PRE-WEEK NOTES

ON THE 2013 BAR EXAMINATION IN LABOR LAW

By: Prof. Joselito Guianan Chan

(These Notes, consisting of 8 parts, are supplementary to the author’s book entitled “2012 Bar Reviewer on Labor Law”)

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PART EIGHT

PROCEDURE AND JURISDICTION

A. LABOR ARBITER

1. Jurisdiction. - Labor Arbiters shall have original and exclusive jurisdiction to hear and decide the following cases involving all workers, whether agricultural or non-agricultural:

1. Under Article 217 of the Labor Code:

(a) Unfair labor practice (ULP) cases;

(b) Termination disputes or illegal dismissal cases;

(c) 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;

(d) Claims for actual, moral, exemplary and other forms of damages arising from employer-employee relations;

(e) Cases arising from any violation of Article 264 of the Labor Code, as amended, including questions involving the legality of strikes and lockouts;

(f)Except claims for employees compensation not included in the next succeeding paragraph, social security, Philhealth (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), whether or not accompanied with a claim for reinstatement;

2. Under Article 124 ofthe Labor Code, as amended by R.A. No. 6727:

Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to R.A. No. 6727 (Wage Rationalization Act);

3. Under Article 128(b) of the Labor Code, as amended by R. A. No. 7730:

Contested cases under the exception clause in Article 128(b) of the Labor Code;

4. Under Article 227 ofthe Labor Code:

Enforcement of compromise agreements when there is non-compliance by any of the parties pursuant to Article 233 [227] of the Labor Code, as amended;

5. Under Section 10 of R.A. No. 8042, as amended in 2010 by R.A. No. 10022:

Money claims arising out of employer-employee relationship or by virtue of any law or contract, involving Filipino workers for overseas deployment, including claims death and disability benefits and for actual, moral, exemplary and other forms of damages as provided by Section 10 of R.A. No. 8042, as amended by R.A. No. 10022; and

6. Under the 2011 NLRC Rules of Procedure:

Other cases as may be provided by law.[1]

(a) versus   Regional Director.  – This refers to two (2) situations:

(1) Contested cases under the exception clause in Article 128(b) of the Labor Code; and

(2) When the threshold total amount of monetary claims is P5,000.00 or less, the jurisdiction belongs to the Regional Director.

   Other issues/cases falling under the jurisdiction of the Labor Arbiters. - Per jurisprudence, the following issues fall under the jurisdiction of the Labor Arbiters:

1.Issues involving employees in government-owned and/or controlled corporations without original charters;

2.Issues involving alien parties;

3.Illegal dismissal cases involving priests and ministers;

4.Monetary claims of domestic workers or kasambahay exceeding P5k;

5.Cases involving employees of cooperatives;

6.Cases involving employees of local water utilities districts;

7.Tax deductions as money claim which reduce the amount thereof;

8.Claims or counter-claims of employers against employees arising from employer-employee relationship.

   Other issues/cases NOT falling under the jurisdiction of the Labor Arbiters. - Per jurisprudence, the following issues do not fall under the jurisdiction of the Labor Arbiters but of the regular courts:

1.Claims for damages arising from violation of the non-compete clause and other post-employment prohibitions;

2.Claims for payment of car, appliance and other loans of employees;

3.Collection of payment for loans availed of from the retirement fund by dismissed employees;

4.Dismissal of corporate officers and their monetary claims;

5.Issues involving suspension of payment of debts (rehabilitation receivership);

6.Cases involving entities immune from suit;

7.Cases falling under the doctrine of forum non conveniens;

8.Quasi-delict or tort cases;

9.Criminal and civil liabilities arising from violations of certain provisions of the Labor Code;

10. Constitutionality of CBA provisions.   OFW-related cases over which the POEA, and not the Labor Arbiters, has jurisdiction. - The

Philippine Overseas Employment Administration (POEA) has original and exclusive jurisdiction to hear and decide:

(a) All cases which are administrative in character, involving or arising out of violation of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities, including refund of fees collected from workers and violation of the conditions for the issuance of license to recruit workers.

(b)Disciplinary action cases and other special cases which are administrative in character, involving employers, principals, contracting partners and Filipino migrant workers.

