Labor Relations Notes PDF

LABOR RELATIONS, Notes 1st Semester SY 2012-2013, Atty.
Marquez,
Reference: Azucena, Labor Code, Volume II, 2010
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29 June 2012
What law governs government employees?
Article 276. The terms and conditions of employment of all government

employees including employees of government-owned or controlled
corporations, shall be governed by the Civil Service Law, rules and
regulations.
However, the Labor Code governs employees of government-owned or

controlled corporations established under the general Corporation Law.
G.R. No. L-58494 July 5, 1989 (own research only)
PHILIPPINE NATIONAL OIL COMPANY-ENERGY DEVELOPMENT CORPORATION vs. HON.

VICENTE T. LEOGARDO, DEPUTY MINISTER OF LABOR AND VICENTE D. ELLELINA
However, the above doctrine has been supplanted by the present Constitution, which
provides:
The Civil Service embraces all branches, subdivisions, instrumentalities and agencies of
the Government, including government-owned or controlled corporations with original
charters. (Article IX-B, Section 2 [1])
Thus, under the present state of the law, the test in determining whether a government-
owned or controlled corporation is subject to the Civil Service Law is the manner of its
creation such that government corporations created by special charter are subject to its
provisions while those incorporated under the general Corporation Law are not within its
coverage.
We hold, therefore, that the PNOC-EDC having been incorporated under the general
Corporation Law, is a government-owned or controlled corporation whose employees
are subject to the provisions of the Labor Code. This is apparently the intendment in the
NASECO case notwithstanding the fact that the NASECO therein was a subsidiary of the
PNB, a government-owned corporation.
What are the relevant laws as far as labor is concern?
International Labor Organization.
As member country of ILO, we should subscribe to whatever

resolutions.
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LABOR RELATIONS, Notes 1st Semester SY 2012-2013, Atty. Marquez,
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Its resolutions become binding laws, they are in harmony with the
laws that we have.
Does the Constitution favor the labor?
It is not really intended to favor the labor.
Case:
Labor laws are not really pro-labor
It favors labor only in case of doubt
If the law is clear, even if it is prejudicial to labor, apply it.
Can there be equality between Labor and Capital?
Taking into account that the playing field is not really equal, then,
there can be no equality among unequal.
Capital = more resources
Labor = inherently at a disadvantage
What does Tri-Partism mean?
Government, employers & employee from the private sector.
What are the basic rights of Employee?
Right to self- organization/association
Right to security of tenure
Right to a healthful and safe working conditions
Right against involuntary servitude
Right to social security & benefits
What are the basic rights of Employers?
Right to select, dismiss & terminate
Right to adopt rules
Right to pay wages
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Right to control the means & methods
Right to profits & expansion
Basis?
Section 1, Article III, 1987 Constitutuon:
No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.
It is inherent in our being even if the Constitution does not provide.
Basic right to property
6 rights to ownership.
Business is a property to the employer.
But it does not give you an unbridled license to abuse
Service/employment is a property to the employee.
Therefore, both have the right to protect its property.
Rule in Labor Relations
The right of my neighbor to extend his arms ends where the tip of my
nose begins
Employee
One who is engaged in the service of another; who performs

services for another; who works for salary or wages.
The term employee
1. Shall include any employee
2. And shall not be limited to the employee of any particular

employer, unless the Act explicitly states otherwise
3. And shall include any individual:
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a. Whose work has ceased as a consequence of, or

in connection with, any current labor dispute
b. And who has not obtained any substantially

equivalent and regular employment.
Employer
One who employs the services of others; one for whom employees
work and who pays their wages or salaries.
Independent Contractor = Job Contractor
Contractor = Labor Only Contractor
Comparison:
Independent Labor Only Contractor

