UNFAIR LABOR PRACTICES

ART. 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 INTERESTS 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
OFFENSES 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.

NO CRIMINAL PROSECUTION UNDER THIS TITLE MAY BE INSTITUTED WITHOUT A

FINAL JUDGMENT FINDING THAT AN UNFAIR LABOR PRACTICE WAS COMMITTED,
HAVING BEEN FIRST OBTAINED IN THE PRECEDING PARAGRAPH. DURING THE
PENDENCY OF SUCH ADMINISTRATIVE PROCEEDING, THE RUNNING OF THE PERIOD
OF PRESCRIPTION OF THE CRIMINAL OFFENSE HEREIN PENALIZED SHALL BE
CONSIDERED INTERRUPTED: PROVIDED, HOWEVER, THAT THE FINAL JUDGMENT IN
THE ADMINISTRATIVE PROCEEDINGS SHALL NOT BE BINDING IN THE CRIMINAL CASE
NOR BE CONSIDERED AS EVIDENCE OF GUILT BUT MERELY AS PROOF OF
COMPLIANCE OF THE REQUIREMENTS THEREIN SET FORTH. (AS AMENDED BY BATAS
PAMBANSA BILANG 70, MAY 1, 1980 AND LATER FURTHER AMENDED BY SECTION
19, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

ELEMENTS [commission of ULP]:

Employment relationship

The act done is expressly defined in the Code as an act of ULP

Acts opposed to workers right to organize

PROSECUTION of ULP

- To prosecute ULP as CRIMINAL offense is not possible until after finality of

judgment in the labor case, finding that the respondent indeed committed ULP

- Only SUBSTANTIAL evidence is required in the labor case in the NLRC

- JURISDICTION: concurrent jurisdiction of the MTC or RTC

- PRESCRIPTION of OFFENSE: 1 year

UNFAIR LABOR PRACTICES OF EMPLOYERS

ART. 248. UNFAIR LABOR PRACTICES OF EMPLOYERS. IT SHALL BE UNLAWFUL

FOR AN EMPLOYER TO COMMIT ANY OF THE FOLLOWING UNFAIR LABOR PRACTICE:

1) TO INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF

THEIR RIGHT TO SELF-ORGANIZATION;

2) 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;

3) TO CONTRACT OUT SERVICES OR FUNCTIONS BEING PERFORMED BY UNION

MEMBERS WHEN SUCH WILL INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS TO SELF-ORGANIZATION;

4) 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;

5) 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. NOTHING IN THIS CODE
OR IN ANY OTHER LAW SHALL STOP THE PARTIES FROM REQUIRING MEMBERSHIP IN
A RECOGNIZED COLLECTIVE BARGAINING AGENT AS A CONDITION FOR
EMPLOYMENT, EXCEPT THOSE EMPLOYEES WHO ARE ALREADY MEMBERS OF
ANOTHER UNION AT THE TIME OF THE SIGNING OF THE COLLECTIVE BARGAINING
AGREEMENT. EMPLOYEES OF AN APPROPRIATE BARGAINING UNIT WHO ARE NOT
MEMBERS OF THE RECOGNIZED COLLECTIVE BARGAINING AGENT MAY BE
ASSESSED A REASONABLE FEE EQUIVALENT TO THE DUES AND OTHER FEES PAID BY
MEMBERS OF THE RECOGNIZED COLLECTIVE BARGAINING AGENT, IF SUCH NON-
UNION MEMBERS ACCEPT THE BENEFITS UNDER THE COLLECTIVE BARGAINING
AGREEMENT: PROVIDED, THAT THE INDIVIDUAL AUTHORIZATION REQUIRED UNDER
ARTICLE 242, PARAGRAPH (O) OF THIS CODE SHALL NOT APPLY TO THE NON-
MEMBERS OF THE RECOGNIZED COLLECTIVE BARGAINING AGENT;

6) TO DISMISS, DISCHARGE OR OTHERWISE PREJUDICE OR DISCRIMINATE

AGAINST AN EMPLOYEE FOR HAVING GIVEN OR BEING ABOUT TO GIVE TESTIMONY
UNDER THIS CODE;

7) TO VIOLATE THE DUTY TO BARGAIN COLLECTIVELY AS PRESCRIBED BY THIS

CODE;

8) 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; OR

9) TO VIOLATE A COLLECTIVE BARGAINING AGREEMENT. THE PROVISIONS OF

THE PRECEDING PARAGRAPH NOTWITHSTANDING, ONLY THE OFFICERS AND AGENTS
OF CORPORATIONS, ASSOCIATIONS OR PARTNERSHIPS WHO HAVE ACTUALLY
PARTICIPATED IN, AUTHORIZED OR RATIFIED UNFAIR LABOR PRACTICES SHALL BE
HELD CRIMINALLY LIABLE. (AS AMENDED BY BATAS PAMBANSA BILANG 130, AUGUST
21, 1981)

CONDITIONS PRESEDENT to ULP CHARGE

Injured party comes within the definition of employee

The act charged as ULP must fall under the prohibitions of Art. 248 (ACTS OF
EMPLOYER) OR Art. 249 (acts of the union)

BY: Gang Casio

UNFAIR LABOR PRACTICES of EMPLOYERS

Unlawful acts or acts of ULP

1. interference. to interfere with the right of self-organization of employees

Lockout = ULP when it is used as a means of dissuading the employees from

exercising their rights under this act

TEST of Employers Remarks: TOTALITY OF CONDUCT DOCTRINE. The

culpability of employers remarks have to be evaluated not only on the basis of their
implications, but against the background of and in conjunction with collateral
circumstances.

Test of Interference whether the employer has engaged in conduct which it may
be reasonably be said tends to intefere with the free exercise of employees right.

2. yellow dog condition. to require as a condition of employment, that a

person should not join a labor organizations or shall withdraw therefrom

Yellow Dog Contract; Badges

1) a representation by the employee that he is not a member of a labor union

2) a promise by the employee not to join a labor union

3) a promise by the employee that, upon joining a labor union, he will quit his
employment

3. contracting out. to contract-out functions performed by union members in

order to interfere with their right of self-organization

Requisites for Valid Contracting Out

1) made in good faith

2) the contracting out must not have been resorted to, to circumvent the law

3) must not have been the result of malicious or arbitrary action

RUNAWAY shop = ULP. An industrial plant moved by its owners from one location
to another to escape union labor regulations or state laws.

Constructive Discharge when the employer prohibits employees from exercising

their rights under the act, on pain of discharge, and the employee quits as a result
of the prohibition, a constructive discharge occurs.

4. company unionism. support a union in a multi-union establishment. May

be manifested in the following manner:

1) initiation of the company union idea

2) financial support to the union

3) employer encouragement and assistance

4) supervisory assistance

5. discrimination for or against union membership. discriminate union

membership. Union Security Clause is valid.

Mass Layoff = ULP when only union members were laid off and there is no
economic reason to do so.

Sale of Business = ULP if made in bad faith and used only to get rid of the
employees who were members of the Union. If the buyer makes substantial
NONDISCRIMINATORY personnel changes and changes in the operational structure
of the business, he is not a successor employer and need not bargain with the
incumbent union and the dismissal does not constitute ULP

Principal Elements: the discrimination committed by the employer must be in

regard to the hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor organization.
Discrimination by Blacklisting. Blacklist is a list of persons marked out for
special avoidance, antagonism or enmity on the part of those who prepare the list,
or those among whom it is intended to circulate

Indirect Discrimination Present in the Following Events:

1) the dismissal of a laborer on account of union activities of his brother

2) the discharge of an employee due to the union activities of his wife

3) the discharge of wife due to the union activities of the husband

Union Security Clause; Kinds

1) Closed Shop only union members can be hired by the company and they
must remain as such to retain employment in the company EXCEPT

a. any employee who is a member of religious organization which prohibits its

members from joining labor unions

b. employee already in a service and already a member of another union

c. confidential employees who are excluded from the rank and file bargaining
unit

d. employees excluded from the closed shop by express terms of the agreement

2) Union Shop nonmembers may be hired but to retain employment must

become union members after a certain period

3) Modified Union Shop employees who are not union members at the time of
signing the contract need not join the union, but all workers hired thereafter must
join

4) Maintenance of membership shop no employee is compelled to join the

union, but all present or future members must, as a condition of employment,
remain in good standing in the union

5) Exclusive Bargaining Shop the union is recognized as the exclusive

bargaining agent for all employees in the bargaining unit, whether union members
or not

6) Bargaining for members only the union is recognized as the bargaining

agent only for its own member

7) Agency shop an agreement whereby employees must either join the union or
pay to the union as exclusive bargaining agent a sum equal to that paid by the
members.

Agency Fee no authorization is required based on the doctrine of quasi-contract

6. because of testimony. dismiss or discriminate an employee for having

given or being about to give testimony under this code

7. violates the duty to bargain or Bargaining with the Minority Union

constitutes ULP as a refusal to collectively bargain

Situations when the duty to Bargain Exists

a) the duty to bargain means in essence the mutual obligation to meet and convene
for the purpose of:

b) to negotiate an agreement of mandatory subjects like: 1wages, 2hours of

work and 3all other terms and conditions of employment including for adjusting
grievances or questions arising under such agreement

c) to execute a contract incorporating such agreement if requested by either

party

d) the obligation not to terminate or modify the CBA during its lifetime

Forms of Violation of the Duty to Bargain

1) failure or refusal to meet and convene to bargain in good faith, an employer

must not only meet and confer with the union which represents his employees, but
also must recognize the union for the purpose of collective bargaining agreement

2) evading the mandatory subjects of bargaining

1. wages and other types of compensation including merit increases

2. working hours and working days, including work shifts

3. vacations and holidays

4. bonuses

5. pensions and retirement plans

6. seniority

7. transfer

8. lay-offs

9. employee workloads

10. work rules and regulations

11. rent of company houses

12. union security agreement

3) bad faith in bargaining including refusal to execute a Collective Bargaining

Agreement, if requested

Good Faith Bargaining demands more than sterile and repetitive discussion of
formalities precluding actual negotiation, more than formal replies which constitute
in effect a refusal to treat with the union and more than a willingness to enter upon
a sterile discussion of union-management differences

Badges of Bad Faith Bargaining

i. when the employer fails to vest its negotiators with sufficient

authority to make agreement

ii. when after 1 month of submittal of Unions proposal, the

employer has not made any counter proposal

iii. Surface Bargaining a sophisticated pretense in the form of

apparent bargaining

iv. Inflexible bargaining by the union

v. Boulwarism or the take-it-or-leave-it bargaining

vi. Refusal to furnish, upon request, financial information of the

company

4) gross violation of CBA [flagrant]s

Deadlock or Impasse presupposes a reasonable effort at good-faith bargaining

which, despite noble intentions, does not conclude in an agreement between the
parties. A deadlock does not mean an end of bargaining. It signals rather the need
to seek assistance of a 3rd party.

Duty to Bargain and Sale of Business: if there is a substantial and material

alteration in the employing enterprise, the new employer need not bargain with the
incumbent union. If there is none, the new employer needs to bargain with the
incumbent union.

Factors to determine Substantial Continuity of the Operation

a) the new employer uses the same plant

b) he has the same or substantially the same workforce

c) the same jobs exist under the same working conditions

d) he employs the same supervisors

e) he uses the same machinery, equipment and methods

NOTE: an employer does not violate the duty to bargain when

a) the denial of the proposal is due to economic losses as long as the

employer continues to negotiate
b) adoption of an adamant bargaining position in good faith

c) refusal to bargain over demands for commission of ULP

d) refusal to bargain during period of illegal strike

8. paid negotiation. to pay negotiation or attorneys fees to the union as part

of the settlement

9. GROSSLY violate the CBA. Must be gross and flagrant according to Art. 261

Criminal Liability: only officers and agents who have actually participated in,
authorized or ratified ULP

REMEDIES IN ULP CASES

1. Cease and Desist Order issued by the RTC

2. mandatory injunction

3. disestablishment of company union

4. ULP is not subject to compromise

UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

ART. 249. UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS. IT SHALL BE

UNFAIR LABOR PRACTICE FOR A LABOR ORGANIZATION, ITS OFFICERS, AGENTS OR
REPRESENTATIVES:

1) 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;

2) 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 MEMBERSHIP OR CONTINUATION OF MEMBERSHIP IS
MADE AVAILABLE TO OTHER MEMBERS;

3) TO VIOLATE THE DUTY, OR REFUSE TO BARGAIN COLLECTIVELY WITH THE

EMPLOYER, PROVIDED IT IS THE REPRESENTATIVE OF THE EMPLOYEES;

4) 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 FEE FOR UNION NEGOTIATIONS;

5) TO ASK FOR OR ACCEPT NEGOTIATION OR ATTORNEYS FEES FROM

EMPLOYERS AS PART OF THE SETTLEMENT OF ANY ISSUE IN COLLECTIVE
BARGAINING OR ANY OTHER DISPUTE; OR

6) TO VIOLATE A COLLECTIVE BARGAINING AGREEMENT.

THE PROVISIONS OF THE PRECEDING PARAGRAPH NOTWITHSTANDING, 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. (AS AMENDED BY BATAS PAMBANSA BILANG 130, AUGUST
21, 1981)

UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

Featherbedding name given to employee practices which create or spread

employment by unnecessarily maintaining or increasing the number of employees
used, or the amount of time consumed to work on a particular job.

1. to ask for or accept negotiations or attorneys fees from employers as part of

the settlement

2. to violate the CBA

STRIKES AND LOCKOUTS

ART. 263. STRIKES, PICKETING AND LOCKOUTS.

a. IT IS THE POLICY OF THE STATE TO ENCOURAGE FREE TRADE UNIONISM AND

FREE COLLECTIVE BARGAINING.

b. WORKERS SHALL HAVE THE RIGHT TO ENGAGE IN CONCERTED ACTIVITIES

FOR PURPOSES OF COLLECTIVE BARGAINING OR FOR THEIR MUTUAL BENEFIT AND
PROTECTION. THE RIGHT OF LEGITIMATE LABOR ORGANIZATIONS TO STRIKE AND
PICKET AND OF EMPLOYERS TO LOCKOUT, CONSISTENT WITH THE NATIONAL
INTEREST, SHALL CONTINUE TO BE RECOGNIZED AND RESPECTED. HOWEVER, NO
LABOR UNION MAY STRIKE AND NO EMPLOYER MAY DECLARE A LOCKOUT ON
GROUNDS INVOLVING INTER-UNION AND INTRA-UNION DISPUTES.

c. IN CASE OF BARGAINING DEADLOCKS, THE DULY CERTIFIED OR RECOGNIZED

BARGAINING AGENT MAY FILE A NOTICE OF STRIKE OR THE EMPLOYER MAY FILE A
NOTICE OF LOCKOUT WITH THE MINISTRY AT LEAST 30 DAY BEFORE THE INTENDED
DATE THEREOF. IN CASES OF UNFAIR LABOR PRACTICE, THE PERIOD OF NOTICE
SHALL BE 15 DAYS AND IN THE ABSENCE OF A DULY CERTIFIED OR RECOGNIZED
BARGAINING AGENT, THE NOTICE OF STRIKE MAY BE FILED BY ANY LEGITIMATE
LABOR ORGANIZATION IN BEHALF OF ITS MEMBERS. HOWEVER, IN CASE OF
DISMISSAL FROM EMPLOYMENT OF UNION OFFICERS DULY ELECTED IN
ACCORDANCE WITH THE UNION CONSTITUTION AND BY-LAWS, WHICH MAY
CONSTITUTE UNION BUSTING, WHERE THE EXISTENCE OF THE UNION IS
THREATENED, THE 15-DAY COOLING-OFF PERIOD SHALL NOT APPLY AND THE UNION
MAY TAKE ACTION IMMEDIATELY. (AS AMENDED BY EXECUTIVE ORDER NO. 111,
DECEMBER 24, 1986)

d. THE NOTICE MUST BE IN ACCORDANCE WITH SUCH IMPLEMENTING RULES

AND REGULATIONS AS THE MINISTER OF LABOR AND EMPLOYMENT MAY
PROMULGATE.

e.DURING THE COOLING-OFF PERIOD, IT SHALL BE THE DUTY OF THE MINISTRY TO

EXERT ALL EFFORTS AT MEDIATION AND CONCILIATION TO EFFECT A VOLUNTARY
SETTLEMENT. SHOULD THE DISPUTE REMAIN UNSETTLED UNTIL THE LAPSE OF THE
REQUISITE NUMBER OF DAYS FROM THE MANDATORY FILING OF THE NOTICE, THE
LABOR UNION MAY STRIKE OR THE EMPLOYER MAY DECLARE A LOCKOUT.

f. A DECISION TO DECLARE A STRIKE MUST BE APPROVED BY A MAJORITY OF THE

TOTAL UNION MEMBERSHIP IN THE BARGAINING UNIT CONCERNED, OBTAINED BY
SECRET BALLOT IN MEETINGS OR REFERENDA CALLED FOR THAT PURPOSE. A
DECISION TO DECLARE A LOCKOUT MUST BE APPROVED BY A MAJORITY OF THE
BOARD OF DIRECTORS OF THE CORPORATION OR ASSOCIATION OR OF THE
PARTNERS IN A PARTNERSHIP, OBTAINED BY SECRET BALLOT IN A MEETING CALLED
FOR THAT PURPOSE. THE DECISION SHALL BE VALID FOR THE DURATION OF THE
DISPUTE BASED ON SUBSTANTIALLY THE SAME GROUNDS CONSIDERED WHEN THE
STRIKE OR LOCKOUT VOTE WAS TAKEN. THE MINISTRY MAY, AT ITS OWN INITIATIVE
OR UPON THE REQUEST OF ANY AFFECTED PARTY, SUPERVISE THE CONDUCT OF
THE SECRET BALLOTING. IN EVERY CASE, THE UNION OR THE EMPLOYER SHALL
FURNISH THE MINISTRY THE RESULTS OF THE VOTING AT LEAST SEVEN DAYS
BEFORE THE INTENDED STRIKE OR LOCKOUT, SUBJECT TO THE COOLING-OFF
PERIOD HEREIN PROVIDED. (AS AMENDED BY BATAS PAMBANSA BILANG 130,
AUGUST 21, 1981 AND FURTHER AMENDED BY EXECUTIVE ORDER NO. 111,
DECEMBER 24, 1986)

g. WHEN, IN HIS OPINION, THERE EXISTS A LABOR DISPUTE CAUSING OR LIKELY TO

CAUSE A STRIKE OR LOCKOUT IN AN INDUSTRY INDISPENSABLE TO THE NATIONAL
INTEREST, THE SECRETARY OF LABOR AND EMPLOYMENT MAY ASSUME
JURISDICTION OVER THE DISPUTE AND DECIDE IT OR CERTIFY THE SAME TO THE
COMMISSION FOR COMPULSORY ARBITRATION. SUCH ASSUMPTION OR
CERTIFICATION SHALL HAVE THE EFFECT OF AUTOMATICALLY ENJOINING THE
INTENDED OR IMPENDING STRIKE OR LOCKOUT AS SPECIFIED IN THE ASSUMPTION
OR CERTIFICATION ORDER. IF ONE HAS ALREADY TAKEN PLACE AT THE TIME OF
ASSUMPTION OR CERTIFICATION, ALL STRIKING OR LOCKED OUT EMPLOYEES SHALL
IMMEDIATELY RETURN-TO-WORK AND THE EMPLOYER SHALL IMMEDIATELY RESUME
OPERATIONS AND READMIT ALL WORKERS UNDER THE SAME TERMS AND
CONDITIONS PREVAILING BEFORE THE STRIKE OR LOCKOUT. THE SECRETARY OF
LABOR AND EMPLOYMENT OR THE COMMISSION MAY SEEK THE ASSISTANCE OF LAW
ENFORCEMENT AGENCIES TO ENSURE COMPLIANCE WITH THIS PROVISION AS WELL
AS WITH SUCH ORDERS AS HE MAY ISSUE TO ENFORCE THE SAME.