   Additional notes on jurisdiction of Labor Arbiters:

a. Employment relationship, a pre-requisite for exercise of jurisdiction.

b. In cases of money claims of OFWs, Labor Arbiters may exercise jurisdiction even absent the employment relationship. This is so because the Labor Arbiter may exercise jurisdiction over the claims of OFWs arising out of an 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 damage.

c.Labor Arbiters have jurisdiction even if the case is filed by the heirs of the OFW.

d. Exceptions to the original and exclusive jurisdiction of Labor Arbiters are as follows:

(1) When the Secretary of Labor and Employment or the President exercises his power under Article 263 [g] of the Labor Code to assume jurisdiction over national interest cases and decide them himself; or

(2) When the NLRC exercises its power of compulsory arbitration over national interest cases that are certified to it by the Secretary of Labor and Employment pursuant to the exercise by the latter of his certification power under the same Article 263 [g]; or

(3) When the parties agree to submit the case to voluntary arbitration before a Voluntary Arbitrator or Panel of Voluntary Arbitrators who, under Articles 261 and 262 of the Labor Code, are also possessed of original and exclusive jurisdiction to hear and decide cases mutually submitted to them by the parties for arbitration and adjudication.

e. Reasonable causal connection rule – This is the rule in case of conflict of jurisdiction between labor court and regular court. Under this rule, if there is a reasonable causal connection between the claim asserted and the employer-employee relations, then the case is within the jurisdiction of labor courts.In the absence of such nexus, it is the regular courts that have jurisdiction.

f. Labor disputes, not subject to barangay conciliation.g. Labor Arbiter has no injunction power. It is only the Commission (NLRC) which

has injunctive power.h. Labor Arbiters have no jurisdiction over termination of a corporate

officer which is in the nature of an intra-corporate dispute.New Matling doctrine[2] is that “corporate officers” refer only to those mentioned in the Corporation Code and the By-Laws; all other officers not so mentioned are deemed employees.

2. Reinstatement pending appeal. – This relief exclusively applies to orders of reinstatement issued byLabor Arbiters and not to similar orders issued by the NLRC, on appeal, the CA, on Rule 65-certiorari petition, or the Supreme Court, on Rule 45-petition for review on certiorari which require a writ of execution. The order of reinstatement of the Labor Arbiter is self-executory or immediately executory. This

means that the employee ordered reinstated need not secure a writ of execution to effect his reinstatement.

   Some principles on reinstatement pending appeal under Article 223.

1. Posting of a bond does not stay the execution of immediate reinstatement.

2. The employer has only 2 options:

a.Actual reinstatement, i.e., the employee should be reinstated to his position which he occupies prior to his illegal dismissal under the same terms and conditions prevailing prior to his dismissal or separation or, if no longer available, to a substantially-equivalent position; or

b.Payroll reinstatement, i.e., reinstatement of the employee in the payroll of the company without requiring him to report back to his work.

3.Employer has the obligation to notify the employee ordered reinstated of his choice of option withinten (10) calendar days from receipt of the Labor Arbiter’s decision, disobedience to which clearly denotes a refusal to reinstate. 

4. Roquero doctrine[3] - Employer is liable to pay the salaries for the period that the employee was ordered reinstated pending appeal even if his dismissal is later finally found to be legal on appeal.

5. The Genuino doctrine[4] that the payroll-reinstated employee should refund the salaries he received if his dismissal is finally found legal on appeal no longer applies. Whether reinstated actually or in the payroll, the employee is not required to refund what he has received even if the decision of the Labor Arbiter is subsequently reversed on appeal.

6. The Roquero and Genuino doctrines have already been modified by the Garcia doctrine. 

[5]Thus, after the Labor Arbiter’s decision is reversed by a higher tribunal, the employee may be barred from collecting the accrued reinstatement wages (i.e., from the time he was ordered reinstated by the Labor Arbiter until reversed on appeal), if it is shown that the delay in enforcing the reinstatement pending appeal was without fault on the part of the employer.

8.The test under the Garcia doctrine is 2-fold:

(a) There must be actual delay or the fact that the order of reinstatement pending appeal was not executed prior to its reversal; and

(b) The delay must not be due to the employer’s unjustified act or omission.  If the delay is due to the employer’s unjustified refusal, the employer may still be required to pay the salaries notwithstanding the reversal of the Labor Arbiter’s decision.

3. Requirements to perfect appeal to NLRC. – The 2011 NLRC Rules of Procedure[6] prescribe the requisites for perfection of an appeal to the NLRC. Thus, the appeal should be:

(1) filed within the reglementary period, to wit:

(a) 10 calendar days – in appeals from decisions of the Labor Arbiter; and

(b) 5 calendar days – in appeals from DOLE Regional Directors under Article 129 (small money claims of P5,000.00 or less).

(2) verified by the appellant himself/herself in accordance with Section 4, Rule 7 of the Rules of Court, as amended;

(3) in the form of a memorandum of appeal which shall state the grounds relied upon and thearguments in support thereof, the relief prayed for, and with a statement of the date the appellant received the appealed decision, award or order;

(4) in three (3) legibly typewritten or printed copies; and

(5) accompanied by:

(i) proof of payment of the required appeal fee and legal research fee;

(ii) posting of a cash or surety bond (only in cases of monetary awards but excluding moral and exemplary damages and attorney’s fees in the computation thereof); and

(iii)proof of service upon the other parties.