Contractor /Job
Contractor
Outsourcing services Supplying workers
Confirming element 1.With substantial 1. Control by the

capital. Principal employer
2. Autonomy to carry
on using his own
means & methods
Example Programming Services Programmers
Guarin v. NLRC
(employees)
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4 Fold Test:
1. Selection & engagement
2. Payment of wages
3. Power of dismissal
4. Control over means & methods
Labor dispute
The test of whether a labor controversy comes within the definition

of a labor dispute depends on whether it involves or concerns
terms, conditions of employment or representations.
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.
The mere fact that the disputants do not stand in the proximate or
reciprocal relation of employer and employee does not remove the
dispute from the category of a labor dispute.
Why do workers organize?
Sentiment
Commonality of interest - the one that binds different groups of

people to form/ organize a union.
A lot stronger when it deals with the employer
For wages, security of tenure
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Labor Organization
Refers to any union or association of employees in the private sector

that exists in whole or in part for the purpose of collective
bargaining, mutual aid, interest, cooperation, protection, or other
lawful purposes.
Legitimate Labor Organization?
Refers to any labor organization in the private sector registered with

the DOLE.
If not registered with DOLE, is it illegal?
No, it is not illegal. It simply is unregistered and has no legal

personality. It exists legally but does not possess the rights of a LLO.
1. The right to petition for certification election
2. The right to collectively bargain
3. The right to strike
Labor organization = Dealing with the employer
Legitimate Labor Organization = Collective bargaining with the employer
Union
Must be registered and issued a certification of registration to avail

of the 3 rights
Refers to any labor organization in the private sector organized for

collective bargaining and other legitimate purposes.
Labor Organization is not necessarily a Union.
It may be organized not necessarily for Collective Bargaining but for

mutual aid and protection.
A Union is a Labor Organization.
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Not every Union is legitimate, only those properly registered are

considered LLO.
Exception: Labor Management Council (LMC).
Pre-empting the disputes
Must be supported by majority of the Collective Bargaining Unit

(CBU).
Representatives of the workers in such LMC shall be elected by at

least the majority.
06 July 2012
Why do employees organize?
Commonality of interest that they want to be protected/

propagated.
Can managers organize themselves into a Union?
No.
Because of conflicting interests.
How would you distinguish supervisory employees from managerial

employees?
Managerial Employees
Are vested with powers or prerogatives to lay down and execute

management policies and/ or to hire, transfer, suspend, lay-off,
discharge, assign or discipline employees. HTSDALD
Supervisory Employees
Are those who, in the interest of the employer, effectively

recommend such managerial actions and if the exercise of such
authority is not merely routinary or clerical in nature but requires the
use of independent judgment.
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Rank and file Employees
Do not have the power to recommend.
Federation
Any labor organization with at least 10 locals or chapters or

affiliates, each of which must be duly certified or recognized as
collective bargaining agent.
To be able to Negotiate:
1. The Union must be registered with the DOLE
2. It must be certified or recognized as the Exclusive Bargaining

Representative (EBR) of the CBU.
Company Union
A labor organization, which, in whole or in part, is employer-

controlled or employer-dominated.
Article 248 (d) prohibits this
Independent Union
A labor organization operating at the enterprise level that acquired

legal personality through independent registration.
May affiliate with a federation or national union. Affiliate.
Membership must be 20% of the CBU to be able to register.
Charter/ Local
Its legal personality is derived from the federation/national union

but it may subsequently register itself independently.
20% membership in the CBU not required, expediting the growth of

federations and national unions, to foster a strong and unified labor
movement.
Acquires (tentative) legal personality to file a petition for CE.
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Tentative legal personality, subject to submission of additional

requirements to acquire other rights of LLO.
Chartering
When a duly registered federation or national union issues a charter

to a union in an enterprise and registers the creation of the chapter
with the Regional Office where the applicant operates.
May an Employer oppose a Petition for Certification Election?
No, an employer is considered a mere bystander and has no right

to oppose the petition.
Participation is limited to being informed about the petition and to

being required to submit the list of employees if a CE will be held.
Recognition of a Labor Union by BLR is not a Ministerial Duty.
As preventive measures against the commission of fraud, after the

Labor Organization had filed the necessary papers and documents
for registration, it becomes mandatory for the BLR to check if the
requirements under Article 234 have been sedulously complied
with. (Progressive Dev. Corp-Pizza Hut v. Laguesma)
The Labor Union (Independent or Local) shall be deemed registered

and vested with legal personality on the date of issuance of its
certificate of registration or certificate of creation of chartered local
and not on the date of submission of documents.
Unions Legitimacy not subject to Collateral Attack.
Effect of Registration under the Corporation Law
A labor organization may be organized under the Corporation Law

and issued a Certificate of Incorporation by the SEC.
Has the effect of giving it a juridical personality before regular

courts of justice.
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Comparison:
Independent LU, Chartered Federations, National

