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2005 Centralized Bar Operations San Beda College of Law19

Memory Aid in Labor Law

1. defect which is congenital or acquired during minority

2. legitimate spouse living with the employee

3. the parents of said employee wholly dependent upon him for regular support

BENEFITS

1. for life to the primary beneficiaries, guaranteed for five years

2. for not more than 60 months to the secondary beneficiaries in case there are not primary beneficiaries

3. in no case shall the total benefit be less than P15,000.00

BENEFICIARIES

PRIMARY BENEFICIARIES

A. dependent spouse until he remarries

B. dependent children (legitimate, legitimated, natural born or legally adopted)

SECONDARY BENEFICIARIES

A. illegitimate children and legitimate descendants

B. parents, grandparents, grandchildren

TITLE III

MEDICARE(Repealed by National Health Insurance Act of 1995)

(See annex for PHILHEALTH)

PAG-IBIG Law- creates a provident savings system for employees, public and private, with housing as the primary investment.

BOOK FIVELABOR RELATIONS

TITLE I

POLICY AND DEFINITIONS

( ART. 211. DECLARATION OF POLICY

( LABOR RELATIONS the interactions between the employer and employees and their representatives and the mechanism by which the standards and other terms and conditions of employment are negotiated, adjusted and enforced.

( LABOR RELATIONS LAW those intended to stabilize the relations of employees and their employers, adjust differences between them through the encouragement of collective bargaining, and settle labor disputes through conciliation, mediation and arbitration.

it defines the status, rights, and duties and the institutional mechanisms that govern the individual and collective interactions of employers, employees or their representatives.

Absent an employer-employee relation, there is no labor relations to speak of.

Collective bargaining process is possible only when there is a labor organization, i.e., (1) labor union or (2) employee association.

POLICY is intended to install industrial democracy centered on collective bargaining, leading to social justice as the end goal.

PARTIES TO LABOR RELATIONS CASES:

1. employees organization,

2. management, and

3. the public

The public is always to be considered in disputes between labor and capital, and it has been held that the rights of the general public are paramount.

( Labor relations policy under the LC is embodied in Section 3 Article XIII of the 1987 Constitution which guarantees to all workers their right among others to:1. Self-organization,

2. Collective bargaining and negotiations,

3. Peaceful and concerted activities including the right to strike in accordance with law, and

4. Participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

( ART. 212. DEFINITIONS

(EMPLOYER- one who employs the services of others; one for whom employees work and who pays their wages or salaries.

any person acting in the interest of an employer, directly or indirectly. The term does not include a labor organization or any of its officers and agents, except when acting as an employer.

(EMPLOYEE- one who works for an employer; a person working for salary or wages.

Shall not be limited to the employees of a particular employer, and it shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice IF he has not obtained any other:

1. Substantially equivalent and

2. Regular employment (Art.212f)

ICAWO vs. CIR (16 SCRA 562): The category of any employee is so broad as to justify employee status for supervisors, regular workers, casual employees, emergency laborers, substitute workers, seasonal workers, part-time workers and other special work groups.

APEX MINING CO., vs. NLRC (196 SCRA 251): Laundrywoman not actually serving the family of the employer but working in the staff houses or within the premises of the employers business is a regular employee and is not included in the definition of domestic helper.

FELIX vs. BUENASEDA (240 SCRA 139): Residency or resident physician position in a medical specialty is not employment but connotes training and temporary status. (No E-E relationship)

( WORKERS ASSOCIATION - any association of workers organized for the mutual aid and protection of its members or for any legitimate purpose other than for collective bargaining.

( INDEPENDENT UNION It refers to any labor organization operating at the enterprise level whose legal personality is derived through an independent action for registration with the Bureau of Labor Relations (BLR) of the Department of Labor and Employment prescribed under Art. 234. It may be affiliated with a federation, national or industry union, in which case it may also be referred to as an affiliate.

(FEDERATION - any labor organization with at least 10 locals/chapters or affiliates each of which must be a duly certified or recognized as the sole and exclusive collective bargaining agent of the employees of an appropriate bargaining unit.

(LEGITIMATE WORKERS ASSOCIATION refers to an association of workers organized for mutual aid and protection of its members of for any legitimate purpose other than collective bargaining registered with the Department in accordance with Rule III, Sections 2-C and 2-D of these rules.

( LABOR MANAGEMENT COUNCIL

Deals with the employer on matters affecting the employees rights, benefits and welfare.

Purposes are to:a. promote gainful employment

b. improve working conditions and

c. achieve increased productivity (RA 6971)(LABOR ORGANIZATION any union or association of employees which exists in whole in part for the purpose of collective bargaining with employers concerning terms and conditions of employment.

(LEGITIMATE LABOR ORGANIZATION- any labor organization which is duly registered with the Department of Labor. The term includes a local/chapter of the Bureau of Labor Relations directly chartered by a legitimate federation or national union which has been duly reported to the Department in accordance with Rule VI, Section 2 of Book V of the Rules Implementing the LC.

( LABOR DISPUTE includes any controversy or matter concerning:

1. terms or conditions of employment OR

2. 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 relation of employer and employee.

The test of whether a labor controversy comes within the definition of a labor dispute depends on whether it involves or concerns terms, conditions of employment, or representation.

( TYPES OF LABOR DISPUTES:

1. Labor Standards Disputes

a. Compensation [e.g., underpayment of minimum wage; stringent output quota; illegal pay deductions]

b. Benefits [ e.g., nonpayment of holiday pay, overtime pay or other benefits]c. Working conditions [e.g., unrectified work hazards]2. Labor Relations Disputes

a. Organizational right dispute/ unfair labor practice [e.g., coercion, restraint or interference in unionization efforts; reprisal or discrimination due to union activities; company unionism]

b. Representation disputes [e.g., determination of the collective bargaining unit; ULP strike; uncertainty as to determination of the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit which is the majority union]

c. Bargaining disputes [e.g., refusal to bargain (ULP); bargaining deadlock; economic strike or lockout]

d. Contract administration or personnel policy disputes [e.g., noncompliance with CBA provisions (ULP if gross noncompliance with economic provisions); disregard of grievance machinery; violation no strike/no lockout agreement]

e. Employment tenure disputes [e.g., non regularization of employees; illegal termination; non-issuance of employment contract]

( PARTIES TO A DISPUTE:

1. Primary Parties employer, employees, union

2. Secondary Parties voluntary arbitrator, agencies of DOLE (BLR, VAC), NLRC, Sec. of Labor, Office of the President

TITLE II

NATIONAL LABOR RELATIONS COMMISSION

CHAPTER I

CREATION AND COMPOSITION

( ART. 213. NATIONAL LABOR RELATIONS COMMISSION

( NLRC an administrative body with quasi-judicial functions and the principal government agency that hears & decides labor-management disputes; attached to the DOLE for program & policy coordination only.

POWERS of the NLRC as amended by R.A. 6715

EN BANC

1. Promulgating rules & regulations governing the hearing & disposition of cases before any of its divisions and regional branches and formulating policies affecting its administration and operations.

2. Under R.A. 7700: to allow cases within the jurisdiction of any division to be heard and decided by any other decision whose docket allows the additional workload.

DIVISION

1. Exercises adjudicatory or appellate power over decisions of Labor Arbiters and Regional Directors of the DOLE over monetary claims not over P5,000.00 and all other powers, functions and duties through its divisions.

( TRIPARTISM

The NLRC is composed of five (5) divisions.

Three (3) sectors are represented in the composition of the NLRC.

Each division composed of three commissioners will have representatives from the following:

1. from the public sector- nominated by the Secretary of Labor

2. workers organizations- nominated by the labor federation

3. employer and management sector- nominated by the Employers Confederation of the Philippines (ECOP)

( QUALIFICATIONS OF THE CHAIRMAN AND THE COMMISSIONERS:

1. must be a member of the Philippine Bar;

2. must have been engaged in the practice of law in the Philippines for at least 15 years;

3. must have experience or exposure in handling labor management relations for at least 5 years; and

4. preferably a resident of the region where he is to hold office.

The appointment of the Chairman and the Commissioners of the NLRC are not subject to confirmation by the Commission on Appointments. QUALIFICATIONS OF EXECUTIVE LABOR ARBITERS/LABOR ARBITERS:

1. must be members of the Philippine Bar;

2. must have been engaged in the practice of law in the Philippines for at least 7 years; and

3. must have experience or exposure in handling labor management relations for at least 3 years.

( TERM OF OFFICE OF THE CHAIRMAN, COMMISIONERS, AND LABOR ARBITERS:

They shall hold office during good behavior until they reach the age of 65 unless removed for causes as provided by law or become incapacitated to discharge the function of his office.

