LABOR REVIEW REVIEWER (Atty.
Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
EMPLOYER – EMPLOYEE RELATIONSHIP (EER)
Elements of Relationship
Jurisprudential tests to determine existence of EER
A. Control Test or “4-Fold Test”
B. Economic Relations Test
Control test – ER has the ability (need not be actual) to
exercise control over the following
1. Payment of wages
2. Hiring (selection and engagement)
3. Firing (dismissal and discipline)
4. Control over results and means
● “Wage” – however designated, capable of being
expressed in terms of money payable by ER to EE
under a contract for work (includes commissions)
● “Control over means”
o Most important element; without it, no
EER [Filipinas Broadcasting Network v.
NLRC, GR 118892]
o If ER can; not if ER does – mere
existence of right to control is sufficient,
not necessarily actual control [Dy Keh
Beng v. International Labor, GR 32245]
Economic relations test – analysis of existing economic
conditions between parties to determine existence of EER
1. Payment of PAG-IBIG contributions
2. Payment to State Insurance Fund
3. Deduction of withholding tax
4. Deduction of SSS contributions
ENT Status – defined by law and not what the parties call it
or say it should be.
CONTRACTING (inc. Labor-Only Contracting)
Art. 106. Contractor or Subcontractor
● Whenever an ER enters into a contract with another
person for the performance of the former’s work, the
EEs of the contractor and of the latter’s subcontractor
shall be paid.
● If C/SC fails to pay the wages of his EEs, ER shall be
jointly and severally liable with his C/SC to such EEs
to the extent of work performed, in the same manner
and extent that he is liable to EEs directly employed
by him.
● SOLE may restrict or prohibit contracting-out of labor
by (1) making appropriate distinctions between labor-
only contracting and job contracting; (2)
differentiations within these types of contracting; (3)
determine who among the parties shall be considered
the ER.
DISCLAIMER: USE AT YOUR OWN RISK
1
● “Labor-only contracting” – person supplying
workers to an ER
1. Does not have substantial capital or
investments in the form of TEMP
2. Workers recruited and placed are performing
activities which are directly related to the
principal business of ER
● In labor-only contracting – intermediary shall be
deemed merely an agent of the ER who shall be
responsible to the workers in the same manner and
extent as if they were directly employed by him
Independent Contractors and Labor-Only Contractors
Contracting or subcontracting – arrangement whereby a
principal agrees to farm out with a contractor or
subcontractor the performance of a specific work within a
definite or predetermined period, whether done within or
outside the premises of the principal
1. P-C agreement
2. Specific job
3. Definite or pre-determined period
4. Within or outside the P’s premises
Contractor or subcontractor – person engaged in
legitimate contracting arrangements
Contractual employee – employed by C/SC
● In job-contracting – 3 parties: (1) principal; (2)
contractor; (3) contractual employee
● In fixed-term employment – 2 parties: (1) principal; (2)
employee
Conditions in permissible job contracting – all must be
present; absence of 1 element, deemed labor-only
contracting
1. Independent business of contractor
2. C undertakes work under own manner and
method, free from control and direction of principal
except as to results
3. Substantial capital or investment in the form of
tools, equipment, machineries, work premises
(TEMP)
4. Service agreement ensuring worker’s rights and
benefits
● Substantial capital OR investment – either one
suffices
Required Contracts
1. Employment contract between C/SC and its EE
a. job
b. place of work
c. wage rate
d. T&Cs
2. Service Agreement between P and C
LABOR REVIEW REVIEWER (Atty. Quan)
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1st sem A.Y. 2019-2020
a. job and term/duration
b. place and T&Cs
c. provision on bonds
Labor-only contracting – presence of even just 1 element,
deemed labor-only contracting
1. C/SC merely recruits, supplies, places workers
2. First Form:
a. EEs performing activities directly-
related to the principal business of the
principal; AND
b. C/CS has no substantial capital OR
investment in TEMP
3. Second Form:
a. C/CS has no control over the
performance of the work
● “Activities directly related” – not only related, but also
necessary/indispensable activities
Effect of LOC - Principal solidarily liable (C/SC treated as
mere agent of P)
● also applies if C/SC fails to pay EE’s wages -> P’s
liability limited to extent of work performed for him
Other Illicit Forms of Employment Arrangements
1. Cabo
a. person/group under the guise of a labor
organization, supplies workers to EER,
with/out consideration