B. NATIONAL LABOR RELATIONS COMMISSION (NLRC)

1. Jurisdiction. - The NLRC exercises two (2) kinds of jurisdiction:

1.Original jurisdiction over the following cases:

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.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 under Article 263(g) of the Labor Code.

2.Exclusive appellate jurisdiction over the following cases:

a.All cases decided by the Labor Arbiters.

b.Contempt cases decided by the Labor Arbiters.

c.Cases decided by the DOLE Regional Directors involving recovery of wages, simple money claims and other benefits under Article 129 of the Labor Code.

2. Effect of NLRC reversal of Labor Arbiter’s order of reinstatement. -The following are the effects:

1. On backwages - The employer, as a general rule, has to pay the so-called “reinstatement wages” of the employee from the time he was ordered reinstated by the Labor Arbiter until the reversal by the NLRC of such reinstatement order. The exception is when there exists justifiable reason for not effecting actual or payroll reinstatement pending appeal, as enunciated under the Garcia doctrine.[7]

2. On reinstatement – If the employee was, pending appeal, reinstated either to his former position/substantially equivalent position or in the payroll, the reversal of the reinstatement ordered by the Labor Arbiter will not affect such reinstatement if the employee elevates his case to the Court of Appeals or subsequently, to the Supreme Court. However, if the employee no longer elevates the case to the Court of Appeals or to the Supreme Court, the reversal shall mean the end of the litigation, hence, the reinstatement of the employee should cease as a matter of course upon the finality of the reversal decision of the NLRC.

3. Remedies. – The following are the remedies from the decision, order or award of the NLRC:

For the losing party:

a. Filing of a motion for reconsideration within ten (10) calendar days from receipt thereof; and

b. Filing of a Rule 65-petition for certiorari with the Court of Appeals within sixty (60) days from receipt of the denial of the motion for reconsideration. (Decisions of the NLRC are not final during the pendency of a certiorari petition. Although it

is not in the nature of an appeal, certiorari should be treated as being similar to the concept of an appeal).[8]

For the winning party:

a. Filing of a motion for the issuance of a writ of execution with the Labor Arbiter of origin to enforce the monetary award or effect reinstatement ordered by the Commission (NLRC) on appeal.This is so because apetition for certiorari with the Court of Appeals or the Supreme Court shall not stay the execution of the assailed decision unless a restraining order is issued by said courts.[9]Consequently, such petition shall not stop the Sheriff from enforcing the assailed decision unless a restraining order is issued by the Court of Appeals or the Supreme Court.[10]

4. Certified cases. – These refer to national interest cases certified to the NLRC by the DOLE Secretary for purposes of compulsory arbitration under Article 263(g) of the Labor Code.

C. BUREAU OF LABOR RELATIONS – MED ARBITERS

1. Original jurisdiction. - The BLR has original and exclusive over the following cases:

a.Inter-union or representation dispute. – It refers to a 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 or supervisory employees, as the case may be, in the appropriate bargaining unit of an establishment.

b.Intra-union dispute. - It refers to any conflict between and among union members, including grievances arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the union’s constitution and by-laws or disputes arising from chartering or affiliation of a union.

c.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 CBAs which shall be the subject of grievance procedure and/or voluntary arbitration;

d. Application for registration of labor unions; and

e. Petition for cancellation of union registration.

2. Appellate jurisdiction. - The following are the rules on appeals with respect to the BLR:

a. In inter-union disputes - Decisions of the Med-Arbiter in inter-union disputes (certification elections)are not appealable to the BLR but to the DOLE Secretary.

b. In intra-union disputes - Decisions of Med-Arbiters in intra-union disputes are appealable to the BLR.

c. The BLR exercises appellate jurisdiction over all cases originating from the DOLE Regional Director involving the following issues:

1. Union registration;

2. Cancellation of certificates of union registration; and

3. Complaints for examination of union’s books of accounts.

d. As far as cancellation of union registration is concerned, in case the decision is rendered by the BLR Director in the exercise of his original jurisdiction, the same may be appealed to the Office of the DOLE Secretary by any party within the same period of ten (10) days, copy furnished the opposing party.

3. Administrative functions. – In addition, the BLR has the following administrative functions:

a.Registration of labor unions;

b.Keeping of registry of labor unions;

c.Maintenance and custody of the files of Collective Bargaining Agreements (CBAs) and other related agreements.

d. Records of settlement of labor disputes; and

e. Copies of orders and decisions of Voluntary Arbitrators.

