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H. PROCEDURE AND JURISDICTION

1.LABOR ARBITER

a.Jurisdiction Q: What is the distinction between the jurisdiction of the labor arbiter (LA) and the National Labor Relations Commission (NLRC)?

A: The NLRC has exclusive appellate jurisdiction

on all cases decided by the LA. The NLRC does not have original jurisdiction on

the cases over which the LA have original and exclusive jurisdiction.

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

What is the nature of jurisdiction of labor arbiters (LAs)?

A: It is original and exclusive. LAs have no appellate jurisdiction.

Q: What are the cases falling under the jurisdiction of labor arbiters (LAs)?

A: Exclusive and original jurisdiction to hear and decide the following cases involving all workers:

ULP cases Termination disputes If accompanied with a claim for

reinstatement, those that workers file involving wages, rates of pay, hours of work and other terms and conditions of employment

Claims for actual, moral, exemplary and other forms of damages arising from Er‐ Ee relations

Cases arising from any violation of Art. 264, including questions involving the legality of strikes and lockouts;

Except claims for Employment Compensation, Social Security, Philhealth and maternity benefits, all other claims arising from Er‐Ee relations, including those of persons in domestic or household service, involving an amount exceeding P5000 regardless of whether accompanied with a claim for reinstatement

Monetary claims of overseas contract workers arising from Er‐Ee relations under the Migrant Worker’s Act of 1995 as amended by RA 10022

Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to RA 6727

Enforcement of compromise agreements when there is non‐compliance by any of the parties pursuant to Art. 227 of the Labor Code (LC), as amended; and

Other cases as may be provided by law

Note: Although the provision speaks of exclusive and original jurisdiction of LAs, the cases enumerated may instead be submitted to a voluntary arbitrator by agreement of the parties under Art. 262 of the LC. The law prefers voluntary over compulsory arbitration.

Q: What is the nature of the cases which the labor arbiter (LA) may resolve?

A: The cases that an LA can hear and decide are employment related. Where no Er‐Ee relationship exists between the parties and no issue is involved which may be resolved by reference to the LC, other labor statutes, or any collective bargaining agreement, it is the RTC that has jurisdiction. (Lapanday Agricultural Dev’t. Corp v. CA, G.R. No. 112139, Jan.31, 2000)

The LA has jurisdiction over controversies involving Ers and Ees only if there is a “reasonable causal connection” between the claim asserted and the Er‐ Ee relations. Absent such link, the complaint is cognizable by the regular court. (Eviota v. CA, G.R. No. 152121, July 29, 2003)

Q: Do labor arbiters exercise concurrent jurisdiction with the NLRC?

Yes, with respect to contempt cases. What are the cases referred to grievance machinery and voluntary arbitration?

Disputes arising from the:

Interpretation or implementation of the

CBA Interpretation or enforcement of company

personnel policies

What is the extent of the jurisdiction of the labor arbiter (LA) if there are unresolved matters arising from the interpretation of the CBA?

A: GR: LAs have no jurisdiction over unresolved or unsettled grievances arising from the interpretation or implementation of the CBA and those arising from the interpretation or enforcement of company personnel policies.

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XPN: Actual termination disputes

Note: Where the dispute is just in the interpretation, implementation or enforcement stage of the termination, it may be referred to the grievance machinery set up by the CBA or by voluntary arbitration. Where there was already actual termination, i.e., violation of rights, it is already cognizable by the LA. (Maneja v. NLRC, G.R. No. 124013, June 5, 1998)

Q: Does the use of the word “may” in the provisions of the Grievance Procedure allow the alternative of submitting the case before the labor arbiter (LA)?

A: Yes. The use of the word “may” shows the intention of the parties to reserve the right to submit the illegal termination dispute to the jurisdiction of the LA, rather than to a voluntary arbitrator. Petitioner validly exercised his option to submit his case to a LA when he filed his complaint before the proper government agency. In other words, the CA is correct in holding that voluntary abitration is mandatory in character if there is a specific agreement between the parties to that effect. It must be stressed however that, in the case at bar, the use of the word “may” shows the intention of the parties to reserve the right of recourse to LAs. (Vivero v. CA, G.R. No. 138938, Oct.24, 2000)

Q: What are the cases which do not fall under the jurisdiction of the labor arbiters (LA)? LAs have no jurisdiction over the ff:

Foreign governments (JUSMAG‐Phils. v. NLRC, G.R. No. 108813, Dec. 15, 1994)

Int’l agencies (Lasco v. NLRC, G.R. Nos. 109095‐109107, Feb. 23, 1995)

Intra‐corporate disputes which fall under P.D. 902‐A and now falls under the jurisdiction of the regular courts pursuant to the new Securities Regulation Code (Nacpil v. IBC, G.R. No. 144767, Mar. 21, 2002)

Executing money claims against government (Dept of Agriculture v. NLRC, G.R. No. 104269, Nov. 11, 1993)

Cases involving GOCCs with original charters which are governed by civil service law, rules or regulations (Art. IX‐B, Sec.2, No.1, 1987 Constitution)

Local water district (Tanjay Water District v. Gabaton, April 17, 1989) except where NLRC jurisdiction is invoked (Zamboanga

City Water District v. Buat, G.R. No. 104389, May 27, 1994)

The aggregate money claim does not exceed P5000 and without claim for reinstatement (Rajah Humabon Hotel, Inc. v. Trajano, G.R. Nos. 100222‐23, Sep.14, 1993)

Claim of employee (Ee) for cash prize under the Innovation Program of the company, although arising from Er‐Ee relationship, is one requiring application of general civil law on contracts which is within the jurisdiction of the regular courts (SMC v. NLRC, G.R. No. 80774, May 31, 1988)

Cause of action based on quasi‐delict or tort which has no reasonable connection with any of the claims enumerated in Art.217 of the LC (Ocheda v. CA, G.R. No. 85517, Oct. 16, 1992)

Complaint arising from violation of training agreement (Singapore Airlines v. Pano, G.R. No. L‐47739, June 22, 1983)

FASAP, the sole and exclusive bargaining representative of the flight attendants, flight stewards and pursers of PAL, and respondent PAL entered into a CBA incorporating the terms and conditions of their agreement for the years ‘01‐ ‘05. Sec. 144, Part A of the CBA provides that compulsory retirement shall be 55 for females and 60 for males. They filed an action with the RTC claiming that the CBA provision is discriminatory and hence unconstitutional. The RTC issued a TRO. The appellate court ruled that the RTC has no jurisdiction over the case at bar. Whether RTC has jurisdiction over the petitioners' action challenging the legality of the provisions on the compulsory retirement age contained in the CBA?

A: Yes. The subject of litigation is incapable of pecuniary estimation, exclusively cognizable by the RTC, pursuant to Sec. 19 (1) of BP Blg. 129, as amended. Being an ordinary civil action, the same is beyond the jurisdiction of labor tribunals.

