LABOR RELATIONS
TITLE 1
POLICY AND DEFINITIONS
CHAPTER 1
POLICY
Article 211 Declaration of Policy
A. It is the policy of the state:
(a) To promote and emphasize the primacy of free collective
bargaining and negotiations, including voluntary arbitration,
mediation, and conciliation, as modes of settling labor or
industrial disputes;
(b)To promote free trade unionism as an instrument for the
enhancement of democracy and the promotion of social justice
and development;
(c) To foster the free and voluntary organization of a strong and
united labor movement;
(d)To promote the enlightenment of workers concerning their
rights and obligations as union members and as employees;
(e) To provide an adequate administrative machinery for the
expeditious settlement of labor or industrial disputes;
(f) To ensure a stable but dynamic and just industrial peace; and
(g)To ensure the participation of workers in decision and policy
making processes affecting their rights, duties and welfare.
B. To encourage a truly democratic method of regulating the relations
between the employers and employees by means of agreements
freely entered into through collective, bargaining, no court or
(a) Commission
(b)Bureau
(c) Board
(d)Council
(e) Employer includes any person acting in the interest of an
employer, directly or indirectly. The term shall not include any labor
organization or any of its officers or agents except when acting as
employer;
(f) Employee
(g)Labor Organization
(h)Legitimate Labor Organization
(i) Company Union
(j) Bargaining Representative
(k)Unfair Labor Practice
(l) Labor Dispute
(m)
Managerial Employee
(n) Voluntary Arbitrator
(o)Strike
(p)Lockout
(q)Industrial Union Dispute
(r) Strike Breaker
(s) Strike Area
TITLE II
NATIONAL LABOR RELATIONS COMMISSION
CHAPTER I
following
are
the
qualifications
of
the
chairman
and
(c) Preferably a resident of the region where they shall hold office.
The following are the qualifications of Executive Arbiters and Labor
Arbiters:
(a) Must be a member of the Philippine Bar;
(b) Must have been engaged in the practice of law in the Philippines for at
least ten (10) years, at least five (5) years of which must relate to experience
or exposure in the field of labor management relations.
Term of office
The commissioners of the NLRC and the Labor Arbiters shall hold
office during good behavior until the age of sixty-five (65) years, unless
sooner removed for cause or become incapacitated to discharge their
duties.
The President of the RP may extend the services of the
commissioners and labor arbiters up to the maximum age of seventy (70)
upon the recommendation of the commission en banc.
Article 216 Salaries, Benefits and other Emoluments
NLRC Commissioners
Chairman same salary, allowances and retirement benefits, and
allowances as that of the Presiding Justice of the Court of Appeals.
Members same salary, allowances and retirement, benefits as those
of the Associate Justice of the CA.
Labor Arbiters are entitled to the same salary, allowances, retirement
and benefits as that of a judge of the RTC.
While Article 217 of the labor code speaks of original and exclusive
jurisdiction, the very same provision allows certain agency to share such
jurisdiction under certain conditions.
(a) Under Article 262 of the labor code, voluntary arbitrators are
vested with authority to hear and decide unfair labor practices and all other
labor disputes, upon agreement of the parties.
(b) Under Article 263 (g) of the labor code, the Secretary of Labor and
Employment is authorized to assume jurisdiction over a labor dispute
causing or likely to cause a strike or lockout in an industry indispensable to
national interest.
Unfair Labor Practices
An unfair labor practice case is a suit which charges a party with any
of the acts enumerated in Article 248 and 249 of the labor code.
Termination Disputes
General Rule: The labor arbiter has original and exclusive jurisdiction
over termination disputes involving all employees, whether agricultural
and non-agricultural.
Exceptions: The following termination disputes are beyond the
jurisdiction of the labor arbiters:
(a) Disputes involving termination of corporate officers;
(b) Termination disputes arising from interpretation
or
from
enforcement
of
disciplinary rules and regulations falls within the original and exclusive
jurisdiction of the labor arbiter.
Termination disputes involving employees of electric cooperatives fall
within the jurisdiction of labor arbiters and not with the National
Electrification Administration.
Money claims of employees
If there is a demand for reinstatement, claims of employees for wages,
rates of pay, hours of work, and other terms and conditions of employment
fall within the original and exclusive jurisdiction of labor arbiter, regardless
of the amount involved.
If there is no demand for reinstatement, the following are the rules:
The labor arbiter has original and exclusive jurisdiction over the
claims for actual, moral exemplary and other forms of damages arising
from the employer-employee relations.
To be cognizable by the labor arbiter, the claim for damages must
have a reasonable causal connection with any of the claims provided for in
Article 17 of the labor code.
If there is no reasonable causal connection with any of the claims
provided for in Article 217 of the labor code, the claim for damages will not
fall within the jurisdiction of the labor arbiter. This is exemplified by the
following illustrative cases:
(a) Claim for damages arising from negligence of a co-worker;
(b) Claim for damages arising from breach of contract of employment;
(c) Complaint for damages arising from malicious prosecution;
(d) Claim for damages arising from slanderous remarks of a corporate
officer;
Cases arising from violation of Article 264 of the labor code
The labor arbiter has original and exclusive jurisdiction over cases
arising from any violation of Article 264 of the labor code, including
questions involving the legality of strikes and lockouts. The jurisdictional
grant has two (2) aspects, namely:
(a) Jurisdiction over cases arising from any violation of Article 264 of the
labor code;
(b) Jurisdiction over questions involving legality of strikes and lockouts;
All other claims arising from employer-employee relations
All other claims arising from employer-employee relations, including
those persons in domestic or house hold service involving an amount
Venue
All cases which Labor Arbiters have authority to hear and decide
may be filed in the Regional Arbitration Branch having jurisdiction over the
workplace of the complainant.
