2014 Bar Examination Coverage

VIII. Procedure and Jurisdiction

A. Labor Arbiters 1. Jurisdiction

Nature of jurisdiction

v The jurisdiction of labor arbiters is original and exclusive in nature; they do not have appellate jurisdiction.

v The cases that the labor arbiter can hear and decide are employment-related. Where there is no employer-employee relationship and no issue is involved which may be resolved by reference to the LCP, other labor statutes or any CBA, it is the RTC that has jurisdiction.

Cases under the jurisdiction of LAs

v Art. 224 of the LCP provides that labor arbiters have jurisdiction over the following cases:

1. Unfair labor practice (ULP) cases; 2. Termination disputes (or illegal dismissal cases); 3. Cases that workers may file involving wages, rates of pay, hours of work

and other terms and conditions of employment, if accompanied with claim for reinstatement.

4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;

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

6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.000 ) regardless of whether accompanied with a claim for reinstatement.

7. Monetary claims of overseas contract workers arising from employer-employee relationship under the Migrant Workers Act as amended.

8. Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to RA 6727 (in organized establishments, jurisdiction is vested with voluntary arbitrators)

9. Enforcement of compromise agreements when there is non-compliance by any of the parties pursuant to Art. 227 of the LCP, as amended; and

10. Other cases as may be provided by law. v Money claims falling within the original and exclusive jurisdiction of the labor

arbiters may be classified as follows: 1. Any money claim, regardless of amount, accompanied with a claim for

reinstatement (which involves a termination case); or 2. Any money claim, regardless of whether accompanied with a claim for

reinstatement, exceeding the amount of P5,000.oo per claimant (which does not necessarily involve termination of employment)

Jurisdiction of LAs vis--vis NLRC

v NLRC only exercises exclusive appellate jurisdiction over cases decided by the LAs over cases which the LAs have original and exclusive jurisdiction.

v The NLRC cannot have appellate jurisdiction if a claim does not fall within the exclusive original jurisdiction of the LA.

v Labor arbiters however exercise concurrent jurisdiction with the NLRC with respect to contempt cases.

Labor Arbiter v. Regional Director

v Under Art. 129, jurisdiction of the Regional Director is limited to claims for recovery of wages, simple money claims and other benefits provided that:

(1) the claim must arise from employer-employee relationship; (2) the claimant does not seek reinstatement; and (3) the aggregate money claim of each employee does not exceed P5,000.00

v The Labor Arbiter exercises jurisdiction over all other claims arising from employer-employee relations including those of persons in domestic or household service involving an amount not exceeding P5,000, whether or not accompanied with a claim for reinstatement.

Contempt powers

v Labor arbiters, concurrent with the NLRC, exercise contempt powers. The Chairman or any commissioner or labor arbiter may summarily adjudge guilty of direct contempt any person committing any act of misbehavior in the presence of or so near the Chairman or any Commissioner or Labor Arbiter as to obstruct or interrupt the proceedings before the same, including disrespect toward said officials, offensive acts towards others, or refusal to be sworn or to answer as a witness or to subscribe to an affidavit or deposition when lawfully required to do so. (Sec. 1, Rule IX, 2011 NLRC Rules of Procedure

v Labor arbiters may also cite any person for indirect contempt. (Sec. 2, ibid)

Injunction v The 2011 NLRC Rules do not grant injunction power to the labor arbiters. Art. 218 of

the Labor Code grants injunctive power only to the Commission which obviously refers to the NLRCs various divisions and not to labor arbiters.

2. Reinstatement pending appeal

Effect of perfection of appeal on execution v The perfection of an appeal shall stay the execution of the decision of the labor

arbiter except execution for reinstatement pending appeal. (Sec. 3, Rule XI of 2011 Rules)

v Art. 223 of the LCP is clear that an award by the Labor Arbiter for reinstatement shall be immediately executory even pending appeal and the posting of a bond by the employer shall not stay the execution for reinstatement. (Pioneer Texturizing Corp. v. NLRC, GR No. 118651, [1997])

Effect of failure or refusal to immediately reinstate even pending appeal

v Labor arbiter shall immediately issue a writ of execution, even pending appeal, directing the employer to :

(1) immediately reinstate the dismissed employee either (a) physically or (b) in the payroll; and

(2) to pay the accrued salaries as a consequence of such non-reinstatement. (Sec. 9, Rule XI, 2011 NLRC Rules)

v Even if the order of reinstatement is reversed on appeal, it is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of the appeal until reversal by the higher court. On the other hand, if the employee has been reinstate during the appeal period and such reinstatement order is reversed with finality, the employee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period. (Pfizer v. Velasco, GR No. 117467,[2011])

v Unless there is a restraining order, it is ministerial upon the labor arbiter to implement the order of reinstatement and it is mandatory on the employer to comply therewith. (Garcia v. PAL, GR No. 164856, [2009])

3. Requirements to perfect appeal to NLRC

Appeal is perfected when v The appeal is perfected when:

1. Filed within the reglementary period of 10 calendar days from receipt if it involves a decision, award or order of the labor arbiter, or 5 calendar days when it involves a decision or resolution of the regional director.