Not every controversy or money claim by an employee (Ee) against the employer (Er) or vice‐ versa is within the exclusive jurisdiction of the LA. Actions between Ees and Er where the Er‐Ee relationship is merely incidental and the cause of action precedes from a different source of obligation is within the exclusive jurisdiction of the regular court. Here, the Er‐Ee relationship between the parties is merely incidental and the cause of action ultimately arose from different sources of obligation, i.e., the Constitution and CEDAW. (Halaguena vs. PAL Incorporated, G.R. No. 172013, Oct. 2, 2009)

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Who has the exclusive appellate jurisdiction over all cases decided by Labor Arbiters? The NLRC.

What is the effect of perfection of an appeal on execution?

The perfection of an appeal shall stay the execution of the decision of the Labor Arbiter on appeal, except execution for reinstatement pending appeal.

Note: The provision of Art. 223 is clear that an award by the LA for reinstatement shall be immediately executor even pending appeal and the posting of a bond by the employer shall not stay the execution for reinstatement. (Pioneer Texturizing Corp. v. NLRC, G.R. No. 118651, Oct. 16, 1997)

b.Effect of self‐executing order of reinstatement

on backwages

Q: May dismissed employees (Ees) collect their wages during the period between the Labor Arbiter’s (LA’s) order of reinstatement pending appeal and the NLRC decision overturning that of the LA? A: Yes. Par. 3 of Art. 223 of the Labor Code provides that the decision of the LA reinstating a dismissed or separated Ee, insofar as the reinstatement aspect is concerned, shall immediately be excutory, pending appeal. Even if the order of reinstatement of the LA is reversed on appeal, it is obligatory on the part of the employer (Er) to reinstate and pay the wages of the dismissed Ee during the period of appeal until reversal by the higher court. On the other hand, if the Ee has been reinstated during the appeal period and such reinstatement order is reversed with finality, the Ee 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, G.R. No. 177467, March 9, 2011)

Unless there is a restraining order, it is ministerial upon the LA to implement the order of reinstatement and it is mandatory on the Er to comply therewith. (Garcia v. PAL, G.R. No. 164856, Jan. 20, 2009)

c.Requirements to perfect appeal to NLRC Q: How is an appeal from LA to NLRC perfected?

A:

The appeal is perfected: Filed within the reglementary period

provided in Sec. 1 of this Rules Verified by the appellant himself in

accordance with Sec. 4, Rule 7 of the Rules of Court, as amended

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

In 3 legibly typewritten or printed copies

Accompanied by (i) proof of payment of the required appeal fee; (ii) posting of a cash or surety bond as provided in Sec. 6 of this Rule; (iii) a certificate of non‐forum shopping; and (iv) proof of service upon the other parties.

Mere notice of appeal without complying

with the other requisites aforestated shall not stop the running of the period for perfecting an appeal.

Is the posting of an appeal bond required for the perfection of an appeal from a Labor Arbiter’s (LA’s) decision involving monetary award?

Yes. In case the decision of the LA or the Regional Director involves a monetary award, an appeal by the employer may be perfected only upon the posting of a bond. (Sec.6, Rule VI, NLRC 2005 Rules of Procedure)

What are the forms of the appeal bond?

It shall either be in the form of cash deposit or surety bond equivalent in amount to the monetary award, exclusive of damages and attorney's fees. (Sec. 6, Rule VI, NLRC 2005 Rules of Procedure) Who may issue a surety bond?

A: It shall be issued by a reputable bonding company duly accredited by the Commission or the SC, and shall be accompanied by original or certified true copies of:

A joint declaration under oath by the Er,

his counsel, and the bonding company, attesting that the bond posted is genuine, and shall be in effect until final disposition of the case.

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An indemnity agreement between the Er‐

appellant and bonding company; Proof of security deposit or collateral

securing the bond: provided, that a check shall not be considered as an acceptable security;

A certificate of authority from the Insurance Commission;

Certificate of registration from the SEC; Certificate of authority to transact surety

business from the Office of the President; Certificate of accreditation and authority

from the SC; and A notarized board resolution or

secretary's certificate from the bonding company showing its authorized signatories and their specimen signatures. (Sec. 6, Rule VI, NLRC 2005 Rules of Procedure)

Note: The appellant shall furnish the appellee with a certified true copy of the said surety bond with all the above‐mentioned supporting documents.

What is the period within which a cash or surety bond shall be valid and effective?

From the date of deposit or posting, until the case is finally decided, resolved or terminated, 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, NLRC 2005 Rules of Procedure)

What is the effect if the bond is verified by the NLRC to be irregular or not genuine?

A: 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, NLRC 2005 Rules of Procedure)

Note: The appellee shall verify the regularity and genuineness of the bond and immediately report any irregularity to the NLRC.

Q: May the bond be reduced? A: GR: No.

XPN: On meritorious grounds, and only upon the posting of a bond in a reasonable amount in relation to the monetary award.

Note: The mere filing of a motion to reduce bond without complying with the requisites in the preceding paragraphs shall not stop the running of the period to perfect an appeal (Sec. 6, Rule VI, NLRC 2005 Rules of Procedure).

Q: Company "A", within the reglementary period, appealed the decision of a Labor Arbiter directing the reinstatement of an Ee and awarding backwages. However, A's cash bond was filed beyond the ten day period. Should the NLRC entertain the appeal? Why? A: No, the NLRC should not entertain the appeal, as the same was not perfected for failure to file a bond. In ABA vs. NLRC, G.R. No.122627, July 18, 1999, the SC ruled: "An appeal bond is necessary...the appeal may be perfected only upon the posting of cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from." (2001 Bar Question) Q: Is a motion for reconsideration (MR) of the NLRC decision required before certiorari may be availed of? A: Yes. A MR is required to enable NLRC to correct its mistakes. If no MR is filed, NLRC’s decision becomes final and executory. What is the remedy in case of denial of the MR? If the motion is denied, the aggrieved party may file a petition for certiorari not later than 60 days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the 60 day period shall be counted from notice of the denial of said motion. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days. (Sec. 4, Rule 65, Rules of Court.)

What is the effect if no service of summons was made? A: In the absence of service of summons or a valid waiver thereof, the hearings and judgment rendered by the labor arbiter is null and void. Q: What is compulsory arbitration? A: The process of settlement of labor disputes by a government agency which has the authority to investigate and make an award binding on all the parties.

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Q: Can the Labor Arbiter (LA) conduct compulsory

arbitration? 2.NATIONAL LABOR RELATIONS COMMISSION

A: Yes. Under the Labor Code, it is the LA who is (NLRC)

clothed with the authority to conduct compulsory Q: What is the NLRC? arbitration on cases involving termination disputes

[Art.217, P.D. 442, as amended]. (PAL v. NLRC, G.R. A: It is an administrative body with quasi‐judicial No. 55159, Dec. 22, 1989) functions and the principal government agency that

Q: What are the rules on venue of filing cases? hears and decides labor‐management disputes; it is attached to the DOLE solely for program and policy

A: coordination only.

