Edwin Villa LABOR LAW 2 REVIEWER DEAN S.

POQUIZ LECTURE

LABOR RELATIONS

CONSTITUTIONAL PROVISION

 Art. 13 – Rights of worker

o Rights to self-organization
o Rights to living wage
o Right to collective bargaining or negotiation
o Right to security of tenure
o Right to just and humane condition of work
o Right to engage in peaceful concerted activities
o Right to strike in accordance with law
o Right to participate in formulation of policy and decision making processes with the
management (Principle of co-determination, principle of shared responsibilities)
o Right to profit sharing benefits
 Art. 12, Sec.6
o Principle of Distributive Justice – defusing, regulate the enjoyment of property ownership for
the common good via the power of eminent domain.
 Art. 19, Sec.5 – right to self-organization of government
o Cannot have CBA but can have CNA
 Art. 19, Sec. 2 (1) – Scope of Civil Service
o Chartered government corp., governed by CSC
o Subsidiary of chartered government corp. organized under Corporation Code, LC.(Corporate
offspring)

TYPES OF EMPLOYEES

1. Regular employees
 Whether continuous of broken, so long as the employment is for more than one year, regular
employment.
 Constant Rehiring, renewal of contract plus one year = regular employment
 Necessary and desirable to the usual business or trade of the employer
 Usual trade and business = main undertaking of the employer
 Expiration of the training period
o Training Period
 For Apprentice – not more than 6 months but not less than 3 months
 Combo of Theoretical Instruction plus OJT(Practical application)
 The apprenticeship period is considered as the probationary period
 Double apprenticeship is not allowed (apprenticeship plus probationary
period). It is against public policies.
 Apprentice is entitled to not less than 75% of the minimum wage as issued by
the wage board.
 Q: Is the apprentice entitled to full month pay? A: Upon the expiration of the
apprenticeship period or if the training company availed of the tax deduction
scheme for apprenticeship salary, must pay 100%.
 Learnership – engaged in non – apprenticiable or less skilled work, OJT plus optional
theoretical instruction

1
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

 Not less than 3 months

 No double learnership, period is probationary period
 Fixed at 75% of minimum wage as per wage order
 Once taken in after learning period, entitled to full compensation
 Disabled/Handicapped – maybe regular employee if employed in a job which is usually
necessary and desirable to the usual trade of business of the employer which his
performance is not affected by his disability.
 Age, Physical, mental and sensory defects
 Nature of Training – as an apprentice or learner – apply the rule

NB: Q: Who has jurisdiction over learnership and apprenticeship disputed? A: Plant Committee then
Department of Labor and Employment. Labor Arbiter has no jurisdiction. (PAL vs Pano)

2. Probationary Employment
 Period can be less than six months, if favorable to the employee as provided for the employer.
 SC: 18 months probationary period can be warranted when the job required extensive training. The
law provides for six months.
 During this period, employees are required to comply with the employer’s standards.
 Probation extension: allowed when agreed upon by the parties when necessary to comply with the
probationary standards of the employer. What is prohibited is double probation.
 But after the extension, the employee still have not reached the standards, employer can terminate
the employee.

3. Seasonal Employment
 From season to season
 Performing the same task

4. Project Employment
 Hired for specific undertaking or project
 Upon termination of project, automatic cessation of employer and employee relationship
 Q: What if there is illegal dismissal during the project? Answer: Reinstatement during the period of
the project and back wages but only during the term of the project.
 Q; when can a project employee be a regular employee? A: Employers are required to submit
termination report of the project to the nearest to the DOLE Office, failure to do this would make
project employees as regular employee.

5. Non - project Employees

 Hired without reference to a specific project or job.
 Hence, they belong to a work pool.
 Q: Are they required to go under probationary period? A: Yes.
 They will be assigned to various projects or phase of such.

6. Fixed Term Employees

 Contractual employees
 Upon signing of the contract, employees knew when it will expire

2
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

 Once rehired, they will morphed into regular employment. EXPTN: Seamen, even if rehired cannot be
regular employees (Millares vs NLRC)

7. Casual Employees
 Activity performed is not usually necessary or desirable in the usual business or trade of the ER (not
regular); not project; not seasonal.
 He is uniquely regular because his “regularness” attaches only to the particular activity that he has
been doing while still a casual.