D. NATIONAL CONCILIATION AND MEDIATION BOARD (NCMB)1. Nature of proceedings. – The NCMB is not a quasi-judicial agency.

[11] Consequently, its proceedings are non-litigious in nature. It does not render decisions in cases brought before it. Its function is confined to the conduct of conciliation and mediation. It accredits Voluntary Arbitrators to whom it refers cases for voluntary arbitration purposes.

2. Conciliation vs. Mediation. – In both conciliation and mediation, there is a third party called Conciliator (in case of conciliation) or Mediator (in case of mediation) to

whom the parties submit their disputes for purposes of reconciling their differences or persuading them into adjusting or settling their dispute. The distinction lies on the extent of the power and authority granted to the neutral third party.In mediation, there are two (2) classifications:

1.    Facilitative Mediation where the Mediator does not make or offer any opinion; or

2.    Evaluative Mediation where the Mediator offers an opinion which is not binding on the parties.

In conciliation, the Conciliator is given more power and authority in that he may not only offer an opinion on the issues at hand but may actually make a binding opinion thereon provided the parties stipulate in advance to this effect. His opinion is based on the facts and the law involved in the controversy before him.

3.Preventive mediation. – Although this is not provided in the Labor Code, the law[12] that created the NCMB mandates that it should provide preventive mediation to disputing parties. The validity of this remedy has been affirmed by the Supreme Court. The issues that may be submitted for preventive mediation may either be strikeable or non-strikeable.

In cases of strikeable issues, the parties may mutually agree that the same be treated or converted into a preventive mediation case, in which event, no strike or lockout may be legally and validly mounted based on the same issues since their conversion into a preventive mediation case has the effect of dismissing the notice of strike or notice of lockout and removing it from the docket of notices of strike/lockout.

In cases of non-strikeable issues raised in a notice of strike or notice of lockout, the NCMB may, motuproprio, convert the same into a preventive mediation case or, alternatively, refer said issues to voluntary arbitration, if they are in the nature of unresolved grievances or to the Med-Arbiter, if they involve representation or inter-union disputes.   Strike is illegal if staged after conversion of the notice of strike into a preventive mediation case.

Philippine Airlines, Inc. v. Secretary of Labor and Employment,   [G.R. No. 88210, January 23, 1991, 193 SCRA 223] - The strike was declared illegal for lack of a valid notice of strike in view of the NCMB’s conversion of said notice into a preventive mediation case.San Miguel Corporation v. NLRC,   [G.R. No. 119293, June 10, 2003]  - The moment the NCMB orders the preventive mediation in a strike case, the union

thereupon loses the notice of strike it had filed. Consequently, if it still defiantly proceeds with the strike while mediation is on-going, the strike is illegal.

E. DOLE REGIONAL DIRECTORS

1. Jurisdiction. – DOLE Regional Directors have original jurisdiction over the following:

a. Exercise of the visitorial and enforcement power as duly authorized representatives of the DOLE Secretary under Article 128 of the Labor Code; and

b. Recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or kasambahay under Article 129 of the Labor Code.   Requisites for the valid exercise of jurisdiction by DOLE Regional Directors under Article 129.

(1) The claim is presented by an employee or person employed in domestic or household service or kasambahay under the code;

(2) The claimant whose employment has been severed does not seek reinstatement; and

(3) The aggregate money claim of the employee or domestic worker/kasambahay does not exceedP5,000.00.

F. DOLE SECRETARY

1. Visitorial   and Enforcement Powers.  - The visitorial and enforcement powers granted to the DOLE Secretary or his duly authorized representatives under Article 128 of the Labor Code are in the nature of aquasi-judicial power.[13] 

There are three (3) separate powers treated in Article 128, to wit:

1. Visitorial power embodied in paragraph [a] thereof which covers the following:

a.Access to employer’s records and premises at any time of the day or night, whenever work is being undertaken therein; and

b.The right:

1. to copy from said records;

2.to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of the Labor Code and of any labor law, wage order, or rules and regulations issued pursuant thereto.

2.Enforcement power treated in paragraphs [b] and [c] thereof which includes the following:

a.To issue compliance orders to give effect to the labor standards provisions of the Labor Code and other labor legislations based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection.

b.To issue writsofexecution tothe appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection.

c. To order stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. Within twenty-four (24) hours, a hearing shall be conducted to determine whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of work or suspension of operation.

d.To require employers, by appropriate regulations, to keep and maintain such employment recordsas may be necessary in aid of his visitorial and enforcement powers under the Labor Code.

3.Appellate power or power of review which is found in the sub-paragraph of paragraph [b]thereof. The appeal from the order of the DOLE Regional Director issued under Article 128 should be made to the DOLE Secretary within ten (10) calendar days from receipt of a copy of the order of the DOLE Regional Director based on any of the following grounds:

1.There is a prima facie evidence of abuse of discretion on the part of the Regional Director;

2.The order was secured through fraud, coercion or graft and corruption;

3.The appeal is made purely on questions of law; or

4.Serious errors in the findings of facts were committed which, if not corrected, would cause grave and irreparable damage or injury to the appellant.

