Labor 2002 Memory Aid

LABOR LAW (STANDARDS AND RELATIONS)
MEMORY AID
LABOR STANDARDS CONDITIONS OF WORK / REST PERIODS: Exempt: Government ees Managerial ees* Members of the family of the employer dependent on him for support Domestic Servants Field personnel if regularly perform duties away from office** * Managerial employees those whose primary duty is management; customarily and regularly directing work of two or more ees, with authority to hire; suggestions given particular weight; includes other officers or members of the managerial staff. ** Field Personnel - non agricultural employees who regularly perform their duties away from the office and whose actual hours of work cannot be estimated with certainty; this includes in its scope unsupervised employees ( Mercidar Fishing Corporation v. NLRC 297 SCRA 440 (1998) NOTE: Those paid by results, piece-work, pakyaw or task basis no longer under the same category as those above (Labor Congress v. NLRC, 290 SCRA 509) Benefits to which Piece Rate Workers are Entitled: Holiday Pay Applicable Statutory Minimum Daily Rate* Night Differential Pay Service Incentive Leave Meal and Rest Periods Overtime Pay* Thirteenth Month Pay Other Benefits *Follows output rate prescribed by DOLE or standard used conforms with Dole output rate. OVERTIME Premium rate for Overtime: Normal 25% ON TOP OF HOURLY RATE Holiday/Rest Day 30% Special Day 30% GR: Overtime compensation cannot be waived Exceptions: 1. When waiver of OT pay is in consideration of benefits and privileges which may be more than the OT pay 2. Voluntarily agrees to work 9 hours 3. No diminution in pay 4. Value of benefits greater or at least equal to 1hr. OT pay during weekdays 5. OT pay due and demandable even if permitted to work Saturdays 6. Work doesn't involve strenuous physical exertion 7. Temporary duration NIGHT SHIFT DIFFERENTIAL (10pm-6am) Does NOT apply to: Government Employees Retail Businesses with less than 5 workers Domestic Helpers Managerial Employees Field Personnel 10%

MEMORY AID
MEAL TIME 60 minutes and above: not counted as working time Less than 60 minutes: counted as working time * minimum 20 minutes PREMIUM PAY FOR WORK ON REST DAYS / SPECIAL DAYS Rest Day 30% Special Day 30% (Nov.1 & Dec. 31) Rest Day falls on Special Day 50% NOTE: For special day: NO WORK, NO PAY Emergency Overtime Work Country at war/National or Local Emergency Completion of work started before the 8th hour Urgent work to be performed on Machines to avoid serious loss or damage to employer Necessary to Prevent loss of life/property or Imminent danger to public safety Necessary to prevent loss or damage to perishable goods Necessary to avail of favorable weather or environmental Authorized Work on a Rest Day: Urgent work to be performed on machinery Actual impending emergency Abnormal pressure or work Prevent loss/damage to perishable goods Nature of work requires continuous operations Analogous situations HOLIDAY PAY Unworked Worked - if also Rest day 100% 200% 260%
NOTE: To avail of Holiday pay, ee should not have been absent without pay on the working day preceding the holiday 1. January 1 2. 3. 4. April 9 5. May 1 6. June 12 7. Last Sun of August 8. Nov. 30 9. Dec. 25 10. Dec. 30 New Year's Day Maundy Thursday Good Friday Araw ng Kagitingan Labor Day Independence Day National Heroes Day Bonifacio Day Christmas Day Rizal Day
Does NOT apply to: Government ees Retail and Service Establishments regularly employing less than 10 Domestic helpers Managerial ees Field Personnel Hourly Paid Faculty Members not also entitled SERVICE INCENTIVE LEAVE - has worked for at least a year - 5 days with pay Does NOT apply to: 2

MEMORY AID
Government employees Already enjoying benefit Domestic Helpers and those in the personal service of another Already with vacation leave with pay of at least 5 days Managerial Employees Field Employees including those in Contract basis Employed in establishments regularly employing less than 10 employees WAGE DISTORTIONS - an increase in prescribed wage rates resulting in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiations Procedure for correcting: 1. With Union - go through grievance procedure - voluntary arbitrators (decide within 10 days from referral) 2. Without Union - Each brings his own grievance - NCMB (10 calendar days => conciliation if unresolved) - NLRC (decide within 20 days from submission) 13TH MONTH PAY Entitled : All Rank & File eesworked at least 1 month Those with Multiple Employers Paid by Result Private School Teachers Resigned or Separated ees (proportional) Minimum Amount : Exempted Employers : Government Employers of Household Helpers Those already paying Employers of paid purely on commission, fixed, boundary or task basis
Not less than 1/12 of total basic salary earned within a calendar year
BASIC SALARY: - for purposes of 13 th mo. pay shall include all remunerations or earnings paid by his employer for services rendered - but does NOT INCLUDE: allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary such as vacation and sick leave credits, overtime, premium night differential, holiday pay and COLA UNLESS by individual or collective agreement or company practice or policy, they are treated as basic salary. VACATION/SICK LEAVE - not required by law, but must be observed when stipulated in a CBA SERVICE CHARGE 85% 15% Covered Employees Management
BONUS - GR : Can't be demanded Exceptions : 1. Given for a long period of time 2. Consistent & deliberate - Employer continued giving benefit 3. Employer knew he was not required to give benefit 4. Employer realizes profits depends if nature of benefit is dependent on profit MEDICAL TREATMENT OF EMPLOYEES GR : First-Aid medicine and equipment made available Training of sufficient Number of Employees to apply First-Aid Treatment 51-200 Employees Full-time registered nurse 3

MEMORY AID
EXCEPT when the employer doesn't maintain hazardous work places (Licensed First-Aider sufficient) 201-300 Employees Full-time Registered Nurse, Part-Time Physician, Dentist & Emergency Clinic 301 or more Full-Time Registered Nurse, Full-Time Physician, Dentist, Dental Clinic, Infirmary/Emergency Hospital with a bed capacity of 1 bed per 100 employees EXCEPT when there is a hospital or clinic accessible from the Employer's establishment AND he makes arrangements for the Reservation of necessary bed and dental facilities Full-Time Physician - at least 2 hours Part-Time Physician - at least 8 hours
Hazardous Work Place
VISITORIAL AND ENFORCEMENT POWER by Secretary of Labor or duly authorized representative 1. Access to employer's records and premises 2. Right to copy records 3. Right to question any employee 4. Investigate any fact, condition or matter which may be necessary to 5. Order and administer, after due notice and hearing, compliance with the Labor Standards provisions 6. Issue writs of execution to the appropriate authority for enforcement of their orders 7. Order stoppage of work or suspension of operations when non-compliance with law and implementing regulations poses grave and imminent danger to the health and safety of workers in the workplace (only Secretary of Labor has this power) Hearing within 24 hours Employer liable for salaries during suspension of operations if found to have caused the violation NO TRO or Temporary/Permanent injunction may be issued by an inferior court over any case involving the enforcement orders issued
RECOVERY of Wages, Simple Money Claims & Other Benefits Jurisdiction: DOLE Regional Director (Summary Proceeding) Claimant : Employee or person in domestic or household service Provided : 1. No claim for reinstatement 2. Aggregate claims of each employee or househelper does not exceed P5,000 * 3. Claims arise from employer-employee relationship * if the claim later exceeds P5,000, Regional Director still retains jurisdiction based on inspection's findings in the nature of enforcement action [Guico v. Secretary of Labor 298 SCRA 666 (1998)] Notice and Hearing Resolution of Complaint within 30 days from filing (Appeal within 5 calendar days to NLRC) NLRC to resolve appeal within 10 calendar days from submission of last pleading Exceptions : Claims for Claims for Claims for Claims for Employee's Compensation Social Security benefits Medicare Benefits Maternity Benefits
NOTE: Regional Director cannot enforce results of Visitorial Power when: 1. Employer contests the findings 2. Issues raised requires examination of evidentiary matters 3. Such matters are not verifiable in the normal course of inspection

MEMORY AID
EMPLOYMENT OF WOMEN Nightwork Prohibition a. Industrial Undertaking b. Commercial or Non-industrial, or branch thereof, other than agricultural c. Agricultural Undertaking 10pm-6am 12am-6am Nighttime, unless given a period of rest not less than 9 consecutive hours
EXCEPTIONS: Actual or impending emergencies to prevent loss of life/property or force majeure or imminent danger to public safety Urgent work to be performed to avoid serious loss to employer Necessary to prevent serious loss of perishable goods Holds a responsible position of managerial or technical nature or engaged to provide health or welfare service Nature of work requires the manual skill and dexterity of women workers and the same cannot be performed with equal efficiency by male workers Immediate members of the family operating the establishment or undertaking Other analogous cases Facilities for Women a. Provide seats proper for women b. Establish separate toilet rooms and lavatories c. Establish a nursery in a workplace for the benefit of the women employees d. Determine appropriate minimum age and other standards for retirement and termination Maternity Leave Benefits Has paid at least 3 monthly contributions in the 12-mo. period immediately preceding the semester of her childbirth or miscarriage Paid only for the first 4 deliveries or miscarriages 100% of average salary credit for 60 days if normal or 78 days if caesarean Woman employee may be married or unmarried NOTE: Paternity Leave RA 8187 male employee entitled to paternity leave of 7 days with full pay for the first 4 deliveries of the legitimate spouse with whom he is cohabiting Family Planning Services, Incentives for Family Planning Maintain clinic or infirmary which shall provide for family planning service Develop and prescribe incentive bonus schemes to encourage family planning among female workers in any establishment/enterprise Discrimination Prohibited ACTS OF DISCRIMINATION: Payment of lesser compensation for work of equal value Favoring over promotion, training opportunities, study and scholarship grants solely on account of their sexes NOTE: - Institution of any criminal action under this shall not bar the aggrieved employee from filing an entirely separate and distinct action for money claims, which may include claims for damages and other affirmative relief - Actions authorized shall proceed independently of each other Void Stipulations Against Marriage - either as a condition for employment (pre) or for continuing employment (post)