Locals, Workers Unions
Association
Where to Applications for registration Applications for

Register, Notice shall be filed with and registration shall be filed
of Change of acted upon by the with the Bureau or the
name, affiliation, Regional Office where the Regional Office but shall
merger & applicant principally be processed by the
consolidation operates Bureau who has national
jurisdiction.
Appeal 1. Regional Office 1. Bureau of Labor

Relations
2. Bureau of Labor
Relations 2. Secretary of DOLE
3. Court of Appeals 3. Court of Appeals
Affiliation
An affiliate is an independently registered union that enters into an

agreement of affiliation with a federation or national union.
Also refers to a chartered local, which applies for and is granted an

independent registration but does not disaffiliate from its mother
federation or national union.
Affiliation with Same Federation
Supervisors union and rank and file union in the same company
may affiliate with the same federation.
The relationship between a local or chapter and the labor federation or

national union is generally understood to be that of agency, where the
local is the principal and the federation the agent.
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Despite affiliation, the local union remains the basic unit free to serve the
common interest of all its members.
13 July 2012
Disaffiliation
May be done at anytime if there is no express stipulation for such

period in their Constitution and By Laws (CBL)
Although generally, it is done during freedom period (60 days

preceding the expiration of the CBAs representational provision).
If there is a stipulation in the CBL, then it must be followed,

otherwise, the act may constitute disloyalty.
Must be decided by the majority of the entire membership.
The obligation of an employee to pay union dues is coterminous

with his affiliation or membership.
To disaffiliate is a right, but to observe the terms of affiliation is an

obligation.
Effects:
Chartered Local after disaffiliating with the Mother Union:
Existing/Implementation stage of CBA
Local Union will continue to administer the existing CBA but may not
negotiate until such time it registers itself independently or a new
EBR is elected.
Obligation of Company to give union dues is coterminous with the

relationship of local union with the mother union. Therefore, union
dues are terminated.
But mother union can still recover special assessment provided

services were rendered.
Mother unions representation terminates once local union

disaffiliates.
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Constitution and By Laws
It constitutes a contract between the members, which the court will

enforce.
Provided they are reasonable, uniform and not discriminatory, not

contrary to public policy and law of the land.
It governs the relationship between and among its members.
May be made, changed, unmade, superseded by a majority vote

of the members.
Three Grounds to Cancel Registration:
1. Any falsehood /misrepresentation about the CBL.
2. Any falsehood/misrepresentation about the election of officers.
3. Voluntary dissolution.
2/3 union membership vote
Application to cancel submitted to RO
May an employer file for a petition for cancellation of registration?
Yes, any interested party may file for a petition for cancellation of
registration. An employer is an interested party.
What are the requirements for Voluntary Dissolution?
1. Secret balloting
2. Which has to take place in a meeting duly called for the purpose of
deciding WON to dissolve the Union. (only for that purpose)
3. Vote should represent 2/3 of the affirmative vote of the general

membership.
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Dissolution is a serious matter.
Where do you file a petition for cancellation of registration?
Regional Office of DOLE, Regional Director is the one authorized to

cancel. (Local, Independent)
Bureau of Labor Relations, Bureau Director is the one authorized to

cancel. (Federation, National Union)
Who are eligible to become members of the Union?
Generally, all employees except when there is a provision stating

otherwise in the CBL.
REMEMBER:
Members of the CBU are not automatically members of the Union.
Members of the Union are automatically members of the CBU.
Membership in the Union does not automatically mean coverage in the