2. Power to suspend effects of termination. - Under Article 277 [b] of the Labor Code, the DOLE Secretary is empowered to suspend the effects of termination based on the following grounds:

1.The termination may cause a serious labor dispute; or

2.The termination is in implementation of a mass lay-off.

The obvious purpose behind this rule is to bring the parties back to the status quo ante litem, that is, their state of relationship prior to the termination. In this way, the workers will be litigating the issue of the validity or legality of their termination on more or less equal footing with the employer since they will not be deprived of their wages while the litigation is on-going.

3. Assumption of jurisdiction. – The DOLE Secretary, under Article 263(g) of the Labor Code, may assume jurisdiction over a labor dispute when, in his opinion, it will cause or likely to cause a strike or lockout in anindustry indispensable to the national interest. Such assumption shall have the effect ofautomatically enjoining the intended or impending strike or lockout as specified in the assumption order.If a strike or lockout has already taken place at the time of assumption, 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 DOLE Secretary may seek the assistance of law enforcement agencies to ensure compliance with the law as well as with such orders as he may issue to enforce the same.

A different rule is applicable to labor disputes involving hospitals, clinics and similar medical institutions. 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 DOLE Secretary may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by

the DOLE Secretary, 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.

4. Appellate jurisdiction. – The appellate jurisdiction of the DOLE Secretary may be summarized as follows:

a. Appeal from the order of the DOLE Regional Director under Article 128 (Visitorial and

Enforcement Power).

[NOTE: APPEAL FROM DECISIONS OF THE DOLE REGIONAL DIRECTORS UNDER ARTICLE 129

(Recovery of small money claims) IS TO THE NLRC WITHIN 5 CALENDAR DAYS].

b. Appeal from the order of the Med-Arbiter in certification election cases (Article 259)

based only on one (1) ground: That the rules and regulations or parts thereof established by the DOLE Secretary for the conduct of the certification election have been violated.

[NOTE: Rule on appeal in unorganized establishments. The order GRANTING the petition for certification election in an unorganized establishment is not subject to appeal. Any issue arising from its conduct or from its results is proper subject of a protest. Appeal may only be made in

case of DENIAL of the petition within ten (10) days from receipt of the decision of denial.[14]

Rule on appeal in organized establishments. BOTH THE GRANT AND DENIAL of the petition for certification election ARE APPEALABLE. The order GRANTING the conduct of a certification election in an organized establishment and the decision DISMISSING or DENYING the petition may be appealed to the Office of the DOLE Secretary within ten (10) days from receipt thereof.[15]]

   Employer is not a proper party to file an appeal from the certification election order because he is considered under the

law as a mere bystander or stranger.[16]

c. Appeal in cancellation of union registration proceedings. – The rule on appeal depends on

where the petition for cancellation was originally filed.

1. If originally filed with the DOLE Regional Director, his decision rendered in his original jurisdiction may be appealed to the BLR Director by any of the parties within ten (10) days

from receipt thereof, copy furnished the opposing party.

2. If originally filed with the BLR Director, his decision rendered in the exercise of

his originaljurisdiction may be appealed to the Office of the DOLE Secretary by any party

within the same period of ten (10) days, copy furnished the opposing party.[17]

   APPELLATE JURISDICTION OF THE BLR AND DOLE SECRETARY, DISTINGUISHED.

According to the High Court in Abbott,[18]the appellate jurisdiction of the DOLE Secretary is limited only to a review of cancellation proceedings decided by the BLR in the exercise of the latter’s exclusiveand original jurisdiction. The DOLE Secretary has no jurisdiction over decisions of the BLR rendered in the exercise of its appellate jurisdiction to review the decisions of the Regional Directors in cancellation cases, said decisions being final and inappealable.

Simply stated, there are two (2) situations contemplated, thus:

(a)The first situation involves a petition for cancellation of union registration which is filed with aRegional Office. A decision of a Regional Office cancelling a union’s certificate of registration may be appealed to the BLR Director whose decision on the matter shall be final and inappealable.

(b)The second situation involves a petition for cancellation of certificate of union registration which is filed directly with the BLR. A decision of the BLR cancelling a union’s certificate of registration may be appealed to the DOLE Secretary whose decision on the matter shall be final and inappealable.

d. Appeal in contempt cases decided by BLR Director shall be made to the DOLE Secretary.