MEMORY AID
Prohibited Acts Deny benefits or discharge any woman employed to avoid giving benefits Discharge such a woman on account of her pregnancy or while on leave or in confinement due to her pregnancy Discharge or refuse the admission of such woman upon returning to her work for fear she may again be pregnant MINIMUM EMPLOYABLE AGE Below 15 Years Shall not be employed, except (RA 7610) - when working under directly under the sole responsibility of his parents or guardian and where only membbers of the employers family are employed AND his employment does endanger his life, safety, health and morals, nor impairs his normal development, AND the parent or legal guardian shall provide said minor with the prescribed primary and/or secondary education - childs employment in public and entertainment or information through cinema, theater or radio or television is essential, PROVIDED employment contract is concluded by childs parents or guardian with express agreement of child and DOLE if possible AND employer ensures childs protection, health, safety and morals In undertakings which are NOT hazardous or deleterious No prohibition
15-below 18 18 Years
Hazardous or Deleterious: a. exposes workers to dangerous environmental elements, contaminations, or work conditions including ionizing radiations, chemicals, fire, flammable substances, noxious components and the like b. engaged in construction work, logging, fire-fighting, mining, quarrying, blasting, stevedoring, dock work, deep-sea fishing and mechanized farming c. engaged in the manufacture or handling of explosives and other pyrotechnic products d. exposed to or use of heavy or power-driven machinery or equipment e. use or are exposed to power-driven tools EMPLOYMENT OF HOUSEHELPERS engaged in the employer's home, whose services are usually or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the employer's family 1) Original Contract not more than 2 years 2) If assigned to work in a commercial, industrial or agricultural enterprise, must not be paid lower than agricultural or non-agricultural workers 3) If under 18 years of age, must be given opportunity to finish at least elementary schooling - cost of education shall be part of compensation 4) Treated in a just and humane manner 5) Free : sanitary and suitable living quarters Adequate food Medical attendance 6) Indemnity for unjust termination if Fixed Period of Service Compensation already earned + 15 days 7) If no fixed period, notice of termination must be given at least 5 days prior NOTE: Domestic helper is not one who works for a staff house / rest house; the criteria is that the helper administers to the comfort of the family of the employer in the home of said employer. [Apex Mining Company,Inc. v. NLRC 196 SCRA 251 (1991)] EMPLOYMENT OF HOMEWORKERS D.O. 5 (1992) 6

MEMORY AID
applies to any person who performs industrial homework for an employer, contractor or sub-contractor.
Industrial Homeworker - system of production under which work for an employer or contractor is carried out by a homeworker at his / her home. Materials may or may not be furnished by the employer or contractor. Employer of a Homeworker: - any person who delivers or causes to be delivered any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his direction; or - sells goods, articles for the purpose of having such goods or articles processed in or about a home an d them repurchases them himself or through another after such processing. EMPLOYMENT OF HANDICAPPED / DISABLED WORKERS - Earning capacity impaired by: age physical or mental defects - can be regular if work is usually or necessary or desirable to the business [(Bernardo v. NLRC 310 SCRA 186 (1999 )] 1. When Employable a. necessary to prevent curtailment of employment opportunities AND b. does not create unfair competition in labor costs or impair working standards 2. Employment Agreement shall state/include: c. Names and addresses of the handicapped workers to be employed d. Rate to be paid not less than 75% of applicable legal minimum wage e. Duration of employment period f. Work to be performed by handicapped - the agreement is always subject to inspection by SOLE or duly authorized representative 3. Eligibility for Apprenticeship - If their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired Learners - persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed 3 months When hired may be when no experienced worked available; to prevent curtailment of employment opportunities and employment does not create unfair competition in terms of labor costs or impair or lower working standards duration shall not exceed 3 months Apprentices - practical training on the job supplemented by related theoretical instruction; covered by a written apprenticeship agreement with an individual employer or of the entities recognized in the labor code.
only employers in the highly technical industries may employ apprentices and only in apprenticeable occupations approved by the Minister of Labor and Employment
requires more than 3 months of practical training on the job supplemented by related theoretical instruction must be at least 14 years of age; 7

MEMORY AID
There is a list of learnable trades by Tesda
possess vocational aptitude and capacity for appropriate tests and possess the ability to comprehend and follow oral and written instructions No list

MEMORY AID
LABOR RELATIONS Right to Self Organization The Constitution is the primary basis of workers right to self-organization. Who May Join General Rule: - All persons in commercial, industrial, agricultural, charitable, medical and educational institutions, whether or not operated for profit, shall have the right to self-organization. - This right includes forming, joining, or assisting labor organizations of their choice, for the purpose of collective bargaining. It also includes the freedom from coercion, restraint, and similar acts that impede the forming, joining and assistance of labor organizations for the purpose of collective bargaining and engaging in lawful concerted activities for the same purposes or for mutual aid and protection. - Ambulant, intermittent and itinerant and rural workers, the self-employed and those with no definite employers may form labor organizations for their mutual aid and protection. SPECIAL RULES: A. Managerial and Supervisory Employees Managerial Employee one who is vested with powers or prerogatives to lay down and execute management policies and/or hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. Supervisory Employee one who, in the interest of the employer, effectively recommends such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. Managerial may NOT join, assist, or form any labor organization Supervisory are not eligible for membership in rank and file labor organizations, but may join, assist, or form separate labor organizations of their own.
NOTE: Atlas and Toyota Shaw Cases : supervisors union was not allowed to affiliate itself with the national federation of rank and file employees, since the SC ruled that such would circumvent Art. 245. This is true if the supervisors concerned are directly supervising the work of the rank and file employees and the federation is actively involved in collective bargaining in the establishment. B. Confidential Employees Confidential employees are those who (1) assist or act in a confidential capacity, in regard (2) to persons who formulate, determine, and effectuate management policies, specifically in the field of labor relations. The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee-that is, the confidential relationship must exist between the employee and his superior officer; and that officer must handle the prescribed responsibilities relating to labor relations. [Sugbuanon v. Laguesma, February 2, 2000] Confidential employees cannot form, join, or assist unions only if they assist in a confidential capacity to or have necessary access to confidential matters of, persons who exercise managerial functions in the field of labor relations.
C. Security Guards - they are free to join any union as rank and file or supervisors, depending on their rank.
D. Cooperatives - collective bargaining is not available to a member of a cooperative who is an employee and at the same time a member and co-owner thereof. The rationale for 9

MEMORY AID
this is that one cannot bargain with himself. Only employees who are not members or co-owners of the cooperative have the right to self-organization, collective bargaining, and negotiation. It is the fact of ownership / membership, not the level of involvement (or lack thereof) in actual management that disqualifies a member. E. Government Employees - E.O. 180: government employees have the right to organize and bargain collectively - However, they cannot bargain for higher wages, as such are fixed by law and Congressional appropriation. EO 180: - Applies to all employees of all branches, subdivisions, instrumentalities and agencies of the government including employees of GOCCs with original charters - Can form, join or assist employees organization for furtherance and protection of interest NOT Covered: High-level employees AFP Police Officers Policemen Firemen Jailguards Application filed with the BLR Registration is with the Civil Service Commission or DOLE (CSC Chairman and Dole Sec jointly approve) Petition for Certification Election if filed with the BLR
F. International Organizations - International organizations are immune from legal process thus the DOLE has no jurisdiction over them; however they have the right to organize for the purpose of maintaining mutual and beneficial cooperation between management and employees. [International Catholic Migration v. Ferrer-Calleja, 190 SCRA 130 (1990)] 2 KINDS OF UNIONS (Purpose) 1) For purposes of Collective Bargaining (called "Labor Organization") - any union or association of employees which exists for collective bargaining purposes or for dealing with employers regarding terms & conditions of employment 1) For Mutual Aid and Protection (called "Worker's Association") - an association of workers organized for its members' mutual aid and protection or for any legitimate purpose other than collective bargaining NOTE: Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered an employee for purposes of membership in any labor union
REQUIREMENTS FOR REGISTRATION LABOR ORGANIZATION FEDERATION / NATIONAL WORKERS ASSOCIATION UNION a. Registration Fee In addition to a, b, d and e of a. Registration fee b. Names, addresses of its requirements for Labor b. Names of its 10

