ASUNTO LEGAL SHOW

PROGRAM FLOW
ISSUE OF THE DAY: LABOR CODE OF THE

VS/ TECHNICAL

PHILIPPINES / PRESIDENTIAL DECREE NO. 442,

SUPPORT

AS AMENDED LABOR STANDARDS

SET 1
TOPIC : INTRODUCTION and other PRELIMINARY
matters
TIME: 4:00- 4:15pm
INTRO:
1. Recap of the Last Episode
2. Introduction of todays episode
Last episodes we discussed about the different rights
and protection afforded by law to our working men and
women. We also talked about the different employment
contracts and working arrangement allowed under the
labor code. Today, we are still dedicating this episode
to our working class with special focus on Labor
Relations.
But before that, Let us start by talking about
Due Process in terminating an employee or also
known in the Philippines as Two-Notice or TwinNotice Rule. We will also discuss about the rights of
an employee when he was not afforded due process in
his termination.
what is due process?
A fundamental, constitutional guarantee that all legal
proceedings will be fair and that a person will be given
notice of the proceedings and an opportunity to be
heard
Two Facets of due process : a) legality of the act of
dismissal under just cause <substantive> and b) the
legality of the manner of dismissal <procedural>
Due process necessitates the compliance of both
procedural and substantive aspects.

Substantive Due Process we discussed last week

about just cause and authorize causes.
Procedural
If the dismissal is based on a just cause as defined in
Article ___, the law requires an employer to give the
employee two written notices before terminating his
employment
TWO-NOTICE RULE
(1) a notice charging the employee of the particular
acts or omissions that may cause his dismissal;
(2) the subsequent notice which informs the
employee of the employers decision
First Notice (Notice To Explain) : The Written
Charge
1. must detail and specify particular acts,
commissions, and omissions that the employee
allegedly did
2. specifies that the employee is being charged
formally with a violation of rules , which
management must specify
3. should specify what options there are for the
employee : either to explain, to air his side, to
confront the witnesses
4. Management must give the employee ample
opportunity to defend himself, the period of
which is duly stipulated in the notice
The Second Notice :

Notice of Decision

1. Result of an objective evaluation of the charges

against the employee, whether such results are
considered favorable or not the part on the
erring employee
2. It should consider his defenses and explanations
3. If management sustains its actions, this notice
should contain why it is sustaining its actions,
and why management did not consider the
defenses of the employee (due consideration of

all circumstances, grounds have been

established, etc.)
4. It should inform without equivocation
managements decision to discipline or dismiss
5. Sent to the last known address of the employee,
through registered mail

In general, an illegally dismissed employee is

entitled to one or more of the following reliefs:
1. 1. Reinstatement;
2. 2. Payment of Backwages;
3. 3. Separation Pay;
4. 4. Payment of Damages; and
5. 5. Award of Attorneys Fees.

Right to Reinstatement.

An employee who is unjustly dismissed from work is

entitled to reinstatement without loss of seniority
rights and other privileges.
Remedy when Reinstatement is no Longer Possible. in some instances, although the dismissal of the
employee is determined to be illegal, reinstatement
may no longer possible for a number of reasons. In
such case, separation pay in lieu of reinstatement may
be awarded.
Following are some of the instances where
payment of separation pay is allowed in lieu of
reinstatement:
1. When the relationship between the employer
and the employee had become strained as to
preclude a harmonious working relationship;
2. When reinstatement becomes a legal
impossibility;
3. When the employee no longer wish to be
reinstated;
4. When prudence and fair play so dictates; and

5. When reinstatement is not practicable due

to loss of confidence.

Right to Backwages.

An employee who is unjustly dismissed from work

shall be entitled to his full backwages, inclusive of
allowances, and to his other benefits or their monetary
equivalent computed from the time his compensation
was withheld from him up to the time of his actual
reinstatement.
Computation of Backwages.
Inclusive period. Full backwages is to be computed
from the time compensation was withheld from the
employee up to the time of his actual reinstatement.
Base figure. The based figure to be used in the
computation shall include not just the basic salary,
but also regular allowances and other benefits or their
monetary equivalent, i.e., transportation, emergency
living allowance, 13th-month pay, etc.
Wage rate. The computation of backwages may be
based either on the current wage rate or the wage rate
at the time of the dismissal. If current wage rate is
awarded, it must be expressly stated in the decision. If
not expressly stated (award is unqualified), the wage
rate at the time of the dismissal should be used.

Separation Pay.

As stated above, separation pay is the relief awarded to

employee when reinstatement is no longer feasible or
practicable, or when reinstatement is no longer
desirable or will not serve the best interest of the
parties.
Amount of Separation Pay: Formula.
The amount of separation pay in lieu of reinstatement

is not fixed by the Labor Code. But the trend in recent

cases is to compute the same using the formula one
month pay, or one month pay per year of service. (This
formula was used in the 2005 case P. J. Lhuillier vs.
NLRC.) In other older cases, the court used one half
month pay per year of service.