2. In-house agency
a. C owned. managed or controlled by P or
one where P has at least 1 share, and
which operates solely or mainly for P
3. In-house cooperative which merely supplies
worker to P
a. coop managed or controlled by P or
where P or any of its officers
owns/represents any equity/interest,
and which operates solely or mainly for
P ● Cert. of Reg. valid for 2 years, unless
4. Contracting because strike or lockout is
actual/imminent
5. Contracting out work of union members AND it will
interfere with, restrain, or coerce employees in the
exercise of their rights to self-organization
6. Requiring C/SC’s EE to perform functions
currently being performed by regular EEs of P
7. Requiring C/SC’s EE to sign, as a precondition to
employment/continued employment, an antedated
resignation letter, blank payroll, waiver of
minimum standards, quitclaim; or requiring them
to become members of cooperative
8. Repeated rehiring of C/SC’s EE via employment
contract of short duration
DISCLAIMER: USE AT YOUR OWN RISK
2
9. Requiring C/SC’s EE to sign employment contract
for a term shorter than the term in the Service
Agreement
a. XPN: Divisible into phases and
substantially different skills required and
this is made known to EE at time of
engagement
10. Other schemes designed to circumvent security of
tenure
Fixed-Term Employment (ENDO)
● not the same as job contracting because ENDO
involves 2 parties, while contracting involves 3
parties (P, C/SC, EE)
Posting of bond – ER may require C/SC to furnish a bond
equal to the cost of labor under contract; used in case C/SC
fails to pay wages of contractual EEs
Civil liability of ER and contractors – every ER is jointly
and severally liable for unpaid wages
Liability of principal to employee in cases of illegal
dismissal
1. Joint and several with ER but with right to
reimbursement
2. Wage differentials
3. Separation pay and back wages
Existence of EER – C/SC considered ER of the contractual
employee
● Principal solidarily liable with for LC violations
● Principal deemed ER when
1. Labor-only contracting
2. Prohibited acts
Registration of contractors/subcontractors
● Failure to register – presumption that C is engaged in
labor only contracting; complainant no longer need to
allege nor prove this fact in courts
cancelled/revoked
When D.O. 174 N/A
1. Construction Industry (PCAB)
2. Industries covered by separate regulation/other
government agency
3. BPOs
4. KPOs (Knowledge Process Outsourcing)
5. LPOs (Legal Process Outsourcing)
6. IT Companies
7. Medicinal Transcription
VOLUME II-B
EMPLOYMENT TERMINATION
BOOK SIX: POST-EMPLOYMENT
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
TITLE I: TERMINATION OF EMPLOYMENT
Part 1. Introduction: Employee’s Security of Tenure
Article 293. Coverage
Article 294. Security of Tenure
1. Constitutional guarantee of tenure
• State policy to assure the right of workers to
security of tenure; the guarantee is an act of
social justice
• ER shall not terminate the services of an EE
except for a just cause or when authorized by the
LC
• Security of tenure: the right not to be removed
from one’s job without valid cause and valid
procedure
2. Article 294, misleading
• Article 294 states “in cases of regular ENT” but
security of tenure is also enjoyed by probationary
and contractual workers to a limited extent
3. Tenure of managerial personnel
• ER’s have discretion in terminating the ENT of
managerial personnel who perform functions
which require the ER’s full trust and confidence
• Dismissal of rank-and-files on same grounds
require a higher proof of involvement from them
Even managerial EEs are entitled to security of
tenure
o Prerogative to dismiss managerial EEs
must still be without abuse of discretion
4. Contrast: Employment-at-will (EAW)
• EEs with no assurance about their condition or
term of ENT which can be altered or terminated by
the ER at any time and for any reason
Not in the Philippines
o EAW is not recognized in the Philippines
o EAW contract entered into by a Filipino
abroad is legal
o Termination-for-Cause Rule is a
constitutional right; due process
entails:
a. Existence of lawful cause
b. Observance of proper
procedure
DISCLAIMER: USE AT YOUR OWN RISK
3
Part 2: Kinds of Employment
Article 295. Regular and Casual Employment
1. Essentiality of EER
• Security of tenure only when EER exists
Article 295 presupposes EER
o Article 295 applies when existence of
EER is not the issue in dispute
o 4 kinds of ENT arrangements
a. Regular
b. Project
c. Seasonal
d. Casual
Examples of non-employment
Commission agent
• Singer Serving v. Drilon: The nature of the
relationship between a company and its collecting
agents depends on the circumstances of each
particular case. Not all collecting agents are EEs
and neither are all collecting agents are
independent contractors.