A. EXCLUSIVE AND ORIGINAL JURISDICTION OF THE NLRC:

1. Cases certified to it for compulsory arbitration by the Secretary of Labor under Art. 263 certified cases;

2. Injunction cases under Art. 218 and 264; and

3. Contempt casesB. EXCLUSIVE APPELLATE JURISDICTION OF THE NLRC:

1. Cases decided by labor arbiters under Art 217b of the Labor Code and Sec 10 RA 8012(Migrant Workers Act); and

2. Cases decided by the Regional Offices of DOLE in the exercise of its adjudicatory function under Art 129 of the Labor Code over monetary claims of workers amounting to not more that P5,000.00

( THE NLRC ONLY SITS EN BANC FOR PURPOSES OF:

a. promulgating rules and regulations governing the hearing and disposition of cases before any of its divisions and regional branches, and

b. formulating policies affecting its administration and operations.

The Commission may only sit en banc for the determination of policies and NOT for purposes of adjudication. (RA 6715)

Adjudication of cases certified to the NLRC, or appealed to it from the decision of its Labor Arbiters are referred to and decided by its five (5) divisions.

-Petitions for certiorari (Rule 65) against decisions of the NLRC should henceforth be initially filed with the Court of Appeals in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired. The Court of Appeals is procedurally equipped to resolve unclear or ambiguous factual finding, aside from the increased number of its component divisions. (St. Martins Funeral Homes vs. NLRC; G.R. No. 130866)

Findings of facts of a labor tribunal are accorded the utmost respect by the courts and are well-nigh conclusive if supported by substantial evidence.

Labor cases are not subject to Barangay Conciliation since ordinary rules of procedure are merely suppletory in character vis--vis labor disputes which are primarily governed by labor laws.

The failure of the petitioner to file a motion for reconsideration of the decision of NLRC before filing a petition for certiorari has in certain instances been held not to be a fatal omission.

In certain cases however the filing of a Motion for Reconsideration is deemed a condition sine qua non for the filing of a Petition for Certiorari.

CHAPTER II

POWERS AND DUTIES

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

( EXCLUSIVE AND ORIGINAL JURISDICTION OF LABOR ARBITERS:- Except as otherwise provided under this Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within 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. ULP 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 employer-employee relations;

5. Cases arising from any violation of Art 264 of this Code, including questions involving the legality of strikes and lockouts;

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 P5,000.00 regardless of whether accompanies with a claim for reinstatement;

7. Monetary claims of overseas contract workers under the Migrant Workers Act of 1995; and8. Claims of employees against GOCCs if the latter does not have an original charter and has been incorporated under the Corporation Code.

Although the provision speaks of EXCLUSIVE AND ORIGINAL JURISDICTION OF labor arbiters, the cases enumerated may instead be submitted to a voluntary arbitrator by agreement of the parties under Art. 262. The law prefers voluntary over compulsory arbitration.

( Cases which must be disposed of by the labor arbiter by referring the same to the grievance machinery and voluntary arbitration:

a. Disputes on the interpretation or implementation of CBA and

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

The labor arbiter and the NLRC have no jurisdiction over claims filed by employees against international agencies such as IRRI, WHO etc. unless they expressly waive their immunity. (Lasco vs. UNRFNRE)

They also have no jurisdiction over illegal dismissal cases of corporate officers which fall under PD 902-A and now fall under the jurisdiction of the Regular Courts pursuant to the New Securities Regulation Code. [Formerly under the jurisdiction of the Securities and Exchange Commission (SEC) (Dily-Daly Nakpil vs NLRC)] In the absence of service of summons or a valid waiver thereof, the hearings and judgment rendered by the labor arbiter are null and void.

( COMPULSORY ARBITRATION: The process of settlement of labor disputes by a government agency which has the authority to investigate and make and award binding to the parties.

(The NLRC may conduct compulsory arbitration only in national interest cases referred to it by the DOLE secretary.

( Labor arbiters jurisdiction is employment related.

( ART. 218. POWERS OF THE COMMISSION

( POWERS OF THE NLRC:

a. Rule-making power [promulgation of rules & regulations governing disposition of cases before any of its divisions/regional offices]

b. Power to issue compulsory processes [administer oaths, summon parties, issue subpoenas]

c. Power to investigate matters and hear disputes within its jurisdiction [adjudicatory poweroriginal & appellate jurisdiction over cases]

d. Contempt power [218]

e. Power to issue injunctions and restraining orders

( PROCEDURE FOR THE ISSUANCE OF RESTRAINING ORDER/ INJUNCTION:

a. filing of a verified petition b. hearing after due and personal notice has been served in such manner as the Commission shall direct, to:

a. all known persons against whom the relief is sought and

b. also to the Chief Executive or other public officials of the province or city within which the unlawful acts have been threatened or committed charged with the duty to protect the complainants property.c. reception at the hearing of the testimonIES of witnesses with opportunity for cross- examination, in support of the allegations of the complaint made under oath as well as testimony in opposition theretod. finding of fact of the Commission to the effect that :

prohibited or unlawful acts have been threatened and will be committed, or have been 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 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.

That substantial and irreparable injury to the complainants property will follow

That as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of the relief than will be inflicted upon the defendants by the granting of the relief

That complainants has no adequate remedy at law

That public officers charged with the duty to protect complainants property are unable or unwilling to furnish adequate protection.e. Posting of a bondIRREPARABLE INJURY: An injury which cannot be adequately compensated in damages due to the nature of the injury itself or the nature of the right or property injured or when there exists no pecuniary standard for the measurement of damages.

ADEQUATE REMEDY: One that affords relief with reference to the matter in controversy and which is appropriate to the particular circumstances of the case.

( The power of the NLRC to enjoin or restrain the commission of any or all prohibited or unlawful acts under Art. 218 of the Labor Code can only be exercised in a labor dispute.( REQUISITES BEFORE TRO MAY BE ISSUED EX PARTE:1. The complainant shall allege that, unless a TRO is issued without notice, a substantial and irreparable injury to complaints property will be unavoidable;

2. testimony under oath is sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice;

3. The complainant shall first file an undertaking with adequate security/bond in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expenses 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 granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission.

The TRO shall be effective for no longer than 20 days and shall become void at the expiration of said 20 days counted from the date of the posting of the bond.

It may be lifted or it may be upgraded to a permanent injunction.

The procedural and substantial requirements of Art 218 (e) must be strictly complied with before an injunction may issue in a labor dispute.

( THE FOLLOWING CAN ISSUE INJUNCTIONS/ TRO IN LABOR DISPUTES:

1. President (ART. 263, g)

2. Secretary of Labor (ART. 263, g)

3. NLRC (218)

4. Labor Arbiters (ART. 217/RULE XI Sec. 1 of IR&R)

5. Regional Directors

6. Med- Arbiters

( ART. 219. OCULAR INSPECTION( The Chairman, any Commissioner, labor Arbiter or their duly authorized representatives may, at anytime during working hours:

a. Conduct an ocular inspection on any establishment, building, ship, place or premises, including any work, material, implement, machinery, appliance or any object therein; and

b. Ask any employee, laborer, or any person as the case may be for any information or date concerning any matter or question relative to the object of the investigation

( ART. 221. TECHNICAL RULES NOT BINDING AND PRIOR RESORT TO AMICABLE SETTLEMENT

( The NLRC may disregard technical rules of procedure in order to give life to the constitutional mandate affording protection to labor. (Principe vs. Philippine-Singapore Transport Services Inc.)

( RES JUDICATA applies only to judicial or quasi-judicial proceedings and not to the exercise of administrative powers.

( APPROVAL OF AN AMICABLE SETTLEMENT BY A LABOR ARBITERAn amicable settlement of a labor dispute should be approved by the labor arbiter before whom the case is pending after being satisfied that:

a. it was voluntarily entered into by the parties and

after having explained to them the terms and consequences thereof.

PURPOSE: for the employees protectionbecause the labor arbiter before whom the case is pending would be in a better position than just any other person to personally determine the voluntariness of the agreement and certify its validity (Periquet vs. NLRC).

( The Rules of Court are applied in a suppletory character.

( COMPROMISE, as a way of settling disputes is encouraged

through compromise, the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced.

( ART. 222. APPEARANCES AND FEES

(APPEARANCE OF NON-LAWYERS BEFORE THE COMMISSION:

GENERAL RULE: ONLY lawyers can appear before the NLRC or a Labor Arbiter

EXCEPTIONS: Non-Lawyers can appear ONLY in the following instances:

1. if they represent themselves;

2. if they represent their organization or members thereof; or

3. if he is a duly accredited member of the legal aid office duly recognized by the DOJ in cases referred thereto by the latter or by the IBP.

