LABOR LAW REVIEW (2ND SEM, SY 07-08)

NOTE: These are my notes in the Labor Law

Review class under Atty. Marlon J. Manuel. I
included some of the doctrines from the cases
assigned. The notes under the specific topics are
in no way exhaustive, as I did not anymore
include those that are already found in the Ateneo
Central Bar Operations 2008 Summer Reviewer.

EMPLOYER EMPLOYEE RELATIONSHIP

A. Elements of Relationship
Cases:
Abella v. PLDT
Factors to determine EER:
a. Selection & engagement of employee
b. Payment of wages
c. Power to dismiss
d. Power to control employees conduct
Villamaria v. CA
The jeepney owner/operator-driver
relationship under the boundary system is
that of employer-employee and not
lessor-lessee. This was analogously
applied to govern the relationships
between auto-calesa owner/operator and
driver, bus owner/operator and
conductor, and taxi owner/operator and
driver.
The boundary system is a scheme by an
owner/operator engaged in transporting
passengers as a common carrier to
primarily govern the compensation of the
driver, that is, the latters daily earnings
are remitted to the owner/operator less
the excess of the boundary which
represents the drivers compensation.
The existence of an employment relation
is not dependent on how the worker is
paid but on the presence or absence of
control over the means and method of
the work.
Sonza v. ABS-CBN Broadcasting Corp.
The specific selection and hiring of Sonza,
because of his unique skills, talent
and celebrity status not possessed
by ordinary employees, is a
circumstance indicative, but not
conclusive, of an independent contractual
relationship.
ABS-CBN was not involved in the actual
performance that produced the finished
product of Sonzas work.

Ryan Quan 4C / Ateneo Law 2008

ATTY. MARLON J. MANUEL

ABS-CBNs control was limited only to the
result of SONZAs work, whether to
broadcast the final product or not.
B. Independent Contractors & LaborOnly Contractors
ILLEGITIMATE
LEGITIMATE
No substantial capital Substantial Capital
No independent
Independent / distinct
business
business
No control (principal
Contractor uses own
exercises control)
means & methods
Contractor has
control
Not registered with
Registered with DOLE
DOLE
If the nature of the employees work is
directly related to the business of the
employer, there is NO legitimate
contracting.
All elements / qualifications of legitimate
contracting must be present.
One disqualification would taint the
legitimacy of the contracting
arrangement. A single disqualifier would
make one an illegitimate contractor.
2 contracts in legitimate contracting:
1. principal & contractor (contract for
services)
2. contractor & employees (EER)
Labor-Only Contracting
The contractor is deemed to be the
agent of the principal.
The contractor becomes one party with
the principal.
The principal becomes the direct
employer of the workers.
Element of control in job contracting
Added by DO 18
Not enough for contractor to assign
supervisors in the work premises of the
principal; if control is with the principal, it
negates the legitimacy of the contracting
arrangement
Prohibited activities under DO 18
Sec. 6 states Notwithstanding Sec. 5
[Sec. 5 defines LOC]
If you dont fall within the definition of
LOC, then you are a legitimate contractor.
But if you commit one of the prohibited

LABOR LAW REVIEW (2ND SEM, SY 07-08)

activities under Sec. 6, you would become
a LOC.
Sec. 7 covers the situation where a
legitimate contractor commits prohibited
acts. (2nd par., [b] principal deemed the
employer)
Liabilities
In legitimate contracting, the employer is
the contractor. The principal is the
indirect employer (for purpose of
payment of wages).
Art. 106, par. 2:
Not required that the contractor be
insolvent
Even if the principal has already paid the
contractor, but the contractor didnt pay
the workers, the workers can claim from
the principal the unpaid wages. (subject
to principals right to reimbursement from
the contractor)
Backwages cannot be claimed under Art.
106. (It provides for payment of wages for
worked performed for the principal. Thus,
the workers cannot claim backwages for
services not rendered for a particular
principal.)
But 13th Month Pay may be claimed under
106.
Art. 109. Solidary Liability
Rosewood Processing case: Art. 109
applies only if the principal is at fault (in
this case, the principal was adjudged NOT
liable for backwages and separation pay
since it did not commit acts constituting
illegal dismissal)
MANUEL the decision has no basis; 109
is broad enough to cover any violation of
any provision of the Code.
Sec. 19, DO 18: A principal who is not at
fault may be held liable. (The provision
does not distinguish.)
But Rosewood says that there should be a
violation by the principal in order for it to
be liable.
Cases:
San Miguel Corp. v. Aballa
The test to determine the existence of
independent contractorship is whether
one claiming to be an independent
contractor has contracted to do the work
according to his own methods and
without being subject to the control of the
Ryan Quan 4C / Ateneo Law 2008