All cases which the Labor Arbiters (LAs)Q: How are the powers and functions of the NLRC have authority to decide may be filed in allocated?

the Regional Arbitration Branch (RAB)

having jurisdiction over the workplace of A:

the complainant /petitioner. 1. En Banc

a. Promulgating rules and regulations Note: Workplace is understood to be the and governing the hearings and place or locality where the employee (Ee) is disposition of cases before any of its regularly assigned when the cause of action divisions and regional branches.

arose. It shall include the place where the Ee b. Formulating policies affecting its is supposed to report back after a temporary administration and operations.

detail, assignment or travel.

c. On temporary or emergency basis, to In case of field Ees, as well as ambulant or

allow cases within the jurisdiction of itinerant workers, their workplace is where

any division to be heard and decided they are”

by any other division whose docket

a. Regularly assigned

allows the additional workload and b. Supposed to regularly receive their

such transfer will not expose litigants salaries and wages

to unnecessary additional expense. c. Receive their work instructions from

2. Division (8 Divisions with 3 members)

d. Reporting the results of their

assignment to their employers (Er) a. Adjudicatory;

b. All other powers, functions and

2. Where 2 or more RABs have jurisdiction duties; over the workplace, the first to acquire c. Exclusive appellate jurisdiction over jurisdiction shall exclude others. cases within their respective

territorial jurisdiction.

3. Improper venue when not objected to Q: Does an individual Commissioner have before filing of position papers shall be

deemed waived. adjudicatory power?

4. Venue may be changed by written A: No. The law lodges the adjudicatory power on agreement of the parties or when the each of the eight divisions, not on the individual NLRC or the LA so orders, upon motion by commissioners nor on the whole commission. The the proper party in meritorious cases. “division” is a legal entity, not the person who sits

in it. Hence, an individual commissioner has no 5. For Overseas Contract Workers where the adjudicatory power, although of course, he can

complainant resides or where the concur or dissent in deciding a case.

principal office of the respondent Er is

located, at the option of the complainant. a.Jurisdictions

Note: The Rules of Procedure on Venue is Q: What are the two kinds of jurisdiction of the merely permissive, allowing a different NLRC? venue when the interest of substantial

justice demands a different one. (Dayag v. A:

Canizares, GR. No. 124193, Mar. 6, 1998) 1. Exclusive Original Jurisdiction a. Certified labor disputes causing or likely to cause a strike or lockout in an industry indispensable to national

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interest, certified to it by the Secretary of Labor or the President for compulsory arbitration

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

Injunction in strikes or lockouts under Art. 264 of the Labor Code (LC)

Contempt cases Exclusive Appellate Jurisdiction

All cases decided by the Labor Arbiters under Art. 217(b) of the LC and Sec. 10 of R.A.8042 (Migrant Worker’s Act); and

Cases decided by the Regional Offices of DOLE in the exercise of its adjudicatory function under Art.129 of the LC over monetary claims of workers amounting to not more than P5000 and not accompanied by claim for reinstatement.

Q: What is the composition of the NLRC? A:

Chairman 23 Members

8 members each, shall be chosen only from among the nominees of the workers and employers (Er) organization respectively.

The Chairman and the 7 remaining members shall come from the public sector, with the latter to be chosen preferably from among the incumbent Labor Arbiters.

Upon assumption into office, the members nominated by the workers and Ers organization shall divest themselves of any affiliation with or interest in the federation or association to which they belong.

Note: There is no need for the Commission on Appointments to confirm the positions in the NLRC. Such requirement has no constitutional basis. (Calderon v. Carale, GR. No. 91636, April 23, 1992)

Q: How does the NLRC adjudicate cases? A:

The NLRC adjudicates cases by division. A concurrence of 2 votes is needed for a

valid judgment.

Note: Whenever the required membership in a division is not complete and the concurrence of the Commissioners to arrive at judgment or resolution cannot be obtained, the Chairman shall designate such number of additional Commissioners from the other divisions as may be necessary.

It shall be mandatory for the division to

meet for purposes of consultation.

Note: The conclusion of a division on any case submitted to it for decision should be reached in consultation before the case is assigned to a member for the writing of the opinion.

A certification that a consultation has been

conducted, signed by the presiding commissioner of the division, shall be issued (copy attached to the record of case and served upon the parties).

What are the qualifications of the Chairman and the Commissioners? A:

Member of the Philippine Bar Engaged in the practice of law in the

Philippines for at least 15 years At least 5 years experience or exposure in

handling labor management relations Preferably a resident of the region where

he is to hold office

What are the qualifications of an Executive Labor Arbiter?

A:

Member of the Philippine Bar Engaged in the practice of law in the

Philippines for at least 10 years At least 5 years experience or exposure in

handling labor management relations

What is the term of office of the Chairman, Commissioners and Labor Arbiters (LAs)?

They shall hold office during good behavior until they reach the age of 65 unless removed for causes as provided by law or become incapacitated to discharge the function of his office.

Provided, however, that the President of the Philippines may extend the services of the Commissioners and LAs up to the maximum age of 70 years upon the recommendation of the

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Commission en banc.

Q: Some disgruntled members of Bantay Labor Union filed with the Regional Office of the DOLE a written complaint against their union officers for mismanagement of union funds. The Regional Director (RD) did not rule in the complainants' favor. Not satisfied, the complainants elevated the RD’s decision to the NLRC. The union officers moved to dismiss on the ground of lack of jurisdiction. Are the union officers correct? Why?

A: Yes, the union officers are correct in claiming that the NLRC has no jurisdiction over the appealed ruling of the RD. in Barles v. Bitonio, G.R. No. 120220, June 16, 1999, the SC ruled: “Appellate authority over decisions of the RD involving examination of union accounts is expressly conferred on the Bureau of Labor Relations (BLR) under the Rule of Procedure on Mediation‐ Arbitration.” Sec. 4. Jurisdiction of the BLR — (b) The BLR shall exercise appellate jurisdiction over all cases originating from the RD involving complaints for examination of union books of accounts. The language of the law is categorical. Any additional explanation on the matter is superfluous." (2001 Bar Question) Q: Company "A" and Union "B" could not resolve their negotiations for a new CBA. After conciliation proceedings before the NCMB proved futile, B went on strike. Violence during the strike prompted A to file charges against striker‐members of B for their illegal acts. The SLE assumed jurisdiction, referred the strike to the NLRC and issued a return‐to‐work order. The NLRC directed the parties to submit their respective position papers and documentary evidence. At the initial hearing before the NLRC, the parties agreed to submit the case for resolution after the submission of the position papers and evidence.