• Necessary activities may be rendered without
being hired as an EE (4-fold Test of EER)
A non-employee after 11 years
• Where there is no EER, the non-EE remains as
such despite the passage of time
2. Regular employment
§ Test to determine regular ENT: Whether the
activity is usually necessary or desirable in the
usual T/B of the ER
§ Regular v. Casual ENT – not determined by the
written contract but by the nature of the work
o If the work is an integral part of the
business and the worker does not
furnish as independent business or
professional service, work presumed to
be regular employment
§ Article 295: 2 kinds of regular EEs
a. Regular EEs by nature of work
b. Regular EEs by years of service
Examples of regular ENT by nature of the work
o What determines the kind of ENT is the
nature of the work performed in relation
to the business, considering all the
circumstances, and in some cases, the
length of time and its continued
existence
§ e.g. Wall painter in wine
factory deemed part of regular
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
maintenance after service of
more than 1 year
Workers supplied by Labor-Only
Contractor may be deemed regular EEs
of Contractee
§ A finding that one is an LOC is
equivalent to a finding that
EER exists between the
company and the “EEs” of the
LOC
“Contractual Project” EEs becoming
regular
§ Determining factor of the
status of contractual project
EEs is the nature of the work
performed and the place
where he performed such
assignment
• e.g. Worker hired to
perform carpentry
work as project-EE
was never deployed
to any particular
project but was
regularly
performing
carpentry work for
company for 2
years deemed to be
regular EE despite
contract’s
designation
“Day-to-Day Contractual” EE becoming
regular
§ Repeated “day-to-day” hiring
and the continuing need for
worker’s services for over a
year are sufficient evidence of
the necessity and
indispensability of his service
to ER’s T/B; deemed regular
§ The nature of the work
performed must be viewed
from a perspective of the T/B
in its entirety and not on a
confined scope
Temporary EE becoming regular
§ LC: Temporary employment
a. If it has been fixed
for a specific
undertaking the
completion of which
DISCLAIMER: USE AT YOUR OWN RISK
4
has been
determined at the
time of the EE’s
engagement; or
b. Services to be
performed are
seasonal in nature
and the ENT is for
the duration of such
season
§ If EE under (a) or (b) is
performing activities usually
necessary in the usual T/B, he
is a regular EE,
notwithstanding written
agreements to the contrary
Casual EE; Regular EE by years of service
o Casual EEs become regular after 1
years of service with respect to the
activity for which he was hired
Casual EE with less than 1 year of
service does not become regular
§ Capule v. NLRC: Gardeners
hired by milk company; no
fixed work schedule and
allowed to work any day at
their discretion; terminated
before 1 year; court held not
regular EEs
Salary of casual EE converted to regular
should not be reduced
§ In addition to fringe benefits,
causal EE converted into
regular allowed to retain same
rate they were enjoying tat the
time they were converted
May regular jobs be contracted out? – It depends.
o Contracting out services as part of cost-
saving program is valid exercise of
management prerogative in the
absence of proof of bad faith
o Serrano ruling: Efficiency and
economical operations are recognized
as valid, lawful means for contracting
out jobs, provided
a. The contractor must be
legitimate and not a LOC; and
b. The contracting out is not one
of the arrangements
LABOR REVIEW REVIEWER (Atty. Quan) 5
ENCARNACION, MANZO
1st sem A.Y. 2019-2020

prohibited under D.O. No. 18- work on different

A nor does it amount to ULP
Outsourcing of Union Members’ jobs: Is this
allowed?
o Yes. As long as not prohibited under
CBA nor does it interfere with their right
self-organize.
Contracting out almost all regular jobs
o Allowed as long as not LOC
o Legitimate labor contracting
a. Independent contractor
engaged in own business
b. Sufficient capital and
resources to undertake its
principal business
Does contracting out require union’s conformity?
o No, to do so would curtail business
growth. Besides, the law already
imposes limitations as to the exercise of
contracting out. Management should be
allowed to enjoy such prerogative
subject to well-defined limitations.
