06+Labor+Law+RJ

7/30/2019 06+Labor+Law+RJ

1/11

1

LABOR LAW

Recent Jurisprudence

September 14, 2012

Probationary employees can join a union and can vote in a CE

Any EE, whether employed for a definite period or not, shall beginning on the firstday of his/her service, be eligible for membership in any labor organization. In a CEfor the bargaining unit of R&F EEs, all R&F EEs, whether probationary or permanent

are entitled to vote. As long as probationary EEs belong to the defined bargaining

unit, they are eligible to support the petition for CE. (NUWHRAIN-Manila Pavilion

Hotel Chapter v Secretary, 2009)

Confidential Employees

Confidential EEs are those who (1) assist or act in a confidential capacity, (2) topersons who formulate, determine and effectuate management policies in the field

of labor relations. The 2 criteria are cumulative and both must be met.

The exclusion from bargaining units of EEs who, in the normal course of their duties,become aware of management policies relating to labor relations is a principal

objective sought to be accomplished by the confidential EE rule. (Tunay na

Pagkakaisa ng Manggagawa sa Asia Brewery v Asia Brewery, 2010)

As regards the qualification of bank cashiers as confidential EEs, NATURepublicPlanters Bank Supervisors Chapter v Torres declared that they are confidential

employees having control, custody and/or access to confidential matters.

Payroll Master and employees who have access to salary and compensation data areNOT confidential EEs. Their position do not involve dealing with confidential labor

relations information. (San Miguel Foods v SMC Supervisors and Exempt Union,

2011)

20% requirement must be at the time of registration

Art. 234 (c) requires the list of names of all the union members of an independentunion comprising at least 20% of the bargaining unit. This should not be equated

with the list of the workers who participated in the organizational meetings (par

[b]).

Subsequent affidavits of retraction (withdrawal of membership) will not retroact tothe time of the application for registration or even way back to the organizational

meeting. (Eagle Ridge Golf and Country Club v CA, 2010)

A trade union center CANNOT create a chapter A trade union center is any group of registered national unions or federations

organized for the mutual aid and protection of its members; for assisting such

members in collective bargaining or for participating in policy formulation.

A trade union center has no authority to charter directly.


2/11

2

Charter certificate NOT required to be certified under oath

The charter certificate need not be certified under oath by the local unionssecretary or treasurer and attested to by the President.

Considering that the charter certificate is prepared and issued by the national unionand not the local/chapter, it does not make sense to have the local/chapters officers

certify or attest to the due execution of such document. (Samahang Manggagawa saCharter Chemical v Charter Chemical and Coating Corp., 2011)

Mixture of R&F and Supervisory EEs does not negate the unions legitimacy

Voluntary recognition

An ER cannot ignore the existence of a LLO at the time of its voluntary recognition ofanother union. The ER and the voluntarily recognized union cannot, by themselves,

decide whether the other union represented an appropriate bargaining unit.

The ER may voluntarily recognize the representation status of a union inUNORGANIZED establishmentsno SOLE and EXCLUSIVE bargaining

representative. (Sta. Lucia East Commercial Corporation v Hon. Secretary of Labor,2009)

Certificate of Non-Forum Shopping is NOT required in Petition for Certification Election

There is no requirement for CFNS in the Labor Code or in the rules. A certification proceeding, even though initiated by a petition, is not a litigation

but an investigation of a non-adversarial and fact-finding character. Such

proceedings are not predicated upon an allegation of misconduct requiring relief,

but, rather, are merely of an inquisitorial nature. (SAMMA-LIKHA v SAMMA

Corporation, 2009)

Petition for CE

The Secretary of Labor and Employment dismissed the first petition as it was filedoutside the 60-day freedom period. Subsequently, another petition for CE was filed,

this time within the freedom period. Is this later Petition barred?

At the time therefore, the union has no cause of action since they are not yet legallyallowed to challenge openly and formally the status of SMCGC_SUPER as the

exclusive bargaining representative of the bargaining unit. Such dismissal, however,

has no bearing in the instant case since the third petition for certification election

was filed well within the 60-day freedom period. Otherwise stated, there is no

identity of causes of action to speak of since in the first petition, the union has no

cause of action while in the third, a cause of action already exists

Unions legal personality is NOT subject to collateral attack

The legal personality of petitioner union cannot be collaterally attacked in the CEproceedings. A separate action for cancellation of the unions registration/legal

personality must be filed.