CBA.
RULES:
1. Membership in the Union is determined by the Constitution & By

Laws.
2. Coverage in the Collective Bargaining Agreement is determined by

the provision of the CBA.
3. Coverage in the CBU is determined by commonality of interest.
May Managerial Employees join/form a Union?
NO.
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May Supervisory Employees form a Union?
Yes, but they cannot commingle with the rank & file employees.
Does it violate the constitutional rights of association of managerial

employees?
No, because managerial employees can still form an organization

but not that of a Union.
What is prohibited is to form a Union for the purpose of collective

bargaining.
But they can deal with the employer because anyone can do this.
We said that members of the CBU are not necessarily members of the
Union.
Victoriano vs. Elizalde
Freedom of Religion was given more weight.
Who are Confidential Employees?
1. Assist or act in a confidential capacity
2. To persons who formulate, determine, and effectuate management

policies in the field of Labor Relations.
Doctrine of Necessary Implication
The disqualification of the managerial employees equally applies to

confidential employees.
What is implied also has the effect of what is expressed.
19 July 2012
Whether all government employees can unionize?
Yes, but they cannot negotiate those that are fixed by law, such as
wages, terms and conditions of employment, etc.
They may register with the Bureau of Labor Relations.
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Certificate of Registration shall be jointly approved by the CSC

Chairman & Secretary of DOLE.
Original Charter
The birth or creation is by virtue of an act of Congress. Such that,

the office will not exist without such legislation.
E.g. Central Bank, DBP, usually out of coverage by the

Compensation and Position Classification Act. These are
government corporations therefore, they can negotiate their
salaries.
DOLE
No original charter, can the employees unionize & collectively

bargain?
Yes, those matters which are not covered by the General

Appropriations Act or matters which will not require appropriation.
Can they strike?
No.
Can security guards unionize?
Yes.
Can members of the AFP/PNP unionize?
No, the security and safety of the public cannot be compromised.
Can Foreigners unionize?
No, whether natural or juridical, they are strictly prohibited from

engaging directly or indirectly in all forms of trade union activities.
But aliens with valid work permits may exercise the right of self-
organization if they are nationals of a country that grants the same
or similar rights to Filipino workers.
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Can workers in the Export Processing Zone unionize?
Yes, because they are still part of the Philippine territory, which is
subject to its sovereignty and laws.
Where government of host countries offer special incentives to

attract foreign investments, these incentives should not include any
limitations on the workers freedom of association or the right to
organize and bargain collectively.
Public Sector Labor Management Council (PSLMC)
Proscribes government employees from staging a strike.
Relationship of Union & its Members
The relationship is characterized as fiduciary.
The members repose on them trust & confidence to represent them.
Election of Officers, how is it done?
Who can vote?
ONLY members of the Union
Can an officer of a Union be a non-employee?
No, one has to be an employee.
May a Union Officer or member be expelled?
Yes, because the Union can also violate the rights of the union
members.
What is the remedy of the aggrieved members?
File a complaint with the Med-Arbiter (Intra-Inter Union Disputes).
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30% support requirement is really not a necessity.
One or two may report a violation.
Check off
a method of deducting from an employees pay at prescribed

period, the amounts due the union for fees, fines, or assessments.
What is the difference between Union Dues & Special Assessment?
Union Dues
Regular, periodic & uniform.
To meet the Unions general & current obligations
Special Assessment
For special purpose.
Required only for a limited time.
There are requisites before it may be deducted except for

mandatory activities by the Code.
Requisites
1. Authorized by a written resolution of a majority of all members at a

general membership meeting duly called for the purpose.
2. Secretarys record of the minutes of the meeting including: list of

members present, votes cast, purpose of special assessment, and
recipient.
3. Individual written authorization for check-off duly signed by the

employee concerned. (not needed if mandatory activity of the
Labor Code)
These must be forwarded to the Employer for him to be able to deduct the
special assessment from the employees salary.
Mandatory Activities:
Training in SOLER
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Counsel during Negotiation
Check off of Union Dues is usually included in the CBA.
Can the Union successfully demand from the employer the dues by filing
a complaint for recovery & damages?
No. The employer will not be liable to the Union but it may constitute
as Unfair Labor Practice (ULP- anything that thwarts the right of
employees to self-organization).
In truth, it imposes an extra burden on the employer in the form of

additional administrative and bookkeeping costs.
The only obligation of the employer under a check-off is to effect

the deductions and remit the collections to the union.
Agency Fee
Equivalent to union dues, which a non-union member pays to the

union because he benefits from the CBA negotiated by the union.
In negotiating the CBA, the Union served as the employees agent.
Allowed under Article 248 (e).
Individual written authorization is not required, because the fact of