Prescriptive Period:

1. Purely Money Claims – 3 years

2. Criminal cases under LC -3 years, as a general rule.
 Exemptions are:
a. Simple Illegal Recruitment – 5 years
b. Qualified Illegal Recruitment - 20 years
3. ECC Cases -3 years
4. Illegal Dismissal – 4 years
5. GSIS Claims – 4 years
 Exemption: Payment of premium, its 20 years.(SC)
6. SSS Claims – for payment of premiums, 10 years
7. Sexual Harassment – 3 years but SC, no prescription, even after four years.

Requirements for Appeal

1. Payment of appeal fee

o Jurisdictional requirement – no payment, appeal will be dismissed for lack of jurisdiction
2. Submission of memorandum of appeal to LA a quo who will submit it to the NLRC office which has
appellate jurisdiction over the LA a quo.
o The NLRC Commissioner can notify the parties to have amicable settlement base on Art. 221
of LC.
o No amicable settlement, proceed with decision.
o When affirmed in toto, reinstated to the payroll.
o Losing party, file Motion for Reconsideration. Only one MR is allowed. This is a condition sine
qua non for filing of certiorari. (St. Martin’s Funeral Home vs. NLRC)
o When MR denied, file a certiorari under Rule 65 to CA within 60 days.
o When Certiorari was denied or unfavorable, file MR again, then when denied thus upholding
NLRC decision, certiorari to SC.
o SC can only review question of law, but can review question of facts when
1. When decision of LA, NLRC and CA are contrary, in collision or diametrically opposed
to each other.(SC)
o Filing and reckoning period
 Reckoning Period: Upon receipt of the counsel of record
 Philpost: The date of mailing, date of filing
 Private Carrier: The date of receipt of private party, date of filing
3. Pay appeal Bond

3
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

o Cash and surety bond only, but

 UERM Case: Property bond can be posted provided it is sufficient to cover the
monetary award
 Bank certification, irrevocable bank guarantee are not allowed
 Q: Can you file a motion to reduce bond? A; Yes, but it must be coupled with the
payment of the reasonable amount of the bond. Without the payment, the period will
not be tolled.

JURISDICTION OF LABOR ARBITER

Exclusive and Original Jurisdiction

1. Unfair labor practices

2. Termination cases
3. Big Money claims, 5k up
 More than 5k, LA has jurisdiction
i. EXPTN: Big Money Claims bore out of the power of inspection of
Secretary of Labor.
ii. Power of inspection – by Sec. of Labor via the Regional Director or his
representatives. Can be done moto propio or by a Labor Standards
Complaint of an employee supported by 20% of all the employees of
the employer/plant.
1. Enforcement Order has the force and effect of a writ of
execution.
2. When amount is contested:
 If the pieces of evidence are readily available in the
ordinary course of inspection, the Regional Office
retains jurisdiction. If not, it will be transmitted for
compulsory arbitration to the Regional Arbitration
Branch of the NLRC, thus LA.
4. Small money claims with demand for reinstatement
 5k or less, but with claim for reinstatement.
 Without demand for reinstatement, Regional Director. Thus his decision is
appealable directly to the NLRC.
5. Other cases involving employer – employee relationships
 Causal relation between employer – employee. Without this, regular courts
will have jurisdiction.
 Apply the Four Fold Test to determine employer - employee
i. Selection and engagement of the putative employee
ii. Manner of payment of salary or wages
iii. Presence or absence of the power of dismissal
iv. Presence or absence of the power control
1. Has primacy over all other
2. Q: Are all kinds of control indicative of EE-EM relationship? A:
No. If there is lesser control, no relationship. More control,
there is relationship (Jay Sonza case)

4
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

3. Other test in determining relationship.

 Economic relations test – Sevilla vs. CA: The prevailing
economic relationship of employer and employee can
be indicative of a relationship.
 Q: Are there instances when there is no formal contract
of employment but the law mandates the existence of
employer – employee relationship? A: Yes. 1. In cases of
labor only contracting. As penalty, actual employer
deemed as employer of the contractual employee, the
contractor will be deemed as the agent of the former.
 Q: Can contractual employees form a union in
the actual employer’s premises when there is a
labor only contracting? A.1: Yes, because the
law mandates that the actual employer is the
employee of the contractor’s employee.
A.2: In cases of Working Scholars – under
the law, the agreement, no employer –
employee relationship.
Requirements: There must be a real
opportunity to finish the course.
NB: For purposes of civil damages, the working
scholar will be treated as employee and the
school as an employer, particularly in quasi-
delics.
6. Legality of strike and Lockout
 Strike is the most lethal weapon on employees
i. May affect the socio-economic situation of a country that is why there
is a law on strike.
ii. Requirements to stage a lawful strike
1. Based on a valid ground
 Two Grounds
 CBA Deadlock
 ULP
 Union Busting (w/c is also ULP)
o NB: Inter/Intra Union Disputes, wage
distortion issues are not strikable issues.
2. Approved by the majority of the total membership of the
union through strike voting
3. Filing of a Notice of strike
 To be filed with NCMB, which will look into the factual
grounds of the strike. It will either dismiss it by issuing
a preventive mediation order which will have the
effect of making the strike illegal if it still undertaken
and will convert the issue into a preventive mediation
case.