Subsequently, the NLRC issued an arbitral award resolving the disputed provisions of the CBA and ordered the dismissal of certain strikers for having knowingly committed illegal acts during the strike. The dismissed employees elevated their dismissal to the CA claiming that they were deprived of their right to due process and that the affidavits submitted by A were self‐ serving and of no probative value. Should the appeal prosper? State the reason(s) for your answer clearly.

A: The appeal should not prosper. The SC, in many cases, has ruled that decisions made by the NLRC may be based on position papers. In the question, it is stated that the parties agreed to submit the case for resolution after the submission of position papers and evidence. Given this fact, the striker‐ members of B cannot now complain that they were denied due process. They are in estoppel. After voluntarily submitting a case and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court. A party cannot adopt a posture of double dealing. (Marquez vs. Secretary of Labor, G.R. No. 80685, March 16, 1989). (2001 Bar Question)

Q: Is barangay conciliation available in labor cases?

A: No. Labor cases are not subject to barangay Conciliation since ordinary rules of procedure are merely suppletory in character vis‐à‐vis labor disputes which are primarily governed by labor laws. (Montoya v. Escayo, G.R. No. 82211‐12, Mar. 21, 1989)

Q: What are the powers of the NLRC? A:

Rule making power – promulgation of rules and regulations: Governing disposition of cases

before any of its division/regional offices.

Pertaining to its internal functions As may be necessary to carry out the

purposes of the Labor Code. Power to issue compulsory processes

(administer oaths, summon parties, issue subpoenas)

Power to investigate matters and hear disputes within its jurisdiction (adjudicatory power – original and appellate jurisdiction over cases)

Contempt power Ocular Inspection Power to issue injunctions and restraining

orders

b.Effect of NLRC reversal of Labor Arbiter’s order

of reinstatement

Q: May dismissed employees (Ees) collect their wages during the period between the Labor Arbiter’s (LA’s) order of reinstatement pending appeal and the NLRC decision overturning that of the LA?

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A: Yes. Par. 3 of Art. 223 of the Labor Code provides that the decision of the LA reinstating a dismissed or separated Ee, insofar as the reinstatement aspect is concerned, shall immediately be excutory, pending appeal. Even if the order of reinstatement of the LA is reversed on appeal, it is obligatory on the part of the employer (Er) to reinstate and pay the wages of the dismissed Ee during the period of appeal until reversal by the higher court. On the other hand, if the Ee has been reinstated during the appeal period and such reinstatement order is reversed with finality, the Ee 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, G.R. No. 177467, March 9, 2011)

c.Requirements to perfect appeal to Court of

Appeals Q: Is judicial review of the NLRC’s decision available? A: Yes, through petitions 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, G.R. No. 130866, Sep. 16, 1998)

Q: Within what period should the petition for certiorari be filed with the Court of Appeals?

A: Under Section 4, Rule 65 (as amended by A.M. No. 00‐2‐03‐SC) of the Rules of Civil Procedure, the petition must be filed within sixty (60) days from notice of the judgment or from notice of the resolution denying the petitioner’s motion for reconsideration. This amendment is effective September 1, 2000, but being curative may be given retroactive application. (Narzoles v. NLRC, G.R. No. 141959, Sep. 29, 2000)

The period within which a petition for certiorari against a decision of the NLRC may be filed should be computed from the date counsel of record of the party receives a copy of the decision or resolution, and not from the date the party himself receives a copy thereof. Article 224 of the Labor Code, which requires that copies of final decisions, orders or awards be furnished not only the party’s counsel of record but also the party himself applies to the execution thereof and not to the filing of an

appeal or petition for certiorari. (Ginete v. Sunrise Manning Agency, G.R. No. 142023, June 21, 2001)

Q: What is an injunction or a temporary restraining order (TRO)?

A: Orders which may require, forbid, or stop the doing of an act. The power of the NLRC to enjoin or restrain the commission of any or all prohibited or unlawful acts under Art. 218 of Labor Code can only be exercised in a labor disputes.

Note: 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, G.R. No. L‐30690 November 19, 1982)

Q: Who may issue a TRO?

A:

President (Art.263[g]) Secretary of Labor (Art. 263[g]) NLRC (Art.218)

Note: Art. 218 of the Labor Code limits the grant of injunctive power to the “NLRC”. The LA is excluded statutorily. Hence, no NLRC Rules can grant him that power.

Q: What is the procedure for the issuance of restraining order/injunction? A:

Filing of a verified petition Hearing after due and personal notice has

been served in such manner as the Commission shall direct to: All known persons against whom

relief is sought Also the Chief Executive or other

public officials of the province or city within which the unlawful acts have been threatened or commercial charged with the duty to protect the complainant’s property.

Reception at the hearing of the testimonies of the witnesses with opportunity for cross‐examination, in support of the allegations of the complaint made under oath as well as testimony in opposition thereto.

Finding of fact of the Commission to the effect that: Prohibited or unlawful acts have

been threatened and will be committed, or have been and will be continued unless restrained, but no

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injunction or TRO shall be issued on 4. POEA account of any threat, prohibited or 5. OWWA

unlawful act, except against the 6. SSS‐ECC

persons, association or organization 7. RTWPB

making the threat or committing the 8. NWPC

9. Regular courts over intra‐corporate prohibited or unlawful act or actually

disputes.

authorizing or ratifying the same

after actual knowledge thereof. Q: Who is a mediator‐arbiter?

b. The substantial and irreparable

injury to the complainant’s property. A: An officer in the Regional Office or Bureau

Note: Irreparable Injury ‐an injury authorized to hear, conciliate and decide which cannot be adequately representation cases or assist in the disposition of compensated in damages due to the intra or inter‐union disputes.

nature of the injury itself or the nature

of the right or property injured or Q: What kinds of cases fall within BLR’s when there exist no pecuniary

standard for the measurement of jurisdiction? damages.

That as to each item of relief to beA: The BLR has original and exclusive jurisdiction granted, greater injury will be over:

inflicted upon the complainant by

the denial of the relief than will be 1. Inter‐union disputes

inflicted upon the defendants by the 2. Intra‐union disputes

granting of the relief. 3. Other related labor relations disputes

d. That complainant has no adequate

remedy at law Q: What is the coverage of inter/intra‐union Note: Adequate remedy – one that disputes? affords relief with reference to the

matter in controversy and which is A: They shall include: appropriate to the particular

circumstances of the case if the 1. Conduct or nullification of election of

remedy is specifically provided by law.

union and workers’ association officers

(PAL v. NLRC, GR. No. 120567, Mar. 20,

2. Audit/accounts examination of union or

1998)

workers’ association funds

e. That public officers charged with the

3. Deregistration of collective bargaining

duty to protect complainant’s agreements (CBAs)

property are unable or unwilling to

4. Validity/invalidity of union affiliation or

furnish adequate protection.

disaffiliation

5. Posting of a bond.

5. Validity/invalidity of acceptance/ non‐

acceptance for union membership

3.BUREAU OF LABOR RELATIONS (BLR)‐MED

6. Validity/invalidity of voluntary recognition

ARBITERS

7. Opposition to application for union or

CBA registration

a.Jurisdiction

8. Violations of or disagreements over any

Q: What is covered by the BLR’s jurisdiction and provision of the constitution and by‐laws of union or workers’ association

functions?