LABOR RELATIONS
What are the different rights found in Labor
Relations?
1.
2.
3.
4.
5.

Right
Right
Right
Right
Right

to
to
to
to
to

Security of Tenure.
Just Share in the Fruits of Production.
Self-Organization.
Bargain Collectively.
Strike and Other Peaceful Concerted

Action.
6. Right Against Unfair Labor Practices
What is a Labor Organization? any union or
association of employees which exist in whole or in
part for the purpose of (a) collective bargaining or (b)
for dealing with employers concerning terms and
conditions of employment
What is a legitimate labor organization? one
which is duly registered with the Department of Labor
and Employment.
What distinguishes a legitimate labor organization?
-Right to represent its members for purposes of
collective bargaining.
-Right to be certified as exclusive representative of
all employees in bargaining unit for purposes of
collective bargaining
-To be furnished financial records
-To sue and be sued in its registered name
- To own property
-To undertake programs to benefit the org/
members

Requirement for Registration

Registration fee Names of officers, their addresses,
the address of the org., minutes of org. meeting and
list of workers who participated. Names of all
members who comprise 20% of all employees in the
bargaining unit where it seeks to operate. Annual
financial records. Copies of constitution and by-laws
Critical requirements to be able to register
Membership must be at least 20% of all the employees
in the bargaining unit
What is a bargaining unit?
It is a group or cluster of jobs or positions that
supports the labor organization which is applying for
registration.
Test whether the bargaining unit is appropriate- if it
will best assure to all employees the exercise of their
collective bargaining rights.
What is an employer unit? Refers to a case where
there is only 1 bargaining unit for all the employees of
the company.
Another way of organizing as a labor union
Affiliation as a chapter of an existing labor federation
or a national union.
What is a labor federation or national union?
Duty of an employer when workers organize
Self-organization is a constitutional right. Therefore,
the company must respect the right of employees to
organize
Penalty for infringing on the right to unionize
-Unfair labor practice is a prohibited act.
-It is considered a criminal offense.
-Penalty includes imprisonment and payment of fine.

What happens when a union is

organized/registered?
It becomes entitled to the privileges of a legitimate
labor organization. But it is not automatically a
bargaining agent or majority representative. To be a
bargaining agent, it needs to be certified that it is the
exclusive bargaining agent
UP NEXT: We will discuss how one labor organization
becomes a certified bargaining agent.
SET 2
TOPIC : Certified Bargaining Agent
TIME 4:15-4:30 PM
What is needed to be Certified as a Bargaining
Agent? It must win a certification election; or, It is
voluntarily recognized by the employer; or, It is
selected by the employees through a consent election
What is a Certification Election (CE)?
It is a process by which the members of a bargaining
unit choose one among contending unions to be its
exclusive bargaining agent.
Non-adversarial
Fact-Finding
Administered by DOLE
Important things related to CE
Who can participate in Certification Election?
Role of Employer in a Certification Election: Neutral
Observer.
When a union fights in a CE and loses, does it
mean that it does not have any more duty to its
members?
It continues to represent its members but it does not
have the right to engage in collective bargaining.
What is the importance of being a bargaining

agent? A bargaining agent possesses the right, by law,

to demand from the employer that it negotiates with it
(union) terms and conditions of employment, including
wages, hours of work, and rates of pay.
Product of Bargaining A collective bargaining
agreement or CBA, if the union is able to have an
agreement with the employer about its proposed terms
and conditions of employment.
Recourse of Union in the event of failed
negotiations It can engage in strike. It can engage in
other concerted activities. All of which are protected
by law if no criminal act attends the holding of said
actions.

UP NEXT: What is the concept of Unfair Labor

Practice? What are the different ULPs? Who commits
them? What should be the proper action to be taken
by the aggrieved parties?
SET 3
TOPIC : UNFAIR LABOR PRACTICES
TIME 4:30-4:45 PM
What Is the concept of Unfair Labor Practice?
Unfair Labor Practices violate the constitutional right
of workers and employees to self-organization, are
inimical to the legitimate interests of both labor and
management, including their right to bargain
collectively and otherwise deal with each other in
atmosphere of freedom and mutual respect, disrupt
industrial peace and hinder the promotion of healthy
and stable labor management relations.
Consequently, unfair labor practices are not only
violations of the civil rights of both labor and
management but are also criminal offenses against the
state which shall be subject to prosecution and
punishment as herein provided.
Unfair Labor Practices may be committed by

employers or the labor organizations.