enjoyment from the benefits of the CBA is enough authority.
Can the Secretary of Labor inquire upon the Financial Statements of the
Union?
Yes, upon petition of at least 20% of the union membership.
The Union can demand for a copy of the Financial Statements of the
employer. If Employer fails or refuses to furnish a copy, it may constitute as
ULP.
Organized Establishment
Refers to an enterprise where there exists a recognized or certified

sole and exclusive bargaining agent.
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Petition for certification election may only be filed during the

freedom period and supported by at least 25% membership of
the CBU.
Voluntary Recognition not allowed.
Unorganized Establishment
Where no Union has yet been duly recognized or certified as

bargaining representative.
May petition for certification election anytime.
If petition is granted, it cannot be appealed.
Voluntary Recognition allowed
Terms of a CBA
Representation Aspect- 5 years
Freedom period (60 days preceding the expiration of the CBA)
The new EBR shall respect the existing CBA. It will only administer the
existing CBA, but may renegotiate to shorten the CBA to coincide
with its term.
Contract Bar Rule: Applies during this term. Med-Arbiter can deny
the PCE prior or after the freedom period.
Political Event
Employees & Union Only
Non-representation Aspect- 3 years
Renegotiation period/ notice or proposal period vis-a-vis freedom

period
Economic event
Exclusive bargaining representative & Employer
Pending Certification Election, can CBA be renegotiated?
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2005 case where the SC held that there has to be a resolution of

certification election first before the conclusion of a new CBA.
May an employer file a petition for certification election?
Yes, when there is a demand for CBA
May an employer oppose a petition for certification election?
No, it is considered as a mere bystander.
26 July 2012
There are 3 methods to determine the bargaining union
First Method: Voluntary Recognition
The law allows the employer to voluntarily recognize a union.
It does away with the more tedious electoral contest between

unions.
It requires 3 concurrent conditions
1. Possible only in an unorganized establishment.
2. Only one union is asking for recognition.
3. Union should be the majority union.
If objections are raised, the recognition is barred, and a certification

election or consent election will have to take place.
When & where to file: Submit a Notice of VR to the Regional Office

within 30 days from such recognition.
Effect of Recording of VR: From time of recording of VR, the

recognized labor union shall enjoy the rights, privileges and
obligations of an existing EBR of all the employees in the bargaining
unit.
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Second Method: Certification Election
A process ordered and supervised by the DOLE, of determining

through secret ballot, whether or not the majority of the employees
wish to be represented by a labor organization and, in the
affirmative case, by which particular labor organization, for
purposes of collective bargaining.
All employees whether union member or not, who belong to the

appropriate bargaining unit can vote.
It does not warrant a Direct Certification by the mere fact that there
was no opposition.
Who may file: Any legitimate labor organization, national or

federation, employer.
In unorganized establishment, once a petition is filed by a LLO, the

Med-Arbiter shall automatically order the conduct of CE. Not
appealable. (to promote free trade unionism)
Where to file: Regional Office. Shall be heard and resolved by the

Med-Arbiter.
1. If two or more petitions, shall be consolidated to Med-Arbiter who

first acquired jurisdiction.
2. If filed in different RO, RO, which the petition was first filed, shall
exclude all others.
When to file:
1. If no CBA, anytime outside the 12month bar (Certification Year)
2. If there is an existing CBA, can be filed only within the last 60 days of
the fifth year of the CBA (freedom period).
Denial or grant by Med-Arbiter: Always appealable to the Secretary

of DOLE.
Issuance of formal order denying or granting the petition.
1. Unorganized establishment: within 10 days from the date of last

hearing.
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2. Organized establishment: after the lapse of the freedom period.
8 Grounds to deny a PCE:
1. Non- Appearance
2 successive conferences called by the Med-Arbiter and duly

notified.
2. Unregistered Union
Should have been revoked or cancelled with finality.
Thus, it may be ordered despite the pendency of a petition to

cancel the unions registration.
Illegitimacy
3. No Charter
Illegitimacy
4. Absence of Employment Relationship
There would be no legal basis
5. 12 month Bar
Certification Year
No PCE may be filed within 1year from the date of a valid

certification election, consent, or run-off election or from the date
of a voluntary recognition of the union by the employer
Presupposes that there was an actual conduct of election.
An election may be held less than a year after an invalid election or

failure of election.
Applies to No Union choice in CE.
6. Negotiation or Deadlock
Artificial Deadlock will not bar a PCE.
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Genuine Deadlock: Submission of the deadlock to a conciliator or

arbitrator or is a subject of a valid notice of strike.
7. Existing CBA
Contract bar
Does not apply if CBA is defective. Defective, hence unproductive

of the legal effects attributed to it.
Even if it is not certified but registered in accordance with Article