Period to decide cases
Article 217 (a) of the labor code mandates Labor Arbiters to decide
cases within thirty (30) calendar days after the submission of the case of
stenographic notes. However, cases involving overseas Filipino workers
shall be decided by the Labor Arbiter within ninety (90) days after the filing
of the complaint.
Jurisdiction of the NLRC
Original jurisdiction
The following cases fall under the original jurisdiction of the NLRC:
(a) Cases certified to it by the Secretary of Labor and Employment pursuant
to Article 263 of the labor code; and
(b) Injunction cases under Articles 218 (e) and 264 of the labor code.
Appellate jurisdiction
The following cases fall under the exclusive appellate jurisdiction of
the NLRC
(a) Cases decided by the RD-DOLE under Article 129 of the labor
code;
Article 218 Powers of the commissionThe powers of the NLRC could be classified into
(a) Rule making power;
(b) Investigative power;
HOWEVER, if the consideration for the compromise was very much less
than the amount which the employee was entitled, it may be set aside for
being contrary to law, morals, or public policy.
A compromise entered into through a lawyer or representative is
conclusive or binding only:
(a) When the client has expressed his consent to compromise; or
(b)When the lawyer or representative is equipped with a special power
of attorney.
REMEDY IF THE COMPROMISE IS VIOLATED
When the terms of a compromise are violated, the aggrieved party can
avail of the following remedies:
Violation of a compromise agreement
(a) File the necessary action or motion to enforce the compromise;
(b)Regard the compromise as rescinded and insist upon his original
demand.
Violation of a compromise judgment
(a) File a motion for execution, in case of non-compliance;
(b)File an action to annul the compromise judgment on the ground of
mistake, fraud, violence, intimidation, undue influence, or falsity in
the execution of the compromise embodied in the judgment.
(c) File a petition for relief from judgment under Rule 38 of the Rules of
Court on the ground that the judgment was obtained through fraud,
mistake or excusable negligence.
ARTICLE 229. Issuance of Subpoenas. The Bureau shall have the power
to require the appearance of any person or the production of any paper,
document, or matter relevant to a labor dispute under its jurisdiction
either at the request of any interested party or at its own initiative.
Program. Any amount collected under this provision shall accrue to the
Special Voluntary Arbitration Fund.
The Bureau shall also maintain a file, and shall undertake or assist
in the publication of all final decisions, orders, and awards of the
Secretary
of
Labor
and
Employment
Regional
Directors
and
Commission.
PURPOSE OF REGISTRATION
The purpose of requiring the registration of a collective bargaining
agreement is to put notice on the existence of such agreement in order to
promote its stable and undisturbed administration.
Registration of a collective bargaining agreement is NOT ESSENTIAL to its
validity. Even if not registered, it is still valid and binding between the
parties.
PERIOD WITHIN WHICH TO REGISTER
The collective bargaining agreement should be registered within thirty (30)
days from execution.
Application for registration of multi-employer collective bargaining
agreements shall be filed with the BLR.
Supporting Documents
(a) Collective Bargaining agreements;
(b)Statement that the CBA was posted in at least two (2) conspicuous
places in the establishment for at least five (5) days before it
ratification; and
(This is mandatory requirement, its purpose being to inform the
employees in the bargaining unit of the contents of the agreements
(1) Re-Filing within the ten (10) day period from notice, re-file the
application with complete supporting documents
(2) Appeal if the application for registration is denied on other
grounds, the remedy is to appeal the order of denial within ten (10)
days from receipt.
ARTICLE 232. Prohibition on Certification Election. The Bureau shall not
entertain any other petition for certification election or any other action
which may disturb the administration of duly registered existing
collective bargaining agreements the parties EXCEPT under Articles 253,
253-A, and 256 of this code.
(d)If the applicant union has been in existence for one or more
years, copies of its annual financial reports; and
(e) Four copies of the constitution and by laws of the applicant
union, minutes of its adoption or ratification and the list of the
members who participated in it
ARTICLE 234-A Chartering and Creation of a Local Chapter A duly
registered FEDERATION or NATIONAL UNION may directly create a
local chapter by issuing a charter certificate indicating the establishment
of the local chapter. The chapter shall acquire legal personality only for
purpose of filing a petition for certification election from the date it was
issued a charter certificate.
The chapter shall be entitled to all other legal rights and privileges
of a legitimate labor organization only upon the submission of the
following documents in addition to its charter certificate.
(a) The names of the chapters officers, their addresses, and the
principal office of the chapter; and
(b)The chapters constitution and by laws; PROVIDED, that where
the chapters constitution and by laws are the same as that of the
federation or the national union, this fact shall be indicated
accordingly;
The additional supporting requirements shall be certified under
oath by the secretary or treasurer of the chapter and attested by its
president.
LABOR ORGANIZATION
appealed by the applicant union to the Bureau within ten (10) days from
notice thereof.