As amended by RA9481, the Labor Code now provides that, in CE cases, the ER shallnot be considered a party with a concomitant right to oppose a petition for CE


3/11

3

ER as Bystander

Except when it is requested to bargain collectively, an ER is a mere bystander to anypetition for CE; such proceeding is non-adversarial and merely investigative, for the

purpose thereof is to determine which organization will represent the EEs in their

collective bargaining with the ER. The choice of their representative is the exclusive

concern of the EES;

Whoever alleges fraud/misrepresentation has burden of proof

The charge that a labor organization committed fraud and misrepresentation insecuring its registration is a serious charge that should be clearly established by

evidence and the surrounding circumstances.

The petitioner (party that filed the Petition for Cancellation) has the burden ofproof. (Yokohama Tire Phils. V Yokohama EEs Union, 2010; Heritage Hotel Manila v

PIGLAS-Heritage, 2009)

Signing of Petition for CE is NOT disloyalty

The mere signing of the authorization in support of a Petition for CE before thefreedom period is not sufficient ground to terminate the employment of union

members under the Union Security Clause respondents inasmuch as the petition

itself was actually filed during the freedom period. (PICOP Resources v Taneca,

2010)

5-year term

While the parties may agree to extend the CBAs original five-year term togetherwith all other CBA provisions, any such amendment or term in excess of 5 years will

not carry with it a change in the unions exclusive collective bargaining status. By

express provision of the above-quoted Article 253-A, the exclusive bargaining status

cannot go beyond 5 years and the representation status is a legal matter not for theworkplace parties to agree upon. In other words, despite an agreement for a CBA

with a life of more than 5 years, either as an original provision or by amendment,

the bargaining unions exclusive bargaining status is effective only for five years.

Bargaining Unit

The test of grouping is community or mutuality of interest. There should be only one bargaining unit for EEs involved in dressed chicken

processing and workers engaged in live chicken operations.

Although they see separate and distinct from each other, the tasks of each divisionare actually interrelated and there exists mutuality of interests which warrants theformation of a single bargaining unit. (San Miguel Foods v San Miguel Corp

Supervisors and Exempt Union, 2011)

ULP

Art. 248 (1) and Art. 261 of the Labor Code mean that for a ULP case to becognizable by the Labor Arbiter, and for the NLRC to exercise appellate jurisdiction

thereon, the allegation in the complaint must show prima facie the concurrence of


4/11

4

two thingsgross violation of the CBA and the violation pertains to the economic

provisions of the CBA.

This should not be construed to apply to violations of the CBA which can beconsidered as gross violations per se, such as utter disregard of the very existence of

the CBA itself. When an ER proceeds to negotiate with a splinted union despite the

existence of its valid CBA with the duly certified and exclusive bargaining agent, theformer indubitable abandons its recognition

Bonus in the CBA

Generally, a bonus is not demandable and enforceable obligation. For a bonus to beenforceable, it must have been promised by the ER and expressly agreed upon by

the parties. Given that the bonus is integrated in the CBA, the same partakes the

nature of a demandable obligation. Verily, by virtue of its incorporation in the CBA,

the Christmas bonus due to respondent Association has become more than just an

act of generosity on the part of the petitioner but a contractual obligation it has

undertaken.

Grievance

Only the disputes involving the union and the company shall be referred to thegrievance machinery or voluntary arbitrators.

A federation CANNOT raise a grievance on behalf of members of its local/chapter.Arbitral Award

While an arbitral award cannot per se be categorized as an agreement voluntarilyentered into by the parties because it requires the intervention and imposing power

of the State through the Secretary of Labor when he assumes jurisdiction, the

arbitral award can be considered an approximation of a CBA which would otherwise

have been entered into by the parties, hence, it has the force and effect of a validcontract obligation.