5
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

 Must be filed before 30 days in case of CBA Deadlock

and 15 days for ULP. The period is known as the
Cooling Off Period. Here, the Grievance Machinery in
the CBA will be exhausted.
 7 days after failure of the Grievance Machinery, the
issue will be submitted to Voluntary Arbitration
conducted by a 3rd non-partisan person known as the
Voluntary Arbitrator whose decision will be appealable
to the CA under Rule 43.
 Principle of Improved Offer – through secret balloting,
union members can choice whether or not to accept the
improved offer of the union.
 Principle of Reduced Offer – through secret balloting,
the BOD or members of the governing body of the
company can choice WON to accept the reduced offer
of the union.
 In both cases, it will have the effect of retuning
to industrial peace=workers return to work,
employer accepts workers and resumes
operation.
 Compulsory Arbitration – when the
government intervenes.
 Q: During the cooling off period, officers of the union
were dismissed that seems to tantamount to union
busting. May the union immediately strike? A: SC: If
there is union busting and the union has already
complied with the 24 hour prior notice rule, 7 day
strike report and the notice of strike has already been
submitted, then a strike can be staged.
4. Compliance of the 24 hour prior notice rule of strike vote
 Separate notice to DOLE and employer of the place,
time and date of the strike vote 24 hours before it is
staged.
5. Submission of the strike vote report
 Must be submitted 7 days before the strike.
 Q: What if the strike vote was submitted during the
cooling off period? A.: The strike vote 7 day period must
be reckoned from the expiration of the cooling off
period.
6. Compliance of the doctrine of means and purposes
 The purpose of the strike must be legal and the
means to attain the purpose must be also legal. (e.g.
uttering libelous remarks during the strike. Thus,
commission of illegal acts during a lawful strike, the
strike can be declared illegal.)

6
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

7. For Hospitals and Medical Institutions: designation of an

effective skeletal force.
 NB: Officers of the union is liable for dismissal for
masterminding the illegal strike. Basis: Doctrine of
Vicarious Liability.
 Members of the union who actively participated in the
illegal strike will also be liable for dismissal.
 Q: Are the abovementioned dismissed employees
entitled to back pay? A: As a general rule, no. Reason:
No work, no pay. But if they are:
 Discriminatorily dismissed
 Illegally locked out by employer
 When the workers unconditionally offer to
return to work but they were denied to return
to work….
…they can return to work
 Once a strike is declared legal, the workers cannot be
liable for damages that occurred during the strike
based on the doctrine of damnum absque injuria.
 You must be unionized (legitimate, registered) before
your strike can be declared legal.
 Q: Can a union not registered conduct a Certification
election? A: Yes, in case of a local chapter issued with a
chapter certificate. Here the charter member was
issued a charter for purposes of certificate election.
Other privileges accorded to a union will be withheld
for the meantime until completion of the other
requirements.
 Principle of Comingling – the rank and file union and
the supervisory union of the same company can join the
same federation.
 Q: Can government employees unionize? A. Yes. But
they don’t have the power to collectively bargain. They
can only have the power to collectively negotiate. They
also cannot strike because according to SC, strike of
government employees is a civil service offense. They
serve the people. If you allow the government
employees to strike, it will tremendously affect the
delivery of public service. It tantamount ultimately as
an assault to the sovereignty.
 GOCC employees without original charters can
unionize and strike. LRTA vs Benus: SC said LRTA is a
GOCC with original charter, thus its employees cannot
strike. However, employees of its subsidiaries or

7
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

Corporate Offspring of GOCC with or without original

charter, can strike.
 Managerial, and Confidential employees cannot join a
labor union and strike.
 For confidential employee, they must have access to
labor relations matters to be disqualified for union
membership.
 Cooperative employees who are also members thereof
cannot unionize.
 Religious Objectors can choose not to join a union.
However they can vote in certification election.