3. Project employment: Meaning and scope
• Project and seasonal EEs also enjoy security of
tenure, at least for the duration of the project or
season
• Main difference: Not the nature of the work (they
also perform necessary and desirable activities)
but rather, in the duration of existence
• Project EE: one whose ENT has been fixed for a
specific project or undertaking, the completion or
termination of which has been determined at the
time of the engagement of the EE
o Deemed project EE so long as the
duration and scope of the project were
determined or specified at the time of
the engagement
• Seasonal EE: work or service is seasonal in nature
and the ENT is for the duration of the season
Two types of project activities
o “Project” could refer to either
a. Particular job within the
regular or usual business of
the ER, but which is
identifiably distinct and
separate from the other
undertakings of the company
• e.g. construction
company’s
construction
workers assigned to
buildings may be
lawfully terminated
upon completion of
their assigned
project
b. Particular job NOT within the
regular business of the ER
which also begins and ends at
determined or determinable
times
o Common requisite – must be engaged
as project EEs in good faith and not
merely to evade labor laws
o Project EEs v. Regular EEs; termination
§ Project: coterminous with
specific project; terminated
upon end/completion
§ Regular: legally entitled to
remain in service until
terminate under the
recognized modes of
termination of service under
LC
Principal test
o Test: w/n the EEs were
a. Assigned to carry out a
“specific project or
undertaking”
b. The duration (and scope) of
which were specified at the
time of the EE’s engagement
(Predetermination of
duration)
o Absence of definite duration means EE
is regular
o The length of service is not the
controlling test of ENT tenure but w/n
the ENT has been fixed for a specific
undertaking/project determined at the
time of engagement
§ This means project EEs may
go beyond 1-year service,
provided pre-determined
scope and duration
§ Automatic conversion applies
to casual EEs, not project
EEs
Project EEs in the construction industry
o Policy Instruction No. 20
§ Project EEs in construction
industry – employed in
connection with a particular
construction project

DISCLAIMER: USE AT YOUR OWN RISK

LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
§ Non-project EEs in
construction industry –
employed by construction
company without reference to
any particular project
o Project EEs are not entitled to
separation pay if termination due to
completion of project or any phase
thereof, regardless of the number of
projects they worked on for the
particular company
Indicators of project ENT
o The following are indicators that a
worker is a project EE
a. Duration of the specific
undertaking for which worker
is engaged is reasonably
determinable
b. Duration and scope of work is
defined in the ENT contract
and made known to the EE at
the time of his engagement
c. Work performed is in
connection with the particular
project for which he was
engaged
d. EE is free to offer his services
to any other ER
e. Termination is reported to the
DOLE-RO within 30 days
following the date of his
separation from work
f. An undertaking in the ENT
contract providing “completion
bonus” as practiced by most
construction companies
Work pool
o Policy Instruction No. 20: members of a
work pool from which a construction
company draws its project members, if
considered EEs of the construction
company while in the work pool, are
deemed non-project EEs; completion
does not severe EER
o Fact of ENT while in work pool must be
proven; otherwise, deemed project-EE
o EE in a work pool is not necessarily a
regular EE; he may also be a project EE
Illustrative case: Project EE
§ Cartiganas v. Romago
Electric: Electric contractors’
work depends on the amount
of real estate projects are in
DISCLAIMER: USE AT YOUR OWN RISK
6
the market. Since work
depends upon availability of
such projects, necessarily the
duration of the ENT is
coterminous with the projects
to which they are assigned
and from whose payrolls they
are paid.
Project EEs not entitled to separation
pay; Exception
§ Salazar v. NLRC: GR – if
separation is brought about by
completion of the project, no
prior notice of termination
need be given to the EE. No
separation pay required.
§ De Ocampo v. NLRC:
Although the contracts have
expired, if the project is still
ongoing and requires the
continued services of the
workers, and they were
terminated not because of the
expiration of their contracts
but because the filed a
complaint against the ER,
they are entitled to SP.
Non-project EEs; 3 types
o De Jesus v. PNCC: 3 types of non-
project EEs
a. Probationary EEs
b. Regular EEs
c. Casual EEs
o DM Consunji v. Jamin: Although length
of time is not the controlling test for
project ENT, it is vital in determining if
the EE was hired for a specific
undertaking or the tasks performed
were vital, necessary, indispensable to
the usual T/B. With repeated,
continuous, and successive hiring for
31 years due to business demands,
ENT ceased to be coterminous with
specific projects
“Completion of Project” not valid reason
to separate project EE who has become
regular
§ Project EE who has gained
regular status can no longer
be terminated on the ground
of completion of project
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
o Computing the backwages of project EE
who has become regular; “No Work, No
Pay” Rule applicable
§ Amounts corresponding to
what could have been earned
during the period from the
date petitioners were
dismissed until their
reinstatement why they not
undertaking any projects
should be deducted
4. Seasonal ENT; “Regular Seasonal” after one season
• Seasonal EEs are considered regular EEs
• Regular Seasonal Employees – those called to
work from time to time, season after season are
considered on leave of absence without pay until
re-employed. EER is never severed; merely
suspended.