2. Verified by the appellant himself in accordance with Sec. 4, Rule 7 of the Rules of Court, as amended

3. In the form of a memorandum of appeal which shall state the grounds relied upon and the arguments in support thereof, the relief prayed for, and with a statement of the date the appellant received the appealed decision, resolution or order;

4. In 3 legibly typewritten or printed companies

5. Accompanied by (i) proof of payment of the required appeal fee; (ii) posting of cash or surety bond by the employer if the decision involves a monetary award equivalent in amount to the monetary award, (iii) a certificate of non-forum shopping; and (iv) proof of service upon other parties. (Sec. 4, Rule VI, 2011 Rules)

v Mere notice of appeal without complying with the aforementioned requisites shall not stop the running of the period for perfecting an appeal.

Grounds for filing appeal

v If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter or Regional Director;

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

v If made purely on questions of law; and/or v If serious errors in the findings of facts are raised which, if not corrected would cause

grave or irreparable damage or injury to the appellant. (Sec. 2, Rule VI, 2011 Rules)

Bond is required for perfection of appeal v In case the decision of the Labor Arbiter or Regional Director involves a monetary

award, an appeal by the employer may be perfected only upon posting of a bond. (Sec. 6, Rule VI, 2011 Rules)

What are the forms of the appeal bond

v It shall either be in the form of cash deposit or surety bond equivalent in amount to the monetary award, exclusive of damages and attorneys fees. (Sec. 6, Rules VI, 2011 Rules)

Who may issue a surety bond

v It shall be issued by a reputable bonding company duly accredited by the Commission or the Supreme Court and shall be accompanied by original or certified true copies of:

1. A joint declaration under oath by the employer, his counsel, and the bonding company, attesting that the bond posted is genuine, and shall be in effect until final disposition of the case;

2. An indemnity agreement between the employer-appellant and bonding company;

3. Proof of security deposit or collateral securing the bond, provided, that a check shall not be considered as an acceptable security;

4. A certificate of authority from the Insurer Commission; 5. Certificate of registration from the SEC; 6. Certificate of authority to transact surety business form the Office of the

President; 7. Certificate of accreditation and authority from the Sc; and 8. A notarized board resolution or secretarys certificate from the bonding

company showing its authorized signatories and their specimen signatures. (Sec. 6, Rule VI, 2011 NLRC)

Period within which a cash or surety bond shall be valid and effective

v From the date of deposit until the case is finally decided, resolved or terminate, or the award satisfied. This condition shall be deemed incorporated in the terms and conditions of the surety bond, and shall be binding on the appellants and the bonding company. (Sec. 6, Rule VI, 2011 NLRC)

Effect if bond is found to be irregular or not genuine

v The Commission shall cause the immediate dismissal of the appeal, and censure or cite in contempt the responsible parties and their counsels, or subject them to reasonable fine or penalty. (Sec. 6, Rule VI, 2011 Rules)

Reduction of bond, when allowed

v Generally, the appeal bond may not be reduced. v However, reduction of the appeal bond may be allowed on (1) meritorious grounds

and (2) only upon the posting of a bond in a reasonable amount in relation to the monetary award.

v The mere filing of a motion to reduce bond without complying with the requisites shall not stop the running of the period to perfect an appeal.

What constitutes reasonable amount; the Mcburnie Rule v To ensure the provisions of Section 6, Rule VI of the NLRC Rules that give parties the

chance to seek a reduction of the appeal bond are effectively carried out, without however defeating the benefits of the bond requirement in favor of a winning litigant, all motions to reduce bond that are filed with the NLRC shall be accompanied by the posting of a cash or surety bond equivalent to 10% of the monetary award that is subject of the appeal, which shall provisionally be deemed the reasonable amount of the bond in the meantime that an appellants motion is pending resolution by the Commission. Only after the posting of a bond in the required percentage shall an appellants period to perfect an appeal under the NLRC Rules be deemed suspended.

v The percentage of the bond that is set by this guideline is merely provisional. The NLRC retains its authority and duty to resolve the motion and determine the final amount of bond that shall be posted by the appellant, still in accordance with the standards of meritorious grounds and reasonable amount.

v Should the NLRC after considering the motions merit, determine that a great amount or the full amount of the bond needs to be posted by the appellant, then the party shall comply accordingly. The appellant shall be given a period of 10 days from notice of the NLRC order within which to perfect the appeal by posting the required appeal bond. (Andrew Mcburnie v. Eulalio Ganzon, GR Nos. 178034 , 178117 and GR No. 186984-85, [2013])

B. National Labor Relations Commission (NLRC) 1. Nature

The NLRC v The NLRC is an administrative body with quasi-judicial functions and the principal

government agency that hears and decides labor-management disputes; it is attached to the DOLE solely for program and policy coordination.

Allocation of powers and functions

v En Banc o Promulgating rules and regulations governing the hearings and disposition

of cases before any of its divisions and regional branches. o Formulating policies affecting its administration and operations. o On temporary or emergency basis, to allow cases within the jurisdiction of

any division to be heard and decided by any other division whose docket allows the additional workload and such transfer will not expose litigants to unnecessary additional expense.

v Division (8 Divisions with 3 members) o Adjudicatory o All other powers, functions and duties o Exclusive appellate jurisdiction over cases within their respective territorial

jurisdiction.

