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HUMAN RIGHTS IN THE PUBLIC SECTOR

by: ALCANTARA, Chelsea Marife T. PATACSIL, Lucelle E.

In compliance with HUMAN RIGHTS

Atty. Felmanda Camat-Labrador

HUMAN RIGHTS IN THE PUBLIC SECTOR

Public Sector It refers to the part of the economy concerned with providing basic government services. The composition of the public sector varies by country, but in most countries the public sector includes such services as the police, military, public roads, public transit, primary education and healthcare for the poor. Public Sector Laborers Laborers in the public sector are those employed in the government and government-owned or control corporations. The terms and conditions of their employment are provided generally in the administrative code and the particular legislative enactments creating their positions. Rights of Public Sector Laborers 1) Right to security of tenure; A constitutional or legal guarantee that a political office-holder cannot be removed from office except in exceptional and specified circumstances. Without security of tenure, an office-holder may find his or her ability to carry out their powers, functions and duties restricted by the fear that whoever disapproves of any of their decisions may be able to easily remove them from office in revenge. Security of tenure offers protection, by ensuring that an office-holder cannot be victimized for exercising their powers, functions and duties. It enables the democratic or constitutional methodology through which an office-holder comes to office not to be overturned except in the strictest and most extreme cases. 2) Right to self-organization, collective bargaining and negotiations and peaceful concerted activities; Section 5 of Executive Order No. 180 provides that government employees shall not be discriminated against in respect of their employment by reason of their membership in employees' organizations or participation in the normal activities of their organization. Their employment shall not be subject to the condition that they shall not join or shall relinquish their membership in the employees' organizations. 3) Right 4) Right 5) Right 6) Right end; 7) Right ideas to to to to decent living and wage/compensation; due process of law; enjoy leave benefits; avail of the 5 day forced leave before the year

to participate in policy-formulation and decision of among officers and employees throughout the

administrative hierarchy through assemblies, congresses, dialogue and other allied forms of discussion; 8) Right to separation pay in case where separation from the service is not for cause or where it is due to reorganization; 9) Right to back-wages in case of illegal dismissal; 10) Right to claim optional or compulsory retirement benefits; 11) Right to receive terminal leave credits; 12) Right to be represented in the Personnel Selection and promotion Board, Grievances Committee and Personnel Development Committee; 13) Right to occupation health and safety from work hazards; 14) Right to avail of the medical and dental services for employees health protection and maintenance; 15) Right to humane condition of work; 16) Right to appeal in cases where employees are dissatisfied with the decision of the management; 17) Right to be involved in worthwhile activities such as athletics, social, recreational, food production and livelihood which are conducive to the employees well being an inconsistent with the interest of public service; 18) Right to enjoy the two day weekend and rest period per week; 19) Right to observe legal holidays/special holidays; 20) Right to receive overtime pay for authorized services in excess of 8 hours a day; 21) Right to receive 13th month pay or year end bonus; 22) Right of female employees not to be discriminated against with respect to terms and conditions of employment; 23) Right to be secured in their person or property against direct assault or invasion; 24) Right to free exercise and enjoyment if religious worship; 25) Right to freedom and speech / expression; 26) Right to have free access to courts and quasi-judicial and quasi judicial bodies and adequate legal assistance; 27) Right to be presumed innocent until the contrary is given;

Human Rights Problems of Government Workers Some issues raised by public sector workers are: 1.) Heads of government offices and agencies have resorted to various strategies which impede the organization of employees unions. 2.) There is a wide latitude of discretion of directors of management which is rarely challenged; except upon a clear showing of grave abuse of discretion. Courts usually apply the general rule in administrative law. Of the presumption of the regularity in the performance of government functions. 3.) Violation of human rights by government employees are not adequately addressed, often overlooked or tolerated.

4.) The fact that the management selects the resident Ombudsman defeats the purpose of the office as majority of the complaints involve the management officials themselves. 5.) The employees union has no representative in The Public Sector Labor Management Council. 6.) The policy of privatization usually adversely affects the tenure of government employees. 7.) In the implementation of the Local Government Code, there is over the concentration of power in the local chief executive who can likely abuse his authority. Existing Measures Protecting Public Sector Labor and Promoting Human Rights of

1) Employee empowerment through Public Sector Unionism (PSU); 2) Issuance of Public Sector Labor-Management Council (PSLMC ) Resolution No. 1 S. 1998 which reduced membership requirements for registration of unions and 20% to 10%; 3) Expeditious and judicious resolutions of employees grievances; 4) Intervention of Career Executive Service (CES) in the settlement of employee-management disputes; 5) Information campaign on Public Sector Unionism (PSU); 6) Gawad-Kalinga Award or the search for employee-friendly employer; 7) Drawing up of Checklist of reasonable working conditions which will guide the union and management in their collective bargaining negotiations; 8) Monitoring of compliance with the requirement of the implementing Rules of EO 180 registered unions; 9) Holding of separate monthly meetings by CSC Chairman and concerned CSC officials with federations union leaders to discuss pressing issues and problems of government employees; 10) Speedy disposition of cases; 11) Enactment of sexual harassment law (RA 7877 or the AntiSexual Harassment Act of 1995; Administrative Disciplinary Rules on Sexual Harassment Cases as per CSS Resolution No. 01-940 dated May 21, 2001) 12) Creation of task forces to review existing policies and laws concerning civil servants; 13) List of factual situations showing of abuse of exercise of management prerogative and considered constructive dismissal to be presented to agency heads in one of its monthly meeting with undersecretary assistant secretary; PUBLIC SECTOR UNIONISM (PSU) Legitimate Public Sector Union Any union or association of government employees which exist in whole and in part for the purpose of collective negotiations or for mutual aid, interest, cooperation and protection.

Purpose of Organizing For the furtherance and protection of employees interests. Makes government employees aware not only of their rights but also of their responsibility. Knows not only to make impositions or demands but also to listen to reason. Looks upon Management not as rival but as partner to social and economic progress. Balances its interests with those of the management and the agency as a whole.

History and Legal Bases The 1935 Constitution - guaranteed to the workers, both private and public, the right to form associations for purposes not contrary to law.

The Industrial Peace Act (RA 875) - implemented the constitutional guarantee of freedom of association; - set a limit to the exercise of the right to collective bargaining and the right to strike to government employees performing proprietary functions but NOT to those performing governmental functions. The 1973 Constitution - deprived government employees performing proprietary functions of the right to collective bargaining. The Labor Code of the Philippines (PD 442) - excluded government employees, including employees of GOCCs performing proprietary functions, from its coverage and from exercising the right to collective bargaining . The General Corporation Act - caused the creation of subsidiaries of GOCCs; - caused the acquisition of majority of stocks of many privately-owned corporations to avoid foreclosure. Executive Order No. 111 - restored for employees of GOCCs the right to organize and to bargain collectively; and to other employees in the civil service the right to form associations for purposes not contrary to law . the lead in

The 1987 Constitution - allowed the private sector to take development and to privatize GOCCs - guarantees the exercise by the workers sector of the rights to association, collective negotiation and concerted actions including strike in accordance with law .

in the public bargaining and the right to

 Section 8, Article III (Bill of Rights) The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Section 2(5), Article IX-B (Constitutional Commission) The right to self-organization shall not be denied to government employees. Section 3, Article XIII (Social Justice & Human Rights) It shall guarantee the right of all workers to selforganization, collective bargaining and negotiations, peaceful concerted activities including the right to strike in accordance with law. Memorandum Order No. 74 - created the Public Sector Labor-Management Council (PSLMC) and provided guidelines for the exercise of the right to organize of government employees. Executive Order No. 180 June 1, 1987 (Guidelines for the Exercise of the Right to Organize of Employees) - granted to employees of all branches, subdivisions, instrumentalities, and agencies of the government, including GOCCs with original charter, the right to form, join or assist employees organizations of their own choosing for the furtherance and protection of their interest; Implementing Rules of EO 180 Sept. 28, 2004 (Rules and Regulations to Govern the Exercises of the Rights of Government Employees to SelfOrganization) Other Legal Basis SECTION 28 [C], REPUBLIC ACT No. 2260 (AN ACT TO AMEND AND REVISE THE LAWS RELATIVE TO PHILIPPINE CIVIL SERVICE) Civil service employees may belong to any labor organization which does not impose the obligation to strike or to join strike. Rules and Regulations Governing the Exercise of the Right of Government Employees to Organize, As Amended PSLMC Resolution No. 1, s. 1989 (Amendments to the Rules and Regulations to Govern the Exercise of the Right to Government Employees to SelfOrganization) PSLMC Resolution No. 2, s. 1991 (Policies on Accreditation) PSLMC Resolution No. 3, s. 1991