ATTY. MARLON J. MANUEL

employer, except only as to the results of
the work.
Manila Water v. Pena
The contractor is considered merely an
agent of the principal employer and the
latter is responsible to the employees of
the labor-only contractor as if such
employees had been directly employed
by the principal employer.
Rosewood Processing, Inc. v. NLRC
In the absence of proof that the employer
itself committed the acts constitutive of
illegal dismissal or conspired with the
security agency in the performance of
such acts, the employer shall not be liable
for back wages and/or separation pay
arising as a consequence of such unlawful
termination.

CLASSES

OF

EMPLOYMENT

A. Probationary Employees
Probationary period is NOT a legal
requirement
Requirements:
o Apprise employee of nature of
employment
o Inform employee of standards to be
met to become regular
Probationary period is 6 months. Beyond
that, the employee becomes regular.
o But if there is an apprenticeship
program, period may be extended.
However, if employee is allowed to
work beyond the agreed period, he
becomes regular.
Computation of 6-month period there
are 2 conflicting decisions
Alcira v. NLRC
The computation of the 6-month
probationary period is reckoned from the
date of appointment up to the same
calendar date of the 6th month following.
Mitsubishi Motors v. Chrysler Phils. Labor
Union
The probationary period of 6 months is
equivalent to 180 days.
B. Project Employees
Employment fixed for a specific project or
undertaking

LABOR LAW REVIEW (2ND SEM, SY 07-08)

If work extends beyond intended
accomplishment NOT project
Work Pool concept now applied also to
other industries
Day Certain Rule no need to specify
exact date; so long as the duration can be
determined (i.e. completion of
construction of a building)
Project becomes Regular:
o
Work beyond project
o
Repeated rehiring
Same nature of tasks
After regularization, the period in
between projects, the employee is
considered on temporary lay-off.
No work, no pay principle applies.
(Maraguinot v. NLRC)
Before regularization, the
employee is considered
terminated at the end of the
project.
Hired for a project/season, then assigned
to some other work during the
project/season, then the employee is not
a project or seasonal employee.
2 Basic requirements for Project
Employment:
o Specific tasks (defined)
o Specific period / duration of project
According to SC, there are 2 kinds of
projects:
o Project outside the line of business of
the employer
o Project within the main line of
business of the employer but still
severable (ex: construction) distinct
undertaking which can be isolated
On call centers
No SC decision yet.
MANUEL not different projects tied to
particular customers; otherwise, it may
result to circumvention of regular
employment
C. Seasonal Employment
Regular seasonal employees no definite
no. of years for one to become regular. It
depends on the circumstances.
MANUEL remove seasonal, they are
regular
What happens to the employment
relation at the end of the season?
o Not yet regular terminated

Ryan Quan 4C / Ateneo Law 2008

ATTY. MARLON J. MANUEL

o

Repeated rehiring (regularized) at

the end of the season or in between
seasons, employment is suspended
(EER continues but they are
considered on temporary lay-off)
Free to work for others, but when
the next season comes about,
employee can demand that he be
hired

D. Fixed-Term Employment
Introduced by Brent School case
Brent: we should not limit the right of the
employer to engage employees for a
limited period
SC admitted the argument but did not
apply the LC, but made reference to the
NCC
Exceptional category; applicable only
under exceptional circumstances
Cannot be used by employer in any
position, esp. if the contract is one of
adhesion
Cases:
Millares v. NLRC
Seafarers are not considered regular or
permanent employees under Article 280
of the Labor Code. Their employment
automatically ceases upon the expiration
of their contracts of enlistment (COE).
Philips Semiconductors v. Fadriquela
The continuing need for the services of
the respondent is sufficient evidence of
the necessity and indispensability of her
services to the petitioners business.
By operation of law, then, the respondent
had attained the regular status of her
employment with the petitioner, and is
thus entitled to security of tenure as
provided for in Article 279 of the Labor
Code.
Viernes v. NLRC & Benguet Electric
There are two separate instances
whereby it can be determined that an
employment is regular: (1) The particular
activity performed by the employee is
necessary or desirable in the usual
business or trade of the employer; or (2)
if the employee has been performing the
job for at least a year.
Continued employment after expiration of
the employment contract is evidence of

LABOR LAW REVIEW (2ND SEM, SY 07-08)

the necessity or desirability of the
employees services.
Filsystems v. Puente
The length of service of a project
employee is not the controlling test of
employment tenure.
In the present case, the contracts of
employment of attest to the fact that he
was hired for specific projects. His
employment was coterminous with the
completion of the projects for which he
had been hired. Those contracts
expressly provided that his tenure of
employment depended on the duration of
any phase of the project or on the
completion of the construction projects.
ABS-CBN Broadcasting Corp. v. Nazareno
Production assistants are not project
employees. They are regular employees.
The persisting need for their services was
sufficient evidence of the necessity and
indispensability of such services to the
employers business or trade.