2. Jurisdiction

2 Kinds of Jurisdiction v Exclusive original jurisdiction

o Certified labor disputes or likely to cause a strike or lockout in an industry indispensable to national interest, certified to it by the SLE or the President for compulsory arbitration

o Injunction in ordinary labor disputes to enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which if not restrained or performed forthwith may cause grave or irreparable damage to any party

o Injunction in strikes or lockouts under Art. 264 of the LCP o Contempt cases

v Exclusive appellate jurisdiction o All cases decided by the labor arbiter under Art. 217 (b) of the LCP and Sec.

10 of RA 8042 (Migrant Workers Act); o Cases decided by the Regional Offices of DOLE in the exercise of its

adjudicatory function under Art. 129 of the Labor Code over monetary claims

of workers amounting to not more than P5,000.000 and not accompanied by claim for reinstatement.

Powers of the NLRC

v Rulemaking power - promulgation of rules and regulations: o Governing disposition of cases before any of its division/regional offices o Pertaining to its internal functions o As may be necessary to carry out the purpose of the LC.

v Power to issue compulsory processes (administer oaths, summon parties, issue subpoenas)

v Power to investigate matters and hear disputes within its jurisdiction (adjuidicatory powers)

v Contempt power v Ocular inspection v Power to issue injunctions and restraining orders

2. Effect of NLRC reversal of Labor Arbiters order of reinstatement

Reinstated employee who collects wages during period of appeal is not required to reimburse v Even if the order of reinstatement is reversed on appeal, it is obligatory on the part of

the employer to reinstate and pay the wages of the dismissed employee during the period of the appeal until reversal by the higher court. On the other hand, if the employee has been reinstate during the appeal period and such reinstatement order is reversed with finality, the employee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period. (Pfizer v. Velasco, GR No. 117467,[2011])

3. Remedies

Judicial review of NLRC decisions v Decisions of the NLRC may be reviewed through a petition for certiorari under Rule

65 of the Rules of Court v This should be initially filed with the Court of Appeals in strict observance of the

doctrine on the hierarchy of courts as the appropriate forum for the relief desired. The Court of Appeals is procedurally equipped to resolve unclear or ambiguous factual finding, aside from the increased number of its component divisions. (St. Martin Funeral Home v. NLRC, GR No. 130866 [1998]).

Injunction or temporary restraining order (TRO)

v These are orders which may require, forbid, or stop the doing of an act. The power of the NLRC to enjoin or restrain from any or all prohibited or unlawful acts under Art. 218 of the LCP can only be exercised in labor disputes.

v A restraining order is generally regarded as an order to maintain the subject of controversy in status quo until the hearing of an application for a temporary injunction. (BF Homes v. Reyes, GR No.L-30690 [1982]).

v Only the following may issue a TRO: o The President (Art. 263(g), LCP) o Secretary of Labor (Art. 263 (g), LCP) o NLRC (Art. 218, LCP)

v Art. 218 of the LCP limits the grant of injunctive power to the NLRC. The LA is excluded statutorily. Hence, no NLRC Rules can grant him that power.

4. Certified cases

Certified Cases, defined v There are cases certified or referred to the Commission for compulsory arbitration

under Art. 264 (g) of the LCP dealing with national interest cases. v A national interest dispute may be certified to the NLRC even before a strike is

declared since Art. 263 (g) of the LC does not require the existence of a strike, but only of an industrial dispute. (GSISEA v. CIR, GR No. L-18734 [1961])

Function of NLRC in certified cases

v When sitting in compulsory arbitration certified to by the Secretary of Labor, the NLRC is not sitting as a judicial court but as an administrative body charged with the

duty to implement the order of the Secretary. As an implementing body, its authority did not include the power to amend the Secretarys order. (UST v. NLRC and UST Faculty Union, GR No. 89920 [1990]).

Effect of defiance from certification order

v Non-compliance with the certification order of the Secretary shall be considered as an illegal act committed in the course of the strike or lockout and shall authorize the Commission to enforce the same under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking out employer of backwages, damages and/or other affirmative relief, even criminal prosecution against the liable parties. (Sec. 4, Rule VIII, 2011 Rules)

Procedure in deciding certified cases

1. Unless there is a necessity to conduct a clarificatory hearing, the Commission shall resolve all certified cases within 30 calendar days from receipt by the assigned Commissioner of the complete records, which shall include the position papers of the parties and the order of the Secretary denying the motion for reconsideration of the certification order, if such motion has been filed.

2. Where a clarificatory hearing is needed, the Commission shall, within five days from receipt of the records, issue a notice to be served on the parties through the fastest means available, requiring them to appear and submit additional evidence, if any.

3. Notwithstanding the necessity for a clarificatory hearing, all certified cases shall be resolved by the Commission within 60 calendar days from receipt of the complete records.