(Policies on the Jurisdiction of the PSLMC) PSLMC Resolution No. 2, s. 1992 (Submission to the CSC and DOLE of Amendments on Union CBL) PSLMC Resolution No. 10-A, s. 1993 (Supplemental Amendments to PSLMC Resolution No. 10, s. 1991 on the Requirement for Registration for Regional Unions) CSC MC No. 45, s. 1989 (Reinstallation of Grievance Machinery in All Government Offices) CSC MC No. 47, s. 1990 (Conciliation and Mediation Service in the Public Sector) CSC MC No. 55, s. 1990 (Policy Directions on the Rights to Collective Negotiations in the Public Sector) CSC MC No. 28, s. 1993 (Registration of CNA) CSC MC No. 5, s. 1996 (CNA Signing Bonus) CSC MC No. 6, s. 1996 (Special Privileges) CSC MC No. 02, s. 2001 (Revised Policies on Settlement of Grievances in the Public Sector)

Who may join Public Sector Unions? (Eligibility) Only rank-and-file employees are eligible as members of public sector employee unions. Casual or contractual cannot organize; they may, however, join or assist employee unions during the period of their employment. Not eligible as members: High level, highly confidential and co-terminous employees Members of the AFP Members of the PNP Firemen Jail guards Others who by nature of their functions are authorized to carry firearms

How would PSU helps in the delivery of public service? protection of rights as civil servants and a union member development and enhancement of social ties platform to air grievances and aspirations unionism espouses a better workplace and work relations organizational harmony leads to better organizational efficiency, productivity and responsiveness increasing awareness about rights and obligations recruitment of new members participation in meetings and other association-related activities development enhancement programs improvements in office systems and procedures 7

report of wrongdoings safeguard the interests, aspirations and rights of members

Collective Negotiation An activity whereby the recognized employees association and the management officials attempt to resolve conflicting interests/differences towards a collective agreement, thus, sustaining and possibly enriching their continuing relationships. Collective Negotiation Agreement (CNA) It is a contract negotiated between an accredited employees organization as the negotiating unit and the employer/management on the terms and conditions of employment and their improvements that are not fixed by law. The following can be subjects of negotiation: Public sector unions are allowed, but limited, to negotiate certain terms and conditions of employment. As a general rule, all subject matters that are already fixed by law cannot be a subject of negotiations. Wages and benefits are subject to statutory regulations which are fixed by Congress. Thus, these matters are outside the domain of negotiation at the agency level. Demands for wage increases and additional benefits will be subject to legislation and appropriations from Congress.

Subject of Negotiation: Under Section 2, Rule XII of the Amended IRR of EO 180, the following may be the subject of negotiation between the management and the accredited employees organization: schedule for vacation and other leaves personnel growth and development communication systems work assignment/reassignment/detail/ transfer distribution of workload provision for protection and safety provision for facilities for handicapped personnel provision for first aide and medical services and supplies physical fitness program provision for family planning services for married women annual medical/physical examination Recreational, social, athletic and cultural activities and facilities CNA incentive pursuant to PSLMC Resolution No. 4, s. 2002 and Resolution No. 2, s. 2003

Such other concerns which are not prohibited by law and CSC rules and regulations.

The following cannot be subjects of negotiation: Those that require fund appropriation cannot be subject to negotiation: 1. Increase in salary emoluments and other allowances not presently provided by law; 2. Facilities requiring capital outlay; 3. Car plan; 4. Special hospitalization, medical/dental services; 5. Provident fund; 6. Rice, sugar and other subsidies; 7. Travel expenses; 8. Increase in retirement benefits Those that involve management prerogative cannot be negotiated: 1. Appointment; 2. Promotion; 3. Reclassification/ upgrading of position; 4. Revision of compensation 5. Penalties imposed as a result of disciplinary actions; 6. Selection of personnel to attend seminars, trainings, study grants

CASES

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SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, petitioner, vs. THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents. G.R.No.85279 July 28, 1989 Facts: On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with the SSS; that the strike was reported to the Public Sector Labor Management Council, which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered damages as a result of the strike. The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants (petitioners herein) be ordered to pay damages; and that the strike be declared illegal. It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices. Issue: Whether or not employees (SSS) have the right to strike. of the Social Security System

Held: The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31]. Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A reading of the proceedings of the Constitutional

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Commission that drafted the 1987 Constitution would show that in recognizing the right of government employees to organize, the commissioners intended to limit the right to the formation of unions or associations only, without including the right to strike. Considering that under the 1987 Constitution "the civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government employees"] and that the SSS is one such government-controlled corporation with an original charter, having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegal.

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Department of Agrarian Reform Rank and File Employee Union (DARRFEU) DAR Provincial Office in Negros Occidental PSLMC Resolution No. 01, s. 2004 June 9, 2004 Facts: Before the Council for resolution is a Motion for Reconsideration filed by Antonia Y. Figueroa, President of the Department of Agrarian Reform Rank-and-File Employees Union (DARRFEU), from Resolution No. 5, series 2003 of the Public Sector Labor-Management Council (PSLMC) dated August 8, 2003, the dispositive portion of which reads, as follows: Wherefore, the Council hereby resolves to rule that the Collective Negotiation Agreement forged between the Department of Agrarian Reform (DAR) and the DAR Rank-and-File Employees Union (DARRFEU), Provincial Office in Negros Occidental has no force and effect and the grant of signing bonus in FY 2001 at P5,000 each per member has no legal basis. Issues: 1. Whether DAR Provincial Office in Negros Occidental can be considered as the employer for purposes of collective negotiations; and 2. Whether registration with the DOLE and CSC under EO No. 180 is sufficient legal basis for an employees organization to enter into collective negotiations with the employer. Held: As to the first issue, the answer is on the negative. Relevant thereto is Section 1 (g) and (j) of Rule I on the Definition of Terms of the Implementing Rules and Regulations of EO No. 180. Undoubtedly, the DAR Provincial Office will not qualify as an appropriate organizational unit for purposes of collective negotiations under the aforesaid definitions. As to the second issue, suffice it to state that the need for accreditation of an employees organization with the CSC to give it the legal personality to enter into collective negotiations with the employer is well-established in or supported by the provisions of the Implementing Rules and Regulations of EO No. 180. It is noted that DARRFEU admitted in the Motion, that it has not obtain accreditation from the Civil Service Commission.

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For its authority to enter into collective negotiations, DARRFEU merely relied on its registration with the CSC and DOLE. It is reiterated that registration alone will not give an employees organization the authority to act as the sole and exclusive negotiating agent of the rank-and-file employees. Finally, the right and authority of the Department of Agrarian Reform Employees Association (DAREA) to represent the rank-and-file employees of the DAR, including those of the DAR Provincial offices, has already been recognized and acknowledged by the Civil Service Commission in Resolution No. 011308, for which the DAREA was issued Certification of Accreditation No. 24. As the accredited union, the DAREA represents not only its members but all the rank-and-file employees of the DAR. It concluded a CNA with the Management on August 16, 2001, which was ratified by 6,803 rank-and-file employees nationwide, representing 50.86% of the total rank-and-file complement of 13,376. WHEREFORE the instant motion for reconsideration is DENIED. PSLMC Resolution No. 05, s. 2003 is hereby AFFIRMED with finality.

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In re Eligibility of Lawyers in the GSIS Legal Service Group for Membership in Employees Organization PSLMC Resolution No. 02, s. 2005 May 4, 2005 DIGEST Facts: Records show that Atty. Albert Velasco, President of the Kapisanan ng mga Manggagawa sa GSIS (KMG-GSIS) requested conciliation services to then Civil Service Commission Chair Karina Constantino-David in relation to the employee-management dispute obtaining in the Government Service Insurance System (GSIS). The request was endorsed to then Director Anicia M. De Lima of the Personnel Relations Office - Civil Service Commission (CSC-PRO), who accordingly conducted separate and joint meetings with GSIS management and GSIS-KMG President Atty. Velasco and other union representatives. In the course of the conciliation, the issue on the eligibility of lawyers of the Legal Services Group in the GSIS to become members and consequently officers of the KMG-GSIS was raised. Consequently, Director De Lima, acting as Chair of the PSLMC Secretariat issued Order dated August 13, 2005 directing GSIS President and General Manager Winston Garcia and Atty. Velasco to submit their respective position papers. Subsequently, GSIS management submitted its position paper to the Council while Atty. Velasco failed to do so. Guided by the provisions of the Executive Orders Nos. 180 and 292, the Council examined the nature of employment of the members of the legal services group of the GSIS. This is to determine their eligibility to join the rank-and-file employees organization, particularly as to whether they perform functions which are highly confidential in nature. Hence, the present resolution. Issue: Whether or not lawyers of the Legal Services Group in the Government Service Insurance System (GSIS) are eligible to become members and consequently officers of the Kapisanan ng mga Manggagawa sa GSIS (KMG-GSIS) Held: Being considered as in-house legal counsels of the GSIS, the members of its legal services group have the duty to act or provide recommendations on legal matters affecting the GSIS like contract review, rendition of legal opinions and legal