231
Filed before or after freedom period
A CBA which was prematurely renewed is not a bar to the holding

of a certification election
8. Lack of Support
25% of of the bargaining unit
Without this minimum support, the challenge to the incumbent looks

like a nuisance
Withdrawal of support before PCE: Valid, PCE may be denied.

Presumed voluntary.
Withdrawal of support after PCE: Not Valid, PCE may be granted.

Deemed Involuntary. Procured through duress, coercion, or for
valuable consideration.
Can Employer file a PCE? Yes
But ordinarily, it is the Union that files.
Can the Employer oppose it? No, it is a mere bystander.
What is the required rule to be certified as the Exclusive Bargaining

Representative?
Majority of the votes cast provided that the votes cast is the
majority of the CBU.
Double majority.
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Who are eligible to vote?
All the members of the CBU
When is there a failure of election?
Where the number of the votes cast in a certification or consent

election is less than the majority of the total membership of the CBU.
Election may be held within 6 months
Recognition = Employer
Certification = DOLE
Valid Election
Where the number of the votes cast in a certification or consent

election is the majority of the total membership of the CBU.
Movant Intervenor
Other Union who wants to be certified
Forced Intervenor
Existing EBR
Process:
Determination by DOLE through the Med-Arbiter whether to grant or deny

the petition.
Parties to submit their pleadings, support of their claims
If Granted:
Exclusion/ inclusion proceedings
Posting of Election details
Election
Certification
Labor Management Council
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Majority support of the CBU
Single majority
Run-off election
Requisites:
1. Valid Election
2. There are at least 3 choices
3. Not one of the unions obtained the majority of the valid votes
4. Total number of votes for all the unions is at least 50% of the votes
cast
5. There is no unresolved challenge of voter or election protest.
The rematch is between the two unions who garnered the two
highest votes
The No Union choice is eliminated from the Run-off
What is a Consent Election?
Its purpose is the same, namely, to find out which union should serve
as the bargaining agent.
Where a petition for certification had been filed, and upon the
intercession of the Med-Arbiter, the parties agree to hold a consent
election, the results shall constitute a bar to the holding of a
certification election for 1 year from the holding of such election.
Where no petition for certification election was filed but the parties
themselves agreed to hold a consent election with the intercession
of the RO, the results thereof shall constitute a bar to another
petition for certification election.
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The difference is that a certification election is ordered by the Department

whereas, a consent election is voluntarily agreed upon by the parties, with
or without the intervention of the Department.
Once the Union had been certified/recognized, what are the rights?
1. Exclusively bargain with the employers regarding wages, hours of

work, and other terms & condition of employment.
Jurisdictional Preconditions of Collective Bargaining:
1. Possession of status of majority representation
2. Proof of majority representation
3. Demand to bargain
When should negotiation begin?
During the Certification year or the 12 month bar.
If the Union submits its proposals, should the company submit its counter-
proposal?
The company is required to submit only a REPLY, not necessarily a

counter-proposal.
Successor Employer Rule
Generally, the subsequent employer is not liable for the obligations

of the previous employer.
However, if such merger or acquisition is entered into to perpetrate

a fraud, injustice, or crime, or to evade the duty to bargain, that veil
will be pierced.
Doctrine of Piercing of the Veil of the Corporate Fiction: The

