0:02:45 - 0:11:44

Q: Can you elaborate the distinction between Labor Relations and Labor Standards?

A: When we speak of Labor Standards, it refers to the minimum terms and conditions of
employment wherein the employees are entitled to, to which the employer must comply.
On the other hand, Labor Relations refers to the interactions between the employer and
the employee or their representatives wherein the standards of the terms and conditions
are adjusted or enforced.

Q: What is that mechanism being referred to there?

A:The negotiation for a Collective Bargaining Agreement.

Q: You still remember what i told you before regarding the step or procedure in the negotiation
for a CBA? We all know that the CBA is the means by which these standards terms and
conditions of employment are improved and increase. But inasmuch as labor relations pertain to
the interaction or interralations between employer and employee, well naturally, in the process
of interacting, there is a procedure or step by step in the negotiation for a CBA. So what is that
step by step procedure?

When negotiating for a CBA what is it which the union forms a negotiation would involve the
union on one hand which is the representative of the employees in the bargaining unit, and of
course the employer represented by the management? So what would be the first step?

A: Same as negotiating for salary, the first thing to do would be to submit a proposal. That is
what a union or what is certified as a Collective Bargaining Agent or representative of the
Bargaining Unit does. Ex. The Bargaining unit of Rank and File employees they would submit
proposals.

Q: After submitting the proposal, how would the management react?

A: Upon receipt of the proposal, by way of action, they will submit a counter proposal. This is a
universal step in negotiation. After receiving a counter proposal, parties and the management
will have to sit down just like any negotiation involving members of the panel. The union will
submit a list of authorized representatives. Then negotiation would start.

Q: In order to negotiate for an increase, what are the remedies of government employees
considering that their salary is fixed by the SSL? How do you ask for an increase if
you’re a gov’t employee?

A: The only way the law can be altered, in this case the salary of govt employees as provided
by the SSL is for the amendment of the same and that is by lobbying before the congress the
amendment of the SSL in order to increase what is fixed by SSL.
0:11:45 - 0:20:44

After receiving a counter proposal, parties and the management will have to sit down just like
any negotiation involving members of the panel. The union will submit a list of authorized
representatives. Then negotiation would start.

In our discussion with 2nd part of the definition of labor law, it is not only through negotiation for
CBA wherein standards terms and conditions are improved or increased.

Q: Aside from collective bargaining, what is the other mode by which terms and
conditions are increased? If there is a deadlock or impasse in the negotiation because of
the proposal and counter proposal, parties with their respective representatives known
as the union panel and management panel sit down together at the negotiation table, if
there is a deadlock in the negotiation, what would ensue? What would happen if there
was a deadlock in the negotiation?

A: There would be a concerted activity in relation to the 2 nd part of the definition of labor law
where conditions are improved thru CBA and Concerted activity. Concerted activity will be in the
form of a strike on the part of the union and lockout on part of the management which is only
temporary because of the deadlock or negotiation of parties.

Despite the deadlock or impasse, parties would still endeavor to settle their cases amicably
which will be discussed in contract administration and enforcement.

Q: The first part of Labor Relations is the Declaration of Policies. What are the policies of
the State when it comes to labor relations?

A: ART. 218. Declaration of Policy.

A. It is the policy of the State:

(a) To promote and emphasize the primacy of free collective bargaining and negotiations,
including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial
disputes;

(b) To promote free trade unionism as an instrument for the enhancement of democracy and the
promotion of social justice and development;

(c) To foster the free and voluntary organization of a strong and united labor movement;

(d) To promote the enlightenment of workers concerning their rights and obligations as union
members and as employees;

(e) To provide an adequate administrative machinery for the expeditious settlement of labor or
industrial disputes;
(f) To ensure a stable but dynamic and just industrial peace; and

(g) To ensure the participation of workers in decision and policy-making processes affecting
their rights, duties and welfare.

B. To encourage a truly democratic method of regulating the relations between the employers
and employees by means of agreements freely entered into through collective bargaining, no
court or administrative agency or official shall have the power to set or fix wages, rates of pay,
hours of work or other terms and conditions of employment, except as otherwise provided under
this Code.

Q: What are the differences of the preferential use of voluntary modes of settling
disputes? Is there a distinction between mediation and conciliation? Give example.