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representation in any judicial or quasi-judicial tribunal involving the GSIS or any of its officers and employees. In the process, they gain access and are privy to the GSIS vital documents and policy decisions affecting its operational, financial and administrative concerns. In this sense, the relationship between the GSIS and the members of its legal services group partakes the nature of an attorney-client relationship which is highly fiduciary in nature. Being governed by such relationship the members of the legal services group of the GSIS as legal counsel has the duty to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client xxx (Section 20 [e], Rule 138 of the Rules of Court as amended). Moreover, allowing the in-house legal counsels to join the rank-and-file employees organization militates against and provides the opportunity to breach the rule or confidentiality between an attorney and the client. This is aside from the fact that they will represent two opposing interests, thus, resulting conflict of interest. A member of the rank-and-file employees organization, more particularly an organization officer, has the obligation to support the activities of the organization. These activities are necessarily designed to protect the members interests and include the duty to oppose corporate managements policies and the like, when the same are seemingly detrimental to the members of the organization. Upon the other hand, as an in-house lawyer of the GSIS, he has the duty to contend for that which duty to the union requires him to oppose. It is therefore, apparent that a member of the Legal Services Group of the GSIS who is a member of the rank-and-file employees organization and is actually an officer is representing conflicting interests. Giving him the right to choose which side he shall take, cannot be done without violating his duties and obligations either as counsel of his client or as officer or member of the employees organization. WHEREFORE, the Council resolves that lawyers in the Legal Services Group of the Government insurance System (GSIS) are not eligible to join, much more become officers, of the Kapisanan ng mga Manggagawa sa GSIS (KMG-GSIS). SO ORDERED.

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Bagong Kapisanan ng Mga Manggagawa sa PNR-ITF PSLMC Resolution No. 03, s. 2003 June 18, 2003 DIGEST Facts: The case stemmed from the letter-request dated July 19, 2002 of Apolinario V. Nuez, General Vice-President of the Bagong Kapisanan Ng Mga Manggagawa sa PNR-ITF (Railwaymens Union of the Philippines), the duly accredited union of the Philippine National Railways (BKM-PNR-ITF) requesting Jose Ma. I. Sarasola, II, General Manager of Philippine National Railways (PNR) to, among others, release the union dues by way of check off covering the period from February 2002 to present. Nuez reiterated the same request to GM Sarasola, II in his letter dated July 31, 2002. Acting on the aforesaid request, the PNR, through Atty. Dionisio D. Ramos, Manager, Legal Department, replied that the Collective Bargaining Agreement (CBA) between the PNR Management and the BKM-PNR-ITF had lapsed sometime in 1988, such that management is at present ascertaining and studying its legal basis in effecting such Check-Offs. Moreover, Ramos informed Nuez that considering that the duly elected BKM-PNR-ITF General President is no longer in the service, Ramos requested the new set of Union Officers from the position of General President and down the line and the number of union members who resigned from the union so that it can accurately reconcile the check-off for proper accounting posting. Dissatisfied with the reasons given by Ramos, Nuez sought legal opinion before the Civil Service Commission on whether Sarasola, II had the right to intervene in the internal affairs of the union and to withhold check-off due to the Union. Subsequently, the Commission opined in its letter dated June 27, 2002 that Sarasola, II has no right to withhold the amount deducted from the employees by way of check off. xxx Therefore, after the employer, PNR, in your case, has deducted a certain amount from the employees due the union for fees, fines and assessments, the PNR has the duty to remit it to the union. Similarly, Sarasola, II made query with the Commission, among others, on whether the PNR can validly stop the withholding of union dues, as check off, from the payroll upon formal request of some of the members of the BKM, who accuse their union officers of misappropriating union funds. In his letter, Sarasola, II represents that the officers, specially the General Vice President, General Treasurer and the General Auditor of the BKM-PNR-ITF are demanding from the PNR One Million Fifty Six Thousand Three Hundred Sixteen Pesos and 19/100 (P1,056,316.19) as its total check off receivables covering the period from February 2002 up to June 2002. Sarasola, II represents further that, in a series of

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letters/petitions executed last February 2002 by a majority of the members of the BKM, the said members requested the Office of the General Manager to stop the deductions, representing union dues from their payrolls. It is embodied in their letters that they highly suspect union officers of culpable violation of the Unions Constitution and By-Laws. They based their accusation due to the rampant cash advances made by the incumbent Union officers. At this outset, Edgar P. Bilayon, Apolinario V. Nuez, Antonio V. Laurena, Guido Abella, Eliseo San Pablo, Pablo Mahinay, Carlos Almazan, Danilo Nicolas and Luis Sarmiento, in their capacity as officers of the BKM-PNR-ITF, request the intercession of the Public Sector Labor-Management Council (PSLMC) to direct Sarasola, II to remit the collected union dues from February 2002 up to the present to the BKM-PNR-ITF or to any of its authorized representatives or officers. Acting on the said request, the Council, through its then Chairperson Karina Constantino-David issued Order dated January 3, 2003 directing Sarasola, II to submit his comment which he did. On the other hand, Bilayon et al. filed their reply on February 13, 2003. Hence, this case. Issue: Whether or not the PNR, through its General Manager Jose Ma. I. Sarasola, II can validly stop the withholding of union dues as check off from the payroll upon request of some of the members of the BKM, who accuse their union officers of misappropriating union funds. Ruling: The right of the union to check-off or effect payroll deduction of union dues and other assessments can be done upon presentation of an authorization to deduct from its members. In the instant case, it appears that PNR has an agreement with the BKM-PNR-ITF, with prior authorization executed by the employees to deduct union dues from their salaries and remit them directly with the union. However, records show that in February 2002, members of the BKM-PNR-ITF filed a series of petitions urging the PNR General Manager to stop the deductions, representing union dues from their payrolls which Sarasola, II acceded to the said request. At this outset, Bilayon et al., contends that PNR is guilty of interference and unfair labor practice when it acceded to the request of the members of BKM-PNR-ITF to stop withholding from their wages the amount due to union as check-off. Bilayon et al., further averred that the signature of the members do not appear to be genuine and authentic. Since the members of authorization, there can be the BKM-PNR-ITF withdrew their no valid check-off at all. The

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withdrawal of authorization is equivalent to no check-off at all. The collective form of disauthorization presented by the members of the BKM-PNR-ITF is valid. There is nothing in the law that requires that the disauthorizations must be in individual form. Let it be pointed out, however, prior to the disauthorization presented by the members of the BKM-PNR-ITF, the PNR has the duty to remit directly to the union the amounts deducted from the employees to assure the union of continuous funding. The stoppage of withholding of union dues from the payroll of BKM-PNR-ITF members commences only on February 2002 when the disauthorization was presented. WHEREFORE, the Council hereby rules that the PNR, through its General Manager Jose Ma. I. Sarasola, II can validly stop the withholding of union dues as check off from the payroll upon formal request of some of the members of the BKM-PNR-ITF, who accuse their union officers of misappropriating union funds. However, prior to the disauthorization presented by the members of the BKM-PNR-ITF, the PNR has the duty to remit directly to the union the amounts deducted from the employees to assure the union of continuous funding. SO ORDERED.

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CAMARINES NORTE WATER DISTRICT EMPLOYEES ASSOCIATION-NATIONAL FEDERATION OF LABOR UNIONS (CNWDEA-NAFLU) PSLMC Decision February 14, 2011 DIGEST Facts: The case stemmed from the filing of a complaint dated December 22, 2009 by Dionisio Z. Badaguas, Jr., former officer of Camarines Norte Water District Employees AssociationNational Federation of Labor Unions (CNWDEA-NAFLU) before the Civil Service Commission Personnel Relations Office (CSC-PRO) against Sabino S. Fabrigar, Jr., President of the said union for Gross Violation of the Constitution and By-Laws (CBL) of the union and Misappropriation of Union Funds, among others. In the said complaint of Badaguas, Jr., stated that Fabrigar, Jr., grossly violated the provision of the CBL of the union, in particular, the term of office of the latter. Badaguas, Jr. argued that despite of the expiration of Fabrigar, Jr. term of office, he failed to refrain from discharging his duties and responsibilities as President of the CNWDEA-NAFLU. Acting on the said complaint, the CSC-PRO issued Order dated February 2, 2010 directing Fabrigar, Jr., to submit his comment which he did on February 24, 2010. Hence, the present case. Issues: 1. Whether Section 16 of Republic Act No. 6715 dated March 2, 1989 (which amended paragraphs {c} and {j} of the Labor Code of the Philippines) is applicable to Section 5, Article V (Principal Officers) of the ratified Constitution and By-Laws (CBL) dated June 11, 1983 of the CNWDEA-NAFLU thereby validly extending the terms of office of Fabrigar, Jr., from three (3) to five (5) years which resulted to Gross Violation of the CBL of the union; and 2. Whether there is a misappropriation of union funds committed by Fabrigar, Jr., in his incumbency as President of the union for more than eight (8) years. Held: In the case of Davao City Water District vs. Civil Service Commission, 201 SCRA 593, the Supreme Court put to rest the nature of all water districts including the Camarines Norte Water District, as a government-owned and controlled corporation. By necessary implication, Section 16 of Republic Act No. 6715 will not govern his term of office of five (5)

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years, instead Section NAFLU will prevail.

