PART 3 LABOR TRANSCRIPTIONS

4 tests of determining existence of employer-employee relationship (SWDC)

1. Selection and hiring

2. Wages
3. Dismiss- the power to dismiss
4. Control- most determinative factor in determining existence of EE

Q: Would it suffice for the control test to establish EE?

A: Yes. The control test is the most determinative test. Prove that one party has control over
another in a way how work is to be done. Then an EE is deemed established.

Q: At this time of COVID Crisis, can a lawyer of a vital industry ex. Power, demand
from its employees to be separated from family and be quarantined.

A: Check Art. 89 and Art 92. The lawyer can require the employer to work on their rest day. In
times of crisis, vital industries need to operate. But of course they must be provided with the
benefits required by law.

CLASSIFICATION OF EMPLOYMENT

- Part of Management Prerogatives

- MP- Discretion of management when it comes to running the business
- Let’s think of a company- Let’s call it Covid Café

MANAGEMENT PREROGATIVES

1. Right to determine how to dispose the capital

2. How many I will hire
3. What positions will I give you
4. How much will I pay you
5. What kind or classification of employment will be given to you

In classification of employment we will determine the benefits

- Minimum standards
o Every employee is entitled to minimum standards as required in Labor law.
Except when explicitly excluded

2 tiers of classification of employment

1. Nature of the job

a. 6 classifications of employment in accordace of what job will you be assigned
 GR: An employee is deemed REGULAR. The law presumes that you are regular if the
job is necessary or desirable for the usual trade or business of the employment art
295

- It is mandatory.
- Employment shall be deemed REGULAR.
- So even if sinulat sa kontrata na kung ano man yan but if the job is necessary or
desirable for the usual trade or business of the complany, then YOU ARE A REGULAR
EMPLOYEE.
- The law will speak. Not your contract.

So now, what is the usual trade or business of the company?

In our Covid Café, what are the regular jobs? A regular is that job which is necessary. So if it is
necessary, then ano yun, yung barista, waiters, cahera. If school, sino regular? Then if the
school cannot operate without them? So yung teachers, registrar etc.

However the law also speaks OR DESIRABLE to the usual trade or business of a company

What is desirable?

- It means that it may not be necessary but it is DESIRABLE.

- Desirable in the usual trade or business
- Ex in covid café? What is desirable here? Yung Valet driver. So if high en ka na café and
you want the customer to come in easier. Then get a valet. Not necessary but it is
desirable.
- Look at Art 295 IN THE third SLIDE.
- 3 classifications of employment
1. Regular employment
2. Project employment- could be a regular project pero project basis
Ex. Those in the construction industry

Why is this allowed? Because sometimes in businesses jobs will not always be there.
Ex. Papagawa ka bahay. So di naman always papagawa ka ng bahay so project basis
lang.

3. seasonal employment- could be a regular project pero season to season basis

Ex. Yung sa farm. Hire ka ng tao bilang harvester. So sa planting season at sa

harvesting season lang kelangan.

CASUAL EMPLOYMENT

- If you are not project, not seasonal, not regular, THEN YOU ARE A CASUAL EMPLOYEE
 - However, if you are a c asual but you render service for at least 1 year, kahit na putol
putol, the YOU WILL BECOME A REGULAR EMPLOYEE fro so long as needed pa yung job
mo

PROBATIONAL EMPLOYMENT

- Itest ka within for 6 months

FIXED TERM EMPLOYMENT

- NOT FOUND IN LABOR CODE

- In a jurisprudence, it appears that term employment was inadvertently omitted when
they codified labor code
- This is simply a meeting of mind. Itong term employment

ART 296 Probationary period is generally for a period of 6 months.

- You are placed on probation and I will assess your performance

- There are standards in manuals in companies

Q: If you are a probationary employee, can I put you on a probi period for 1 yr
and a half? Sabi ng batas 6 months lang. tatanggapin mob a?

Ex sa covid café. High end café tayo. Dapat you know how to speak French. So in your prbi
period dapat you will learn.