IN LINE WITH THE NATIONAL CONCERN FOR AND THE HIGHEST RESPECT ACCORDED
TO THE RIGHT OF PATIENTS TO LIFE AND HEALTH, STRIKES AND LOCKOUTS IN
HOSPITALS, CLINICS AND SIMILAR MEDICAL INSTITUTIONS SHALL, TO EVERY EXTENT
POSSIBLE, BE AVOIDED, AND ALL SERIOUS EFFORTS, NOT ONLY BY LABOR AND
MANAGEMENT BUT GOVERNMENT AS WELL, BE EXHAUSTED TO SUBSTANTIALLY
MINIMIZE, IF NOT PREVENT, THEIR ADVERSE EFFECTS ON SUCH LIFE AND HEALTH,
THROUGH THE EXERCISE, HOWEVER LEGITIMATE, BY LABOR OF ITS RIGHT TO
STRIKE AND BY MANAGEMENT TO LOCKOUT. IN LABOR DISPUTES ADVERSELY
AFFECTING THE CONTINUED OPERATION OF SUCH HOSPITALS, CLINICS OR MEDICAL
INSTITUTIONS, IT SHALL BE THE DUTY OF THE STRIKING UNION OR LOCKING-OUT
EMPLOYER TO PROVIDE AND MAINTAIN AN EFFECTIVE SKELETAL WORKFORCE OF
MEDICAL AND OTHER HEALTH PERSONNEL, WHOSE MOVEMENT AND SERVICES
SHALL BE UNHAMPERED AND UNRESTRICTED, AS ARE NECESSARY TO INSURE THE
PROPER AND ADEQUATE PROTECTION OF THE LIFE AND HEALTH OF ITS PATIENTS,
MOST ESPECIALLY EMERGENCY CASES, FOR THE DURATION OF THE STRIKE OR
LOCKOUT. IN SUCH CASES, THEREFORE, THE SECRETARY OF LABOR AND
EMPLOYMENT MAY IMMEDIATELY ASSUME, WITHIN TWENTY FOUR (24) HOURS FROM
KNOWLEDGE OF THE OCCURRENCE OF SUCH A STRIKE OR LOCKOUT, JURISDICTION
OVER THE SAME OR CERTIFY IT TO THE COMMISSION FOR COMPULSORY
ARBITRATION. FOR THIS PURPOSE, THE CONTENDING PARTIES ARE STRICTLY
ENJOINED TO COMPLY WITH SUCH ORDERS, PROHIBITIONS AND/OR INJUNCTIONS AS
ARE ISSUED BY THE SECRETARY OF LABOR AND EMPLOYMENT OR THE COMMISSION,
UNDER PAIN OF IMMEDIATE DISCIPLINARY ACTION, INCLUDING DISMISSAL OR LOSS
OF EMPLOYMENT STATUS OR PAYMENT BY THE LOCKING-OUT EMPLOYER OF
BACKWAGES, DAMAGES AND OTHER AFFIRMATIVE RELIEF, EVEN CRIMINAL
PROSECUTION AGAINST EITHER OR BOTH OF THEM.

THE FOREGOING NOTWITHSTANDING, THE PRESIDENT OF THE PHILIPPINES SHALL

NOT BE PRECLUDED FROM DETERMINING THE INDUSTRIES THAT, IN HIS OPINION,
ARE INDISPENSABLE TO THE NATIONAL INTEREST, AND FROM INTERVENING AT ANY
TIME AND ASSUMING JURISDICTION OVER ANY SUCH LABOR DISPUTE IN ORDER TO
SETTLE OR TERMINATE THE SAME.

h. BEFORE OR AT ANY STAGE OF THE COMPULSORY ARBITRATION PROCESS,

THE PARTIES MAY OPT TO SUBMIT THEIR DISPUTE TO VOLUNTARY ARBITRATION.

i. THE SECRETARY OF LABOR AND EMPLOYMENT, THE COMMISSION OR THE

VOLUNTARY ARBITRATOR SHALL DECIDE OR RESOLVE THE DISPUTE, AS THE CASE
MAY BE. THE DECISION OF THE PRESIDENT, THE SECRETARY OF LABOR AND
EMPLOYMENT, THE COMMISSION OR THE VOLUNTARY ARBITRATOR SHALL BE FINAL
AND EXECUTORY TEN (10) CALENDAR DAYS AFTER RECEIPT THEREOF BY THE
PARTIES. (AS AMENDED BY SECTION 27, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

STRIKE

STRIKE a cessation of work by employees in an effort to get more favorable terms

for themselves, or as a concerted refusal by employees to do any work for their
employer, or to work at their customary rate of speed, until the object of the strike
is attained by the employers granting the demanded concession

Strike Area the 1establishment, 2warehouses, 3depots, 4plants, 5offices,

6including the sites or premises used as runaway shops of the employer, 7as well as
the immediate vicinity actually used by picketing strikers in moving to and fro
before all points of entrance to and exit from said establishment

Characteristics of a Strike
1. there is established relationship between the strikers and the person(s)
against whom the strike is called

2. the relationship must be one of employer and employee

3. the existence of a dispute between the parties and the utilization by labor of
the weapon of concerted refusal to work as a means of persuading, or coercing
compliance with the working mens demands

4. the contention advanced by the workers that although work ceases, the
employment relation is deemed to continue albeit in a state of belligerent
suspension

5. there is work stoppage, which stoppage is temporary

6. the work stoppage is done through concerted action of the employees

The STRIKING GROUP IS A LLO and, in case of bargaining deadlock, is the

employees sole bargaining representative

LOCK OUT

the temporary refusal of an employer to furnish work as a result of an industrial or

labor dispute; an employers act excluding employees who are union members form
his plant

Requisites of Lock-Out

1. notice of intention to declare a strike/lockout has been filed with the DOLE

2. at least 30 days has elapsed since the filing of the notice before the lockout is
declared

3. an impasse has resulted in the negotiations; Other Grounds:

a. in anticipation of a threatened strike, where motivated by economic

considerations

b. in response to unprotected strike or walkout

c. in response to a whipsaw strike

4. the strike/lockout is not discriminatory

Kinds of Strikes

1. General Strike extends over a whole community, province, state or country

2. Local Strike one undertaken by workers in a particular enterprise, locality

or occupation

3. Sit-Down Strike when a group of employees or other interest in obtaining a

certain objective in a particular business forcibly take over possession of the
property of such business, established themselves within the plant, stop its
production and refuse access to the owners or to the others desiring to work.

4. Slowdown a willful reduction in the rate of work by a group of employees

for the purpose of restricting the output of the employer (illegal strike)

5. partial strike / quickie strike intermittent unannounced work stoppage,

including slowdowns, unauthorized extension of rest periods, and walkouts for
portions of a shift or for entire shifts (illegal strike)

6. primary strike one declared by the employees who have a direct and
immediate interest, whether economic or otherwise, in the subject of the dispute,
which exists between them and their employer

7. secondary strike refers to a coercive measure adopted by workers against

an employer connected by product or employment with alleged ULP

8. ECONOMIC STRIKE intended to force wage and other concessions from the
employer which he is not required by law to grant

9. ULP STRIKE called against ULP of the employer usually for the purpose of
making him desist from further committing such practices

Strike / Lockout may legally be held because of either or both

1. There must be a Labor Dispute includes any controversy or matter

concerning terms and conditions of employment or the association or
representation of persons in negotiating, fixing, maintaining, changing or arranging
the terms and conditions of employment, regardless of whether the disputants
stand in the proximate relations of employer and employee

2. the Grounds must be

a) a CBA deadlock (economic)

b) an ULP act of the employer/union

NOTE:

1. NO UNION may Strike nor Employer declare a lockout on grounds involving

inter-union and intra-union disputes

2. it shall be the duty of the striking union or locking out employer to provide and
maintain an effective skeletal workforce of Medical and Other Health Personnel

Illegal Strikes

1. sympathetic strike

2. welga ng bayan

3. Legality in Strikes: until all the remedies and negotiations looking toward
the adjustment or settlement of labor disputes have been exhausted, the law does
not look with favor upon resort to radical measures, the pernicious consequences of
which transcend the rights of the immediate parties.

Protection to the right to Strike

1. it is generally not subject to labor injunction or restraining order

2. employees may not be discriminated against merely because they have

exercised the right to strike

3. the use of strike-breakers is prohibited

Strike-Breaker any person who obstructs, impedes, or interferes with by force,

violence, coercion, threats or intimidation any peaceful picketing by employees
during any labor controversy affecting

a. Wages, hours or conditions of work

b. in the exercise of the right of self-organization or Collective Bargaining

4. mere participation in a strike does not sever the employment relationship

Striking Employees may advice or persuade others to quit work and join in the
strike, so long as contractual rights are not invaded and that they may advice and
persuade others not to engage their services to the employer against whom the
strike is directed

STATUS OF STRIKERS

The relationship existing between employer and employee is not necessarily

terminated by a strike BUT is not entitled to Wage during the strike PROVIDED THAT

a) the strike is in connection to a current labor dispute

b) where the strike is the result of ULP

Obligation of the Employer during a legal strike

a) the employers obligation to bargain collectively in good faith with his

employees continues notwithstanding the fact that the employees are on strike

b) the employer is under an obligation to reinstate striking employees upon

termination of the strike, without discriminating against those more actively
engaged in union activities

Characteristics of an Illegal Strike

1. is contrary to specific prohibition of law

a) Government Employees may not Strike their redress is to petition the

congress for the betterment of the terms and conditions of employment OR may do
so in their FREE TIME

b) Strike must be done only after exhaustion of the Grievance Procedure and
After Arbitration

2. violates specific requirement of law

a) Notice of Strike Notice in the prescribed form filed with the NCMB (DOLE)
by the LLO. (individual notices to strike did not conform with the notice rule)
b) Decision to declare a Strike (Strike Vote) must be approved by a Majority
of the Total UNION membership in the bargaining unit concerned.

Decision to declare a Lockout must be approved by a majority of the board of

directors of the corporation

Strike Vote Report. The result of the Vote must be submitted to the Minister of
Labor within 7 days from the date of voting before the cooling-off period
commences. (a strike without SVR is illegal)

c) Cooling-off Period

Cause of Strike

Cool-off Period

Economic Grounds / Bargaining Deadlock

30 days

ULP Cases

15 days

Union Busting

No cool-off period

Union Busting dismissal from employment of union officers duly elected where
the existence of the union is threatened

Elements of Union Busting

a) the union officers are being dismissed

b) those officers are the only duly elected in accordance with the union
constitution and by-laws

c) the existence of the union is threatened

3. is declared for an unlawful purpose, such as inducing the employer to
commit an ULP against non-union employees

Lawful Purpose of the Strike

a) Collective Bargaining Deadlock the situation between the labor and the
management of the company where there is failure in the collective bargaining
negotiations resulting in a stalemate

b) ULP by Employer Test in determining the existence of ULP

1) objectively, when the strike is declared in protest of ULP which is found to

have been actually committed

2) subjectively, when a strike is declared in protest of what the union believed to

be ULP committed by management, and the circumstances warranted such belief in
good faith, although found subsequently as not committed (Good Faith
Strike). This further presupposes that the procedural requirements have been
complied.

b) Union Recognition Strike - to Compel Recognition of and Bargaining with

the Majority Union is VALID. However if there is a strike for union recognition
without having proven majority status, it is INVALID.

Conversion Doctrine what had begun as a strike over bargaining demands

became an ULP when it prolonged by the unions vote to protest the employers
outright termination of strikers seeking re-instatement

Non-Strikeable Issues

1. Physical rearrangement of office

2. companys sales evaluation policy

3. salary distortion under the Wage Rationalization Act

4. employs unlawful means in the pursuit of its objective

a) Picketing; No person engaged in picketing shall

1) Commit any act of violence, coercion or intimidation

2) obstruct the free ingress to or egress from the employers premises for lawful
purposes

3) obstruct public thorough fares

b) Use of Violence, Force or Threat to pursue labor rights

5. is declared in violation of an existing injunction

a) Strike During Arbitration Illegal

b) Strike During Mediation illegal

c) Strike in violation of a Court Order Illegal

National Interest Cases Automatic Injunction and Return-to-work Order. The

President and the Secretary of Labor shall determine which cases are considered of
National Interest and shall assume jurisdiction. (e.g. Banking, Electric Company,
etc.)

a) Assumption of Jurisdiction does not require prior notice to the

parties. Necessarily, the authority to assume jurisdiction over the said labor dispute
must include and extend to all questions and controversies arising therefrom,
including cases over which the labor arbiter has exclusive jurisdiction (Interphil Lab
Union v. Interphil Inc)

b) A national interest dispute may be certified to the NLRC even before a strike
is declared as long as there is an industrial dispute

c) The issuance of an Assumption or Certification Orders which are

executory in character are to be strictly complied with by the parties. Once an
assumption/certification order is issued, strikes are enjoined, or if one has already
taken place, all strikers shall immediately return to work. (48 hours maximum). It is
immediately executory.
d) Defiance of a RTWO is a ground for loss of the employment status of any
striking union officer or member. The moment a worker defies a RTWO, he is
deemed to have abandoned his job; ABAONDONMENT; Requisites:

1) The absence of just and valid cause

2) there is an intention to abandon or defy

3) some overt act from which it may be inferred that the employee has no more
interest in working

e) Voluntary Return to Work when the officers returned back to work after
the strike, such return did not imply the waiver of the original demands

f) Appeal in cases of Assumption of Jurisdiction.May be appealed to the CA

through certiorari. Example of Grave Abuse of Discretion: when the Secretary
imposed a stipulation which even the union did not ask for.

6. is contrary to an existing agreement, such as a no-strike clause or conclusive

arbitration clause.

Note:

a) Agreement not to strike is only applicable to economic strikes and NOT to ULP
strikes.

b) A no-strike clause is binding not only upon the union, but also upon its
individual members

PICKETING AND OTHER CONCERTED ACTIONS

Picketing involves the presence of striking workers or their union brothers who
pace back and forth before the place of business of an employer considered unfair
to organized labor, in the hope of being able to persuade peacefully other workers
not to work in the establishment and customers not to do business there.
a) Picket without strike Valid.

b) Picketing at Home the picketing of a private home in a residential district

is generally held improper even when the pickets are domestic servants

c) Picketing must be peaceful

Other Concerted Activities

1. Collective letter

2. publicity

3. placards and banners

4. speeches, music and broadcasts

BOYCOTT a combination to harm one person by coercing others to harm him

that is, a combination of many to cause a loss to one person by causing others,
against their will, to withdraw from him their beneficial business intercourse through
threats that unless others do so, the many will cause similar loss to him or then.

Kinds of Boycott

1. Primary Boycott applied directly and alone to the offending person by

withdrawing from him all business relations on the part of the organization that
initiated the boycott

2. Secondary Boycott a combination not merely to refrain from dealing with a

person, or to advice or by peaceable means persuade his customers to refrain, but
to exercise coercive pressure upon such customers, actual or prospective, in order
to cause them to withhold or withdraw patronage from him through fear of less or
damage to themselves should they deal with him

Factors to be Considered to Determine the Lawfulness of a Boycott

a) the means and methods employed - only a boycott that is free from violence
or malevolence is held to be lawful
b) the ends intended to be accomplished

1. illegal when its purpose is to require the employer to coerce his employees to
pay their back dues to the union

2. to compel the payment by an employee of a fine or other penalties

3. to compel an employee to refrain from working

4. to compel employment of more help than is necessary

5. to compel one to sign a contract

6. to compel an employer to refrain from issuing new process or machinery

Liability incase of Illegal Boycott: the person as well as all those who have
combined against him is liable PROVIDED there is a causal connection between the
acts complained of and the damage suffered

ART. 264. PROHIBITED ACTIVITIES.

a. NO LABOR ORGANIZATION OR EMPLOYER SHALL DECLARE A STRIKE OR

LOCKOUT WITHOUT FIRST HAVING BARGAINED COLLECTIVELY IN ACCORDANCE
WITH TITLE VII OF THIS BOOK OR WITHOUT FIRST HAVING FILED THE NOTICE
REQUIRED IN THE PRECEDING ARTICLE OR WITHOUT THE NECESSARY STRIKE OR
LOCKOUT VOTE FIRST HAVING BEEN OBTAINED AND REPORTED TO THE MINISTRY.