5,

Article V of the CBL of the CNWDEA-

Inasmuch as the nature of the union is now settled as government-owned and controlled corporation, it now leads to the first issue whether Fabrigar, Jr., grossly violated the CBL of the union. In our mind the heavy reliance of Fabrigar, Jr., in the amendment of Section 16 of Republic Act No. 6715 of the Labor Code, though erroneous, cannot automatically place him to be in bad faith sans proof. Jurisprudence is replete that honest interpretation of law is also a source of innocence. However, strict adherence to the provision of employees association of their CBL without giving due regard on Fabrigars Jr., right to presumption of innocence and due process will only lead to the emasculation of justice. In view thereof, since the term of office of Fabrigar, Jr., as the President of the union has already expired after being elected to the said position in June 2006, an election of officers of the union shall be immediately conducted which shall be premised in the CBL of the union. Anent the other issue of the alleged misappropriation of union funds, the complainant is hereby directed to exhaust all administrative remedies before the Council takes cognizance over the issue. As shown in the provision of the CBL of the employees association pertaining to the Settlement of Internal Dispute that it is Fabrigar, Jr., as President of the CNWDEA-NAFLU who shall settle the aforestated issue. However, since he is the object of the disquisition then it is more prudent for him to inhibit himself in order to insure neutrality, a basic requirement for an impartial arbiter. As such, Fabrigar, Jr., shall transmit the dispute to the Committee on Grievance for its appropriate action. In the event that the Grievance Committee upon their settlement and/or separate investigation of the alleged misappropriation against Fabrigar, Jr., the same is substantiated by prima facie evidence, the complainant is advised to file administrative, civil and/or criminal complaint against the respondent in a court of competent jurisdiction. Moreover, attention is hereby invited to Sections 1 (a) (d) (e) and (f), Article XV (Impeachment and Recall) of the CBL dated June 11, 1983 of the CNWDEA-NAFLU. WHEREFORE, the Council RESOLVES as it hereby RESOLVED that the election of officers of the Camarines Norte Water District Employees Association-National Federation of Labor Unions (CNWDEA-NAFLU) shall be conducted within one (1) month from receipt of this Order and thereafter, every three (3) years pursuant to Section 5, Article V (Principal Officers) of the

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ratified Constitution and By-Laws (CBL) dated June 11, 1983. Accordingly, Sabino S. Fabrigar, Jr., now considered as Interim President of CNWDEA-NAFLU is hereby directed to constitute the COMELEC for the conduct of an immediate election of all officers in the union in accordance with its CBL. RESOLVED further, on the alleged misappropriation of union funds, the same must be submitted to the Committee on Grievance to settle the issue. Sabino S. Fabrigar, Jr., must inhibit himself as member of the Committee and submit to the Committee any and all documents in his possession for the swift resolution of the issue. The aggrieved party is advised to pursue the administrative, civil or criminal case in a competent court, if warranted by evidence. RESOLVED finally, all officers of the union shall call for an immediate general membership assembly to report and/or disclose to the general members of the union the detailed financial status of the CNWDEA-NAFLU. The Council also reminds all officers of the CNWDEA-NAFLU to observe their reportorial duties of informing all its members on the financial status of the union and ensure that its records be made available to the members. SO ORDERED.

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MANAGBANAG, Sharon Grace P. Re: Maternity Leave Benefits; Solo Parents Welfare Act of 2000; Query x------------------------------------------------------x

RESOLUTION NO. 021283

Sharon Grace P. Managbanag, Sr. Economic Development Specialist, National Economic and Development Authority (NEDA), requests clarification regarding the application of the Solo Parents' Welfare Act of 2000. Her query reads, as follows: " . . . I gave birth to my son last May 3, 2002 but have decided against marrying my child's father due to psychological incapacity on his part. This in effect makes me a single parent. "I am therefore seeking clarification as to whether or not I am entitled to maternity benefits as provided for in the Solo Parents' Welfare Act of 2000 or RA 8972. However, according to a staff member of the personnel services division of our Administrative Staff, the Solo Parents' Act is subject to existing laws, which means that a female employee can only avail of such benefits ONLY if she is married." Applicable to the instant query are Section 3, paragraph a (8) and paragraph d and Section 8 of Republic Act No. 89721 which provide, thus: "SECTION 3. Definition of Terms. - Whenever used in this Act, the following terms shall mean as follows: "(a) `Solo parent' - any individual who falls under any of the following categories: x x x `(8) Unmarried mother/father who has preferred to keep and rear her/his child/children instead of having others care for them or give them up to a welfare institution. "(d) `Parental leave' - shall mean leave benefits granted to a solo parent to enable him/her to perform parental duties and responsibilities where physical presence is required. "SECTION 8. Parental Leave. - In addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year shall be granted to any solo

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parent employees who has rendered service of at least one (1) year." Republic Act 8972 was enacted to provide a solo parent the opportunity to take care of his/her child and to develop a bonding between the child and his/her biological parent. Thus, aside from the other benefits granted by said law2, solo parents are given parental leave of seven (7) working days every year, provided he/she has rendered service for at least one (1) year. On the other hand, the Act does not expressly grant maternity leave benefits to solo parents. It merely cited leave privileges under existing laws which includes Section 11, Rule XVI of CSC Memorandum Circular No. 41, s. 1998 (as amended). Said section grants maternity leave benefits to female employees, thus: "SEC. 11. Conditions for the grant of maternity leave. - Married women in the government service who have rendered an aggregate of two (2) or more years of service, shall, in addition to the vacation and sick leave granted them, be entitled to 60-days maternity leave with full pay. x x x" It is to be noted that the purpose of maternity leave is to allow the mother to recuperate and to take care of her child during the infancy stage since it is at this time when the child requires attention3. Under these circumstances, is Managbanag entitled to avail of maternity leave since the aforequoted provision require that she must be married? In a recent decision of almost similar nature, the Commission ruled in this wise, thus: "Going by its literal language, the above-quoted provision confines or restricts the grant of maternity leave benefits to a female employee, who is married and is about to deliver or has just delivered a baby. Strictly speaking therefore, Mendoza, not being married at the time of her childbirth, should be ineligible from availing the same, inasmuch as her marriage was judicially dissolved in 1997, and the delivery came in 2000. "But there are certain factors that persuade the Commission, insofar as the peculiar facts of this particular case, from readily adopting such a view. As a matter of fact, it is convinced that to relax the rule on the grant of maternity leave benefits with respect to Mendoza would better conduce to the interests of all concerned. Moreover, recent trends in family laws support such a liberal treatment. "The grant of maternity leave benefits partakes the nature of a social measure or legislation. Being a social legislation, it is the welfare or well-being of the intended recipients or beneficiaries the working mothers in the employ 24

of the government that is of primordial concern. Thus, whenever so dictated by the attendant facts and circumstances, the rule on maternity leave benefits may be adjusted depending on the peculiarities of each case. Ultimately, a law or rule should not be so rigid and inflexible as to be immune and resistant to any adaptation or change. For when such law or rule loses its ability to cope with actual exigencies or realities, it loses its force and relevance, and it becomes useless as an instrument of public order and stability. "In the present case, given the surrounding factual milieu, the better rule is to warrant Mendoza her entitlement of maternity leave benefits. While she is not married at the time of her delivery in the sense that the matrimonial union binding her and the father of her baby had been dissolved earlier, no material prejudice or substantial detriment would be caused to the public interest were she be permitted to claim such benefits . . . "More importantly, Mendozas bid may be founded on the provisions of Republic Act (RA) No. 8972 or the so-called Solo Parents Act. In brief, RA No. 8972 extends certain rights and privileges to solo parents in due recognition of their sacrifices in single-handedly raising their children to become disciplined and productive members of society. . . x x x "That being said, what then are the rights and privileges to which she can properly lay claim? "The Solo Parents Act does not explicitly contemplate the grant of maternity leave benefits to solo parents. In terms of leave privileges, what it extends is a seven-day paternity leave. This fact notwithstanding, the Commission, in the exercise of its rulemaking powers, deems that the laudable purpose and intent of the law may be better subserved if the same entitlement, i.e., maternity leave, be extended to solo parents. The spirit of the law is to remove the social stigma that has attached to individuals who decide to have a child or children of their own without the benefit of marriage. What better way to achieve or attain this noble purpose than by equalizing their status with that of their married counterparts. " (Underlining supplied) Without doubt, by reason of justice and equity, solo parents, whether married or unmarried, are now entitled to maternity leave benefits. Since upon verification it was revealed that Managbanag had been in the service for more than two (2) years, she is also entitled to the same. WHEREFORE, the Commission hereby rules that Sharon Grace P. Managbanag is entitled to maternity leave benefits of 60 days with pay and to parental leave benefits of seven (7) working days. 25

