LABOR: BAR Q&A NOTES

2010

Deeds of release, waivers and quitclaims are NOT always valid and binding.
- An agreement is valid and binding ONLY IF:
(a) If the parties understand the terms and conditions of their settlement;
(b) It was entered into freely and voluntarily by them; and
(c) It is contrary to law, morals, and public policy.

The relations between ER and EE are not purely contractual in nature. Some aspects of the relations between
ER-EE are determined by certain labor standards.
- Labor contracts are so impressed with public interest that labor contracts must yield to the
common good.

GR: Direct hiring of OFWs is not allowed.

EXC:
1. Through the Boards and entities authorized by the DOLE
a. EXC^EXC: Direct-hiring by members of the diplomatic corps, international organizations
and such other employers as may be allowed by the DOLE.
2. Name Hires refers to workers who are able to secure an overseas employment opportunity with an
employer without the assistance of participation of an agency.

CONCILIATION MEDIATION ARBITRATION

Process of dispute management
where parties in dispute are
brought together for the purpose
of:
1. Amicably settling the case
upon a fair compromise
2. Determining the real parties
in interest
3. Defining and simplifying the
issues in the case
4. Entering into admissions or
stipulations of facts
5. Threshing out all other
preliminary matters.
In resolving labor disputes, this
comes before arbitration, as a
mandatory process, pursuant to
the State policy of promoting and
emphasizing conciliation as
settling labor disputes.
Voluntary process of settling System of dispute settlement that
dispute whereby the parties elect may be compulsory or voluntary,
a mediator to facilitate the whereby the parties are
communication and negotiation compelled by the government, or
between the parties in dispute for agree to submit their dispute
the purpose of assisting them in before an arbiter, with the
reaching a compromise intention to accept the resolution
of said arbiter over the dispute as
A mild intervention by a neutral final and binding on them.
third party, the Conciliator-
Mediator, wherein the CM advises
the parties or offers solutions or
alternatives to the problems with
the end in view of assisting them
towards voluntarily reaching their
own mutually acceptable
settlement of the dispute.

A mild form of intervention by a

neutral third party, the
Conciliator-Mediator, relying on
his persuasive expertise, takes an
active role in assisting parties by
trying to keep disputants talking,
facilitating other procedural

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niceties, carrying messages back
and forth between the parties,
and generally being a good fellow
who tries to keep things calm and
forward-looking in a tense
situation.

SURFACE BARGAINING BLUE-SKY BARGAINING

Going through the motions of negotiating without
any legal intent to reach an agreement.
Question of whether an employers conduct
demonstrates an unwillingness to bargain in good
faith or is merely hard bargaining.
Unrealistic and unreasonable demands in
negotiations by either labor and management, where
neither concedes anything and demands the
impossible

The SSS Law does not discriminate based on civil status of a female member-employee.
- As long as said female employee has paid at least 3 monthly contributions in the 12-month period
immediately preceding the semester of her childbirth, she can avail of the maternity benefits under
the law

Re: Claim for salaries of unexpired portion of OVERSEAS employment contract

Sec. 10 of RA 8042 provides that in case of termination of overseas employment without just, valid or
authorized cause (as defined by law or contract) OR any unauthorized deductions from the migrant workers
salary:
- The worker shall be entitled to FULL reimbursement of his placement fee with interest of 12% p.a.,
plus his salaries for the unexpired portion of his employment contract OR
- For 3 years for every year of the unexpired term
- WHICHEVER IS LESS

An employee-member of a cooperative cannot join a union and bargain collectively with his cooperative,
because an owner cannot bargain with himself and his co-owners.

Agency Fee
The collection of agency fees in an amount equivalent to union dues and fees from employees who are not
union members is recognized under Art. 248(e) of the Labor Code
- The union may collect such fees even without any written authorization from the non-union member
employees, IF said employees accept the benefits resulting from the CBA.

The duty to bargain does not compel either party to agree to a proposal or require the making of a
concession.

Payment on commission basis alone does not prove that A is a field personnel. There must be proof that the
employee is left to perform his work unsupervised by his employer.