GR: 6 months lang talaga

XPNS:

1. If there is an agreement

So what if 6 months lang talaga. Tapos patapos na. but bagsak ka sa assessment. So I
will have to let you leave but nakiusap ka for second chance. If I agree to extend it,
then it ewill be binding to us
2. There is an agreement to extend probation period
3. With respect to teachers, law mandates a 3 year probation period

Can the employer shorten the period? Ex. Within 3 months galing mo na mag French. Can I
make you regular? OF COURSE! Yung 6 months max lang yan. So pwede. Prerogative of
management.

Another one, probationary contracts in a company.

Probu 1 to probi 2 the probi 3

You cannot go to probi 2 if I ka pumasa sa probi 1

ILLUSTRATION

Let us assume you passs probi 1 but flinked probi 2. You ask me, maam bakit yung iba nasa
probi 3 na . ako wala pa. and I said, oh diba probi 2 ka but after your expiration sa probi 2
contract, di ka pa rin pumasa. Pwede ba yun? Na nag expire na contract niya sa probi 2 tapos
di mo na rehire for the third time. Because sa assessment you did not pass? Is that allowed?

SC had declared in a case. Yolando Mercaddo VS AMA Computer Center. You must remember
na the employee is till under probationary. As a probationary employee you have the right to
know why you failed in the assessment. The reasonable standards must be explained to you.

Di pwede na basta ka na lang sasabihan na sorry di kana pwede pumasok dahil di ka pumasa.
Sso you have to be notified within a reasonable time. And the reasonable standards made
known to ou during the time you were hired as a probational employee.

TERM EMPLOYEES

Employees hired for a specific period. those who are HIRED FOR A SPECIFIC PERIOD, the
arrival of the date specified in the contract of which automatically terminates the employer-
employee relationship.
- Time ends as that indicated in the contract.
- So employer-employee relationship will end

Distinguish from project employment

In project employment there is a specific job or project

- Tied to a specific project ang project employment

- In a project contract, it is the completion of the project which terminates the contract.
- Term is merely descriptive of the project.
- It is not determinative of the employment

In a term employment

- The more important thing there is the period itself

- For ex Jan 2020 to May 2020
- The job their does not matter if finished or not but the time frame matters

Let us go back to project employment

Hanjin case: Indicators of Project Employment is found in Section 2.2(e) and (f) of DOLE
Department Order No. 19, Series of 1993, entitled Guidelines Governing the Employment of
Workers in the Construction Industry, to wit -

“2.2 Indicators of project employment. - Either one or more of the following circumstances,
among others, may be considered as indicators that an employee is a project employee.
(a) The duration of the specific/identified undertaking for which the worker is engaged is
reasonably determinable.
(b) Such duration, as well as the specific work/service to be performed, is defined in an
employment agreement and is made clear to the employee at the time of hiring.
(c) The work/service performed by the employee is in connection with the particular
project/undertaking for which he is engaged.
(d) The employee, while not employed and awaiting engagement, is free to offer his services to
any other employer.
(e) The termination of his employment in the particular project/undertaking is reported to the
Department of Labor and Employment (DOLE) Regional Office having jurisdiction over the
workplace within 30 days following the date of his separation from work, using the prescribed
form on employees' terminations/dismissals/suspensions.
(f) An undertaking in the employment contract by the employer to pay completion bonus to the
project employee as practiced by most construction companies.

So in every project, there must be a termination report.

Q: May a probationary employee be converted to project employee?

A: No. because once they pass the probationary period, the employee becpmes regular after
the probationary period. Because that’s the promise. Cannot be any other such as project
employee. Regular na!

SEASONAL EMPLOYEE

- those HIRED FOR WORK OR SERVICES WHICH IS SEASONAL IN

NATURE, and the employment is for the duration of the season
- example a FARMER
- regular siya dahil necessary yung job
- but only needed for a season such as planting and harvesting season
- SC said in the trend that there is now a category called REGULAR SEASONAL WORKERS

REGULAR SEASONAL WORKER

Where the seasonal employees had been hired repeatedly and continuously to perform the
same tasks or activities for several seasons or even after the cessation of the season, this
length of time may likewise serve as badge of regular employment.