MEMORY AID
officers; principal address; minutes of the organizational meetings; list of workers who participated in the meetings c. Names of all its members comprising at least 20% of all the employees in the bargaining unit where it seeks to operate d. Two (2) copies of its financial reports is applicant has been in existence for one or more year e. Four (4) copies of the Consti and By-laws (CBL), minutes of its adoption or ratification and a list of members who participated therein ~ all requisite documents shall be certified under oath by the Secretary/Treasurer and attested by the President
Org: a. Resolution of affiliation of at least 10 locals or chapters (all duly recognized Collective Bargaining agents) b. Names and addresses of the companies where the locals/chapters operate plus list all members in each company involved
members, their addresses, principal office of applicant, minutes of organizational meetings, and names of individual members who attended such meetings c. Copy of constitution and by-laws duly ratified by majority of individual members
CHARTERING - Issuance by Federation of charter certificate to a local/chapter - copy of which shall be submitted to BLR within 30 days from issuance - in addition submit CBL and set of officers - books of accounts are no longer required AFFILIATION of Independently Registered Union - file with Regional Office or BLR 2 copies of verified resolution of affiliation, ratified by a majority of the members of the union, and a resolution of acceptance of by the federation / industry union Local/Chapter becomes an LLO only upon submission of the ff. to the BLR / Regional Office: a. a charter certificate (Within 30 days from issuance) b. CBL and statement of officers - books of account are no longer required NOTE: An independently registered labor organization, on the other hand, becomes an LLO only upon the issuance of the certificate of registration. GROUNDS FOR CANCELLATION OF UNION REGISTRATION Misrepresentation, False Statement or Fraud in connection with : a. adoption/ratification of the CBL or amendments thereto, minutes of ratification and the list of members who took part in the ratification b. election of officers, minutes thereof, list of officers/voters c. in the preparation of the financial reports Failure to Submit : a. CBL, minutes of its adoption/ratification, list of members ho took part within 30 days from adoption of ratification or amendments thereto b. Minutes of the elections of officers, list of officers/voters within 30 days from election c. Annual financial report to the BLR within 30 days after the closing of every fiscal year d. List of individual members to the BLR once a year or whenever required by the BLR 11

MEMORY AID
Acting as labor contractor or engaging in the 'Cabo System' or otherwise engaging in any activity prohibited by law Entering into CBAs with terms and conditions of employment below minimum standards established by law Asking for or accepting attorney's fees or negotiation fees from employer Checking off special assessments or any other fees without duly signed individual written authorizations of the members (other than for mandatory activities under the labor Code) RIGHTS AND CONDITIONS OF MEMBERSHIP A. POLITICAL RIGHTS 1. Officers Directly elected 2. No person convicted of crime involving moral turpitude shall be eligible to be an officer of union 3. Officers shall not be paid any compensation other than salaries and expenses due to their positions as authorized by CBL or written resolution of majority B. DELIBERATIVE &DECISION MAKING RIGHTS 1. Determination by secret ballot, any question of major policy 2. No admission of individuals who are members of subversive organizations RIGHTS OVER MONEY MATTERS 1. No arbitrary, excessive oppressive fines and forfeiture 2. No collection of fees, dues NOR disbursements unless duly authorized pursuant to CBL 3. All payment of fees, dues, contributions evidenced by receipt and entered into records 4. Funds shall not be applied for any purpose other than expressly provided in CBL or authorized by majority of members at general meeting 5. No special assessment or other extraordinary fees may be levied unless authorized y written resolution of majority 6. Other than mandatory activities, no special assessment, atty.'s fees, negotiation fees or any other extraordinary fees may be checked from any amount due to an employee without individual written authorization Requisites for valid levy of a special assessment through check off: 1. authorization by a written resolution of majority of all the members at the general membership meeting called for the purpose 2. secretarys record of the minutes of the meeting NOTE: From what fund union can check off its attorneys fees: The union should be made to shoulder the expenses incurred for the services of its lawyers and accordingly, reimbursement should be charged to the unions general fund or account. No deduction can be made from the salaries of the concerned employees other than those mandated by law. D. RIGHT TO BE INFORMED 1. Full and detailed report of all financial transactions 2. All income and revenue evidenced by a record and every expenditure evidenced by a receipt 3. Treasurer and Officers render a true and correct account of all moneys received and paid : Since assuming office Since last accounting At least once a year w/ in 30 days from close of fiscal year Other times as required by written resolution of majority 4. Books of account and financial records open to inspection by officer/member during office hours 5. Duty of labor organization to inform members of contents of CBL, CBA and their rights and obligations under existing labor laws *Protest on Election of Officers Formalized before Med Arbiter within 5 days from close of Election Proceedings Decided within 20 working days
C.
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MEMORY AID
INTRA-UNION DISPUTES General Rule :Relief must first be sought within the union itself in accordance with its CBL which must be alleged in the petition Exceptions : Futility of intra-union remedies Improper expulsion procedures Undue delay as to constitute substantial injustice Action for damages Lack of jurisdiction of the investigating body Action of the administrative agency is patently illegal, arbitrary and oppressive Issue involved is purely a question of law Administrative agency has already prejudged the case Administrative agency was practically given opportunity to act on the case but did not *Requirement for a complaint for Violation of by-laws and rights and conditions of membership: Minimum of 30% of the members of the Labor Organization Except : when such violation directly affects only 1 or 2 members, then such number would be enough to report the violation and seek redress with the CIR VISITORIAL POWER Who : Sec of DOLE or duly authorized representative Re : Inquire into Financial Activities of LLO Cause : Complaint under oath supported by the written consent at least 20%of LLO's total membership Prohibited : 1. 60 day freedom period 2. within 30 days immediately preceding election of union officers DISAFFILIATION, requisites General Rule : Only during the 60 day freedom period & effected by a majority of the members of the bargaining unit Exception : Outside the freedom period but must still be supported by a majority of the members of the disaffiliating union who must remain bound by the CBA until the CBA's expiration date. Substitutionary Doctrine - employees cannot revoke the validity of a validly executed CBA with their employer by the simple expedient of changing their collective bargaining agent - the new agent must respect the subsisting CBA - employer cannot renege on the CBA, except to negotiate with the management for the shortening thereof - Inapplicable to personal undertaking of deposed union; e.g. : no strike stipulation RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS Act as the representative of its members for the purpose of collective bargaining Certified as the exclusive bargaining representative of all employees in an appropriate collective unit for purposes of collective bargaining Furnished with the annual audit financial statements of employer Own property (real/personal) for the use and benefit of its members and the labor organization Sue and be sued in its registered name Undertake all other activities designed to benefit the organization and its members, including cooperative, housing welfare and other projects not contrary to law Collect reasonable membership fees, union dues, assessments and fines and other contributions UNION SECURITY CLAUSE - union can determine membership and prescribe conditions for its acquisition and retention
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MEMORY AID
cannot be used by union officials against an employer, much less their own members except with a high sense of responsibility, fairness and judiciousness
CLOSED SHOP - only union members can be hired and workers must remain union Workers/members to retain employment UNION SHOP - non-members may be hired, but to retain employment, must become union members within a certain period thereafter MODIFIED UNION SHOP - employees who are not union members at the time of the signing of the contract need not join the union, but all workers hired thereafter should join MAINTENANCE OF MEMBERSHIP - no employee is compelled to join the union, But all present or future members must, as a condition of employment, remain in good standing with the union
EXCLUSIVE BARGAINING SHOP - the union is recognized as the exclusive bargaining agent for all employees, whether union members or not BARGAINING FOR MEMBERS ONLY - the union is recognized as the bargaining agent only for its own members AGENCY SHOP - an agreement whereby employees must either join the union or pay to the union as the exclusive bargaining agent a sum equal to that paid by the members. This is directed against the "free rider" employees who benefit from union activities without contributing to union support o prevent a situation of non-union members enriching themselves at the expense of union members. PREFERENTIAL SHOP - agreement wherein management undertakes to give preference to union members in the hiring of employees, whether or not as regulars HIRING HALL - agreement wherein lost of employees are given a chance to determine who to employ/regularize GR:: All employees in the bargaining unit covered by the union security clause are subject to its terms
Exceptions: Any employee who at the time the agreement takes effect is a bona fide member of a religious organization which prohibits its members from joining labor unions on religious grounds Employees already in the service and already members of a labor union or unions other than the majority union at the time the agreement took effect Supervisors ineligible under the Act to join the majority union because of the membership therein of employees under their supervision Employees excluded from the agreement by express terms UNFAIR LABOR PRACTICES acts opposed to workers' right to organize 2 Elements : 1. Employer-employee relationship between the offender and offended 2. Act done is expressly defined in the Labor Code as ULP REMEDIES: 1. Civil Aspects - Labor Arbiter who shall resolve within 30 calendar days from submission for decision - recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code 14