• To be excluded from classification as regular EEs
a. Work seasonal in nature; and
b. Employed only for duration of ONE
season
EER exists between milling company and its
workers even during off season
o Cessation of milling activities at the end
of the season is not permanent or
definitive; it is a foreseeable suspension
of work
o EER is not severed
Seasonal “Pakiao” EEs
o ENT on pakiao basis does not make ER
an independent contractor
o Pakiao workers are considered EEs as
long as ER exercises control over the
means by which such workers are to
perform their work
o Seasonal nature of work does not
detract from the conclusion that EER
exists; deemed regular EEs if rehired
every season
The Mercado ruling: Project EEs do not become
regular although service exceeds one year
o The one-year duration on the job of
Article 295 is pertinent to deciding
whether a casual EE has become
regular; not applicable to seasonal or
project EEs
Mercado reconciled with earlier rulings
§ Mercado: workers were not in
her regular employ; they were
DISCLAIMER: USE AT YOUR OWN RISK
7
tasked to do different phases
of agricultural work in a given
year and were free to work for
other farms during the same
period, which they did.
“Regular Contractuals” entitled to benefits of
regular EEs
o Contractuals who have rendered at
least one year of work in activities which
are necessary or desirable in the usual
T/B of the ER are deemed regular EEs
entitled to all the benefits under the CBA
Casual employment
a. EE engaged in a job or activity which is
merely incidental to the ER’s business
b. Such job/activity is for a definite period
made known to EE at the time of his
engagement
c. Provided, service of more than 1 year,
whether continuous or interrupted,
deemed regular EE and EE shall
continue until such activity exists
5. Fixed-period ENT; When valid
REQs
• Voluntarily agreed upon
• Parties dealt with each other on more or less equal
footing
Difference with Project. EE: the determining factor
• Project – activity
• FTE – period
In general:
• LC does not mention the term “fixed period ENT”
but CC recognized the validity of contracts with
fixed periods
o e.g. substitute for worker on study leave,
maternity leave, protracted total
disability
• governed by civil law (contracts)
• Is fixed period ENT same as project ENT?
o Project ENTs are fixed period ENTs but
not all fixed period ENTs are project
ENTs.
• Brent School case: Temporary ENT agreed for 5
years for the purpose of building the school’s
athletic program is example of fixed-term ENT;
court upheld contract voluntarily and knowingly
entered by the parties
Brent Doctrine summarized
• Article 295 does not prohibit ENT contracts with fixed
periods, provided, it is entered into by the parties
without force, duress, or improper pressure
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
Pre-termination of fixed period ENT, Liability of ER
§ Fixed-period EEs are not regular (permanent) EEs but
they are deemed regular in 2 senses
a. Nature of work is necessary or desirable to
business of ER; and
b. Enjoys security of tenure during the limited
term of ENT
§ Cannot be removed during term without valid cause
§ Illegally dismissed EE is entitled to payment of salaries
for the unexpired portion of his contract
§ Due process must still be observed in the pre-
termination of fixed-term contracts
A fixed term EE is not an independent contractor
• Fixed term EE cannot be independent contractors
because of existence of EER
• Test: “day certain agreed upon by the parties for the
commencement and termination of the EER”
Illegal “fixed term ENT”; Brent Ruling clarified
§ Cielo v. NLRC: Contract limited to 6 months subject to
renewal; EER may be terminated before expiration “at
the option of either party”; court held obvious scheme
to circumvent provisions on regularization
§ Where from the circumstances it is apparent that
periods have been imposed to preclude acquisition of
tenurial security by the EE, they should be struck down
as contrary to public policy – void ab inito.