ESGUERRA, Octavino Q. Re: Complaint; Illegal Dismissal

x-----------------------------------------x

RESOLUTION NO. 01-1092 Octavino Q. Esguerra, Senior Vice-President for Technical Services and Chief Actuary of the Philippine Health Insurance Corporation (PhilHealth), files a letter-complaint against Enrique M. Zalamea, Jr., PhilHealth President, and Alberto G. Romualdez, Jr., Chief Executive Officer and former Department of Health (DOH) Secretary, who was then the Chairman of the Board of Directors of the PhilHealth, respectively, for alleged illegal dismissal. In his letter-complaint, Esguerra averred: x x x. In August this year, the president and CEO told me to submit an undated courtesy resignation as per instruction of DOH Secretary of Health (sic) Alberto G. Romualdez. Under duress (how can one refuse a cabinet member?) and believing that the undated courtesy resignation was illegal and therefore null and void, I obliged to the presidents instruction. I was hoping that the good secretary would somehow see the better light of fairness. On December 7, 2000, the secretary of President Zalamea handed me personally, in a sealed envelop (sic), a letter dated September 29, 2000 accepting my resignation effective December 31, 2000 despite the PHIC Boards approval of my appointment on September 8, 2000. I would therefore like to put on record with the Civil Service Commission that I am not resigning from my position. x x x. In August 1999, DBM finally approved the creation of the OSVP Technical Services Sector headed by a senior vicepresident (SG 28). The sector consists of the Actuarial Department, the Corporate Planning Department, and the Management Information System Dept. CSC approved of (sic) my appointment as senior vice-president in the same month on a temporary status. x x x. In June 1999, I took the MATB of CESB and landed on top of the batch of examinees. The process of my acquiring CESO eligibility was stalled because the CESB decided only on March 2000 through a resolution that the SVP for Technical Services Sector of PHIC is a third level position. On March 15, 2000 CSC conferred upon me the Career Service Executive Eligibility after passing the examination given in November 1999 and the subsequent panel interview conducted in February 2000. I believe that I possess the credentials (appropriate education, training, work experience, and untainted service record) that qualify me for my present position. It therefore seems grossly unfair to me that the DOH Secretary (who is the

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ex-officio chairman of the PHIC Board), with all my respect to him, would want my services terminated based on a study conducted by a team of AIM professors (the reason being given by him). x x x When asked to comment, the PhilHealth, through its counsel, alleged: 1. The recital of facts in the instant complaint is not accurate and complete and the allegations therein against former Secretary of Health and Chairperson of the PhilHealth Board of Directors, Dr. Alberto G. Romualdez, have no basis in law and in fact. It was the PhilHealth Board as a collective body and not only Secretary Romualdez who decided on the term of Mr. Esguerras appointment as Senior Vice-President. 2. This is not a case of illegal dismissal due to the fact that the term of appointment of Mr. Esguerra has already expired and his Letter of resignation duly accepted by the PhilHealth Board is merely a face saving device. 3. Complainants appointment as Senior Vice President was for a specific and definite period, that is, from August 23, 1999 to 22 August 2000. x x x. 4. Sometime in July, 2000 or a month before the expiration of his appointment, Mr. Zalamea told Mr. Esguerra that the Board was not inclined to renew his appointment and that of another consultant. nevertheless, Mr. Zalamea advised Mr. Esguerra to personally confer with the different members of the Board, including Secretary Romualdez, as ex-officio Chairman, regarding the possibility of reconsidering their decision not to renew his appointment. 5. Before the Board meeting 2000, Mr. Zalamea observed that Mr. approach the members of the Board on Mr. Zalamea volunteered to intercede meeting. scheduled on 8 September Esguerra was reluctant to the matter. In which case, in his behalf in the said

6. The PhilHealth Board, in an executive session, took up the matter but the members were not inclined to renew his appointment. However, in view of the Holiday season, the Board agreed to renew/extend his appointment up to 31 December 2000. To allow Mr. Esguerra to avoid embarrassment and save face under the situation, Mr. Zalamea suggested to Mr. Esguerra to submit his resignation letter. 7. Mr. Esguerra acceded to the request as he was fully aware that as early as 22 August 2000, his appointment had already expired and his continued stay in office was merely an act of concession and an act of liberality and generosity on the part of management and the Board to help him financially while he was looking for another job.

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8. Mr. Esguerras letter of resignation was submitted to and accepted by the Board as evidence (sic) by the Corporate Secretarys Certification x x x. Moreover, it should be noted that such Letter of Resignation was completely superfluous for even without it, the Resolution approving the extension of his appointment was effective only up to 31 December 2000. 9. Finally, starting January, 2001 Mr. Esguerra stopped reporting for work. Esguerra, on the other hand, submitted a Reply and averred: My appointment as Senior Vice-President on August 23, 1999 was temporary because at that time, I still did not possess the career service executive eligibility. However, I acquired the required civil service eligibility effective March 15, 2000. I informed the office about this on April 7, 2000 (x x x) after I obtained the Certificate of Eligibility from the CSC in order that they can change the status of my appointment from temporary to permanent. The office did not act on it however, as it has started to adopt a policy of not giving permanent appointments to eligible officers based on the order of former Secretary Romualdez. x x x. It is my belief that no officer (or any other employee) should suffer any consequence of this violation of the civil service rules (whether intentional or not). I believe therefore that even without the action of PhilHealth, my appointment as senior Vice-President was already permanent effective March 15, 2000. The issue in this illegally terminated. case is whether or not Esguerra was

The Commission rules in the affirmative. At the outset, it must be pointed out that while the letter of Esguerra is denominated as a complaint, the Commission treats the same as an appeal on the illegal termination of Esguerra effected by the PhilHealth Management. Records disclose that Esguerra was appointed as Senior Vice President of the Philippine Health Insurance Corporation on August 23, 1999, as shown by a copy of his appointment paper. It was signed by the Head of Agency, Enrique M. Zalamea, pursuant to paragraph (n), Section 16, Article IV of Republic Act No. 7875 (An Act Instituting a National Health Insurance Program for All Filipinos and Establishing the Philippine Health Insurance Corporation for the Purpose), which read: SEC. 16. Powers and Functions. The Corporation shall have the following powers and functions: x x x

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n) to organize its office, fix the compensation of and appoint personnel as may be deemed necessary and upon the recommendation of the president of the Corporation. Moreover, it is provided under no. (1), Paragraph (b), Section 19 of R.A. 7875 that one of the duties and functions of the President of the PhilHealth is to act as the chief executive officer of the Corporation. It is noted however that the status of Esguerras appointment is TEMPORARY. A temporary appointment is issued to a person who meets the education, experience and training requirements for the position to which he is being appointed except for the appropriate eligibility but only in the absence of a qualified eligible actually available, as certified to by the Civil Service Regional Director or Field Officer. The appointment shall not exceed twelve months, reckoned from the date it was issued but the appointee may be replaced sooner if a qualified eligible who is willing to accept the appointment becomes actually available. (letter (b), Section 2, Rule III of CSC Memorandum Circular No. 40, s. 1998, as amended, otherwise known as the Revised Omnibus Rules on Appointments). Sometime in August of 2000, before the one (1) year effectivity of the temporary appointment of Esguerra lapsed, the President of PhilHealth requested Esguerra to submit a courtesy resignation, to which Esguerra, although disagreeing at first, eventually acceded believing in good faith that the Board would come to its senses. But this would not be so since the Board gave Esguerra a letter accepting his resignation. The Boards contention in allowing Esguerra to resign was that his appointment expired, it having a fixed term of one (1) year from signing. The representation of Esguerra that the reason why he was issued a temporary appointment is that he lacks the proper career service executive (CSE) eligibility is well taken. The one (1) year period provided for under the Rules merely intends to establish the duration of the temporary appointment, which may be changed to a permanent appointment if and when the appointee during the said one (1) year period obtains the required eligibility. Applied to the instant case, while it is true that Esguerra has one (1) year to occupy the position in a temporary status, he is not however precluded from obtaining the required CSE eligibility so as to change his status from temporary to permanent. The supervening event of Esguerra acquiring the required CSE eligibility on March 15, 2000, by virtue of CSC Resolution No. 000695, confers upon him the right to be permanently appointed to the said position. The denial of said right, based on a non-existing policy allegedly enunciated by the former Secretary of Health, is utterly erroneous.