iii. Types of Strikes

1. Authorized strikes
 There must be a strike vote.
2. Unauthorized strikes
 When the there is no strike vote – Wild Cat strike
3. General Strike
 No EE-EM Relationship
 Welga ng Bayan – SC a form of Sympathetic Strike
 Political in Nature
 Industry wide strike –e.g. all employees of the air
transportation in the RP
 According to SC, these strikes are unwarranted
4. Lightning Strike
 Brief strike that was stage in short duration
5. Slowdown Strike
 To reduce company reduction
 Types
I. Sit down – strikers remain in the plant
but they reduce company reduction
II. Quickie – some may remain in the plant
or some may be outside the plant
6. Economic Strike
 Staged as a result of a collective bargaining deadlock
7. ULP Strike
 Staged in violation of the worker’s right to self
organization
7. Damages
8. Employees of GOCC without original charter
9. OFW
 Based on Section 10 of RA 8042 as amended RA 10022
10. Over certain churchmen (pastor, ministers)
 If it’s purely religious function, LA has no jurisdiction.
 But if not, it has jurisdiction.

8
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

11. Collateral Matters

 Incidental to the main case
 Q: Can a LA award attorney’s fees in an illegal dismissal case? A: Yes. When the
LA has jurisdiction over the main issue of the case, it has jurisdiction over
collateral and incidental matters.
12. 3 Party Compliant of a party not connected to a Labor case that has been affected by
rd

its execution.

NB. Except as otherwise provided by this code. These matters are beyond the jurisdiction of the Labor
Arbiter.

1. Inter/Intra Corporate Disputes

2. Training and learnership agreement disputes
3. Labor cases against company under rehabilitation proceedings
4. International bodies and organizations
o This will be violative of the convention on protocol and a violation of its functional immunity.
o DFA vs CA: ADB is an international organization outside the reach of LA.
5. Art. 263 (g) – Assumption power, preemptive power
 Provides that the President or Secretary of Labor can assume jurisdiction of a labor
dispute involving industries indispensable to national interest for its resolution.
 The state and government is a passive party.
 Q: Can assumption be moto propio? A: Yes.
 Q: Can one of the parties to a labor dispute involving a labor dispute in an industry
indispensable to national interest file a motion for assumption? A: Yes, either by the
union or the employer.
 Once assumption is made, an assumption order will be issued.
 Legal effects of assumption order:
 Once issued, it has the effect of a writ of injunction.
 A return to work order is deemed written on the assumption order.
 The workers must report back to work. Failure to do so would mean that they
are now engaging in a prohibited/illegal activity.
 All issues cognizable by the labor arbiter under art. 217 can now be resolved
by the assumption officer, when it is raised under assumption.
 UST Faculty Union vs. UST: Assumption of jurisdiction contemplates actual
reinstatement only. Thus, no choice between payroll or actual reinstatement
unlike in illegal dismissal.

POWERS AND JURISDICTION OF THE NLRC

1. Contempt Power
 Two Types
i. Indirect Contempt
1. To be dealt with by the NLRC and its rules.
ii. Direct Contempt
1. By the Rules of Court (R71)
2. Injunctive Power
2. Certification Power

9
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

 Art. 263 (g) Assumption powers of President and/or Secretary of Labor.

 The President or the Secretary of Labor, upon assumption, can also certify the
labor dispute assumed to compulsory arbitration. Thus, it is certified to the
NLRC which will resolve the dispute.
 Q: Can the labor dispute be certified for voluntary arbitration? A: Yes. If the
Secretary of Labor deems it fit for voluntary arbitration.
3. Appellate Power
 Decisions of LA under Art. 217
 Decisions of LA under Art. 128 (b) in relations to contested cases
 Decisions of LA arbiter in wage distortion in non-unionize companies.
 Elements of wage distortion (Pru Bankers Case)
i. Existence hierarchy of positions
ii. There in an increase in the lower pay class with no
corresponding increase higher pay class
iii. Abolition of the two groups or classes
iv. Wage distortion applies only to the same region
 NB: Q: Who has jurisdiction over wage distortion problem?
 A: For unionize establishment – Voluntary Arbitrator

For non - unionize establishment – Labor Arbiter.

NB: Although wage distortion problems are not

strikable, but for failure to pay the increase pursuant to
the wage order, the employer will be liable to pay
double the amount of the increase under the Doctrine
of Double Indemnity.

 Decisions of the LA pursuant to Sec. 10 of RA 8042 in cases of OFW.