ATTORNEYS FEES:

1. Art. 111 Labor Code (simple monetary claim)

The maximum amount to be given a lawyer for his legal assistance rendered which is 10% of the total monetary award adjudged the employees excluding the award for moral and exemplary damages. To demand more than this is unlawful.

2. Art. 222

a. a. Attorneys fees for CBA negotiations and conclusion shall be in the amount agreed upon by the parties to be taken from the union funds and not from individual union members.

b. This article prohibits the payment of attorneys fees only where the same is effected through forced contributions from the workers form their own funds as distinguished from union funds.

c. Neither the lawyer nor the union itself may require the individual workers to assume the obligation to pay the attorneys fees from their own pockets. Any agreement to the contrary shall be null and void.

( ARTICLE 211 VS ARTICLE 222

ART. 211ART. 222

Prohibits the award of attorneys fees which exceed 10% of the amount of wages recovered.Prohibits the payment of attorneys fees only when it is effected through forced contribution from the workers from their own funds as distinguished from union funds

PURPOSE: to fix the limit on the amount of attorneys fees. The victorious party may recover in any administrative or judicial proceeding.PURPOSE: to prevent the imposition on the workers of the duty to individually contribute their respective shares in the fee to be paid to the attorney for his services to the union.

CHAPTER III

APPEAL

( ART. 223. APPEAL

( GROUNDS FOR APPEAL:

1. If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter

2. If the decision, order or award was secured through fraud or coercion, including graft and corruption;

3. If made purely on questions of law; and

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

( PERIODS WITHIN WHICH TO APPEAL:

A. decisions of the regional director:

within 5 calendar days from receipt of the order [129 LCRecovery of wages and simple money claims of the amount not exceeding P5,000.00].

B. decisions of the labor arbiter:

within 10 calendar days from the receipt of the decision.

The appeal must be under oath and must state specifically the grounds relied upon and the supporting arguments.

Where the 10th day falls on a Saturday, Sunday or legal holiday, the appeal may be filed on the next business day. (Rules of Procedure of NLRC)

( PERIOD TO APPEALNOT EXTENDIBLE

It is the policy of the state to settle expeditiously labor disputes. The perfection of an appeal within the statutory/ reglementary period is not only mandatory but also jurisdictional and failure to do so renders the questioned decision final and executory as to deprive the appellate court of jurisdiction to alter the final judgment of the RDs and LAs. (Aboitiz Shipping Employees Association vs. Trajano)( REQUISITES FOR THE PERFECTION OF AN APPEAL TO THE NLRC:

1. Filing of a verified memorandum of appeal within the required period of appeal;

2. In case of monetary award, when the appellee is the employer he should file an APPEAL bond corresponding to the monetary award excluding awards for moral and exemplary damages and attorneys fees.

Where the employer failed to post a bond to perfect its appeal, the remedy of the employee is a motion to dismiss the appeal, not a petition for mandamus.

The intention of the lawmakers is to make the bond an indispensable requisite for the perfection of an appeal by the employer.

3. Appeal fee of P150;

4. Proof of service - furnish the other party with a copy of the memo of appeal.

Failure to give a copy of the appeal to the appellee within 10 days is not fatal IF the latter was not prejudiced by the delay in the service of said copy of the appealtechnical rules must yield to the broader interest of substantial justice. (Modern Fishing Gear Labor Union vs. Noriel)

A mere notice of appeal does not stop the running of the reglementary period of appeal.( EXECUTION PENDING APPEAL - the decision of the labor arbiter ordering the reinstatement of a dismissed or separated employee shall be immediately executory insofar as the reinstatement aspect is concerned and the posting of an appeal bond by the employer shall not stay such execution.

There is no need for a motion for the issuance of writ of execution on the reinstatement order as it is self-executory. (Pioneer Texturizing Co. vs. NLRC)

( Perfection of appeal within the reglementary period is both MANDATORY and JURISDICTIONAL. (ACDA vs NLRC; Volkschel vs NLRC)

( Non-service of the copy of the appeal/appeal memorandum to the adverse party is not a jurisdictional effect and does not justify dismissal of the appeal.

( AMOUNT OF APPEAL BOND: amount equal to the monetary award exclusive of damages (moral and exemplary) plus attorneys fees.

( OPTIONS OF THE EMPLOYER IN COMPLYING WITH AN ORDER OF REINSTATEMENT WHICH IS IMMEDIATELY EXECUTORY:

1. He can admit the dismissed employee back to work under the same terms and conditions prevailing prior to his dismissal or separation or to a substantially equivalent position if the former position is already filled up, OR2. He can reinstate the employee merely in the payroll with payment of the accrued salaries.

Failure to exercise one of the foregoing options may be compelled under pain of contempt and the employer may be made to pay instead the salary of the employee.

( A petition for relief from the decision of the labor arbiter must strictly comply with 2 reglementary periods:

1. The petition must be filed within 60 days from knowledge of the judgment; and

2. The petition must be filed within a fixed period of 6 months from entry of such judgment.

Petitions filed beyond said period will no longer be entertained.

( APPEAL FROM THE DECISION OF THE NLRC:

No law allows an appeal from a decision of the Secretary of Labor, or the NLRC, or of a voluntary arbitrator. In these cases, the special civil action of certiorari, prohibition or mandamus under Rule 65 of the Rules of Court may be lodged with the Court of Appeals. (St. Martins Funeral Home vs. CA)

No Motion for Reconsideration is allowed for any order, decision or award of a Labor Arbiter. However a Motion for Reconsideration of a Labor Arbiters decision, award or order which has all the elements of an appeal may be treated as appeal. Only one Motion for Reconsideration of the decision, award or order of the commission on appealed cases before it. ( ART 224. EXECUTION OF DECISIONS, ORDER, OR AWARDS

The decision of the Secretary of Labor, the Commission, the Bureau or Regional Director the Labor Arbiter, the Med-Arbiter or the Voluntary Arbitrator shall be final and executory after 10 calendar days from receipt thereof by the parties and shall be executory within ten (10) years.

The foregoing may, upon its own initiative or on motion of any interested party, issue a writ of execution on a judgment within 5 years from the date it becomes final and executory.

An independent action is required for the execution of the final judgement within the next of following 5 years [ Phil. National Railways vs NLRC (177 SCRA740, Sept. 19, 1989)] The immediate execution of judgment should be undertaken only when the monetary award had been carefully and accurately determined by the NLRC and only after the employer is given the opportunity to be heard and to raise objections to the computation.

TITLE III

BUREAU OF LABOR RELATIONS

( ART. 226. BUREAU OF LABOR RELATIONS

(Pursuant to E.O. 126, the NATIONAL CONCILIATION AND MEDIATION BOARD (NCMB) has absorbed the conciliation, mediation and voluntary arbitration functions of the BLR.

Jurisdiction over labor-management problems or disputes is also exercised by other offices such as the DOLE regional offices, and the Office of the Secretary, NLRC, POEA, OWWA, SSS-ECC, the regional wage and productivity boards, NWPC, and even the regular courts over intra-corporate disputes.

( EXCLUSIVE AND ORIGINAL JURISDICTION OF THE BLR

-to act at its own initiative or upon the request of either or both parties on all:

1. intra- union conflicts

2. inter- union conflicts

3. all disputes, grievances or problems ARISING FROM OR AFFECTING LABOR MANAGEMENT RELATIONS IN ALL WORKPLACES WHETHER AGRICULTURAL OR NON-AGRICULATURAL. The parties may however, by agreement, settle their differences by submitting their case to a voluntary arbitrator rather than taking the case to the BLR.

( CASES WHERE THE BLR HAS NO JURISDICTION:

Those arising from the implementation or interpretation of collective bargaining agreements which shall be subject of grievance procedure and/or voluntary arbitration.

( INTRA-UNION DISPUTES 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 unions constitution and by-laws, or disputes arising from chartering or affiliation.

( MED-ARBITER- an officer in the regional office or bureau authorized to hear, conciliate, and decide representation cases or assist in the disposition of intra or inter-union disputes.

