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LaborNotes PrelimstoFinals PDF
LaborNotes PrelimstoFinals PDF
LaborNotes PrelimstoFinals PDF
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WHERE THE
OPERATES
WHERE TO REGISTER
(1) Regional Offices independent labor unions;
chartered local and workers association
PRINCIPALLY
2)
3)
4)
5)
REGISTRATION RATIONALE
For attainment of Legal Personality
EFFECT OF REGISTRATION UNDER THE
CORPORATION LAW
-has only effect of giving to it juridical personality before
regular courts of justice. Such incorporation does not grant
the rights and privileges of legitimate labor organizations
APPLICANT
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6)
Independent Union
1)
2)
3)
4)
5)
Workers Association
1)
2)
3)
4)
Chartered Local
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Limitation to by-laws
Amendments
should
be
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AFFILIATION
Affiliate an independently registered union that enters into
an agreement w/ a federation or a national union.
-also refers to a chartered local w/c applies for and
is granted an independent registration but does not
disaffiliate from its member federation or national
union.
When to Disaffiliate
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Disaffiliation: Effect on
Substitutionary Doctrine
existing
CBA;
the
REVOCATION OF CHARTER
MERGER OR CONSOLIDATION
New Concept in the PH
Merger (absorption) process where a labor organization
absords another, resulting in the cessation of the absorbed
labor organizations existence and the continued existence of
the absorbing labor organization.
Effect: transfer to the absorbing organization all the rights,
interest and obligations of the absorbed organization
Consolidation (amalgamation) refers to the creation or
formation of a new union arising from the unification of two
or more unions.
Effect: the newly created labor org acquires all the rights
interests and obligations of the consolidating labor
aorganizations.
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Certificate of Registration
The change of name of a labor org shall not affect its legal
personality. All the rights and obligations of a labor org
under its old name shall continue to be exercised by the labor
org under its new name.
CANCELLATION OF REGISTRATION; GROUNDS
Cancellation the governments act that divests the
organization its status. It thereby reverts to its character prior
to the registration. Although it does not cease to exist or
become an unlawful organization, its juridical personality as
well as its statutory rights and privileges is suspended.
Grounds:
(1) Misrepresentation about the union CBL
(2) Misrepresentation about the election
(3) Desire of the union (to dissolve) themselves; 4
requisites
(a) The members desire to dissolve or cancel the
registration of their union should have been voted
upon through secret balloting, applying the rule in
Art. 214(d)
(b) The balloting should take place in ameeting duly
called for the purpose of deciding whether or not to
dissolve the union
(c) The vote to dissolve should represent 2/3
affirmative vote of the general membership, not just
of the quorum.
Administrative
requirements
Cancellation;
the
reportorial
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WHO
FILES
FOR
PETITION
FOR
CANCELLATION
Any party-in-interest may commence a petition for
cancellation of a unions registration, except in actions
involving violations of Art. 241 which can only be
commenced by members of the labor org concerned.
Eligibility of Membership
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Eligibility of Voters
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the ones who run and operate the business while the others
are its employees. As above stated, irrespective of the name
of shares owned by its members they are entitled to cast one
vote each in deciding upon the affair of the cooperative.
Their share capital earn limited interests. They enjoy special
privileges as exemption from income tax and sales taxes,
preferential right to supply their products to State agencies
and even exemption from minimum wage laws.
An employee of such a cooperative who is a
member and co-owner thereof cannot invoke the right to
collective bargaining for certainly an owner cannot bargain
with himself or his co-owners.
However, in so far as it involves cooperatives with
employees who are not members or co-owners thereof,
certainly such employees are entitled to exercise the rights of
all workers to organization, collective bargaining,
negotiations and others as are enshrined in the Constitution
and existing laws of the country.
In another case, the court clarified that it is the fact of
ownership of the cooperative, and not involvement in the
management thereof, which disqualifies a member from
joining any labor organization within the cooperative. Thus,
irrespective of the degree of their participation in the actual
management of the cooperative, all members thereof cannot
form, assist or join a labor organization for the purpose of
collective bargaining.
But member-employees of a cooperative may
withdraw as members of the cooperative in order to join a
labor union. Membership in a cooperative is voluntary;
inherent in it is the right not to join.
4.1 Exception to Exception: Association, not Union
While the members of a cooperative who are also
its employees cannot unionize for bargaining purposes, the
law does not prohibit them from forming an association for
their mutual aid and protection as employees.
D.O. No. 40-03 allows and defines a workers
association as one which is organized for the mutual aid and
protection of its members or for any legitimate purpose other
than collective bargaining.
5. EXCEPTION: INTERNATIONAL
ORGANIZATIONS
A certification election cannot be conducted in an
international organization which the Philippine Government
has granted immunity from local jurisdiction.