Grounds for Denial of Registration
The Regional Office of the DOLE or the BLR may deny the application for
registration of a labor organization on the following grounds:
a. Falsification or serious irregularities in the application for registration
or its supporting documents;
b. Non compliance with the requirements for registration, particularly
the certification and attestation requirements;
c. Failure to complete the registration requirements within thirty (30)
days from notice.
REMEDY
If the application for registration is DENIED on grounds other than
failure to submit the complete requirements, the remedy is to appeal the
order of denial within ten (10) days from receipt to the:
1. BLR if the order of denial was issued by the Regional Office of the
Department of Labor and Employment;
2. Office of the Secretary of Labor and Employment - if the order of
denial was issued by the BLR.
ARTICLE 237 Additional Requirement for Federation or National Unions
[subject to Article 238], If the applicant for registration is a federation
or a national union, it shall, in addition to the requirements of the
preceding articles, submit the following:
3. Annual financial reports if the applicant has been in existence for one
or more years.
4. Constitution and by-laws, minutes of its adoption or ratification, and
the list of the members who participated in it.
5. Resolution of affiliation of at least ten (10) legitimate labor
organization, whether independent or chartered locals, each of which
must be a recognized or certified bargaining representative on the
establishment where its seeks to operate.
6. Names and addresses of the companies where the affiliates operates
and list of all the members in each company involved.
AFFLIATES are independently registered union, hence, they have a legal
personality of their own, separate and distinct from that of their mother
union.
CHARTERED LOCALS are not independently registered unions their
legal personality is derived from their mother union or federation, upon
issuance of a Certificate of Creation of Chartered Local.
The relationship between a federation and a local union or affiliate is
that of a principal-agent. This principal agent relationship exists even if the
local union is not independently registered.
Creation of Chartered Local
A duly registered federation or national union may directly create a
charter local by submitting to the Regional Office of the DOLE two (2)
copies of the following documents:
1. Charter certificate issued by the federation or national union
indicating the creation or establishment of the local/chapter.
REPORT OF AFFILIATION
Affiliation of an independently registered labor union with a
federation or national union shall be reported to the RO-DOLE that issued
its certificate of registration.
period,
including
an
updated
list
of
authorized
Election Protest the five day period for filing a protest in a certification
election does not apply to a protest in an election of union officers.
Compensation of union officers the officers of any labor organization shall
not be paid any compensation other than salaries and expenses due to their
positions as specifically provided for in its constitution and by-laws, or in a
written resolution duly authorized by the majority of all the members in a
general meeting duly called for the purpose.
Union Funds
collective bargaining;
2. To be CERTIFIED as the exclusive representative of all the
bargaining
agreement,
or
during
the
collective
bargaining negotiation;
4. To own property, real or personal, for use and benefit of the labor
TITLE V
COVERAGE
ARTICLE 243 Coverage and Employees Rights to Self Organization All
persons employed in commercial, industrial, and agricultural
enterprises and in religious, charitable, medical or educational
institutions, whether operating for profit or not shall have the right to
self organization and to form, join, or assist labor organizations of
their own choosing for purposes of collective bargaining. Ambulant,
intermittent and itinerant workers, self employed people, rural
workers and those without any definite employers may form labor
organizations for their mutual aid and protection.
ARTICLE 244 Right of Employees in the Public Service Employees of
government corporations established under the corporation code shall
have the right to organize and to bargain collectively with their
respective employers. Al other employees in the civil service shall
have the right to form association for purposes not contrary to law.
ARTICLE 245 Ineligibility of Managerial Employees to join any Labor
Organization; Right of Supervisory Employees Managerial employees are
not eligible to join, assist or form any labor organization. Supervisory
employees shall not be eligible for membership in a labor
organization of rank and file employees, but may join, assist or form
separate labor organizations of their own.
TITLE VI
UNFAIR LABOR PRACTICES
CHAPTER I
CONCEPT
ARTICLE 247 Concept of Unfair Labor Practice and Procedure for Prosecution
thereof Unfair labor practices violate the constitutional right of workers
and employees to self organization, are inimical to the legitimate interest
of both labor and management, including their right to bargain
collectively and otherwise deal with each other in an 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 offense
against the State which shall be subject to prosecution and punishment
as herein provided.
Subject to the exercise by the President or by the Secretary of Labor
and Employment of the powers vested in them by Articles 263 and 264 of
this Code, the civil aspects of all cases involving unfair labor practices,
which may include claims for actual, moral, exemplary, and other forms
of damages, attorneys fees and other affirmative relief, shall be under the
jurisdiction of the Labor Arbiters. The Labor Arbiters shall give utmost
priority to the hearing and resolution of all cases involving unfair labor
practices. They shall resolve such cases within thirty (30) calendar days
from the time they are submitted for decision.
Recovery of civil liability in the administrative proceedings shall
bar recovery under the Civil Code.
Unfair labor practices are acts that transgress the right of employees
to self organization. Consequently, it can be committed only against an
employee who exercises or has exercised his right to self organization. It
cannot be committed against an employee who is not connected with any
labor organization.
CHAPTER II
UNFAIR LABOR PRACTICES OF EMPLOYERS
ASSISTING
OR
SUPPORTING
LABOR
ORGANIZATION
It is unfair labor practice on the part of the employer to initiate,
dominate,
assist
or
otherwise
interfere
with
the
formation
or
first be decided before conducting the certification election. The reason for
this is to prevent the selection of a company-dominated union.