 Decisions of the RD of their adjudicatory functions under Art. 129 of LA.
o Adjudicatory Function
 Indications:
1. Filed by house worker or employee
2. No more employer and employee
3. No more claim for reinstatement
4. Claim is not more than 5k.
4. Injunctive Power
 A hearing must be conducted to observe due process.
 Q: Is there a provision in the LC that a TRO is issued without conducting a
hearing by the NLRC? A: Yes, a TRO is a mere interlocutory order. Thus can be
issued ex parte. But for injunction, a hearing is indispensible

ILLEGAL DISMISSAL (Step by step procedure)

 File it with the Regional Arbitration Branch of the NLRC which has territorial jurisdiction over the
workplace of the complainant.
 Mandatory Preliminary Conference. Resort to amicable settlement as per Art. 221 of the LC. Second
MPC, if first attempt is not successful.

10
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

 After second MPC, no amicable settlement, LA will mandate parties to submit position papers.
o SC: Position papers proceedings are not in violation of due process. Through their papers, they
are heard. Plus, technical matters are not binding in labor proceedings being an administrative
proceeding.
o Q: Can one of the parties file a motion to have a trial type proceeding? A: Yes, but subject to the
discretion of the LA.
 When final paper has been submitted, LA has 30 days to decide.
 Ten calendar days to appeal
 No appeal, immediately self-executory as to the reinstatement aspect. No need for writ of execution.
 Virgen Shipping case: As to other matters, a writ of execution is needed. To be filed after period to
appeal expired and no appeal is made.
 After the motion for execution, LA will set it for pre-execution conference to abbreviate the
proceedings as to Art. 221 of LC.
 If after the pre-execution conference, no settlement, proceed to execution.
 Garnishment and levy is allowed when no money to answer for the judgment.
 3rd party complaint is cognizable by LA for execution.
o Instances when you can lift or quash the writ of execution:
 Issued against a non-party
 Issued on account of graft and corruption
 Issued on account that the awards is incomplete
 Irregularly issued

NB: Doctrine of Immutability of Final Judgment: Final judgments are final and cannot be modified.

 Grounds for Appeal

o Grave abuse of discretion
o Graft and corruption
o Serious errors in the finding of fact
o Fraud

COLLECTIVE BARGAINING AGREEMENT

 Q: What are the modes of determining the representation status?

1. Voluntary Recognition – it requires that there is no other union. Only one union has
the support of the majority of the employees. The employer and employee must inform
the Regional Director of the DOLE of the fact of the voluntary recognition. From date
of recognition, the union becomes a legitimate labor organization.
o Q: Does the one year bar rule also apply to voluntary recognition? A:
Yes, no election can be held, 12 months from the date of the final
voluntary recognition election results.
2. Consent election – the election was agreed upon by two or more union.
o Q: Is intervention of DOLE required in consent election? A: No.
Intervention is subject to the discretion of workers.
o One year bar rule also applies.
3. Certification election – one which is conducted among three or more union. This is
treated as the sole concern of the employees and the employer is a mere by stander
and it is the best forum in determining the will of the employees.

11
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

o Sole Concern Rule

o By stander Rule
o Best Forum Rule
 Majority must vote – 50% plus one
 One of the unions or a no union should have garnered the majority vote.
(Second Majority Rule) Provided 50% of the majority validly cast their
votes.
 A no union may win in certification election. When a no union win, the one
year bar rule will still applies.
 In consent election, 25 % Subscription or Consent Requirement must be
present. If attained, holding of certification election is mandatory, if not
discretionary. SC: Even if 25% not attained, consent election can still be
held because it is the best way to attain the will of the workers.
 Instances when holding of certification election is not allowed:
i. Contract Bar Rule – no CE can be conducted during the lifespan of
the CBA except during the 60 day period (Freedom Period) before
the expiration of the 5 year life span of the CBA
 Exemption to the contract bar rule:
a) If the CBA is not registered
o Still valid as to parties but a CE can now be
conducted.
b) If the CBA is incomplete, inadequate or sub
standard. (Sweetheart Contract)
c) If the CBA is hastily entered into or prematurely
extended.
d) In cases of mass disaffiliation in the bargaining
agent.
o Q: Can the remaining officers of the union
still bargain with the employer? A: Yes.
Until and unless it lost in a certification
election, it is still the bargaining agent.
ii. One Year Bar Rule – no CE may be held one year after the final
result of a prior election. This applies to all election.
iii. Deadlock Bar Rule – a notice of strike is filed with the NCMB which
has been the subject of conciliation, mediation, exhaustion of
grievance machineries, improved offer balloting, reduced offer
balloting.
iv. Charge of Company Union Rule –SC: If there is charged of company
unionism which is an unfair labor practice, it is a prejudicial
question which must be resolved first before conducting a
certification election.
v. Negotiation Bar Rule – if there is a collective bargaining negotiation
in the company premises, it will be a bar for certification election.
vi. Appeal Bar Rule – if there is pending appeal over a decision of the
med arbiter elevated to the Secretary of Labor, pending decision,
no certification election can be held.