4. No motion for postponement or extension shall be entertained. (Sec. 5, Rule VIII, 2005 Rules)

C. Bureau of Labor Relations Med-Arbiters 1. Jurisdiction (Original and appellate)

Functions and Jurisdiction

v Union matters v Collective bargaining registry and v Labor education

The BLR no longer handles all labor management disputes. Jurisdiction over these are now exercised by other offices such as:

(a) Dole Regional Offices (b) Office of the Secretary of Labor (c) NLRC (d) POEA (e) OWWA (f) SSS-EC (g) RTWPB (h) NWPC (i) Regular courts over intra-corporate disputes

Med-Arbiters

v An officer in the Regional Office or Bureau authorized to hear, conciliate and decide representative cases or assists in the disposition of intra or inter-union disputes.

Cases that fall within the BLRs jurisdiction

v Inter-union disputes v Intra-union disputes v Other related labor relations disputes

Coverage of inter/intra-union disputes

v Conduct or nullification of election of union and workers association officers v Audit/accounts examination of union or wokers association funds v Deregistration of CBAs v Validity/invalidity of union affiliation or disaffiliation v Validity/invalidity of acceptance/non-acceptance for union membership v Validity/invalidity of voluntary recognition

v Opposition to application for union or CBA registration v Violations of or disagreements over any provision of the constitution and by-laws of

union or workers association v Disagreements over chartering or registration of labor organizations or the

registration of CBAs v Violations of the rights and conditions of membership in a union or workers

association; v Violations of the rights of LLW, except interpretation of CBAs v Validity/invalidity of impeachment/expulsion/suspension or any disciplinary action

meted against any officer and member, including those arising from non-compliance with the reportorial requirements under Rule V

v Such other disputes or conflict involving the rights to self-organization, union and CB

o Between and among LLO and o Betweeng and among members of a union or workers association. (Sec. 1,

Rules XI, Book V, IRR as amended by DO 40-F-03) Other related relations disputes, defined

v Any conflict between: o A labor union and the employer; or o A labor union and a group that is not a LO; or o A labor union and an individual who is not a member of such union.

v Cancellation of registration of unions and workers associations filed by individual/s other than its members or group that is not a LO.

v A petition for interpleader involving labor relations. [Sec. 2, Rule XI, Book V, IRR as amended by DO 40-F-03)

Who may file a complaint or petition involving intra/inter-union disputes v A legitimate labor organization or its members. (Sec. 5, Rule XI, DO. 40-03) v If the issue involves the entire membership, the complaint must be signed by at least

30% of the entire membership of the union. v If the issues involve a member only, only the affected member may file the

complaint. Appeal of decisions in an inter/intra-union dispute

v A decision in an inter/intra-union dispute may be appealed from. v The decision may be appealed by any of the parties within 10 days from receipt

thereof. v The decision is appealable to the:

o BLR if the case origination from the Med-Arbiter or Regional Director o Secretary of Labor if the case originated from the BLR.

The extent of the BLRs authority

v It may hold a referendum election among the members of a union for the purpose of determining whether or not they desire to be affiliated with a federation.

v But the BLR has no authority to: o Order a referendum among union members to decide whether to expel or

suspend union officers o Forward a case to the Trade Union Congress of the Philippines for arbitration

and decision.

Administrative functions of the BLR v Regulation of the labor unions v Keeping the registry of labor unions v Maintenance of a file of the CBA v Maintenance of a file of all settlements or final decisions of the SC, CA, NLRC and

other agencies on labor disputes Effects of filing or pendency of inter/intra-union dispute and other labor relations disputes

v The rights, relationships and obligations of the party-litigants against each other and other parties-in-interest prior to the institution of the petition shall continue to remain during the pendency of the petition and until the date of the decision rendered therein. Thereafter, the rights, relationships, obligation of the party-

litigants against each other and other parties-in-interest shall be governed by the decision ordered.

v The filing or pendency of any inter/intra-union disputes is not a prejudicial question to any petition for certification election, hence it shall not be a ground for the dismissal of a petition for certification of election or suspension of the proceedings for the certification election. (Sec. 3, Rule XI, DO. 40-03)

D. National Conciliation and Mediation Board 1. Nature of proceedings Alternative modes of settlement of labor disputes under Art. 211 of LCP

v Voluntary arbitration v Conciliation v Mediation

Nature of proceedings before NCMB

v The proceedings are non-litigious. Mandatory conciliation-mediation

v All issues arising from labor and employment shall be subject to mandatory conciliation-mediation. The Labor Arbiter or the appropriate DOLE agency or office that has jurisdiction over the dispute shall entertain only endorsed or referred cases by the duly authorized officer. (Art. 228(a), as amended by RA 10396)

v The exceptions are: (a) when grievance machinery and voluntary arbitration; and (b) when excempted by the Secretary of Labor.

v Any or both of the parties involved in the dispute may pre-terminate the conciliation-mediation proceedings and request referral or endorsement to the appropriate DOLE agency or office which has jurisdiction over the dispute, or if both parties so agree, refer the unresolved issues to voluntary arbitration. (Art. 228 (b), as amended by RA 10396)

Arbitration, defined

v It is the submission of a dispute to an impartial person for determination on the basis of evidence and arguments of the parties. The arbiters decision or award is enforceable upon the disputants. It may be voluntary (by agreement) or compulsory (required by statutory provision) (Luzon Development Bank v. Assn of Luzon Devt Bank Employees, GR No. 120319 [1995]).

v The court cannot fix resort to voluntary arbitration. Resort to voluntary arbitration dispute should not be fixed by the court, but by the parties relying on their strengths and resources.