COVERAGE OF INTER/INTRA-UNION DISPUTES (Sec. 1 Rule XI DO 40-03)

a. cancellation of registration of a labor organization filed by its members or by any other labor organization;

b. conduct of election of union and workers association officers/nullification of election of union and workers association officers;

c. audit/accounts examination of union or workers association funds;

d. deregistration of CBA;

e. validity/invalidity of union affiliation or disaffiliation;

f. validity/invalidity of acceptance/non-acceptance for union membership;

g. validity/invalidity of impeachment/ expulsion of union and workers association officers;

h. validity/invalidity of voluntary recognition;

i. opposition to application for union and CBA registration;

j. violations of or disagreements over any provision in a union or workers association constitution and by-laws;

k. disagreements over chartering or registration of labor organizations and CBAs;

l. violations of the rights and conditions of union or workers association membership;m. violations of the rights of legitimate labor organizations, except interpretation of CBAs;

n. such other disputes or conflicts involving the rights to self-organization, union membership, and collective bargaining

1. between and among legitimate labor organizations

2. between and among members of a union or workers association

EXTENDED COVERAGE (Section 2 Rule XI DO 40-03)

Other related labor relations disputes shall include any conflict between a labor organization and the employer or any individual, entity, or group that is not a labor organization or workers association. This includes:

1. cancellation of registration of unions and workers associations; and

2. a petition for interpleader

( SPECIAL REQUIREMENTS AS TO THE FILING OF CASES:

A. INVOLVING ENTIRE MEMBERSHIP

1. The complaint must be signed by at least 30% of the entire membership of the union and

2. It must also show exhaustion of administrative remedies.

B. INVOLVING A MEMBER ONLY - In such case only the affected member may file the complaint.

Redress must first be sought within the union itself in accordance with its constitution and by-laws EXCEPT under any of the following circumstances:

a. futility of intra-union remedies

b. improper expulsion procedure

c. undue delay in appeal as to constitute substantial injustice

d. the action is for damages

e. lack of jurisdiction of the investigating body

f. action of the administrative agency is patently illegal, arbitrary, and oppressive

g. issue is purely a question of law

h. where the administrative agency had already prejudged the case

i. where the administrative agency was practically given the opportunity to act on the case but it did not.

Imposition of fees by the union affects the entire membership, therefore it requires that the complaint should be signed by at least 30% of the membership of the union.

( INTER-UNION DISPUTES -refers to any conflict between and among legitimate labor organizations involving representation questions for purposes of collective bargaining or to any other conflict or dispute between legitimate labor organizations based on any violations of their rights as labor organizations.

Who1. For grounds under Sec. 1:

a. any LLO

b. member(s) thereof specially concerned

2. For grounds under Sec. 2any party-in-interest

Where filed1. Regional Office that issued its certificate of registration or certificate of creation of chartered local- If it involves labor unions with independent registrations, chartered locals, workers association, its officers or members

2. Directly with the BureauIf it involves a Federation/National Unions/Industry Unions, its officers or members

Formal Require-ments1. in writing

2. verified under oath

3. contains the following averments

a. name, address and other personal circumstances of the complainant(s) or petitioner(s);

b. name, address and other personal circumstances of the respondent(s) or person(s) charged;

c. nature of the complaint or petition;

d. facts and circumstances surrounding the complaint or petition;

e. cause(s) of action or specific violation(s) committed;

f. a statement that the administrative remedies provided for in the constitution and by-laws

-have been exhausted or

-such remedies are not readily available to the complainant(s) or petitioner(s) through no fault of his/their own or

-compliance with such administrative remedies does not apply to complainant(s) or petitioner(s);

g. relief(s) prayed for;

h. certificate of non-forum shopping; and

i. other relevant matters

EFFECTS OF FILING/PENDENCY OF INTER/INTRA-UNION DISPUTE AND OTHER LABOR RELATIONS DISPUTES (Section 3 Rule XI DO 40-03)

- The rights, relationships and obligations of the parties litigants against each other and other parties-in-interest prior to the institution of the petition shall continue to remain during the pendency of the petition and until the date of finality of the decision rendered therein. Thereafter, the rights, relationships and obligations of the parties litigants against each other and other parties-in-interest shall be governed by the decision so ordered.

- The filing or pendency of any inter/intra-union disputes is not a prejudicial question to any petition for certification election and shall not be a ground for the dismissal of a petition for certification election or suspension of proceedings for certification election.( Summary of rules on Intra/inter-union Disputes (Rule XI DO 40-03)

( MODES OF APPEAL IN INTRA/INTER-UNION DISPUTES (Rule XI DO 40-03)HOW (formal requirements)1. Under oath

2. Consist of a memorandum of appeal

3. Based on either of the following grounds:

a. Grave abuse of discretion

b. Gross violation of the Rules

4. With supporting arguments and evidence

PeriodWithin 10 days from receipt of decision

To whom appealable

1. Bureau of Labor Relationsif the case originated from the Med Arbiter/Regional Director

2. Sec. Of Laborif the case originated from the Bureau

WHERE FILEDRegional Office or to the BLR, where the complaint originated (records are transmitted to the BLR or Sec. Within 24 hours from receipt of the memorandum of appeal)

( DETERMINATION OF EMPLOYER-EMPLOYEE RELATIONSHIP:

Since the BLR has the original and exclusive jurisdiction to decide, inter alia, all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces, necessarily, in the exercise of this jurisdiction over labor-management relations, the Med-Arbiter has the authority, original and exclusive, to determine the existence of an employer-employee relationship. (MY San Biscuits, Inc. vs. Laguesma G.R. No. 9511, 22 April 1991)

In cases where there is overlapping of jurisdiction, determine the principal issue. The agency that has jurisdiction thereon may decide on the incidental issues.

( ADMINISTRATIVE FUNCTIONS OF THE BLR:

1. The regulation of registration of the labor unions;

2. The keeping of a registry of labor unions;

3. The maintenance of a file of CBAs. ART. 227. COMPROMISE AGREEMENTS; and4. The maintenance of a file of all settlements or final decisions of the Supreme Court, Court of Appeals, NLRC and other agencies on labor disputes.

( REQUIREMENTS:

a. must be freely entered into;

b. must not be contrary to law, morals or public policy; and

c. must be approved by the authority before whom the case is pending [see discussion on article 221approval of labor arbiter of an amicable settlement in a case before him.

May be effected at any stage of the proceedings and even when there is already a final executory judgment (2040 NCC).

Cannot be entered into when the final judgment is already in the process of execution. (Jesalva vs. Bautista)

(FORMAL REQUIREMENTS OF A VALID COMPROMISE AGREEMENT:

1. in writing

2. signed in the presence of the regional director or his duly authorized representative.

(With vs. Without Assistance of DOLE-COMPROMISE AGREEMENTS

Without assistance of DOLEWith the assistance of DOLE

a. Validity/Binding Effect- Valid and binding upon the parties- Valid and binding upon the parties

b. Repudiation - Can be repudiated by the parties by going to the Commission

NOTE: ULP cases are not subject to compromise.

- Can no longer be repudiatedbecomes final and binding upon the parties upon execution EXCEPT

a. in case of non compliance with the compromise agreement; or

if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation, or coercion

(OPTIONS WHEN COMPROMISE AGREEMENT IS VIOLATED:

1. enforce compromise by writ of execution

2. regard it as rescinded and insist upon original demand.

( REQUIREMENTS OF A VALID QUITCLAIM:

1. The quitclaim must be voluntarily arrived at by the parties;

2. It must be with the assistance of the Bureau of Labor Standards, Bureau of Labor Relations or any representative of the DOLE; and

3. The consideration must be reasonable (required only when entered without the assistance of DOLE)

Dire necessity is not an acceptable ground for annulling the releases, especially in the absence of proof that the employees were forced to execute them. (Veloso vs. DOLE)

WAIVER OF REINSTATEMENT like waivers of money claims, a waiver of reinstatement must be regarded as a personal right which must be exercised personally by the workers themselves. (Jag & Haggar Jeans and Sportswear Corp. vs. NLRC) ART 231. REGISTRY OF UNIONS AND FILE OF COLLECTIVE AGREEMENT

The CBA is more than a contract, it is highly impressed with public interest for it is an essential instrument to promote industrial peace.

Must be filed directly with the Bureau or the Regional Offices of DOLE within thirty (30) days from execution.

An unregistered CBA does not bar certification election [contract bar rule will not apply in the absence of registration. [See discussion on Arts. 253 & 253-A]

( Registration of the CBA is not a requisite for its validity.

LIBERTY FLOUR MILLS EMPLOYEES v. LFM, INC. 180 SCRA 668

( The certification of the CBA by the BLR is not required to put a stamp of validity to such contract. Once it is duly entered into and signed by the parties, a CBA becomes effective as between the parties regardless of whether or not the same has been certified by the BLR.

( ART 232. PROHIBITION ON CERTIFICATION ELECTION

CONTRACT BAR RULE: provides that while a valid and registered CBA is subsisting for a fixed period of 5 years , the Bureau is not allowed to hold an election contesting the majority status of the incumbent union except during the sixty (60) day period immediately prior to its expiration, which period is called the freedom period.

( The existence of the CBA bars the holding of an inter-union electoral contest and the filing of the Petition for Certification Election except within the freedom period.

PURPOSE: to minimize union politicking until the proper time comes.( ART 233. PRIVILEGED COMMUNICATION

PRIVILEGED COMMUNICATION: Any statement of such privacy that the law exempts the person receiving the information from the duty to disclose it.

( 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 may not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them.