RIGHT

TO

SELF-ORGANIZATION

A. Concept & Scope

Applies not only to workers, but to all
citizens
Organization of employees not
necessarily a labor org in the context of
EER.
2 categories:
o Labor org for purpose of collective
bargaining
o Workers association for other
legitimate purposes
RA 9481 attempts to relax rules on
forming labor organizations
B. Labor Organizations & Registration
of Unions
Policy: regulate unions (exercise of states
police power) done thru registration
Enterprise-level union operating in the
company level
o Independent Union registers on its
own without being under a federation
Has its own legal personality
Upon joining a federation, it
becomes an AFFILIATE

Ryan Quan 4C / Ateneo Law 2008

ATTY. MARLON J. MANUEL

Chartered Local does not register
on its own; created by a federation
Legal personality attached to a
federation
If it registers independently and
decides to stay with the
federation, it becomes an
AFFILIATE
Federation aggrupation of unions
(coalition of enterprise-level unions)
o Also regulated and needs to register
o Industry, Geographical region,
national level
Trade Union Centers aggrupation of
different federations
Affiliate is NOT the same as a chartered
local.
o

What if parent federation loses legal

personality?
1997 chartered local loses legal
personality, BUT if it is administering a
registered CBA, legal personality
continues until the end of the CBA term.
(This exception is not anymore found in
DO 40.)
2003 (DO 40) There are 2 views:
o Chartered local loses legal personality
o Chartered local only acquires legal
personality from the parent federation
but does not need the federation for
its continued existence.
MANUEL No SC decision yet. To be safe,
the chartered local should register.
To create unions:
REGISTERING
CHARTERING
DO 9 Issuance of
Submission of
(1997 certificate of
charter
)
registration by
certificate &
DOLE
other documents
to DOLE
DO
Issuance of
Issuance of
40
certificate of
certificate of
(2003 registration by
creation of a
)
DOLE
chartered local
Art.
Issuance of
234charter
A, RA
certificate* [BUT
9481
only for filing
(2007
PCE]
)
Attach charter
certificate to
PCE.
* It is during the pendency of the application
for registration when the harassment occurs.

LABOR LAW REVIEW (2ND SEM, SY 07-08)

The purpose is to go through the issue of
representation first before revealing the
officers of the union.
Sec. 5, Book III, Rule V
DO 40 excluded in the requirements the
submission of the names of union officers
DO 40-B submit the following to the reg.
ofc:
o Charter certificate
o Names of locals officers, their
addresses, principal office of the
local / chapter
o Constitution & by-laws
RA 9481 brought back these
requirements (Art. 234-A)
Cancellation of Union Registration
Usually used to delay CE proceedings
DO 40 Once acquired, legal personality
of a LLO is not affected by a petition to
cancel
Collateral attack is NOT allowed
Should file a separate petition for
cancellation (but this will not suspend the
CE proceedings, as provided in Art. 238-A
[inserted by Sec. 4 of RA 9481])
Cases:
Progressive Development Corp. v. Secretary
There is greater reason to exact
compliance with the certification and
attestation requirements for local or
chapters because several requirements
applicable to independent union
registration are no longer required in the
case of formation of a local or chapter.
The policy of the law in conferring greater
bargaining power upon labor unions must
be balanced with the policy of providing
preventive measures against the
commission of fraud.
Pagpalain Haulers v. Trajano
There is no more need for the filing of
books of accounts for the registration of a
labor organization.
However, the Court pointed out that
Department Order No. 9 only dispenses
with books of accounts as a requirement
for registration of a local or chapter of a
national union or federation. As provided
by Article 241 (h) and (j), a labor
organization must still maintain books of
account, but it need not submit the same
as a requirement for registration.
Ryan Quan 4C / Ateneo Law 2008