A: Yes. Conciliation – acts as a referee but does not make a proposal; Mediation – impartial 3rd
party make proposals for the parties to voluntarily adopt; Arbitration – compulsory (Labor
Arbiter) and voluntary (NCMB) [From Atty. Cacho’s Book]

[Definition from NCMB]

1. Conciliation - conciliation is a mild form of intervention by a neutral third party, the

Conciliator-Mediator, relying on his persuasive expertise, who takes an active role in
assisting parties by trying to keep disputants talking, facilitating other procedural
niceties, carrying messages back and forth between the parties, and to keep things
forward-looking in a situation.
2. Mediation is an intervention through the Conciliator-Mediator, whereby he starts advising
the parties or offering solutions or alternatives to the problems with the end in view of
assisting them towards voluntarily reaching their own mutually acceptable settlement of
the dispute.

Note: Monetary award presupposes that there is already a decision because there is already an
award.

Single Entry Approach (SEnA) Proceedings

- Every time a complaint is filed, before it is raffled to the Labor Arbiter, it would have to undergo
SENA proceedings that would involve conciliation and mediation. It is where the conciliator or
mediator would try to encourage parties to settle the case amicably.

0:20:45 - 0:29:44
Q: In other words, in Conciliation, parties would sit down, and they would discuss
between themselves on how to settle their differences. In Mediation there is already a
resolution on the dispute?
A: Yes. Both the Conciliation and Mediation involve the presence of an impartial third party.
Only in Conciliation, the third-party acts as a referee and helps the parties in threshing out their
differences. In Mediation, the mediator would suggest proposals which the parties may adopt or
not.

But in practice, during SEnA proceedings, before the arbitration branch or in the National
Conciliation and Mediation Board (NCMB), the third-party called the Con-Med, in order to
encourage the parties to settle, apart from explaining the advantages and benefits of settlement,
he will likewise make proposals to the parties.

Q: How about voluntary arbitration? What does a voluntary arbitrator do?

A: A voluntary arbitration is different from Conciliation and Mediation. Conciliation and Mediation
are usually undertaken before the SEnA proceedings. If there is no settlement, that is the time
that the complaint filed by the employee would be elevated to the Complaint Unit of the
Arbitration Branch. Once filed, that is the time that it will be referred to the Labor Arbiter.

Q: What is the nature of the proceedings in Labor Arbiter as opposed to Voluntary

Arbitration?

A: The nature of proceedings in Labor Arbiter is Compulsory because it is required by a

statutory provision. The submission of a dispute is a directive of the law. Voluntary Arbiter will
come into play if the parties fail to settle their differences before the grievance machinery, and
voluntary in a sense that the parties would submit themselves to the voluntary arbitrator. Unlike
in Compulsory arbitration, if there is a complaint, in order for the labor arbiter to acquire
jurisdiction over the person of the employer, upon receipt of the complaint, what the Labor
Arbiter would do is to issue summons. Compulsory because the employer is being summoned
to participate in the proceedings.

Labor cases are fundamentally and principally administrative in nature. As the same with judicial
proceedings before regular courts because the arbitration branch is an administrative body.

0:29:45 - 0:38:44

Q: Just like in regular courts upon receipt of the complaint what the labor arbiter will do is to
issue recursive process of summons, so it is compulsory because the employer is being
summoned to participate in the proceedings. Otherwise, if he ignores the summons or he does
not participate what will happen?

Q: What will happen if the employer does not appear or does not participate in the compulsory
arbitration proceedings before the labor arbiter?
Ans: It will only be based on the allegations and the evidences support of those allegations in
the position paper of the complainant. So, in another words, the case will be decided ex parte.
So, the employer if he ignores the summons he does so at his own risk unlike in voluntary
arbitration.

Voluntary arbitration well as the name or the nomenclature provides voluntary both parties are
in agreement to submit their dispute before the voluntary arbitrator. And well it is therefore only
logical that whatever decision the voluntary arbitrator would render will be binding and final
between the parties after all the parties voluntarily submitted themselves to the jurisdiction of the
voluntary arbitrator. But while generally the decision of the voluntary arbitrator is already final
yet there is an exception it can still be assailed by way of petition of review under rule 43 before
the court of appeals. Unlike before wherein decision of voluntary arbitrator is already final yet by
jurisprudential ethic the supreme court said that it can still be assailed by way of a petition under
rule 43.

Now in conciliation the impartial third-party acts only as a referee between parties and in
mediation this is where mediator would come up with proposals for the parties to agree to adopt
or reject. So it is the fine distinction between mediation and conciliation. But in practice when
you say conciliation and mediation it already a combination of both before the sena (?)