2. Conciliation vs. Mediation

Conciliation Mediation is conceived of as a mild form of intervention by a neutral third party

Is a mild intervention by a neutral third party

The conciliatior-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 generally being a good fellow who tries to keep things calm and forward-looking in a tense situation

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.

It is the process where a disinterested 3rd party meets with management and labor, at their request or otherwise, during a labor dispute or in CB conferences, and by cooling tempers, aids in reaching an agreement.

It is when a third party studies each side of the dispute and then makes proposals for the disputants to consider. The mediator cannot make an award nor render a motion.

Legal basis of conciliation and mediation v Sec. 3 of Art 13 of the Constitution provides that [T]he State shall promote xxx the

preferential use of voluntary modes of settling disputes including conciliation and shall ensure mutual compliance by the parties thereof in order to foster industrial peace.

Conciliation and mediation, who may avail

v Any party to a labor dispute, either the union or management, may seek the assistance of the NCMB or any of its Regional Branches by means of formal request for reconciliation and preventive mediation. Depending on the nature of the problem, a request may be filed in the form of consultation, notice of preventive mediation or notice of strike/lockout.

Request for conciliation and mediation, where filed

v An informal or formal request for conciliation and mediation service can be filed at the NCMB Central Office or any of its Regional Branches. There are at present 14 regional offices of the NCMB which are strategically located all over the country for the convenient use of prospective clients.

3. Preventive mediation

Preventive mediation, defined v Refers to the potential labor dispute which is the subject of a formal or informal

request for conciliation and mediation assistance sought by either or both paties or upon the initiative of the NCMB to avoid the occurrence of an actual labor dispute.

Notice for preventive mediation, who may file

v Any certified or duly recognized bargaining representative may file a notice or declare a strike or request for preventive mediation in cases of bargaining deadlocks and ULPs. The employer may file a notice or declare a lockout or request for preventive mediation in the same cases. In the absence of a certified or duly recognized bargaining representative, any LLO in the establishment may file a notice, request preventive mediation or declare a strike, but only on grounds of ULP. (Sec. 3, Rule IV, the NCMB Manual of Procedure)

v If the notice was filed not by the Union, but by its individual members, the NCMB has no jurisdiction to entertain it. Only a certified or duly recognized bargaining agent may file a notice or request for preventive mediation.

v Morever, the notice or request may not be filed by the Federation on behalf of its local chapter. A local union does not owe its existence to the federation with which it is affiliated. It is a separate and distinct voluntary association owing its creation to the will of its members. Mere affiliation does not divest the local union of its own personality, neither does it give the mother federation the license to act independently of the local union. It only gives rise to a contract of agency, where the former acts in representation of the latter. Hence, local unions are considered principals while the federation is deemed merely their agent (Insular Hotel Employees Union NFL v. Waterfront Insular Hotel Davao, GR Nos. 174040-41 [2010]).

Valid issues for notice of strike/lockout or preventive mediation

v A notice of strike or lockout may be filed on ground of ULP acts, gross violation of the CBA, or deadlock in CBAs. A complaint on any of the above ground must be specified in the NCMB Form or the proper form used in the filing of complaint.

v In case of preventive mediation, any issue may be brought before the NCMB Central Office or its regional offices for conciliation and possible settlement through a letter. This method is more preferable than a notice of strike/lockout because of the non-adversarial atmosphere that pervades during the conciliation conferences.

Advantages of conciliation and mediation

v Conciliation and mediation is non-litigious/non-adversarial, less expensive and expeditious. Under this informal setup, the parties find it more expedient to fully ventilate their respective positions without running around with legal technicalities, and in the course thereof, afford them a wider latitude of possible approaches to the problem.

Binding effect of agreement

v The parties are bound to honor any agreement entered into by them. It must be pointed out that such an agreement came into existence as a result of painstaking efforts among the union, management, and the conciliator-mediator. Therefore, it is only logical to assume that the conciliator assigned to the case has to follow up and monitor the implementation of the agreement.

Conciliation and mediation during actual strike or lockout

v An actual strike or actual lockout may be subject to continuing conciliation and mediation services. In fact, it is at this critical stage that such conciliation and mediation services by fully given a chance to work out possible solution to the labor dispute. With the ability of the conciliator-mediator to put the parties at ease and place them at a cooperative mood, the final solution of all the issues involved may yet be effected and settled.

Conciliation and mediation still possible even when assumed or certified to the NLRC

v Parties are not precluded from availing of the services of an NCMB Conciliator-Mediator as the duty to bargain collectively subsists until the final resolution of all issues involved in the dispute. Conciliation is so pervasive in application that, prior to a compulsory arbitration award, the parties are encouraged to continue to exhaust all possible avenues of mutually resolving their dispute, especially through conciliation and mediation services.