The hold-over principlethe duty of the parties to keep the status quo and tocontinue in full force and effect the terms and conditions of the existing CBA until a

new agreement is reached by the parties applies to an imposed CBA (an arbitral

award).

The law does not provide for any exception nor qualification on which economicprovisions of the existing agreement are to retain its force and effect. Likewise, the

law does not distinguish between a CBA duly agreed upon by the parties and an

imposed CBA.

***

ULP

For a charge of ULP to prosper, it must be shown that the CAB was motivated by illwill, bad faith or fraud or was oppressive to labor or done in a manner contrary to

morals, good customs, or public policy and of course, that social humiliation,

wounded feelings or grave anxiety resulted in suspending negotiations with CABEU-


5/11

5

NFL. Notable, CAB believed that CABEU-NFL was no longer the representative of the

workers. It just wanted to foster industrial peace by bowing to the wishes of the

overwhelming majority of its R&F workers

Union Security Clause

Another cause for termination is dismissal from employment due to theenforcement of the union security clause in the CBA. A stipulation in the CBA authorizing the dismissal of the employees are of equal

import as the statutory provisions on dismissal under the Labor Code, since a CBA is

the law between the company and the union and compliance therewith is mandated

by the express policy to give protection to labor.

In terminating the employment of an EE by enforcing the union security clause, theER needs only to determine and prove that: (1) the USC is applicable; (2) the union

is requesting for the enforcement of the USC and (3) there is sufficient evidence to

support the decision of the union to expel the EE from the union. These constitute

just cause for terminating an EE based on USC of the CBA.

Union Security is a generic term, which is applied to and comprehends closedshop, union shop, maintenance of membership, or any other form of agreement

which imposes upon EEs the obligation to acquire of retain union membership as a

condition affecting employment.

o There is union shop when all new regular EEs are required to join the unionwithin a certain period as a condition for their continued employment.

o There is maintenance of membership shop when EEs, who are unionmembers as of the effective date of the agreement, or who thereafter become

members, must maintain union membership as a condition for continued

employment until they are promoted or transferred out of the bargaining

unit or the agreement is terminated.

o A closed shop may be defined as an enterprise in which, by agreementbetween the ER and his EEs or their representatives, no person may be

employed in any or certain agreed departments of the enterprise unless he or

she is, becomes, and for the duration of the agreement, remains member in

good standing of a union entirely...

The power to dismiss is a normal prerogative of the ER. However, this is not withoutlimitations. The ER is bound to exercise caution in terminating the services of his

EEs especially so when it is made upon the request of a labor union pursuant to the

CBA. Dismissals must not be arbitrary and capricious. Due process must be

observed in dismissing an EE because it affects not only his position but also his

means of livelihood. ERs should therefore respect and protect the rights of their EEs,

which include the right to labor.

There is nothing in law or jurisprudence to prevent an ER and a union fromstipulating that existing EEs are to be included in the coverage of a USC. Even Art.

248 (e) of the Labor Code only expressly exempts old employees from the coverage

of the USC.


6/11

6

STRIKE & PICKETING

To strike is to withhold or to stop work by the concerted action of EEs as a result ofan industrial or labor dispute. The work stoppage may accompanied by picketing by

the striking EEs outside of the company compound. While a strike focuses on

stoppage of work, picketing focuses on publicizing the labor dispute and itsincidents to inform the public of what is happening in the company struck against. A

picket simply means to march to and from the ERs premises

EEs refusal to work on 3 consecutive holidays, prompted by their disagreementwith the management-imposed new work schedule, was considered a strike that

was grounded on a non-strikeable issue, and a violation of the No-Strike Clause in

the CBA.

Placards/Banners may make strike illegal

The messages in the placards/banners may be considered in ruling the validity ofthe strike.

Derogatory statements/accusations that are not related with the issue of the strike,the placards/banners may be considered to make the strike illegal.

In Pari Delicto Rule

When management and union are in pari delicto, the contending parties must bebrought back to their respective positions before the controversybefore the

strike.

Liability of Officers

Distinction between ordinary union members and officers when it comes to illegalstrike

Officersmay be terminated; terminated when he actually commits an illegal actduring the strike and also knowing the strike to be illegal

Membersmay not be terminated by mere participation in the strike; proof mustbe adduced that he participated in an illegal strike/illegal act.