What are the diff ULPs committed by Employers?
(Article 254)
a. To interfere with, restrain or coerce employees in
the exercise of their right to self-organization
b. To require as a condition of employment that a
person or an employee shall not join a labor
organization or shall withdraw from one to
which he belongs
c. To contract out services or functions being
performed by union members when such wull
interfere with, restrain or coerce employees in
the exercise of their rights to self-organization
d. To initiate, dominate, assist or otherwise
interfere with the formation or administration of
any labor organization, including the giving of
financial or other support to it or its organizers
or supporters.
e. To discriminate in regard to wages, hours of
work and other terms and conditions of
employment in order to encourage or discourage
membership in any labor organization*
f. To dismiss discharge or otherwise prejudice or
discriminate against an employee for having
given or being about to give testimony under this
code;
g. To violate the duty to bargain collectively as
prescribed by this code
h. To pay negotiation or attorneys fees to the union
or its officers or agents as part of the settlement
of any issue in collective bargaining or any other
dispute
i. To violate a collective bargaining agreement
Who will be criminally liable?
Only the officers and agents of corporations,
associations, partnerships who have actually
participated in, authorized or ratified unfair labor
practices shall be held criminally liable.
What are the different Unfair Labor Practice by
Labor Organizations? (Art. 255)

It shall be unfair labor practice for a labor

organization, its officers, agents or representatives :
a. To restrain or coerce employees in the exercise of
their right to self-organization. However, a labor
organization shall have the right to prescribe its
own rules with respect to the acquisition or
retention of membership
b. To cause or attempt to cause an employer to
discriminate against an employee, including
discrimination against an employee with respect
to whom membership in such organization has
been denied or to terminate an employee on any
ground other than the usual terms and
conditions under which the membership or
continuation of membership is made available to
other members;
c. To violate the duty or refuse to bargain
collectively with the employer, provided it is the
representative of the employees;
d. To cause or attempt to cause an employer to pay
or deliver or agree to pay or deliver any money or
other things of value, in the nature of an
exaction for services which are not performed or
not to be performed, including the demand for a
fee for union negotiations;
e. To ask for or accept negotiation or attorney;s
fees from employers as [art of the settlement of
any issue in collective bargaining or any other
dispute; or
f. To violate a collective bargaining agreement
Who shall be held criminally liable?
Only the officers, members of governing boards,
representatives or agents or members of labor
associations or organizations who have actually
participated in, authorized or ratified unfair labor
practices shall be held criminally liable.

UP NEXT:

SET 4
TOPIC : GRIEVANCE MACHINERY AND VOLUNTARY
ARBITRATION
TIME 4:45-5:00 PM
What is a Grievance? A grievance is defined by the
collective bargaining agreement. Generally speaking, a
grievance is any difference or dispute between an
employee or the union, and the employer with respect
to the interpretation, application, or of compliance
with any terms and conditions of the contract.
In the broadest sense, grievance includes all
dissatisfaction that arise in an organization whether
unionized or not.
The expansion of original and exclusive jurisdiction of
voluntary arbitrators to include questions arising from
the interpretation and enforcement of company
policies has the effect of widening the meaning and
interpretation of grievance to include a situation where
there is no collective bargaining agent and no CBA.
.
The kinds of labor disputes are : Compensation
disputes, benefits, working conditions, organizational
right dispute, representation dispute, bargaining
dispute, contract administration or personal policy
disputes, employment tenure disputes
The grievance procedure refers to the internal
rules of procedures intended to resolve all issues
arising from the implementation and
interpretation of the CBA. Established by the
parties in their CBA, this grievance procedure leads to
voluntary arbitration as the final step. It is part of the
continuous process of collective bargaining, which
intended to promote friendly dialogue between labor
and management as a means of maintaining industrial
peace.
STEPS IN GRIEVANCE HANDLING
Step 1. Shop floor level. Presentation by the
employee problems to the foreman or supervisor who

would listen to the employee and record the facts of

the problem. The supervisor should settle the problem
within three (3) days. If the employee is not satisfied,
proceed to step 2.
Step 2. Plant level. Discussion of the problem
between the employee, the supervisor, and the
department manager takes place. If no satisfactory
solution within seven days, proceed to step 3.
Step 3. Top level. Discussion of the problem between
the supervisors, the department manager, the
complainant, and top management (President or
General Manager). If no satisfactory solution within
ten (10) days, proceed to step 4.
Step 4. Arbitrators level. The problem or case may
be taken to voluntary arbitration for final decision.
1. The agreement should provide adequate stated
time limits for the presentation of grievances
and disputes, thus rendering of decisions, and
the taking of appeals.
2. Issues should be clearly formulated at the
earliest possible moment. In all cases, which
cannot be settled in the first informal
discussions, the positions of both sides should
be reduced to writing.
3. Management and union should encourage their
representatives to settle at the lower steps
grievances, which do not involve broad questions
or policy, or of contract interpretation and
should delegate sufficient authority to them to
accomplish this end.
4. Provision should be made for priority handling
of grievances involving discharge, suspension, or
other disciplinary action.
5. The procedure should be open to the submission
of grievances by all parties to the agreement.