MEMORY AID
substantial evidence enough
2. Criminal Aspects - Must be proved independently from labor case - Prosecution not possible until after finality of judgment in the labor case - Admin/civil judgment not evidence of ULP insofar as the criminal case is concerned - During the pendency of admin proceeding, the running of prescription of criminal offense shall be interrupted ULP OF EMPLOYERS 1. Restraint, interference or coercion in their exercise of the right to self-organization; - tendency to interfere is enough; actual interference need not be proved. [ Insular Life case] - no excuse that conduct was unintentional and innocent; however good faith can be a defense by the employer - Totality of Conduct Doctrine : culpability of employer's remarks were to be evaluated no only on the basis of their implicit implications, but were to be appraised against the background of and in conjunction with collateral circumstances (history of employer's labor relations + anti-union bias) - Doctrine of Successor-Employer : new company will be treated as a continuation or successor of the one that closed in the new or take-over company is engaging in the same business as the closed company or department, or is owned by the same people, and the "closure" is calculated to defeat the worker's organizational right in which case the closure may be declared a subterfuge *Factors to Determine Continuity : a. Retention of control b. Use of the same plant or factory c. Use of the same or substantially the same employees, workers, supervisors or managers d. Similar or substantially the same work or production under similar or substantially the same working conditions e. Use of the same machinery and equipment f. Manufacture of the same products or the performance of the same services 2. Yellow Dog Contract - contract whereby an employee agrees that during the period of his employment he will not become a member of a labor union 3. Contracting out - services or functions being performed by union members - determining factor : motivation *Runaway Shop : industrial plant moved by its owners from one location to another to escape union labor regulations or state laws; a plant removed to a new location in order to discriminate against employees at the old plant because of their union activities
4. Discrimination (wages, hours of work, other terms & conditions of employment) - Purpose : to encourage /discourage membership in any labor org'n 5. Indirect discrimination against someone who has filed charges or for having given or about to give testimony against the employer under the Labor Code 6. Violation of duty to Bargain 7. Pay negotiation or attorney's fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute. 8. Violation of the CBA - Flagrant & malicious refusal to comply with the economic conditions or provisions thereof
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MEMORY AID
9. Initiates, dominates, assists otherwise interferes with the formation or administration of any labor organization including the giving of financial or other support to its organizers or officers RELIEF IN ULP CASES - not subject to compromise Cease and desist order where : Restrained conduct was an issue in the case There was a finding of fact on said misconduct Finding of fact supported by evidence Reinstatement, Payment of Backwages Disestablishment - withdrew all recognition from the dominated labor union Order to bargain ULP OF LABOR ORGANIZATIONS 1) Restraint, interference or coercion in their exercise of the right to self-organization - Mere tendency to interfere is enough 2) Causes employer to discriminate between union and non-union members or members of another union 3) Violation of duty or refusal to bargain collectively 4) Featherbedding : 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 5) Accept/ask for negotiation or attorney's fees from employers as part of the settlement of any issue in collective bargaining or any other dispute 6) Gross violation of CBA (if not gross, not ULP) - Flagrant & malicious refusal to comply with the economic conditions or provisions thereof DUTY TO BARGAIN COLLECTIVELY: Participation of Workers in Policy and Decision Making - workers shall have the right subject to such rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy & decision making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits, and welfare pursuant to this, Labor-Management Councils may be formed Bargaining unit - group of employees of a given employer comprised of all or less than all of the entire body of employees, which the collective interests of all he employees, consistent with equity to the employer, indicate to be the best suited to serve the reciprocal rights and duties of the parties under the CBA Exclusive Bargaining Representative - labor organization designated or selected by the majority of the employees in an appropriate bargaining unit - despite having an EBR, an individual employee or group of employees shall have the right at anytime to present grievances to their employers SELECTION OF BARGAINING REPRESENTATIVE: Voluntary Recognition in unorganized establishments, the employer may voluntarily recognize the representation status of a union.
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MEMORY AID
Within 30 days from recognition, the employer representative and union president shall submit to the Regional Office a joint statement, under oath, attesting to the fact of voluntary recognition, which shall also include: a) proof of posting of the joint statement b) approximate number of employees in the bargaining unit, accompanied by the names and signatures of at least majority of the members of the bargaining unit supporting voluntary recognition c) statement that there is no other legitimate labor organization operating within the bargaining unit. Consent Election - election voluntarily agreed upon by the parties to determine issue of majority representation of all workers in the appropriate collective bargaining unit - where a petition for CE had been filed and, upon the intercession of the Med-Arbiter, the parties agree to hold a consent election, the results thereof shall constitute a bar to the holding of a CE for one year from the holding of such consent election - where no PCE had been filed but the parties have agreed to hold a consent election, the results thereof shall not constitute a bar to another CE, unless the winning union had been voluntary recognized. Certification Election -process of determining, through secret ballot, the sole and exclusive bargaining unit for purposes of collective bargaining . - Requirement for valid election: majority of all eligible voters cast their votes - Union to be certified: labor union receiving majority of the valid votes cast Organized Establishment exclusive bargaining agent - a firm or company where there is a recognized or certified
NOTE: Determination of organized establishment status should be at the bargaining unit level. Hence, an establishment may be considered organized insofar as the rank and file unit is concerned but not organized insofar as the supervisory unit is concerned. Representation Officer - person duly authorized to conduct and supervise certification Elections PETITION FOR CERTIFICATION ELECTION A. ORGANIZED ESTABLISHMENT (w/ CBA) What: verified petition for questioning the majority status of the incumbent bargaining agent Who files: legitimate labor union or employer when requested to bargain collectively When filed:W/ CBA : within the 60 day freedom period before the expiration of the CBA W/O CBA: anytime except certification year rule OR deadlock-bar rule With whom filed: DOLE (Regional Office) Requisite: written consent of at least 25% of all employees in the bargaining unit o Labor Code, 25% not a requisite, but makes conduct of CE mandatory if submitted o IRR, 25% is a requisite, absence of such is a ground for dismissal of the petition. NOTE: even if 25% is not achieved, if Med arbiter feels there is a representation achievement, Med Arbiter may still order conduct of CE [ California Manufacturing v. Laguesma 209 SCRA 606 (1992)] B. UNORGANIZED ESTABLISHMENT (no CBA) 1) petition by a legitimate labor organization (no 25% requirement) 2) employer when requested to bargain collectively PROCEDURE: Petition with decided w/in 20 file appeal with Regional Office 15 days to decide; Med-Arbiter working days but it is Secretary who decides Decision final & unappealable Petition where no CBA : anytime Except - within 1 yr. From date of issuance of a final certification election result - after bargaining deadlock has been submitted (to which an incumbent 17