The grant of such immunity is a political question whose
resolution by the executive branch of government is
conclusive upon the courts
(1) International Organization and Specialized Agencies
The term "international organization" is generally used to
describe an organization set up by agreement between two or
more states. Under contemporary international law, such
organizations are endowed with some degree of international
legal personality such that they are capable of exercising
specific rights, duties and powers. They are organized mainly
as a means for conducting general international business in
which the member states have an interest. The United
Nations, for instance, is an international organization
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OBJECTORS;
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It is quite clear from this provision that BLR has the original
and exclusive jurisdiction on all inter-union and intra-union
conflicts. An intra-union conflict would refer to a conflict
within or inside a labor union, and an inter-union
controversy or dispute, one occurring or carried on between
or among unions. The subject of the case at bar, which is the
election of the officers and members of the board of
KMKK-MWSS, is, clearly, an intra-union conflict, being
within or inside a labor union. It is well within the powers of
the BLR to act upon.
4. WHEN PSLMC MAY RULE ON LEGALITY OF
DISMISSAL
The Public Sector Labor-Management Council, created by
Executive Order No. 180 (June 1, 1987) has jurisdiction to
hear charges of unfair labor practice filed by government
employees against their employer, e.g., the Pamantasan ng
Lungsod ng Maynila. In deciding the ULP charge the
PSLMC may also rule on the complainants dismissal if the
two issuesULP and dismissalare unavoidably
interlinked.
5. UNION-BUSTING IN A GOVERNMENT
AGENCY, U.L.P.
5.1 Even Temporary Employees May Organize
Even temporary employees enjoy the basic right to form
organization or association for purposes not contrary to law.
Under Art. 277(c) of the Labor Code, any employee,
whether employed for a definite period of not, shall
beginning on his first day of service, be considered an
employee for purposes of membership in any labor union.
Ineligibility of managerial employees to join any labor
organization; Right of Supervisory Employees
________
Article 245. Ineligibility of managerial employees to join any
labor organization; Right of Supervisory Employees. Managerial employees are not eligible to join, assist or form
any labor organization. Supervisory employees shall not be
eligible for membership in the collective bargaining unit of
the rank-and-file employees but may join, assist or form
separate collective bargaining units and/or legitimate labor
organizations of their own. The rank-and-file union and the
supervisors union operating within the same establishment
may join the same federation or national union. (As amended
by Section 18, Republic Act No. 6715, March 21, 1989 and
Section 8, Republic Act No. 9481 which lapsed into law on
May 25, 2007 and became effective on June 14, 2007).
________
1. CATEGORIES OF EMPLOYEES
RA 6715 which took effect on March 21, 1989 (15 days after
its publication in the "Philippines Daily Inquirer") provides
that although "supervisory employees shall not be eligible for
membership in a labor organization of the rank and file
employees," they may, however, "join, assist or form separate
labor organization of their own."
2. INELIGIBILITY OF MANAGERS
2.1 Types of Managerial Employees
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12.9a
Nonstrikeable:
Physical
Rearrangement of Office
(Reliance Surety and Insurance Co, Inc. vs NLRC) There
is no question that the strike itself was prompted by no
actual, existing unfair labor practice committed by the
petitioner. In effecting a change in the seating arrangement in
the offices of the underwriting department, the er merely
exercised a reasonable prerogative ees could not validly
question, much less assail as an act of ULP.
The reinstated officers were clearly in BF, and to
reinstate them w/o loss of seniority rights is to reward them
for an act public policy does not sanction.
The Court must take care, that in the contest
between labor and capital, the results achieved are fair and in
conformity with the rules.
12.9b Nonstrikeable: Companys Sales
Evaluation Policy
(GTE Directories vs Hon.. Agusto Sanchez, et al) It must
thus be conceded that the companys adoption of a new
Sales Evaluation and Production Policy was w/n its
management prerogative to regulate, according to its own
discretion and judgment, all aspects of employment,
including the manner, procedure and processes by which
particular work activities should be done.
The Court fails to see how the existence of
objections made by the union justify the studied disregard of,
or willful disobedience by, the sales representatives of direct
orders of their superior officers to submit reports. Deliberate
disregard or disobedience of rules, defiance of management
authority cannot be countenanced. But until and unless the
rules or orders are declared to be illegal or improper by
competent authority, the ees ignore or disobey them at their
peril. It is impermissible to reverse the process: suspend
enforcement of the orders or rules until their legality or
propriety shall have been subject of negotiation, conciliation
or arbitration.
It is a recognized principle of law that company
policies and regulations are, unless shown to be grossly
oppressive or contrary to law, generally binding and valid on
the parties and must be complied with until finally revised or
amended unilaterally or preferably through negotiations or by
competent authorities.
12.9c Nonstrikeable: Salary Distortion
Under the Wage Rationalization Act
(Ilaw at Buklod ng Manggagawa vs NLRC) SMC filed a
complaint against the Union and members thereof with the
NLRC to enjoin and restrain illegal slowdown and for
damages.