In fact, even though denominated as “seasonal workers,” if these workers are called to work
from time to time and are only temporarily laid off during the offseason, the law does not
consider them separated from the service during the off-season period.

The law simply considers these seasonal workers on leave until re-employed.

Q: How about their CBA Benefits?

Universal Robina Sugar Milling Corporation and Rene Cabati, G.R. No.
186439. 15 January 2014. J Brion.
Issue: IF regular seasonal workers, are they entitled to CBA benefits accorded the regular
employees?
Answer: Complainants are REGULAR SEASONAL WORKERS BUT complainants are NOT entitled
to CBA benefits which are for regular workers only.

CASUAL EMPLOYEES

those who are hired to perform work or service which is MERELY INCIDENTAL to the business
of the employer.

EXAMPLE
Sa Covid Café natin. Ano ang pwedeng casual workers?

- Yung painter, nag paint sa walls, or ang carpenter

- Their job is not necessary but you need them so pwede sila casual

Any casual employee who has rendered at least one (1) year of service, whether it be
continuous or broken, shall be considered a REGULAR EMPLOYEE with respect to the activity for
which he is employed, and his employment shall continue while such activity exists.

Let us put into practical terms. Madali lang yan if continuous.

Papano kung putol putol?

Illustration
For the first three months
Then another five months
Then another 6 months

Has he become a regular? Yes because cumulatively, then nag exceed na sa one year period
for as long as his employment shall continue while such activity exists.

What if iba iba ang work? Painter then nagging driver then nagging dishwasher? Ano ang
kanyang employment classification?

Pareho pa rin, regular. Kasi lumampas na siya ng months.

SOOO!!!

GR: Regular employment. Presumption yan. Burden of proof yan sa part ng employer that the
job is not regular but that another. Written contract is used by employers that the employment
is that other than reguar employment. So either project, seasonal, probational or casual.
XPNS:

2. Ranking
a. Managers
b. Supervisors
c. Rank and file
So it will depend here if you can or not join a union

RIGHT TO SELF- ORGANIZATION

- Political aspect of Labor

- The reason why you want to self organize ay dahil you want to increase the leverage of
bargaining system with the management
- Normally nag cocomply talaga ang employers. But the employees would want to have
some more. Kaya nag oorganize so that they will have a better leverage with the
management.
- So that you can do collective bargaianing

- Existence of ER-EE relationship is CONDITION SINE QUA

NON for the determination of whether or not one may exercise right of self-organization
for purposes of collective bargaining

BUT THERE ARE REQUIREMENTS BEFORE YOU CAN DO COLLECTIVE BARGAINING

1. Who may unionize?

WHO MAY UNIONIZE?

General Rule: Any employee may be eligible to join and be a member of a labor union,
beginning on his first day of service, whether employed for a definite period or not. (Article 277
[c], Labor Code; See also: UST Faculty Union vs. Bitonio)

EXCEPTIONS: WHO CANNOT UNIONIZE --

• Govt employees (incl GOCC with original charters)
• Managerial (distinguish between supervisory employees which can form union but cannot join
with R&F)
• Confidential employees- they are like management because of the doctrine of necessary
implication
• Members of cooperative
• Aliens and employees of diplomatic corps. They will be allowed only when: 1. Alien has a valid
working permit ; and 2. When there is reciprocity meaning in his/her country Filipinos will also
be allowed.

ILLUSTRATION
- In our Covid Café, we have also security guards.
 - So I have paid an agency for the security guards.
- So they are not technically my employees. But that of the security guard agency
-
In that instance, they are employees of an independent contractor. A valid job contracting.
- So security guards are not my employees
Q: are they my employees? Can they join a CBA with me?
A: No.