[19]

5. Voluntary arbitration powers of the DOLE Secretary. – This is a new rule of dispute settlement where the DOLE Secretary himself may now conduct voluntary arbitration of cases. It is called“Administrative Intervention for Dispute Avoidance (AIDA).”[20]

This recourse is separate from the established dispute resolution modes of mediation, conciliation and arbitration under the Labor Code, and is an alternative to other voluntary modes of dispute resolution such as the voluntary submission of a dispute to the Regional Director for mediation, to the NCMB for preventive mediation, or to the intervention of a regional or local tripartite peace council for the same purpose.

   Parties who may request for the DOLE Secretary’s intervention.

Either or both the employer and the certified collective bargaining agent (or the representative of the employees where there is no certified bargaining agent) may voluntarily bring to the Office of the DOLE Secretary, through a Request for Intervention, any potential or ongoing dispute defined below.

   Potential or ongoing dispute.

A potential or ongoing dispute refers to:

a. a live and active dispute;

b. that may lead to a strike or lockout or to massive labor unrest; and

c. is not the subject of any complaint or notice of strike or lockout at the time a Request for Intervention is made.

   Pre-requisite to intervention by the DOLE Secretary.

The Office of the Secretary or the Regional Director, in the proper case, shall proceed to intervene after the parties shall have manifested that:

a. They voluntarily submit their potential or ongoing dispute to intervention by the Office of the DOLE Secretary;

b. There is no pending notice of strike or lockout or any related complaint in relation to their potential or ongoing dispute;

c. They shall refrain from any strike or lockout or any form of work stoppage or from filing any related complaint while the Secretary's intervention is in effect; and

d. They shall abide by the agreement reached, whose terms may be enforced through the appropriate writs issued by the DOLE Secretary.

All agreements settling the dispute should be in writing and signed by the parties as well as the official who mediated the dispute.

   Voluntary arbitration by the DOLE Secretary.

If AIDA fails, either or both parties may avail themselves of the remedies provided under the Labor Code. Alternatively, the parties may submit their dispute to the Office of the DOLE Secretary for voluntary arbitration.

Such voluntary arbitration should be limited to the issues defined in the parties' submission to voluntary arbitration agreement and should be decided on the basis of the parties' position papers and submitted evidence.

The Office of the DOLE Secretary is mandated to resolve the dispute within sixty (60) days from the parties' submission of the dispute for resolution.

[NOTE: DOLE REGIONAL DIRECTORS AND ASSISTANT REGIONAL DIRECTORS MAY NOW ACT

AS EX-OFFICIO VOLUNTARY ARBITRATORS (EVAs). Regional Directors and Assistant Regional Directors of the Department of Labor and Employment are neither expressly authorized to act as Voluntary Arbitrators under the Labor Code nor explicitly prohibited from acting as such. This is a void in the law which was appropriately addressed with the issuance by DOLE Secretary Arturo D. Brion, of Department Order No. 83-07, Series of 2007 on June 8, 2007 designating all Regional Directors and Assistant Regional Directors of the Department of Labor and Employment as Ex-Officio Voluntary

Arbitrators (EVAs)].

G. GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

1. Subject matter of grievance. – A grievance may involve the following subject matters:

1. Interpretation or implementation of the CBA; or

2. Interpretation or enforcement of company personnel policies.

If these two issues are unresolved within 7 days from their submission for resolution by the Grievance Committee, they shall be forwarded to a Voluntary Arbitrator for voluntary arbitration.

2. Jurisdiction of Voluntary Arbitrator. - The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have exclusive and original jurisdiction over the following cases:

1.Unresolved grievances arising from the interpretation or implementation of the collective bargaining agreement (CBA).

2.Unresolved grievances arising from the interpretation or enforcement of company personnel policies.

3.Violations of the CBA which are not gross in character.

4.Wage distortion issues arising from the application of any wage orders in organized establishments.

5.Other labor disputes, including unfair labor practices and bargaining deadlocks, upon agreement of the parties.

6.Unresolved grievances arising from the interpretation and implementation of the Productivity Incentive Programs under R. A. No. 6971   [November 22, 1990], otherwise known as the   “Productivity Incentives Act of 1990. ”

     Some principles on jurisdiction of Voluntary Arbitrators.

a. Cases cognizable by Voluntary Arbitrators but filed with the Labor Arbiters, DOLE Regional Offices or NCMB should be referred to the Voluntary Arbitrators mutually chosen by the parties. They are required to immediately dispose and refer the same to the appropriate grievance machinery or voluntary arbitration provided in the CBA.

b. Cases cognizable by Voluntary Arbitrators but filed with the regular courts should be dismissed.

c.WHEN A CASE DOES NOT INVOLVE THE PARTIES TO A CBA – THE EMPLOYER AND THE BARGAINING UNION - IT IS NOT SUBJECT TO

VOLUNTARY ARBITRATION. Only disputes involving the bargaining union and the company shall be referred to the grievance machinery or voluntary arbitrators.

