stockholders and meto
evadembers may be disregarded. Where
the incorporators and directors belong to a
single family, the corporation and its
members can be considered as one in order
to avoid its being used as an instrument to
commit injustice, or to further an end
subversive of justice. The shield of
corporate fiction should be pierced when it
is deliberately and maliciously designed to
evade financial obligations to employees.
Directors are guilty of gross negligence or
bad faith in directing the affairs of the
corporation shall be liable jointly and
severally for all damages resulting
therefrom suffered by the corporation, its
stockholders or members or other persons.

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