The legislative intent that solution of the problem
of wage distortions shall be sought by voluntary negotiation
or arbitration, and not by strikes, lockouts or other concerted
activities of the ees or management, is made clear in the rules
implementing RA 6727 issued by the SOLE pursuant to the
authority granted by Section 13 of the Act. Sec. 16, Chapter 1
of these implementing rules, after reiterating the policy that
wage distortions be first settled voluntarily by the parties and
eventually by compulsory arbitration, declares that, any issue
involving wage distortion shall not be a ground for a
strike/lockout.
The partial strike or concerted refusal by the Union
members to follow the five-year-old work schedule which
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with the spirit of the law, and in the manner to subserve and
not to impede or defeat the ends of substantial justice.
This principle has been discussed in the (Manila
Electric Co. vs. Hon. Sec. Quisumbing and Meralco Employees and
Workers Association) which ruled that the natural and ever
present limitation on the Secretarys acts is, of course, the
Constitution particularly Sec.1 Art. 8 (Judicial power to
determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government.)
14.19 Secretarys Abuse of Discretion, Examples
- to impose a stipulation which even the union did
not ask for.
14.20 Withdrawal of Case to Submit to VA
The parties, at any stage, can withdraw the case
from compulsory arbitration to bring it instead to voluntary
arbitrator.
15. 6TH FACTOR IN LEGALITY OF STRIKE:
AGREEMENT OF THE PARTIES
(Master Iron Case) as held in Philippine Metal
Foundries, Inc. vs CIR, a no-strike clause in a CBA is
applicable only to economic strikes. Corollarily, if the strike is
founded on an ULP of the er, a strike declared by the union
cannot be considered a violation of the no-strike clause.
15.2 No-Strike Clause Binding; Primacy of
Voluntary Arbitration Agreement
A no-strike-no lockout stipulation generally
deserves respect by the parties to the CBA and by the labor
authorities. Such stipulation applies even to a deadlock in
renegotiating the economic provisions of the CBA. Where
the CBA stipulates that the disputes between the parties
should be resolved through a grievance machinery, including
VA, a notice of strike filed by the union violates that
agreement. The NCMB should consider such notice as not
duly filed (the party so filing shall be notified of such finding
in writing by the Regional Branch Director) and then direct
the union to avail itself of the grievance machinery and VA.
A similar posture should be taken by the SLE instead of
assuming jurisdiction over the dispute.
Primacy of Voluntary
Assumption of Jurisdiction
Arbitration
over
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Moving Picket
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Picketing of Home
on
all
the
Limitations
Untruthful Picketing
Obstruction
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Kinds of Boycott
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Lawfulness of Boycott
Overtime Boycott
REQUIREMENTS
FOR
ARREST
AND
DETENTION
DIRECTIVE TO PROSECUTORS
Requirement to the fiscals and other government
prosecutors to first secure the clearance of the Ministry of
Labor and/or the Office of the President before taking
cognizance of complaints for preliminary investigations and
filing in the court of the corresponding information of cases
arising out of or related to a labor dispute, including
allegations of violence, coercion, physical injuries,
obstructing the free ingress to and egress from a factory or
place of operation of the machines of such factory, or the
employers premises.
The criminal cases should be suspended until the completion
of the compulsory arbitration proceedings in the NLRC.
Part 3
CONSEQUENCES OF CONCERTED ACTIONS
STRIKERS RETENTION OF EMPLOYMENT
The effects of employment, generally, are merely suspended
during that time the workers do not work and do not get
paid. When the strike is over, the employees go back and the
effects of employer-employee relationship are resumed.
Generally therefore the strikers retain their jobs.
Generally, yes. In Bacus vs. Ople (L-56856, October 23, 1984),
the Court said: Even if declared illegal, the strike need not
have been attended with such a drastic consequence as
termination of employment relationship. This is so,
according to the court, because of the security of tenure
provision of the Constitution,
Using compassion and good faith as reasons, the Court
ruled that a finding of illegality of a strike should not be
automatically followed by wholesale dismissal of striking
workers from their employment. On equitable
considerations, the Court ordered the reinstatement of the
striking workers to their former positions without backwages,
or if reinstatement is not possible, to pay them separation pay
under the Labor Code or under the collective bargaining
agreement, whichever is higher, except those who have
accepted their termination and financial assistance from the
company.
In so far as the strikers who are ordinarily unschooled
laborers and who do not fully understand the impact of what
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Union Members
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Labor unions are liable for the unlawful acts of their officers
or members which they have authorized or adopted and
labor unions which form a conspiracy are liable for the acts
of non-members who voluntarily join in the doing of
unlawful acts in the aid of the scheme.
Labor unions are not liable in damages for the unauthorized
or ungratified unlawful acts of their officials nor are they
responsible for the unlawful acts of individual members w/c
neither their officers nor committees have directed, aided or
approved.
Where the acts of the labor union are unlawful and tortuous,
the officers participating in such unlawful actions are liable
for the resulting damages irrespective of the fact that they
were acting in behalf of the union. Officers of labor union
are also liable for unlawful and tortuous acts done pursuant
to a conspiracy to which unions are a party.