TITLE IV

LABOR ORGANIZATIONS

CHAPTER IREGISTRATION AND CANCELLATION

( ART. 234. REQUIREMENTS OF REGISTRATION

(LABOR ORGANIZATION - Any union or association of employees which exists in whole or in part for the purpose of:

a. collective bargaining or

b. of dealing with employer concerning terms and conditions of employment.

It is the agent of the employees of an appropriate bargaining unit.

PRINCIPLE OF AGENCY APPLIED

Principal employees

Agent local/chapter

Agent of agent federation

(LEGITIMATE LABOR ORGANIZATION or LABOR UNION

any labor organization duly registered with the Department of Labor and Employment, and Bureau of Labor Relations.

Not every legitimate labor organization can act as bargaining representative and be certified as such. This is true only of a union that has won in certification election or has been voluntarily recognized by the employer.

PURPOSE OF FORMATION OF LABOR UNIONS: for securing a fair and just wages and good working conditions for the laborers; and for the protection of labor against the unjust exactions of capital

MODES OF ACQUIRING LEGITIMACY FOR LABOR ORGANIZATIONS

1. Registration with the BLR (Independent Union)

2. Affiliation with a legitimate labor federation[Registration requirements for labor organizations (as amended by DO 40-03)]

3. Application for registration

4. Attachments

name of the applicant labor union, its principal address;

the name of its officers and their respective addresses;

approximate number of employees in the bargaining unit where it seeks to operate, with a statement that it is not reported as a chartered local of any federation or national union; the minutes of the organizational meeting(s) and the list of employees who participated in the said meeting(s); the name of all its members comprising at least 20% of the employees in the bargaining unit; the annual financial reports if the applicant has been in existence for one or more years, unless it has not collected any amount from the members, in which case a statement to this effect shall be included in the application; the applicants constitution and by-laws, minutes of its adoption or ratification, and the list of the members who participated in it. The list of ratifying members shall be dispensed with where the constitution and by-laws was ratified or adopted during the organizational meeting. In such a case, the factual circumstances of the ratification shall be recorded in the minutes of the organizational meeting(s).

(These are called reportorial requirements)

( The application for registration of labor unions xxx, shall be certified under oath by its Secretary or Treasurer, as the case may be, and attested by its president.

( The attachments must now be in one(1) original copy and two (2) duplicate copies which shall accompany the application or notice, and submitted to the Regional Office or the Bureau.

( A prescribed registration fee must be paid before the issuance of the certificate of registration

Where to file application for registration:

1. For registration of independent labor unions, chartered locals, workers associations shall be filed with the Regional office where the applicant principally operates. It shall be processed by the Labor Relations Division at the Regional office.

2. Applications for registration of federations, national unions or workers associations operating in more than one region shall be filed with the bureau or the regional offices, but shall be processed by the bureau.

MINISTERIAL DUTY OF THE BLR COMPELLABLE BY MANDAMUS- to review the application for registration and not the issuance of a Certificate of Registration.

- After a labor organization had filed the necessary papers and documents for registration, it becomes mandatory for the BLR to check if the requirements under Article 234 have been sedulously complied with. If its application for registration is vitiated by falsification and serious irregularities, especially those appearing on the face of the application and the supporting documents, a labor organization should be denied recognition as a legitimate labor organization. (Progressive Development Corporation-Pizza Hut vs. Laguesma et al., GR No. 115077, April 18, 1997)

( PURPOSE OF REGISTRATION - Registration with the BLR is the operative act that gives rights to a labor organization.

It is the fact of being registered with the DOLE that makes a labor organization legitimate in the sense that it is clothed with legal personality to claim representational and bargaining rights enumerated in Article 242 or to strike or picket under Article 263.

The requirement of registration is NOT a curtailment of the right to association. It is merely a condition sine qua non for the acquisition of legal personality by labor organizations, associations or unions and the possession of the rights and privileges granted by law to labor organizations.

A valid exercise of police power since the activities in which labor organizations, associations, or unions of workers are engaged affect public interest, which should be protected. (PAFLU vs. Sec. Of Labor)(FEDERATION- any labor organization with at least 10 locals/chapters or affiliates each of which must be duly certified or recognized as the sole and exclusive collective bargaining agent of the employer they represent.

( REQUIREMENTS BEFORE A FEDERATION CAN BE ISSUED A CERTIFICATE OF REGISTRATION:

Aside from the application, which must be accompanied with the requirements for registration of a labor registration, the application should also be accompanied by the following:

1. Proof of affiliation of at least 10 locals or chapters, each of which must be a duly recognized sole and exclusive collective bargaining agent in the establishment or industry in which it operates, supporting the registration of such applicant federation or national union;

2. The names and addresses of the companies where the locals or chapters operate and the list of all the members in each company involved.

( a local union MAY affiliate with a federation - The procedure of affiliation would depend on whether the union is independently registered or not.

Requirements of Affiliation (as amended by DO 40-03)

1. Report of affiliation of independently registered labor union

2. Attachments:

a. resolution of the labor unions board of directors approving the affiliation;

b. minutes of the general membership meeting approving the affiliation;

c. the total number of members comprising the labor union and the names of members who approved the affiliation;

d. the certificate of affiliation issued by the federation in favor of the independently registered labor union; and

e. written notice to the employer concerned if the affiliating union is the incumbent bargaining agent.

( A union of supervisory employees may affiliate with a national federation of labor organizations of rank and file employees provided that:

a. the federation is not actively involved in union affairs in the company; and

b. the rank and file employees are not directly under the control of the supervisors ONCE AFFILIATED, a local union MAY DISaffiliate FROM THE federation.

INDEPENDENT REGISTRATIONCHARTERING

Obtained by union organizers in an enterprise through their own action A duly registered federation/national union issues a charter to a union in an enterprise and registers the charter with the regional office or the BIR.

Indepen-dent union Chapter/local

With legal personality of its own No legal personality of its own as long as it has not availed itself of independent registration.

Application for registration is filed with and will be acted upon by the DOLE regional office where the applicants principal office is located. Charter certificate is issued by a federation or national union is filed with the regional office or BLR with 30 days after the issuance of the charter certificate.

INDEPENDENTLY

REGISTERED

UNREGISTERED

a.HOW TO AFFILIATE

-by signing a contract of affiliation-by application of the union with the federation for the issuance of a charter certificate to be submitted to the Bureau accompanied by the following:

a. Copies of its constitution and by-laws

b. Statement of the set of officers and

Books of accounts, all of which must be certified by the Secretary/Treasurer and attested to by the President. In such case, the union becomes a local chapter of the Federation.

b. EFFECT OF DISAFFILIATION TO THE UNION [local]

- would not affect its being a legitimate labor organization and therefore it would continue to have legal personality and to possess all the rights and privileges of a legitimate labor organization.upon severance, it would cease to be a legitimate labor organization and would no longer have legal personality and the rights and privileges granted by law to legitimate organization, unless the local chapter is covered by a duly registered collective bargaining agreement. In the latter case, the local or chapter will not lose its legal personality until the expiration of the CBA. After the CBA expires it will lose its legal personality unless it registers as an independent union.

c. EFFECT OF DISAFFILIATION TO THE CBA

- an existing CBA would continue to be valid as the labor organization can continue administering the CBA

The CBA would continue to be valid. The local chapter will not lose its personality until the expiration of the CBA. After the CBA expires the local union looses its personality, unless it registers anew.

d. ENTITLEMENT TO UNION DUES AFTER DISAFFILIATION

-labor organization is entitled to the union dues and not the federation from which the labor organization disaffiliated.- union dues may no longer be collected as there would no longer any labor union that is allowed to collect such union dues from the employees.

Note: Follow the principle of agency between federation and local.

Principal employees

Agent local/chapter

Agent of agent federation

WHEN TO DISAFFILIATE

GENERAL RULE: A labor union may disaffiliate from the mother union to form an independent union only during the 60-day freedom period immediately preceding the expiration of the CBA.

EXCEPTION: DISAFFILIATION BY MAJORITY

This happens when there is a substantial shift in allegiance on the part of the majority of the members of the union. In such a case, however, the CBA continues to bind the members of the new or disaffiliated and independent union up to the CBAs expiration date.

LIMITATION: disaffiliation should be in accordance with the rules and procedures stated in the Constitution and by-laws of the federation.

A prohibition to disaffiliate in the Federations constitution or by-laws is validintended for its own protection.

( REVOCATION OF CHARTER BY THE FEDERATION - by serving the local/chapter a verified notice of revocation, copy furnished the Bureau on the ground of disloyalty or such other grounds as may be specified in its constitution or by-laws.

The revocation shall divest the local chapter of its legal personality upon receipt of the notice by the Bureau, unless in the meantime the local chapter has acquired independent registration. (Rule VIII Section 5 of the IRR)

(WORKERS ASSOCIATION: Association of workers for the mutual aid and protection of its members or for any legitimate purpose other than collective bargaining.