DISESTABLISHMENT
Disestablishment is an order requiring an employer to withdraw its
recognition of a company dominated union as the employees collective
bargaining agent and a bona fide and sufficient communication to the
employees of such withdrawal of recognition.
DISMISSAL OR DISCRIMINATION BECAUSE OF TESTIMONY
It is unfair labor practice for an employer to dismiss, discharge, or
otherwise prejudice or discriminate against an employee for having given
or being about to give testimony under the Labor Code.
VIOLATION OF THE DUTY TO BARGAIN COLLECTIVELY
The duty to bargain collectively means the performance of a mutual
obligation to meet an convene promptly and expeditiously in good faith for
the purpose of negotiating an agreement with respect to wages, hours of
work and all other terms and conditions of employment including
proposals for adjusting any grievances or questions arising under such
agreement and executing a contract incorporating such agreement if
requested by either party, but such duty does not compel any party to make
any concession.
PAYING NEGOTIATIONS FEES OR ATTORNEYS FEES TO THE UNION
It is unfair labor practice on the part of an employer to pay
negotiation fees 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.
CAUSING
AN
EMPLOYER
TO
DISCRIMINATE
AGAINST
AN
EMPLOYEE
It is unfair labor practice for a labor organization, its officers, agents
or representatives to:
1. Cause or attempt to cause an employer to discriminate against an
employee;
2. Discriminate against an employee with respect to whom membership
in such organization has been denied; or
3. Terminate an employee on any ground other than the usual terms
and conditions under which membership is made available to other
members.
VIOLATION TO BARGAIN COLLECTIVELY
It is unfair labor practice on the part of a labor organization, its
officers, agents or representatives to violate the duty to bargain collectively
or refuse to bargain collectively with the employer, provided it is the
representative of the employees.
FEATHERBEDDING
Featherbedding is the act of causing or attempting to cause an
employer to pay or deliver any money or other things of value for services
which were not performed or not to be performed.
DEMANDING/ACCEPTING NEGOTIATION FEES
It is unfair labor practice for a labor organization, its officers, agents
or representatives to ask for or accept negotiation or attorneys fees from
COLLECTIVE
BARGAINING
AND
ADMINISTRATION
OF
AGREEMENTS
ARTICLE 250
Collective bargaining is one of the democratic frameworks under the
labor code designed to stabilize the relation between labor and
management and to create a climate of sound and stable industrial peace.
It is a mutual responsibility of the employer and the union and is
characterized as a legal obligation.
It is simply a process of finding a reasonable solution to a conflict and
harmonizing opposite positions into a fair and reasonable compromise.
Collective bargaining process
The petition for certification election shall be in writing and verified by the
president of the petitioning union. It shall contain the following allegation
(a) Name and address of the petitioner and its affiliation, if appropriate,
the date and number of its registration and number of its certificate of
registration. If the petition is filed by a federation or national union,
the date and number of the certificate of registration or certificate of
creation of chartered local;
(b)Name, address, and nature of the employers business;
(c) Description of the bargaining unit;
(d)Appropriate number of employees in the bargaining unit;
(e) Names and address of other legitimate unions in the bargaining unit;
(f) Statement indicating any of the following circumstances:
(i)
That the bargaining unit is unorganized or that there is no
registered collective bargaining agreement covering the
employees in the bargaining unit;
(ii) If there exist a duly registered collective bargaining agreement,
that the petition is filed within the sixty-day freedom period of
such agreement;
(iii) If another union has been previously recognized voluntarily or
certified in a valid certification election, consent election, run off
election, that the petition is filed outside the one year period
from entry of voluntary recognition or conduct of certification
election, consent election, run off election and that no appeal is
pending thereon.
(g)Signatures of at least twenty five percent (25%) of all employees in an
appropriate bargaining unit, if the establishment is organized; and
(h)Other relevant facts.
The absence of an express allegation that the members constitute a proper
bargaining unit is not fatal in a certification proceeding because a
The protesting party must formalize its protest with the Med-arbiter,
with specific grounds, arguments and evidence therefor, within five (5)
days after the close of the election proceedings. If the protest is not
recorded in the minutes of the proceedings or if not formalized within the
prescribed period, the protest shall be deemed dropped.
A certification election may be declared invalid if certain
irregularities were committed during the election. But a mere general
allegation of duress is not sufficient to invalidate a certification election.
There is failure of election when less than a majority of all eligible
voters have cast their votes.
Failure of election shall not bar the filing of a motion for the
immediate holding of another certification/consent election within six (6)
months from the declaration of failure of election.
PROCLAMATION
The Med-Arbiter shall proclaim the union which obtained the
majority of the valid votes cast of the following conditions are met:
1. NO PROTEST has been filed, or if one was filed, the same was not
perfected within the five (5) day period for perfection of the protest;
2. NO CHALLEGE OR ELIGIBILITY issue was raised, or if one was
raised, the resolution of the same will not materially change the
result.
In a certification election, the authority of the Med-Arbiter or election
officer is LIMITED to certifying the winner as the sole and exclusive
bargaining agent.
DIRECT CERTIFICATION is no longer allowed as a method of
selecting the exclusive bargaining agent. (By virtue of E.O. No. 111)
direct certification has been discontinued.
UNORGANIZED ESTABLISHMENT
An unorganized establishment is a firm or company where there is
NO certified or recognized collective bargaining agent for a particular
bargaining unit.
A company where there is a certified bargaining agent for the rankand-file but none for the supervisors would still be considered as
unorganized establishment with respect to the supervisory
employees.