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Example:
The circulation of a false statement by members of a
labor union among members of a craft for the purpose
of preventing a contract or from securing employees,
which results in damages to the contractor, gives him a
right of action for damages although the purpose of the
union was a lawful one, that of furthering the interests
of its members.
DAMAGES
Union officers may not be vicariously held liable for illegal
acts of strikers. The rule of vicarious liability has, since the
passage of R.A. 875, been expressly legislated out. Under the
said rule, mere membership in a labor union is sufficient to
predicate liability for acts of individuals done in behalf of the
union, or a labor union and/or its official and members to be
liable, there must be proof of actual participation in, or
authorization or ratification of, the illegal acts.
RTC has no jurisdiction over a complaint for damages filed
by an employer against a labor union for declaring an
allegedly illegal strike.
As to use of violence which outlaws a strike otherwise valid
in purpose, the Court has made it clear that absent a
pervasive and widespread use of force and violence
deliberately promoted and countenanced by the union, where
responsibility for injury to persons and destruction of
property may be collectively attributed to the entire union
leadership and membership, responsibility for such sporadic
and isolated acts must be individual in nature.
Where the strike is illegal, the employer is entitled to an
award for damages adequately approved.
National Federation of Labor, et al. v. NLRC and Permex Producer
and Exporter Corp.
This court had ruled that in order that damages may be
recovered, the best evidence obtainable by the injured party
must be presented. Actual or compensatory damages cannot
be presumed, but must be duly proved, and so proved with a
reasonable degree of certainty. A court cannot rely on
speculation, conjecture, or guesswork as to the fact and
amount of damages, but must depend upon competent proof
that they have been suffered and on evidence of the actual
amount thereof. If the proof is flimsy and insubstantial, no
damages will be awarded.
Strike dragged down for 50 days, there is no doubt that
some species of injury was caused to private respondent. In
the absence of competent proof on the actual damages
suffered, private respondent is entitled to nominal damages
which, as the law says, is adjudicated in order that a right of
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Book Six
POST-EMPLOYMENT
Title I
TERMINATION OF EMPLOYMENT
Part I
INTRODUCTION: EMPLOYEES SECURITY OF
TENURE
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Out
Require
Unions
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PROBATIONARY EMPLOYMENT
A probationary employee, as understood under Article
282 (now 281) of the LC, is one who is on trial by an Er
during which the Er determines whether or not he is
qualified for permanent employment. A probationary
appointment is made to afford Er an opportunity to observe
the fitness of a probationer while at work, and to ascertain
whether he will become a proper and efficient employee. The
word "probationary", as used to describe the period of
employment, implies the purpose of the term or period, but
not its length.
Being in the nature of a "trial period" the essence of a
probationary period of employment fundamentally lies in the
purpose or objective sought to be attained by both the
employer and the employee during said period. The length of
time is immaterial in determining the correlative rights of
both in dealing with each other during said period. While the
employer, as stated earlier, observes the fitness, propriety and
efficiency of a probationer to ascertain whether he is
qualified for permanent employment, the probationer, on the
other, seeks to prove to the employer, that he has the
qualifications to meet the reasonable standards for
permanent employment.
The employer has the right or is at liberty to choose who
will be hired and who will be denied employment. In that
sense, it is within the exercise of the right to select his
employees that the employer may set or fix a probationary
period within which the latter may test and observe the
conduct of the former before hiring him permanently.
1. Employers Right to Select; the Need for Probation
There is nothing under Article 281 of the Labor Code that
would preclude the employer from extending a regular or a
permanent appointment to an employee once the employer
finds that the employee is qualified for regular employment
even before the expiration of the probationary period.
Conversely, if the purpose sought by the employer is neither
attained nor attainable within the said period, Article 281 of
the Labor Code does not likewise preclude the employer
from terminating the probationary employment on justifiable
causes.
Manila Electric Company v. NLRC, September 29, 1989
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Equality of rights exists b/w the er and the ee. The rights of
the labourer to sell his labor to such persons as he may
choose is, in its essence, the same as the right of an er to
purchase labor from any person whom it chooses. The er
and the ee have an equality of right guaranteed by the Consti.
If the er can compel the ee to work against the latters will,
this is servitude. If the ee can compel the er to give him work
against the ers will, this is oppression.
2. Right to Discipline
The er has the prerogative to instill discipline in his ees and
to impose reasonable penalties, including dismissal, on erring
ees pursuant to company rules and regulations.
It will be highly prejudicial to the interests of the er to
impose on him the services of an ee who has been shown to
be guilty of the charges that warranted the dismissal. It will
demoralize the rank-and-file if the undeserving if not
undesirable, remains in the service.
3. Right to Transfer Ees
The court has recognized and upheld the prerogative of
management to transfer an ee from one office to another
w/in the business establishment , provided that there is no
demotion in rank or a diminution of his salary, benefits and
other privileges. This is a privilege inherent in the ers right to
control and manage its enterprise effectively. Even as the law
is solicitous of the ees welfare, it cannot ignore the right of
the employer to exercise what are clearly and obviously
management prerogatives.