12
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

4. Run off or second election

o Contested between two unions garnering the highest number of votes
in a prior election
o A no union does not exist in a runoff election
 Contents of a CBA
1. Preamble
2. Union prerogatives
3. Management prerogatives
4. Economic clauses
5. Non – economic clauses
6. Union Security Clauses
7. Escalator Clause
8. Family planning clauses
9. Union Education Clauses
10. Grievance Machinery Clause
11. Drug Free Provision Clause
12. Separability Clause
13. Effectivity Clause
14. Automatic Renewal Clause
15. No strike, no lock out clauses
1. Q: can the union waive the right to strike? A: Generally, no. EXPT: By inserting in the
CBA a “no strike, no lock out clause”
 Term of CBA
1. As to representation aspects – 5 years
2. As to renegotiation aspects – 3 years
 Q: Upon expiration of the CBA, and no new CBA has been agreed upon yet, what will govern? A: Old
CBA subsists under the Principle of CBA Continuity.
 Q: Can the parties agree to suspend collective bargaining for 10 years? A: Yes, in order to provide
stability and predictability of collective bargaining agreements for the benefit of both parties.
 SC: The Company can sue employees for violation of a CBA provision.
 Q: Why do workers unionize? A: 1. In order to have relative equality in the bargaining process with
the employer. 2. Security of tenure. 3. Attain maximum economic benefits in the collective bargaining
agreement.
 Q: Can a single employee bargain with management? A: Yes, there is no law prohibiting individual
bargaining.
 Q: If an employer is already giving out voluntary benefits, can the employees still demands for 13th
Month Pay? A: It depends. If the amount of voluntary benefits given is equal to the amount of the 13th
Month Pay, no more. But if it’s less, they can.
 In the event that the CBA is approved, it will govern the company premises or the law of the plant.
Thus, the law of the plant is another name for a CBA.
 Whatever benefits that the CBA may bring, non members of the union are also benefitted. They are
not required to pay union dues but they will pay agency fees that will be of the same amount as that
of union dues. Payment of the agency fee is known as the agency shop, maintenance of the treasury
shop, anti-hitchhiker clause, anti-free rider clause.

13
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

 Q: Is there still a need for the union and the company to agree to impose agency shop? A: No need. The
agency shop agreement is already provided for by law.
 Doctrine of Union Monopoly/Exclusive Right Rule – the certified union is the only bargaining agent
allowed to bargain with the management to the exclusion of the other unions in the plant or company
premises.

UNFAIR LABOR PRACTICES

 An act either by the employer or the union, their agent or representatives which violates the
constitutional right of the workers to self organization.
 There must be employer and employer relationship.
 Instances when ULP can be committed even if there is no EE-EM relationship:
1. When committed by agents or representative
2. Yellow dog contract – an applicant is made to denounce his membership to a union
or promised not to join one as a condition for employment. Hence, being an
applicant, no employer and employee relationship yet.
 Two Types of ULP
o By employer
1. Interference, restraint , coercion in the formation of a union
 Discourage the formation or continuation of a union
 3 ways of commission
i. Economic
ii. Psychological
iii. Physical
2. Yellow dog contract
3. Discrimination
 Not per se illegal. Only if it’s designed, calculated to discriminate the
officers and members of union with regards to benefits due to all
employees.
 It maybe management prerogative. But if it’s a grand design to undermine
the union, then it is ULP
4. Forming or assisting in forming a company dominated union
 SC: Passivity of a union is an indication of a company dominated union.
 Organize with help or assistance of management.
 Economic, legal support from employer
5. Refusal to bargain collectively
 Duty to bargain collectively – mutual obligation of the parties to bargain
and negotiate with matters regarding terms of employment and
adjustments of grievance machineries for redress of grievances promptly,
expeditiously and in good faith.
 Standards of Collective Bargaining;
i. Mutual – either the parties may initiate collective bargaining.
 Union may submit CBA proposal. Employer, after
10 days, may submit a counter proposal. Failure to