d.A termination dispute is not a grievable issue; hence, grievance machinery and Voluntary Arbitrators have no jurisdiction over this issue. Termination cases do not call for the interpretation or enforcement of company personnel policies and so they may not be considered grievable orarbitrable.

e. In termination cases, if the bargaining union is not named a party to the illegal dismissal suit either because it failed to object to the dismissal ofthe employee or the suit was initiated by the employee alone, without the assistance of his union, Voluntary Arbitrator has no jurisdiction thereover.

f. To confer jurisdiction with the Voluntary Arbitrator over termination disputes, there must be express agreement between employer and the bargaining agent to submit the termination case to voluntary arbitration.

g. The Voluntary Arbitrators have original and exclusive jurisdiction over money claims “arising from the interpretation or implementation of the CBA and, those arising from the interpretation or enforcement of company personnel policies,” under Article 261. The Labor Arbiters’ jurisdiction over money claims cases is limited only to those arising from statutes or contracts other than a CBA.

h.The Voluntary Arbitrators may hear and decide issue of legality of strikes or lockouts for as long as the parties mutually agree to submit it to voluntary arbitration.

i. Ordinary violation of a CBA which involves non-economic provisions thereof is not ULP and should be resolved as a grievance or grievable issue properly cognizable under the grievance machinery and voluntary arbitration provisions of a CBA. If the violation of the CBA is gross in character, i.e., the refusal to comply with the economic provisions thereof is flagrant and/or malicious, it should be treated as an unfair labor practice and thus may be taken cognizance of by the Labor Arbiter underArticle 217 or by the Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, under Article 262 of the Labor Code.

j. Jurisdictional over wage distortion cases depends on whether the establishment is organized orunorganized. If organized, the Voluntary Arbitrator has jurisdiction. If unorganized, the Labor Arbiter has jurisdiction.

3. Procedure. – Voluntary arbitration is initiated either by way of:1.A Submission Agreement; or2.A Demand or Notice to Arbitrate invoking the arbitration clause in the CBA; or3.An Appointment from the NCMB.

If after exhausting the grievance procedure, the grievance remains unresolved and one party refuses to submit the same to voluntary arbitration, the following procedure should be observed:

1.A Notice to Arbitrate should be served upon the refusing or unwilling party, copy furnished the permanent Voluntary Arbitrator, if one is named in the CBA, and the NCMB Regional Branch having jurisdiction over the workplace;

2.After the lapse of the 7-day period within which to respond to the Notice to Arbitrate, the permanent Voluntary Arbitrator shall immediately commence the arbitration proceedings;

3.In the absence of a permanent Voluntary Arbitrator named in the CBA, the NCMB shall appoint a Voluntary Arbitrator who shall immediately commence the arbitration proceedings upon receipt of such appointment.

4.The Voluntary Arbitrator shall have the following powers:

1.To require any person to attend hearing/s;

2.To subpoena witnesses and receive documents when the relevancy of the testimony and the materiality thereof have been demonstrated to the arbitrator;

3.To take whatever action is necessary to resolve the issue/s subject of the dispute;

4.To issue a writ of execution to enforce final decisions and in connection therewith, it shall be his duty to:

4.1.see to it that his decision is fully satisfied;

4.2. inquire into the correctness of the execution of his final decision;

4.3. consider whatever supervening event that may transpire during such execution;

4.4. determine every question of fact and law which may be involved in the execution.

4. Remedies. - As a general rule, decisions or awards of Voluntary Arbitrators are final, inappealable andexecutory after ten (10) calendar days from receipt of a copy thereof by the parties. It is well-settled a rule, however, that the findings of fact and law made by the Voluntary Arbitrator may be reviewed by the court.[21]

The decision, order or award of Voluntary Arbitrators may be elevated directly to the Court of Appealsby way of ordinary appeal under Rule 43 of the 1997 Rules of Civil Procedure[22] within thereglementary period of 15 days from receipt thereof.

The Voluntary Arbitrator’s decisions or awards may be contested on the following grounds:

1.Lack or want of jurisdiction;

2.Grave abuse of discretion;

3.Violation of due process;

4.Denial of substantive justice;

5.Erroneous interpretation of the law.[23]

Appeal will be dismissed if erroneously filed under Rule 65 instead of Rule 43. It must be noted that Rule 65 petition for certiorari is not a substitute for a lapsed appeal.[24]

H. COURT OF APPEALS

1. Rule 65, Rules of Court. - In cases where the decisions, orders or awards of the NLRC, the DOLE Secretary or the BLR Director (in cases where he rendered the same in his appellate jurisdiction) are rendered without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved party may elevate the case to the Court of Appeals not by way of ordinary appeal but by and through the special civil action for certiorari provided under Rule 65 thereof which states in its Section 1 as follows:

“Section 1.Petition for certiorari. – When any tribunal, board, or officer exercising judicial functions, has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

“The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46.”