In an unorganized establishment, the mere filing of a petition for
certification election by a legitimate labor organization is enough to
order the holding of a certification election. The 25% consent
requirement is no longer necessary, the same having been expressly
deleted.
ARTICLE 258. When An Employer May File Petition. When requested to
bargain collectively, an employer, may petition the Bureau for an
election. If there is no existing certified collective bargaining
agreement in the unit, the Bureau shall, after hearing, order a
certification election.
a.
b.
c.
d.
VOLUNTARY ARBITRATOR
Is a person accredited as such by the National Conciliation Board and
Mediation Board; or
Any person chosen or designated by the parties in the collective
bargaining agreement;
One chosen with or without the assistance of the National
Conciliation Board and Mediation Board pursuant to a selection
procedure agreed upon in the CBA; or
Any official who may be authorized by the Secretary of Labor and
Employment to act as Voluntary arbitrator upon written request and
agreement of the parties to a labor dispute, whose function is to
resolve the disputes submitted to it by the parties.
disputes fall within a special class of disputes that are generally within the
exclusive original jurisdiction of labor arbiters by express provisions of law.
The jurisdiction of the voluntary arbitrator over the dispute is acquired
upon receipt of the submission agreement duly signed by both parties.
Only when there is an express and specific agreement between the
parties can a voluntary arbitrator exercise jurisdiction over a particular
labor dispute.
ARTICLE 262-A. Procedures The Voluntary Arbitrator or panel of
Voluntary Arbitrators shall have the power to hold hearings, receive
evidences and take whatever action is necessary to resolve the issue or
issues subject of the dispute, including efforts to effect a voluntary
settlement between the parties.
All parties to the dispute shall be entitled to attend the arbitration
proceedings. The attendance of any third party or the exclusion of any
witness from the proceedings shall be determined by the Voluntary
Arbitrator or panel of Voluntary Arbitrators. Hearing may be adjourned
for cause or upon agreement by the parties.
Unless the parties agree otherwise, it shall be mandatory for the
Voluntary Arbitrator or panel of Voluntary arbitrators to render an award
or decision within twenty (20) calendar days from the date of submission
of the dispute to voluntary arbitration.
The award or decision of the Voluntary Arbitrator or panel of
Voluntary Arbitrators shall contain the facts and the law on which it is
based. It shall be final and executory after ten (10) calendar days from
receipt of the copy of the award or decision by the parties.
Upon motion of any interested party, the Voluntary Arbitrator or
panel of Voluntary Arbitrators or the Labor Arbiter in the region where
the movant resides, in case of the absence or incapacity of the Voluntary
Arbitrator or panel of Voluntary Arbitrators for any reason, may issue a
writ of execution requiring the sheriff of the Commission or regular
courts or any public official whom the parties may designate in the
submission agreement to execute the final decision, order or award.
The power and authority of voluntary arbitrators to decide a case is limited
to those matters which have been submitted to them for arbitration.
Decisions or awards of voluntary arbitrators are appealable to the Court of
Appeals under Rule 43 of the Rules of Court. (Read page 356)
The voluntary arbitrator has the power to issue writ of execution and may
require the sheriff of the NLRC or the regular courts or any public official
whom the parties may designate in the submission agreement, to execute
the arbitration award.
In the absence of the voluntary arbitrator or in case of his incapacity, the
motion for issuance of writ of execution may be filed with the labor-arbiter
in the region having jurisdiction over the workplace.
ARTICLE 262-B. Cost of Voluntary Arbitration and Voluntary Arbitrators Fee.
The parties to a Collective Bargaining Agreement shall provide therein a
proportionate sharing scheme on the cost of voluntary arbitration
including the Voluntary Arbitrators Fee. The fixing of fee of Voluntary
Arbitrators, whether shouldered wholly by the parties or subsidized by
the Special Voluntary Arbitration Fund, shall take into account the
following factors:
(a) Nature of the case;
(b)Time consumed in hearing the case;
(c) Professional standing of the Voluntary Arbitrator;
(d)Capacity to pay of the parties; and
(e) Fees provided for in the Revised Rules of Court.
Unless the parties agree otherwise, the cost of voluntary arbitration
proceedings and voluntary arbitrators fee shall be shared equally by the
parties. If their funds are insufficient, they may avail of the subsidy under
the Special Voluntary Arbitrators Fund.
TITLE VIII
STRIKES AND LOCKOUTS AND FOREIGN INVOLVEMENT IN
TRADE UNION ACTIVITIES
Article 263. Strikes, Picketing, and Lockouts.
(a) It is the policy of the state to encourage free trade unionism and
free collective bargaining.
STRIKES
Right to engage in concerted activities
Workers shall have the right to engage in concerted activities for
purpose of collective bargaining or for their mutual benefit and protection.
The more common of these concerted activities are (a) strikes; (b) picketing;
and (c) boycotts.
Strike is any temporary stoppage of work by the concerted action of
employees as a result of an industrial or labor dispute.
To constitute strike, therefore, the concerted stoppage of work must
be:
(a) Temporary; and
(b)The result of a labor dispute.
Kinds of Strikes
(a) Thirty (30) days before the intended date of strike if the ground for
strike is based on collective bargaining deadlock; or
(b)Fifteen (15) days before the intended date of strike if the ground for
strike is based on unfair labor practice.