ATTY. MARLON J. MANUEL

Laguna Autoparts v. Office of the Secretary

The legal personality may not be subject
to a collateral attack but only through a
separate action instituted particularly for
the purpose of assailing it.
The employer has no legal personality to
oppose the PCE. The choice of a collective
bargaining agent is the sole concern of
the employees.
The only exception to this rule is where
the employer has to file the petition for
certification election pursuant to Article
258 of the Labor Code because it was
requested to bargain collectively, which
exception finds no application in the case
before us.
Its role in a certification election has aptly
been described as that of a mere
bystander.
C. Special Groups of Employees
Cases:
Cathay Pacific Steel Corp. v. CA
Supervisory employees are those who, in
the interest of the employer, effectively
recommend such managerial actions, if
the exercise of such authority is not
merely routinary or clerical in nature but
requires the use of independent
judgment.
Managerial employees are those who are
vested with powers or prerogatives to lay
down and execute management policies
and/or hire, transfer, suspend, lay off,
recall, discharge, assign or discipline
employees.
Tagaytay Highlands v. Tagaytay Highlands
Employees Union
The nature of the employees function
and not the nomenclature or title given to
the job which determines whether the
employee has rank-and-file or managerial
status or whether he is a supervisory
employee.
Confidential Employees
San Miguel Corp. Supervisors & Exempt
Union v. Laguesma
Confidential employees are those who (1)
assist or act in a confidential capacity, (2)
to persons who formulate, determine, and
effectuate management policies in the
field of labor relations.

LABOR LAW REVIEW (2ND SEM, SY 07-08)

The 2 requisites must concur for one to
be considered confidential.
The exclusion from bargaining units of
employees who, in the normal course of
their duties, become aware of
management policies relating to labor
relations is a principal objective sought to
be accomplished by the confidential
employee rule. The broad rationale
behind this rule is that employees should
not be placed in a position involving a
potential conflict of interests.
An important element of the confidential
employee rule is the employees need to
use labor relations information.
Commingling
Atlas Litographic Services v. Laguesma
Extended the prohibition of Art. 245
(prohibiting commingling of R&F and
supervisory employees in a union) to
organizations
R&F union and supervisory union cannot
affiliate with 1 federation
DLSU Medical Center v. Laguesma
In order for prohibition on commingling to
apply, the following conditions must
concur: First, the rank-and-file employees
are directly under the authority of
supervisory employees. Second, the
national federation is actively involved in
union activities in the company.
BUT RA 9481 amended Art. 245. In effect,
overturning Atlas Litographic.
NOW: R&F union and supervisory union
operating in the same establishment may
join the same federation.

UNFAIR LABOR PRACTICES

ULP linked to right to self-org and
collective bargaining and the right to
peaceful concerted activities
Interference to the 3 rights
No need for actual interference; it is
enough that there is tendency to cause
interference
ULP is an actionable wrong. (LLO can file
a case against the employer for ULP.)
ULP can be subject of a Notice of Strike
(this is why it is important to determine if
ULP exists)
Ryan Quan 4C / Ateneo Law 2008

ATTY. MARLON J. MANUEL

DUTY

TO

BARGAIN COLLECTIVELY

Cases:
Kiok Loy v. NLRC
Collective bargaining which is defined as
negotiations towards a collective
agreement, is one of the democratic
frameworks under the Labor Code,
designed to stabilize the relation between
labor and management and to create a
climate of sound and stable industrial
peace.
Gen. Milling Corp. v. CA
The employers refusal to make a
counter-proposal to the unions proposal
for CBA negotiation is an indication of its
bad faith. Where the employer did not
even bother to submit an answer to the
bargaining proposals of the union, there is
a clear evasion of the duty to bargain
collectively.
Art. 253 mandates the parties to keep the
status quo while they are still in the
process of working out their respective
proposal and counter proposal.

Capitol Medical Center v. Trajano

The pendency of a petition for
cancellation of union registration does not
preclude collective bargaining.

BARGAINING UNIT
Who determines the BU? the applicant
bargaining agent
The issue of being an appropriate BU is
important at:
o Early stage of organization phase
even the name of the labor org
matters because it may determine the
BU
o PCE only those who are part of the
BU can vote in the PCE (defines
voters)
o CBA negotiations only those covered
by the BU can benefit from the
provisions of the CBA (even if they are
not members of the union)

LABOR LAW REVIEW (2ND SEM, SY 07-08)