MEMORY AID
bargaining agent is a party) to conciliation/arbitration or became subject of valid notice to strike or lockout Run-off election (within 5 calendar days from close of election) 3 or more choices o results of election - no choice received majority of valid votes cast o total # of votes for all contending unions at least 50% of total votes cast THUS: conducted between labor unions receiving the 2 highest number of votes Presumption: valid election, i.e. majority of eligible voters voted CONDUCT OF CERTIFICATION ELECTION 1. notice of at least 5 working days before actual date (2 most conspicuous place) 2. election proper - any party in interest may protest to be recorded in the minutes, otherwise, it is deemed waived (Protests must be formalized with Med-Arbiter within 5 days from close of election proceedings) a. If no protest, election officer proclaims and certifies result b. When a protest is perfected or any challenge or eligibility issue raised, only the Med-Arbiter can proclaim and certify the winner within 20 working days from filing Contents of Notice : 1. date of election 2. names of contending parties 3. description of bargaining unit 4. list of eligible voters all employees in bargaining unit can vote CHALLENGE: before employees cast vote Abstention not valid vote
FOUR (4) BARS to holding a Certification Election: 1) ONE YEAR BAR (certification year) - w/in 1 yr. from issuance of a final certification election result Exception: unusual circumstances exist as when a change in the structure of the membership of the contracting union occurs in such a way that a reasonable doubt arises as to whether it remains the labor union which the employees desired to represent them in the first place with an accompanying change in the officials, constitution, by-laws, and bargaining authority of the contracting union. NOTE: Even if there is no winner in an election (no choice received majority of valid votes cast) or the no union choice won, the election, as long as it is valid (majority of eleigible voters voted) will be a bar for one year. 2) DEADLOCK BAR - during the existence of a bargaining deadlock to which an incumbent or certified bargaining agent is a party and which had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lock-out 3) CONTRACT BAR - during the existence of CBA; CBA need not be certified, need only to be registered under Art. 231 - Applies as well after the lapse of the 60 day freedom period when old CBA is extended until a new one is signed Exception: within the freedom period 4) NEGOTIATIONS BAR -- when the duly recognized or certified union has commenced negotiations with the employer in accordance with Article 250 of the Labor Code within the one-year period of a certification year
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MEMORY AID
* REFUSAL TO BARGAIN BAR - Since law proscribes conduct of CE when there is a bargaining deadlock submitted to conciliation or arbitration, with more reason should it not be be conducted if, despite attempts to bring an employer to the negotiation table by the certified bargaining agent, there was no reasonable effort in good faith on the part of the employer to bargain collectively. [Capitol Medical Center v. Laguesma 267 SCRA 503 (1997)] Registration of CBA with BIR Regional office - 5 copies within 30 cd from execution with verified proof of : a) posting in 2 conspicuous places b) ratification by majority of all workers Regional office -- 2 copies; NCMB -- 1 copy; BLR -- 2 copies - registration fee of P1000.00 --- employer's cost - certificate of registration within 5 cd from receipt of agreement TERM OF CBA : 5 years as to the representation aspect Renegotiation of provisions other than representation aspect - not later than 3 years after its execution
Bargaining Negotiations: Request to Bargain by union => Counter-Proposal w/in 10 cal days or reasonable period of time NOTE: There is nothing that says the arbitral awards or renewals of CBAs shall always have retroactive effect. In the case of Meralco v. Secretary of Labor , (February 2000) the Court issued the resolution that: where an arbitral award is granted beyond six months after the expiration of the existing CBA, and there is no agreement between the parties as to the date of effectivity thereof, the arbitral award shall retroact to the first day after the six month period following the expiration of the last day of the CBA. In resolving the motions for reconsideration in this case, the Court took into consideration the fact that petitioner belongs to an industry imbued with public interest and cannot ignore the enormous cost in case of full retroaction of the arbitral award. Balancing this with the interests of social justice; the arbitral award in this case would retroact to the first day after the sixmonth period following the expiration of the last day of the CBA. Parenthetically, during the period between the expiration of the economic provisions and the date of effectivity of the arbitral award, the hold-over principle shall govern. (Manila Electric Company v. Secretary of Labor G.R. No. 127598, August 1, 2000). STRIKES, LOCKOUTS AND CONCERTED ACTIONS Strike : any temporary stoppage of work by concerted action of employees as a result of an industrial labor dispute (mass resignation: not a strike) Lockout : 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 violation of or disagreement over any provision of the constitution and by-laws of a union, including any violation of the rights and conditions of union member ship provided for in this Code Strike Breaker -- any person who obstructs, impedes, or interferes with by force, violence, coercion, threats, or intimidation, any peaceful picketing by employees during any labor controversy affecting wages, hours, and conditions of work or in the exercise of the right of self-organization or collective bargaining Strike Area : -- establishment, warehouses, depots, plants or offices, including the sites or premises used as run-away shops of the employer struck against as well as the 19