An extraordinary remedy, a petition for certiorari is available only and restrictively in truly exceptional cases.Thesoleofficeofthewritofcertiorariisthecorrection of errors of jurisdiction including the commission of grave abuse of discretion amounting to lack or excess of jurisdiction.

[NOTE: THE ONLY WAY THE DECISIONS, ORDERS OR AWARDS OF THE NLRC, THE DOLE SECRETARY OR THE BLR DIRECTOR (WHEN HE RENDERED THEM IN HIS APPELLATE JURISDICTION) COULD REACH THE COURT OF APPEALS IS BY WAY OF RULE 65 PETITION FOR CERTIORARI. THERE IS NO APPEAL FROM THEIR DECISIONS, ORDERS OR AWARDS].

I. SUPREME COURT

1. Rule 45, Rules of Court.- Rule 45-petition for review on certiorari is the only mode of elevating a labor case from the Court of Appeals to the Supreme Court. Since the Court of Appeals has jurisdiction over the petition for certiorari under Rule 65 that may be filed before it from the decisions of the NLRC, any alleged errors committed by it in the exercise of its jurisdiction would be errors of judgment which are reviewable by means of a timely appeal to the Supreme Court and not by a special civil action of certiorari.Such appeal from a final disposition of the Court of Appeals is a petition for review on certiorari under Rule 45 and not a special civil action of certiorari under Rule 65 of the Rules of Court.

   Some principles on Rule 45, Rules of Court.

1. Reglementary period to appeal is 15 days from notice of judgment or denial of the motion for reconsideration.

2. A petition for certiorari under Rule 65 cannot be a substitute for a lost appeal under Rule 45; hence, it should be dismissed.

3. A party cannot file a petition both under Rules 45 and 65.

J. PRESCRIPTION OF ACTIONS

1. Money claims. – 3 years.[25]All money claims of workers, including OFWs, 

[26] prescribe in 3 years from the time the cause of action accrued; otherwise, they shall be forever barred.[27]

2. Illegal dismissal. – 4 years. The 3-year prescriptive period in Article 291 solely applies to money claims but not to illegal dismissal cases which are not in the nature of money claims. The 4-year prescriptive period of illegal dismissal cases is based on Article 1146 of the Civil Code.[28]

3. Unfair labor practice. – 1 year. The prescriptive period for all complaints involving unfair labor practices is one (1) year from the time the acts complained of were committed; otherwise, they shall be forever barred.[29] Before a criminal action for ULP may be filed, it is a condition sine qua non that a final judgment finding that an unfair labor practice act was committed by the respondent should first be secured or obtained in the labor or administrative case initiated before the Labor Arbiter or the Voluntary Arbitrator, as the case may be.[30] Final judgment is one that finally disposes of the action or proceeding.For instance, if the remedy of appeal is available but no appeal is made, then, the judgment is deemed final and executory.If an appeal is made, then the final judgment rendered by the last tribunal, say the Supreme Court, to which the case was elevated should be the reckoning factor.

   Interruption of prescriptive period of offenses.As far as ULP cases are concerned, the running of the one (1) year prescriptive period is interrupted during the pendency of the labor case.[31]

   Evidentiary value of the final judgment in the labor case.

In ULP cases, the final judgment in the administrative case cannot be presented as evidence of the facts proven therein or as evidence of the guilt of the respondent therein.Its evidentiary or probative value is confined merely in proving the fact of compliance with the condition sine qua non prescribed by law, i.e., that a final judgment has been secured in the administrative proceeding finding that an unfair labor practice act was in fact committed by the respondent.[32]

4. Offenses penalized by the Labor Code. – 3 years.[33]The prescriptive period of all criminal offenses penalized under the Labor Code and the Rules to Implement the Labor Code is three (3) years from the time of commission thereof. Failure to initiate or file the criminal action or complaint within the prescriptive period shall forever bar such action. The act of the employer in dismissing an employee without cause, although a violation of the Labor Code and its implementing rules, does not amount to an “offense” as this term is understood and contemplated under Article 290.[34]

5. OTHER RELEVANT PRESCRIPTIVE PERIODS UNDER THE LAW.

a. Simple illegal recruitment – 5 years

b. Illegal recruitment involving economic sabotage – 20 years

c. Disciplinary action cases (POEA) – 3 years

d. SSS violations – 20 years from the time the delinquency is known or the assessment is made by the SSS, or from the time the benefit accrues, as the case may be.

e. Employees’ compensation claims – 3 years

f. Actions involving the funds of the union – 3 years from the date of submission of the annual financial report to the Department of Labor and Employment or from the date the same should have been submitted as required by law, whichever comes earlier.

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