Possible Divisions:
o Specific occupational grouping
o Geographical grouping
o Manner of payment
Confidential Employees
Not entitled to right to self-organization
even if they are considered as R&F
They are akin to managerial employees
Requisites:
o Fiduciary relation with a managerial
employee
o Managerial employee involved in
labor relations matters
o Job (performance of his job) of the
confidential employee requires him to
have necessary access to confidential
information
Bargaining
1. Party who desires to negotiate serves
notice, attaching a draft / proposed CBA
2. Other party submits counter-proposal
3. Negotiations (conferences) can go on as
long as the parties are willing
4. If dispute is not settled, NCMB will
intervene
5. If the parties agree, put agreement in
writing
The draft proposal (CBA) is important (if
there is no existing CBA) because if
management refuses to bargain in good
faith or does not submit its counterproposal, the draft CBA can become the
CBA between the parties.
There must be a case declaring the draft
CBA as the effective CBA as if there had
been negotiations.
Will this apply if management refuses to
bargain in cases of renegotiation at the
end of the 3rd year? YES. Proposed CBA
will be imposed.
Retroactivity of CBA
Example: CBA term: 01 Jan 2008 31 Dec
2012
1. CBA resulting from NEGOTIATIONS:
If agreement arrived at within 6 months
from expiry (up to 30 June 2013)
retroact new CBA to the day following the
expiry (in this case, 01 Jan 2013)
[automatic retroactivity clause]
If agreement beyond 6-month period
parties will agree as to retroactivity
Ryan Quan 4C / Ateneo Law 2008

ATTY. MARLON J. MANUEL

If there is no agreement as to the
retroactivity, then apply the new CBA
prospectively.
2. CBA resulting from intervention of govt
agencies (ARBITRAL AWARD)
If award falls within 6 months apply
automatic retroactivity clause (as if
parties agreed)
If award beyond 6-month period
o parties will agree as to retroactivity
o day after 6 months (i.e. 01 July 2013)
o if no existing CBA, then at the
discretion of the DOLE Secretary
o

CBA is a contractual obligation between

the parties. Thus, management cannot
withdraw.
If management agrees to certain
limitations to management prerogative,
such agreement is valid. In effect,
management has abandoned such
prerogative.

CERTIFICATION ELECTION PROCEEDINGS

Organized establishment there is an
incumbent exclusive bargaining
representative (EBR)
Thus, even if there are 10 unions, but
there is no EBR, then it is still
unorganized.
Organized vs. Unorganized: difference in
requirements. In organized, signatures of
25% of the employees in the BU are
required.
RA 9481: Federation can file a PCE after it
has created a chartered local
Art. 234-A: Chartered local can file PCE
o But cannot bargain nor file a notice of
strike
o The charted local must submit the
other requirements in order to have
the rights and privileges of a LLO. (i.e.
disclose union officers after CE)
Non-registration of CBA opens the union
to attacks (re its majority status) at any
time
If CBA good only for 4 years, is the last
60-day freedom period material? YES.
For purposes of negotiation

LABOR LAW REVIEW (2ND SEM, SY 07-08)

But the freedom period is still the last the
60 days of the 5-year period (for the
representation aspect).
The freedom period (last 60 days):
o Period to negotiate (duty to bargain
collectively)
o Period to file PCE
Consent Election
Will have the same effect as the conduct
of a certification election if done under
the supervision of DOLE (selecting an
EBR)
Before DO 40, it is an internal contest
which will not have the effect of choosing
an EBR.
If there is no DOLE supervision,
o Valid election
o But will not gave effect of a CE
o Unofficial election (thus, not a bar to
CE)
Consent election dispenses with the need
for an order from the Med-Arbiter
Med-Arbiter will just note the fact in the
minutes that the contending unions
agreed to hold the consent elections.
Inclusion Exclusion Proceedings
Part of finalization of voters list
If there is a disagreement, all will be
allowed to vote (to expedite proceedings).
Subject to segregation. If the segregated
ballots will not materially alter the results,
there is no more need to determine the
eligibility of the segregated votes.
Double Majority
Example: 300 eligible voters
151 should vote to have a valid election
(majority of the voters allowed to vote).
Otherwise, there is failure of election.
(certification year bar will no set in)
Spoiled ballots will reduce the needed
votes to determine the EBR.
Spoiled ballots will not affect the validity
of the elections (since what is needed to
have a valid elections is for majority of
the eligible voters to vote)
To be the EBR, a union must get majority
of the valid votes cast.
No union choice is taken out during runoff election; that is why you need at least
50% of the employees to vote for unions.