NO STRIKE OR LOCKOUT SHALL BE DECLARED AFTER ASSUMPTION OF

JURISDICTION BY THE PRESIDENT OR THE MINISTER OR AFTER CERTIFICATION OR
SUBMISSION OF THE DISPUTE TO COMPULSORY OR VOLUNTARY ARBITRATION OR
DURING THE PENDENCY OF CASES INVOLVING THE SAME GROUNDS FOR THE
STRIKE OR LOCKOUT.

ANY WORKER WHOSE EMPLOYMENT HAS BEEN TERMINATED AS A CONSEQUENCE

OF ANY UNLAWFUL LOCKOUT SHALL BE ENTITLED TO REINSTATEMENT WITH FULL
BACKWAGES. ANY UNION OFFICER WHO KNOWINGLY PARTICIPATES IN AN ILLEGAL
STRIKE AND ANY WORKER OR UNION OFFICER WHO KNOWINGLY PARTICIPATES IN
THE COMMISSION OF ILLEGAL ACTS DURING A STRIKE MAY BE DECLARED TO HAVE
LOST HIS EMPLOYMENT STATUS: PROVIDED, THAT MERE PARTICIPATION OF A
WORKER IN A LAWFUL STRIKE SHALL NOT CONSTITUTE SUFFICIENT GROUND FOR
TERMINATION OF HIS EMPLOYMENT, EVEN IF A REPLACEMENT HAD BEEN HIRED BY
THE EMPLOYER DURING SUCH LAWFUL STRIKE.
b.NO PERSON SHALL OBSTRUCT, IMPEDE, OR INTERFERE WITH, BY FORCE,
VIOLENCE, COERCION, THREATS OR INTIMIDATION, ANY PEACEFUL PICKETING BY
EMPLOYEES DURING ANY LABOR CONTROVERSY OR IN THE EXERCISE OF THE RIGHT
TO SELF-ORGANIZATION OR COLLECTIVE BARGAINING, OR SHALL AID OR ABET
SUCH OBSTRUCTION OR INTERFERENCE.

c. NO EMPLOYER SHALL USE OR EMPLOY ANY STRIKE-BREAKER, NOR SHALL ANY

PERSON BE EMPLOYED AS A STRIKE-BREAKER.

d.NO PUBLIC OFFICIAL OR EMPLOYEE, INCLUDING OFFICERS AND PERSONNEL OF

THE NEW ARMED FORCES OF THE PHILIPPINES OR THE INTEGRATED NATIONAL
POLICE, OR ARMED PERSON, SHALL BRING IN, INTRODUCE OR ESCORT IN ANY
MANNER, ANY INDIVIDUAL WHO SEEKS TO REPLACE STRIKERS IN ENTERING OR
LEAVING THE PREMISES OF A STRIKE AREA, OR WORK IN PLACE OF THE STRIKERS.
THE POLICE FORCE SHALL KEEP OUT OF THE PICKET LINES UNLESS ACTUAL
VIOLENCE OR OTHER CRIMINAL ACTS OCCUR THEREIN: PROVIDED, THAT NOTHING
HEREIN SHALL BE INTERPRETED TO PREVENT ANY PUBLIC OFFICER FROM TAKING
ANY MEASURE NECESSARY TO MAINTAIN PEACE AND ORDER, PROTECT LIFE AND
PROPERTY, AND/OR ENFORCE THE LAW AND LEGAL ORDER. (AS AMENDED BY
EXECUTIVE ORDER NO. 111, DECEMBER 24, 1986)

e. NO PERSON ENGAGED IN PICKETING SHALL COMMIT ANY ACT OF VIOLENCE,

COERCION OR INTIMIDATION OR OBSTRUCT THE FREE INGRESS TO OR EGRESS
FROM THE EMPLOYERS PREMISES FOR LAWFUL PURPOSES, OR OBSTRUCT PUBLIC
THOROUGHFARES. (AS AMENDED BY BATAS PAMBANSA BILANG 227, JUNE 1, 1982)

ART. 265. IMPROVED OFFER BALLOTING. IN AN EFFORT TO SETTLE A STRIKE,

THE DEPARTMENT OF LABOR AND EMPLOYMENT SHALL CONDUCT A REFERENDUM
BY SECRET BALLOT ON THE IMPROVED OFFER OF THE EMPLOYER ON OR BEFORE
THE 30TH DAY OF THE STRIKE. WHEN AT LEAST A MAJORITY OF THE UNION
MEMBERS VOTE TO ACCEPT THE IMPROVED OFFER THE STRIKING WORKERS SHALL
IMMEDIATELY RETURN TO WORK AND THE EMPLOYER SHALL THEREUPON READMIT
THEM UPON THE SIGNING OF THE AGREEMENT.

IN CASE OF A LOCKOUT, THE DEPARTMENT OF LABOR AND EMPLOYMENT SHALL

ALSO CONDUCT A REFERENDUM BY SECRET BALLOTING ON THE REDUCED OFFER
OF THE UNION ON OR BEFORE THE 30TH DAY OF THE LOCKOUT. WHEN AT LEAST A
MAJORITY OF THE BOARD OF DIRECTORS OR TRUSTEES OR THE PARTNERS HOLDING
THE CONTROLLING INTEREST IN THE CASE OF A PARTNERSHIP VOTE TO ACCEPT THE
REDUCED OFFER, THE WORKERS SHALL IMMEDIATELY RETURN TO WORK AND THE
EMPLOYER SHALL THEREUPON READMIT THEM UPON THE SIGNING OF THE
AGREEMENT.(INCORPORATED BY SECTION 28, REPUBLIC ACT NO. 6715, MARCH 21,
1989)

IMPROVED OFFER BALLOTING: in case of a lock-out, the DOLE may conduct

referendum by secret balloting on the reduced offer of the union on or before the
30th day of the lockout.

INJUNCTION

ART. 254. INJUNCTION PROHIBITED. NO TEMPORARY OR PERMANENT

INJUNCTION OR RESTRAINING ORDER IN ANY CASE INVOLVING OR GROWING OUT OF
LABOR DISPUTES SHALL BE ISSUED BY ANY COURT OR OTHER ENTITY, EXCEPT AS
OTHERWISE PROVIDED IN ARTICLES 218 AND 264 OF THIS CODE. (AS AMENDED BY
BATAS PAMBANSA BILANG 227, JUNE 1, 1982)

GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

ART. 260. GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION. THE

PARTIES TO A COLLECTIVE BARGAINING AGREEMENT SHALL INCLUDE THEREIN
PROVISIONS THAT WILL ENSURE THE MUTUAL OBSERVANCE OF ITS TERMS AND
CONDITIONS. THEY SHALL ESTABLISH A MACHINERY FOR THE ADJUSTMENT AND
RESOLUTION OF GRIEVANCES ARISING FROM THE INTERPRETATION OR
IMPLEMENTATION OF THEIR COLLECTIVE BARGAINING AGREEMENT AND THOSE
ARISING FROM THE INTERPRETATION OR ENFORCEMENT OF COMPANY PERSONNEL
POLICIES.

ALL GRIEVANCES SUBMITTED TO THE GRIEVANCE MACHINERY WHICH ARE NOT

SETTLED WITHIN SEVEN (7) CALENDAR DAYS FROM THE DATE OF ITS SUBMISSION
SHALL AUTOMATICALLY BE REFERRED TO VOLUNTARY ARBITRATION PRESCRIBED IN
THE COLLECTIVE BARGAINING AGREEMENT.

FOR THIS PURPOSE, PARTIES TO A COLLECTIVE BARGAINING AGREEMENT SHALL

NAME AND DESIGNATE IN ADVANCE A VOLUNTARY ARBITRATOR OR PANEL OF
VOLUNTARY ARBITRATORS, OR INCLUDE IN THE AGREEMENT A PROCEDURE FOR THE
SELECTION OF SUCH VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY
ARBITRATORS, PREFERABLY FROM THE LISTING OF QUALIFIED VOLUNTARY
ARBITRATORS DULY ACCREDITED BY THE BOARD. IN CASE THE PARTIES FAIL TO
SELECT A VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS, THE
BOARD SHALL DESIGNATE THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY
ARBITRATORS, AS MAY BE NECESSARY, PURSUANT TO THE SELECTION PROCEDURE
AGREED UPON IN THE COLLECTIVE BARGAINING AGREEMENT, WHICH SHALL ACT
WITH THE SAME FORCE AND EFFECT AS IF THE ARBITRATOR OR PANEL OF
ARBITRATORS HAS BEEN SELECTED BY THE PARTIES AS DESCRIBED ABOVE.
ART. 261. JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF
VOLUNTARY ARBITRATORS. THE VOLUNTARY ARBITRATOR OR PANEL OF
VOLUNTARY ARBITRATORS SHALL HAVE ORIGINAL AND EXCLUSIVE JURISDICTION TO
HEAR AND DECIDE ALL UNRESOLVED GRIEVANCES ARISING FROM THE
INTERPRETATION OR IMPLEMENTATION OF THE COLLECTIVE BARGAINING
AGREEMENT AND THOSE ARISING FROM THE INTERPRETATION OR ENFORCEMENT
OF COMPANY PERSONNEL POLICIES REFERRED TO IN THE IMMEDIATELY PRECEDING
ARTICLE. ACCORDINGLY, VIOLATIONS OF A COLLECTIVE BARGAINING AGREEMENT,
EXCEPT THOSE WHICH ARE GROSS IN CHARACTER, SHALL NO LONGER BE TREATED
AS UNFAIR LABOR PRACTICE AND SHALL BE RESOLVED AS GRIEVANCES UNDER THE
COLLECTIVE BARGAINING AGREEMENT. FOR PURPOSES OF THIS ARTICLE, GROSS
VIOLATIONS OF COLLECTIVE BARGAINING AGREEMENT SHALL MEAN FLAGRANT
AND/OR MALICIOUS REFUSAL TO COMPLY WITH THE ECONOMIC PROVISIONS OF
SUCH AGREEMENT.

THE COMMISSION, ITS REGIONAL OFFICES AND THE REGIONAL DIRECTORS OF THE
DEPARTMENT OF LABOR AND EMPLOYMENT SHALL NOT ENTERTAIN DISPUTES,
GRIEVANCES OR MATTERS UNDER THE EXCLUSIVE AND ORIGINAL JURISDICTION OF
THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS AND SHALL
IMMEDIATELY DISPOSE AND REFER THE SAME TO THE GRIEVANCE MACHINERY OR
VOLUNTARY ARBITRATION PROVIDED IN THE COLLECTIVE BARGAINING AGREEMENT.

ART. 262. JURISDICTION OVER OTHER LABOR DISPUTES. THE VOLUNTARY

ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS, UPON AGREEMENT OF THE
PARTIES, SHALL ALSO HEAR AND DECIDE ALL OTHER LABOR DISPUTES INCLUDING
UNFAIR LABOR PRACTICES AND BARGAINING DEADLOCKS.

ART. 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 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 EITHER 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.

GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

Generally, a Grievance Machinery should be provided in the CBA on Questions

(grievance) of:

a. interpretation or implementation of their CBA

b. those arising from the interpretation or enforcement of company personnel

policies

Note:

a. Any issue not settled within 7 days from the date of submission automatically
be referred to Voluntary Arbitrators

b. Bypassing the Grievance Machinery is ULP however, it may be waived.

Temporary / ad hoc Arbitrator is selected when the dispute is already at

hand. Permanent Arbitrator one who is selected before the dispute arises

Jurisdiction of Voluntary Arbitrator has original and exclusive jurisdiction over

money claims arising from (Grievances)

1. Contract Negotiation Disputes disputes as to the terms of a CBA

2. Contract Interpretation Disputes disputes arising under an existing CBA

involving such matters as the interpretation and application of the contract, or
alleged violation of its provisions including company policies

1) termination disputes, however if there is already an actual termination, the

matter falls with the jurisdiction of the Labor Arbiters

2) CBA violations not constituting ULP

3) Wage distortion issues

2. Upon agreement of the parties, all labor disputes including ULP and Bargaining
Deadlocks

How Arbitration is Initiated

2. a submission Agreement signed by both parties, describing the existing

dispute.

3. by a demand or notice invoking a collective agreement arbitration

Authority of an Arbitrator

1. general authority to investigate and hear the case upon notice to the parties
and to render an award based on the contract and record of the case

2. incidental authority to perform all acts, necessary to an adequate discharge of

his duties and responsibilities like setting and conduct of hearing, attendance of
witnesses and production of documents and other evidences, fact-finding and other
modes of discovery, reopening of hearing, etc.

3. special powers in aid of his general contractual authority like the authority to
determine arbitrability of any particular dispute and to modify any provision of
existing agreement upon which a proposed change is submitted for arbitration

4. authority to issue writ of execution

Appeal: Decision of the VA has a 10 calendar day finality (MR may be allowed -A
262-A). there is no appeal from the decision of the Voluntary Arbitrator, however,
when applicable, it may be brought through Rule 65 certiorari to the CA (Sime
Darby Phils v. Magsalin)

Grounds for Certiorari (Continental Marble v. NLRC)

1. want of jurisdiction

2. grave abuse of discretion

3. violation of due process

4. denial of substantial justice

5. erroneous interpretation of the law

Zipper Clause a stipulation in a CBA indicating that issues that could have been
negotiated upon but not contained in the CBA cannot be raised for negotiation when
the CBA is already in effect.

Effect of the CBA

binding upon the Employer and the members of the appropriate bargaining unit
even if non-union members

enforceability of the cba to transferee employer

a) generally, the transfer of interest of the current employer to another, severs

employment relationship between the new party. EXCEPTION: when the
transaction is colored or clothed with bad faith

b) ON Mergers and Consolidation

Mergers when 2 or more corporations joint into a single corporation which is one
of the merging corporation; the separate existence of the other constituent
corporation ceases

Consolidation when 2 or more corporation joint into an new single corporation;

separate existence of all the constituent corporation ceases, except that of the
consolidated corporation
Generally, the surviving or consolidated corporation shall be responsible for all the
liabilities and obligations of each of the constituent corporation

Wiley Doctrine the surviving or consolidated corporation shall have the duty to
bargain, when there is relevant similarity and continuity of operations across the
change in ownership as evidenced by the wholesale transfer of the smaller
corporations employees to the larger corporations plant

Substitutionary Doctrine the employees cannot revoke the validity executed

CBA with their employer by the simple expedient of changing their bargaining
agent. They may however, negotiate the shortening of its period.

ART. 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. ALL OTHER EMPLOYEES IN THE CIVIL SERVICE SHALL HAVE
THE RIGHT TO FORM ASSOCIATIONS FOR PURPOSES NOT CONTRARY TO LAW. (AS
AMENDED BY EXECUTIVE ORDER NO. 111, DECEMBER 24, 1986)

EO 180 for furtherance and protection of their interest

Declared not negotiable: those that require appropriation of funds

Negotiable: schedule of vacation and other leaves

HIGH LEVEL EMPLOYEE one whose functions are normally considered policy
determining, managerial or whose duties are highly confidential in nature

REGISTRATION: CSC and DOLE. Upon approval of the application, a registration

certificate shall be issued to the organization

Remedies in Labor Disputes

1. Grievance Procedure in the CBA

2. Conciliation 3rd party meets with employer and labor and aids in reaching
an agreement

3. Mediation 3rd party studies each side and makes proposals (cannot render
an award or decision)

4. Enforcement or compliance order an act of the Secretary in the exercise

of his visitorial power

5. Certification of Bargaining Representatives determination of which

contending unions shall represent employees in Collective Bargaining (handled by
Med-Arbiters of the DOLE Regional Offices after certification of consent elections)

6. Arbitration - submission of a dispute to an impartial person for determination

on the basis of evidence and arguments of the parties.