It is the ers prerogative, based on its assessment and
perception of the its ees qualification, aptitudes, and
competence, to move them around in various areas of its
business operations in order to ascertain where they will
function maximum benefit to the company. When his
transfer is not unreasonable, nor inconvenient, nor
prejudicial to him, and other privileges, the ee may not
complain that it amounts to a constructive dismissal.
4. Right to Demote
Petrophil Corporation v. NLRC , A.B. Encarnacion and Gersher
Engineering Works, August 29, 1986
Ruling: Encarnacion was not dismissed but was only
demoted and transferred to Caltex Phil., Inc. because of his
failure to observe proper diligence of his work and also
because of his indolence, habitual tardiness and absences. But
following his demotion and transfer, Encarnacion refused to
report to work anymore.
Time and again, this Office has sustained the view that it
is management prerogative to transfer, demote, discipline,
and even to dismiss an ee to protect its business, provided it
is nottainted w/ ULP.
The record, however is bereft of any evidence to show
that the demotion and transfer of Encarnacion was due to
ULP acts defined under Art 249 (now 248), hence the act of
Gersher Engineering Works in transferring and demoting
complainant Encarnacion is anchored on just and valid
grounds.
5. Right to Dismiss
While the Consti is committed to the policy of social justice
and the protection of the working class, it should not be
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The er, the Court said, was able to meet its burden of
proving that the transfer was not unreasonable,
inconvenient or prejudicial to the ee and that it dis not
involve demotion in rank or diminution of salary,
privileges or other benefits. The Court refused to
invalidate the ers transfer just because it was against her
wishes and not commensurate to her self-worth or
personal qualifications.
3.3e Test of Validity of Transfer
Blue Dairy Corp. v. NLRC and E.R. Recalde, September 14,
1999
It is the prerogative of management to transfer an
employee from one office to another within the business
establishment based on its assessment and perception of
the employees qualifications, aptitudes and competence,
and in order to ascertain where he can function with
maximum benefit to the company. This is a privilege
inherent in the employers right to control and manage his
enterprise effectively. The freedom of management to
conduct its business operations to achieve its purpose
cannot be denied.
But, like other rights, there are limits thereto. The
managerial prerogative to transfer personnel must be
exercised without grave abuse of discretion, bearing in
mind the basic elements of justice and fair play. Having
the right should not be confused with the manner in which
that right is exercised. Thus, it cannot be used as a
subterfuge by the employer to rid himself of an undesirable
worker. In particular, the employer must be able to show
that the transfer is not unreasonable, inconvenient or
prejudicial to the employee; nor does it involve a demotion
in rank or a diminution of his salaries, privileges and other
benefits. Should the employer fail to overcome this burden
of proof, the employees transfer shall be tantamount to
constructive dismissal, which has been defined as a quitting
because continued employment is rendered impossible,
unreasonable or unlikely; as an offer involving a demotion
in rank and diminution in pay. Likewise, constructive
dismissal exists when an act of clear discrimination,
insensibility or disdain by an employer has become so
unbearable to the employee leaving him with no option
but to forego with his continued employment.
3.3f Invalid Change of Position
As long as the ee is permitted to perform the contemplated
services, he cannot treat a mere request or direction to
perform additional services as a discharge. It is otherwise
where there has been refusal to permit the servant [ee] to
perform the substantial or principal service w/c is shown
to have been contemplated by the contract or employment
and a direction to substitute a different service. In such
case, the ee may treat the contract as terminated.
3.3g Transfer with Promotion of a Manager
A transfer becomes unenforceable if the transfer is
coupled w/ or is in the nature, where the promotion is
rejected by the ee.
Dosch v. NLRC and Northwest Airlines, July 5, 1983
Ruling:
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considering the fact that the ees involved were not mere
rank-and-file ees but supervisors who owed more than the
usual fealty to the organization and were therefore
expected to adhere to its rules in an exemplary manner.
Petitioners did not even reflect upon and consider the
undesirable example that they were setting to those who
were under their supervision.
An employee who consistently receives promotions in rank
and salary must be a highly efficient worker, and therefore
should be retained despite occasional lapse in punctuality
and attendance. Perfection cannot after all be demanded.
4.3a Illustrative Case: Valid Dismissal Due to
Unauthorized Absences of a Union Officer
Cando v. NLRC and Filipinas Bank, September 14, 1990
Ruling: Dismissal of ee (the union president based on unauthorized
absences, justified) The dismissal of the petitioners based
on his unjustified absences for a number of months. As an
ee the petitioner is expected to be aware of the rules and
regulations of the bank regarding leaves of absences. As
observed by the Commission, the absences of the
petitioner were not authorized.
4.4 Is Attitude Problem a Just Cause to Dismiss an
Ee?