Effect of retention of EE beyond the period of ENT
• Workers initially employed for fixed period but allowed
to work in same capacity beyond such period without
the benefit of a new contract are deemed to be
converted into regular EEs
“ENDO” (End of Contract) contractualization; When “5-
month contractuals” considered regular EEs; the Purefoods
precedent
• 5-month period specified in contracts imposed
precisely to circumvent the constitutional guarantee on
security of tenure have to be struck down as contrary to
public policy and morals
• Purefoods’ main bulk of workers were “casuals”; every
month replaced casuals with more casuals; such
workers doing work necessary in ER’s usual business
Effect of renewals of fixed period ENT in regular jobs
• Valid if satisfies the 2 criteria so that the “term ENT”
may not violate the law on security of tenure:
a. Fixed period knowingly and freely
agreed upon by parties
b. ER and EE dealt with each other on
more or less equal terms with no moral
DISCLAIMER: USE AT YOUR OWN RISK
8
dominance exercised by the former over
the latter
• Unlawful if renewed on “as needed” basis several times
exceeding one year to withhold benefit of security of
tenure – deemed regular EE
Overseas seafarers are contractual
• Article 280 does not apply to overseas ENT
• Seafarers are not regular EEs and are not entitled to
separation pay; ENT governed by contracts they sign
every time they are re-hired, and ENT is terminated
once contracts expire
• Law sets fixed period only because of nature of work
for the mutual benefit of the seafarer and the ER
Domestic seafarers not contractual
• Millares ruling only applies to overseas seafarers
• Domestic seafarers enjoy security of tenure and can
only be terminated for just and authorized causes
Article 296. Probationary employment
1. Probationary ENT: Reason and purpose
• ER has right to choose who will be hired and who
will be denied ENT; right to set probationary period
within which he may test and observe the
prospective EE’s conduct before being hired
permanently
• Probationary EE: one under observation by the
ER to determine w/n he is qualified for permanent
ENT
• Probationary employment: gives ER an
opportunity to observe the fitness of a
probationary EE while at work, and to ascertain
whether he will be a productive and efficient EE
• Probationary: refers to the purpose of the term,
not the length
2. Conditions and standards of probation
• Probationary ENT must have been expressly
agreed upon; without such agreement, EE
deemed regular
• Agreement must be genuine
• Probationary EEs are also entitled to security of
tenure; cannot be terminated without just or
authorized causes
• Manila Hotel v. NLRC: If an EE hired allegedly on
a probationary basis was not informed of the
standards that should qualify him as a regular EE,
the EE is deemed to have been hired as a regular
EE
Rights of probationary EE
o Aside from the just and authorized
causes of termination, a probational EE
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
may be terminated for failure to qualify
as a regular EE in accordance with
reasonable standards made known by
the ER to the EE at the time of his
engagement
Limitations to termination of probation; Regular
status after probationary period
o ER’s power to terminate a probationary
EE is subject to the following limitations
a. It must be exercised in
accordance with the specific
requirements of the contract
b. If a particular time is
prescribed, the termination
must be within such time and
if formal notice is required,
then that form must be used
c. The employer’s
dissatisfaction must be real
and in good faith, not feigned
as to circumvent the contract
or the law
d. There must be no unlawful
discrimination in the dismissal
o The standard of performance must also
be explained and accepted
o If probationary EE allowed to work the
probationary period set by law or by the
ER, EE deemed regular
Non-observance of ER’s own termination
procedure: Termination “procedurally infirm”
o Substantially valid but procedurally
infirm – dismissal upheld but ER liable
for nominal damages
3. Duration and termination of probation
Period of probation not necessarily 6 months
o Article 296: “shall not exceed 6 months”
means that the probational EE may be
dismissed for cause at any time before
the expiration of 6 months after hiring;
but if ENT continues beyond 6 months,
EE deemed regular
o Probationary period may be extended
beyond 6 months
a. Agreement of parties
b. Company policy
c. Nature of the work requires
No successive probations
o EE allowed to work beyond probationary
period deemed a regular EE
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9
Probation in sister company
o ER cannot transfer an EE to a sister
company in order to deprive subject EE
of the benefits and protection of labor
law
o No basis for subjecting EE to a new
probationary period where he had
already become a regular EE when
absorbed by or transferred to a sister
company
Last day of probation
o Mistubishi Motors v. Chysler Phil. Labor
Union: probationary period of 6 months
means 180 days; not 6 calendar months
Extension of probation
o EE may voluntarily agree to extension of
probationary period pursuant to act of
liberality of ER to give the former a
second chance
o Deemed waiver of benefit attaching to
the completion of period if he still fails to
make the grade during the period of
extension
Probation not the same as fixed-term ENT
o Probationary ENT requires ER to prove
the EEs unsatisfactory performance; no
need to prove in fixed-term ENT
o Termination has to be based on EE’s
failure to meet standards or other valid
cause, not just because the probation
period ends. Without showing failure to
meet standards or existence of just or
authorized cause, the termination is
unlawful and invalid.