Alright, so any question class with regard to the different modes of the voluntary modes of
setting disputes, voluntary arbitration, mediation and conciliation.

Proceedings before the labor arbitration is already compulsory. Why compulsory? Because if
the employer does not aid (?) the summons served by the labor arbiter the he does so at his
own risk because the case will be decided on the basis of the allegations merely of the
complainant.

Q: Continue with the declaration of policy so far we have already taken up two of them the
promotion of free collective bargaining and negotiation including voluntary arbitration mediation
and conciliation as mode of settling labor and industrial disputes promotion of prepaid unionism
as an instrument for the enhancement of democracy and the promotion of the social justice and
development. So what else?
Ans: The promotion of prepaid unionism to the enhancement of and the promotion of social
justice and development.

Q: That was already taken up earlier but as much you want to go back there can you kindly
elaborate on that.
Ans: It focuses on more on the social justice as provided in the case of calalang vs Williams.
Q: Why is there a need. Why is it imperative that unionism should be promoted as an instrument
of social justice.
Ans: Well we have already discussed this when we delve on the individual intellective rights of
the labor why workers organize and well if an employee act on his on would try to voice his
grievance chances are the employer would just ignore him but if it is already the union which is
the collective voice of the members that is something which the employers cannot just disregard
or set aside so employer is constrained to hear out the grievances as conveyed by the union
and in the process of doing so naturally the union would be able to secure or seek out justice for
each members because we know for a fact that the union usually takes the cut drills ? in behalf
of its members.

Q: What else? Other policies.

Ans: Other policies includes to foster the free and voluntary organization of a strong and united
labor movement. Promotion for the enlightenment of workers concerning their rights and
obligations as union members and as employees.

0:38:45 - 0:47:44

Q: How are members apprised of their rights as union members? Who would inform
them?
Ans: Through the constitution and by-laws of the union. It is the obligation of the officers of the
union to disseminate the constitution and by-laws where the rights of the union members are
laid down.

Q: If there is a dispute among members of the union and officers?

Ans: Intra-union dispute.

[Definition from Department Order 40-04]

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

Q: What is the opposite of union dispute?

Ans: Inter-union dispute

[Definition from Department Order 40-04]

(y)“Inter-Union Dispute” refers to any conflict between and among legitimate labor unions
involving representation questions for purposes of collective bargaining or to any other conflict
or dispute between legitimate labor unions.

Q: Other policies?
Ans: Art. 218 (e) To provide an adequate administrative machinery for the expeditious
settlement of labor or industrial disputes;

Q: What is the function of grievance machinery?

[Definition from DOLE - National Conciliation and Media Board]

GRIEVANCE MACHINERY refers to the mechanism for the adjustment and resolution of
grievances arising from the interpretation or implementation of a CBA and those arising from
the interpretation or enforcement of company personnel policies.

AEC: Usually, the grievance machinery is built in the CBA; it provides for a step-by-step
procedure in the settlement of a dispute pertaining to enforcement of the provision of CBA and
company policy.

If there’s no settlement in the grievance machinery, then the matter is elevated to Voluntary
Arbitration.

Q: How would you elaborate this policy: Art 218 (g) To ensure the participation of
workers in decision and policy-making processes affecting their rights, duties and
welfare.

Q: Give an example:
Ans: Formulation of a code of conduct

Q: What would be the consequence if the employees were not allowed to participate in
the formulation of the code of conduct and the employer implements the provisions?

Ans: *to be continued after the discussion in ULP below*

— Student answered Unfair Labor Practice pero mali yun, AEC asked what is ULP —
Q: What is an unfair labor practice?
[Definition from DOLE - Bureau of Labor Relations]
ULPs are offenses committed by the employer or labor organization which violate the
constitutional right of workers and employees to self-organization. ULP acts are
inimical to the legitimate interests of both labor and management, disrupt industrial
peace and hinder the promotion of healthy and stable labor-management relations.
(Art. 248 of the Labor Code, as amended)

0:47:45 - 0:56:44

AEC: Well, unfair labor practice actually has a technical connotation in labor law. The
unfair labor practices, if committed by the employer, are only confined to those
enumerated under the Labor Code. If there is a violation of the right of the
employees to participate in policy and decision-making processes, it actually would not
amount to unfair labor practice. Perhaps you are invoking unfair labor practice in a
situation like that in its loose sense because it is unfair to the employees if they were
deprived of their right to participate, but actually it does not constitute unfair labor
practice because it does not fall under those acts enumerated by the Labor Code
which would pertain to the violation of the rights of the employees to their right to self
organization like interference or intervention.
 The only instance mentioned there which does not involve invasion, interference, or
intervention would be rights of the workers to their right to self organization is violation
of collective bargaining agreement. But then again, the violation must be gross in
character in order for it to qualify as an unfair labor practice because if it is only a
simple violation, it is an (lag) cognizable by the grievance machinery.