9. Disagreements over chartering or

A: The BLR no longer

handles “all labor registration of labor organizations or the

registration of CBAs;

management disputes”; rather its functions and

10. Violations of the rights and conditions of jurisdiction are largely confined to:

membership in a union or workers’ 1. Union matters

association;

2. Collective bargaining registry and

11. Violations of the rights of legitimate labor 3. Labor education.

organizations (LLO), except interpretation

Note: Jurisdiction over labor management problems or of CBAs;

12. Validity/invalidity of impeachment/ disputes is also exercised by other offices:

expulsion/suspension or any disciplinary 1. DOLE Regional Offices

action meted against any

officer and 2. Office of the Secretary of Labor

member, including those arising from 3. NLRC

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non‐compliance with the reportorial requirements under Rule V;

Such other disputes or conflicts involving the rights to self‐organization, union membership and CB – Between and among LLO and Between and among members of a

union or workers’ association. (Sec.1, Rule XI, Book V, IRR as amended by D.O. 40‐F‐03)

What is covered by the phrase “other related labor relations disputes”?

A:

Any conflict between: A labor union and the employer (Er); or A labor union and a group that is not a

labor organization (LO); or A labor union and an individual who is

not a member of such union Cancellation of registration of unions and

worker’s associations filed by individual/s other than its members, or group that is not a LO.

A petition for Interpleader involving labor relations. (Sec. 2, Rule XI, Book V, IRR as amended by D.O. 40‐F‐03)

Who may file a complaint or petition involving intra/inter‐union disputes? A: A legitimate labor organization or its members. (Sec. 5, Rule XI, D.O. 40‐03)

Q: What if the issue involves the entire membership?

A: The complaint must be signed by at least 30% of the entire membership of the union. Q: What if the issue involves a member only?

A: Only the affected member may file the complaint. (Sec. 5, Rule XI, D.O. 40‐03) Note:

GR: Redress must first be sought within the union itself in accordance with its constitution and by‐ laws

XPNs: Futility of intra‐union remedies; Improper expulsion procedure; Undue delay in appeal as to constitute

substantial injustice; The action is for damages;

Lack of jurisdiction of the investigating body;

action for the administrative agency is patently illegal, arbitrary and oppressive;

Issue is purely a question of law; Where the administrative agency had

already prejudged the case; and Where the administrative agency was

practically given the opportunity to act on the case but it did not.

May a decision in an inter/intra‐union dispute be appealed from? Yes.

Within what period may an appeal to a decision of the med‐arbiter or regional director in an inter/intra‐union dispute be filed?

A: The decision may be appealed by any of the parties within 10 days from receipt thereof. (Sec. 16, Rule XI, D.O. 40‐03) To whom is the decision appealable? The decision is appealable to the:

Bureau of Labor Relations (BLR): if the case originated from the Med‐Arbiter or Regional Director;

SLE: if the case originated from the BLR.

What is the extent of the Bureau of Labor Relations (BLRs) authority? A:

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.

But the BLR has no authority to:

Order a referendum among union

members to decide whether to expel or suspend union officers.

Forward a case to the Trade Union Congress of the Philippines for arbitration and decision.

Is Katarungang Pambarangay applicable to labor disputes?

No. Art. 226 of the LC grants original and exclusive jurisdiction over the conciliation and mediation of disputes grievances or problems in the regional offices of the DOLE. It is the Bureau and its divisions (now the NCMB) and not the Barangay Lupong Tagapamayapa which are vested by law with original and exclusive authority to conduct

11

conciliation and mediation proceedings on labor controversies before endorsement to the appropriate labor arbiter for adjudication.

Note: Conciliation‐Mediation is now done by the NCMB, not Bureau Labor Relations.

Q: What are the administrative functions of the Bureau Labor Relations (BLR)?

A:

Regulation of the labor unions Keeping the registry of labor unions Maintenance of a file of the CBA Maintenance of a file of all settlements or

final decisions of the SC, CA, NLRC and other agencies on labor disputes

What are the effects of filing or pendency of inter/intra‐union dispute and other labor relations disputes?

A:

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 and obligations of the party‐ litigants against each other and other parties‐in‐interest shall be governed by the decision ordered.

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 of election. (Sec. 3, Rule XI, DO 40‐03)

State the rules on appeal in intra/inter‐union disputes.

A:

Formal Requirements Under oath Consist of a memorandum of appeal. Based on either of the following

grounds: Grave abuse of discretion Gross violation of the rules With supporting arguments and

evidence Period ‐ within 10 days from receipt of

decision.

To whom appealable BLR – if the case originated from the

Med‐Arbiter/Regional Director. SLE – if the case originated from the

BLR. Where Filed ‐ Regional Office or to the

BLR, where the complaint originated (records are transmitted to the BLR or Sec. within 24 hours from the receipt of the memorandum of appeal). (Rule XI, D.O. 40‐03)

4.NATIONAL CONCILIATION AND MEDIAITON BOARD (NCMB)

Q: What are the alternative modes of settlement of labor dispute under Art. 211 of the Labor Code?

A:

Voluntary Arbitration Conciliation Mediation

a.Conciliation vs. Mediation

Q: What is Conciliaton and Mediation?

A:

CONCILIATION

MEDIATION

Is conceived of as a Is a mild intervention mild form of by a neutral third intervention by a party

neutral third party

The conciliator‐ The conciliator‐ Mediator, relying on mediator, whereby his persuasive he starts advising the expertise, who takes parties or offering an active role in solutions or assisting parties by alternatives to the trying to keep problems with the disputants talking, end in view of facilitating other assisting them procedural niceties, towards voluntarily carrying messages reaching their own back and forth mutually acceptable between the parties, settlement of the and generally being a dispute

good fellow who tries

to keep things calm

and forward‐looking

in a tense situation

It is the process It is when a 3rd party where a disinterested studies each side of 3rd party meets with the dispute then management and makes proposals for labor, at their the disputants to request or otherwise, consider. The during a labor mediator cannot

dispute or in make an award nor

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collective bargaining render a decision conferences, and by

cooling tempers, aids

in reaching an

agreement

Conciliation ‐ is conceived of as 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 generally being a good fellow who tries to keep things calm and forward‐looking in a tense situation.

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 collective bargaining conferences, and by cooling tempers, aids in reaching an agreement.