( ART. 236. DENIAL OF REGISTRATION; APPEAL

- Decisions of the BLR denying the registration of a labor organization is appealable to the Secretary of Labor within 10 calendar days from receipt of the decision, on grounds of:

a. grave abuse of discretion; or

b. gross incompetence

even before the onset of the freedom period, disaffiliation may still be carried out, but such disaffiliation must be effected by a majority of the union members in the bargaining unit.

(decision of the regional office or the bureau denying the application for registration shall be:

1. in writing

2. stating in clear terms the reason for the decision

3. applicant union must be furnished a copy of said decision

( ART. 238. CANCELLATION OF REGISTRATION; APPEAL

The certificate of registration of any legitimate labor organization shall be cancelled by the BLR if it has reason to believe, after due hearing, that the said labor organization no longer meets one or more of the requirements prescribed by law.

( GROUNDS FOR CANCELLATION:

1. Failure to comply with any of the requirements prescribed under Arts. 234 (requirements for registration of a labor union) & 237 (addl. reqts. federation registration) of the Code.

2. Violation of any of the provisions of Art. 239 (grounds for cancellation of union registration) of the Code

3. Commission of any of the acts enumerated under Art. 241 (rights and conditions of membership) of the code- No petition for cancellation based on this ground 0may be granted unless supported by at least 30% of all the members of the respondent labor organization or workers association.

A pronouncement as to the illegality of the strike is not within the meaning of Art. 239 of the Code which provides for the grounds for cancellation of union registration.

MODES OF APPEAL

( EFFECT OF CANCELLATION OF REGISTRATION IN THE COURSE OF PROCEEDINGS

- Where a labor union is a party in a proceeding and later it loses its registration permit in the course or during the pendency of the case, such union may continue as a party without need of substitution of parties, subject however to the understanding that whatever decision may be rendered therein will be binding only upon those members of the union who have not signified their desire to withdraw from the case before its trial and decision on the merits. [Principle of Agency appliedthe employees are the principals, and the labor organization is merely an agent of the former, consequently, the cancellation of the unions registration, would not deprive the consenting member-employees of their right to continue the case as they are the considered as the principals]( ART 239. GROUNDS FOR CANCELLATION OF UNION REGISTRATION

( GROUNDS FOR CANCELLATION OF UNION REGISTRATION:

A. FRAUDULENT ACTS

1. Misrepresentation, False statement or Fraud in connection with [RATIFICATION OF CONSTI/BY-LAWS]:

a. the adoption or ratification of the constitution and by-laws or amendments thereto,

b. the minutes of ratification, and

c. the list of members who took part in the ratification.

2. Misrepresentation, false statement or fraud in connection with the [ELECTION PAPERS]:

a. election of officers,

b. minutes of the election of officer and the list of voters, or

c.failure to submit these documents together with the list of the newly elected/appointed officers and their postal addresses within 30 days from electionB. INACTION OR OMISSION

1. Failure to submit the following documents [RATIFICATION OF CONSTI/BY-LAWS]:

a. the adoption or ratification of

the constitution and by-laws or

amendments thereto,b. the minutes of ratification, and

the list of members who took part in the ratification

*Within 30 days from adoption or ratification of the constitution and by-laws or amendments thereto.2. Failure to submit the Annual Financial report to the Bureau within 30 days after the closing of every fiscal year and misrepresentation, false entries and fraud in the preparation of the financial report itself;3. Failure to submit a list of individual members of the Bureau once a year or whenever required by the Bureau; and

4. Failure to comply with the requirements under Articles 237.

C. UNLAWFUL ACTS1. Acting as a labor contractor or engaging in the cabo system, or otherwise engaging in any activity prohibited by law;

2. Entering into collective bargaining agreements which provide terms and conditions of employment below minimum standard established by law [CBA-BELOW MINIMUM STANDARDS]; (Sweetheart Agreements)

3. Asking for or accepting attorneys fees or negotiation fees from the employers;

4. Other than for mandatory activities under this Code, checking off special assessment or any other fees without duly signed individual written authorization of the members [UNLAWFUL ASSESSMENTS];CANCELLATION OF REGISTRATION

A. FOR:1. Legitimate individual labor union.

2. Chartered local

3. Workers association

WHERE TO FILE

Regional Director who has jurisdiction over the place where respondent principally operates (30 days to decide).

WHO MAY FILE

Any party in interest, if ground is:

a. Failure to comply with any of the requirements under Arts. 234, 237 and 238 LC

b. Violation of any provision under Art. 239, LC

Take note of the cancellation proceedings if violation is D and J of Art. 239, LC

REPORTING REQUIREMENTS OF LABOR UNIONS AND WORKERS ASSOCIATIONS (Rule V DO 40-03)

- It shall be the duty of every legitimate labor union and workers association to submit to the Regional Office or Bureau which issued its certificate of registration or certificate of creation of chartered local, as the case may be, two (2) copies of each of the following documents:

a. any amendment to its constitution and by-laws and the minutes of adoption or ratification of such amendments, within 30 days from its adoption or ratification;

b. annual financial reports within 30 days after the close of each fiscal or calendar year;

c. updated list of newly-elected officers, together with the appointive offices or agents who are entrusted with the handling of funds, within 30 days after each regular or special election of officers, or from the occurrence of any change in the officers of agents of the labor organization or workers association

d. updated list of individual members of chartered locals, independent unions and workers associations within 30 days after the close of each fiscal year; and

e. updated list of its chartered locals and affiliates or member organizations, CBAs executed and their effectivity period, in the case of federations or national unions, within 30 days after the close of each fiscal year, as well as the updated list of their authorized representatives, agents or signatories in the different regions of the country.

( RULES ON ADMINISTRATIVE CANCELLATION OF CERTIFICATE OF REGISTRATION OF LLOs DUE TO NON-COMPLIANCE WITH THE REPORTORIAL REQUIREMENTS: When ProperFailure to comply with its legal duty to submit the documents required to be submitted under Rule V of DO 40-03 for 5 consecutive years

Who may file the petition 1. Motu propio by the Bureau

2. Any party-in-interest

Three-Notice Requirement1st NoticeBureau shall send by registered mail with return card notice for compliance indicating the documents it failed to submit and the corresponding period in which they were required, with notice to comply with the said reportorial requirements and to submit proof thereof to the Bureau within 10 days from receipt thereof

2nd Notice

Where no response is received by the Bureau within 30 days from the release of the 1st notice, another notice for compliance shall be made by the Bureau, with warning that failure on its part to comply with the reportorial requirements within the time specified shall cause the continuation of the proceedings for the administrative cancellation of its registration

3rd Notice

Where no response is again received by the Bureau within 30 days from release of the 2nd notice, the Bureau shall cause the publication of the notice of cancellation of registration of the labor organization in 2 newspapers of general circulation.

When no response is received by the Bureau within 30 days from the date of publication or when the Bureau has verified the dissolution of the labor organization, it shall order the cancellation of registration of the labor organization and cause its de-listing from the roster of legitimate labor organizations

CHAPTER II

RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION

( ART. 241. RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION

( GENERAL GROUPINGS OF THE RIGHTS OF THE UNION MEMBERS:

1. Political right - the right to vote and be voted for, subject to lawful provisions on qualifications and disqualifications.2. Deliberative and Decision-Making Right - the right to participate in deliberations on major policy questions and decide them by secret ballot.3. Rights Over Money Matters - the right of the members:a. against imposition of excessive fees;

b. right against unauthorized collection of contributions or unauthorized disbursements;

c. to require adequate records of income and expenses;

d. to access financial records;

e. to vote on officers compensation;

f. to vote on special assessment;

g. to be deducted a special assessment only with the members written authorization.

4. Right to Information - the right to be informed about:

a. the organizations constitution and by- laws,

b. the collective bargaining agreement, and labor laws.

Any violation of the above rights and conditions of membership shall be a ground for cancellation of union registration or expulsion of an officer from office, whichever is appropriate. At least 30% of all the members of the union or any member or members specifically concerned may report such violation to the Bureau.

( PERSONS WHO ARE PROHIBITED FROM BECOMING MEMBERS/OFFICERS OF A LABOR ORGANIZATION UNDER THE LABOR CODE (see also notes under Art. 243 on persons who are not granted the right to self-organization):

1. Subversives or those engaged in subversive activities [Art.241 (e)]

2. Persons who have been convicted of a crime involving moral turpitude shall not be eligible for election as union officer or for appointment to any position in the union. [Art. 241 (f)]

In general, a union is free to select its own members, and no person has an absolute right to membership in a union.