14
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

submit a counter proposal will amount to refusal to

bargain, thus a ULP and the CBA submitted by the
union will be governing CBA in the plant.
 Q: A counter proposal was submitted, the employer
made it hard for employees to bargain during the
negotiations with no real intention to sign a CBA. Is
the employer guilty of ULP? A: Yes, the employer is
guilty of Surface Bargaining.
 Blue Sky Bargaining - the union submitted a
proposal which contains economic demands
beyond the reach and capacity of the employers,
thus sky high.
 Runaway Shop – when the employer remove his
plant or office from one place to another in order to
evade unionism or collective bargaining and
relocate it to another place which is called as
runaway area.
 Q: Is it valid to strike in the Runaway Area? A: Yes.
According to the Labor Code, strike areas also
include runaway areas.
ii. Prompt
iii. Good faith
 Q: What if employer submit a counterproposal on a
take it or leave it basis, is the employer liable for
refusal to bargain collectively? A: Yes. The
employer is guilty of “Boulwarism.” This is
considered a malpractice which is a violation of
good faith bargaining.
6. Contracting out of services
 SC: Mere contracting out within the period of six months is valid. But if it
goes beyond six months, it is ULP. Because employer deny the strikers the
opportunity to pursue their work.
7. Gross and flagrant violations of the CBA
 Refers to economic provisions

o By Union
1. Interference, restraint , coercion in the formation of a union
2. Discrimination
3. Payment of Negotiation Fees
 It is when in order to settle economic provisions in CBA, union demands from
employer negotiation fees.
 Sweetheart Contract – when the CBA was not able to get full economic
benefits for employees, or it’s an incomplete CBA. Example: when CBA does not
have an arbitration clause.

15
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

NB: An incomplete CBA does not bar a certification election. Thus

o
not bar on holding another certification election during the 12
month ban.
4. Gross and flagrant violations of CBA
5. Refusal to bargain collectively
6. Featherbedding Activities
 Union demanding from employers for fees on services rendered or not
rendered, performed or not performed.
 Prolonging the work
 In short, the union is engaged in extortion

BAR AREAS:

Occupational Disease: Under the law, it must be listed as an occupational disease. Book IV of the Labor Code
enumerates the disease as compensable. Does it mean to say that if the disease is not listed, it is not
compensable? Under the new law, it must be listed but if it is not listed, it is not compensable. However, there’s
an exception, if the employee dies of a hemorraghic pancreatitis (bangungot).

In injuries/death, the one liable is the State Insurance Fund. This fund is given by the employer for its employees.

Doctrine of Limited Liability of State Insurance Fund: The State Insurance Fund is not liable. How? In case of
intoxication, self-inflicted injury, notorious negligence.

Exceptions: (suicide is compensable)

 Insanity
 Worker is in a state of delirium or point of death
 Uncontrollable impulse

Example: worker deliberately disregarded his own notorious personal safety.

Tanduay Rhum Doctrine: workers wanted to drink after a hard day’s labor. They consumed all the alcohol. One of
the workers was still sober. So he rotated his eyeballs, he saw a night oil of winter green. So he dies instantly. It is
compensable. The SC reasoned that in taking this mentholatum, there was no advisory from his co-workers that
the drink was fatal.

Illegal dismissal cases

What are the grounds for appeal?

 Grave Abuse of Discretion

 Errors in the findings of law
 Fraud
 Graft and corruption

What are the requisites for appeal?

16
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

 Payment of docket fee,

 filing fee,
 appeal fee (not a matter of procedure but a jurisdictional requirement)
 Submission of the Memo of Appeal

Is the non-furnishing of the MOA a fatal defect? NO. Only a mere procedural formal lapse.

Posting of a Bond

Two types: Cash and Surety

Surety issued by a reputable surety company: registered by insurance company and accredited by both Supreme
Court and NLRC.

How do you determine the amount? Does the LA fix it? No. It is the law fixes. The monetary award excluding
damages and attorneys fees.

Can you substitute a cash or surety bond with a bank guaranty? No.

A Deed of Assignment of a bank deposit is also not allowed to be substituted for cash or surety bond.

One exception: UERM ruling (The appellant employer can post a property bond if the amoutn is substantial to
cover the monetary award).

How much can you post? Reasonable amount. You can post a partial bond.

Reinstatement is NOT proper under the following circumstances:

Employee does not want to be reinstated but in lieu of this he should be paid separation pay and backwages;

Dismissal for cause;

Principle of waiver/laches

No legal prohibition for an employee to strike out a living while waiting for the execution of the case.

Unreasonable delay when an employee does not assent his right to be reinstated for 4 years. Claim for
reinstatement has become stale.

If there is severe antagonism between employer and employee, then the proper remedy is to pay separation pay
and backwages as a form of compromise instead of reinstatement.

Physical disability

Prescription: 4 years! Why? SC said 4 yrs. prescriptive period in Civil Code is followed. There is injury to the right
of the workers.