Voluntary Arbitration if the submission of dispute is by agreement of the parties

and the arbitrators or panel of arbitrators is chosen by them

(more elaborate discussion further in the material)

Compulsory Arbitration if submission of the dispute is by directive of law to the

Labor Arbiters of the NLRC

7. Assumption of jurisdiction by the Secretary

(among others)

POWERS AND DUTIES

ART. 217. JURISDICTION OF THE LABOR ARBITERS AND THE COMMISSION.

a. EXCEPT AS OTHERWISE PROVIDED UNDER THIS CODE, THE LABOR

ARBITERS SHALL HAVE ORIGINAL AND EXCLUSIVE JURISDICTION TO HEAR AND
DECIDE, WITHIN THIRTY (30) CALENDAR DAYS AFTER THE SUBMISSION OF THE CASE
BY THE PARTIES FOR DECISION WITHOUT EXTENSION, EVEN IN THE ABSENCE OF
STENOGRAPHIC NOTES, THE FOLLOWING CASES INVOLVING ALL WORKERS,
WHETHER AGRICULTURAL OR NON-AGRICULTURAL:
1. UNFAIR LABOR PRACTICE CASES;

2. TERMINATION DISPUTES;

3. IF ACCOMPANIED WITH A CLAIM FOR REINSTATEMENT, THOSE CASES THAT

WORKERS MAY FILE INVOLVING WAGES, RATES OF PAY, HOURS OF WORK AND
OTHER TERMS AND CONDITIONS OF EMPLOYMENT;

4. CLAIMS FOR ACTUAL, MORAL, EXEMPLARY AND OTHER FORMS OF DAMAGES

ARISING FROM THE EMPLOYER-EMPLOYEE RELATIONS;

5. CASES ARISING FROM ANY VIOLATION OF ARTICLE 264 OF THIS CODE,

INCLUDING QUESTIONS INVOLVING THE LEGALITY OF STRIKES AND LOCKOUTS; AND

6. EXCEPT CLAIMS FOR EMPLOYEES COMPENSATION, SOCIAL SECURITY,

MEDICARE AND MATERNITY BENEFITS, ALL OTHER CLAIMS ARISING FROM
EMPLOYER-EMPLOYEE RELATIONS, INCLUDING THOSE OF PERSONS IN DOMESTIC OR
HOUSEHOLD SERVICE, INVOLVING AN AMOUNT EXCEEDING FIVE THOUSAND PESOS
(P5,000.00) REGARDLESS OF WHETHER ACCOMPANIED WITH A CLAIM FOR
REINSTATEMENT.

b. THE COMMISSION SHALL HAVE EXCLUSIVE APPELLATE JURISDICTION OVER ALL

CASES DECIDED BY LABOR ARBITERS.

c. CASES ARISING FROM THE INTERPRETATION OR IMPLEMENTATION OF

COLLECTIVE BARGAINING AGREEMENTS AND THOSE ARISING FROM THE
INTERPRETATION OR ENFORCEMENT OF COMPANY PERSONNEL POLICIES SHALL BE
DISPOSED OF BY THE LABOR ARBITER BY REFERRING THE SAME TO THE GRIEVANCE
MACHINERY AND VOLUNTARY ARBITRATION AS MAY BE PROVIDED IN SAID
AGREEMENTS. (AS AMENDED BY SECTION 9, REPUBLIC ACT NO. 6715, MARCH 21,
1989)

JURISDICTION OF LABOR ARBITERS

What is the nature of jurisdiction of Labor Arbiters?

The jurisdiction is original and exclusive in nature.

Labor Arbiters have no appellate jurisdiction.

What are the money claims over which Labor Arbiters have jurisdiction?
 Money claims falling within the original and exclusive jurisdiction of the Labor
Arbiters may be classified as follows:

1. any money claim, regardless of amount, accompanied with a claim for

reinstatement (which involves a termination case); or

2. any money claim, regardless of whether accompanied with a claim for

reinstatement, exceeding the amount of P5,000.00 per claimant (which does not
necessarily involve termination of employment).

Money claims must have arisen from employment or some aspect or incident
of such relationship (San Miguel Corp. vs. NLRC implied and innominate contract)

Do Labor Arbiters have jurisdiction over wage distortion cases?

YES, only in unorganized establishments. In organized establishments, jurisdiction is

vested with Voluntary Arbitrators. (Art. 124, par.5)

Do Labor Arbiters have jurisdiction over money claims of Overseas Filipino

Workers (OFWs)?

YES. Those arising from employer-employee relationship or by virtue of any law or

contract involving Filipino workers for overseas deployment, including claims for
actual, moral, exemplary and other forms of damages.

(NOTE: The POEA continues to have jurisdiction over recruitment or pre-

employment cases which are administrative in nature, involving or arising
out of recruitment laws, rules and regulations, including money claims
arising therefrom or violation of the conditions for issuance of license to
recruit workers).

How should the monetary claims of OFWs be computed?

Skippers Pacific, Inc. vs. Mira, et al., (G. R. No. 144314, November 21, 2002) Under
Section 10, Republic Act No. 8042, the claim for unpaid salaries of overseas workers
should be whichever is less between salaries for unexpired portion of the contract or
3 months for every year of the remaining unexpired portion of the contract (in case
contract is one year or more).
Do Labor Arbiters have jurisdiction over legality of strikes and lockouts?

YES, except in strikes and lockouts in industries indispensable to the national

interest, in which case, either NLRC (in certified cases) or DOLE Secretary (in
assumed cases) has jurisdiction.

NOTE: Local Water District are quasi-public corporation, employees belong to civil
service dismissal governed by the CSL (PD 198Provincial Water Utilities Act of
1973)

ART. 218. POWERS OF THE COMMISSION. THE COMMISSION SHALL HAVE THE
POWER AND AUTHORITY:

a. TO PROMULGATE RULES AND REGULATIONS GOVERNING THE HEARING AND

DISPOSITION OF CASES BEFORE IT AND ITS REGIONAL BRANCHES, AS WELL AS
THOSE PERTAINING TO ITS INTERNAL FUNCTIONS AND SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS
CODE; (AS AMENDED BY SECTION 10, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

b.TO ADMINISTER OATHS, SUMMON THE PARTIES TO A CONTROVERSY, ISSUE

SUBPOENAS REQUIRING THE ATTENDANCE AND TESTIMONY OF WITNESSES OR THE
PRODUCTION OF SUCH BOOKS, PAPERS, CONTRACTS, RECORDS, STATEMENT OF
ACCOUNTS, AGREEMENTS, AND OTHERS AS MAY BE MATERIAL TO A JUST
DETERMINATION OF THE MATTER UNDER INVESTIGATION, AND TO TESTIFY IN ANY
INVESTIGATION OR HEARING CONDUCTED IN PURSUANCE OF THIS CODE;

c. TO CONDUCT INVESTIGATION FOR THE DETERMINATION OF A QUESTION, MATTER

OR CONTROVERSY WITHIN ITS JURISDICTION, PROCEED TO HEAR AND DETERMINE
THE DISPUTES IN THE ABSENCE OF ANY PARTY THERETO WHO HAS BEEN
SUMMONED OR SERVED WITH NOTICE TO APPEAR, CONDUCT ITS PROCEEDINGS OR
ANY PART THEREOF IN PUBLIC OR IN PRIVATE, ADJOURN ITS HEARINGS TO ANY TIME
AND PLACE, REFER TECHNICAL MATTERS OR ACCOUNTS TO AN EXPERT AND TO
ACCEPT HIS REPORT AS EVIDENCE AFTER HEARING OF THE PARTIES UPON DUE
NOTICE, DIRECT PARTIES TO BE JOINED IN OR EXCLUDED FROM THE PROCEEDINGS,
CORRECT, AMEND, OR WAIVE ANY ERROR, DEFECT OR IRREGULARITY WHETHER IN
SUBSTANCE OR IN FORM, GIVE ALL SUCH DIRECTIONS AS IT MAY DEEM NECESSARY
OR EXPEDIENT IN THE DETERMINATION OF THE DISPUTE BEFORE IT, AND DISMISS
ANY MATTER OR REFRAIN FROM FURTHER HEARING OR FROM DETERMINING THE
DISPUTE OR PART THEREOF, WHERE IT IS TRIVIAL OR WHERE FURTHER
PROCEEDINGS BY THE COMMISSION ARE NOT NECESSARY OR DESIRABLE; AND

d.TO HOLD ANY PERSON IN CONTEMPT DIRECTLY OR INDIRECTLY AND IMPOSE

APPROPRIATE PENALTIES THEREFOR IN ACCORDANCE WITH LAW.
A PERSON GUILTY OF MISBEHAVIOR IN THE PRESENCE OF OR SO NEAR THE
CHAIRMAN OR ANY MEMBER OF THE COMMISSION OR ANY LABOR ARBITER AS TO
OBSTRUCT OR INTERRUPT THE PROCEEDINGS BEFORE THE SAME, INCLUDING
DISRESPECT TOWARD SAID OFFICIALS, OFFENSIVE PERSONALITIES TOWARD
OTHERS, OR REFUSAL TO BE SWORN, OR TO ANSWER AS A WITNESS OR TO
SUBSCRIBE AN AFFIDAVIT OR DEPOSITION WHEN LAWFULLY REQUIRED TO DO SO,
MAY BE SUMMARILY ADJUDGED IN DIRECT CONTEMPT BY SAID OFFICIALS AND
PUNISHED BY FINE NOT EXCEEDING FIVE HUNDRED PESOS (P500) OR
IMPRISONMENT NOT EXCEEDING FIVE (5) DAYS, OR BOTH, IF IT BE THE
COMMISSION, OR A MEMBER THEREOF, OR BY A FINE NOT EXCEEDING ONE
HUNDRED PESOS (P100) OR IMPRISONMENT NOT EXCEEDING ONE (1) DAY, OR
BOTH, IF IT BE A LABOR ARBITER.

THE PERSON ADJUDGED IN DIRECT CONTEMPT BY A LABOR ARBITER MAY APPEAL TO

THE COMMISSION AND THE EXECUTION OF THE JUDGMENT SHALL BE SUSPENDED
PENDING THE RESOLUTION OF THE APPEAL UPON THE FILING BY SUCH PERSON OF
A BOND ON CONDITION THAT HE WILL ABIDE BY AND PERFORM THE JUDGMENT OF
THE COMMISSION SHOULD THE APPEAL BE DECIDED AGAINST HIM. JUDGMENT OF
THE COMMISSION ON DIRECT CONTEMPT IS IMMEDIATELY EXECUTORY AND
UNAPPEALABLE. INDIRECT CONTEMPT SHALL BE DEALT WITH BY THE COMMISSION
OR LABOR ARBITER IN THE MANNER PRESCRIBED UNDER RULE 71 OF THE REVISED
RULES OF COURT; AND (AS AMENDED BY SECTION 10, REPUBLIC ACT NO. 6715,
MARCH 21, 1989)

Do Labor Arbiters have contempt powers?

Yes. However, it must be noted that according to the 2003 case of Land Bank of the
Philippines vs. Listana, Sr., [G. R. No. 152611, August 5, 2003], quasi-judicial
agencies that have the power to cite persons for indirect contempt pursuant to Rule
71 of the Rules of Court can only do so by initiating them in the proper Regional
Trial Court. It is not within their jurisdiction and competence to decide the indirect
contempt cases. These matters are still within the province of the Regional Trial
Courts.

e. TO ENJOIN OR RESTRAIN ANY ACTUAL OR THREATENED COMMISSION OF ANY

OR ALL PROHIBITED OR UNLAWFUL ACTS OR TO REQUIRE THE PERFORMANCE OF A
PARTICULAR ACT IN ANY LABOR DISPUTE WHICH, IF NOT RESTRAINED OR
PERFORMED FORTHWITH, MAY CAUSE GRAVE OR IRREPARABLE DAMAGE TO ANY
PARTY OR RENDER INEFFECTUAL ANY DECISION IN FAVOR OF SUCH PARTY:
PROVIDED, THAT NO TEMPORARY OR PERMANENT INJUNCTION IN ANY CASE
INVOLVING OR GROWING OUT OF A LABOR DISPUTE AS DEFINED IN THIS CODE
SHALL BE ISSUED EXCEPT AFTER HEARING THE TESTIMONY OF WITNESSES, WITH
OPPORTUNITY FOR CROSS-EXAMINATION, IN SUPPORT OF THE ALLEGATIONS OF A
COMPLAINT MADE UNDER OATH, AND TESTIMONY IN OPPOSITION THERETO, IF
OFFERED, AND ONLY AFTER A FINDING OF FACT BY THE COMMISSION, TO THE
EFFECT:

1. THAT PROHIBITED OR UNLAWFUL ACTS HAVE BEEN THREATENED AND WILL

BE COMMITTED AND WILL BE CONTINUED UNLESS RESTRAINED, BUT NO
INJUNCTION OR TEMPORARY RESTRAINING ORDER SHALL BE ISSUED ON ACCOUNT
OF ANY THREAT, PROHIBITED OR UNLAWFUL ACT, EXCEPT AGAINST THE PERSON OR
PERSONS, ASSOCIATION OR ORGANIZATION MAKING THE THREAT OR COMMITTING
THE PROHIBITED OR UNLAWFUL ACT OR ACTUALLY AUTHORIZING OR RATIFYING THE
SAME AFTER ACTUAL KNOWLEDGE THEREOF;

2. THAT SUBSTANTIAL AND IRREPARABLE INJURY TO COMPLAINANTS PROPERTY

WILL FOLLOW;

3. THAT AS TO EACH ITEM OF RELIEF TO BE GRANTED, GREATER INJURY WILL BE

INFLICTED UPON COMPLAINANT BY THE DENIAL OF RELIEF THAN WILL BE INFLICTED
UPON DEFENDANTS BY THE GRANTING OF RELIEF;

4. THAT COMPLAINANT HAS NO ADEQUATE REMEDY AT LAW; AND

5. THAT THE PUBLIC OFFICERS CHARGED WITH THE DUTY TO PROTECT

COMPLAINANTS PROPERTY ARE UNABLE OR UNWILLING TO FURNISH ADEQUATE
PROTECTION.

SUCH HEARING SHALL BE HELD AFTER DUE AND PERSONAL NOTICE THEREOF HAS
BEEN SERVED, IN SUCH MANNER AS THE COMMISSION SHALL DIRECT, TO ALL
KNOWN PERSONS AGAINST WHOM RELIEF IS SOUGHT, AND ALSO TO THE CHIEF
EXECUTIVE AND OTHER PUBLIC OFFICIALS OF THE PROVINCE OR CITY WITHIN
WHICH THE UNLAWFUL ACTS HAVE BEEN THREATENED OR COMMITTED, CHARGED
WITH THE DUTY TO PROTECT COMPLAINANTS PROPERTY: PROVIDED, HOWEVER,
THAT IF A COMPLAINANT SHALL ALSO ALLEGE THAT, UNLESS A TEMPORARY
RESTRAINING ORDER SHALL BE ISSUED WITHOUT NOTICE, A SUBSTANTIAL AND
IRREPARABLE INJURY TO COMPLAINANTS PROPERTY WILL BE UNAVOIDABLE, SUCH A
TEMPORARY RESTRAINING ORDER MAY BE ISSUED UPON TESTIMONY UNDER OATH,
SUFFICIENT, IF SUSTAINED, TO JUSTIFY THE COMMISSION IN ISSUING A TEMPORARY
INJUNCTION UPON HEARING AFTER NOTICE. SUCH A TEMPORARY RESTRAINING
ORDER SHALL BE EFFECTIVE FOR NO LONGER THAN TWENTY (20) DAYS AND SHALL
BECOME VOID AT THE EXPIRATION OF SAID TWENTY (20) DAYS. NO SUCH
TEMPORARY RESTRAINING ORDER OR TEMPORA
INJUNCTION SHALL BE ISSUED EXCEPT ON CONDITION THAT COMPLAINANT SHALL
FIRST FILE AN UNDERTAKING WITH ADEQUATE SECURITY IN AN AMOUNT TO BE
FIXED BY THE COMMISSION SUFFICIENT TO RECOMPENSE THOSE ENJOINED FOR ANY
LOSS, EXPENSE OR DAMAGE CAUSED BY THE IMPROVIDENT OR ERRONEOUS
ISSUANCE OF SUCH ORDER OR INJUNCTION, INCLUDING ALL REASONABLE COSTS,
TOGETHER WITH A REASONABLE ATTORNEYS FEE, AND EXPENSE OF DEFENSE
AGAINST THE ORDER OR AGAINST THE GRANTING OF ANY INJUNCTIVE RELIEF
SOUGHT IN THE SAME PROCEEDING AND SUBSEQUENTLY DENIED BY THE
COMMISSION.

THE UNDERTAKING HEREIN MENTIONED SHALL BE UNDERSTOOD TO CONSTITUTE

AN AGREEMENT ENTERED INTO BY THE COMPLAINANT AND THE SURETY UPON
WHICH AN ORDER MAY BE RENDERED IN THE SAME SUIT OR PROCEEDING AGAINST
SAID COMPLAINANT AND SURETY, UPON A HEARING TO ASSESS DAMAGES, OF
WHICH HEARING, COMPLAINANT AND SURETY SHALL HAVE REASONABLE NOTICE,
THE SAID COMPLAINANT AND SURETY SUBMITTING THEMSELVES TO THE
JURISDICTION OF THE COMMISSION FOR THAT PURPOSE. BUT NOTHING HEREIN
CONTAINED SHALL DEPRIVE ANY PARTY HAVING A CLAIM OR CAUSE OF ACTION
UNDER OR UPON SUCH UNDERTAKING FROM ELECTING TO PURSUE HIS ORDINARY
REMEDY BY SUIT AT LAW OR IN EQUITY: PROVIDED, FURTHER, THAT THE RECEPTION
OF EVIDENCE FOR THE APPLICATION OF A WRIT OF INJUNCTION MAY BE DELEGATED
BY THE COMMISSION TO ANY OF ITS LABOR ARBITERS WHO SHALL CONDUCT SUCH
HEARINGS IN SUCH PLACES AS HE MAY DETERMINE TO BE ACCESSIBLE TO THE
PARTIES AND THEIR WITNESSES AND SHALL SUBMIT THEREAFTER HIS
RECOMMENDATION TO THE COMMISSION. (AS AMENDED BY SECTION 10, REPUBLIC
ACT NO. 6715, MARCH 21, 1989)

JURISDICTION OF THE NLRC

What are the two kinds of jurisdiction of the NLRC?

The National Labor Relations Commission exercises two (2) kinds of jurisdiction:

1. original jurisdiction; and

2. exclusive appellate jurisdiction.

Original jurisdiction.

a. Injunction in ordinary labor disputes to enjoin or restrain any actual or

threatened commission of any or all prohibited or unlawful acts or to require the
performance of a particular act in any labor dispute which, if not restrained or
performed forthwith, may cause grave or irreparable damage to any party.

b. Injunction in strikes or lockouts under Article 264 of the Labor Code.

c. Certified labor disputes causing or likely to cause a strike or lockout in an

industry indispensable to the national interest, certified to it by the Secretary of
Labor and Employment for compulsory arbitration.