LIMITATIONS [see discussion on union security arrangements under Art. 248]:

a. The labor org. cannot compel employees to become members of their labor organization if they are already member of rival union.

b. persons mentioned in Art. 241(e) [subversives] of the labor code are prohibited from becoming a member a labor organization.

c. members of religious organization whose religion forbade membership in labor organization could not be compelled into union membership.

( REQUIREMENTS IN MAKING SPECIAL ASSESSMENTS or OTHER EXTRAORDINARY FEES (Art. 241 [n]):

1. there must be a written resolution2. he resolution must have been approved by a majority of all the members

3. the approval must be at a general membership meeting duly called for that purpose

The secretary of the organization shall record the minutes of the meeting including:

a. the list of all members present,

b. the votes cast, and

c. the purpose of the assessment or fees

The record shall be attested by the President.

Substantial compliance to the aforementioned procedure is not enoughthe requirements must be strictly complied with in view of the fact that the special assessment will diminish the compensation of union members. (Palacol et. al vs. Ferrer-Calleja et. al)

( CHECK-OFF - a method of deducting from an employees pay at prescribed period, the amounts due to the union for fees, fines or assessments.

NATURE AND PURPOSE OF CHECK-OFF:

to facilitate the collection of dues necessary for the unions life and sustenance.

Union dues are the lifeblood of the union.

(REQUIREMENTS WITH REGARD TO CHECK-OFFS (Art. 241 [o]):

- NO special assessment, attorneys fees, registration fees or any other extraordinary fees may be checked off from any amount due an employee WITHOUT an individual written authorization duly signed by the employee.

The authorization should specifically state the:

a. amount

b. purpose and the beneficiary of the deduction.

( Jurisdiction over check-off disputes is with the Regional Director of the DOLE, not the Labor Arbiter

( union dues vs. Agency fee

UNION DUESAGENCY FEE

a. DEDUCTED FROM- members of a union for the payment of union dues.- non-members of the bargaining agent (union) for the enjoyment of the benefits under the CBA.

b. CONSENT

- May not be deducted from the salaries of the union members without the written consent of the workers affected- May be deducted from the salary of employees without their consent.

Agency fee cannot be imposed on employees already in the service and are members of another union. If a closed shop agreement cannot be applied to them, neither may an agency fee, as a lesser form of union security, be imposed to them. (NABAILU vs. San Miguel Brewery Inc)

( EXCEPTION to the Requirement of Individual Written Authorization:

1. For mandatory activities provided under the Code; and

2. When non-members of the union avail of the benefits of the CBA.

said non-members may be assessed union dues equivalent to that paid by members

only by a Board Resolution approved by majority of the members in a general meeting called for the purpose

Will the employees-members of another union not be considered as free riders?

No since when the union bids to be the bargaining agent, it voluntarily assumes the responsibility of representing all employees in the appropriate bargaining unit.( SPECIAL ASSESSMENT vs. CHECK-OFF

SPECIAL ASSESSMENTSCheCK-OFF

a. HOW APPROVED

-by written resolution approved by majority of all the members at a meeting duly called for that purpose

(Union Dues)

-by obtaining the individual written authorization duly signed by the employee which must specify:

a. amount

b. purpose and

c. beneficiary of the deduction.

b. EXCEPTION TO SUCH REQUIREMENT

-no exceptionwritten resolution is mandatory at all instances.(Agency Fees)

-not necessary if:

1. For mandatory activities provided under the Code; and

2. When non-members of the union avail of the benefits of the CBA. Said non-members may be assessed agency fees equivalent to that paid by members only by a Board Resolution approved by majority of the members in a general meeting called for the purpose.

CHAPTER III

RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS

( ART. 242. RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS

(RIGHTS OF A LEGITIMATE LABOR ORGANIZATION [USERFOE]:

1. Undertake activities for benefit of members

2. Sue and be sued

3. Exclusive representative of all employees

4. Represent union members

5. Furnished by employers of audited financial statements

6. Own properties

7. Exempted from taxes

TITLE V

COVERAGE

( ART. 243. COVERAGE AND EMPLOYEES RIGHT TO SELFORGANIZATION( PERSONS/EMPLOYEES ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR PURPOSES OF COLLECTIVE BARGAINING:

1. All persons employed in commercial, industrial and agricultural (CIA) enterprises, and

2. In religious, charitable, medical or educational (RCME) institutions whether operating for profit or not

( PERSONS/EMPLOYEES ELIGIBLE TO JOIN A LABOR ORGANIZATION FOR MUTUAL AID AND PROTECTION (AIRSIW):1. Ambulant,

2. Intermittent,

3. Rural,

4. Self-employed people

5. Itinerant workers and

6. workers without any definite employers,

( PERSONS/EMPLOYEES WHO ARE NOT GRANTED THE RIGHT TO SELF-ORGANIZATION: (HEMACEN)

1. High-level government employees (E.O. 180 Sec. 3) (MANAGERIAL GOVERNMENT EMPLOYEES)

GOVERNMENT OWNED OR CONTROLLED CORPORATIONS WITH AN ORIGINAL CHARTERGOVERNMENT

OWNED OR CONTROLLED CORPORATIONS WITHOUT

ORIGINAL

CHARTER

a. LAW

- Employees cannot stage strikes since they are governed by the Civil Service Law. They are enjoined by Civil Service Memorandum Circular No. 6, under pain of administrative sanctions from staging strikes, demonstrations, mass leaves, walkouts and other concerted activities. - The GOCC is

created under

Corporation Code,

then employees are covered by the Labor

Code. Therefore

the employees have

the same rights as

those as employees

of private

corporations, one of

which is the right to

strike.

b. BARGAINING RIGHTS- Corporations with original charters cannot bargain with the government concerning the terms and conditions of their employment. However, they can negotiate with the government on those terms and conditions of employment which are not fixed by law. Thus, they have limited bargaining rights. - The GOCC is

created under

Corporation Code,

being governed by the Labor Code, they can bargain with the government concerning the terms and

conditions of

their employment.

Thus, they have

unlimited bargaining

rights.

c.PURPOSE OF ORGANIZATION

- Can only form, join or assist labor organization for purposes not contrary to law.- Can form, join or

assist labor

organization for

purposes of CBA, etc.

2. Employees of international organizations with immunities (ICMC vs. Calleja)3. Managerial employees

whose functions are normally considered as policy-making or managerial

whose duties are of a highly confidential or highly technical in nature (212 LC)

4. Members of the Armed Forces of the Philippines, including police officers, policemen, firemen and jail guards (E.O. 180 Sec. 4);

5. Confidential employees (Metrolab vs. Confesor)

6. Employees of cooperatives who are members (Benguet Elec. Coop. vs Calleja)7. Non-Employees (Rosario Bros. vs Ople)Foreigners validly working in the Philippines [with permit from DOLE] can form labor organizations, provided the same right to form, join or assist in the formation of labor unions is also given to Filipinos in their country of origin. This embodies the principle of reciprocity.

May Security Guards form a labor organization?

YES. Under RA 6715, they may now freely join a labor organization of the rank-and-file or that of the supervisory union, depending on their rank. (Meralco vs. Secretary of Labor)( Extent of the Right to Self-Organization

1. To form, join and assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and

2. To engage in lawful concerted activities for the same purpose- for their mutual aid and protection.( ART. 244. RIGHTS OF EMPLOYEES IN THE PUBLIC SERVICE

( THE FOLLOWING ARE CONSIDERED NEGOTIABLE IN GOCCs WITH ORIGINAL CHARTER:

1. schedule of vacation and other leaves

2. work assignment of pregnant women

3. personnel growth and development

4. communication system lateral and vertical

5. provision for protection and safely

6. provision for facilities for handicapped personnel

7. provision for first-aid medical services for married women

8. annual medical/physical examination

9. recreational, social, athletic and cultural activities and facilities (Rules implementing WO 180)

( THE FOLLOWING ARE CONSIDERED NOT NEGOTIABLE:

1. Those which require appropriation of funds, such as:

a. increase in salary emoluments and other allowance not presently provided for by law

b. facilities requiring capital outlays

c. car plan

d. provident fund

e. special hospitalization, medical and dental services

f. rice/sugar/other subsidies

g. travel expenses

h. increase in retirement benefits

2. Those that involve the exercise of management prerogatives, such as:

a. appointments

b. promotion

c. assignments/details

d. reclassification/upgrading of position

e. revision of compensation structure

f. penalties imposed as a result of disciplinary actions

g. selection of personnel to attend seminar, trainings, study grants

h. distribution of work load

i. external communication linkages

Government employees and employees of government-owned and controlled corporations with original charters may bargain, however, such bargaining power is limited.