MEMORY AID
immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment Valid Purpose for Concerted Activities 1) collective bargaining 2) mutual benefit and protection Grounds for strikes and lockouts : Deadlock [after reasonable efforts] ULP [good faith of the strikers as to the existence of ULP is sufficient, depending on circumstances] * violations of CBA that are not flagrant and/or malicious refusal to comply with its economic provisions are not ULP; not strikeable Personality : LLO or recognized bargaining agent in case of economic strike 1. NOTICE OF STRIKE : Bargaining deadlocks ULP Cooling off period 30 days 15 days Dispensed with if duly elected officer of union is dismissed such as to constitute union busting Duty of DOLE to exert all efforts at mediation and conciliation to effect a voluntary settlement 30 day/15 day cooling off period mandatory except : cases of union-busting 7-day strike ban mandatory
2. STRIKE VOTE: decision must be approved by a majority of the total union membership in the bargaining unit concerned obtained by secret ballots in meetings or referenda called for that purpose (or of the BoD of the corp. case of a lockout) 3. REPORT OF STRIKE VOTE RESULTS: DOLE must be furnished with the results of the voting at least 7 days before the intended strike or lockout subject to the cooling off period (7 day strike ban) DOLE informed of meeting 24 hours before Assumption of Jurisdiction by Secretary of Labor (resolved within 30 calendar days) 1. Discretionary ~ In his opinion there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest may certify the same to the commission for compulsory arbitration Effect: automatically enjoins the intended on impending strike or lockout but if one has already taken place, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and re-admit all workers under the same terms and conditions prevailing before the strike or lock-out 2. Mandatory: (within 24 hours) ~ In labor disputes adversely affecting the continued operation of hospitals, clinics, or medical institutions Duty of striking union or locking out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, where movement and service shall be unhampered and unrestricted as are necessary to insure the proper
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MEMORY AID
and adequate protection of the life and health of its patients most especially emergency cases for the duration of the strike or lock-out President of the Philippines : may determine the industries, which are in his opinion indispensable to national interest. He may intervene at any time and assume jurisdiction over any such labor dispute in order to settler or terminate the same *Decision of the President, Secretary of labor, NLRC => final and executory after receipt thereof by the parties NOTE: Before the SOLE may take cognizance of an issue which is merely incidental to the labor dispute, the same must be involved in the labor dispute itself, or otherwise submitted to him for resolution. [St. Scholasticas College v. Torres 210 SCRA 565 (1992) ] PROHIBITED ACTIVITIES 1) strike or lock-out without first having bargained collectivelystrike or lock-out without the necessary notice being filed with the DOLE 2) strike or lock-out without the necessary vote first having been obtained and reported to the DOLE 3) strike or lock-out after DOLE has assumed jurisdiction or the President or after certification or submission of dispute to the compulsory arbitration/voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout 4) knowingly participating in illegal strike/knowingly participates in the commission of illegal acts during a strike ground for termination of employment 5) obstruct, impede, or interfere with by force, violence, coercion, threats, or intimidation any peaceful picketing by employees during any labor contriversy or shall abeit or aid such obstruction or interference 6) employment or use of any strikebreaker/ employed as a strike breaker 7) bringing in, introducing, or escorting by any public officer or employee, including officers and personnel of the AFP or PNP, or any armed person in any manner of any individual who seeks to replace strikers in entering or leaving the premises of a strike area or work in place of strikers 8) commit any act of violence, coercion or intimidaion while engaged in picketing or obstruct the ingress or egress from the employer's premises for lawful purposes or obstruct public thoroughfares (must be pervasive and widespread/consistently and deliberately resorted to as a matter of policy) **See Sec. 7 (g) of D.O. 10; now Sec. 6 (e) of DO 18 regarding prohibition on contracting out a job, work or service directly related to the business or operation of the principal by reason of a strike or lockout whether actual or imminent. NOTE: If violence is only in small scale, strike is still valid and only perpetrators are accountable; if violence is in large scale, the strike is rendered illegal. EFFECTS OF ILLEGAL STRIKE The following may be deemed to have lost employment status: - Union officer who knowingly participates in an illegal strike - Member who participaates in the commission of illegal acts NOTE: Members of a union cannot be held responsible for an illegal strike on the sole basis of such membership or even on account of their affirmative vote authorizing the same. They beome liable only if they actually participated therein. During strike: No work, no pay Exceptions: 1. there is a return to work order and employer does not accept them; strike continues 2. ULP due to union discrimination, termination of ees, discriminated employees discharged should be paid NOTE: Violation of return to work order can be validly dismissed
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MEMORY AID
Improved Offer Balloting ~ Referendum by the DOLE on the improved offer of the employer or on the reduced offer of the union (on or before the 30 th day of the strike or lock-out) where at least a majority of the union members/BOD, trustees, or the partners holding the controlling interest vote and accept the improved/reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement Requirement for Arrest, Detention of Union Members/Organizers for union Activities GR: previous consultations with the Secretary of Labor Exception: grounds of national security and public peace : in case of commission of a crime GUIDELINES FOR THE CONDUCT OF THE INP/AFP PERSONNEL DURING STRIKES/LOCKOUT AND LABOT DISPUTES IN GENERAL** Involvement limited to the : a) maintenance of peace and order b) enforcement of laws and legal order of duly constituted authorities c) performance of special functions as maybe provided by law 1) elements of the Police Force should first be called upon to render assistance 2) when it is unavailable or inadequate, CAPCOM or METRODISCOM may call upon the Constabulary to render assistance 3) personnel from the army, Navy, or Air Force only when directed by the President or personally by the Secretary of National Defense upon consultation with the Secretary of Labor and Employment or when requested by the latter. *Personnel related by affinity or consanguinity within the 4 th civil degree to any official/leader of the parties in the controversy or has any financial or pecuniary interest therein - not allowed to render services in connection with a strike or lock-out PEACE-KEEPING DETAIL personnel detailed shall be in uniform, with proper namecloth at all times, personnel shall observe strict neutrality in his dealings with both parties to the controversy stationed such that their presence may deter commission of criminal acts from either side maintain themselves outside a 50 meter radius from the picket line except if the 50 meter radius includes a public thoroughfare, they may station themselves in such public thoroughfares for the purpose of insuring the free flow of traffic ARRESTS/SEARCHES AND SEIZURES effected only on the basis of an existing and valid warrant any person who obstructs the free and lawful ingress to and egress from the employer's premises or who obstructs public thoroughfares may be arrested and accordingly charged in court as well as any person who shall have in his possession deadly weapons in violation of BP Blg. 06 such as knives, bolos, blunt or pointed instruments and firearms or explosives in violation of PD 1896 Service of DOLE, Court or Lawful Orders/Writs primary concern of the DOLE representatives, sheriff, representative of the govt. agency issuing the order respectively role of the AFP/INP is only supportive Administrative Jurisdiction determination of whether a strike, picket or lock-out is legal or not should be left to DOLE personal escort only upon direction of competent authority other party shall be informed accordingly all escorts shall be in uniform at all times
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MEMORY AID
Socializing/Liaison discouraged from socializing with any of the parties involved during the pendency shall not, under any pretext, accept an invitation from either of the parties liaison established and maintained with representatives of DOLE, mgmt., and union for the purpose of maintaining peace and order as well as to maintain a continuing peaceful dialogue Administrative Action all complaints/reports leveled against any personnel of the INP/AFP on the occasion of strike/lock-out shall be acted with dispatch whenever applicable, and if the evidence so warrants, appropriate disciplinary action shall be takes against the erring personnel JURISDICTION OF VOLUNTARY ARBITRATORS 1. Original and Exclusive all unresolved grievances arising from the interpretation or implementation of the CBA those arising from the interpretation or enforcement of company personnel policies 2. All other labor disputes AGREED to be referred to it by the parties Grievance machinery, Final after if unsettled after 7 calendar days from submission Automatically referred to Voluntary Arbitrator within 20 calendar days Award to be made 10 cal days
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MEMORY AID
TERMINATION OF EMPLOYMENT SECURITY OF TENURE applies to all establishment or undertakings whether for profit or not CLASSES OF EMPLOYEES 1. REGULAR - engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer - may be terminated only for just / authorized causes 2. PROBATIONARY General Rule: Not Exceed 6 mos. EXCEPT: a) covered by an apprenticeship agreement stipulating a longer period b) voluntary agreement of parties (especially when nature of work requires a longer period) c) the employer gives the employee a second chance to pass the standards set *May be terminated: a) just / authorized causes b) when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to employee at the time of his engagement - if allowed to work after the probationary period, he shall be considered a REGULAR employee 3. PROJECT - one whose employment has been fixed for a specific project or undertaking the completion of which has been determined at the time of engagement of the employee (SO EVEN IF MORE THAN I YR., NOT NECESSARILY REGULAR) *becomes regular if: a. Job is usually necessary or desirable in the usual business or trade AND b. Repeated rehiring - must be for the same or similar tasks; vital and indispensable to the business (Maraguinot case) 4. SEASONAL - one whose work or services to be performed is seasonal in nature and the employment is for the duration of the season 5. CASUAL - activity performed is not usually necessary or desirable in the usual business or trade of the employer, not project and not seasonal - EXCEPT: if he has rendered at least 1 year of service, whether such service is continuous or broken = considered a REGULAR employee with respect to the activity in which he is employed and his employment shall continue while such activity exists - May be terminated with or without just cause 6. FIXED TERM Allowed if: - period is agreed upon knowingly and voluntarily by the parties without force, duress, or improper pressure exerted on the employee - satisfactorily appears that employer and employee dealt with each other on more or less equal terms with no moral dominance exercised by the employer on the ee - term employment is not resorted to defeat the rights of the workers rights
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MEMORY AID
TERMINATION JUST CAUSES GROUNDS 1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work (work-related)-It is not merely the FAILURE to obey, but it MUST be a WILLFULL AFFRONT to the employers authority. The requisites are: a.) A lawful order b.) Employee knows of the order. c.) Order is work related. 2. Gross and habitual neglect by the employee of his duties-BOTH gross and habitual; must concur together. Previous infractions by the employee should have been acted upon appropriately by the employer before terminating the former. 3. Fraud or willful breach by employee of the trust reposed in him by his employer or duly authorized representative (not mere suspicion)-For rank and file workers, there must be an OVERT/ACTUAL ACT; furthermore, the worker should have been entrusted with the custody of money of property by the employer. For managerial/confidential employees, acts ARE NOT necessary; MERE CIRCUMSTANCES tending to show loss of confidence are enough. 4. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or duly authorized representative-A criminal case need not be actually filed. Commission of acts constituting a crime is sufficient. 5. Other causes analogous to the foregoing-Immorality; For private sector employees, it can only be grounds if it is work related/affects work. For public sector employees, immorality is sufficient cause for termination. Sexual Harrasment-Commision of acts constituting such is enough; a criminal case need not be filed. NOTE: Sexual harrasment (used in ordinary sense) may still be a ground for termination even if it will not fall under the restrictive definition of sexual harrasment under 7877. AUTHORIZED CAUSES GROUNDS 1. Introduction of labor-saving devices - view to effecting more economy and efficiency in its method of production 2. Redundancy - exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise - a position has become superfluous as an outcome of a number of factors such as overhiring of workers, decreased volume of business, dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise (THUS IT ONLY REQUIRES SUPERFLUITY NOT DUPLICATION OF WORK) - The redundancy SHOULD NOT have been created by the EMPLOYER. 3. Retrenchment - resorted primarily to avoid or minimize business losses - criteria of who to lay off (1) less preferred status (2) efficiency rating (3) seniority (4) performance (5) Last in-first out (optional) Standards of retrenchment a. losses expected should be substantial and not merely de minimis in extent
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MEMORY AID
b. c. d. e.
Substantial is a relative term, depending on the size and overall profitability of the company. LOSSES are defined a companys NET INCOME in its financial statements being NEGATIVE. substantial loss apprehended must be reasonably imminent retrenchment must be reasonable necessary and likely to effectively prevent the expected losses (very difficult to justify retrenching just one person) alleged losses, if already realized, and the expected imminent losses sought to be forestalled, must be proven by sufficient and convincing evidence The company should have undertaken other cost-cutting means before retrenchment. I.e., retrenchment is the final option.
4. Closure of business as a result of grave financial loss 5. Closure not due to losses. -In cases of closure, it must NOT be in BAD FAITH. The standard for determining such is the TOTALITY OF CONDUCT doctrine. * Ailment or disease (other authorized causes: non-economic ground) - when his continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees - there is a certification by a competent public health authority that the disease is of such nature or at such stage that it cannot be cured within a period of 6 months even with proper medical treatment NOTICE AND SEPARATION PAY - written notice served on the worker and the DOLE at least 1 month before the intended date thereof Separation Pay: - Installation of labor-saving devices - Redundancy 1 month pay or 1 month pay for every year of service whichever is higher. NOTE: 1 month pay for every year is always higher if the employee has served for more than 1 year. 1 month pay or at least 1/2 month pay for every year of service whichever is higher
Retrenchment to prevent losses closures or cessation of operations of establishments or undertaking NOT due to serious business losses or financial reverses - disease ** A fraction of at least 6 moths shall be considered as one year.
BACKWAGES - granted on grounds of equity for earnings which a worker has lost due to his illegal dismissal. - full backwages are to be awarded to an illegally dismissed employee and should not be diminished or reduced by earnings derived elsewhere DUE PROCESS 1. written notice containing a statement of the causes for termination 2. a hearing or conference where the employee, who may be assisted by counsel if he so desires, is given the opportunity to respond to the charge, present his own evidence, or rebut evidence against him 3. written notice of termination served on the employee indicating that grounds have been established to justify his termination based on due consideration of all the circumstances 4. right to contest the validity or legality of his dismissal by filing a complaint with the NLRC 5. burden of proof is with the employer 6. SUSPENSION OF EFFECTS PENDING RESOLUTION = if there is a prima facie finding that the termination may cause a serious labor dispute or is in implementation of mass layoff, the Secretary of Labor may suspend the effects of the termination 26