— Student answered Unfair Labor Practice pero mali yun, AEC asked what is ULP —

Ans*: Now the consequence in case there is a deprivation of the rights of the employees to
participate in the formulation for example of the personnel code of conduct. If the provisions
of the same are implemented by the employer, and the employee was found for example guilty
of the administrative offense after observing the provision of the personnel code of conduct is
that it may be assailed before the Labor Arbiter. If the complainant or the employee was not
allowed to participate in the formulation of the personnel code of conduct, the imposition of the
penalty of dismissal or suspension, for example, may be set aside. So that could be the
consequence if there is a violation of this principle of co-determination.

Incidentally, this right to participate in policy and decision-making processes is also known as
the principle of co-determination because this is where the employees are given the right to
participate together with the management with regard to matters which would affect their rights
and welfare.

Q: Can employees, for example, in invoking the principle of co-determination, insist that
a representative from the employees be appointed as member of the Board of Directors
of the company or corporation?

A: No, because under the Labor Code, such is part of the limitation of the principle of
codetermination.

AEC: In other words, this principle of codetermination may be asserted only by the
employees if it would affect their rights and welfare. Demanding a seat in the Board of
Directors wherein what is being tackled before the Board is the direction of company, matters
pertaining to strategy, in furtherance of the primary as well as the secondary purposes laid down
in the Articles of Incorporation – those are purely management prerogative. They do not affect
at all the rights and welfare of the employees. So that is the condition before they can assert this
right to participate in policy and decision-making processes affecting their rights and welfare.

Q: We’re still with the principle of co-determination. One instance, as discussed earlier,
wherein employees can assert their right in the formulation of the personnel code of
conduct. Are there instances wherein they can assert their right to participate?

A: The instances wherein they can assert their right to participate is when the decision made by
the employers affects their rights, duties, and welfare.
AEC: When you say decision of the employer, well, that is only on the side of the employer. It is
a unilateral act of the employer. It does not involve at all the participation of the employees there
because the decision precisely preceded from the employer. So it has to be both.

A: Yes po, Atty. Meaning they should have (lag) with regards to those kinds of decision

When is a decision presupposes that it came from the employer? It is not a joint decision, so it is
something which was dished out, promulgated, or issued by the employer. So it is not joint.
When you say co-determination, it has to be both the employees and the management,
like the formulation of the personnel code of conduct. It requires the participation of the
employees and the employer because the implementation or enforcement of the personnel code
of conduct would ultimately affect the rights of the employees, specifically their right to security
to tenure because when you implement a provision of the personnel code of conduct ….

0:56:45 - 1:05:44

When you implement a provision of the personnel code of conduct, it contains the list of
offenses that can be ascribed against the employee, and if the employee is found guilty,
naturally, corresponding penalty would be imposed. So it affects the rights of the employee.

Q: Other instances wherein the employees can assert their right to participate, aside from the
formulation of the personnel code of conduct.

A: Establishment of the terms and conditions of the employment – Collective Bargaining

Agreement

Interaction between the employer and the employee through the union, which is the negotiation
for a collective bargaining agreement. This is the essence of the principle of co-determination,
because it is undeniable that a collective bargaining agreement will have to be participated in by
two parties – it is an agreement after all – those two parties are the employer and the union.
And the union is the representative of the employees.

The next article would pertain to the Definition of Terms.

1. The Commission here would refer to the National Labor Relations Commission. In
legal parlance, it is likewise sometimes called as the Commission proper.
2. Bureau here would refer to the Bureau of Labor Relations. Correlate this with Article
232 of the Labor Code pertaining to the jurisdiction of the Bureau of Labor Relations.

Earlier, we were talking about inter and intra-union disputes, the jurisdiction of those
labor disputes belong to the Bureau of Labor Relations except in regard to the
implementation or interpretation of the collective bargaining agreements provisions
which shall be subject to grievance procedure and then to voluntary arbitration.
 The guide to those subject matters, breach are cognizable by the grievance machinery.
It is not only limited to the interpretation or enforcement of the provisions of the collective
bargaining agreement and the company personnel policies. Any labor dispute for that
matter may be submitted by the parties to the grievance procedure for as long as
they are in agreement that the subject matter of the labor dispute, even illegal dismissal
cases, may be submitted to the grievance machinery.