Mediation ‐ is a mild intervention by a neutral third party, 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 when a 3rd party studies each side of the dispute then makes proposals for the disputants to consider. The mediator cannot make an award nor render a decision.

Q: What is the Legal Basis of Conciliation and Mediation?

A: Article 13, Section 3, of our New Constitution provides:

“The State shall promote xxx the preferential use of voluntary modes of setting disputes including conciliation and shall ensure mutual compliance by the parties thereof in order to foster industrial peace.”

Note: A similar provision is echoed in the Declaration of Policy under Article 211 (a) of the Labor Code, as amended.

Q: Who can avail of Conciliation and Mediation Services of the NCMB?

A: Any party to a labor dispute, either the union or management, may seek the assistance of NCMB or any of its Regional Branches by means of formal request for conciliation 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.

Q: Where can a request for Conciliation and Mediation be filed?

A: 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 fourteen (14) regional offices of the NCMB which are strategically located all over the country for the convenient use of prospective clients.

b.Preventive Mediation

Q: What is Preventive Mediation Cases?

A: Refer to the potential labor disputes which are the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties or upon the initiative of the NCMB to avoid the occurrence of actual labor disputes.

Q: What are the valid issues for a notice of strike / lockout or preventive mediation case?

A: A notice of strike or lockout maybe filed on ground of unfair labor practice acts, gross violation of the CBA, or deadlock in collective bargaining. 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.

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.

What advantage can be derived from conciliation and mediation services?

Conciliation and mediation is non‐ litigious/non‐adversarial, less expensive, and expeditious. Under this informal set‐up, 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.

Are the parties bound by the agreement entered into by them?

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A: Certainly, 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.

Q: Is conciliation and mediation service still possible during actual strike or lockout?

A: Definitely, it is possible to subject an actual strike or actual lockout 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 solutions of all the issues involved may yet be effected and settled.

When the dispute has already been assumed or certified to the NLRC, is it also possible to remand the same to conciliation and mediation services?

Yes, the parties are not precluded from availing 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.

What benefit can the parties have in appearing during conciliation conferences?

A: Generally speaking, any party appearing during scheduled conciliation conferences has the advantage of presenting its position on the labor controversy. The issue raised in the complaint can be better ventilated with the presence of the concerned parties. Moreover, the parties can observe a norm of conduct usually followed in like forum.

c.Artbitration

Q: What is arbitration?

It is the submission of a dispute to an impartial person for determination on the basis of evidence and arguments of the parties. The arbiter’s decision or award is enforceable upon the disputants. It may be voluntary (by agreement) or compulsory (required by statutory provision). (Luzon Dev’t Bank Ass’n of Luzon Dev’t Bank Employees, G.R. No. 120319, Oct. 6, 1995)

Can the court fix resort to voluntary arbitration (VA)?

A: Resort to VA dispute, should not be fixed by the court but by the parties relying on their strengths and resources.

Q: Who are the parties to labor relations cases?

A:

Employees organization Management The public

Note: Employer and Ees are active parties while the public and the State are passive parties. (Poquiz, 2006, p.3)

Q: What is the concept of tripartism?

It is the representation of 3 sectors. These are:

The public or the government The employers The workers

– in policy‐making bodies of the gov’t.

Can workers insist that they be represented in the policy making in the company?

No. Such kind of representation in the policy‐ making bodies of private enterprises is not ordained, not even by the Constitution. What is provided for is workers participation in policy and decision‐making process directly affecting their rights, benefits, and welfare.

5.DOLE REGIONAL DIRECTORS

a.Small Money Claims

Q: What is the rule on the recovery of simple money claims? A:

The aggregate money claim of each employee (Ee) or househelper (HH) does not exceed P5,000.

The claim is presented by an Ee or person employed in the domestic or household service or HH.

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The claim arises from Er‐Ee relationship. The claimant does not seek

reinstatement.

Note: In the absence of any of the ff. requisites, it is the labor arbiter (LA) who shall have the jurisdiction over the claims arising from Er‐Ee relations, except claims for Ees compensation, SSS, Philhealth, and maternity benefits, pursuant to Art.217 of the Labor Code.

The proceedings before the Regional Office shall be summary and non‐litigious in nature.

Q: What is the adjudicatory power of the Regional Director (RD)?

A: The RD 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.

An airline which flies both the international and domestic routes requested the SLE to approve the policy that all female flight attendants upon reaching age 40 with at least 15 years of service shall be compulsorily retired; however, flight attendants who have reached age 40 but have not worked for 15 years will be allowed to continue working in order to qualify for retirement benefits, but in no case will the extension exceed 4 years. Does the SLE have the authority to approve the policy?

Yes. Art.132 (d) of the Labor Code provides that the SLE shall establish standards that will ensure the safety and health of women employees including the authority to determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like. (1998 Bar Question)

What is the difference between the power of Secretary of Labor and Employment (SLE), Regional Director (RD) and Labor Arbiter (LA)?

A:

Art. 128

Art. 129

Art. 217(a)(6)

VP and EP of

RD LA

SLE

Inspection of

establishments

and issuance Adjudication of

LA exercises

of orders to

Ees claims for original and compel

wages and exclusive compliance

benefits jurisdiction with labor

standards,

wage orders

and other

labor laws

Enforcement

All other claims of labor Limited to

arising from Er‐ legislation in monetary claims

Ee relations general

LA decides case within 30

Proceeding is Initiated by calendar days an offshoot of sworn complaints after

routine filed by any submission of inspections interested party the case by the

parties for

decision

Jurisdictional 1) All other req’ts: claims arising 1) Complaint from Er‐Ee arises from Er‐Ee relations relationship

2) Including 2) Claimant is an those of Ee or person persons in employed in domestic or

No domestic or household

household service jurisdictional

service or a HH

req’ts

3) Complaint 3) Involving an

does NOT include amount a claim for exceeding reinstatement P5,000

4) Aggregate 4) Whether or money claim of not EACH claimant accompanied does not exceed with a claim for

P5,000 reinstatement

Appealable to

SLE (In case

compliance Appealable to Appealable to order is issued NLRC NLRC

by Regional

Office)

6.DOLE SECRETARY

a.Visitorial and Enforcement Powers

Q: What are the 3 kinds of powers of the Secretary of Labor and Employment (SLE)?

A:

Visitorial powers Enforcement powers Appellate or power to review

What constitute visitorial power?

15

A:

Access to employer’s records and premises at any time of the day or night, whenever work is being undertaken

To copy from said records 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 Labor Code and of any labor law, wage order, or rules and regulation issued pursuant thereto.

Give 4 instances where the visitorial power of the SLE may be exercised under the Labor Code. Power to:

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)

Have access to employer’s records and premises to determine violations of any provisions of the LC on recruitment and placement. (Art. 128)

Conduct industrial safety inspections of establishments. (Art. 165)

Inquire into the financial activities of legitimate labor organizations (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.