previous and subsequent employer is treated as one, so much so
that the liability of the previous employer will be the liability of the
subsequent employer.
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Exception Lock, Stock, & Barrel: All assets, and liabilities are
transferred to the subsequent employer.
If Scheme: Doctrine will apply.
If in Good Faith: Doctrine will not apply.
Multi-Employer Bargaining:
It is not prohibited in the Philippines but it is not adapted.
There is a provision in the law to contribute to industrial peace.
Two or more employers join together to form one group that will
negotiate with the EBR of each employer.
Pros: It abbreviates the process.
Cons: Dissimilarity in need and capacity to give in demands.
Master Contract = One size fits all.
It is a negotiated contract.
Mandatory Subjects for Bargaining:
1. Wages
2. Hours of work
3. Terms & conditions of employment
If an employer refuses to negotiate, it will amount to a refusal to

bargain, which may constitute as an ULP.
Non-mandatory subjects for Bargaining:
Employer will not be liable for ULP
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Surface Bargaining
Initially agrees on a term but later on will revoke its approval of such
term
Bato sa buhangin
Blue Sky Bargaining
Low balling & high balling
Kapantay ay langit
Does it amount to bargaining in bad faith? Not necessarily.
Must take into considerations a lot of circumstances
Bulwarism
Take it or leave it
Amounts to bargaining in bad faith
taga mo sa bato
Deadlock
Parties fail to reach an agreement
There is a party that declares such
Preventive Mediation
Nearing deadlock, one goes to NCMB, and writes, we are about

to reach a deadlock, a way of seeking intervention to prevent a
deadlock, that will eventually lead to a strike/lockout.
2 August 2012
Situation:
CBA will expire on its 3rd year, Union (EBR) submitted a proposal during the
60 day period prior to expiration (notice period).
28
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Employer wanted to take out portion which was formerly included in the
CBA, employer wanted to reduce the benefits in the new CBA, is that
ULP?
No. When you reopen the CBA negotiation that opens the new
space for the Union & Employer to renegotiate.
The employer could do so, it may increase or reduce the benefits in

the new CBA.
There are things to consider, such as the cost of benefits &

affordability of the employer.
For as long as it will not go down to the extent provided by the

Labor Standards on the minimum terms & conditions of employment.
Who should ratify the CBA?
The majority of the members of the Collective Bargaining Unit (CBU)

should ratify the CBA.
Is ratification necessary?
Ratification is not necessary if it is a result of an arbitral award.
Rationale: Mandated CBA is repugnant to ratification. It negates the

mandated CBA.
Mandated CBA = conflicts/issues are finally settled
Strike = tool of the Union
Lockout = tool of the Employer
Scenario:
If improved balloting offer did not resolve the conflicts/issues, if the

industry is of National interest, the Secretary of Labor can assume
jurisdiction or certify the case to the NLRC.
During the proceedings, the parties are required to submit

memorandum/position paper on:
1. Proposal/ counter proposal
29
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2. Party to agree
3. Justification
On the basis of these documents and other considerations, the Secretary

of Labor or the NLRC will adjudicate the case and provide for a
mandated CBA.
What do you mean by Automatic Renewal of CBA?
While the parties are negotiating, they shall maintain the status quo.
Read: New Pacific Timber Co. v. NLRC
When does it take effect?
If the new CBA is concluded during the 6 months following the

expiration of the old CBA, it will take effect on the day following the
expiration of the old CBA.
If the new CBA is concluded after 6 months following the expiration

of the old CBA, it will take effect based on the agreement of the parties.
Obiter: Obstinate and recalcitrant Union works in favor of the employer.
If it is an arbitral award?
The date of effectivity is discretionary to the adjudicator.
Because the reference made in the preceding situation is parties

agreeing.
It is outside the provision of the effectivity of the CBA.
Can a regular court issue an injunction on cases arising out of a labor

dispute?
As a general rule, NO.
30
jumieann2C
Exceptions:
1. When a person obstruct the free ingress to or egress from the

employers premises for lawful purposes.
2. When a person obstructs public thoroughfares
3. Act amounts to a crime
What is a strike?
It is a temporary work stoppage by the employee due to a labor

dispute.
What is a lockout?
It is a refusal by the employer to furnish work to the employee due

to a labor dispute.
What are the grounds?
1. Unfair Labor Practice
2. Bargaining Deadlock
Are there other grounds?
None. These are the only grounds for a lawful strike.
Situation:
ABC Union declared a strike against ABC Company
Can XYZ Union, not an employee of ABC Company join the strike?
No, Sympathetic strike is prohibited by law.
How about Welga ng Bayan?
This is done to petition the government for redress of grievances. This