SIL is such a unique labor standard benefit, because it is commutable.

- An employee may claim his accrued SIL throughout the years of his service with the company upon
his resignation, retirement or termination

Even if food and lodging were provided and considered as facilities by the employer, the ER cannot deduct
such facilities from the workers wages without compliance with law.

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 - The employer simply cannot deduct the value from the employees wages without satisfying the
following:
(a) Proof that such facilities are customarily furnished by the trade;
(b) The provision of deductible facilities is voluntarily accepted in writing by the employee; and
(c) The facilities are charged at fair and reasonable value.

To be a ground for the cancellation of union registration under the Labor Code, the nature of the fraud must
be grave and compelling enough to vitiate the consent of the majority of union members.

Termination cases arising in or resulting from the interpretation and implementation of CBAs, and
interpretation and enforcement of company personnel policies which were initially processed at the various
steps of the plant-level Grievance Procedures under the parties CBAs, fall within the original and exclusive
jurisdiction of the voluntary arbitrator pursuance to the LC.

2009

An employment contract prohibiting employment in a competing company within a reasonable period of 1

year from separation is VALID.
- The ER has the right to guard its trade secrets, manufacturing formulas, marketing strategies and
other confidential programs and information.

Not all confidential employees are disqualified to unionize for the purpose of collective bargaining.
- Only confidential employees who, because of the nature of their positions, have access to
confidential information affecting labor-management relations as an integral part of their position
are DENIED the right of self-organization for purpose of collective bargaining.

Runaway Shop
The transfer of location of a strike-bound establishment to another location
- Not automatically an unfair labor practice.
- It is ULP if the relocation that brought about the runaway shop is motivated by anti-union animus
rather than for business reasons.

Substitutionary Doctrine
Prohibits a new CB agent from repudiating an existing CBA
- The existing CBA (in full force and effect) must be honored by a new exclusive bargaining
representative because of the policy of stability in labor relations between an employer and the
workers.

4 Policies Enshrined in the Constitution That Are Not Covered by Art. 3 of the LC
1. All workers shall have the right to peaceful concerted activities, including the right to strike in
accordance with law
2. They shall be entitled to a living wage
3. They shall participate in policy and decision-making processes affecting their rights and benefits as
may be provided by law
4. The state shall promote the principle of shared responsibility between workers and employers.

In Bristol Myers Squibb v. Baban, the Court established a second class of positions of trust that involve rank-
and-file employees who, in the normal and routine exercise of their functions, regularly handle significant
amounts of money.

An award or order of reinstatement is self-executory and does not require a writ of execution to implement
and enforce it.

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The employer cannot prevent reinstatement BUT may however opt for reinstatement of the employee in the
payroll of the company without requiring him to report back to his work.

Wage distortion
Refers to a situation where an increase in the prescribed wage rate results in the elimination or severe
contraction of intentional quantitative differences in wage or salary rates between and among employee
groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure
based on skills, length of service, and other logical bases of differentiation.
- The existence of wage distortion is NOT a valid ground for staging a strike, because the LC provides
for a specific method or procedure for correcting wage distortion.

Compulsorily covered by the GSIS

1. All EEs receiving compensation who have not reached the compulsory retirement age, irrespective
of employment status
2. Members of the judiciary and constitutional commissions for life insurance policy

SSS Law defines Employee as:

Any person who performs services for an employer in which either or both mental and physical efforts are
used and who receives compensation for such service, where there is an ER-EE relationship.

Seafarers as overseas Filipino workers are fixed-term employees whose continued rehiring should not be
interpreted as a basis for regularization but rather as a series of contract renewals sanctioned under the
doctrine.

Sexual Harassment
1. Authority, influence or moral ascendancy over employee
2. While the law calls for a demand, request or requirement of a sexual favor, it is not necessary that
the demand, request or requirement of a sexual favor be articulated in a categorical oral or written
statement.
a. It may be discerned, with equal certitude from the acts of the offender.
3. The acts resound with deafening clarity the unspoken request for a sexual favor, regardless of
whether it is accepted or not.
4. In sexual harassment, it is not essential that the demand, request or requirement be made as a
condition for continued employment or promotion to a higher position.