3. The Board here would refer to the National Conciliation and Mediation Board
(NCMB). This is where the voluntary arbitrators are assigned. There is a list of voluntary
arbitrators. Parties to a labor dispute, if they want to submit their dispute to voluntary
arbitration, can choose from the list of voluntary arbitrators listed therein. It was created
by Executive Order No. 126, which reorganized the DOLE. The NCMB formulate
policies, develop plans and programs and set standards and procedures relative to the
promotion of conciliation and mediation of labor disputes through the preventive
mediation, conciliation and voluntary arbitration.
4. Council here would refer to the Tripartite Voluntary Arbitration Advisory Council. This
was created by EO 126 and this is attached to the NCMB.

Q: How would you define an employer?

A: "Employer" includes any person acting in the interest of an employer, directly or indirectly.

Q: Example of somebody who is acting in the interest of the employer.

A: Managerial employees. Managerial employees are acting in the interest of the employer.
They are actually the employer themselves which is precisely the rationale. They are not
allowed to join or to form a union. They cannot negotiate with themselves, being the employer.

Q: Can a labor organization be an employer?

A: Yes. Naturally, a labor organization will have to perform administrative functions. They have
to maintain their own office and in doing so, they will have to hire their own staff. In that sense, a
labor organization can become an employer.

1:05:45 - 1:14:44

Now this definition of Er, which includes any person acting in the interest of Employer, directly or
indirectly, aside from that example earlier, where in manageable employees are persons who
are acting in the interest of the Employer, this term employer actually has legal significance.

What is the legal significance of the term employer?

- In the case of the AC Ransom vs. NLRC, the SC had the occasion to invoke the
definition of Employer which will include any person who is acting in the interest of the
employer.
- AC Ransom v NLRC, A decision was rendered against the company who was the Er.
But in the finality of the decision, Er Company already closed shop, there is no way by
 which the decision in favor of the complainant would be enforced. So what the LA did
was to issue the writ of execution against the president of the Corporation. The
President contested the issuance of the writ of execution against him because he was
never included as a party respondent.
- Besides, the LA was contending that it would be in violation of his right to due process
because he was never included as a party respondent. But SC would not hear any of
that because according to SC, the Pres of the company is a person acting in the interest
of the Employer and therefore the Employer himself.

How would you define an Employee?

- A person who exerts labor through physical or mental and any form for a Company.

How about the definition pertaining to the second portion of the Employee under article
219 of the labor code? What does it mean?

- "Employee" includes any person in the employ of an employer. The term shall not be
limited to the employees of a particular employer, unless the Code so explicitly states. 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 substantially equivalent and regular employment.
- The keyword here is if he is still involved in a current labor dispute. It presupposes that
he is contesting his dismissal before the arbitration branch. One of the consequences in
case there is a finding of illegal dismissal is reinstatement, and being entitled to
backwages without loss of seniority right. As if he was not terminated or dismissed
because her dismissal has just been found to be unlawful. And not yet obtained regular
employment elsewhere.

1:14:45 - 1:23:44

Q. How about labor organization?

- “Labor organization” means any union or association of employees which exists in whole
or in part for the purpose of collective bargaining or of dealing with employers
concerning terms and conditions of employment.

Q. A labor organization may be “legitimate labor organization”. What does this mean?
- any labor organization duly registered with the Department of Labor and Employment
and includes any branch or local thereof
-
Q. Does this mean that when a labor organization is not registered in the DOLE, it is an
illegitimate labor organization?
- No. The non-registration does not mean it is “illegitimate;” it simply is unregistered and
has no legal personality.
Q. Distinguish a legitimate labor organization to a labor organization that is not registered with
the DOLE
- If it is not registered, it cannot negotiate for a CBA because only registered Labor Unions
can negotiate for a CBA
- Non-registration would not mean that a Labor Union is illegal or illegitimate. Unregistered
Labor Unions can still organize to ensure the protection of its members, it can still deal
with the employers concerning terms and conditions of employment.

When you say Company Union. There has to be a determination before one can be branded
as a company union. It was called as such because its formation and organization was at the
behest (initiative) of the company. The company employer took an active role in its formation.
This is a form of Unfair Labor Practice because of the participation of the company employer.
The right to self organization should only be confined to the employees. (Till 24:30)

1:23:45 - 1:32:44

If the employer interferes in the formation, organization, or with the right to self-organization, it
will constitute an ULP.