Probation of teachers
o Probationary ENT of teachers shall be
subject to standards established by the
DECS as embodied in the Manual of
Regulation for Private Schools (MRPS)
a. Teacher is a full-time teacher
b. Teachers must have rendered
3 consecutive years of service
c. Service must have been
satisfactory
o Full-time teacher – one whose total
working day is devoted to the school,
has no other regular remunerative ENT,
and is paid on a regular monthly basis
regardless of the number of teaching
hours
§ If college – at least 18 hours a
month
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
o Part time teacher – cannot acquire
permanent ENT
o May still be terminated under LC – just
or authorized cause, failure to qualify
Reversion from full-time to part-time teacher to
avoid “regularization”
o Schools cannot confine teachers to part-
time basis to prevent them from
becoming regular; deemed
circumvention of LC provisions on
probationary ENT
Is it proper to reinstate a probationary EE?
o When illegal dismissal was done before
the probationary period ended,
probationary EE should be reinstated
o Probationary EE also entitled to SPIR
should reinstatement be not feasible – 6
months counted as 1 year
o Backwages – covers period from date of
dismissal up to last day of agreed
probation period
RIGHT TO SELF-ORGANIZATION
TITLE 1 – Policy and Definitions
Chapter 1 – Policy
Article 218. Declaration of Policy
1. Overview and Viewpoint
• Labor standards – minimum terms and conditions
of employment to which EEs are legally entitled
and which ERs must comply
• Labor relations – (1) interactions between ERs
and EEs/EEs’ representatives, (2) mechanism by
which standards and other terms and conditions of
employment are negotiated, adjusted, and
enforced
• Participation – democratic method of regulating
relations
• Organization and Action
o Macro-labor relations – national level
o Micro – enterprise level
§ Starts when workers organize
themselves into unions and
associations
• Collective contract – EEs have to unionize to
formally bargain with employer; unionized EEs
must choose only 1 union as their representative
• CBA -> Neutral arbitration -> work stoppage
• CBA must be ratified
• Dispute handling – essentially inter-party which
means ER and EEs themselves must deal with
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10
their problem in a manner most comfortable to
them
o Arbitrate if in-house machinery fails
o Voluntary modes of dispute settlement
are preferred instead of government
intervention
• Work stoppage – strike if by EEs, lockout if by ER;
valid causes
o Bargaining deadlock
o ULP
• Public interest – SoLE and President may assume
jurisdiction or certify the case to NLRC if public
interest is at stake
2. Workers’ Organization
• Combination of workmen organized for purpose of
securing through united action the most favorable
conditions for its members
• All unions are labor organizations but not all LOs
are unions
• Unions are understood to be
o Organized body
o Of dues paying members
o Operating through elected officers
o Constituting a militant, vital, and
functioning organ
3. Why Workers Organize
a. Job security
b. EE's desire to follow rule of law instead of arbitrary
exercise of power by their boss
c. Sense of participation in the business enterprise
Article 219. Definitions
a. ER – any person acting in the interest of an
employer
b. EE – (1) any person in the employ of ER, and (2)
individual whose work has ceased as a result of a
current labor dispute if he has not obtained other
substantial equivalent and regular employment
c. Labor organization (LO) – any union or association
of EEs which exist for the purpose of collective
bargaining or of dealing with ERs concerning
terms and conditions of employment
d. Legitimate labor organization (LLO) – any labor
organization duly registered with DOLE
e. Company union – any labor organization who has
been assisted by any act defined as ULP
f. Bargaining representative – LLO whether or not
employed by ER
g. ULP – any unfair labor practice expressly defined
by this Code
h. Labor dispute – any controversy concerning terms
or conditions of employment or the association or
representation of person in negotiating the terms
and conditions of employment
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ENCARNACION, MANZO
1st sem A.Y. 2019-2020
i. Managerial EE – vested with powers to (1)