Ryan Quan 4C / Ateneo Law 2008

ATTY. MARLON J. MANUEL

It means that at least 50% are amenable
to having a union to represent them.
3 or more choices means at least 2
contending union, the last choice being
no union
Bars to Certification Election
1. Certification year bar
1 year from the holding of a valid election
Within 1 year from being certified, the
union must start negotiations
Within the 1 year period, ideally a CBA
must be concluded so that when the
certification year bar lapses, the union
will have the contract bar.
Note: At the lapse of the 1 year, another
PCE can be entertained.
1 year bar applies if no union gets
majority of the valid votes cast.
1 year period counted from date when
you have the final results (Med-Arbiter
proclaims final results)
2. Deadlock bar
Incumbent EBR is a party
Deadlock submitted for conciliation or
arbitration
Or had become subject of a valid strike or
lockout
3. Contract bar
When a valid and registered CBA is
subsisting, BLR is not allowed to hold an
election contesting the majority status of
the incumbent EBR
4. Negotiation bar
Once negotiations are started within the
1st year, even if there is no CBA at the
end of the 1-year period, it will be enough
to bar a subsequent CE.
But there must me sustained negotiations
After the conduct of the CE, the results
can be appealed to the DOLE Secretary.
Then to the CA (Rule 65), then to SC (Rule
45). Grounds: violations and those which
can be raised at the start
CE non-adversarial
There is a bias in favor of conducting a
CE. In UNORGANIZED establishments,
right to appeal the grant of a PCE is
suspended. The appeal may be filed after
the CE (re conduct and results of CE).

LABOR LAW REVIEW (2ND SEM, SY 07-08)

Case:
DHL Phils. v. Buklod ng Manggagawa ng DHL
Court allowed the 2nd CE despite the
conduct of a valid CE on ground that
there was misrepresentation on the part
of the winning union as regards its
affiliation (the union was not an
independent union).
The election officers authority to certify
the results of the election is limited to
situations in which there has been no
protest filed; or if there has been any, it
has not been perfected or formalized
within five days from the close of the
election proceedings.
The circumstances in the present case
show that the employees did not sleep on
their rights. Hence, their failure to follow
strictly the procedural technicalities
regarding the period for filing their
protest should not be taken against them.
Mere technicalities should not be allowed
to prevail over the welfare of the workers.
MANUEL apply case only in cases
falling squarely within the facts

STRIKES, LOCKOUTS &

CONCERTED ACTIVITIES
Temporary stoppage of work taken from
the point of view of the employees (i.e.
they stopped working; no need for the
company to stop its operations)
Govt employees can picket so long as
there is no stoppage of work.
Welga ng Bayan
Phil. Blooming Mills: it is a form of free
expression
Biflex Phils.: illegal strike
MANUEL categorize any stoppage of
work directed against the employer as a
strike
If there is a different agenda, then it
would be different. In Biflex, SC held that
participation in welga ng bayan is
considered an illegal strike.
SC even considered the refusal to render
OT work as illegal strike.
Art. 263 (c): SC interprets this provision
as a bar to the minority union from

Ryan Quan 4C / Ateneo Law 2008

ATTY. MARLON J. MANUEL

conducting a strike even if there is ULP if
there is an EBR.
Can a federation file a Notice of Strike?
NO. It is more reasonable to interpret
any LLO as those in the enterprise level.
Reason: there are only 2 grounds, ULP
and bargaining deadlock. It is the
bargaining agent that is directly involved
in the labor dispute.
Also, the amendment brought about by
RA 9481 states that a federation or a
union can file a PCE. There is no
categorical statement as to filing of a
notice of strike.
Good Faith Strike (exceptional situation)
No valid ground for strike
Justified if the union believed in good faith
that based on the circumstances and acts
of management, the latter is committing
ULP
This will validate the strike
It is the court which will determine if the
strike was in good faith.
Cooling off period
Bargaining deadlock 30 days
ULP 15 days (in union-busting, 15-day
cooling off period to be dispensed with)
Both counted from filing of notice of strike
Strike Vote
Should be conducted by the union
Voting is within the union, NOT within the
BU
Give notice to NCMB as to the conduct of
the strike vote (24 hours before the
meeting)
Strike vote results should be submitted to
the NCMB.
7-day Strike ban
7 days before intended date of strike
Both cooling off period and strike ban
should be complied with.
The strike ban can be within the 30- or
15-day cooling off period.
Will the 7-day strike ban still apply in case
o union busting? MANUEL No. Sec. 7,
Rule XXII states that the union may take
action IMMEDIATELY after strike vote is
conducted. [But see Sukothai case its
in the BarOps Supplements]

LABOR LAW REVIEW (2ND SEM, SY 07-08)