Ibahin natin yan sa Labor Only Contractor

- There is no presumption of EE relationship

INDEPENDENT CONTRACTOR
- Valid and nagcocomply dun sa requirements
- So his employees are not my employees

Note!
- Di pwede basta basta dapay mag create muna ng union and prove that you went
through a process
- So choose if you want to be an independent union or a federation of union

For Independent Union or Federations/National Unions – will acquire legal personality upon
issuance of certificate of registration

ART. 240 (as amended). Requirements of Registration. - A federation, national union or

industry or trade union center or an independent union shall acquire legal personality and shall
be entitled to the rights and privileges granted by law to legitimate labor organizations upon
issuance of the certificate of registration based on the following requirements:
(a) Fifty pesos (P50.00) registration fee;
(b) The names of its officers, their addresses, the principal address of the labor organization,
the minutes of the organizational meetings and the list of the workers who participated in such
meetings;
(c) In case the applicant is an independent union, the names of all its members comprising at
least twenty percent (20%) of all the employees in the bargaining unit where it seeks to
operate;
(d) If the applicant union has been in existence for one or more years, copies of its annual
financial reports; and
(e) Four copies of the constitution and by-laws of the applicant union, minutes of its adoption or
ratification, and the list of the members who participated in it.”

NOTE
- Mas mdali ang federation dahil mas madali ang requirements
- Advantages incluse support from your head union
- Disadvantage naman ay may ireremit kayo for the union’s support

HOW DO YOU KNOW THE APPROPRIATE BARGAINING UNIT?

- Well classification of employment plays a part there
So example if sa rank and file. Then sila lang.
- Do not forget the at least twenty percent (20%) of all the employees in the bargaining
unit

WHAT IS THE DIFFERENCE BETWEEN A LABOR ORGANIZATION AND A LEGITIMATE

LABOR ORAGNIZATION?

UNION VS APPROPRIATE BARGAIN UNIT

UNION- the politic body

Appropriate bargaining unit- the electoral unit

LOCAL CHAPTER

Requisites:
1. Chapter certificate
2. Names of officers
3. CBL

FILING FOR CERTIFICATION ELECTION

Q: Can a local chapter already file a petition for CE if DOLE had not yet issue a certification?
A: Yes if for purposes of election then a charter certificate ffrom the federation is already
enough

The union mjst be registered with the DOLE,

You have now a LEGAL PERSONALITY

For Independent Union or Federations/National Unions – will acquire legal personality upon
issuance of certificate of registration

WHAT IS THE EFFECT OF REGISTRATION?

The union acquires a legal personality.

You can now demand certain things from your employer.

WHAT IS THE EFFECT IF YOU WILL NOT REGISTER?

Wala. You cannot bargain with the employer. Then you are just a social club and you cannot
talk what you want with the employer.

WHAT ARE YOUR RIGHTS AS A LEGITIMATE LABOR ORGANIZATION?

 1. You can now file a petition for certification election
2. You can prove to me that you represent the majority of the employees
3. You have a right to demand the financial statement of the company
4. ‘you can now own property as an organization

Example you will file a petition for certification election

Q: Can I file any to cancel your petition on account that you have many supervisors in your
union?
A. Several answers. If this is a petition for CE. I cannot question your legal status because
you are already vested with rights as you successfully registered.

MEMORIZE!!! Di lumabas sa bar for two years na so prolly lalabas

“ART. 247. Grounds for cancellation of union registration. – The following may constitute
grounds for cancellation of union registration:

(a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of
the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of
members who took part in the ratification;
(b) Misrepresentation, false statements or fraud in connection with the election of officers,
minutes of the election of officers, and the list of voters;
(c) Voluntary dissolution by the members. (new mode)

NEW MODE:

“ART. 248. Voluntary Cancellation of Registration. – The registration of a legitimate labor

organization may be cancelled by the organization itself. Provided, That at least two-thirds of its
general membership votes, in a meeting duly called for that purpose to dissolve the
organization: Provided, further, That an application to cancel registration is thereafter submitted
by the board of the organization, attested to by the president thereof.”

Q: MAY THE EMPLOYER CAUSE THE CANCEL OF UNION REGISTRATION?