E. Dole Regional Directors

Jurisdiction v Under Art. 129 of the Labor Code, the Regional Directors or any of the duly

authorized hearing officers of DOLE have jurisdiction over claims for recovery of wages, simple money claims and other benefits, provided that:

1. The claim must arise from employer-employee relationship; 2. The claimant does not seek reinstatement; and 3. The aggregate money claim of each employee does not exceed P5,000.00

v In the absence of any of those requisites, it is the Labor Arbiter who shall have the jurisdiction over the claims arising from employer-employee relations, except claims for Employees Compensation, SSS, PhilHealth, and maternity benefits, pursuant to Art. 217.

Adjudicatory power of the RDs

v The Regional Director or any of his duly authorized hearing officer is empowered through summary proceeding and after due notice, to hear and decide cases involving recovery of wages, and other monetary claims and benefits, including legal interests.

F. DOLE Secretary 1. Visitorial and enforcement powers

Powers of the Secretary v Visitorial powers v Enforcement powers v Appellate or power to review

Visitorial powers

v Visitorial powers constitutes: o Access to employers records and premises at any time of the day or night,

whenever work is being undertaken o To copy said records o Question any employee and investigate any fact, condition or matter which

may be necessary to determine violations or which may aid in the enforcement of the LC and of any LC, wage order, or rules and regulations issued pursuant thereto.

v Instances where visitorial powers may be exercised under the LCP: o Inspect books of accounts and records of any person or entity engaged in

recruitment and placement, require it to submit reports regularly on

prescribed forms and act in violations of any provisions of the LC on recruitment and placement. (Art. 37)

o Have access to employers records and premises to determine violations of any provisions of the Labor Code on recruitment and placement. (Art. 128)

o Conduct industrial safety inspections of establishments. (Art. 165) o Inquire into the financial activities of LLO and examine their books of

accounts upon the filing of the complaint under oath and duly supported by the written consent of at least 20% of the total membership of the LO concerned.

Enforcement powers

v Issue compliance orders v Issue writs of execution for the enforcement of their orders, except in cases where

the employer contests the findings of the labor officer and raise issues supported by documentary proof which were not considered in the course of inspection

v Order stoppage of work or suspension of operation when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to health and safety of workers in the workplace

v Require employers to keep and maintain such employment records as may be necessary in aid to the visitorial and enforcement powers

v Conduct hearings within 24 hours to determine whether: o An order for stoppage of work or suspension of operations shall be lifted or

not; and o Employer shall pay the concerned employees their salaries in case the

violation is attributable to his fault. (As amended by RA 7730); (Guico v. Secretary, GR No. 131750 [1998])

Violations under Art. 128 of the LC

v Obstruct, impede, delay or otherwise render ineffective the orders of the SLE or his authorized representatives

v Any government employee found guilty of, or abuse of authority, shall be subject to administrative investigation and summary dismissal from service.

Limitations to other courts

v In relaition to enforcement orders issued under Art. 128 of the LCP, no inferior court or entity shall:

o Issue a temporary or permanent injunction or restraining order; or o Assume jurisdiction over any case.

Instances when enforcement powers may not be used

v Case does not arise from the exercise of visitorial power v When employer-employee relationship ceased to exist at the time of the inspection v If employer contests the finding of the labor regulation officer and such contestable

issue is not verifiable in the normal course of inspection.

No power to determine existence of employer-employee relationship v The visitorial and enforcement powers of the Secretary comes into play only in

cases when the relationship of employer-employee still exists. The Secretarys power does not apply in two instances, namely: (a) where the employer-employee relationship has ceased; and (b) where no such relationship has ever existed. The question of employer-employee relationship becomes a battle of evidence, the determination of which should be comprehensive and intensive and therefore best left to the specialized quasi-judicial body that is the NLRC (Peoples Broadcasting v. Secretary of Labor, GR No. 179652, [2009]).

2. Power to suspend/ effects of termination

Power to suspend effects of termination v Under Art. 277(b) of the LC, the Secretary may suspend the effects of the termination

pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the DOLE before whom such dispute is pending that the termination may cause serious labor dispute or is in implementation of a mass layoff.

v Suspension of the effects of termination under Art. 277(b) is applicable where there is a showing that the termination may cause serious labor dispute within the

company; Art. 263 (g) of LC on assumption of jurisdiction is applicable in case of strike in establishments affecting national interest, not just the company.

3. Assumption of jurisdiction Assumption of jurisdiction over a labor dispute

v When there is a labor dispute causing or likely to cause a strike affecting national interest, the Secretary on his own initiative or upon petition by any of the parties, may either assume jurisdiction or certify the dispute to the NLRC for compulsory arbitration.

v Art. 263 (g) of the LC is both an extraordinary and preemptive power to address an extraordinary situation (a strike or lockout in an industry indispensable to the national interest). As the term assume jurisdiction connotes, the intent of the law is to give the Secretary full authority to resolve all matters within the dispute that gave rise to or which arose out 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 (Bagong Pagkakaisa ng Manggagawa ng Triumph International v. Secretary, GR No. 167401, [2010]).