The purpose of the notice of strike is to provide an opportunity for
mediation and conciliation.
Cooling-off Period
The cooling-off period is the span of time allotted by law for the parties to
settle their disputes in a peaceful manner before declaring a strike. The
duration of the cooling off period are as follows:
1. Thirty (30) days from the filing of the notice of strike if the ground
for strike is based on collective bargaining deadlock; or
2. Fifteen (15) days from the filing of the notice of strike if the ground
for strike is based on unfair labor practice.
Observance of the cooling-off period is MANDATORY, hence, the union
cannot strike before the lapse of the cooling off period. If the union strikes
without observing the cooling-off period, the strike is ILLEGAL.
HOWEVER, in case of unfair labor practice involving dismissal from
employment of a union officer duly elected in accordance with the
constitution and by-laws which may constitute union busting and the
existence of the union is threatened, the 15 day cooling off period need not
be observed and the union may strike after the strike vote is conducted and
the results thereof submitted to the appropriate regional branch of the
National Conciliation and Mediation Board
Strike Vote
The decision to declare a strike must be approved by the majority of
the total union membership in the bargaining unit concerned, through
secret ballot in a meeting or referendum called for the purpose.
The notice of meeting or referendum should be submitted to the
regional branch of the National Conciliation and Mediation Board at least
24 hours before the holding of the meeting or referendum.
The purpose of the strike vote is to ensure that the intended strike is a
majority decision. The law does not authorize a strike to be staged by a
minority group of employees. Hence, a strike declared without approval of
the majority of the total union membership is illegal.
Strike vote report
The union should report to the regional branch of the NCMB the
results of the voting at least seven (7) days before the intended strike.
The purpose of the strike voter report is to give assurance that a strike
vote has been taken and also to enable the majority of the union members
to take appropriate remedy before it is too late, if such reports turns out to
be false.
computing 7 day strike ban, the first day shall be excluded and the last day
included.
Should the dispute remain unsettled after the lapse of the cooling-off
period and the seven day strike ban, the union may go on strike.
Strikes in hospitals, clinics and similar institution are strongly discouraged
because of their effects on the life and health of patients. Should a strike be
declared, the striking union must provide and maintain an effective skeletal
workforce of medical and health personnel whose movement and services
shall be unhampered and unrestricted. The secretary of labor and
employment may immediately assume jurisdiction over the dispute or
certify the same for compulsory arbitration within twenty four (24) hours
from knowledge of the occurrence of the strike.
Legality of Strike
The legality of strike is usually dependent on the purpose sought to
be attained and the means employed therefor. Thus:
(a) If the purpose is lawful and the means employed are lawful, the
strike is legal.
(b)If declared for both a legal and illegal purpose, the strike is illegal in
its entirety;
(c) If the purpose is lawful but the means employed are unlawful, the
strike is illegal.
Illegal Strike
(a) Strike staged on grounds other than those prescribed by law there
are only two grounds for declaring a strike, namely (a) collective
bargaining deadlock; and (b) unfair labor practice. If a strike is
declared on grounds other than collective bargaining deadlock or
unfair labor practice, the strike is illegal.
(b) Strike staged without complying with any of the legal requirement
of a strike the legal requirements of a strike are (a) notice of strike
(b) strike vote; and (c) strike vote report. A strike staged without
complying any of the foregoing requirements is illegal even if the
deficiency is only one (1) day.
(c) Strike declared before the lapse of the cooling off period or the seven
day strike ban observance of the cooling off period and the seven
day strike ban is mandatory.
(d) Strike declared after the Secretary of Labor and Employment has
assumed jurisdiction over the dispute or certified the same for
Article 264
Limitations on the Right to strike or lockout
A strike or lockout cannot be declared:
1. Without first having bargained collectively;
2. Without first having filed the notice of strike/lockout
3. Without the necessary strike or lockout vote first having been
obtained and reported to the DOLE;
4. After the secretary of Labor and Employment assumes jurisdiction or
certifies the dispute to compulsory or voluntary arbitration;
5. During the pendency of case involving the same grounds for the
strike or lockout.
Limitations on the Right to Picket
Persons or employees engaged in picketing are forbidden from:
(1) Committing any act of violence, coercion, or intimidation;
(2) Obstructing the free ingress to and egress from the employers
premises; and
(3) Obstructing public thoroughfares.
For violation of Articles 264 (b), (c), (d) and (e) of the Labor Code, the
remedy is to file a petition for injunction with the NLRC.
In addition, criminal action may be filed for any violation of Article 264 of
the Labor Code, the penalties of which are set forth in Article 272 of the
same code.
Article 265 Improved Offer Balloting
Referendum on Improved Offer
Improved offer balloting is a referendum conducted by the DOLE wherein
the strikers vote by secret ballot on whether to accept the improved offer of
management.
Referendum on Reduced Offer
Reduced offer balloting is a referendum conducted by the DOLE wherein
the board of directors or trustees or the partners holding the controlling
interest in the case of partnership, vote by secret ballot on whether to accept
the reduced offer of the strikers.
Article 278 Coverage The provisions of this title shall apply to all
establishments or undertakings, whether for profit or not.
Unlike the previous law, the provisions of the Labor code on termination of
employment are extended to employees of entities which are not operated
for profit or gain, such as educational, medical, religious or charitable
institutions and organizations. The purpose is this is to extend the
employees of such entities the same rights and benefits granted to workers
of industrial and commercial enterprises.