MEMORY AID
EFFECTS OF REMOVAL WITHOUT CAUSE : 1) entitled to reinstatement without loss of seniority and other privileges If reinstatement no longer possible, separation pay. 2 instances when reinstatement is not possible: a.) Strained relations - applies only to managerial/confidential employees. b.) Position has been abolished applies to both managerial and rank and file. 2) entitled to full backwages, inclusive of allowances and other benefits or their monetary equivalent. Back wages are PUNITIVE in relation to the employer. Hence, they must be paid IN FULL from time of illegal dismissal (there is no longer a maximum period). Back wages must be paid regardless of whether or not the employee has since found work elsewhere. Back wages are computed by assuming that there was NEVER ANY TERMINATION. Hence, it would be as if EE had been working in company all the time. 3) damages a) Moral-If the dismissal is in bad faith, attended by fraud, is against public policy, good customs, morals, or is oppressive to labor. b) Exemplary-If the dismissal is wanton, oppressive, or malevolent. EFFECT OF REMOVAL WITH CAUSE BUT WITHOUT DUE PROCESS Serrano tells us that termination due to authorized cause without giving the notice required under the Labor Code is not a violation of due process. It is valid although declared irregular/ineffectual. (G.R. 117040, January 27,2000) He shall however be entitled to separation pay and backwages subject to the following rules: - When the dismissal is for a cause, the employee, whether dismissed for just cause or authorized cause but without prior notice, is entitled to full backwages from the time he was terminated until the decision finding cause becomes final. - When the dismissal is without just or authorized cause, backwages shall be computed from the time of his dismissal until his actual reinstatement. CONSTRUCTIVE DISMISSAL a.) No formal dismissal b.) The employee is placed in a situation by the employer such that his continued employment has become UNBEARABLE. DISMISSAL IN RELATION TO CLOSED SHOP AGREEMENT a.) The company cannot dismiss an employee on the mere allegation of the union. b.) The company must conduct an independent investigation of the charges before taking action. FLOATING STATUS a.) It is legal, such as in the case of security guards who have no assignment. b.) Such a status should not exceed six-months; if it does, it amounts to a dismissal. ABANDONMENT - means the deliberate, unjustified refusal of an employee to resume his/her employment. - Two elements must be proved: 1) the intention to abandon; and 2) an overt act from which it may be inferred that the employee has no more intent to resume his/her work. *this is negated by immediate filing of an action for ILLEGAL DISMISSAL RESIGNATION a. WITHOUT JUST CAUSE 1. at least 1 month prior notice 2. employee may be held liable for damages for failure to give notice b. WITH JUST CAUSE 1. GROUNDS a. serious insult on the honor and person of employee by the employer or his representative b. inhumane and unbearable treatment accorded to the employee
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MEMORY AID
c. commission of a crime against person of the employee or any of the immediate members of his family d. other causes analogous to the foregoing 2. NOTICE NOT NECESSARY NOTE: Resigning employee not entitled to separation pay, unless company policy gives it. EMPLOYMENT NOT DEEMED TERMINATED a. bona fide suspension of the operation of a business/undertaking for a period of not more than 6 months b. fulfillment by the employee of a military or civic duty Effects : Employer shall reinstate the employee to his former position without loss of seniority rights IF employee indicates his desire to resume his work not later than 1 month from resumption of operations of his employer or his relief from the military or civic duty PREVENTIVE SUSPENSION - justified where the employees continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers (there is a REASONABLE POSSIBILITY of the employee posing such a threat). - must not exceed 1 month - only for the purpose of investigating the offense to determine whether he is to be dismissed or not. IT IS NOT A PENALTY. - if more than 1 month, the employee must be actually reinstated or reinstated in the payroll - officers liable only if with malice and bad faith RETIREMENT PAY LAW (RA 7641) A. WHO ARE EXEMPTED: ~ retail, service, agricultural establishments ~ operations employing not more than 10 employees or workers B. KINDS: 1. OPTIONAL - 60 years old / 5 years in service (includes authorized absences/vacations/regular holidays/mandatory military or civic service). This depends on the stipulations in the CBA, company retirement plan, or employment contract. 2. COMPULSORY - 65 years old/ regardless or years of service (company not bound to dismiss employee) C. BENEFITS: 1/2 month salary per year of service which shall include: (22.5 days) 1. 15-day basic wage, plus 2. 1/12 of the 13th month pay, plus 3. 5-day Service incentive leave pay plus * a fraction of at least 6 mos. considered as one whole year 4. other benefits as maybe agreed upon by er and ee ** MINIMUM ~ no. 1 + no. 2 + no. 3 = n x years of service ~ minimum only so employer must pay deficiency in case agreed amount be less than the above
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MEMORY AID
DISPUTE SETTLEMENT LABOR DISPUTE ~ includes any controversy or matter concerning terms or 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 A. BUREAU OF LABOR RELATIONS o original jurisdiction: appeal to Office of the Secretary o appellate jurisdiction: appeal to Court of Appeals on certiorari 1. JURISDICTION a. Inter-union conflicts b. Intra-union conflicts c. All disputes, grievances or problems arising from or affecting labor-management relations in all workplaces EXCEPT those arising from the implementation or interpretation of the CBA which shall be the subject of grievance procedure and/or voluntary arbitration 2. COMPROMISE AGREEMENTS ~ if voluntarily agreed upon by the parties with the assistance of the BLR or the regional office of DOLE final and binding upon the parties ~ 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 3. POWER TO ISSUE SUBPOENA ~ when relevant to a labor dispute under its jurisdiction either at the request of any interested party or at its own initiative 4. REGISTRY OF UNIONS AND FILING OF COLLECTIVE AGREEMENTS a. registry of LLO b. file of all CBA and other related agreements, records of settlement of labor disputes, copies of orders, and decisions of voluntary arbitrators ~ open and accessible to interested parties under conditions prescribed by the Secretary of DOLE, provided that no specific information submitted in confidence shall be disclosed UNLESS authorized by the Secretary OR when it is at issue in any judicial litigation OR when public interest or national security so requires ~ submitted within 30 days from execution of CBA to the BLR/DOLE for registration accompanied with verified proofs of its posting in 2 conspicuous places in the place of work and ratification by the majority of all the workers in the bargaining unit 5. PRIVILEGED COMMUNICATION ~ information and statements made at conciliation meetings shall NOT be used as evidence in the NLRC ~ conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceeding conducted by them 6. APPEAL ~ within 10 days to the Secretary ~ GROUNDS: a. grave abuse of discretion b. gross incompetence SUMMARY OF JURISDICTION A. VOLUNTARY ARBITRATORS ~ supervised by National Conciliation and Mediation Board (NCMB) 29

MEMORY AID
~ cases decided within 20 cal days, final within 10 cal days 1. unresolved grievances arising from the interpretation or implementation of the CBA EXCEPT gross violation of the CBA - unresolved within 7 cal days from submission to grievance machinery - monetary claim based on a CBA provision is under the exclusive jurisdiction of the grievance machinery & VA 2. unresolved grievances arising from the interpretation or enforcement of company personnel policies 3. upon agreement of parties = any dispute B. MED-ARBITERS/BLR Original Jurisdiction: appeal to the Office of the Secretary Appellate Jurisdiction: appeal to CA on certiorari 1. petition for certification election (Med Arbiter) 2. registration of CBA/ Labor Org 3. inter-union conflicts (representation issue/cancellation of registration) - BLR 4. intra-union conflicts (election of officers/ compliance with CBL) Regional Director; appeal with BLR C. POEA - appeal to Secretary of DOLE within 10 cal days o cancellation/ revocation/ supervision of license or authority - appeal to NLRC within 10 cal days o violation of overseas employment contracts o disciplinary cases filed against overseas contract workers - original and exclusive jurisdiction over all claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino overseas workers including disciplinary cases; and all pre-employment cases which are administrative in character involving or arising therefrom, or violations of the conditions for issuance of license or authority to recruit workers D. LABOR ARBITERS/NLRC LABOR ARBITERs jurisdiction 1. ULP (priority resolved within 30 cal days from submission for decision) 2. termination disputes 3. claims for wages, rates of pay, hours of work and other terms and conditions of employment 4. claims for actual, moral, exemplary and other forms of damages arising from employeremployee relationship 5. cases arising from prohibited activities during strikes, including questions involving the legality of strikes and lockouts 6. all other claims arising from employer-employee relationship involving an amount exceeding P5000 regardless of whether accompanied by a claim for reinstatement except ECC, SSS, Medicare, & maternity benefits NLRC - EXCLUSIVE appellate jurisdiction over all cases decided by Labor Arbiters OCULAR INSPECTION by Labor Arbiter & NLRC at any time during working hours APPEAL ~ WHEN: within 10 calendar days from receipt of decision of LA ~ GROUNDS: a. prima facie evidence of abuse of discretion on the part of LA b. the decision, order or award was secured through fraud or coercion including graft and corruption c. pure questions of law d. raised serious errors in the findings of facts which could cause grave or irreparable damage or injury to the appellant
30

MEMORY AID
Additional Requirement: in case of judgment involving a monetary award-employer (appellant) may perfect the appeal only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the NLRC in the amount equivalent to the monetary award in the judgment appealed from ORDER OF REINSTATEMENT OF LABOR ARBITER - self-executing with no need for a writ of execution - immediately executory even pending appeal - either admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or merely reinstated in the payroll ( at the option of the employer, but which choice must be communicated to the employee by the employer) - posting of a bond shall not stay the execution of reinstatement FILING OF MEMORANDUM OF: a. APPEAL furnish other party within 10 caldays answer, then within 20 caldays decision by NLRC, then within 10 caldays finality b. ENFORCEMENT: - any law enforcement agency may be deputized by the Secretary of DOLE of the NLRC - issuance of writ of execution on a judgment within 5 years from date it becomes final and executory motu proprio or in motion of any interested party E. REGIONAL DIRECTORS 1. Secretary of DOLE enforcement power (inspection) - no limit to claims 2. adjudicatory power maximum of P5000 total claim/employee ~ summary appeal to NLRC within 5 cd 3. violation of the CBL and right and conditions of membership PRESCRIPTIVE PERIODS ULP MONEY CLAIMS OFFENSES UNDER LC ILLEGAL DISMISSAL 1 year 3 years 3 years 4 years
PROCEDURE - the rules of evidence prevailing in courts of law or equity shall not be controlling - it is the spirit and intention of this Code which shall be used as reasonable means to ascertain the facts in each case - without regard to technicalities of law and procedure all in the interest of due process - parties 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 compete control of the proceedings at all stages APPEARANCES AND FEES A. When non-lawyers appear before the NLRC/LA 1. if they represent themselves 2. if they represent their organizations or members thereof B. Attorney's Fees, negotiations fees or similar charges of any kind arising from any collective bargaining negotiations or conclusion of the collective agreement shall be imposed on any individual member of the contracting union - Proceeding for recovery of wages may be assessed against monetary benefits awarded (10%) - CBA negotiations charged against union funds in an amount to be agreed upon by parties attorney's fees may be charged against union funds in an amount to be agreed upon by the parties - contract, agreement to the contrary shall be VOID
RA 6971 -- Productivity Incentives Act of 1990 31