Assumption & Certification Orders
Who can issue? DOLE Secretary &
President
Who has jusridiction?
Assumption
DOLE Secretary
Certification
NLRC
Industry indispensable to national interest
What if the entire industry is not affected,
but only a portion of it? an assumption /
certification order can still be issued
In assumption/certification (A/C), the
DOLE Secs initiative turns the dispute
into a case. No need for any of the parties
to initiate the case, it is the govt which
does so.
Rationale: so that the strike or lockout
wont affect the industry. The objective is
to stop the strike or lockout and end the
dispute.
It is effective because it carries
immediate disciplinary action. The severe
consequences of violation make it a
deterrent.
The order must be served personally or
by registered mail.
o Mere posting is not enough (FEU case)
o MANUEL Following this case, then
service thru publication would not be
enough
o The officers must be duly notified
o Can be done thru substituted service
o NLRC Rules: must be served in the
most expeditious manner
In case of A/C, some workers return to
work and others dont, those who defy
the order can be terminated.
o The distinction between the liability of
union officers & members applies only
in illegal strikes.
A/C objective is to bring back the
situation to the status quo ante, so all
employees must be admitted back to
their former positions.
The employer does not have the option to
effect payroll reinstatement. There must
be actual reinstatement to their former
positions.
In A/C cases, the DOLE Sec. can decide
illegal termination aspect or issue of
legality of the strike (because the
objective is to end the dispute).
Art. 264 (d) & (e) picketing
Ryan Quan 4C / Ateneo Law 2008

ATTY. MARLON J. MANUEL

Assumes that the picketing occurred
during the strike
Because if the strike is invisible
prohibited activities will not occur
Replacement workers
Temporary workers can be hired
E: if through an agency, it will be a
prohibited activity under the rules on
contracting
Cases:
Biflex Phils. v. Fiflex Industrial
Stoppage of work due to welga ng bayan
is in the nature of a general strike, an
extended sympathy strike. It affects
numerous employers including those who
do not have a dispute with their
employees regarding their terms and
conditions of employment.
Employees who have no labor dispute
with their employer but who, on a day
they are scheduled to work, refuse to
work and instead join a welga ng bayan
commit an illegal work stoppage.
FEU-NRMF v. FEU-NRMF Employees
Association
An Order issued by the Secretary of Labor
assuming jurisdiction over the labor
dispute is not a final judgment for it does
not dispose of the labor dispute with
finality. Consequently, the rule on service
of summons and orders, and not the
proviso on service of decisions and final
awards, governs the service of the
Assumption of Jurisdiction Order.
Notices or summons and copies of orders,
shall be served on the parties to the case
personally by the Bailiff or duly
authorized public officer within three (3)
days from receipt thereof or by registered
mail; Provided that in special
circumstances, service of summons may
be effected in accordance with the
pertinent provisions of the Rules of Court;
Provided further, that in cases of
decisions and final awards, copies thereof
shall be served on both parties and their
counsel or representative by registered
mail.
Philcom Employees Union v. Phil. Global
Communication
When the Secretary exercises these
powers, he is granted great breadth of
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LABOR LAW REVIEW (2ND SEM, SY 07-08)

discretion in order to find a solution to a
labor dispute. The most obvious of these
powers is the automatic enjoining of an
impending strike or lockout or its lifting if
one has already taken place
A return-to-work order is immediately
effective and executory despite the filing
of a motion for reconsideration. It must be
strictly complied with even during the
pendency of any petition questioning its
validity.
Philippine Diamond Hotel & Resort, Inc. v.
Manila Diamond Hotel Employees Union
Article 242 (a) must be read in relation to
above-quoted Article 255. Only the labor
organization designated or selected by
the majority of the employees in an
appropriate collective bargaining unit is
the exclusive representative of the
employees in such unit for the purpose of
collective bargaining.
The philosophy is to avoid fragmentation
of the bargaining unit so as to strengthen
the employees bargaining power with the
management.
A union officer who knowingly
participates in an illegal strike and any
worker or union officer who knowingly
participates in the commission of illegal
acts during strike may be declared to
have lost his employment status.
An ordinary striking worker cannot, thus
be dismissed for mere participation in an
illegal strike. There must be proof that he
committed illegal acts during a strike,
unlike a union officer who may be
dismissed by mere knowingly
participating in an illegal strike and/or
committing an illegal act during a strike.