An ee who cannot get along with his co-ees is detrimental
to the company, for he can upset and strain the working
environment. Without the necessary teamwork and
synergy, the organization cannot function well. Thus,
management has the prerogative to take the necessary
action to correct the situation and protect its organization.
An ees attitude problem is a valid ground for his
termination. It is a situation analogous to loss of trust and
confidence that must be duly proved by the er. Similarly,
compliance w/ the twin requirement of notice and hearing
must also be proven by the er.
The burden of proof is not on the ee but on the er who
must affirmatively show adequate evidence that the
dismissal was for justifiable cause.
5. Just Cause: Dishonesty, Loss of Confidence
To constitute a just cause for terminating the ees services,
the fraud must be committed against the er or representative
and in connection w/ the ees work. The fraud committed by
an ee against 3rd persons not in connection w/ his work and
which does not in anyway involve his er is not a ground for
the dismissal of the ee. Since fraud implies willfulness or
wrongful intent, the innocent nondisclosure of facts by the ee
to the er will not constitute a just cause for the dismissal of
the ee.
5.1 Example of Dishonesty: Falsification of Time
Cards
San Miguel Corporation v. NLRC, June 29, 1989
Ruling: In order for obedience to be considered as an
exempting circumstance, it must be in compliance with a
lawful order not opposed to a higher positive duty of the
subaltern, and that the person commanding act within the
scope of his authority. As a general rule, an inferior should
obey his superior. But between a general law which enjoins
obedience to a superior giving just order, etc., and a
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This issue was not raised before the LA nor the NLRC.
As it would be offensive to the basic rules of fair play and
justice to allow party to raise a question w/c has not been
passed by both administrative tribunals, it is now too late
to entertain it.
1.3 Backwages
Incompatible
with
Statutory
Separation Pay
An Ee whose employment is terminated due to any of the
cuases under Art 283 (except closure or cessation because
of serious losses) is entitled to a separation pay.
There being redundancy, dismissal of private lid.
Thus, private respondent are entitled to separation
pay only. The awards of backwages to them has no
basis of law.
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Lack of Work
Business Recession
Fire
Conservatorship
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however, the law and rulings on unfair labor practice and the
doctrine of successor er may apply.
- (San Felipe Neri School of Mandaluyong, Inc. vs NLRC, Roman
Catholic Archbishop of Manila) the main issue is whether the
respondent teachers employment was terminated by the sale
and transfer of San Felipe Neri School of Mandaluyong, Inc.
to the Archbishop of Manila that would entitle them to
separation pay. As there is no law which requires the
purchaser to absorb the ees of the selling corporation, the
most that the purchasing company may do, for purposes of
public policy and social justice, is to give preference to the
qualified separated ees of the selling company, who in their
judgment are necessary ion the continued operation of the
business establishment. This, RCAM did. It required private
respondents to reapply as new ees as a condition for rehiring
subject to the usual probationary status, the latters past
services with the petitioners-transferors not recognized.
Hence, petitioners contention that private respondents are
not entitled to separation pay on the ground that there was
no termination of the latters employment but a mere change
of ownership in the assets and properties of the school is
untenable. Neither can the flimsy excuse that at the time of
their alleged termination, there was no er-ee relationship
between them and the petitioners, be sustained.
6.1 Sale of Business: Is it Closure or
Cessation of Business
- in the previously-mentioned case, there was in
effect a closure and cessation of business. But in Manlimos
case, the Court declared that whether it is closure or
cessation is not material. In any case, the ees lose their jobs
(w/ post-employment benefits) unless the new owner opts to
retain or rehire them.
- (Manlimos vs NLRC and Super Mahogany Plywood
Corp., Albert Go) in a no. of cases, the rule has been laid down
that the sale or diposition must be motivated by good faith as
an element of exemption from liability. Indeed, an innocent
transferee has no liability to the ees of the transferor to
continue employing them. Nor is the transferee liable for
past ULP of the previous owner, except when the liability
therefor is assumed by the new er under the contract of sale,
or when liability arises because of the new owners
participation in thwarting or defeating the rights of the ees.
The private corp was under no legal obligation to employ
them; it may, however, give them preference in the hiring
which may or may not be subject to probation, a
management prerogative.
6.2
Successor-in-interest,
Contractual
Obligation to Employ
- (Marina Port Srvices, Inc. vs Hon. Cresencio R. Iniego)
Pending hearing of the case, the contract of the Metro Port
Services, Inc. as operator of the Arrastre Service in the South
Harbor, was cancelled by the PPA. Said contract was
awarded by PPA to the Marina Port Services, Inc. with the
condition that it shall absorb all the ees and shall be liable for
all benefits provided for under the existing CBA. Thus, the
labor personnel of previous operator except those positions
of trust and confidence, shall be absorbed by the grantee.
The grantee shall be responsible for all obligations, liabilities
or claims arising out of any transactions or undertaking in
operations as of the actual date of transfer thereof to the
grantee.