MEMORY AID
Labor-Management Committee - both management and labor shall have equal voting rights - representations of labor organized -- designated by the Collective bargaining agents in the bargaining unit unorganized -- elected by at least a majority of all rank and file employees who have rendered at least 6 months of continuous service Productivity Incentives Program - contains provisions for the manner of sharing and the factors in determining productivity bonuses - productivity granted ,1/2 (percentage increase in the productivity of the business enterprise) - granted salary bonuses = increases in current productivity over the average for the preceding 3 consecutive years - entitles employer to special deduction from gross income equivalent of 50% of the total allowable ordinary and necessary business deductions for said bonuses under the NIRC Salient features of the SSS Law and GSIS Law. Social Security Act of 1997 (RA 8282) Employer Any person, natural or judicial, domestic or foreign who carries on in the Philippines any trade, business, industry undertaking or activity of any kind and uses the services of another person who is under his orders as regards employment 8 (c) - Exempt employer: government and any of its political subdivisions, branches and instrumentality, including GOCCs a. Dependent Spouse until remarriage AND b. Dependent Legitimate or Legitimated or Legally Adopted and Illegitimate Children Dependent Parents Government Service Insurance Act of 1997 (RA 8291) The national government, its political subdivisions, branches, agencies or instrumentalities, including GOCCs, and financial institutions with original charters, the constitutional commissions and the judiciary a. Legal, Dependent Spouse until remarriage AND b. Dependent Children Dependent Parents; AND Legitimate descendants subject to restrictions on dependent children, legitimate descendants
BENEFICIARIES 1. PRIMARY
2. SECONDARY
3. OTHERS
Absent primary and secondary beneficiaries, any other person designated by member as secondary beneficiary As to DEATH BENEFITS, If no beneficiary qualifies under the Act, benefits shall be paid to Legal Heirs in accordance with Law of Succession Monthly Pension Dependents Pension Retirement Death Permanent Disability Funeral Sickness Maternity (ONLY 1ST FOUR DELIVERIES OR MISCARRIAGES)
BENEFITS
1. ALL MEMBERS a. Life Insurance b. Retirement c. Disability d. Survivorship e. Separation f. Unemployment 2. JUDICIARY A. Life Insurance 32

MEMORY AID
ONLY -ALL TAX EXEMPT COVERAGE 1. Compulsory 1. All employees not over sixty (60) years of age and their employers; compulsory coverage of the employer shall take effect on the first day of his operation and that of the employee on the day of his employment 2. self-employed employees as may be determined by the Commission under such rules and regulations as it may prescribe, including, but limited to: all self-employed professionals; partners and single-proprietors of business; actors and actresses, directors, scriptwriters and news correspondents not employees; professional athletes, coaches, trainers and jockeys, and individual farmers and fishermen; upon their registration with the SSS. 3. Domestic helpers who are sixty years of age and below with a monthloy income of not less than P1,000 on the date of their employment 4. individual farmers and fishermen under SS rules and regulations Voluntary: 1. Filipinos recruited by foreign-based employers for employment abroad 2. Employee separated from employment 3. Self-employed realizes no income 4. Spouse who devotes full time managing household and family affairs unless specifically mandatorily covered By Arrangement: any foreign government, international organization or wholly owned instrumentality employing workers in the Philippines or employing Filipinos outside the Philippines may enter agreement with Philippines for inclusion of such employees in SSS EXCEPT those already covered by their respective civil service retirement system. (from 1. employment purely casual and not for purpose occupation, or business employer 2. service performed on or in connection with alien vessel, if employed when such vessel is outside of Philippines 3. employees of Philippine government or instrumentality or agency thereof 4. service performed in the employee of a foreign government, or international organizations, of wholly owned instrumentality employing workers in the Philippines or employing Filipinos outside of the Philippines 5. services performed by temporary and Compulsory for all employees receiving compensation who have not reached compulsory retirement age, irrespective of employment status
Exceptions coverage)
1. Members of the Armed Forces 2. Members of the PNP * members of judiciary and constitutional commissions: life insurance only
33

MEMORY AID
BASIS OF CLAIM
other employees excluded by SSS regulation; employees of bonafide independent contractors shall not be deemed employees of the employer engaging the services of an independent contractor Non-work connected disability, sickness, maternity, death and old age and other contingencies resulting in loss of income or financial burden (sec. 2)
Work-connected exempt from liability where permanent disability due to his grave misconduct, habitual intoxication, or willful intention to kill himself or another (sec. 1517)
Revised by Atty. Cacdac, Atty. Manuel, Camille and Rod
34

MEMORY AID
Commonly Asked Questions [1995-1999 Labor Law Bar Examinations] I.) General Concepts - Discuss the three general classifications of labor statues -Distinguish between labor and social legislation. -Relate the constitutional guarantee of freedom of association with the nature of a closed shop agreement. -Discuss the constitutional rights of employees and employers. -Discuss the constitutional provisions on labor. -Expound on the provision that all doubts in the interpretation and application of laws should be settled in favor of labor. II.) Dismissal -Enumerate and define the various just and authorized causes -Discuss the twin requirements for a valid dismissal. -Define the concept of willful disobedience -When should separation pay be granted as a matter of social justice even if a dismissal is for cause? -Enumerate and discuss the five instances when reinstatement is no longer possible. -Define constructive dismissal. -Define serious misconduct. -Enumerate and discuss the various remedies for an illegal dismissal. -Discuss the rules covering retrenchment. -Expound on piercing the veil of corporate fiction in relation to illegal dismissal cases. -Discuss the rule on dismissed employees quit claims. -Discuss the concept of due process in illegal dismissal cases. -What are the legal implications of an employee being on floating status. III.) Classification of Employees -How do you determine the existence of an employer-employee relationship? -Differentiate between managerial, supervisory, and rank and file employees. -Define and discuss the concept of lay down and execute management policies. -Discuss the rules on probationary employment. -What are the rules on students who are allowed to work in their schools in exchange for a free education (is there an employer-employee relationship)? -What is the rule on successor-employers? IV.) Jurisdictional Issues -Discuss the jurisdiction of various government labor agencies, as well as the modes of appeal of their decisions (LA, NLRC, etc.). -What are the objectives of the Secretary of Labor in certifying a labor dispute to the NLRC? -Discuss and differentiate between Articles 128 and 129 of The Labor Code. -Differentiate between the jurisdiction of the Labor Arbiter and the regular RTC in relation to damage claims filed by employees. V.) Strikes -Differentiate between a legal and illegal strike. -What is the concept of a strike? -What are the effects of a strike on an employer-employee relationship? -What are the provisions on illegal lockout? I.e., when is it committed? -What are the legal effects of an assumption of jurisdiction order? -When and under what circumstances can the Secretary of Labor issue an assumption of jurisdiction order? VI.) Special Laws -What are the salient points/key provisions of the SSS and GSIS, and other social security laws? VII.) Labor Organizations and Collective Bargaining -What is a labor organization? -What is a bargaining unit? 35

MEMORY AID
-Explain the concept of mutual interests in relation to a bargaining unit. -What is the concept of a collective bargaining agreement? -What are the mandatory subjects of collective bargaining? -Define the duty to bargain collectively. -What are the jurisdictional requirements to trigger the duty to bargain collectively? -Differentiate between a closed shop and agency shop agreement. -What are the rules on levying assessments and collecting dues from union members? -Differentiate between a contract bar and deadlock bar. VIII.) Certification Elections -What is the bystander rule in relation to certification elections? -What are the procedures and requirements for a certification election? IX.) Compensation -What are the rules covering overtime, night shift differential, and holiday pay? -What is included in the term compensation? -Discuss the concept of a wage distortion. -Discuss the concept and rules governing bonus payments. X.) Others -Discuss the rules on domestic helpers? -Discuss the various prescriptive periods for actions relating labor disputes? -Discuss and differentiate between job only and labor only contracting. -Discuss the concept of on call. -Discuss the rules governing women workers. -Discuss the rules governing recruitment and placement of workers. -Discuss the rules on handicapped workers? -Discuss the rules governing employment of foreigners? -Define unfair labor practice. Give examples.
36

Labor 2002 Memory Aid

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