Effect of assumption or certification

v It automatically enjoins the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of the assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmits all workers under the same terms and conditions prevailing before the strike or lockout.

Assumption of jurisdiction may be exercised without necessity of prior notice or hearing

v The rationale for Secretarys assumption of jurisdiction can justifiably rest on his own consideration of the exigency of the situation in relation to the national interests (Capitol Medical Center v. Trajano, GR No. 155690 [2005]).

4. Appellate jurisdiction

Cases within the appellate jurisdiction of the Secretary v Appeal from and adverse decision of the POEA (Sec. 1, Part VII, Rule V, 2003 POEA rules

and Regulations; Eastern Midterranean Maritime v. Surio, GR No. 154213, [2012]). v Appeal the order or results of a certification election on the ground that the Rules

and Regulations or parts thereof established by the Secretary for the conduct of election have been violated. (Art. 259, LC)

v A review of cancellation proceedings decided by the BLR in the exercise of its exclusive and original jurisdiction (Abbot Laboratories Philippines v. Abbott Laboratories Employees Union, GR No. 131374 [2000]).

Cases not within the appellate jurisdiction of the Secretary

v Decisions of the BLR rendered in the exercise of its appellate power to review the decision of the Regional Director in a petition to cancel the unions certificate of registration, said decisions being final and inappealable.

v Decisions of the RD involving petitions for examination of union accounts. It is the BLR which exercises appellate jurisdiction in such case (Barles v. Bitonia, GR No. 120270 [1999]).

5. Voluntary arbitration powers

Powers of the Secretary in voluntary arbitration v The Secretary may authorize any official to act as voluntary arbitrator upon the

written request and agreement of the parties to a labor dispute (Art. 212 (n), LCP). v He shall also approve, upon recommendation of the NCMB the guidelines in

administering the voluntary arbitration fund. (Art. 276 (f), LC) G. Grievance Machinery and Voluntary arbitration 1. Subject matter of grievance

Grievance, defined v Any question by either the employer or the union regarding the interpretation or

application of the CBA or company personnel policies or any claim by either party that the other party is violating any provision of the CBA or company personnel policies.

Grievance machinery

v 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. It is part of the continuing process of CB.

Grievance procedure

v It is the internal rules of procedure established by the parties in their CBA with voluntary arbitration as the terminal step, which are intended to resolve all issues arising from the implementation and interpretation of their CBA.

v Refers to the system of grievance settlement at the plant level as provided in the CBA. It usually consists of successive steps starting as the level of the complainant and his immediate supervisor and ending, when necessary, at the level of the top union and company officials.

Subject matter of grievance

v Any grievance arising from: o Interpretation or implementation of the CBA; and o The interpretation or enforcement of company personnel policies.

v Art. 217 (c) of the LC requires labor arbiters to refer cases involving the implementation of CBAs to the grievance machinery provided threin and to voluntary arbitration. Likewise, Art. 260 of the LC clarifies that such disputes must be referred first to the grievance machinery and, if unresolved, within seven day, they shall automatically be referred to voluntary arbitration (Miguela Santuyo v. Remerco Garments Manufacturing, GR No. 174420 [2010]).

2. Voluntary arbitrator a. Jurisdiction

v The arbitrator is expected to decide only those questions expressly delineated by the submission agreement. Nevertheless, the arbitrator can assume that he has the necessary power to make a final settlement since arbitration is the final resort for the adjudication of the disputes (Ludo and Luym Corp v. Saornida, GR No. 174420 [2010]).

Cases within the jurisdiction of the voluntary arbitrator

v Original and exclusive jurisdiction over: o All unresolved grievances arising from the:

Implementation or interpretation of the CBA Interpretation or enforcement of company personnel policies.

o Wage distortion issues arising from the application of any wage orders in organized establishments

o Those arising form interpretation and implementation of productivity incentive programs under RA 6971

o Violation of the CBA provisions which are not gross in character are no longer treated as ULP and shall be resolved as grievances under the CBA

o Any other labor disputes upon agreement by the parties including ULP and bargaining deadlock. (Art. 262, LC)

v Gross violation of CBA provisions shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement.

v Under Art. 217, it is clear that a LA has original and exclusive jurisdiction over termination disputes. However, under Art. 261, a VA has original and exclusive jurisdiction over grievances arising from the interpretation or enforcement of company policies. As a general rule then, termination disputes should be brought before the LA, except when the parties unmistakably express that they agree to submit the same to voluntary arbitration (Negros Metal Corporation v. Armelo Lamayo, GR No. 186557 [2010]).