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Interestingly, records would show that as early as April 7, 2000, Esguerra already expressed his intention of having his temporary appointment changed into permanent by submitting a copy of his Certificate of CSE eligibility with the PhilHealth. By some mysterious design, this request was not acted upon, in complete violation of Section 6, Rule IV of the Revised Omnibus Rules on Appointments which explicitly provides: Sec. 6. In cases where the appointee fully qualifies for the position to which he is temporarily appointed, the appointing authority shall no longer issue an appointment for change of status from temporary to permanent. Upon the appointees presentation of the required document/s, such change may be effected as a footnote on the temporary appointment previously issued, copy furnished the Commission. (underscoring supplied) This being so, Esguerra in fact acquired security of tenure over the position to which he may not be removed or suspended except upon lawful cause. Noticeably, there being no lawful cause pointed out by the President of the PhilHealth, the Commission finds the actions of the PhilHealth patently illegal. In sum, the Commission holds that Esguerra was illegally dismissed by PhilHealth. PhilHealth is thus ordered to reinstate Esguerra to his former position as Senior Vice President for Technical Services and Chief Actuary, without loss of seniority rights and other benefits appurtenant to the position. PhilHealth is also ordered to pay Esguerra his back salaries from the time he was illegally dismissed up to the time of his actual reinstatement. WHEREFORE, the complaint of Octavino Q. Esguerra for illegal dismissal is found to be meritorious and is hereby given due course. PhilHealth is ordered to reinstate Esguerra as its Senior Vice President for Technical Services and Chief Actuary.

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SUERTE, Anita O. Re: Termination of Services; Complaint x---------------------------------------------------------x RESOLUTION NO. 000113 Anita O. Suerte, Project Evaluation Officer IV, Province of Misamis Occidental, appeals from the action of Governor Ernie D. Clarete, same province, concerning her alleged illegal termination. Also included in her appeal is a complaint filed with the Civil Service Commission Regional Office (CSCRO) No. X, Cagayan de Oro City, for alleged inaction over her request for retirement benefits, and for reinstatement. In her appeal, Suerte alleged follows: x x x " Briefly, the fact are as follows, on 5 January 1998, undersigned with 21 years in the government service, applied for with then Governor Florencio L. Garcia, for optional retirement with a request for appropriation in the budget in the amount of Three Hundred Seventy Thousand (P370,000.00) Pesos for my gratuity; a copy of which is attached hereto as Annex C. In line thereto, on 18 February 1998, undersigned also filed an application; which was duly approved, for a one(1) year leave without pay, that is, from 19 February 1998 to 18 February 1999, to await for the processing of the retirement benefits; a copy of which is attached hereto as Annex D. "No response was received as to whether my application for optional retirement was approved but sometime in March 1998, I was furnished a copy of the Indorsement by the Office of the Governor to the Sangguniang Panlalawigan of my request for appropriation (a copy of which is attached hereto as Annex E). "In late August 1998, after much follow ups, I was furnished an Indorsement dated 3 August 1998, by the elected Governor, Ernie D. Clarete, recommending that I be paid partially covering the inclusive period March to December 1998, chargeable against the current appropriation; a copy of which is attached hereto as Annex F. Considering that partial payment would be counterproductive and would in fact, defeat the purpose of my application for optional retirement, I filed with the Office of the Governor a withdrawal of my application for optional retirement, explaining the reasons thereof, together with a request for reinstatement on 1 October 1998; a copy of which letter is attached hereto as Annex G. No response was ever made much less received regarding this matter. "Faced with uncertainty after months of inaction on my request and despite personal appeals to Governor Clarete, I filed with this Commissions Provincial Field Office a complaint

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for the impassivity shown me; a copy of which is attached hereto as Annex H. "Sometime in the second week of January 1999, I at least was able to receive a response from the Province, albeit misleading in context, as course through the Commissions Provincial Field Office; copies of which are attached hereto as Annexes I, I-1 and I-2. In response thereto, I pointed out the only reason that my application has long been pending is because it was not acted upon - no appropriation was given it (a copy of which is attached hereto as Annex J). Hence, the justification adduced by the province that my application lacked GSIS Clearance and that the voucher for payment has long been pending are outright lies. First, the processing is to be done by the agencies concerned foremost and only then subject to GSIS Clearance (cf. GSIS Memorandum Circular No. 3-97 dated 7 July 1997), not the other way around. In short, there is no truth that my application lacked GSIS Clearance as it would come later, that is, after an appropriation is made in the budget for payment. Moreover, I was able to secure a copy of an Indorsement dated 2 July 1998 by Governor Clarete requesting for GSIS clearance on my retirement but left pending as no document would support that funds have been appropriated for the payment of my retirement gratuities; a copy of which is attached hereto as Annex K. Second, the alleged voucher which is supposedly pending in the Accounting Office of the Province is obviously a fabrication in haste. As of the moment, no appropriation has been made as to my retirement benefits and the alleged voucher while made to appear in my name, refers to payment of terminal leave which obviously is a far cry from retirement gratuities; a copy of which is attached hereto as Annex L. "On 15 February 1999, with my leave fast expiring, my application for optional retirement not having been acted upon including my withdrawal letter and request for early reinstatement, I manifested in writing to the Governor my intention to resume office on 19 February 1999 or upon expiration of my 1 year leave of absence; a copy of which letter is hereto attached as Annex M. A copy was furnished to this Commissions Provincial Field Office which in turn requested the Office of the Governor to comment within 5 days. Of even date, no response has been filed by said office. "On 19 February 1999, I reported for work. "On 22 February 1999, I was furnished a copy of the Governors Indorsement (Annexes A and B), thus, unceremoniously terminating me from the service. "Hence, this appeal." x x x "(3) There was a timely withdrawal of her application for optional retirement. Retirement laws, it is well settled, are 32

liberally construed and applied in favor of persons intended to be benefited by them, and all doubts as to the intent of the law should be resolved in favor of the retiree to achieve its humanitarian purpose so as efficiency, security and well-being of government employees may be enhanced (cf. Abad Santos v. Auditor General, 79 Phil. 176). As elaborated in the 21 September 1998 letter (Annex G) above cited, the inaction shown to her request for appropriation on her retirement gratuity was already prejudicial, injurious and damaging to undersigneds interest. It was thus perfectly legal for her to seek the withdrawal of said optional retirement, to prevent the detrimental and harmful consequences of the Provincial Governments inaction, from becoming irreversible. In other words, unlike in compulsory retirement, undersigneds application was not irrevocable, more so, that the conditions she sought for optional retirement were never realized due to the Provincial Governments negligence and misfeasance. Indeed, under the foregoing circumstances, her retirement was already a hindrance from gaining security for herself and her family as a consideration for her government employment; (4) In the same manner, the Indorsement of the Governor dated 2 July 1999 requesting GSIS Clearance for the undersigned is immaterial as it was never sent to the GSIS as no proof or justification could be adduce to show that a budgetary appropriation has been made on my retirement application; and (5) Finally, undersigned never received her gratuity in full or even a token thereof as provided under RA 1616 as amended. In fact, except for the recommendation of partial payment, no appropriation was even made by the Provincial Government for it as shown in her Service Record issued by Manuel A. Liwag, Chief of Office of the OPPDC dated 13 January 1999 which states Applied for Retirement under RA 1616 no payment effected yet; a copy of which is attached hereto as Annex N. "All told, it is respectfully submitted that undersigned can only be removed for a cause and after due process, hence, Governor Clarete cannot by mere Indorsement rescind or revoke my appointment without running afoul of the Constitutional guaranty of Security of Tenure." x x x In his letter-answer, Governor Clarete stated as follows: x x x "ILLEGAL TERMINATION "On the issue that the complainant was illegally terminated, this Office strongly believes that such allegation is unwarranted. The fact that complainant did not report for work since February 19, 1998 constituted not only an absence without leave but more importantly an abandonment of duty amidst a critical phase of a foreign-assisted project to which she was assigned. Indeed, these are legal grounds for termination of an 33