SECURITY

OF

TENURE

Cases:
Duncan Association of Detailman-PTGWO v.
Glaxo Wellcome Philippines, Inc.
A company can validly prohibit its
employees from marrying employees of
competitor companies.
The prohibition under the circumstances
is reasonable because relationships of
such nature might compromise the
interests of the company.
Glaxos right to protect its economic
interests cannot be denied as no less
Ryan Quan 4C / Ateneo Law 2008

ATTY. MARLON J. MANUEL

than the Constitution recognizes the right
of enterprises to adopt and enforce such
a policy to protect its right to reasonable
returns on investment and to expansion
and growth.
While protection is provided to labor, the
law also recognizes managements rights
which are also entitled to respect and
enforcement in the interest of fair play.
Star Paper Corp. v. Simbol
The company policy involved is the
employer banning spouses from working
in the same company.
There must be a compelling business
necessity for which no alternative exists
other than the discriminatory practice.
To justify a bona fide occupational
qualification, the employer must prove
two factors: (1) that the employment
qualification is reasonably related to the
essential operation of the job involved;
and, (2) that there is a factual basis for
believing that all or substantially all
persons meeting the qualification would
be unable to properly perform the duties
of the job.
Equitable Banking Corp. v. Sadac
Backwages should be allowed to be
recovered in full without deduction and
without qualification pursuant to Art. 279
of the Labor Code, i.e. without any
deduction of income the employee may
have derived from employment
elsewhere from the date of his dismissal
up to his reinstatement.
Article 279 mandates that an employees
full backwages shall be inclusive of
allowances and other benefits or their
monetary equivalent.
A salary increase cannot be interpreted
as either an allowance or a benefit.
Salary increases are not akin to
allowances or benefits, and cannot be
confused with either. Thus, it is NOT
considered in computing backwages.
The base figure to be used in the
computation of backwages is pegged at
the wage rate at the time of the
employees dismissal, inclusive of regular
allowances that the employee had been
receiving such as the emergency living
allowances and the 13th month pay
mandated under the law.

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LABOR LAW REVIEW (2ND SEM, SY 07-08)

TERMINATION
Just causes
o Willful misdeed
o Related to job or work
o Renders employee unfit for continued
employment
Authorized causes
o Termination should not be
discriminatory
o Good faith
o Reasonable criteria / standard (to
show good faith)
30-day notice requirement
To give adequate notice
In just causes, no need for the 30-day
notice because there was already
adequate notice upon giving of the showcause notice/letter.
Adequate inform the employee of intent
of the employer to terminate him and for
him to show cause why he should not be
terminated
Illegal Dismissal
No just or authorized cause
Remedy is to give back what was taken
away
1. Reinstatement
To old position (status quo ante)
If old position is not available
anymore, look for equivalent
position.
If none, give separation pay in lieu
of reinstatement
2. Separation Pay
Note: Sadac case increases in
salary not included in computation
Strained relations must be proved
at trial
3. Full Backwages
Computed based on total salaries
which should have been received
Computed from the rime of
termination up to time of actual
reinstatement.
If no reinstatement, use the date
of finality of the decision as the
ending point.
Exceptions to full computation of backwages

Ryan Quan 4C / Ateneo Law 2008

ATTY. MARLON J. MANUEL

Company has stopped operations
backwages computed only up to the time
of closure of the company (same with
separation pay)
Employee has already reached retirement
age compute up to retirement
Comparative table on reliefs
Migrant
Illegal
Workers Dismissa
l

Reinstateme
X
nt

Backwages

Separation
X
Pay

No Due
Process
X
X
depends
on
cause*

Damages
* If just cause, no separation pay. If
authorized cause, pay separation pay EXCEPT
in closure due to business losses.
Constructive Dismissal
Can you continue working while claiming
constructive dismissal? theoretically,
yes.
In cases of abandonment, the employer
cannot simply claim abandonment.
Employer must terminate, send notices,
and follow other due process
requirements.
Retirement
Retirement pay = 22.5 days
o 15 days basic wage
o 1/12 of 13th month pay
o 5 days - SIL
Optional retirement at 60 years old
option of the employee, NOT of the
employer

DISPUTE SETTLEMENT
Can the LA be deprived of its original
jurisdiction?
YES.
1. Voluntary arbitration (by stipulation of
the parties)
2. Assumption of jurisdiction by DOLE
Sec. (in this case the DOLE Sec. will have
jurisdiction over all incidents of the case)
Only STATUTORY monetary benefits
should be filed with the LA.
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LABOR LAW REVIEW (2ND SEM, SY 07-08)

ATTY. MARLON J. MANUEL

As long as there is an actual termination,

it is already a termination dispute. Thus,
within the jurisdiction of the LA.
If no termination yet and there is a
dispute as to the interpretation and
implementation of the CBA, then it is still
a grievance.
Reinstatement Pending Appeal
Applies only to decisions of the LA
After all, the decision of the NLRC is not
appealable.
The appeal to the CA (via Rule 65) is
not an appeal; it is an original action.
END
Ad Majorem Dei Gloriam
God bless us all!

Ryan Quan 4C / Ateneo Law 2008

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