can be done even without work stoppage. If it will amount to a work
stoppage, then it is a strike.
Strike, Welga ng Bayan, Boycott- NO IDENTITY.
31
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What is the procedure for a lawful strike?
There are four requisites before one may conduct a lawful strike.
1. Filing of notice 30/15 days before actual strike.
2. Observance of cooling of period
(a) ULP- 15 days
(b) Bargaining Deadlock- 30 days
(c) Existence of Union is threatened- not necessary
3. Taking of strike vote
4. Observance of the 7 day result of strike vote period
What is a cooling of period?
This is a period to be observed in order to cool off the temper of the

parties from the day of filing of the notice of strike to the day of the actual
strike.
This is also a period for the DOLE to mediate and conciliate the
parties and encourage them to submit their dispute to a voluntary
arbitration in order to prevent the strike, since the law does not favor strike
for it is counter-productive.
This may not be observed when the existence of the union is

threatened:
1. When the elected officials of the Union are illegally dismissed by the
employer
2. These officials are elected in accordance with the CBL of the Union
3. The existence of the Union is threatened
Observance of the 7 days result of strike vote period should be reckoned

from the date of the expiration of the cooling off period when done
before or during the cooling off period.
32
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What is the difference between the consequences of a Union official &

Union member participating in an illegal strike?
Union officials who knowingly participated in an illegal strike may be

declared to have lost their employment status whereas mere participation
of a Union member in an illegal strike does not have the same effect.
Any Union officer or member who knowingly participates in the

commission of illegal acts during a strike may be declared to have lost his
employment.
What is the guideline for arrest & detention? May it be done during a
strike?
Except on grounds of national security and public peace, or in case

of a commission of a crime, there must first be a filing of notice and a
permission/consultation from DOLE to conduct an arrest or preliminary
investigation.
33

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LABOR RELATIONS, Notes 1st Semester SY 2012-2013, Atty.

What law governs government employees?

Article 276. The terms and conditions of employment of all government

However, the Labor Code governs employees of government-owned or

PHILIPPINE NATIONAL OIL COMPANY-ENERGY DEVELOPMENT CORPORATION vs. HON.

What are the relevant laws as far as labor is concern?

International Labor Organization.

As member country of ILO, we should subscribe to whatever

Does the Constitution favor the labor?

It is not really intended to favor the labor.

Labor laws are not really pro-labor

It favors labor only in case of doubt

If the law is clear, even if it is prejudicial to labor, apply it.

Can there be equality between Labor and Capital?

Capital = more resources

Labor = inherently at a disadvantage

What does Tri-Partism mean?

Government, employers & employee from the private sector.

What are the basic rights of Employee?

Right to self- organization/association

Right to security of tenure

Right to a healthful and safe working conditions

Right against involuntary servitude

Right to social security & benefits

What are the basic rights of Employers?

Right to select, dismiss & terminate

Right to adopt rules

Right to pay wages

Right to control the means & methods

Right to profits & expansion

It is inherent in our being even if the Constitution does not provide.

Basic right to property

Business is a property to the employer.

But it does not give you an unbridled license to abuse

Service/employment is a property to the employee.

Therefore, both have the right to protect its property.

Rule in Labor Relations

One who is engaged in the service of another; who performs

The term employee

1. Shall include any employee

2. And shall not be limited to the employee of any particular

3. And shall include any individual:

a. Whose work has ceased as a consequence of, or

b. And who has not obtained any substantially

Independent Contractor = Job Contractor

Contractor = Labor Only Contractor

Independent Labor Only Contractor

Outsourcing services Supplying workers

Confirming element 1.With substantial 1. Control by the

Example Programming Services Programmers

1. Selection & engagement

4. Control over means & methods

The test of whether a labor controversy comes within the definition

Includes any controversy or matter concerning terms or conditions

Why do workers organize?

Commonality of interest - the one that binds different groups of

A lot stronger when it deals with the employer

For wages, security of tenure

Refers to any union or association of employees in the private sector

Legitimate Labor Organization?

Refers to any labor organization in the private sector registered with

If not registered with DOLE, is it illegal?