Employee has become overaged/retirable.

Employee is not conducive to working harmony (Strained Relations)

Closure of business: Although reinstatement is a legal impossibility, it is physically impossible.

17
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

OFWs = like seamen; no reinstatement; LA has jurisdiction.

Power to decide/resolve certified cases c.f. Assumption of Jurisdiction (Art. 269 (g))

How may the NLRC resolve vital industry disputes?

The President and Sec. of DOLE may assume jurisdiction in an industry vital to national interest that may trigger
strike/labor dispute.

RA 6715 (Revised Labor Code) speaks about industries indispensable to national interest.

Assumption of power is a polic regulation; plenary, full, complete and at the same time discretionary.

Can the SOLE assume jurisdiction to an industry not vital to national interest? Hopia Factory cases says Pwede!
Assumption order is plenary, full and discretionary.

When will DOLE assume jurisdiciton?

 Motu proprio
 Motion of employer
 Petition for assumption of Union
 Joint petition of both employer and Union

DOLE assumes jurisdiction then he issues:

Issues assumption of jurisdiction

May the DOLE resolve it by himself? YES.

May a VA resolve a vital to industry dispute? By agreement of employer and union, yes he can. To authorize the
VA/Panel of Arbitrator, they must submit a submission agreement.

Assumption of Jurisdiction’s legal effects:

It has the effect of a Writ of Injunction but does not have to comply with a WOJ’s requisites;

A return to work order us deemed written in the Assumption Order;

Striking worker should return to work. Otherwise, they can be dismissed since they are doing a prohibited act.

Striking worker must be reinstated in the same working conditions. AOJ contemplates only actual reinstatement.

Exception: payroll reinstatament under special circumstanes

DOLE exercises concurrent jurisdiction over cases cognizable by the LA such as monely claims, ULP, I.D.

May DOLE order reinstatement, award full backwages? YES.

May VA order reinstatement and order backwages? YES.

18
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

What is ULP? It is an act of employer, employee or agents which violates the constitutional right of the worker to
self-organization and the right to engage in a peaceful concerted activities for their mutual benefit.

A ULP is a criminal/civil offense. LA has no jurisdiction over the criminal aspect, it is the regular court that has
jurisdiction.

There must be a final verdict of LA on administrative or civil aspect of such ULP before filing it before regular
courts.

There must be ER-EE.

ULP by employer

Interference, restraint, coercion

Interference to the right of workers to self-organization.

Yellow-dog, violation of CBA, etc.

Refusal to Bargain Collectively

Concept of the Duty to Bargain Collectively = under the LC, a mutual obligation between the employer and union,
etc.

Requires reasonable bargaining process.

Standards of collective bargaining: (1) mutual bargaining; (2) prompt expeditious bargaining; (3) good faith
bargaining.

Who initiates CB?

a. Union or Employer can initiate.

Union submits a CBA proposal, what then?

To submit a counter CBA proposal.

If the employer procastinates the submission of counter CBA, then that is an indication of refusal to bargain
which is a favor of ULP.

The employer finally submits a counter CBA and he tells a union to take it or leave it (Boulwarism).

The employer submits a counter CBA proposal; discusses matters that are off-tangent.

Blue sky bargaining: beyond the capacity to give.

Employer sold stocks to dummy corporation; business operation transferred to another are a just to evade CB.

Can employers strike in the area? YES. Strikes/strike area includes run-away shops which is ULP

Discrimination – discrimination per se is not ULP but if its designed to discourage unionism; it is ULP.

19
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

 Company unionism
 Company-dominated union
 Organized at the instance of the employer thru legal, economic support

It is an active union but later on became passive, inactive, worst, a dormant union because of legal, economic,
psychological support.

Providing negotiation fees to union for the union to negotiate with the employer;

Union accepting negotiation fees.

Giving out testimonies before a judicial or quasi-judicial body. Employer disallowing an employee from
participating in a certification election case.

If the contracting out is made to an independent contractor, it must not exceed more than 6 months, otherwise,
ULP siya.

Flagrant or gross violation of the CBA

Are strikers entitled to economic benefits? NO (Gen Rule)

Exceptions:

1) strikers were discriminatorily dismissed;

2) strikers did not strike but were illegally locked out;

3) strikers unconditionally offered to return to work was rejected by the employer.

20
Edwin Villa LABOR LAW 2 REVIEWER DEAN S. POQUIZ LECTURE

21
Edwin Villa Labor Law 2 Reviewer Dean Poquiz Lecture

22