employee. To make matters even worst, complainant allegedly showed an approved application for leave of which was never signed by head of office Manny Liwag who in his letter to APA Cezarito Chiong (Annex A) emphasized that the former had in fact already used up all her leave credits at the time of her request for retirement. In other words, this Office disputes the veracity and validity of such application for leave. To strengthen further our position is a certification (Annex B) issued by PPDO Manny Liwag dated May 26, 1998 attesting that the complainant had not incurred any absence or leave without pay. This was received by complainants husband on May 27, 1998. Ergo, such certification only proves two things; one, that head of office Manny Liwag had no knowledge that his employee had a leave starting February 19, 1998; and two, that the complainant is simply dishonest. "INACTION OVER REQUEST FOR REINSTATEMENT "Complainant presented an alleged letter dated September 21, 1998 (Annex C) and addressed to this Office manifesting her intention to withdraw her application for retirement. Such letter neither reached this Office nor had I knowledge thereof. May I then invite your attention to such letter which was neither acknowledged nor officially received by this Office. "Further, complainant holds that retirement is incumbent upon the person holding the position, and even going to the extent of citing an undecided case and of which she has no personal knowledge about an employee who had her uncashed check as retirement gratuity, but because she feels not retiring, she can by all means return the check and get back to her post. If such act would be given credence, is it not giving undue discretion to a civil servant who is sworn to serve the public and to set aside personal interest? Is it not plain and simple putting a mockery to that Constitutional mandate that a public office is a public trust? "INACTION ON THE REQUEST FOR RETIREMENT BENEFITS "The third issue raised by the complainant is without merit. In fact, the very next day after I assumed office or on July 2, 1998, I signed an endorsement (Annex D) for the Branch Manager of GSIS Dipolog City to expedite the processing of her retirement papers. And on August 3, 1998, I sent another endorsement (Annex E) to PPDO Manuel Liwag approving his recommendation to partially charge the payment of complainants claims against the current appropriation and the balance against 1999 appropriation. These and all were prompt actions intended to provide the necessary assistance to a retiring employee. But the truth is, herein complainant deliberately withheld all the necessary retirement papers as validated by the attached January 8, 1999 letter of HRMO IV Josefina Omisol (Annex F). Proper accounting procedure dictates that the retiring employee should submit all the necessary papers for processing. Unfortunately, the complainant did not do her share, proof of which is very 34

clear in her letter dated January 19, 1999 (Annex G) stating that x x x all the papers is now in my position x x x. "I regret losing a good worker as herein complainant. However, her expertise is not adequate to restore a lost trust." x x x Records disclose that on January 5, 1998, Suerte wrote a letter to then Provincial Governor Florencio L. Garcia signifying her intention to retire effective February 19, 1998 under Republic Act No. 1616. In the same letter, she requested for an appropriation of Three Hundred Seventy Thousand pesos (Php 370,000.00) to cover her retirement benefits under the said law. On February 18, 1998, a day before the effectivity of her supposed retirement, she filed an application for leave (CS Form No. 6) without pay for 12 months, specifically covering the period from February 19, 1998 to February 18, 1999 pending approval of her retirement and its corresponding appropriation for her retirement benefits. The said application for leave was duly signed by Josefina S. Omisol, HRMO IV, and approved by then Provincial Governor Florencio L. Garcia. Thereafter, on August 3, 1998, Suerte was furnished a copy of an indorsement by the newly-elected Provincial Governor Ernie D. Clarete to Provincial Planning and Development Coordinator (PPDC) Manuel A. Liwag, accepting the recommendation of the PPDC to partially charge the retirement claim of Suerte against the 1998 Appropriation and the balance against the 1999 budget. The partial funding of Suertes claim for retirement made her decide to withdraw her intention to retire, such that on September 21, 1998, she wrote Governor Ernie D. Clarete withdrawing her intention to retire which was earlier filed with the former Governor Florencio L. Garcia. In that letter, she informed Governor Clarete of her desire to be reinstated to the service effective October 1, 1998. It appears that no action was taken by the new Governor regarding her request for reinstatement effective October 1, 1998. And so, on February 15, 1999, when her one year leave without pay was about to end, Anita O. Suerte wrote Governor Clarete informing him of the expiry of her leave of absence on February 19, 1999, and her intention of reporting back to the office on said date. Thus, on February 19, 1999, she reported back to work at the Provincial Planning and Development Office. On the next working day, Suerte received an indorsement from PPDC Manuel A. Liwag attaching thereto an indorsement from Governor Clarete that she is no longer connected with the Provincial Government of Misamis Occidental as an employee. In addition, Suerte was informed that she cannot be accommodated to her previous position of Project Evaluation Officer IV inasmuch as no salary had been appropriated for her item in 1999. Upon inquiry with the Provincial Budget Office regarding the nonappropriation of her item for the current year, the Provincial Government through the Provincial Budget Officer Cesar C. 35

Baldero, in a letter dated March 12, 1999 explained that the Office considered her as separated from the service effective February 19, 1998, the date she filed her intention to retire. Thus, the position was already deemed vacated at that time. A copy of the 1999 Local Budget of the Province of Misamis Occidental was then furnished to herein complainant showing a zero allocation for that position. Hence, the appeal. Pursuant to the complaint/appeal of Suerte, a preliminary investigation was conducted by CSCRO No. X regarding the matter. Suerte presented the following documents to support her claim, as follows: "Annex A" -Letter-complaint of Anita O. Suerte; "Annex B" - Letter of Anita O. Suerte dated January 5, 1998, addressed to the Provincial Governor Florencio L. Garcia; "Annex C" - Approved application for leave (CS Form 6) of Anita O. Suerte for the period covered February 19, 1998 to February 18, 1999; "Annex D" - 1st Indorsement dated March 19, 1998 signed by Acting Provincial Administrator Cezarito N.J. Chiong; "Annex E" - 1st Indorsement dated August Provincial Governor Ernie D. Clarete; 3, 1998 signed by

"Annex F" - Letter dated September 21, 1998 of Anita O. Suerte addressed to Governor Ernie D. Clarete; "Annex G" - 2nd Indorsement dated February 22, 1999 of PPDC Manuel A. Liwag; "Annex G-1" - Indorsement dated February 19, 1999 of Governor Ernie D. Clarete; "Annex H" - Letter dated March 12, 1999 of Provincial Budget Officer Cesar C. Baldero; "Annex I" - Local Budget Preparation Form No. 153; "Annex J" - Service Record of Anita O. Suerte. The respondent on his part comment/answer on the issues raised in the presented documents in support of his answer. follows: "Annex 1" - 1st Indorsement dated July 2, 1998; "Annex 2" - 1st Indorsement dated August 3, 1998; submitted complaint, his and

The documents presented by the respondent are as

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"Annex 3" - Letter dated January 8, 1999 of Josefina S. Omisol addressed to Mr. Cezarito Nemesio J. Chiong; "Annex 4" - Affidavit of respondent Ernie D. Clarete; "Annex 5" - Affidavit of Rolando E. Bagabuyo; "Annex 6" - Affidavit of Cesar C. Baldero; "Annex 7" - Affidavit of Anita T. Rafallo; "Annex 8" - Affidavit of Manuel A. Liwag; "Annex 9" - Certification dated May 26, 1998 issued by Manuel A. Liwag; "Annex 10" - Letter-response of Governor Ernie D. Clarete to the complaint. The issues to be resolved in the instant case are: 1. Whether or not Suerte was illegally terminated by Governor Garcia. Corollarily, the issues are whether or not Suerte was considered retired as of February 19, 1998 and whether or not she was on AWOL from February 19, 1998 until February 18, 1999. 2. Anent the complaint for inaction over her requests, whether or not the Commission has disciplinary jurisdiction over Governor Clarete. We find the appeal impressed with merit. Anent the first issue, it appears that when Anita O. Suerte filed her intention to retire under RA1616 with then Provincial Governor Florencio L. Garcia effective February 19, 1998, no valid acceptance by the Local Chief Executive was shown nor was there an approval of such retirement to take effect on said date. Moreover, since there was no approved budget for her benefits at that time, Suerte opted to file a leave of absence without pay for 12 months from February 19, 1998 until February 18, 1999, pending approval of the said appropriation. The questioned application for leave was duly signed by HRMO IV Josefina S. Omisol and duly approved by then Provincial Governor Garcia. Therefore, it is valid. The letter of Suerte withdrawing her intention to retire effective February 19, 1998 could not also be taken against her. It may be mentioned that Suerte filed an intention to retire effective February 19, 1998 and not an application for retirement. Together with said intention was a request that her retirement benefits be appropriated. Such intention to retire would have been followed by the application for retirement and the necessary clearances had she been assured that she will be paid her retirement benefits under RA 1616.