Exclusive appellate jurisdiction.

a. All cases decided by the Labor Arbiters including contempt cases.

b. Cases decided by the DOLE Regional Directors or his duly authorized Hearing
Officers (under Article 129) involving recovery of wages, simple money claims and
other benefits not exceeding P5,000 and not accompanied by claim for
reinstatement.

What is the distinction between the jurisdiction of the Labor Arbiters and
the NLRC?

The NLRC has exclusive appellate jurisdiction on all cases decided by the Labor
Arbiters. The NLRC does not have original jurisdiction on the cases over which Labor
Arbiters have original and exclusive jurisdiction (see above enumeration). If a claim
does not fall within the exclusive original jurisdiction of the Labor Arbiter, the NLRC
cannot have appellate jurisdiction thereover.

What is the power to assume jurisdiction or certify "national interest"

labor disputes to NLRC?

When, in his opinion, there exists a labor dispute causing or likely to

cause a strike or lockout in an industry indispensable to the national interest, the
Secretary of Labor and Employment may assume jurisdiction over the dispute and
decide it or certify the same to the Commission for compulsory arbitration. (Article
263 [g], Labor Code).

What are the cases falling under the DOLE Secretary's appellate power?

a. Orders issued by the duly authorized representative of the Secretary of Labor

and Employment under Article 128 (Visitorial and Enforcement Power) may be
appealed to the latter. (Art. 128).

b. Denial of application for union registration or cancellation of union registration

originally rendered by the Bureau of Labor Relations (BLR) may be appealed to the
Secretary of Labor and Employment. (NOTE: If originally rendered by the Regional
Office, appeal should be made to the BLR).

c. Decisions of the Med-Arbiter in certification election cases are appealable to the

DOLE Secretary. (Art. 259). (NOTE: Decisions of Med-Arbiters in intra-union disputes
are appealable to the BLR).
Do Labor Arbiters have injunction power?

It must be noted that the provision in the 1990 version of the NLRC Rules granting
injunction power to the Labor Arbiters is no longer found in its 2002 version. It is
opined that this deletion is correct since Article 218 of the Labor Code grants
injunctive power only to the "Commission" which obviously refers to the NLRC's
various divisions and not to the Labor Arbiter.

What are the money claims falling under the jurisdiction of DOLE Regional
Directors?

Under Article 129, the Regional Director or any of the duly authorized hearing
officers of DOLE have jurisdiction over claims for recovery of wages, simple money
claims and other benefits, provided that:

1. the claim must arise from employer-employee relationship;

2. the claimant does not seek reinstatement; and

3. the aggregate money claim of each employee does not exceed P5,000.00.

[Distinction of Art. 217, 128, and 129]JURISDICTION OF GRIEVANCE MACHINERY

IN THE CBA

What are the cases falling under the jurisdiction of the Grievance
Machinery?

Any grievance arising from:

1. the interpretation or implementation of the Collective Bargaining Agreement

(CBA); and

2. The interpretation or enforcement of company personnel policies.

(NOTE: All grievances submitted to the grievance machinery which are not settled
within seven (7) calendar days from the date of its submission shall automatically
be referred to voluntary arbitration prescribed in the CBA)

JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF Vas

What are the cases falling under the jurisdiction of the Voluntary
Arbitrator or panel of Voluntary Arbitrators?

The Voluntary Arbitrator (or panel of Voluntary Arbitrators) has original and
exclusive jurisdiction over the following:

1. All unresolved grievances arising from the interpretation or implementation of the

collective bargaining agreement after exhaustion of the grievance procedure; and

2. All unresolved grievances arising from the implementation or interpretation of

company personnel policies. (Article 261).

3. All other labor disputes including unfair labor practices and bargaining deadlocks,
upon agreement of the parties. (Article 262).

How should cases falling under the jurisdiction of the Voluntary Arbitrator
but erroneously filed with the Labor Arbiters or DOLE Regional Offices be
processed?

They shall immediately be disposed and referred to the Grievance Machinery or

Voluntary Arbitration provided in the CBA.

In case of conflict, who has jurisdiction over termination disputes, Labor

Arbiter or Voluntary Arbitrator?

ATLAS FARMS, INC. VS. NLRC (G.R. NO. 142244; Nov. 18, 2002) Jurisdiction over
termination disputes belongs to Labor Arbiters and NOT with Grievance Machinery
nor Voluntary Arbitrator [cited Maneja vs. NLRC, 290 SCRA 603, 616, (1998)].

CELESTINO VIVERO VS. COURT OF APPEALS, HAMMONIA MARINE SERVICES, ET AL.,

(G. R. NO. 138938, OCTOBER 24, 2000) - Under Article 262, the Voluntary Arbitrator
may assume jurisdiction only when agreed upon by the parties. Policy Instructions
No. 56 issued by DOLE Secretary Confesor clarifying the jurisdiction of Labor
Arbiters and Voluntary Arbitrations does not apply. It reiterated the ruling that
dismissal is not a grievable issue.
ART. 219. OCULAR INSPECTION. THE CHAIRMAN, ANY COMMISSIONER, LABOR
ARBITER OR THEIR DULY AUTHORIZED REPRESENTATIVES, MAY, AT ANY TIME
DURING WORKING HOURS, CONDUCT AN OCULAR INSPECTION ON ANY
ESTABLISHMENT, BUILDING, SHIP OR VESSEL, PLACE OR PREMISES, INCLUDING ANY
WORK, MATERIAL, IMPLEMENT, MACHINERY, APPLIANCE OR ANY OBJECT THEREIN,
AND ASK ANY EMPLOYEE, LABORER, OR ANY PERSON, AS THE CASE MAY BE, FOR
ANY INFORMATION OR DATA CONCERNING ANY MATTER OR QUESTION RELATIVE TO
THE OBJECT OF THE INVESTIGATION.[This power is not meant to duplicate visitorial-
enforcement authority laid down under Art. 128]
ART. 220. COMPULSORY ARBITRATION. THE COMMISSION OR ANY LABOR
ARBITER SHALL HAVE THE POWER TO ASK THE ASSISTANCE OF OTHER
GOVERNMENT OFFICIALS AND QUALIFIED PRIVATE CITIZENS TO ACT AS
COMPULSORY ARBITRATORS ON CASES REFERRED TO THEM AND TO FIX AND
ASSESS THE FEES OF SUCH COMPULSORY ARBITRATORS, TAKING INTO ACCOUNT
THE NATURE OF THE CASE, THE TIME CONSUMED IN HEARING THE CASE, THE
PROFESSIONAL STANDING OF THE ARBITRATORS, THE FINANCIAL CAPACITY OF THE
PARTIES, AND THE FEES PROVIDED IN THE RULES OF COURT.] (REPEALED BY
SECTION 16, BATAS PAMBANSA BILANG 130, AUGUST 21, 1981)

ART. 221. TECHNICAL RULES NOT BINDING AND PRIOR RESORT TO

AMICABLE SETTLEMENT. IN ANY PROCEEDING BEFORE THE COMMISSION OR ANY
OF THE LABOR ARBITERS, THE RULES OF EVIDENCE PREVAILING IN COURTS OF LAW
OR EQUITY SHALL NOT BE CONTROLLING AND IT IS THE SPIRIT AND INTENTION OF
THIS CODE THAT THE COMMISSION AND ITS MEMBERS AND THE LABOR ARBITERS
SHALL USE EVERY AND ALL REASONABLE MEANS TO ASCERTAIN THE FACTS IN EACH
CASE SPEEDILY AND OBJECTIVELY AND WITHOUT REGARD TO TECHNICALITIES OF
LAW OR PROCEDURE, ALL IN THE INTEREST OF DUE PROCESS. IN ANY PROCEEDING
BEFORE THE COMMISSION OR ANY LABOR ARBITER, THE PARTIES MAY BE
REPRESENTED BY LEGAL COUNSEL BUT IT SHALL BE THE DUTY OF THE CHAIRMAN,
ANY PRESIDING COMMISSIONER OR COMMISSIONER OR ANY LABOR ARBITER TO
EXERCISE COMPLETE CONTROL OF THE PROCEEDINGS AT ALL STAGES.

ANY PROVISION OF LAW TO THE CONTRARY NOTWITHSTANDING, THE LABOR

ARBITER SHALL EXERT ALL EFFORTS TOWARDS THE AMICABLE SETTLEMENT OF A
LABOR DISPUTE WITHIN HIS JURISDICTION ON OR BEFORE THE FIRST HEARING. THE
SAME RULE SHALL APPLY TO THE COMMISSION IN THE EXERCISE OF ITS ORIGINAL
JURISDICTION. (AS AMENDED BY SECTION 11, REPUBLIC ACT NO. 6715, MARCH 21,
1989)

Basis of Decision: submission of position papers, affidavits or documentary evidence

Modicum of admissibility: substantial evidence

Ang Tibay vs. CIR (1940) cardinal primary rights which must be respected even in
proceedings of this character:

1) right to a hearing

2) tribunal must consider the evidence presented

3) decision must be supported by something (evidence)

4) supporting evidence must be substantial

5) decision must be rendered on the evidence presented or at least contained in

the record and disclosed to the parties affected

6) the body or CIR or any of its judges must act on his own independent
consideration of the law and facts, and not simply accept the views of he
subordinate in arriving decision

7) decide in such manner that parties can know the various issues involved and
the reason for the decision

ART. 222. APPEARANCES AND FEES.

a. NON-LAWYERS MAY APPEAR BEFORE THE COMMISSION OR ANY LABOR ARBITER

ONLY:

1.IF THEY REPRESENT THEMSELVES; OR

2.IF THEY REPRESENT THEIR ORGANIZATION OR MEMBERS THEREOF.

b.NO ATTORNEYS FEES, NEGOTIATION FEES OR SIMILAR CHARGES OF ANY KIND

ARISING FROM ANY COLLECTIVE BARGAINING AGREEMENT SHALL BE IMPOSED ON
ANY INDIVIDUAL MEMBER OF THE CONTRACTING UNION: PROVIDED, HOWEVER,
THAT ATTORNEYS FEES MAY BE CHARGED AGAINST UNION FUNDS IN AN AMOUNT
TO BE AGREED UPON BY THE PARTIES. ANY CONTRACT, AGREEMENT OR
ARRANGEMENT OF ANY SORT TO THE CONTRARY SHALL BE NULL AND VOID. (AS
AMENDED BY PRESIDENTIAL DECREE NO. 1691, MAY 1, 1980)

APPEAL

ART. 223. APPEAL. DECISIONS, AWARDS, OR ORDERS OF THE LABOR ARBITER ARE
FINAL AND EXECUTORY UNLESS APPEALED TO THE COMMISSION BY ANY OR BOTH
PARTIES WITHIN TEN (10) CALENDAR DAYS FROM RECEIPT OF SUCH DECISIONS,
AWARDS, OR ORDERS. SUCH APPEAL MAY BE ENTERTAINED ONLY ON ANY OF THE
FOLLOWING GROUNDS:

a. IF THERE IS PRIMA FACIE EVIDENCE OF ABUSE OF DISCRETION ON THE PART

OF THE LABOR ARBITER;

b. IF THE DECISION, ORDER OR AWARD WASSECURED THROUGH FRAUD OR

COERCION, INCLUDING GRAFT AND CORRUPTION;

c. IF MADE PURELY ON QUESTIONS OF LAW; AND

d. IF SERIOUS ERRORS IN THE FINDINGS OF FACTS ARE RAISED WHICH WOULD

CAUSE GRAVE OR IRREPARABLE DAMAGE OR INJURY TO THE APPELLANT.

IN CASE OF A JUDGMENT INVOLVING A MONETARY AWARD, AN APPEAL BY THE

EMPLOYER MAY BE PERFECTED ONLY UPON THE POSTING OF A CASH OR SURETY
BOND ISSUED BY A REPUTABLE BONDING COMPANY DULY ACCREDITED BY THE
COMMISSION IN THE AMOUNT EQUIVALENT TO THE MONETARY AWARD IN THE
JUDGMENT APPEALED FROM.
IN ANY EVENT, THE DECISION OF THE LABOR ARBITER REINSTATING A DISMISSED
OR SEPARATED EMPLOYEE, INSOFAR AS THE REINSTATEMENT ASPECT IS
CONCERNED, SHALL IMMEDIATELY BE EXECUTORY, EVEN PENDING APPEAL. THE
EMPLOYEE SHALL EITHER BE ADMITTED BACK TO WORK UNDER THE SAME TERMS
AND CONDITIONS PREVAILING PRIOR TO HIS DISMISSAL OR SEPARATION OR, AT THE
OPTION OF THE EMPLOYER, MERELY REINSTATED IN THE PAYROLL. THE POSTING OF
A BOND BY THE EMPLOYER SHALL NOT STAY THE EXECUTION FOR REINSTATEMENT
PROVIDED HEREIN.

TO DISCOURAGE FRIVOLOUS OR DILATORY APPEALS, THE COMMISSION OR THE

LABOR ARBITER SHALL IMPOSE REASONABLE PENALTY, INCLUDING FINES OR
CENSURES, UPON THE ERRING PARTIES.

IN ALL CASES, THE APPELLANT SHALL FURNISH A COPY OF THE MEMORANDUM OF

APPEAL TO THE OTHER PARTY WHO SHALL FILE AN ANSWER NOT LATER THAN TEN
(10) CALENDAR DAYS FROM RECEIPT THEREOF.

THE COMMISSION SHALL DECIDE ALL CASES WITHIN TWENTY (20) CALENDAR DAYS
FROM RECEIPT OF THE ANSWER OF THE APPELLEE. THE DECISION OF THE
COMMISSION SHALL BE FINAL AND EXECUTORY AFTER TEN (10) CALENDAR DAYS
FROM RECEIPT THEREOF BY THE PARTIES.

ANY LAW ENFORCEMENT AGENCY MAY BE DEPUTIZED BY THE SECRETARY OF LABOR

AND EMPLOYMENT OR THE COMMISSION IN THE ENFORCEMENT OF DECISIONS,
AWARDS OR ORDERS. (AS AMENDED BY SECTION 12, REPUBLIC ACT NO. 6715,
MARCH 21, 1989)

APPEALS
What are the modes of appeal from the decisions of the various labor
tribunals?

1. DECISION OF LABOR ARBITERS: Appeal from the decision of the Labor Arbiter is
brought by ordinary appeal to the NLRC within ten (10) calendar days from receipt
by the party of the decision. From the decision of the NLRC, there is no appeal. The
only way to elevate the case to the Court of Appeals is by way of the special civil
action of certiorari under Rule 65 of the Rules of Civil Procedure. From the ruling of
the Court of the Appeals, it may be elevated to the Supreme Court by way of
ordinary appeal under Rule 45 of the Rules of Civil Procedure. (St. Martin Funeral
Home vs. NLRC, et al., G. R. No. 130866, September 16, 1998).

2. DECISION OF VOLUNTARY ARBITRATORS: The decision of a Voluntary Arbitrator or

panel of Voluntary Arbitrators is appealable by ordinary appeal under Rule 43 of the
Rules of Civil Procedure directly to the Court of Appeals. From the Court of Appeals,
the case may be elevated to the Supreme Court by way of ordinary appeal under
the same Rule 45. (Luzon Development Bank vs. Association of Luzon Development
Bank Employees, et al., G. R. No. 120319, October 6, 1995).

3. DECISION OF THE BLR: A. Denial of application for registration of a union. If the

denial is issued by the Regional Office, it may be appealed to the BLR. If the denial
is originally made by the BLR, appeal may be had to the Secretary of Labor and
Employment. B. Cancellation of registration of a union. If the cancellation of union
registration is ordered by the Regional Office, the same may be appealed to the
BLR. If the cancellation is done by the BLR in a petition filed directly therewith, the
BLR's decision is appealable to the Secretary of Labor and Employment by ordinary
appeal.

The decision of the BLR rendered in its original jurisdiction may be appealed to the
Secretary of Labor and Employment whose decision thereon may only be elevated
to the Court of Appeals by way of certiorari under Rule 65.

The decision of the BLR rendered in its appellate jurisdiction may not be appealed to
the Secretary of Labor and Employment but may be elevated directly to the Court of
Appeals by way of certiorari under Rule 65. (Abbott Laboratories Philippines, Inc. vs.
Abbott Laboratories Employees Union, et al., G. R. No. 131374, January 26, 2000).

4. DECISION OF THE MED-ARBITER IN CERTIFICATION ELECTION CASES - The

decision is appealable to the DOLE Secretary of Labor and Employment.

5. DECISION OF THE DOLE REGIONAL DIRECTORS OR HIS DULY AUTHORIZED

HEARING OFFICERS UNDER ARTICLE 129 INVOLVING RECOVERY OF WAGES, SIMPLE
MONEY CLAIMS AND OTHER BENEFITS NOT EXCEEDING P5,000 AND NOT
ACCOMPANIED BY CLAIM FOR REINSTATEMENT - The decision is appealable to the
NLRC and not to the DOLE Secretary.

(NOTE: Appeal from CA to SC should be under Rule 45 (Petition for Review

on Certiorari) and not Rule 65 (Special Civil Action for Certiorari) - SEA
POWER SHIPPING ENTERPRISES, INC. VS. COURT OF APPEALS, ET AL., G. R.
NO. 138270, JUNE 28, 2001)

APPEAL TO THE NLRC FROM DECISIONS OF LABOR ARBITERS

What are the grounds for appeal?