NLRC and Dole has no jurisdiction over disputes under the jurisdiction of the voluntary arbitrator

v NLRC and DOLE has no jurisdiction over disputes, grievances and matters under the exclusive and original jurisdiction of the voluntary arbitrators.

v They should immediately dispose and refer the same to the grievance machinery or voluntary arbitration provided in the CBA.

v The parties may choose to submit the dispute to voluntary arbitration proceedings before or at the stage of compulsory arbitration proceedings.

b. Procedure How initiated

v Submission agreement where the parties define the disputes to be resolved v Demand notice invoking the collective agreement arbitration clause

Voluntary arbitrator

v Any person accredited by the NCMB as such v Any person named or designated in the CBA by the parties to act as their VA v One chosen with or without the assistance of the NCMB, pursuant to a selection

procedure agreed upon in the CBA v Any official that may be authorized by the Secretary to act as VA upon the written

request and agreement of the parties to a labor dispute. (Art. 212 (n), LC) Powers of voluntary arbitrator

v Hold hearings v Receive evidence v Take whatever action necessary to resolve the dispute including efforts to effect a

voluntary settlement between parties. (Art. 262-A, LC)

Nature of power of VA v Arbitrators by the nature of their functions, act in a quasi-judicial capacity (BP 129, as

amended by RA 9702) where a question of law is involved or there is abuse of discretion, courts will not hesitate to pass upon review of their acts.

Selection of voluntary arbitrator/panel

v The parties in a CBA shall designate in advance a VA/panel, preferably from the listing of qualified Vas duly accredited by the NCMB, or

v Include in the agreement a procedure for the selection of such VA or panel of Vas, preferably from the listing of qualified Vas duly accredited by the NCMB.

v In case parties fail to select one, the NCMB shall designate the VA panel based on the selection procedure provided by the CBA (Manila Central Line Free Workers Union v. Manila Central Line Corp, GR No. 109383 [1998]).

v Labor arbiters may be designated as voluntary arbitrators for there is nothing in the law that prohibits LAs from also acting as voluntary arbitrators as long as the parties agree to have him hear and decide their dispute. (ibid)

Effect of award of voluntary arbitrator

v The decision or award of the voluntary arbitrator acting within the scope of its authority shall determine the rights of the parties and their decisions shall have the same legal effects as judgment of the courts. Such matters of fact and law are conclusive.

c) Remedies Appeal

v Generally, decisions of VA are final and executory after 10 calendar days from receipt of the copy of the award or decision by the parties. (Art. 262-A, LC)

v Art. 262-A deleted the word unappealable from Art. 263. It makes the VA award final and executory after 10 calendar days from receipt of the copy of the award or decision by the parties. Presumably, the decision may still be reconsidered by the VA on the basis of a motion for reconsideration duly filed during that period. (Albert Teng v. Alfredo Pahagac, GR No. 169704 [2010])

v However, appeal may be made to the CA via Rule 43 of the Rules of Court within 15 days from the date of receipt of VAs decision. (Luzon Devt Bank v. Assn of Luzon Devt Bank Employees, GR No. 120319 [1995])

v As a VA acts in a quasi-judicial capacity, there is no reason why the VAs decisions involving interpretation of law should be beyond the SCs review. Administrative officials are presumed to act in accordance with law, yet the SC will not hesitate to pass upon their work where a question of law is involved or where a showing of abuse of authority or discretion in their official acts is properly raised in petitions for certiorari (Continental Marble Corporation v. NLRC, GR No. L-43825 [1988])

H. Court of Appeals 1. Rule 65, RoC Remedy of a party aggrieved by a decision of the NLRC

v File a petition for certiorari (Rule 65) which should be initially filed with the CA in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired. The CA is procedurally equipped to resolve unclear or ambiguous factual finding, aside from the increased number of its component divisions. (St. Martin Funeral Home v. NLRC, GR No. 130866 [1998])

Period within which petition for certiorari must be filed

v It must be filed within 60 days from notice of the judgment or from notice of the resolution denying the petitioners motion for reconsideration. (Sec. 4, Rule 65 of the Rules of Civil Procedure)

I. Supreme Court 1. Rule 45, Rules of Court Appeal from judgment or final order or resolution of the CA

v A party desiring to appeal may file with the Supreme Court a verified petition for review on certiorari under Rule 45 within fifteen days from notice of the judgment, final order or resolution appealed from (Sea Power Shipping Enterprises v. CA, GR No. 138270 [2001])

Policy of the Supreme Court in appeals in labor cases

v The Supreme Court is very strict regarding appeals filed outside the reglementary period for filing the same. To extend the period of the appeal is to delay the case, a circumstance which could give the employer the chance to wear out the efforts and meager resources of the worker that the the latter is constrained to give up for less than what is due him. (Firestone Tire and Rubber Co v. Firestone Tire and Rubber Co. Employees Union, GR No. 75363, [1992])

J. Prescription of Actions

Rules

Subject Prescriptive Period ULP 1 year from accrual of such ULP; otherwise

forever barred (Art. 290, LC) Money claims GR: 3 years from the time the cause of action

accrued; otherwise, forever barred. (Art. 291, LC) Except: If there is promissory estoppel

All money claims accruing prior to the effectivity of the LC

Within one year from the date of effectivity, in accordance with IRR; otherwise, forever barred.

Union funds After 3 years from the date of submission of the annual financial report to the dole or from the date the same should have been submitted as required by law, whichever comes earlier. (Sec. 5, Rule II, Book VII, Omnibus Rules Implementing the LC)

Illegal dismissal cases 4 years which commences from the date of formal dismissal (Mendoza v. NLRC, GR No. 122481 [1998])