Run-Off Election
To have a run-off election, all the contending unions (3 or more choices are required) must have garnered
50% of the number of votes cast.

Dismissal without JC, without DP Dismissal patently illegal

Dismissal for JC, without DP Dismissal valid; employer liable to pay indemnity (nominal damages)

4 Instances when an Illegally Dismissed EE may be awarded Separation Pay in lieu of Reinstatement
1. In case the establishment where the EE is to be reinstated has closed or ceased operations;
2. Where the company has been declared insolvent;
3. Former position no longer exists at the time of reinstatement for reason not attributable to the fault
of the ER; and
4. Where the EE decides not to be reinstated as when he does not pray for reinstatement in his
complaint or position paper

2008

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Although the Secretary of Labor has a wide latitude of discretion in deciding whether or not to assume
jurisdiction over a labor dispute, or certify the same to the NLRC for compulsory arbitration, the ERs business
must be one which is indispensable to the national interest.

The Regional Director exercises both visitorial and enforcement powers over labor standard cases, and
empowered to adjudicate uncontested money claims of persons still employed.

What determines the existence or non-existence of ER-EE relationship is the actual factual situation between
the employer and employee, and not what is stipulated in the contract.

A strike undertaken despite the Secretary is issuance of an assumption of certification order becomes a
prohibited activity, and thus ILLEGAL.
- The union officers who knowingly participate in that illegal strike are deemed to have lost their
employment status.
- The union members who commit specific illegal acts or who knowingly defy a return to work order
are also deemed to have lost their employment status.

The employer is bound by law to remit to an employees SSS monthly contribution.

- The compulsory coverage of employers and employees under the SSS law is actually a legal
imposition on the employers and employees, designed to provide social security to working men.
- Membership in SSS is in compliance with a lawful exercise of the police power of the State, and
may not be waived by agreement of any party.

2007

Principle of Codetermination
One which grants to the workers the right to participate in policy and decision-making processes affecting
their rights and benefits
- The workers have a right to participate in the decision making process of ER on matters affecting
their rights and benefits, through CBAs, grievance machineries, voluntary modes of settling
disputes and conciliation proceedings mediated by government.

Globe Doctrine
The bargaining units may be formed through separation of new units from existing ones whenever plebiscites
had shown the workers desire to have their own representatives

Community of Interest Rule

States that in choosing the appropriate bargaining unit, there must be a determination of the community of
interests of employees

Any compromise agreement, including those involving labor standards laws, voluntarily agreed upon by the
parties with the assistance of the Bureau or the RO of the DOLE, shall be final and binding upon the parties.
- GR: The NLRC or any court shall NOT assume jurisdiction over issues involved therein.
- EXC: In case of non-compliance thereof OR if there is prima facie evidence that the settlement was
obtained through fraud, misrepresentation, or coercion.

Information and statements at conciliation proceedings cannot be used as evidence in the NLRC. (Privileged
communication)

No criminal prosecution shall be instituted without a final judgment, finding that a ULP was committed
having first been obtained in the administrative proceeding.
- During the admin proceeding, the running of the period for prescription of the criminal offense
herein penalized shall be interrupted.
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Execution shall issue upon order, resolution or decision that finally disposes of the action or proceedings
after the counsel of record and the parties shall have furnished with copies of the decision in accordance with
these Rules, BUT only after the expiration of the period of appeal if no appeal has been duly perfected.
- Writ of Execution may be issued by LA, RD or duly authorized Only WITHIN 5 YEARS from the date
it becomes final and executory.
o Motu proprio or upon motion of any interested party

Instances When an Order of Execution May Be Appealed

1. Where the order of execution varies or goes beyond the terms of the judgment it seeks to enforce or
the terms of the judgment are ambiguous.
2. Where the implementation of the order was irregular
3. When its execution becomes impossible or unjust, it may be modified or altered on appeal or
harmonize the same with justice and the facts.

A decision of the Labor Arbiter, which has become final and executory be novated through a compromise
agreement of the parties.