There are four (4) grounds, to wit:

(a) If there is prima facie evidence of abuse of discretion on the part of the Labor
Arbiter;
(b) If the decision, order or award was secured through fraud or coercion, including
graft and corruption;

(c) If made purely on questions of law; and

(d) If serious errors in the findings of facts are raised which would cause grave or
irreparable damage or injury to the appellant.

What are the requisites for perfection of appeal?

Requisites for perfection of appeal.

a. the appeal should be filed within the reglementary period;

b. the Memorandum of Appeal should be under oath;

c. payment of appeal fee;

d. posting of cash or surety bond, if judgment involves monetary award; and

e. proof of service to the adverse party.

What is the reglementary period to perfect the appeal?

The reglementary period is ten (10) calendar days.

What is the reinstatement aspect of the Labor Arbiter's decision?

If reinstatement is ordered by the Labor Arbiter in an illegal dismissal case, it is

immediately executory even pending appeal. Such award does not require a writ of
execution. In the case of Pioneer Texturizing Corporation vs. NLRC, et al., 280 SCRA
806 [1997], it is the employer who is duty-bound to inform employee of the
reinstatement (either in the payroll or in the position previously held or in a
substantially equivalent position if no longer available, at the option of the
employer). The employee ordered reinstated need not secure a writ of execution
from the Labor Arbiter. If employer refuses to reinstate, the employee may file a
motion to cite the former in contempt. The posting of bond does not stay
reinstatement.

Options of the employer.

The employer is practically left with no effective contra-remedy that may forestall or
stay the execution of a Labor Arbiter's order for immediate reinstatement pending
appeal. All that the employer has is to avail of any of the following options:

1. actual reinstatement of the employee to his work under the same terms and
conditions prevailing prior to his dismissal or separation; or

2. reinstatement of the employee in the payroll of the company, without requiring

him to report back to his work. (Article 223, Labor Code; Zamboanga City Water
District vs. Buat, 232 SCRA 587).

Employer has to notify employee of his choice of option.

Having ruled in Pioneer Texturizing [supra] that henceforth, an award or order for
reinstatement under Article 223 is self-executory, the Supreme Court prescribes the
procedure to be followed, thus:

"After receipt of the decision or resolution ordering the employee's reinstatement,

the employer has the right to choose whether to re-admit the employee to work
under the same terms and conditions prevailing prior to his dismissal or to reinstate
the employee in the payroll. In either instance, the employer has to inform the
employee of his choice. The notification is based on practical considerations for
without notice, the employee has no way of knowing if he has to report for work or
not." [Underscoring supplied]

Failure to exercise option, employer should pay salary.

Failing to exercise any of the options, the employer can be compelled, under pain of
contempt, to pay instead the salary of the employee. The employee should not be
left without any remedy in case the employer unreasonably delays reinstatement.
The unjustified refusal of the employer to reinstate an illegally dismissed employee
entitles the employee to payment of his salaries. (Pioneer Texturizing Corporation
vs. NLRC, supra).

The entitlement of the dismissed employee to his salaries occasioned by the

unjustified refusal of the employer to reinstate him becomes effective from the time
the employer failed to reinstate him despite the issuance of a writ of execution.
(Roquero vs. Philippine Air Lines, Inc., supra).

Remedy in case of employer's refusal to comply with writ of execution to reinstate is

contempt citation.

If despite several writs of execution, the employer still refuses to reinstate the
employee, the remedy is not the grant of additional backwages to serve as
damages but to file a motion to cite the employer for contempt. (Christian Literature
Crusade vs. NLRC, 171 SCRA 712, April 10, 1989; See also Industrial and Transport
Equipment, Inc. vs. NLRC, G. R. No. 113592, Jan. 15, 1998).

Reinstatement in case of two successive dismissals.

In Sevilla vs. NLRC, [G. R. No. 108878, Sept. 20, 1994], a case involving two (2)
successive dismissals, it was held that the order of reinstatement pending appeal
under Article 223 issued in the first case, shall apply only to the first case and shall
not affect the second dismissal. The Labor Arbiter was correct in denying the third
motion for reinstatement filed by the petitioner (employee) because what she
should have filed was a new complaint based on the second dismissal. The second
dismissal gave rise to a new cause of action. Inasmuch as no new complaint was
filed, the Labor Arbiter could not have ruled on the legality of the second dismissal.

Reinstatement when position already filled up.

If the former position is already filled up, the employee ordered reinstated under
Article 223 should be admitted back to work in a substantially equivalent position.
(Medina vs. Consolidated Broadcasting System [CBS]-DZWX, 222 SCRA 707; Pedroso
vs. Castro, 141 SCRA 252 [1986]).

What are the rules in case of appeal involving monetary award?

The following basic principles are worth mentioning:

a. No monetary award, no appeal bond required.

b. Labor Arbiter's decision or order is required to state the amount awarded. If the
amount of the monetary award is not included in the judgment, the appeal bond
equivalent to the amount of the monetary award is not required to be posted.
(Orozco vs. The Fifth Division of the Honorable Court of Appeals, [G. R. No. 155207,
April 29, 2005])

c. Cash, property or surety bond is required for perfection of appeal from monetary
award. The surety bond should be issued by an accredited surety company.

d. Bond should be posted within the 10-calendar day reglementary period.

e. Award of moral and exemplary damages and attorney's fees, excluded from
computation of bond.

f. If bond is not genuine, appeal is not perfected.

g. Non-posting of bond will not perfect the appeal.

h. Remedy of employee in case employer failed to post bond is to file a motion to

dismiss the appeal.

May a Motion to Reduce Bond be filed?

1. Motion to reduce bond may be granted only in meritorious cases such as when
the monetary claims have already prescribed.

2. The filing of a motion to reduce bond does not stop the running of the period to
perfect appeal. In order to effectively stop the running of the period within which to
perfect the appeal, the motion to reduce bond must comply with the requisites
that:

1. it should be filed within the reglementary period;

2. it should be based on meritorious grounds; and

3. a reasonable amount of bond in relation to the monetary award should be

posted together with said motion.

The failure to post the bond must be caused by a third party, not by the appellant
himself.

In Mary Abigail's Food Services, Inc. vs. CA, G. R. No. 140294, May 9, 2005, it was
held that in the cases where delayed payment of the bond was allowed, the failure
to pay was due to the excusable oversight or error of a third party, that is, the
failure of the Labor Arbiter to state in the decision the exact amount awarded and
the inclusion of the bond as a requisite for perfecting an appeal.
Alternative remedy is to pay partial appeal bond while motion to reduce bond is
pending with the NLRC.

In the 1998 case of Rosewood Processing, Inc. vs. NLRC, [352 Phil. 1013 (1998)], the
petitioner was declared to have substantially complied with the rules by posting a
partial surety bond of fifty thousand pesos issued by Prudential Guarantee and
Assurance, Inc. while its motion to reduce appeal bond was pending before the
NLRC.

The partial payment of bond must be made during the reglementary period.

In Filipinas [Pre-fabricated Bldg.] Systems 'Filsystems,' Inc. vs. NLRC, (G. R. No.
153859, Dec. 11, 2003), it was held that the partial payment of the bond, in order to
forestall the decision of the Labor Arbiter from becoming final and executory, should
be made within the reglementary period. The late filing of the bond divests the
NLRC of its jurisdiction to entertain the appeal since the decision of the Labor
Arbiter has already become final and executory with the lapse of the reglementary
period.

ART. 224. EXECUTION OF DECISIONS, ORDERS OR AWARDS.

a. THE SECRETARY OF LABOR AND EMPLOYMENT OR ANY REGIONAL DIRECTOR,

THE COMMISSION OR ANY LABOR ARBITER, OR MED-ARBITER OR VOLUNTARY
ARBITRATOR MAY, MOTU PROPRIO OR ON MOTION OF ANY INTERESTED PARTY,
ISSUE A WRIT OF EXECUTION ON A JUDGMENT WITHIN FIVE (5) YEARS FROM THE
DATE IT BECOMES FINAL AND EXECUTORY, REQUIRING A SHERIFF OR A DULY
DEPUTIZED OFFICER TO EXECUTE OR ENFORCE FINAL DECISIONS, ORDERS OR
AWARDS OF THE SECRETARY OF LABOR AND EMPLOYMENT OR REGIONAL
DIRECTOR, THE COMMISSION, THE LABOR ARBITER OR MED-ARBITER, OR
VOLUNTARY ARBITRATORS. IN ANY CASE, IT SHALL BE THE DUTY OF THE
RESPONSIBLE OFFICER TO SEPARATELY FURNISH IMMEDIATELY THE COUNSELS OF
RECORD AND THE PARTIES WITH COPIES OF SAID DECISIONS, ORDERS OR AWARDS.
FAILURE TO COMPLY WITH THE DUTY PRESCRIBED HEREIN SHALL SUBJECT SUCH
RESPONSIBLE OFFICER TO APPROPRIATE ADMINISTRATIVE SANCTIONS.

b. THE SECRETARY OF LABOR AND EMPLOYMENT, AND THE CHAIRMAN OF THE

COMMISSION MAY DESIGNATE SPECIAL SHERIFFS AND TAKE ANY MEASURE UNDER
EXISTING LAWS TO ENSURE COMPLIANCE WITH THEIR DECISIONS, ORDERS OR
AWARDS AND THOSE OF THE LABOR ARBITERS AND VOLUNTARY ARBITRATORS,
INCLUDING THE IMPOSITION OF ADMINISTRATIVE FINES WHICH SHALL NOT BE LESS
THAN P500.00 NOR MORE THAN P10,000.00. (AS AMENDED BY SECTION 13,
REPUBLIC ACT NO. 6715, MARCH 21, 1989)
ART. 225. CONTEMPT POWERS OF THE SECRETARY OF LABOR. IN THE
EXERCISE OF HIS POWERS UNDER THIS CODE, THE SECRETARY OF LABOR MAY
HOLD ANY PERSON IN DIRECT OR INDIRECT CONTEMPT AND IMPOSE THE
APPROPRIATE PENALTIES THEREFOR.

BUREAU OF LABOR RELATIONS

ART. 226. BUREAU OF LABOR RELATIONS. THE BUREAU OF LABOR RELATIONS

AND THE LABOR RELATIONS DIVISIONS IN THE REGIONAL OFFICES OF THE
DEPARTMENT OF LABOR, SHALL HAVE ORIGINAL AND EXCLUSIVE AUTHORITY TO
ACT, AT THEIR OWN INITIATIVE OR UPON REQUEST OF EITHER OR BOTH PARTIES,
ON ALL INTER-UNION AND INTRA-UNION CONFLICTS, AND ALL
DISPUTES,GRIEVANCES OR PROBLEMS ARISING FROM OR AFFECTING LABOR-
MANAGEMENT RELATIONS IN ALL WORKPLACES, WHETHER AGRICULTURAL OR NON-
AGRICULTURAL, EXCEPT THOSE ARISING FROM THE IMPLEMENTATION OR
INTERPRETATION OF COLLECTIVE BARGAINING AGREEMENTS WHICH SHALL BE THE
SUBJECT OF GRIEVANCE PROCEDURE AND/OR VOLUNTARY ARBITRATION.

THE BUREAU SHALL HAVE FIFTEEN (15) WORKING DAYS TO ACT ON LABOR CASES
BEFORE IT, SUBJECT TO EXTENSION BY AGREEMENT OF THE PARTIES. (AS AMENDED
BY SECTION 14, REPUBLIC ACT NO. 6715, MARCH 21, 1989).

JURISDICTION OF THE BUREAU OF LABOR RELATIONS (BLR)/MED-ARBITERS

What are the cases falling under the jurisdiction of the BLR?

The BLR has original and exclusive jurisdiction over the following:

1. "Inter-union disputes" or "representation disputes" which refer to cases

involving petition for certification election filed by a duly registered labor
organization which is seeking to be recognized as the sole and exclusive bargaining
agent of the rank-and-file employees in the appropriate bargaining unit of a
company, firm or establishment.

2. "Intra-union disputes" or "internal union disputes" which refer to disputes

or grievances arising from any violation of or disagreement over any provision of
the constitution and by-laws of the union, including any violation of the rights and
conditions of union membership provided for in the Labor Code.

3. All disputes, grievances or problems arising from or affecting labor-

management relations in all workplaces, except those arising from the
interpretation or implementation of the CBA which are subject of grievance
procedure and/or voluntary arbitration.

What are the relevant administrative functions of the BLR?

The BLR has the following administrative functions: (1) registration of labor
unions; (2) keeping of registry of labor unions; and (3)maintenance and custody of
CBAs.

ART. 227. COMPROMISE AGREEMENTS. ANY COMPROMISE SETTLEMENT,

INCLUDING THOSE INVOLVING LABOR STANDARD LAWS, VOLUNTARILY AGREED
UPON BY THE PARTIES WITH THE ASSISTANCE OF THE BUREAU OR THE REGIONAL
OFFICE OF THE DEPARTMENT OF LABOR, SHALL BE FINAL AND BINDING UPON THE
PARTIES. THE NATIONAL LABOR RELATIONS COMMISSION OR ANY COURT, SHALL
NOT ASSUME JURISDICTION OVER ISSUES INVOLVED THEREIN EXCEPT IN CASE OF
NON-COMPLIANCE THEREOF OR IF THERE IS PRIMA FACIE EVIDENCE THAT THE
SETTLEMENT WAS OBTAINED THROUGH FRAUD, MISREPRESENTATION, OR
COERCION.

ART. 228. INDORSEMENT OF CASES TO LABOR ARBITERS.

a. EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS ARTICLE, THE LABOR ARBITER

SHALL ENTERTAIN ONLY CASES ENDORSED TO HIM FOR COMPULSORY ARBITRATION
BY THE BUREAU OR BY THE REGIONAL DIRECTOR WITH A WRITTEN NOTICE OF SUCH
INDORSEMENT OR NON-INDORSEMENT. THE INDORSEMENT OR NON-INDORSEMENT
OF THE REGIONAL DIRECTOR MAY BE APPEALED TO THE BUREAU WITHIN TEN (10)
WORKING DAYS FROM RECEIPT OF THE NOTICE.

b.THE PARTIES MAY, AT ANY TIME, BY MUTUAL AGREEMENT, WITHDRAW A CASE

FROM THE CONCILIATION SECTION AND JOINTLY SUBMIT IT TO A LABOR ARBITER,
EXCEPT DEADLOCKS IN COLLECTIVE BARGAINING.] (REPEALED BY SECTION 16,
BATAS PAMBANSA BILANG 130, AUGUST 21, 1981)

ART. 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.

ART. 230. APPOINTMENT OF BUREAU PERSONNEL. THE SECRETARY OF LABOR

AND EMPLOYMENT MAY APPOINT, IN ADDITION TO THE PRESENT PERSONNEL OF
THE BUREAU AND THE INDUSTRIAL RELATIONS DIVISIONS, SUCH NUMBER OF
EXAMINERS AND OTHER ASSISTANTS AS MAY BE NECESSARY TO CARRY OUT THE
PURPOSE OF THE CODE. (AS AMENDED BY SECTION 15, REPUBLIC ACT NO. 6715,
MARCH 21, 1989)

ART. 231. REGISTRY OF UNIONS AND FILE OF COLLECTIVE BARGAINING

AGREEMENTS. THE BUREAU SHALL KEEP A REGISTRY OF LEGITIMATE LABOR
ORGANIZATIONS. THE BUREAU SHALL ALSO MAINTAIN A FILE OF ALL COLLECTIVE
BARGAINING AGREEMENTS AND OTHER RELATED AGREEMENTS AND RECORDS OF
SETTLEMENT OF LABOR DISPUTES AND COPIES OF ORDERS AND DECISIONS OF
VOLUNTARY ARBITRATORS. THE FILE SHALL BE OPEN AND ACCESSIBLE TO
INTERESTED PARTIES UNDER CONDITIONS PRESCRIBED BY THE SECRETARY OF
LABOR AND EMPLOYMENT, PROVIDED THAT NO SPECIFIC INFORMATION SUBMITTED
IN CONFIDENCE SHALL BE DISCLOSED UNLESS AUTHORIZED BY THE SECRETARY, OR
WHEN IT IS AT ISSUE IN ANY JUDICIAL LITIGATION, OR WHEN PUBLIC INTEREST OR
NATIONAL SECURITY SO REQUIRES.

WITHIN THIRTY (30) DAYS FROM THE EXECUTION OF A COLLECTIVE BARGAINING

AGREEMENT, THE PARTIES SHALL SUBMIT COPIES OF THE SAME DIRECTLY TO THE
BUREAU OR THE REGIONAL OFFICES OF THE DEPARTMENT OF LABOR AND
EMPLOYMENT FOR REGISTRATION, ACCOMPANIED WITH VERIFIED PROOFS OF ITS
POSTING IN TWO CONSPICUOUS PLACES IN THE PLACE OF WORK AND RATIFICATION
BY THE MAJORITY OF ALL THE WORKERS IN THE BARGAINING UNIT. THE BUREAU OR
REGIONAL OFFICES SHALL ACT UPON THE APPLICATION FOR REGISTRATION OF
SUCH COLLECTIVE BARGAINING AGREEMENT WITHIN FIVE (5) CALENDAR DAYS
FROM RECEIPT THEREOF. THE REGIONAL OFFICES SHALL FURNISH THE BUREAU
WITH A COPY OF THE COLLECTIVE BARGAINING AGREEMENT WITHIN FIVE (5) DAYS
FROM ITS SUBMISSION.