A:

Republic Act No. 9481, Sec. 12. A new provision, Article 258-A is hereby inserted into the Labor
Code to read as follows:
“ART. 271 (new number). Employer as Bystander. - In all cases, whether the petition for
certification election is filed by an employer or a legitimate labor organization, the employer
shall not be considered a party thereto with a concomitant right to oppose a petition for
certification election. The employer’s participation in such proceedings shall be limited to: (1)
being notified or informed of petitions of such nature; and (2) submitting the list of employees
during the preelection conference should the Med-Arbiter act favorably on the petition
REMEMBER

The Employer By-Stander is very strict now.

APPROPRIATE BARGAINING UNIT

- Take out the managers, supervisors, the employees of independent contractors, the
confidential employees, yung matitira ay yung appropriate bargaining unit.
- Papano yung emplayaddo na nadismiss atnag file ng kaso. Is he considered as
employee for all intentions and purposes ane be counted as a member of the Collective
bargaiing unit?
- YES! ART 219 par n of the labor code

CERTIFICATION ELECTION
- Why important?
- You have to prove kasi your majority status

What will you do?

- File a petition for certification election

What is a certification election?

- Step to know who is majority union

How to determine that you are the majority union?

- There are 3 ways

- 1. Certification election – this is the best way.
- 2. Consent Election
- 3. Sole and Exclusive Bargaining Agent or SEBA

Certification Election VS Consent Election

- In consent election, there are two contending unions.
- Both agree just to have elections
- So the govt will not have to step in and decide
- So as simple as may the best union win
- You don’t need the med-arbiter

Direct certification- pinagbabawal na. before kasi allowed ang employer what union to choose.
So bawal na kasi that it ultimately an employees right.

SOLE AND EXCLUSIVE BARGAINING AGENT

- Called before as voluntary recognition
- So may changes dahil di yun nagging successful
- So this is a process of determining through a secret ballot who is the sole representative
of the employees and the bargaining unit for purposes of collective bargaining
Requirements for SEBA
1. NAME AND ADDRESS OF THE LLO
2. NAME AND ADDRESS OF COMPANY
3. BARGAINING UNIT SOUGHT TO BE REPRESENTED
4. APPROXIMATE NUMBER OF EMPLOYEES IN
BARGAINING UNIT
5. MAJORITY OF #4 SUPPORT THE CERTIFICATION
AS SEBA OF THE PETITIONING UNION
6. NO OTHER LEGITIMATE LABOR ORGANIZATION
OPERATING WITHIN THE BARGAINING UNIT

SEBA PROCEDURE IF THERE IS NO CBA (UNORGANIZED) AND ONLY ONE LLO

• REGIONAL DIRECTOR TO CALL FOR CONFERENCE WITHIN FIVE (5) DAYS

• UNION TO SUBMIT NAMES OF EMPLOYEES IN THE APP BARGAINING UNIT WHICH SUPPORT
THE CERTIFICATION AS SEBA, WHICH MUST BE AT LEAST A MAJORITY OF THE NUMBER OF
EMPLOYEES IN THE BARGAINING UNIT
• CERTIFICATION UNDER OATH BY PRESIDENT OF REQUESTING UNION ARE TRUE AND
CORRECT BASED ON PERSONAL KNOWLEDGE

INTER-UNION
CONTROVERSIES

- 2 unions competing yan usually na cancellation of registration or basta sa mga union na

away
ILLUSTRATION

- COVID SCHOOL tayo. Kagagwa lang ng union niyo. Di pa tayo organized or registered.
May isa pang union ASAPA Union.
- SITUATION:
- COVID SCHOOL IS UNORGANIZED
- (NO EXISTING CBA).
- HOWEVER THERE EXISTS TWO
- LEGITIMATE LABOR
- ORGANIZATIONS, PANALO UNION
- AND ASA PA UNION.

- In this particular scene, no existing CBA.