What is enforcement power? It is the power of the SLE to:

Issue compliance orders Issue writs of execution for the

enforcement of their orders, except in cases where the employer (Er) contests the findings of the labor officer and raise issues supported by documentary proof which were not considered in the course of inspection

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

Require Ers to keep and maintain such

employment records as may be necessary in aid to the visitorial and enforcement powers

Conduct hearings within 24 hours to determine whether: An order for stoppage of work or

suspension of operations shall be lifted or not; and

Er shall pay employees concerned their salaries in case the violation is attributable to his fault. (As amended by RA 7730; Guico v. Secretary, G.R. No. 131750, Nov.16, 1998)

What are the violations under Art. 128? A:

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

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

What are the limitations to other courts?

A: In relation to enforcement orders issued under Art. 128, no inferior court or entity shall:

Issue temporary or permanent injunction

or restraining order or Assume jurisdiction over any case

What are the instances when enforcement power may not be used? A:

Case does not arise from the exercise of visitorial power

When Er‐Ee relationship ceased to exist at the time of the inspection

If employer contests the finding of the Labor Regulation Officer and such contestable issue is not verifiable in the normal course of inspection

b.Power to Suspend Effects of Termination‐Art.

277 (b), LC

Q: Does the DOLE Secretary have the power to suspend the effects of termination?

A: Yes, under Article 277 (b) of the Labor Code, the Secretary of Labor may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate

16

official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause serious labor dispute or is in implementation of a mass layoff.

7.VOLUNTARY ARBITRATORS

a.Submission Agreement

Q: How is arbitration initiated? A:

Submission agreement – Where the parties define the disputes to be resolved

Demand notice – Invoking collective agreement arbitration clause

Who is a voluntary arbitrator (VA)?

A:

Any person accredited by the NCMB as such

Any person named or designated in the CBA by the parties to act as their VA

One chosen with or without the assistance of the NCMB, pursuant to a selection procedure agreed upon in the CBA

Any official that may be authorized by the SLE to act as VA upon the written request and agreement of the parties to a labor dispute. (Art. 212 [n])

What are the powers of a voluntary arbitrator? A:

Hold hearings Receive evidence Take whatever action necessary to

resolve the dispute including efforts to effect a voluntary settlement between parties. (Art. 262‐A)

How is a voluntary arbitrator (VA)/panel chosen? A:

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

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. (Art.260, par.3)

Who will designate the voluntary arbitrator (VA)/panel in case the parties fail to select one?

It is the NCMB that 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., G.R. No. 109383, June 15, 1998)

May Labor Arbiters (LA) be designated as voluntary arbitrators (VA)?

A: Yes. There is nothing in the law that prohibits LAs from also acting as VAs as long as the parties agree to have him hear and decide their dispute. (Manila Central Line Free Workers Union v. Manila Central Line Corp., G.R. No. 109383, June 15, 1998)

Q: What falls under the jurisdiction of Voluntary Arbitrators (VA)?

A: Generally, 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. Saornido, G.R. No. 140960, Jan. 20, 2003)

What cases are within the jurisdiction of VA? Original and exclusive jurisdiction over:

All unresolved grievances arising from

the: Implementation or interpretation of

the CBA Interpretation or enforcement of

company personnel policies

Wage distortion issues arising from the

application of any wage orders in organized establishments

Those arising from interpretation and

implementation of productivity incentive programs under R.A. 6971

Violations of CBA provisions which are not

gross in character are no longer treated as ULP and shall be resolved as grievances under the CBA

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

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Any other labor disputes upon agreement by

the parties including ULP and bargaining deadlock. (Art. 262)

May the NLRC and DOLE entertain disputes/grievances/matters under the exclusive and original jurisdiction of the voluntary arbitrator?

A: No. They must immediately dispose and refer the same to the grievance machinery or voluntary arbitration provided in the CBA

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

Q: What is the effect of the award of voluntary arbitrator (VA)?

A: The decision or award of the VA 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 on fact and law are conclusive.

Q: Are both the employer and the bargaining representative of the employees required to go through the grievance machinery in case a grievance arises?

A: Yes, because it is but logical, just and equitable that whoever is aggrieved should initiate settlement of grievance through the grievance machinery. To impose compulsory procedure on employers alone would be oppressive of capital.

Q: Who has jurisdiction over actual termination disputes and complaints for illegal dismissal filed by workers pursuant to the union security clause?

A: The Labor Arbiter and not the grievance machinery.

Q: What is the nature of the power of a voluntary arbitrator?

A: Arbitrators by the nature of their functions, act in a quasi‐judicial capacity (BP 129, as amended by R.A. 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.

b.Rule 43, Rules of Court

Q: Are decisions of voluntary arbitrators (VAs) appealable?

A: GR: 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)

XPNs:

Appeal to the CA via Rule 43 of the Rules of Court within 15 days from the date of receipt of VA’s decision. (Luzon Dev’t Bank v. Ass’n of Luzon Dev’t Bank Ee’s, G.R. No. 120319, Oct. 6, 1995)

If decision of CA is adverse to a party, appeal to the SC via Rule 45 on pure questions of law.

Note: A VA by the nature of her functions acts in quasi‐ judicial capacity. There is no reason why the VA’s decisions involving interpretation of law should be beyond the SC’s review. Administrative officials are presumed to act in accordance with law and 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, G.R. No. L‐43825, May 9, 1988)

Q: PSSLU had an existing CBA with Sanyo Phils., Inc. which contains a union security clause which provides that: “all members of the union covered by this agreement must retain their membership in good standing in the union as condition of his / her continued employment with the company.” On account of anti‐union activities, disloyalty and for joining another union, PSSLU expelled 12 employees (Ees) from the Union. As a result, PSSLU recommended the dismissal of said Ees pursuant to the union security clause. Sanyo approved the recommendation and considered the said Ees dismissed. Thereafter, the dismissed Ees filed with the Arbitration Branch of the NLRC a complaint for illegal dismissal.

Does the voluntary arbitrator (VA) have jurisdiction over the case?

A: No, the VA has no jurisdiction over the case. Although the dismissal of the Ees concerned was made pursuant to the union security clause provided in the CBA, there was no dispute whatsoever between PSSLU and Sanyo as regards the interpretation or implementation of the said union security clause. Both PSSLU and Sanyo are united and have come to an agreement regarding the dismissal of the Ees concerned. Thus there is no grievance between the union and management which could be brought to the grievance machinery. The dispute is between PSSLU and Sanyo, on the one hand, and the dismissed union members, on the other hand. The dispute therefore, does not

18

involve the interpretation or implementation of a CBA. (Sanyo Philippines Workers Union‐PSSLU v. Canizares, G.R. No. 101619, July 8, 1992)

Q: X was employed as telephone operator of Manila Midtown Hotel. She was dismissed from her employment for committing the following violations of offenses subject to disciplinary actions, namely: falsifying official documents and culpable carelessness‐negligence or failure to follow specific instructions or established procedures. X then filed a complaint for illegal dismissal with the Arbitration branch of the NLRC. The Hotel challenged the jurisdiction of the Labor Arbitrator (LA) on the ground that the case falls within the jurisdictional ambit of the grievance procedure and voluntary arbitration under the CBA.