THE BUREAU OR REGIONAL OFFICE SHALL ASSESS THE EMPLOYER FOR EVERY
COLLECTIVE BARGAINING AGREEMENT A REGISTRATION FEE OF NOT LESS THAN
ONE THOUSAND PESOS (P1,000.00) OR IN ANY OTHER AMOUNT AS MAY BE DEEMED
APPROPRIATE AND NECESSARY BY THE SECRETARY OF LABOR AND EMPLOYMENT
FOR THE EFFECTIVE AND EFFICIENT ADMINISTRATION OF THE VOLUNTARY
ARBITRATION 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 THE
COMMISSION. (AS AMENDED BY SECTION 15, REPUBLIC ACT NO. 6715, MARCH 21,
1989)

ART. 232. PROHIBITION ON CERTIFICATION ELECTION. THE BUREAU SHALL

NOT ENTERTAIN ANY PETITION FOR CERTIFICATION ELECTION OR ANY OTHER
ACTION WHICH MAY DISTURB THE ADMINISTRATION OF DULY REGISTERED EXISTING
COLLECTIVE BARGAINING AGREEMENTS AFFECTING THE PARTIES EXCEPT UNDER
ARTICLES 253, 253-A AND 256 OF THIS CODE. (AS AMENDED BY SECTION 15,
REPUBLIC ACT NO. 6715, MARCH 21, 1989)

ART. 233. PRIVILEGED COMMUNICATION. INFORMATION AND STATEMENTS

MADE AT CONCILIATION PROCEEDINGS SHALL BE TREATED AS PRIVILEGED
COMMUNICATION AND SHALL NOT BE USED AS EVIDENCE IN THE COMMISSION.
CONCILIATORS AND SIMILAR OFFICIALS SHALL NOT TESTIFY IN ANY COURT OR BODY
REGARDING ANY MATTERS TAKEN UP AT CONCILIATION PROCEEDINGS CONDUCTED
BY THEM.

POST EMPLOYMENT

TERMINATION OF EMPLOYMENT

ART. 278. COVERAGE. THE PROVISIONS OF THIS TITLE SHALL APPLY TO ALL
ESTABLISHMENTS OR UNDERTAKINGS, WHETHER FOR PROFIT OR NOT.

ART. 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. (AS
AMENDED BY SECTION 34, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

SECURITY of TENURE

- it pertains to the Constitutional guaranty found in Sec. 3, Art. XIII of the 1987
Constitution that no employee, whether regular or non-regular shall be terminated
without just causes authorized by the law under Art. 282 and Art. 283 of the Labor
Code.

ART. 280. REGULAR AND CASUAL EMPLOYMENT. THE PROVISIONS OF WRITTEN

AGREEMENT TO THE CONTRARY NOTWITHSTANDING AND REGARDLESS OF THE
ORAL AGREEMENT OF THE PARTIES, AN EMPLOYMENT SHALL BE DEEMED TO BE
REGULAR WHERE THE EMPLOYEE HAS BEEN ENGAGED TO PERFORM ACTIVITIES
WHICH ARE USUALLY NECESSARY OR DESIRABLE IN THE USUAL BUSINESS OR TRADE
OF THE EMPLOYER, EXCEPT WHERE THE EMPLOYMENT HAS BEEN FIXED FOR A
SPECIFIC PROJECT OR UNDERTAKING THE COMPLETION OR TERMINATION OF WHICH
HAS BEEN DETERMINED AT THE TIME OF THE ENGAGEMENT OF THE EMPLOYEE OR
WHERE THE WORK OR SERVICE TO BE PERFORMED IS SEASONAL IN NATURE AND
THE EMPLOYMENT IS FOR THE DURATION OF THE SEASON.

AN EMPLOYMENT SHALL BE DEEMED TO BE CASUAL IF IT IS NOT COVERED BY THE

PRECEDING PARAGRAPH: PROVIDED, THAT ANY EMPLOYEE WHO HAS RENDERED AT
LEAST ONE YEAR OF SERVICE, WHETHER SUCH SERVICE IS CONTINUOUS OR
BROKEN, SHALL BE CONSIDERED A REGULAR EMPLOYEE WITH RESPECT TO THE
ACTIVITY IN WHICH HE IS EMPLOYED AND HIS EMPLOYMENT SHALL CONTINUE WHILE
SUCH ACTIVITY EXISTS.

REGULAR EMPLOYMENT

- the employment is deemed to be regular where the employee has been engaged
to perform activities which are usually necessary or desirablein the usual business
or trade of the employer.
- (1) nature of service (2) length of time

CASUAL EMPLOYEE

(2) engaged to perform task which are not necessary and desirable in the usual
business or trade of employer if hired and served of at least one (1) year, continues
or not continuous servic

Regular Employees may not be terminated except for a just or authorized

cause. (applies also to non-regular employees)

Test of Regular Employees Status where the employee has been engaged to
perform activities which are usually necessary or desirable in the usual business or
trade of the employer EXCEPT

1. Project Employee. where the employment has been fixed for a specific
project or undertaking the completion or termination of which has been determined
at the time of this engagement of the employee

NOTE: the length of service of a project employee is NOT the controlling test of
employment but whether or not the employment has been fixed for a specific
project or undertaking the completion or termination of which has been determined
at the time of the engagement of the employee

Indicators that an Employee is Project

a. the duration of the specific undertaking for which the worker is engaged is
reasonable

b. such duration as well as the specific work to be performed is defined in an

employment agreement and is made clear to the employee at the time of hiring

c. the work/service performed by the employee is in connection with the

particular project for which he is engaged

d. the employee, while not employed and awaiting engagement, is free to offer
his services to any other employer

e. Note: the termination of his employment is reported to the DOLE within 30

days from his separation from work using prescribed forms (Phil. National Const.
v.NLRC)

f. An undertaking in the employment contract by the employer to pay

completion bonus to the project employee as practiced by most construction
companies

Rule on Separation Pay: Project employees are generally NOT entitled to

separation Pay. EXCEPT

a) a project employee if separated without cause before the termination of the

project is entitled to separation pay

b) project employees with expired contracts when their services are still needed

Work Pool: if employees in a work pool are not free to engage other transactions,
he is a regular employee, else, he is a project employee

Project Employee = Regular When: Requisites

1) there is a continuous rehiring of project employees even after cessation of a

project; and

2) the task performed by the alleged project employee are vital, necessary and
indispensable to the usual business or trade of the employer

Effect of Illegal Dismissal= entitled to backwages from the date of their dismissal
until reinstatement without deducting whatever earnings derived elsewhere during
the period of illegal dismissal (deducting the period when there is no project)

2. One Season Employee. where the work or services to be performed is

seasonal in nature and the employment is for the duration of the season

Seasonal employee = Regular Employee

Seasonal employee become regular employees if engaged in more than 1

season. Their employment between seasons is merely suspended.
3. Seamen. A seafarer is not a regular employee and Filipino seamen are
governed by the rule sand regulations governing overseas employment and the said
rules do not provide for separation / termination pay (Pabl Coyoca v. NLRC)

4. A Radio Officer on board a vessel cannot be considered as a regular

employee notwithstanding that the work he performs is necessary and desirable in
the business of the company.

Regular employee by years of Service - any casual employee who has rendered
at least 1 year of service (continuous or broken) shall be considered as Regular
Employee with respect to the activity in which he is employed.

Casual Employees are employees other than those classified.

ART. 281. PROBATIONARY EMPLOYMENT. PROBATIONARY EMPLOYMENT SHALL

NOT EXCEED SIX (6) MONTHS FROM THE DATE THE EMPLOYEE STARTED WORKING,
UNLESS IT IS COVERED BY AN APPRENTICESHIP AGREEMENT STIPULATING A
LONGER PERIOD. THE SERVICES OF AN EMPLOYEE WHO HAS BEEN ENGAGED ON A
PROBATIONARY BASIS MAY BE TERMINATED FOR A JUST CAUSE OR WHEN HE FAILS
TO QUALIFY AS A REGULAR EMPLOYEE IN ACCORDANCE WITH REASONABLE
STANDARDS MADE KNOWN BY THE EMPLOYER TO THE EMPLOYEE AT THE TIME OF
HIS ENGAGEMENT. AN EMPLOYEE WHO IS ALLOWED TO WORK AFTER A
PROBATIONARY PERIOD SHALL BE CONSIDERED A REGULAR EMPLOYEE.

Probationary Employee

Conditions of Probationary Employment

a) employment shall not exceed 6 months from the date of employment UNLESS
covered by an apprenticeship agreement stipulating a longer period

b) the termination shall be

1. for a just cause

2. when he fails to qualify as a regular employee in accordance with reasonable

standards made known by the employer to the employee at the time of his
engagement

Limitation for Termination

a. it must be exercised in accordance with the specific requirements of the

contract

b. if a particular time is prescribed, the termination must be within such time and
if formal notice is required, then that form must be used

c. the employers dissatisfaction must be real and in good faith, not feigned so
as to circumvent the contract or the law

d. there must be no unlawful discrimination in the dismissal

3. a valid dismissal presupposes not only the validity of the cause, but also the
validity fo the manner by which dismissal is done, and failure to prove the
observance of due process, taints the dismissal. (Azcuna Decision Aberdeen Court v.
Mateo)

c) considered a regular employee if he has been allowed to work after the final
probationary period. NOTE: There can be NO successive
Probations. EXCEPTION: when the extension was made for the benefit of the
employee so that he can qualify.

d) Probation of Teachers the legal requisites for acquisition by a teacher of

permanent employment, or security of tenure are:

1) the teacher is a full-time teacher - one whose total working day is devoted to
the school, has no other regular remunerative employment and is paid on a regular
monthly basis regardless of the number of teaching hours

2) the teacher must have rendered 3 consecutive years of service

3) such service must have been satisfactory

ART. 282. TERMINATION BY EMPLOYER. AN EMPLOYER MAY TERMINATE AN

EMPLOYMENT FOR ANY OF THE FOLLOWING CAUSES:

a. SERIOUS MISCONDUCT OR WILLFUL DISOBEDIENCE BY THE EMPLOYEE OF

THE LAWFUL ORDERS OF HIS EMPLOYER OR REPRESENTATIVE IN CONNECTION WITH
HIS WORK;

b. GROSS AND HABITUAL NEGLECT BY THE EMPLOYEE OF HIS DUTIES;

c. FRAUD OR WILLFUL BREACH BY THE EMPLOYEE OF THE TRUST REPOSED

IN HIM BY HIS EMPLOYER OR DULY AUTHORIZED REPRESENTATIVE;

d. COMMISSION OF A CRIME OR OFFENSE BY THE EMPLOYEE AGAINST THE

PERSON OF HIS EMPLOYER OR ANY IMMEDIATE MEMBER OF HIS FAMILY OR HIS DULY
AUTHORIZED REPRESENTATIVES; AND
e. OTHER CAUSES ANALOGOUS TO THE FOREGOING.

TERMINATION BY THE EMPLOYER

Grounds

1. serious misconduct. 1serious misconduct or 2willful disobedience by the

employee of the lawful orders of his employer or representative in connection
with his work

Serious Misconduct

a) sexual harassment of a customer or co-employee

b) cheating a customer

c) extramarital relationship of a teacher

d) Immorality that conduct which is so willful, flagrant or shameless as to show

indifference to the opinion of good and respectable members of the community.

generally, does not justify a discharge therefore unless such conduct is prejudicial
or in some way detrimental to the employers interest OR if it amounts to a Criminal
Act

Willful Disobedience of Lawful order; Elements

1) the employees assailed conduct must have been willful or intentional, the
willfulness being characterized by a wrongful and perverse attitude

2) the order Must

a) reasonable and lawful

b) sufficiently known to the employee; and

c) in connection with the duties which the employee has been engaged to
discharge

Notes

a. The Disobedience must relate to substantial matters, not merely trivial or

unimportant.

b. Violation of a reasonable company rule or regulation

Rule on Transfer: Generally, management has the right to transfer or reassign an
employee. The only limitation on the discretion of management in this regard is the
lawfulness and reasonableness.

Rule on Promotion: Promotions may be refused by the employee. There is no law

that compels an employee to accept a promotion, as a promotion is in the nature of
a gift or reward, which a person has a right to refuse.

2. Gross AND Habitual Neglect. gross and habitual neglect by the employee of
his duties

Gross Neglect an absence of that diligence that an ordinarily prudent man would
use his own affairs.

Incompetency Generally, an employee cannot be discharged on the ground of

incompentency when he fails to employ the highest degree of care UNLESS

a. the contract of employment expressly stipulates for such degree of skill and
care

b. the employee represents that he possess such skill

Notes

a. abandonment is a form of neglect of duty

Element of Abandonment

1) the failure to report for work or absence without valid or justifiable reason

2) a clear intention to sever the employment relationship

Notes on Abandonment

1) abandonment is a matter of intention; it cannot be inferred or presumed from

equivocal acts
2) if an employee who loses no time in protesting his layoff cannot by any
reasoning be said to have abandoned his work

b. Generally, the immediate filing of a complaint for illegal dismissal negates

abandonment. EXCEPT: when it can be inferred by the action of the employee

c. Tardiness and absenteeism are form of neglect of duty

3. Fraud / willful breach. fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized representative

Fraud any act, omission, or concealment which involves a breach of legal duty,
trust, or confidence justly reposed and is injurious to another

Guidelines for Loss of Confidence

1) the loss of confidence should not be simulated

2) it should not be used as a subterfuge for causes which are improper, illegal or
unjustified

3) it may not be arbitrarily asserted in the face of overwhelming evidence to the

contrary

4) it must be genuine, not a mere afterthought to justify earlier action taken in

bad faith

5) the employee involved holds a position of trust and confidence; employees

are either

a) cases involving employees occupying positions of trust and confidence

b) to those situations where the employee is routinely charged with the care
and custody of the employers money or property

Generally, a rank and file employee cannot be dismissed on the ground of Loss of
Confidence

Note: 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
4. crime.commission of a crime or offense by the employee against the person of
his employer or any immediate member of his family or his duly authorized
representative; and

Conviction or Prosecution the conviction of an employee in a criminal case is

not indispensable to warrant his dismissal and the fact that a criminal complaint
against the employee has been dropped by the city fiscal is not binding and
conclusive upon the labor tribunal

5. other analogous cases

===============

PROCEDURE FOR TERMINATION OF EMPLOYMENT

Requisites of Valid Termination under Just Causes

1. substantive due process. the dismissal is grounded on any of the Just

Causes of the labor code

2. Twin Notice Rule

a. notice of the intention to dismiss, indicating therein his acts or omissions

complained therein

b. notice of the decision to dismiss;

Note: VIOLATION of the Twin Notice Rule entitles the Employee. AN

investigation does not amount to notices.

c. indemnity only (nominal damages) in the minimum amount of 20,000 (Agabon

Case)

3. procedural due process (PDP). and an ample opportunity to answer and

rebut the charges against him, in between such notices

Ample Opportunity every kind of assistance that management must accord to

the employee to enable him to prepare adequately for his defense
ART. 283. CLOSURE OF ESTABLISHMENT AND REDUCTION OF
PERSONNEL. THE EMPLOYER MAY ALSO TERMINATE THE EMPLOYMENT OF ANY
EMPLOYEE DUE TO THE INSTALLATION OF LABOR-SAVING DEVICES, REDUNDANCY,
RETRENCHMENT TO PREVENT LOSSES OR THE CLOSING OR CESSATION OF
OPERATION OF THE ESTABLISHMENT OR UNDERTAKING UNLESS THE CLOSING IS
FOR THE PURPOSE OF CIRCUMVENTING THE PROVISIONS OF THIS TITLE, BY SERVING
A WRITTEN NOTICE ON THE WORKERS AND THE MINISTRY OF LABOR AND
EMPLOYMENT AT LEAST ONE (1) MONTH BEFORE THE INTENDED DATE THEREOF. IN
CASE OF TERMINATION DUE TO THE INSTALLATION OF LABOR-SAVING DEVICES OR
REDUNDANCY, THE WORKER AFFECTED THEREBY SHALL BE ENTITLED TO A
SEPARATION PAY EQUIVALENT TO AT LEAST HIS ONE (1) MONTH PAY OR TO AT LEAST
ONE (1) MONTH PAY FOR EVERY YEAR OF SERVICE, WHICHEVER IS HIGHER. IN CASE
OF RETRENCHMENT TO PREVENT LOSSES AND IN CASES OF CLOSURES OR
CESSATION OF OPERATIONS OF ESTABLISHMENT OR UNDERTAKING NOT DUE TO
SERIOUS BUSINESS LOSSES OR FINANCIAL REVERSES, THE SEPARATION PAY SHALL
BE EQUIVALENT TO ONE (1) MONTH PAY OR AT LEAST ONE-HALF (1/2) MONTH PAY
FOR EVERY YEAR OF SERVICE, WHICHEVER IS HIGHER. A FRACTION OF AT LEAST SIX
(6) MONTHS SHALL BE CONSIDERED ONE (1) WHOLE YEAR.