Q: Panalo Union files a petition to declare itself as a sole bargaining union. Yung SEBA ginamit
niya. Will that SEBA procedure be allowed in this case?
A: no! may dalawang union diba? Panalo Union and ASAPA union. So di pwede kasi di siya sole.
What will happen?
The RD once she receives the SEBA will now refer it to the Med Arbiter for certification election.
Q: PANALO union filed for certification election. They can file any time in this case. How many
signatures need niya? Need ba?
A: No! No requirement to prove that there are at least 25% of the members of the appropriate
bargaining unit. Bakit? Eh wala pang collective bargaining agreement eh

SITUATION:
CBA WAS EXECUTED BETWEEN COVID SCHOOL AND MAJORITY UNION PANALO
UNION UNDER THE FOLLOWING TERMS:

A)ECONOMIC TERM FROM 01 JANUARY 2015 TO 31 DECEMBER 2018

B)REPRESENTATION TERM FROM 01 JANUARY 2015 TO 31 DECEMBER 2020.

- Nag CE nanalo ang asapa union.

- Nag bargain tayo
- You have benefits na more than that provided by labor code.Higher tha minimum
wages.
-
Q: when is the freesom period here? Where do you count?
A: Freedom period is the 60 day period prior to the expiration of existing cba. So the answer is
pwedeng November 2 hanggang December 31, 2020.

Q: Who files the certification election within the freedom period?

A: ASAPA UNION SHOULD FILE. THE challenging union. Yung magchachallenge.

Q: Need ba ngayon ipakita ng ASAPA union yung consent signature requirements na 25%?
A: in this instance, yes! Bakit 25? Bakit di 20? Remember all of the unions are presumed to
have 25% membership, then you show na you have more members!

So, asapa union filed the petition for Certification Election. Let us assume na ASAPA complied
with all the requirements.

2nd situation.

SITUATION:
MAJORITY PANALO UNION MOVES TO DISQUALIFY ASA PA UNION, QUESTIONING THE UNION
REGISTRATION OF ASA PA UNION, ON THE GROUND THAT IT HAS BOTH SUPERVISORY AND
CONFIDENTIAL EMPLOYEES IN THEIR RANKS. RULE ON THE MOTION

- So PANALO filed a motion to disqualify ASAPA union. Example may rank and file and
may supervisor employees sa union nila.
- ANSWER: NO. MOTION DENIED.
 - 1. This is not the right venue. If at all. They have legal personality so cannot be
collaterally attacked. So if at all file a cancellation.
- 2. More correct answer, the fact that there are mixed employees. Those mixed like
confidential and supervisors employees will simply be dropped off from the list.

WHAT ARE THE GROUNDS THAT YOU CAN RAISE THEN?

1. That ASAPA Union is not registered. No certificate of registration.
2. That ASAPA filed their registration within the freedom period but they were not able to
show the 25% requirement membership.
3. That ASAPA failed to file within the freedom period. CONTRACT BAR RULE.
4. The 1 year BAR RULE. You cannot file for certification election for 1 year form the
finality of the registration results.

Are government employees covered by Labor Code? No dahil may CSC sila. Even the wages
hindi. Dahil may salaray standardization law.

UNFAIR LABOR PRACTICES

If it is not under ART 259-260 of the Labor Code, then it is not ULP!

STRIKE!!!

2. REQUISITES OF A VALID STRIKE:

(a) Must have a lawful purpose;
(b) Must be conducted through lawful means; and
(c) Must be in compliance with the procedural requirements under the Labor Code

All other forms of strikes which lack either of the three requirements are considered ILLEGAL
STRIKES.

These are all prohibited for lack of valid purpose or failure to comply with procedural
requirements.

RECAPITULATION:
WHAT ARE NON-STRIKEABLE ISSUES?
(a) Violations of CBA which are not gross in character shall be resolved via the Grievance
Machinery; [Article 274, LC]
(b) Inter-union or intra-union disputes [Article 278 (b), LC; Dept. Order No. 9, Rule 12, Sec. 2]
(c) Labor cases on wage orders (Guidelines governing Labor Relations [19 Oct. 1987] issued by
Sec. Drilon; See: Appendix “Y” of Foz’s Labor Code; See also: Article 274, LC)
(d) Those issues which had already been brought to voluntary or compulsory arbitration