Article 279 Security of Tenure In cases of regular employment, the
employer shall not terminate the services of an employee except for a just
cause or when authorized by this Title. An employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and 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.
Limitations
Security of tenure is not a guarantee or perpetual employment
because our law, while affording protection to the employee does not
authorize oppression or destruction of an employer.
Managerial Prerogatives
Acts by which one directing a business is able to control the variables
thereof so as to enhance the chances of making profit.
The exercise of managerial prerogatives belongs solely to the
employer. The employer is free to determine, according to his own
discretion and business judgment, all aspects of employment, including
hiring, work assignment, working methods, time, place and manner of
work, tools to be used, processes to be followed, supervision of workers,
working regulations, transfer of employees, work supervision, lay-off of
workers, discipline, dismissal and recall of work.
Prerogative of to choose whom to hire the right to select and appoint
employees is the prerogative of an employer.
Prerogative to promote employees Promotion (Is the advancement from
one position to another with an increase of duties and responsibilities and
usually accompanied by an increase in salary). Just as the employer has the
right to choose whom to promote, the employee also has the right to
decline a promotion. There is no law that compels an employee to accept a
promotion, considering that promotion is in the nature of a gift, or reward
which a person has the right to refuse.
Prerogatives to transfer employees Transfer (is the movement of an
employees from one position to another position of equivalent rank, level or
salary without break in service.) The right to transfer employees is purely
employees. If the transferee was done in bad faith, the liability should be
shared by both transferor and transferee.
Prerogative to Discipline Employees it is the right of an employer to
promulgate rules and regulations and punish employees violating the
same.
Disciplinary Penalties
Disciplinary penalties usually take the form of warning, reprimand,
suspension, demotion, or dismissal from services.
Penalty of Warning Warning is a disciplinary penalty usually imposed
for first offenders who commit a minor offense. It is a caution for the erring
employee to refrain from committing the same offenses in the future under
pain of a more severe penalty.
Penalty of Reprimand Reprimand is a bit more severe than warning in
the sense that it is accompanied by censure, rebuke, or sharp scolding.
Penalty of Suspension Suspension is the temporary separation of an
employee from service. This usually imposed for less serious offenses or for
minor offense that lighter sanctions failed to rectify.
Penalty of Demotion Demotion is the transfer of an employee to a lower
rank or position with corresponding reduction in salary. The right to
demote an employee is part of the disciplinary prerogative of an employer.
Penalty of Dismissal Dismissal is the highest penalty that can be
imposed against an erring employee. Dismissal severs employment ties and
could well be the economic death sentence of an employee. Due to its far
reaching implications, the Labor Code decrees that the employee cannot be
dismissed, EXCEPT for the most serious causes.
should
be
imposed
will
depend
upon
the
surrounding
equivalent
position,
reinstatement
is
rendered
(c) With just cause, i.e. the employee has committed an offense but the
penalty of dismissal is not commensurate.
Full Backwages
If the employee was dismissed on grounds specifically prohibited by law,
i.e. those falling under Articles 118, 137, 248 (f), and 286 of the labor code,
he is entitled to full backwages because, the employee should not have been
dismissed in the first place.
Similarly, if the employee was dismissed without any just cause
whatsoever, i.e. the employee has not committed an offense, he is entitled to
full backwages. The reason is because the employee, does not deserve any
penalty considering that he has not committed any offense.
Limited Backwages
On the other hand, if employee was dismissed without just any cause i.e.
the employee has committed an offense but the penalty of dismissal was
found to be harsh or excessive, full backwages should not be awarded from
his wrongdoing. In such a situation, the employee is entitled only to limited
backwages.
No backwages
Backwages may not be awarded if any of the following circumstances are
present:
(a) Good faith on the part of the employer;
(b)
(b) A type of work which is done on a daily basis but only for a specific
duration of time until completion.
In project employment, the duration of employment is co-terminus with
the work to which the employee was assigned.
Seasonal Employment is a job that is limited to the duration of a
particular season. The employment of seasonal employees is co-terminus
with the duration of the season. HOWEVER, if the same employees are
repeatedly engaged every season, they become regular seasonal
employees, in which case, they cannot be terminated without just cause.
Fixed-Term
Employment
as
general
proposition,
temporary
(b) If it satisfactorily appears that the employer and employee dealt with
each other on more or less equal terms with no moral dominance whatever
being exercised by the former on the latter.
Casual Employment is a job wherein the activities performed by the
employee are not usually necessary or desirable in the usual business or
trade of the employer.
Casual means occasional, coming without regularity. The employment is
purely casual when it is not part of the business in which the employer is
engaged.
A casual employee who has rendered at least one (1) year of service,
whether such service is continuous or broken, is considered a regular
employee with respect to the activity in which he is employed. The regular
status attaches to the casual employee on the day immediately after the end
of the first year of service. The significance of this is that he cannot be
terminated without just cause while such activity exists.
Article 106 and 280 of the labor code should be distinguished from each
other. Article 106 applies to employees hired through a contractor, while
280 applies to employees directly hired by an employer.
COMMENT
Serious Misconduct
Misconduct is improper or wrong conduct. It is the transgression of some
established and definite rule of action, a forbidden act, a dereliction of duty,
willful in character, and implies a wrongful intent and not a mere error of
judgment.
To constitute a just cause for dismissal, the misconduct must be:
(a) Serious; and
(b) Related to or in connection with the employees work.