AUTHORIZED CAUSES OF TERMINATION

a) Installation of Labor-Saving Devices

b) Redundancy when the services of an employee are in excess of what is

reasonably demanded by the actual requirements of the enterprise. A position is
redundant when it is superfluous, and superfluity of a position or positions could be
that result of a number of factors such as 1the overhiring of workers, 2a decrease in
the volume of the business or the 3dropping of a particular line or service previously
manufactured or undertaken by the enterprise.

c) Retrenchment to prevent losses may be

1. Lack of work

2. business recession

3. fire

4. when the employer is under conservatorship

Requisites of Retrenchment
1. the retrenchment is necessary to prevent losses and such losses are
proven; Standards for the Losses

6) the losses expected should be substantial and nor merely de minimis in extent

7) the substantial loss apprehended must be reasonably imminent, as such

imminence can be perceived objectively and in good faith by the employer

8) it must be reasonably necessary and likely to effectively prevent

the expected losses

9) alleged losses if already realized, and the expected imminent losses sough to
be forestalled, must be proven by sufficient and convincing evidence

2. written notice of the employees and to the Department of Labor and

Employment at least 1 month prior to the intended date of retrenchment

3. payment of separation pay equivalent to 1 month or at least month pay for

every year of service which ever is higher

4. the employer exercises its prerogatives to retrench employees in good faith

for the advancement of its interest and not to defeat or circumvent the employees
right to security of tenure

5. the employer uses fair and reasonable criteria in ascertaining who will be
dismissed or retained among the employees, such as

1) less preferred status (such as temporary employees)

2) efficiency rating

3) seniority

Notes

1. the hiring of additional employees after retrenchment, negates alleged losses

2. Contracting out after retrenchment is valid if done in good faith and to

promote economy and efficiency

3. Temporary Retrenchment if employee is made to return within 6 months

d) The closing or cessation of operationof the establishment or undertaking

UNLESS the closing is for the purpose of circumventing the provisions of law

Requirements
1. service of a written notice tot eh employees and to the DOLE at least 1 month
before the intended date thereof

2. the cessation of or withdrawal from business operations must be bona fide in

character

3. payment to the employees of termination pay amounting to at least month

pay for each year of service or 1 month pay whichever is higher

Note:

1. There can be a closing or cessation of operation even if the business is not

suffering any loss.

2. closure not in good faith is ULP

ART. 284. DISEASE AS GROUND FOR TERMINATION. AN EMPLOYER MAY

TERMINATE THE SERVICES OF AN EMPLOYEE WHO HAS BEEN FOUND TO BE
SUFFERING FROM ANY DISEASE AND WHOSE CONTINUED EMPLOYMENT IS
PROHIBITED BY LAW OR IS PREJUDICIAL TO HIS HEALTH AS WELL AS TO THE HEALTH
OF HIS CO-EMPLOYEES: PROVIDED, THAT HE IS PAID 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 GREATER, A FRACTION OF AT LEAST SIX (6)
MONTHS BEING CONSIDERED AS ONE (1) WHOLE YEAR.

Other Causes

1total and permanent disability of an employee, 2disease not curable in 6 months,

3valid application of a union security clause, 4expiration of the period in term of
employment (among others)

Ailment or Disease

If the employee suffers from a disease and his continued employment is prohibited
by law or prejudicial to his health or to the health of his co-employees, the
EMPLOYER shall not terminate UNLESS

a) there is a certification by a competent public health authority

b) that the disease is of such nature or such a stage

c) that it cannot be cured within a period of 6 months even with proper medical
treatment

Common to Just and Authorized Cause: No more prior written authority from
the secretary is required

PDP Termination due to Just Cause

1. a written notice served on the employee specifying the ground(s) for

termination, and giving said employee reasonable opportunity within which to
explain his side

2. a hearing or conference during which the employee concerned, with the

assistance of counsel, if the employee so desires, is given opportunity to respond to
the charge, present his evidence or rebut the evidence presented against him

Substantial Evidence more than mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion

3. a written notice of termination served on the employee indicating that upon

due consideration of all the circumstances, grounds have been established to justify
his termination

PDP Termination due to Authorized Causes

1. service of a written notice to the employee

2. service of notice to the RO of the DOLE

both services at least 30 days before termination, specifying the ground(s) for
termination

NOTE on PDP Authorized Causes

a) no hearing is required

b) voluntary arbitration is substantial compliance with the 1-month mandatory

notice (only in authorized causes)

PDP Probationary Employees: it shall be sufficient that a written notice is served

the employee within a reasonable time from the effective date of termination
PREVENTIVE SUSPENSION

a) only if the employees continued employment poses a serious and imminent

threat to the life or property of the employer or of his co-workers

b) maximum period of suspension 30 days

Violation of the 30-day Maximum: there is constructive

dismissal. Constructive Dismissal does not always involve forthright dismissal or
diminution in rank, compensation, benefit and privileges. There is Constructive
Dismissal if an act of clear discrimination, insensibility, or disdain by an employer
becomes so unbearable on the part of the employee that it could foreclose any
choice by him except to forego his continued employment

Constructive Dismissal quitting when continued employment is rendered

impossible, unreasonable or unlikely as the offer of employment involves a
demotion in rank and diminution of pay

c) there is payment of employers salary and wages during his suspension

CONSEQUENCES OF TERMINATION

a) Separation Pay the amount that an employee receives at the time of his
severance from the service and is designed to provide the employee with the
wherewithal during the period that he is looking for another employment

Separation Pay includes not only the basic salary of the employee but also her
transportation and emergency living allowances

RULE ON SEPARATION PAY

Just Causes
Separation pay may be given as a measure of social justice OTHER

1. than serious misconduct OR

2. those reflecting on his moral character

Authorized Cause

Amount of Separation Pay

1. Installation of labor-saving devices

2. Redundancy

At least 1 month pay for every year of service (1 month pay minimum)

1. retrenchment to prevent losses

2. closure or cessation of operations of establishment or undertaking NOT due to

serious business losses or financial reverses

3. Ailment or Disease - a fraction more than 6 month is considered as 1 year

At least month pay for every year of service (1 month pay minimum)

1. Closure of business due to Serious Business Losses or Financial reverses

2. when closure was brought not by a unilateral and voluntary act of the
employer but due to the act of the government

No Separation Fee

Sale of Business in Good Faith: Unless the successor employer employs the
employees

Seller pays the separation Fee under Closure NOT due to serious losses

Kinds of Separation Pay

1. authorized cases. separation pay as employers statutory obligation in

cases of legal termination due to authorized causes
2. Just causes. separation pay as financial assistance, as an act of social
justice even in cases of legal dismissal by the employer. Except those involving
Serious Misconduct or those Reflecting on his moral character.

Amount: based on equity on compassionate justice. It rests on the sound judgment

of the adjudicating authority, weighing the peculiar circumstances of each case

3. in lieu of reinstatement. separation pay in lieu of reinstatement in illegal

dismissal cases where the employee is ordered reinstated is not feasible

Examples:

1) when the employees position no longer exists,

2) or the company has closed down,

3) or severely strained relations has set in between the parties

Strained Relations may be invoked only against employees whose positions

demand trust and confidence, or whose differences with their employer are of such
nature or degree as to preclude reinstatement

4) when the employee does not want to be reinstated

Rule: if reinstatement is no longer possible, then there is payment of SEPARATION

PAY

4. CBA/Policy. separation pay as an employment benefit granted in the CBA or

company policy

Example: Retirement or by virtue of a company policy in other cases.

b) Backwages the loss of earnings that would have accrued to the dismissed
employee during the period between dismissal and reinstatement

1. Cannot be replaced by Separation pay and is always available when the

termination is Illegal or there is bad faith.

2. Unpaid Salary. Unpaid Salary is not back wage. This refers to

payment to services already rendered.

3. When due but not awarded. Substantive rights like the award of
backwages resulting from illegal disimissal must not be prejudiced by a rigid and
technical application of the rule.

Amount:

1. not only the basic salary, but also the regular allowances that he had been
receiving such as the emergency living allowances and the 13th month pay
mandated under the law

2. the whole amount of salaries plus all other benefits and bonuses and general
increase to which the latter should have been normally entitled had he not been
dismissed

Full Backwages in cases of Illegal Dismissal:

a) 3 years. before RA 6715 or March 21, 1989, the award of backwages is

limited to 3 years without deduction

b) Full (current). if after 3/21/1989, FULL backwages under the Bustamante is

applicable up to Retirement age only

c) Inflation is not applicable without 1agreement by the parties and 2without

an official declaration thereof by competent authority

c) Indemnity (nominal damages) meant to vindicate or recognize the right of

an employee to due process which has been violated by the employer

Moral Damages may be awarded

1. to compensate one for diverse injuries such as mental anguish, besmirched

reputation, wounded feelings and social humiliation.

2. It is essential that they have sprung from a wrongful act or omission of the
defendant which was the proximate cause thereof

3. implies a conscious and intentional design to do a wrongful act for a

dishonest purpose or some moral obliquity and must be duly proven

Exemplary Damages awarded only when dismissal was shown to have been
effected in a wanton, oppressive or malevolent manner (exemplary damages may
not be awarded if there is no moral damages)
Attorneys Fees not recoverable where there is no sufficient showing of bad faith
on the part of employer

d) Reinstatement the normal consequences of a finding that an employee

has been illegally dismissed are that the employee becomes entitled to

1. reinstatement to his former position without loss of seniority rights. In lieu of

reinstatement, separation pay may be awarded.

2. payment of backwages (no backwages if the employer dismissed the

employee in good faith believing the existence of a just or authorized cause.

Notes

1. Salary on Reinstatement equal to the last salary in that position

2. Order of Reinstatement the decision of Labor Arbiter reinstating a

dismissed employee is immediately executory (but not self-executory; there
must be an order of execution) even while the case is brought on appeal UNLESS
there is a TRO/Injunction issued by the NLRC

Reinstatement may be

a. actual reinstatement

b. Payroll REinstatement. It is grave abuse of discretion when the NLRC

orders reinstatement in the pay-roll only when the facts does not call for it. A
strained relationship between the striking employees and management is NO
reason for payroll reinstatement in lieu of actual reinstatement (Azcuna Decision
Manila Diamond Hotel v. CA)

Valid Reinstatement in Pay-Roll incases of teachers because it would be

impracticable to reinstate them in the middle of the semester (UST v. NLRC)

3. Order of Reinstatement Executed but Reversed on Appeal the

employee is not obliged to reimburse the Employer of the income he received
during the pendency of the case.

e) Persons liable for Wrongful Dismissal

1. Sunio v. NLRC mere ownership by a single stockholder or by another

corporation of all or nearly all of the capital stock of a corporation is not of itself
sufficient ground for disregarding the separate corporate personality

2. Piercing the Corporate Veil. Officers become personally liable when the
corporation is made as a 1shield of fraud or an illegal act or 2as a vehicle for the
evasion of an existing obligation, 3the circumvention of statutes, and or 4to confuse
legitimate issues.

Instances when Corporate Fiction is pierced

1. when the directors and trustees or, in appropriate cases, the officers of a
corporation:

a. vote for or assent to patently unlawful acts of the corporation

b. act in bad faith or with gross negligence in directing the corporate affairs

c. guilty of conflict of interest to the prejudice of the corporation, its

stockholders or members, and other persons

2. when the director or officer has consented to the issuance of watered stocks
or who, having knowledge thereof, did not forthwith file with the corporate secretary
his written objection thereto

3. when a director, trustee or officer has contractually agreed or stipulated to

hold himself personally and solidarily liable with the corporation

4. when a director, trustee or officer is made, by specific provision of law,

personally laible for his corporate actions

f) QUITCLAIMS Generally, once an employee resigns and executes a

quitclaim in favor of the employee, he is thereby estopped from filing any further
money claim against the employer arising from his employment. EXCEPTIONS:

1. it was done involuntarily EXCEPT when there is a clear proof that the waiver
was wangled from an unsuspecting or gullible person, or the terms of settlement
are unconscionable on its face

2. Quitclaims executed by the employees DO NOT estop them from pursuing

their claim arising from the ULP of the employer

3. Quitclaims cannot bar an employee from demanding benefits to which he is

legally entitled.

4. generally, a final and executory judgment cannot be compromised UNLESS

such compromise is reasonable and voluntary.
ART. 285. TERMINATION BY EMPLOYEE.

1. AN EMPLOYEE MAY TERMINATE WITHOUT JUST CAUSE THE EMPLOYEE-

EMPLOYER 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.
2. 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; AND

4. OTHER CAUSES ANALOGOUS TO ANY OF THE FOREGOING.

TERMINATION BY EMPLOYEE

1. Without Just Cause. By serving a written notice on the employer at least 1

month in advance

Resignation the voluntary act of an employee who finds himself in a situation

where he believes that personal reason cannot be sacrificed in favor of the exigency
of the service, then he has no other choice but to dissociate himself from his
employment.

a) Resignation, once accepted, may not be withdrawn without the consent of the
employer

b) Resignation Pay. Generally, there is NO resignation pay UNLESS stipulated

in the CBA or is sanctioned by Employer Practice or Policy

c) Constructive Dismissal a quitting because continued employment is

rendered impossible, unreasonable or unlikely, as an offer involving a demotion in
rank and diminution pay. There is constructive dismissal when

1) when the status is changed from regular to casual

2) preventive suspension > 30 days is constructive dismissal

2. Just Causes. In case of Just causes, notice is not necessary.

a) serious insult by the employer of his representative on the honor and person
of the employee

b) inhuman and unbearable treatment accorded by employee by the employer or

his representative

c) 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

d) other analogous cases

ART. 286. WHEN EMPLOYMENT NOT DEEMED TERMINATED. THE BONA-FIDE

SUSPENSION OF THE OPERATION OF A BUSINESS OR UNDERTAKING FOR A PERIOD
NOT EXCEEDING SIX (6) MONTHS, OR THE FULFILLMENT BY THE EMPLOYEE OF A
MILITARY OR CIVIC DUTY SHALL NOT TERMINATE EMPLOYMENT. IN ALL SUCH CASES,
THE EMPLOYER SHALL REINSTATE THE EMPLOYEE TO HIS FORMER POSITION
WITHOUT LOSS OF SENIORITY RIGHTS IF HE INDICATES HIS DESIRE TO RESUME HIS
WORK NOT LATER THAN ONE (1) MONTH FROM THE RESUMPTION OF OPERATIONS
OF HIS EMPLOYER OR FROM HIS RELIEF FROM THE MILITARY OR CIVIC DUTY.

SUSPENSION OF OPERATION

When there is a

a) bona fide suspension of operation for not more than 6 months

b) The fulfillment by the employee of a military or civic duty shall NOT terminate
employment. He must indicate his desire to resume his work not later than 1 month
from the resumption of operation

Employees are considered on Floating Status. When the Floating status lasts for
more than 6 months, he may be considered to have been illegally dismissed from
service.

RETIREMENT FROM THE SERVICE

ART. 287. RETIREMENT. ANY EMPLOYEE MAY BE RETIRED UPON REACHING THE
RETIREMENT AGE ESTABLISHED IN THE COLLECTIVE BARGAINING AGREEMENT OR
OTHER APPLICABLE EMPLOYMENT CONTRACT.

IN CASE OF RETIREMENT, THE EMPLOYEE SHALL BE ENTITLED TO RECEIVE SUCH

RETIREMENT BENEFITS AS HE MAY HAVE EARNED UNDER EXISTING LAWS AND ANY
COLLECTIVE BARGAINING AGREEMENT AND OTHER AGREEMENTS: PROVIDED,
HOWEVER, THAT AN EMPLOYEES RETIREMENT BENEFITS UNDER ANY COLLECTIVE
BARGAINING AND OTHER AGREEMENTS SHALL NOT BE LESS THAN THOSE
PROVIDED THEREIN.

IN THE ABSENCE OF A RETIREMENT PLAN OR AGREEMENT PROVIDING FOR

RETIREMENT BENEFITS OF EMPLOYEES IN THE ESTABLISHMENT, AN EMPLOYEE UPON
REACHING THE AGE OF SIXTY (60) YEARS OR MORE, BUT NOT BEYOND SIXTY-FIVE
(65) YEARS WHICH IS HEREBY DECLARED THE COMPULSORY RETIREMENT AGE,
WHO HAS SERVED AT LEAST FIVE (5) YEARS IN THE SAID ESTABLISHMENT, MAY
RETIRE AND SHALL BE ENTITLED TO RETIREMENT PAY EQUIVALENT TO AT LEAST
ONE-HALF (1/2) MONTH SALARY FOR EVERY YEAR OF SERVICE, A FRACTION OF AT
LEAST SIX (6) MONTHS BEING CONSIDERED AS ONE WHOLE YEAR.

UNLESS THE PARTIES PROVIDE FOR BROADER INCLUSIONS, THE TERM ONE-HALF
(1/2) MONTH SALARY SHALL MEAN FIFTEEN (15) DAYS PLUS ONE-TWELFTH (1/12)
OF THE 13TH MONTH PAY AND THE CASH EQUIVALENT OF NOT MORE THAN FIVE (5)
DAYS OF SERVICE INCENTIVE LEAVES.

RETAIL, SERVICE AND AGRICULTURAL ESTABLISHMENTS OR OPERATIONS EMPLOYING

NOT MORE THAN TEN (10) EMPLOYEES OR WORKERS ARE EXEMPTED FROM THE
COVERAGE OF THIS PROVISION.

VIOLATION OF THIS PROVISION IS HEREBY DECLARED UNLAWFUL AND SUBJECT TO

THE PENAL PROVISIONS UNDER ARTICLE 288 OF THIS CODE.

RETIREMENT FROM SERVICE; Requisites

a) Age if not fixed by the CBA,

1) if not fixed, 60 to 65 (compulsory) years old

2) in case of underground mining employees, 50 to 60 (compulsory) years old

b) Service. Has served at least 5 years in said establishment

c) Amount:

1) month salary for every year of service (a fraction of at least 6 months being
considered as one whole year

2) 1/12 of the 13th month pay

3) cash equivalent of not more than 5 days of SIL

EXEMPTION:

a) Retail, Service, agricultural establishments or operation employing not more

than 10 employees or workers

b) RA 7641, granting mandatory retirement benefits, shall be given retroactive

effect where:

1. the claimant for retirement benefits was still the employee of the employer at
the time the statute took effect; and

2. the claimant was in compliance with the requirements of eligibility under the
statute for such retirement benefits

Retirement the withdrawal from office, public station, business, occupation or

public duty. Retirement pay and separation pay does not necessarily exclude each
other. If Retirement pay is due, even if there is separation pay for illegal dismissal,
the retirement pay would still be paid (Aquino v. NLRC)

Note: An employee compulsorily retired before the age of retirement can demand
both separation pay and retirement pay under the CBA (S. Villena v. NLRC)

BY: Gang Casio