ER may dismiss EEs for illegal acts during a strike even if there is no petition to declare a

strike illegal

The useful of unlawful means in the course of a strike renders such strike illegal. Thefiling of a petition to declare the strike illegal is thus unnecessary. Art. 263 provides

that an ER may terminate EEs found to have committed illegal acts in the course of a

strike.

Illegal Strike

A strike conducted by a union which acquired its legal personality AFTER the filingof its Notice of Strike and the conduct of the Strike Vote is ILLEGAL.

Assumption of Jurisdiction


7/11

7

Art. 263 (g) is both an extraordinary and a preemptive power to address anextraordinary situationa strike or lockout in an industry indispensable to the

national interest. This grant is not limited to the grounds cited in the notice of strike

or lockout that may have preceded the strike or lockout, not is it limited to the

incidents of the strike or lockout that in the meanwhile may have taken place.

As the term assume jurisdiction connotes, the intent of the law is to give the SOLfull authority to resolve matters within the dispute that gave rise to or which aroseout of the strike or lockout; it includes and extends to all questions and

controversies arising from or related to the dispute, including cases over which the

labor arbiter has exclusive jurisdiction.

Termination Due to Strikes

Strikers are not entitled to receive any backwages for the duration of the strike. Exceptions:

o Theres an unconditional offer to return to work and the ER turned downthat offerexcept if the strike is illegal

o Theres a return to work order pursuant to an assumption of jurisdiction bythe SOL [and the ER refused] not sure about this.

Right to due process of all workers without distinction as to the cause of theirtermination

Suspension of Operations/Termination

Not exceed 6 months If exceeded 6 months = termination

When is a formal hearing or conference mandatory?

When requested by the EE in writing Substantial evidentiary disputes exist Company rule or practice requires it When similar circumstances justify it

Confrontation before the barangay council did not constitute first notice. Hearings before

the barangay council do not afford the EE ample opportunity to be represented by counsel

if he so desires. The LGC mandates that in all katarungang pambarangay proceedings, the

parties must appear in person without the assistance of counsel or his representatives.

Reinstatement

Not required that the EE return/reimburse whatever he received duringreinstatement pending appeal even if the order of reinstatement of the LaborArbiter is reversed on appeal.

The reinstatement aspect of the Labor Arbiter order is self-executory. The salaryautomatically accrued from notice of the Labor Arbiters order of reinstatement

until its ultimate reversal by the NLRC or a higher court. Hence, even after the LAs

order has been reversed and there was no reinstatement made, the EE may still get


8/11

8

his accrued wages for that time when he was supposed to be reinstated, even if he

loses in the end.

2 fold test in determining whether an EE is barred from collecting accrued wages:o There must be an actual delaythe order of reinstatement pending appeal

was not executed prior to its reversal

o The delay was not due to the ERs unjustified act or omission. o Writ of execution before LA order of reinstatement

LA order of reinstatement is SELF-EXECUTORY ER is required to submit a report of compliance within 10 calendar

days from receipt of the decision.

If ER refuses to comply, writ of execution will be issued. If ER stillrefuses to comply, contempt.

o LA must have a finding of illegal dismissal before the EE may avail ofreinstatement pending appeal.

o A court can grant the relief warranted by the allegation and proof even if it isnot specifically sought by the injured party. The inclusion of a general prayer

may justify the grant of a remedy different from or together with the specificremedy sought, if the facts alleged in the complaint and the evidence

introduced so warrant.

Suspension for Failure to Remit Boundary

The ERs policy of suspending drivers who fail to remit the full amount of theboundary was fair and reasonable under the circumstances.

An ER has free rein and enjoys a wide latitude of discretion to regulate all aspects ofemployment, including the prerogative to instill discipline on the EEs.

Since the case involves suspension, no need for notice and hearing.Constructive Dismissal

Constructive dismissal occurs when there is cessation of work because continuedemployment is rendered impossible, unreasonable or unlikely as when there is a

demotion in rank or diminution in pay or when a clear discrimination, insensibility

or disdain by an ER becomes unbearable to the EE, leaving the latter with no other

option but to quit.