If the misconduct is not serious it will merely warrant a penalty lesser than
dismissal.
Article 282 (a) of the labor code expressly provides that an employer may
terminate an employment for xxx serious misconduct xxx in connection
with his work. This means that the act complained of must be related to
the performance of the duties of the employee such as would show him
to be thereby unfit to continue working for the employer.
A series of irregularities when put together may constitute serious
misconduct.
Examples of Serious Misconduct
(a) Assaulting an agent of a person in authority committed by a security
guard;
(b) Assaulting a co-employee;
(c) Drunken and disorderly and pugnacious behavior;
Commission of a Crime
Commission of a crime is a ground for dismissal if it is committed by
an employee against the person of the :
(a) Employer;
(b) Immediate member of his family;
(c) Authorized representative of the employer;
Prior conviction is not required mere commission of the crime is enough
justify the dismissal of the employee.
Analogous Cause
In order to be considered analogous, the offense must have an
element similar to those found in the specific just cause enumerated under
ARTICLE 282 of the labor code. Analogous causes contemplate an act that
is due to the voluntary or willful act of the employee.
Illustrative examples of analogous causes.
(a) Gross Inefficiency is closely related to gross neglect, for both involve
specific acts of or omission on the part of the employee resulting in damage
to the employer or to his business.
(b) Inflicting or attempting to inflict bodily injury on the job site on
company time
(c) Unreasonable behavior, quarrelsome, bossy, and very difficult to deal
with
Other valid causes for dismissal
Apart from the foregoing causes, there are other valid grounds for
dismissal, namely:
(a) Violation of company rules and regulations;
(b) Breach of union security arrangements;
(c) Participation in an illegal strike;
(d) Commission of illegal acts during strike;
(e) Defiance of return to work order in a strike; and
(f) Sexual Harassment;
Violation of Company Rules and Regulations
An employer has the right to promulgate rules and regulations and punish
employees violating the same. An employee cannot refuse to comply with
rules and regulations, policies and procedures laid down by the employer
by the simple expedient of challenging their reasonableness.
The following violations of company rules have been held to constitute
valid cause for dismissal:
(a) Violation of the rule against sleeping while on duty;
(b) Violation of the rule prohibiting drinking liquor on company time in
company premises and engaging in an adulterous act of sexual intercourse
with a married female security guard on company time and in company
premises.
(c) Violation of safety rules;
(d) Violation of rule against absenteeism;
(d) If the employee resigns from the contracting union during the freedom
period, the union cannot validly ask for the dismissal of the employee.
Participation in an illegal strike
Any union officer who knowingly participates in an illegal strike may
be declared to have lost his employment status;
Commission of Illegal Acts during a strike
Any union officer or worker who knowingly participates in the
commission of illegal acts during a strike may be declared to have lost his
employment status.
Defiance of return to work order
An assumption or certification order automatically enjoins a strike,
and therefore, the strikers are bound to return to work even if the directive
to return to work is not expressly stated in the order.
Sexual Harassment
Sexual harassment is committed by an employer, employee, manager,
supervisor, or agent of the employer who, having authority, influence, or
moral ascendancy over another, demands, requests or otherwise requires
any sexual favor from another regardless of whether the demand, request is
accepted.
In a work related or employment environment, sexual harassment is
committed:
(a) When sexual favor is made as a condition for hiring, reemployment, or continued employment of an employee; or
be cured within a period of six (6) months even with proper medical
treatment.
If it is certified that the disease or ailment can be cured within the six
month period, the employee should be allowed to take a leave. Upon
restoration of his normal health he should be reinstated to his former
position immediately.
On the other hand, if it is certified that the disease or ailment cannot be
cured within the six month period, the services of the employee may be
terminated, in which case he is entitled to separation pay equivalent to at
least one (1) month salary or to one half (1/2) month salary for every year
of service, whichever is higher.
Article 285 Termination by Employee
(a) An employee may terminate without just cause the employeeemployer relationship by serving a written notice on the employer at
least one (1) month in advance. The employer upon whom no such notice
was served may hold the employee liable for damages.
(b) An employee may put an end to the relationship without serving any
notice on the employer for any of the following just causes:
1. Serious insult by the employer or his representative on the honor
and person of the employee;
2. Inhuman and unbearable treatment accorded the employee by
the employer or his representative.
3. Commission of a crime or offense by the employer or his
representative against the person of the employee or any of the
immediate members of his family;
BOOK SEVEN
TRANSITORY AND FINAL PROVISION
TITLE I
PENAL PROVISIONS AND LIABILITIES
Article 288 Penalties
Comment
Criminal Offenses under the Labor Code
Not every violation of the Labor Code constitutes a criminal offense.
Only those violations which the Labor code declares to be unlawful or
penal in nature are considered as criminal offenses.
Offenses Penalized under the General Penalty Clause
The following offenses are penalized under the general penalty clause
set forth in Article 288 of the Labor Code.
(q) Unfair labor practices of employers;
(r) Unfair labor practices of labor organizations;
(a) From the day of the commission of the violation, if such commission be
known; or
(b) From discovery of the violation and institution of judicial proceedings
for its investigation and punishment, if the commission of the violation was
not known at the time.
In labor cases, laches may be applied only upon the most convincing
evidence of deliberate inaction, for the rights of laborers are protected
under the social justice provisions of the constitution.