Does the LA have jurisdiction over the case?

A: Yes, the LA has jurisdiction. The dismissal of X does not call for the interpretation or enforcement of company personnel policies but is a termination dispute which comes under the jurisdiction of the LA. The dismissal of X is not an unresolved grievance. Neither does it pertain to interpretation of company personnel policy. (Maneja v. NLRC, G.R. No. 124013, June 5, 1998)

Q: Sime Darby Salaried Employees (Ees) Association‐ALU (SDSEA‐ALU) wrote petitioner Sime Darby Pilipinas (SDP) demanding the implementation of a performance bonus provision identical to the one contained in their own CBA with SDP. Subsequently, SDP called both respondent SDEA and SDEA‐ALU to a meeting wherein the former explained that it was unable to grant the performance bonus. In a conciliation meeting, both parties agreed to submit their dispute to voluntary arbitration. Their agreement to arbitrate stated, among other things, that they were "submitting the issue of performance bonus to voluntary arbitration."

Does the voluntary arbitrator (VA) have the power to pass upon not only the question of whether to grant the performance bonus or not but also to determine the amount thereof?

A: Yes, in their agreement to arbitrate, the parties submitted to the VA “the issue of performance bonus.” The language of the agreement to arbitrate may be seen to be quite cryptic. There is no indication at all that the parties to the arbitration agreement regarded “the issue of performance bonus” as a two‐tiered issue, only one tier of which was being submitted to arbitration. Possibly, Sime

Darby’s counsel considered that issue as having dual aspects and intended in his own mind to submit only one of those aspects to the VA, if he did, however, he failed to reflect his thinking and intent in the arbitration agreement. (Sime Darby Phils. v. Magsalin, G.R. No. 90426, Dec. 15, 1989)

Q: Apalisok, production chief for RPN Station, was dismissed due to her alleged hostile, arrogant, disrespectful, and defiant behavior towards the Station Manager. She informed RPN that she is waiving her right to resolve her case through the grievance machinery as provided in the CBA. The voluntary arbitrator (VA) resolved the case in the employees (Ees) favor.

On appeal, the CA ruled in favor of RPN because it considered the waiver of petitioner to file her complaint before the grievance machinery as a relinquishment of her right to avail herself of the aid of the VA. The CA said that the waiver had the effect of resolving an otherwise unresolved grievance, thus the decision of the VA should be set aside for lack of jurisdiction. Is the ruling of the CA correct?

A: No. Art. 262 of the Labor Code provides that upon agreement of the parties, the VA can hear and decide all other labor disputes.

Contrary to the finding of the CA, voluntary arbitration as a mode of settling the dispute was not forced upon respondents. Both parties indeed agreed to submit the issue of validity of the dismissal of petitioner to the jurisdiction of the VA by the Submission Agreement duly signed by their respective counsels. The VA had jurisdiction over the parties’ controversy.

The Ees waiver of her option to submit her case to grievance machinery did not amount to relinquishing her right to avail herself of voluntary arbitration. (Apalisok v. RPN, G.R. No. 138094, May 29, 2003)

8.COURT OF APPEALS

Q: Is judicial review of the NLRC’s decision available?

A: Yes, through petitions 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.

19

(St. Martin Funeral Home v. NLRC, G.R. No. 130866, Sep. 16, 1998) Note: Rule 65, Section 1, Rules of Court

Petition for Certiorari‐‐When any tribunal, board or officer exercising judicial or quasi‐judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non‐forum shopping as provided in the third paragraph of section 3, Rule 46.

Q: Within what period should the petition for certiorari be filed with the Court of Appeals?

A: Under Section 4, Rule 65 (as amended by A.M. No. 00‐2‐03‐SC) of the Rules of Civil Procedure, the petition must be filed within sixty (60) days from notice of the judgment or from notice of the resolution denying the petitioner’s motion for reconsideration. This amendment is effective September 1, 2000, but being curative may be given retroactive application. (Narzoles v. NLRC, G.R. No. 141959, Sep. 29, 2000)

The period within which a petition for certiorari against a decision of the NLRC may be filed should be computed from the date counsel of record of the party receives a copy of the decision or resolution, and not from the date the party himself receives a copy thereof. Article 224 of the Labor Code, which requires that copies of final decisions, orders or awards be furnished not only the party’s counsel of record but also the party himself applies to the execution thereof and not to the filing of an appeal or petition for certiorari. (Ginete v. Sunrise Manning Agency, G.R. No. 142023, June 21, 2001)

9.SUPREME COURT

Q: How does a party appeal from a judgment, or final order or resolution, of the Court of Appeals?

A: A party desiring to appeal may file with the Supreme Court a verified petition for review on certiorari under Rule 45 within fifteen (15) days from notice of the judgment, final order or

resolution appealed from. (Sea Power Shipping Enterprises, Inc. v. CA, G.R. No. 138270, June 28, 2001)

Note: Rule 45, Section 1, Rules of Court:

Filing of petition with Supreme Court.—A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law, which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency.

Q: Give the policy of the Supreme Court regarding appeals in labor cases.

A: 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 latter is constrained to give up for less than what is due him. (Firestone Tire and Rubber Co. of the Philippines v. FirestoneTire and Rubber Co. Employees Union, G.R. No. 75363, Aug. 4, 1992)

10.PRESCRIPTION OF ACTIONS

Q: Give the rules as regards the prescriptive period provided for in the Labor Code (LC).

A:

SUBJECT PRESCRIPTIVE PERIOD Offenses penalized

3 years under the LC

One (1) year from

ULP accrual of such ULP;

otherwise forever

barred (Art. 290) 3 years from the time

Money Claims the cause of action accrued; otherwise

forever barred Within one (1) year

All money claims from the date of

effectivity, in accruing prior to the

accordance with IRR; effectivity of the LC

otherwise, they shall

forever be barred

Workmen’s Dec. 31, 1974 shall be Compensation claims filed not later than Mar.

accruing prior to the 31, 1975 before the

20

effectivity of the LC and appropriate regional

between Nov. 1, 1974‐ offices of the

Dec. 31, 1974 Department of Labor.

(Art. 291)

4 years. It commences

to run from the date of

Illegal Dismissal Cases

formal dismissal. (Mendoza v. NLRC, G.R.

No. 122481, Mar. 5,

1998)