Labor organization which is not duly registered, they can still bill the terms and conditions of
employment with the management, however, they cannot negotiate for CBA. Only a legitimate
labor organization can do that. It is legitimate if duly registered with the DOLE - Bureau of
Relations.

Bargaining Representative. The bargaining representative is the one certified as such in a

certification election.

Certification Election is the process whereby employees in the bargaining unit get to choose
which from among the union would be their duly authorized bargaining agent or representative.

“Agent of such organization whether or not employed by the employer”

- There are instances wherein a federation, a trade union can issue a charter certificate to
employees.
- IOW, once they are issued charter certificate, they are vested with legal personality to
negotiate with their employer for a CBA.
- Federation can issue charter certificate.
- No EE-ER between the federation and establishment.

Unfair Labor Practice

Managerial Employees

Management Prerogatives and its limitation

1:32:45 - 1:41:44

In regard to the implementation and enforcement of company policies, they cannot go beyond
what they have just prescribed. In other words, a common limitation in regard to the exercise of
this management prerogatives must be exercised at all times in good faith.

In the case of St Michaels Institute vs NLRC, in regard to the congregation of the rules
immigration of the school, they must be fair and reasonable. When it comes to personal actions
like assignment, transfer, and power to impose discipline, they must exercise good faith.

In hiring employees generally, this is something unsuited because, in the selection of

employees, management has the sole discretion or determination to choose from among the
pool of applicants or whom they deemed to be qualified and possess all the necessary
qualifications for the position but if there is a collective bargaining agreement and there is a
union security clause there and the union security clause pertains to closed shop then there a
limitation with regard to the management prerogative to hire because, in a closed shop
stipulation, employers are mandated to hire only union members. They must remain as
members, otherwise, if they resign as union members, they can be terminated. However, there
are exceptions.

Freedom of religion. In the case of Victoriano v. Elizalde Rope Workers' Union, wherein during
the effectivity of the CBA, RA 3350 was promulgated which will exempt members of religious
sects which prohibit their members from joining a labor organization. This is an exception under
closed shop stipulation that management is mandated to hire only union members.

This management prerogative or rights can be exercised by managerial employees by

formulation of management policies subject to limitations meaning that they must be fair and
reasonable.

1. Hire employees with limitations under closed-shop stipulations or other security clauses
included in the CBA.
2. Transfer - must be made in good faith. Limitation if it could result in geographical mislocation
where it is already capricious and whimsical on the part of the employer.
3. Suspend layoff recall discharge or discipline employees – a prerogative of management to
impose discipline. Must be exercised in good faith.

How about a Supervisory employee?

The function is merely recommendatory. In the exercise of prerogative, to impose discipline,
they can only recommend imposing disciplinary action but the final say is still the managerial
employee. Then, the rest will fall on the rank-and-file employees.

Other kinds of employees include as well contractual, casual, probationary, and independent
contractors.
Contractual – duration of employment period indicated in the contract
Probationary – trial run usually as a period of 6 mos.; test if has what it takes to become a
regular employee(teachers – 3 years or 3 consecutive Sem)
Project employees – by project basis
Casual – not usually in the line of business of the employer

1:41:45 - 1:50:44

I’m just saying that aside from managerial, supervisory, rank and file, there are other kinds of
employees such as contractual which are actually defined by the contractual employment and
the duration of the employment is for the period indicated in the employment contract.

A probationary employee, on the other hand, is on the trial ground usually for a period of 6
months, wherein the probationary employee is put to test whether he has what it takes to
become a regular employee. This wall period is 6 months but for teachers or faculty members
under the Education Act of 1982, the probationary employment period of teachers is for 3
consecutive years or 6 consecutive semesters.

And then we have private employees whose employment is dependent on the completion of the
project such that when the project is completed, then their employment likewise ceases.

And then casual employment, those who are hired to perform activities which are not necessary
and desirable to the usual day or business of the employer

However, if they have been employed for at least 1 year, their employment would ripen into one
of regular for as long as such activity exists.

Those are the different kinds of employees.

And then we have the definition of voluntary arbitrator,

-is any person accredited by the Board- the board here is the National Conciliation and
Mediation Board.

- or any person named or designated in the collective bargaining agreement because the
parties can already designate a voluntary arbitrator in their CBA, so that they will not have to
choose anymore from among the list of mediators of the voluntary arbitrators in the national
conciliation and mediation board.