NOTE: The Public Sector Labor Management Council (PSLMC), created by E.O. 180 has jurisdiction to hear charges of ULP filed by government employees against their employer.( REASONS WHY EMPLOYEES IN GOCCs INCORPORATED UNDER THE CORPORATION CODE ARE ALLOWED TO ORGANIZE:

1. they are not involved in public service

2. terms of employment are not fixed by law

3. they are governed by the provisions of the Labor Code not by the Civil Service Law

( ART. 245. INELIGIBILITY OF MANAGERIAL EMPLOYEES TO JOIN ANY LABOR ORGANIZATION; RIGHT OF SUPERVISORY EMPLOYEES.

( MANAGERIAL EMPLOYEE - one who is vested with powers or prerogatives to lay down and execute management policies and /or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees.

( MANAGERIAL EE under LS and LR

Managerial Employees under Labor Standards

Managerial

Employees under Labor Relations

a. POWERS/DUTIES

- primary duty consists of the management of the establishment in which they are employed or of a department or subdivision - See definition

above

b. EXTENT- includes the officers and members of the managerial staff

- does not include

the managerial staff since they are classified as supervisory

employees [who may/may not be eligible to join a

labor union with the rank and file employees]

c. PURPOSE OF DEFINITION

- to determine w/n certain employees are covered by Book III of the LC on Conditions of Employment.- to determine an employees

eligibility in joining/forming a

labor union.

( Reason for ineligibility in the collective bargaining process, managerial employees are the alter ego of the employers and thus they are supposed to be on the side of the employer to act as its representatives, and to see to it that its interests are well protected. The employer is not assured of such protection if these employees are union members. In the same manner, the labor union might not be assured of their loyalty to the union in view of the evident conflict of interest.

The union can also become company-dominated with the presence of managerial employees in Union Membership (Bulletin Publishing Co. Inc. vs. Hon. Augusto Sanchez).

( SUPERVISORY EMPLOYEES - those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment.

MAY Supervisory employees form, assist, join a labor organization?

YES, on their own and NOT with the rank-and-file employees (RA 6715).

The test is: Do they exercise independent judgment which is not subject to evaluation of other department heads/other superiors? If in the affirmative, then they may-must form a labor organization of their own [separate from the rank and file employees]

If their responsibilities do not inherently require the exercise of discretion and independent judgment [or merely routinary/clerical in nature] then they may join the union composed of the rank and file employees. NOTE: It is the nature of the employees functions and not the nomenclature or title given to his job which determines whether he has a rank and file or managerial status. (Engineering Equipment, Inc. vs. NLRC)MAY THEY AFFILIATE WITH A FEDERATION OF LABOR ORGANZATIONS OF RANK AND FILE EMPLOYEES?

YES. Provided that:

a. the federation is not actively involved in union affairs in the company; and

b. the rank and file employees are not directly under the control of the supervisors (Adamson vs. Adamson)

( EFFECT OF HAVING MIXED MEMBERSHIP A union whose membership is a mixture of the supervisors and the rank and file is not and cannot become a legitimate labor organization. It cannot petition for a certification election, much less ask to be recognized as the bargaining representative of employees.( CONFIDENTIAL EMPLOYEES - by the very nature of their functions, they assist and act in a confidential capacity to, or, have access to confidential matters of persons who exercise managerial functions in the field of labor relations. Therefore, the rationale behind the ineligibility of managerial employees to form, assist or join a labor union equally applies to them. (Philips Industrial Devt Inc. Vs. NLRC)- they are entrusted with confidence on delicate matters, or with the custody, handling, or care and protection of the employers property. Under the doctrine of necessary implication, confidential employees are similarly disqualified under Article 245. (Republic Planters Bank vs. Torres)

NOTE: The phrase in the field of labor relations is important. It stresses labor nexus, i.e., confidentiality of the position is related or linked to labor relations matters.

Access to information which is regarded by the employer to be confidential from the business standpoint, such as financial information or technical trade secrets, will not render an employee a confidential employee. (SMC Supervisors & Exempt Union vs. Hon. Laguesma, et al.)

Confidentiality is not a matter of official rank, it is a matter of job content and authority. It is not measured by closeness to or distance from top management, but by the significance of the jobholders role in the pursuit of corporate objectives and strategies.

Every managerial position is confidential because one does not become a manager without having gained the confidence of the appointing authority. But not every confidential employee is managerial; he may be a supervisory or even a rank-and-file employee.

( ART. 246. NON-ABRIDGEMENT OF THE RIGHT TO SELF-ORGANIZATION

THE RIGHT TO SELF-ORGANIZATION SHALL NOT BE ABRIDGED MEANS:

It shall be unlawful for any person to:

a. restrain,

b. coerce,

c. discriminate against, or

d. unduly interfere

- with employees and workers in their exercise of the right to self-organization.

Any act intended to weaken or defeat the right is regarded by law as an offense, which is technically called unfair labor practice.

TITLE VI

UNFAIR LABOR PRACTICES

CHAPTER I

CONCEPT

( ART. 247. UNFAIR LABOR PRACTICES

( NATURE OF UNFAIR LABOR PRACTICES:

1. violate the constitutional right of workers and employees to self-organization;

2. 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

3. disrupt industrial peace; and

4. hinder the promotion of healthy and stable labor-management relations and mutual respect [LABOR-MNGT RELATIONS-UNSTABLE];

( 2 ELEMENTS OF UNFAIR LABOR PRACTICE:

1. employer-employee relationship between the offender and the offended

2. act done is expressly defined in the Code as an act of unfair labor practice

3. it is now considered a criminal offense triable by the criminal courtNOTE: Prohibited acts are all related to the workers' self-organizational right and the the observance of a CBA, except Art. 248 (f) dismissing or prejudicing an employee for giving testimony under the Code.

ULP has a technical meaning.

It is a practice unfair to labor, although the offender may either be an employer or a labor organization

It refers to acts opposed to workers' right to organize. Without this, the act, no matter how unfair, is not ULP.

It commonly connotes anti-unionism. It also refers to gross violation of CBA provisions. Gross means the act is malicious and flagrant.

( 2 ASPECTS OF UNFAIR LABOR PRACTICE:

CIVIL CASECRIMINAL CASE

A. PERSONS LIABLE

1. Officers and agents of employer or

2. Labor organization, officers and agents1. Agents and officers who participated or authorized or ratified the act.2. Agents, representatives, members of the government board, including ordinary members

B. Jurisdiction

-Labor Arbiters of the NLRC-MTC/RTC as the case may be.

C. QUANTUM OF PROOF NEEDED

-substantial evidence-beyond reasonable doubt [subject to prosecution and punishment]

D. PRESCRIPTIVE PERIOD

- one year from the accrual of the ULP act.

- one year from the accrual of the ULP act, however it will be suspended once the administrative case has been filed and would only continue running once the administrative case has attained finality.

Final judgment in the administrative proceeding finding that ULP has been committed is a prerequisite in filing a criminal case for ULP

NOTE: Final judgment in the administrative proceedings shall not be binding in the criminal case nor shall be considered as an evidence of guilt but merely as a proof of compliance of the requirements prescribed by the Code.

CHAPTER II

UNFAIR LABOR PRACTICES

OF EMPLOYERS

( ART 248. ULP THAT MAY BE COMMITTED BY AN EMPLOYER (1-10)

1. To interfere with, restrain or coerce employees in the exercise of their right to self-organization;

INTERFERENCE

Examples:- outright and unconcealed intimidation

- interrogation

employer must communicate to the employee the purpose of questioning

1. assure him that no reprisal would take place

2. obtain employee participation voluntarily

3. must be free from employer hostility to union organization

4. must not be coercive in nature

-intimidating expressions of opinion by employer

TEST OF INTERFERENCE OR COERCION - whether the employer has engaged in conduct which it may reasonably be said tends to interfere with the free exercise of the employees' right and it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by the statements of threats or the employer if there is a reasonable interference that the anti-union conduct of the employer does have an adverse effect of self-organization and collective bargaining.

2. To require as a condition for employment that a person or an employee shall not join a labor organization or

shall withdraw from one to which he belongs;

( YELLOW DOG CONTRACT - A promise exacted from workers as a condition of employment that they are not to belong to, or attempt to foster, a union during their period of employment. It is null and void because:

It is contrary to public policy for it is tantamount to involuntary servitude.

It is entered into without consideration for employees in waiving their right to self- organization

- Employees are coerced to sign contracts disadvantageous to their family.

Does Art. 248 (3) mean that an employer cannot contract out work?

NO. Contracting out services is not ULP per se. It is ULP only when the following conditions exist:

1. the service contracted- out are being performed by union members; and

2. such contracting-out interferes with, restrains, or coerce employees in the exercise of their right to self-organization.

HOWEVER, when the contracting-out is being done to minimize expenses, then it is a valid exercise of management prerogative.

3. To contract