If there is no quitting, there can be no constructive dismissal. When the ER pre-judged the EEs guilt without proper investigation, and instantly

reported her to the police, there is constructive dismissal.

Backwages The computation of backwages of a probationary EE should not cover the entire

period from the time her compensation was withheld up to the time of her actual

reinstatement. The computation of backwages shall end upon the end of the

probationary employment.

Reinstatement


9/11

9

A transfer of work assignment without any justification thereof, even if the EEshould be presumably doing the same job with the same pay cannot be deemed as

faithful compliance with the reinstatement order.

Disease

Separation pay presupposes that it is the ER who terminates the services of the EEfound to be suffering from a disease. It does not apply to a situation where it is theEE who severe his or employment ties.

Financial Assistance

Even if there is a finding that the EE indeed resigned and was not dismissed, the EEmay still be granted financial assistance on equity considerations.

Floating Status

Off detailing or floating status is not dismissal unless it lasts for more than 6 months A complaint for illegal dismissal filed prior to the lapse of the 6 months period is

premature.

***

Control

Officer v EE

A position must be expressly mentioned in the By-Laws in order to be considered asa corporate officer. Thus, the creation of an office pursuant to or under a by-law

enabling provision is not enough to make a position a corporate officer.

The criteria for distinguishing do not depend on the nature of the position but onthe manner of creation.

2-tier testo Status or relationship of the partieso Nature of the question that is the subject of the controversy

PBA referees are NOT employeeso Contractual stipulations do not pertain to, much less dictate, how and when

the referees will blow the whistle and make calls.

o They merely serve as rules of conduct Talents

o Drivers/cameramen are NOT talentso

They are EEs and should be considered regular EEs.

Job Contracting

Possession of capital will not be enough to be a legitimate contractor. Certificate of registration is not sufficient proof that it is an independent

contractorsimply prevents the legal presumption of being a mere labor-only

contractor from arising.


10/11

10

Termination of Employment of Probationary EEs

Project Employment

2 typeso Within the usual business of the ERo Separate undertaking

If there is continuous rehiring for the same tasks under different projects, the EEshould be considered as a regular EE.

Art 280casual EEs and 1 year periodo 1 year periodcasual EE becomes regularis NOT applicable to project EEso Hence, if the project took more than 1 year to complete, still project EE

Terminationo No advance notice neededo Completion of the project = termination

Probationary & Fixed-Term Contracts for Teachers

3 years / 6 semesters / 9 trimesters Covered by probationary period

Money claims of seafarers

Art 291 is the law governing the prescription of money claims3 yearsWithholding of Wages

Management prerogative does not include withholding of wages Not more than 15 days interval

Writ of Habeas Data

To protect by means of judicial complaint the image, privacy, honor, informationand freedom of information

Does NOT apply to an EE filing a case against an ERRetirement

Result of a bilateral act of the parties May be subject of CBA Cannot be imposed unilaterally

Service Incentive Leave

EEs engaged on task or contract basis or paid on purely commission basis may begranted SIL5 daysArt. 128Visitorial and Enforcement Powers of the SOL

SOL has no jurisdiction to determine the existence of ER-EE relationship Enforcementno legal issue involved; only implementation


11/11

11

VA decision is subject to MR

Even if the decision says it is finalLA and VA

Even termination disputes may be submitted to VA, provided there is agreement bythe parties

VA is dependent on the voluntary submission of the partiesApprenticeship

The expiration of the first agreement and the retention of the EEs was a recognitionby the ER of their training and acquisition of a regular EE status

o The second apprenticeship agreement for a second skill which was not evenmentioned in the agreement is a violation of the Labor Code

Operative Fact

Applicable when a declaration of unconstitutionality will impose an undue burdenon those who have relied on the invalid law.

Not applicable where the declaration of unconstitutionality of Sec. 10 RA8042happened while the illegal dismissal case was pending before the SC

Whatever was declared unconstitutional, Congress cannot revive it.

06+Labor+Law+RJ

Documents

Transcript of 06+Labor+Law+RJ