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The effort of the Provincial Government to look for funds to finance the retirement benefits of Suerte is laudable. However, such funds said to be ready to cover the retirement benefits of Suerte was not officially communicated to her in due time. After a lapse of a certain period which Suerte feels as inaction over her request for funding, she felt it necessary to withdraw from her intention to retire as the same has not been beneficial to her. Since there was no official communication approving her request for retirement, and said retirement is not yet compulsory but rather optional, Suerte is not yet considered as retired from the service. In CSC Resolution No. 91-1492, the Commission ruled in the case of Vitaliano Dela Vega that: "There was no valid acceptance of the application for an optional retirement dated July 31, 1991 of Deputy Administrator Vitaliano Dela Vega of the Local Water Utilities Administration and as such he has the right to withdraw the same. Hence, Dela Vega is deemed not separated from the service and therefore should be paid back salaries until his reinstatement." As ruled by the Supreme Court in the case of Rubio vs. Sto. Tomas, G.R. No. 83067 dated March 22, 1990 (183 SCRA 571), the acceptance or not of the withdrawal of an employees optional retirement should be made to lie with the discretion of the head of office in the interest of the service. The filing of an application for optional retirement and the withdrawal thereof are unilateral acts that cannot by themselves become effective without the approval thereof by two proper officials. In view of the above and inasmuch as it was not shown that the intention of Suerte to retire was approved, nor was there an official communication from the GSIS approving the retirement of Suerte under RA 1616, she cannot be considered as retired. As such, she is entitled to reinstatement after the expiry of the leave of absence she had filed. The nonappropriation of her item for the 1999 local budget is of no moment. The Provincial Government of Misamis Occidental should find the appropriate funds to pay the salaries of Mrs. Anita O. Suerte to which she is entitled. On the argument that the application for leave of absence of Suerte was not recommended and signed by PPDC Manuel A. Liwag as department head, it is believed that such defect is not fatal to negate the validity of the said application for leave, considering that the same was duly approved by then Governor Florencio L. Garcia. Such leave of absence is considered valid for all intents and purposes, and should stand unless revoked by proper authority. The non-presentation of the required clearances prior to the leave of absence of Suerte may be considered as a defect in the procedures observed by the Provincial Government of Misamis Occidental, for which Suerte could not be made answerable alone. Hence, there is no merit to the contention that Suerte is already severed from the 38

government service since she has been on absence without leave (AWOL) from February 19, 1998. On the complaint for inaction over request for retirement benefits and for reinstatement, the same is dismissed for lack of jurisdiction. Relevant to the instant case is Section 61 (a), Chapter 4, Title Two, Book I, Local Government Code of 1991, which provides as follows: "Section 61. Form and Filing of Administrative Complaints - A verified complaint against any erring local elective official shall be prepared as follows: (a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President;" Considering, therefore, that Governor Clarete is an elective official, the Commission has no disciplinary jurisdiction over him. Thus, it is proper for the Commission to dismiss the complaint filed by Suerte against him. WHEREFORE, the appeal of Anita O. Suerte is hereby granted. Accordingly, she is hereby reinstated to the service as Project Evaluation IV of the Provincial Government of Misamis Occidental effective upon the expiry of her one-year leave of absence without pay, on February 19, 1999. The complaint against Governor Ernie D. Clarete for alleged failure to act on Suertes request for retirement benefits and for reinstatement is hereby dismissed. The same complaint, however, may be filed with the Office of the President pursuant to the Local Government Code or the Office of the Ombudsman.

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IGNACIO, Leonard Vinz O. Re: Compulsory Attendance in Flag Ceremony by members of the Jehovahs Witnesses x---------------------------------------------x

RESOLUTION NO. 000843

Atty. Leonardo Vinz O. Ignacio, Attorney IV, Legal and Enforcement Division, National Labor Relations Commission (NLRC), PPSTA Building, Banawe St., Quezon City requests a ruling on the extent of exemption from attending the flag ceremonies granted to employees who are members of the Jehovahs Witnesses. Pertinent portions of his letter-query are quoted as follows: x x x "x x x Two (2) NLRC personnel, namely, Ms. Benilda S. Charvet and Ms. Cynthia S. Pascua, both Stenographic Reporters III-NCR, requested that they be exempted from attending the flag ceremony on ground of religious belief. x x x" "As you well know, the Supreme Court in the case of Ebralinag vs. Division of Superintendent of Schools of Cebu, 251 SCRA 569,held that: x x x x x x Refusal of the children to participate in the flag ceremony would not interfere with or deny the rights of other school children to do so. It bears repeating that their absence from the ceremony hardly constitutes a danger so grave and imminent as to warrant the states intervention. x x x "In light of the aforementioned case, it appears that an individual can refuse to participate in the flag ceremony based on religious grounds. However, the same case also mentioned that: x x x While they refuse to salute the flag, they are willing to stand quietly and peacefully at attention, hands on their side, in order not to disrupt the ceremony or disturb those who believe differently. x x x

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"There is now a need to resolve the following issues, to wit: "1. Are the Jehovahs Witnesses completely exempted from attending the flag ceremony? "2. Are the Jehovahs Witnesses required to attend the flag ceremony but are not mandated to salute or put their right hand on their left breast, but simply standing quietly and peacefully at attention? "3. Are the Jehovahs witnesses required to participate in the Panunumpa ng mga Kawani ng Pamahalaan, since it is different from the Panunumpa ng Katapatan sa Watawat? "4. Are the Jehovahs Witnesses required to attend the portion of the flag ceremony where the Chairman and/or guest speaker make their speech/announcements? and, "5. Are the Jehovahs Witnesses required to time-in their Daily Time Record (DTR) AT 8:00 AM every Monday and stay at their respective offices during the flag ceremony, even if they are exempted from attending the flag ceremony?" x x x It must be underscored that in the Ebralinag case (supra), the Jehovahs Witnesses challenged the propriety of the Flag Salute Law (RA 1265) and the DECS Department Order No. 8 dated July 21, 1955 as an infringement to religious freedom. What was in issue in the said case was the mandatory attendance of the school children belonging to Jehovahs Witnesses in flag ceremonies under the pain of being expelled from school. In upholding the rights of the Jehovahs Witnesses, the Supreme Court in the aforementioned case has ruled that: x x x "We hold that a similar exemption may be accorded to the Jehovahs Witnesses with regard to the observance of the flag ceremony out of respect for their religious beliefs, however bizarre those belief may seem to others. Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such patriotic exercises. x x x If they quietly stand at attention during the flag ceremony while their classmates and teachers salute the flag, sing the national anthem and recite the patriotic pledge, we do not see how such conduct may possibly disturb the peace, or pose a grave and present danger of a serious evil to public safety, public morals, public health or any other legitimate public interest that the state has a right (and duty) to prevent." (German vs. Barangan, 135 SCRA 514) x x x

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Although the Supreme Court declared that the members of Jehovahs Witnesses cannot be compelled to attend flag ceremonies, it must be underscored that the flag ceremony in government offices and other activities conducted immediately thereafter before employees would report to their respective work stations are considered part of the employees working hours. So long as the activities undertaken thereafter is work related, such as but not limited to : pronouncements of the agency heads or other officials relating to the agencys policy, thrust and priorities; announcements of the agencys activities; and, other matters of relevant import, attendance thereto is considered part of office hours. Moreover, Section 1, Rule XVII of the CSC Rules Implementing Book V of Executive Order No. 292, provides: "Section 1. It shall be the duty of each head of the department or agency to require all officers and employees under him to strictly observe the prescribed office hours. x x x" In light of the foregoing discussion, although the members of the Jehovahs Witnesses may not be compelled to attend the flag ceremony, they may be required to be present during the activities conducted thereafter. Likewise, the members of the Jehovahs Witnesses may opt to attend the flag ceremony by quietly standing at attention while their coemployees salute the flag, sing the national anthem and recite the patriotic pledge. The aforementioned ruling in Ebralinag case exempts the members of the Jehovahs Witnesses from reciting the patriotic pledge for being contrary to their religious belief. Considering that the Panunumpa ng Katapatan sa Watawat is a patriotic pledge, they are, therefore, exempted from reciting the same. However, they may participate in the Panunumpa ng mga Kawani ng Pamahalaan, which is not a patriotic pledge but an expression and affirmation of the ideals of being a government servant. Finally, it bears stressing that the flag ceremony and other activities immediately held thereafter before employees would report to their respective work stations constitute part of an employees working hours. As such, all employees, regardless of their religions, are required to register the time they actually entered the office and the time they leave the office premises. WHEREFORE, premises considered, this Commission hereby rules and so holds that government officials and employees who are members of the Jehovahs Witnesses may be required to attend and participate in flag ceremony activities.

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References: Wikipedia: The Free Encyclopedia. The Public Sector. Retrieved from http://en.wikipedia.org/wiki/Public_sector Rights of Public Sector. Retrieved from https://sites.google.com/site/humanrightspromotions/right-ofpublic-sector Administrative Disciplinary Rules on Sexual Harrassment Cases. Retrieved from http://oash.upd.edu.ph/wp-content/uploads/2012/02/CSCResolution-01-0940.pdf EO 180. Providing Guidelines for the Exercise of the Right to Organize of Government Employees, Creating a Public Sector, Labor0Management Council and for other Purposes. Retrieved from http://excell.csc.gov.ph/PSU/IRR_EO180_.pdf Public Sector Unionism. Retrieved from http://excell.csc.gov.ph/cscweb/psu.html PSU materials. Retrieved from http://excell.csc.gov.ph/PSU/psumaterials.html Human Right: An Introductory Course by Jourge R. Coquia (2000). Public Sector Rights. pages 175-17.

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