7. MERGER
- succession of employment rights and obligations occurs
between the absorbing corp and the ees of the absorbed
corp. Not only must the absorbing corp retain the ees; it
should likewise recognize the length of service in the
previous er. In merger, like in sale in bad faith, the successor
employer principle applies.
- (Filipinas Port Services, Inc. vs NLRC) Based on previous
rulings, the latter is deemed a survivor entity because it
continued in an essentially unchanged manner the business
operations of the predecessor arrastre and port service
operators, hiring substantially the same workers, including
herein appellee, of the integree of the predecessors, using
substantially the same facilities, w/ similar working
conditions and line of business, and employing the same
corporate control, although under a new management and
corporate personality. The alleged memorandum of the PPA
Assistant GM exonerating Filport from any liability arising
from and as a result of the merger is contrary to public policy
and is violative of the workers right to security of tenure.
Said memorandum was issued in response to a query of the
PMU OIC and was not even published nor made known to
the workers who came to know of its existence only at the
hearing before the NLRC. Thus, Filport has the obligation
not only to absorb the workers of the dissolved companies
but also to include the length of service earned by the
absorbed ees w/ their former ees as well. To rule otherwise
would be manifestly less than fair. Certainly, less than just
and equitable.
8. CONSOLIDATION
- The law enforced at the time of the merger was Section 3 of
Act No. 2772 which took effect on March 6, 1918. Said law
provides:
Sec. 3. Upon the perfecting, as aforesaid, of a consolidation
made in the manner herein provided, the several
corporations parties thereto shall be deemed and taken as
one corporation, upon the terms and conditions set forth in
said agreement; or, upon the perfecting of a merger, the
corporation merged shall be deemed and taken as absorbed
by the other corporation and incorporated in it; and all and
singular rights, privileges, and franchises of each of said
corporations, and all property, real and personal, and all
debts due on whatever account, belonging to each of such
corporations, shall be taken and deemed as transferred to and
vested in the new corporation formed by the consolidation,
or in the surviving corporation in case of merger, without
further act or deed; and the title to real estate, either by deed
or otherwise, under the laws of the Philippine Islands vested
in either corporation, shall not be deemed in any way
impaired by reason of this Act: Provided, however, That the
rights of creditors and all liens upon the property of either of
said corporations shall be preserved unimpaired; and all debts
liabilities, and duties of said corporations shall thenceforth
attach to the new corporation in case of a consolidation, or
to the surviving corporation in case of a merger, and be
enforced against said new corporation or surviving
corporation as if said debts, liabilities, and duties had been
incurred or contracted by it.
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9. AILMENT OR DISEASE
- If the ee suffers from a disease and his continued
employment is prohibited by law or prejudicial to his health
or to the health of his co-employees, the er shall not
terminate his employment unless there is a certification by a
competent public health authority that the disease is of such
nature or at such a stage that it cannot be cured within a
period of 6 months even with proper medical treatment.
- The burden of proving the validity of the dismissal rests on
the er. As such, the er must prove that the requisites for a
valid dismissal due to a disease have been complied with.
- (Triple Eight Integrated Services, Inc. vs NLRC) The requirement
for a medical certificate under Art 284 of the LC cannot be
dispensed with; otherwise, it would sanction the unilateral
and arbitrary determination by the er of the gravity or extent
of the ees illness and thus defeat the public policy on the
protection of labor.
- a medical certificate issued by the companys own physician
is not a certificate by competent public health authority.
- Even if there is no illegal dismissal, there may be an award
for separation pay.
ART. 284. Disease as ground for termination. - An employer may
terminate the services of an employee who has been found to
be suffering from any disease and whose continued
employment is prohibited by law or is prejudicial to his
health as well as to the health of his co-employees: Provided,
That he is paid separation pay equivalent to at least one (1)
month salary or to one-half (1/2) month salary for every year
of service, whichever is greater, a fraction of at least six (6)
months being considered as one (1) whole year.
- Even voluntary resignation due to ill health may be paid
termination pay for reasons analogous to those contemplated
under Art. 284 of the LC.
PART
5.
PROCEDURE
EMPLOYMENT
TITLE I
TO
TERMINATE
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Retiree
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Roquero
remains.
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by LA
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AGENT;
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7. GRIEVANCES
A grievance is defined as any question by either the
employer or the union regarding the interpretation or
application of the collective bargaining agreement or
company personnel policies or any claim by either party that
the other party is violating any provision of the CBA or
company personnel policies.
If the term grievance is to be applied in the loose or generic
sense, any dispute or controversy respecting terms and
conditions of employment which an employee or group of
employees may present to the employer can be a grievance,
even without a union or CBA.
The expansion of the original and exclusive jurisdiction of
voluntary arbitrators to include questions arising from the
interpretation and enforcement of company personnel policies has the
effect of widening the meaning and interpretation of a
grievance to include a situation where there is no collective
bargaining agent and no CBA.
Personnel policies are guiding principles stated in broad,
long-range terms that express the philosophy or beliefs of an
organizations top authority regarding personnel matters.