It says here that in the process of selecting, there is a procedure agreed upon in the collective
bargaining agreement or
-a voluntary arbitrator can likewise prefer to any occasion that may be authorized by the
Secretary of the Department of Labor and Employment to act as voluntary arbitrator upon the
written request and agreement of the parties to a labor dispute.

Strike means any temporary stoppage of work by the concerted action of employees as a result
of an industrial or labor dispute. During the period of a strike, the employment relationship
between the parties is suspended because the work stoppage caused by this concerted activity.

Lock out, if union has a strike or weapon. Lock out is the counterpart weapon of the
management. It means, any temporary refusal of an employee to furnish work as a result of an
industrial or labor dispute.

Internal Union Dispute will refer to all disputes or grievances arising from any violation of or
disagreement over any provision of the constitution and by-laws of a union, including any
violation of the rights and conditions of union membership provided under the code.

Also, earlier, we were talking about the disputes between or among union members and union
officers and it is usually caused by the violation of the provision of the constitution and by-laws
or the rights and conditions of membership in the union.

And then we have, strike area, it means any establishment, warehouses, depots, plants or
office, including the sites or premises used as runaway shops- when you say runaway shop, it is
called as such because in order to circumvent the constitutional right of the union to stage a
strike and in order to frustrate the effort of the union in resorting to this concerted activity on the
ground of any of the causes of a strike, causes by way it would involve deadlock or impasse in
the negotiation for collective bargaining agreement and commission of unfair labor practice,
those are grounds for staging a strike.

Those are the definition of terms which we are going to encounter from time to time and instead
of referring to these departments or agencies or branches in its entirety, we’ll just refer them to
their shortcut names like the Board which means the National Conciliation Board, the
Commission which means it is the National Labor and Relations Commission.

Any question class

1:50:45 - 1:59:44

Could be a definition of terms especially those which we discuss extensively like the definition of
the employer and the employee, the labor dispute. The labor dispute, we have that yet. We
have not yet discussed the labor dispute. Labor dispute class as defined here.
So “labor dispute" includes any controversy concerning terms, tenure or conditions of
employment, or concerning the association or representation of persons in negotiating, fixing,
maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of
whether the disputants stand in the proximate relation of employer and employee. Now of
particular importance here is the last portion of the definition, which is regardless of whether the
dispute whether the disputants stand in the proximate relation of employer and employee? So,
would you care to explain? What does that mean? Anybody?

Student: What is the question Atty.? And there is this last portion of the definition where it says
that regardless of whether the disputants stand in the approximate relation of employer and
employee. So, it means that the As a rule, there can only be a labor dispute. If there is an
employer-employee relationship, However, in this last portion there can still be a labor dispute
even if there is no employer-employee relationship because apparently, this is what this last
phrase implies. It says regardless of whether the disputants stand in approximate relation
between employer and employee, So, what do you mean by that? The last paragraph goes as
independent contractors: Would you give us an example?

Student Ans: under those with agencies like security guards or those who are in construction.

Atty: In a Legitimate job contracting arrangement like in a security agency, for example, a labor
dispute can best exemplify this last phrase. Not regardless of whether we dispute, we study the
proximity relation of employer and employee. In the case of security for example, for security
guards requested to be, in regular status, considered as a regular employee. Atty: So, the
security guard is asking to be regularized? Yes, cannot be regularized (as the principal or
employer will answer that he cannot be regularized) because they are not in a regular EE-ER
relationship.

Atty: well, if you're going to use this example of the case of a security guard I mentioned before,
classic or a concrete example of an allegedly, it independent job, contracting arrangement, is in
regard to the security services, and janitorial services, messenger services because well, their
principal are not engaged in a particular line of work the only instance wherein the cause of
action involving regularization of agency-assigned employees is performing work, which is
necessary and desirable in the useful, be very of the principle. That is where labor disputes
involving regularization would arise. Providing Security Services, the duties and responsibilities,
of the role of a security guard are something which is not necessarily desirable, in the useful
trade or business of the principal. So, there is no way that a security guard could be absorbed
as a regular employee. Unless of course the principal is likewise engaged in providing Security
Services. But then again, if it is engaged in providing Security Services then why still hire an
agency for that purpose. So, for sure, peace upon would engage a Security Agency for its
Security Services, not one which is engaged in providing security services. So, there's no way
by which a security guard can be absorbed as a regular employee.
Do you understand what I'm saying? This kind of Labor dispute. A security guard will get
involved in that situation. So, what kind of Labor dispute? Give an example involving a security
guard who was assigned by the agency to its client. This is why we're talking about the last
portion of the division of labor disputes, and we said that there can still be a labor dispute, even
if there is no EE-ER relationship.

1:59:45 - 2:08:44

Q: Last portion of the definition of labor dispute, wherein we said that there can still be a
labor dispute even if there is no employer-employee relationship. Reciter cited an
example of an independent job contracting arrangement involving security services. Give
a labor dispute example wherein the principal is involved despite not being an EER party.
A: Underpayment, non-payment.

Q: Why is the principal necessarily involved in that labor dispute? If the cause of action
is underpayment or non-payment — for example, the salary of the security guard?
A: Principal, the indirect employer, and the security agency, employer of the guard, are
solidarily liable to the employee. Even if the principal already paid the security agency for the
service fee but the agency is not paying the security guards assigned to the principal — it can
still be held liable due to solidarily liable.

This is what is meant by the last phrase, “regardless of whether the disputants stand in the
proximate relation of employer and employee.” Generally, labor disputes would exist only if
there is an EER but the definition of labor dispute is not only confined to parties in an EER like
in independent job contracting arrangements. Again, because of solidary liability of the service
provider and the principal

Aside from underpayment and non-payment, another cause of action is security of

tenure or regularization BUT that will only happen if the agency employee is performing
work necessary and desirable to the usual trade or business of the principal.

Runaway shop, this is in relation to right to strike: As a rule, the strike can only be staged in
the work premises or within the vicinity. Some employers — in order to circumvent the right of
the employees to strike — would remove its machinery/equipment and transfer it elsewhere.
This is what we call “runaway shop.”

It is a runaway shop because the employer just run away with his machinery/equipment. It
improvises to continue with operation and ultimately defeat the purpose of the strike.
Nonetheless, the area where the machinery/equipment was transferred to can still be
considered a strike area. Employees can still stage a strike

We are not talking about liability here but a mechanism done by some employers to try to
circumvent the right of employees to strike.
2:08:45 - 2:17:44

Q: Venue of worker’s right to strike

• May only be in the work premises/vicinity.

Q: Which between the commission and the bureau has jurisdiction over intra-union
disputes?

• Intra-union dispute: Within the union, between or among its members and officers, or violations
of their constitutional bylaws.

• Inter-union dispute: ??? (puro uhm lang 😭)

Commission

• Original jurisdiction: may issue provisional reliefs, has juris over decisions of the LA, can issue
TRO or injunction.
• Appellate jurisdiction: may appeal decisions of the LA when raised.
• Always involves the employer.

BLR (Bureau of Labor Relations)

• Take cognizance of matters involving union matters, this does not involve employers.

Q: Runaway Shop

• When employers move their machineries/office in order to continue on with their business
without being affected by the strike.
• By removing the machineries/office or transferring to another place, the employer is removing
employee’s constitutional right to strike, or to stage a strike (Sec 3, Art 13, 1987 Constitution).
• Part of the collective rights of laborers/union is their right to stage a strike, they can ask for
damages (NLRC) if their right is hampered upon by the employer.

2:17:45 - 2:23:28

In the application of this control test, what you have to find out is whether the employer had a
participation in the process by which the desired result is achieved.

Because if the employer has, there is an element of control..

Unlike in a situation wherein the employer is hands-off when it comes to the means, manner,
and method of undertaking such process, and his only interest is the end result or outcome of
the process being undertaken on his own by the independent contractor.
In selection and engagement, if the employer has an active participation or role in the
recruitiment process, employer put an ad on social media or newspaper, employer was the one
who set the qualifications for the positions to be filled up, employer gets to interview the
applicant, that is part of the recruitment proces, it can be established that the employer
underwent all these process or procedure, then there is EE-ER existing between the parties.

Payment of wages and economic test. It is when the employer is the one giving compensation
or salary to the employee, but then again, unlike the control test, this is not conclusive because
the manner or method of compensating for the service or labor of another is not really
determinative in ascertaining whether there is EE-ER. Like for example, in a Pakyaw or
commission arrangement.

Power to Dismiss. Naturally, if there is no EE-ER, why would the employer impose disciplinary
action against somebody. Only the employer can exercise this right to discipline his employees.
If the termination letter came from the employer, while there is that presumption that once there
is EE-ER, why would the employer terminate somebody who is not an employee of the
employer.

The enumerated cases here are demonstrative of the four-fold test, I will leave them up to you.