They deal with matters affecting efficiency and well-being of
employees and include, among others, the procedures in
administration of wages, benefits, promotions, transfer and
other personnel movements which are usually not spelled out
in the collective agreement. The usual source of grievances,
however, is the rules and regulations governing disciplinary
actions.
7.1 By-passing the Grievance Machinery: ULP
All grievances arising from the implementation or
interpretation of the collective bargaining agreement and/or
interpretation and enforcement of company personnel
policies are compulsorily subject to the grievance of
machinery.
Upholding the requirement, the Court has ruled that the
grievance procedure provided in the CBA should be adhered
to by the parties. Refusal or failure to do so is an unfair labor
practice, because the grievance procedure is part of the
continuous process of collective bargaining. It is intended to
promote friendly dialogue between labor and management as
a means of maintaining industrial peace.
Before an aggrieved employee may resort to the courts to
enforce his individual rights under a bargaining contract, the
employee must exhaust all the remedies available to him
under such contract. And a court should not entertain any
complaint by an aggrieved employee until proper use has
been made of the contract grievance procedure agreed upon
by employer and the bargaining representative.
The grievance machinery under the agreement is the very
heart of industrial self0government.
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Arbitration
Informal
Not obliged
Not observed
No comparable appeal
recourse
Hear only industrial disputes
Not essential
________
________
1. ARBITRABLE DISPUTES
In the field of labor relations, arbitration applies to two kinds
of disputes: (1) contract-negotiation disputes; and (2)
contract-interpretation disputes. Contract negotiation disputes
are disputes as to the terms of a collective bargaining
agreement. Where there is an existing agreement to arbitrate
such disputes, and a bargaining deadlock or impasse has
arisen, the disputants submit to an impartial outsider for
settlement the collective bargaining issue which they had
been unable to settle by themselves, whether or not aided by
conciliators. Contract interpretation disputes are disputes arising
under an existing collective bargaining agreement, involving
such matters as the interpretation and application of the
contract, or alleged violation of its provisions.
Arbitration of contract negotiation disputes is often known
as arbitration of interest, while arbitration of contract
interpretation disputes is known as arbitration of grievance
or rights.
2. JURISDICTION OF L.A. AND V.A.
The aforecited provisions of law cannot be read in isolation
or separately. They must be read as a whole and each Article
of the Code reconciled one with the other. An analysis of the
provisions of Articles 217, 261, and 262 indicates, that:
1. The jurisdiction of the Labor Arbiter and Voluntary
Arbitrator or Panel of Voluntary Arbitrators over the cases
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the union and the company. It can thus be deduced that only
disputes involving the union and the company shall be
referred to the grievance machinery or voluntary arbitrators.
2.1a Policies, Rules, Procedures
Policies are formulated by management even before a
company opens for business in order to guide the men in the
operational level, the line manager or supervisor as to the
scope of their activities, authority and responsibility, and to
enable them to arrive at sound decisions. Policies are valuable
in fixing definite objectives for the organization. Policy
statements are also needed to allow subordinate executives to
make fair and consistent decisions on recurrent problems.
They promote uniformity of action and prevent conflicting
decisions especially as regards labor matter.
Company policies must be issued by top management which
is responsible for making major policies that are by nature
company-wide in application.
Minor policies, better known as rules and procedures, are the
extension of major policies and are usually formulated by
minor executives or department managers. Rules are specific
guides intended to govern conduct and action of operating
supervisors and employees in the performance of their
designated activities. Procedures are made to specify ways or
methods of carrying out policies and rules. A procedure tells
what work or task to do, how to do it, and when to do it.
2.2 Jurisdiction over CBA Violations
CBA violations not constituting ULP are likewise cognizable
by a voluntary arbitrator if not resolved through the
grievance machinery. If the violations, however, are gross
in character, these are to be treated as unfair labor practice
which, following Art. 217 (a-1), are to be heard and decided
by a labor arbiter.
The law wants the industrial players to resolve their
differences by and among themselves as much as possible.
And if they need help, they are likewise free to agree where
that help may come from.
For a ULP case to be cognizable by the Labor Arbiter, and
the NLRC to exercise its appellate jurisdiction, the allegations
in the complaint should show prima facie the concurrence of
two things, namely: (1) gross violation of the CBA; AND (2)
the violation pertains to the economic provisions of the
CBA.
Unsubstantiated conclusions of bad faith and unjustified
refusal to re-employ petitioners, to our mind, do not
constitute gross violation of the CBA for purposes of lodging
jurisdiction with the Labor Arbiter and the NLRC. Although
evidentiary matters are not required (and even discouraged)
to be alleged in complaint, still, sufficient details supporting
the conclusion of bad faith and unjust refusal to re-employ
petitioners must be indicated. Furthermore, it is even
doubtful if the CBA provision on re-employment fits into the
accepted notion of an economic provision of the CBA.
ARBITRATION
IS
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2. WHO DETERMINES
PROCEDURES
THE
ARBITRATION
AWARD
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