formulate management policies, (2) hire, layoff,
recall, discipline EEs
j. Supervisory EE – in the interest of ER, can
effectively recommend such managerial actions
k. Strike – temporary stoppage of work by the
concerted action of EEs as a result of a labor
dispute
l. Lockout – temporary refusal of ER to furnish work
as a result of a labor dispute
m. Internal union dispute – all dispute or grievances
arising rom any violation of or disagreement over
any provision of the CBL of a union
n. Strike-breaker – any person who obstructs by
force, violence, threats, any peaceful picketing by
EEs during any labor controversy affecting
conditions of work or exercise of right to self-
organization or collective bargaining
o. Strike area – sites or premises of ER struck
against as well as the immediate vicinity actually
used by picketing strikers
1. EER Relationship Essential
• If there is no EER, there is no basis for organizing
for purposes of collective bargaining
• EER elements
o Selection and engagement of ER
o Payment of wages
o Power to dismiss
o Power to control EE’s conduct
2. Who are EEs/ERs?
• The term employee shall include
o Any employee
o Not limited to the EE of any particular
ER
o Any individual
§ Whose work has ceased due
to any current labor dispute
§ And who has not obtained any
substantially equivalent and
regular employment
• The term employer shall refer to any person
o Who employs services of another
o For whom EEs work
o Who pays their wages
o Directly or indirectly acts in the interest
of an ER
2.1. “One Whose Work Has Ceased…”
3. Labor Organization as ER
• LO deemed ER when it is acting in such relation
to person rendering services under hire in
connection with its activities for profit or gain
4. Overview of Labor Disputes
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11
• Any bona fide controversy involving
o Terms and conditions of employment
(labor standard dispute)
o Issue of representation (labor relations
dispute)
• Labor disputes are within the jurisdiction of NLRC,
not the regular courts
4.1. Definitions and Examples
• Labor standards disputes
o Compensation
o Benefits
o Working conditions
• Labor relations disputes
o Organizational right dispute/ULP
o Representation disputes
o Bargaining disputes
o Contract administration or Personnel
Policy Disputes
o Employment tenure disputes
4.2. Remedies in Labor Disputes
a. Grievance procedure – in-house mechanisms
b. Enforcement of compliance order – visitorial or
administrative authority of SoLE
c. Certification of bargaining representatives –
DOLE’s determination of which union shall
represent the EEs in collective bargaining
d. Assumption of jurisdiction – SoLE or President’s
power to decide dispute affecting national interest
e. Certification to NLRC – actin of SoLE empowering
NLRC to compulsorily arbitrate disputes
f. Injunction – extraordinary remedy which is not
favored in labor law which is issued to stop an
actual or threatened commission of unlawful acts
or require the performance of certain acts
g. Judicial action – complaint filed with regular court
h. Appeal – process in which orders are elevated to
a higher authority on specified grounds; subject to
rule of exhaustion of administrative remedies
i. Review by court – no law allows appeal from
decisions o SoLE, NLRC, or Voluntary Arbitrator
unless grouds are GADALEJ (Rule 65)
4.3. Alternative Dispute Resolution Modes
• Characteristics – non-adversarial, and technical
rules of procedure and of evidence are not strictly
observed
• Modes
o Conciliation – efforts of conciliator to
assist the parties to end their dispute by
condoning each other or finding a
compromise
o Mediation – mediator takes a more
active rule in searching for and
formulation solution
o Arbitration – more determinative than
conciliation or mediation but less
technical than litigation; may be either
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ENCARNACION, MANZO
1st sem A.Y. 2019-2020
compulsory under NLRC or voluntary by
choice of parties; decision of arbitrator
binds the disputants as a court verdict
does
4.4. Compromise Agreement
• May be entered into in any stage of ADR
processes
• Agreement should be
o Freely entered into
o Not contrary to LMPP
• Subject to approval of authority before whom the
case is pending
Art. 252. Meaning of duty to bargain collectively.
The duty to bargain collectively means the performance
of a mutual obligation to meet and convene promptly and
expeditiously in good faith for the purpose of negotiating
an agreement with respect to wages, hours of work and
all other terms and conditions of employment including
proposals for adjusting any grievances or questions
arising under such agreement and executing a contract
incorporating such agreements if requested by either
party but such duty does not compel any party to agree
to a proposal or to make any concession.
Art. 253. Duty to bargain collectively when there
exists a collective bargaining agreement.
When there is a collective bargaining agreement, the duty
to bargain collectively shall also mean that neither party
shall terminate nor modify such agreement during its
lifetime. However, either party can serve a written notice
to terminate or modify the agreement at least sixty (60)
days prior to its expiration date. It shall be the duty of both
parties to keep the status quo and to continue in full force
and effect the terms and conditions of the existing
agreement during the 60-day period and/or until a new
agreement is reached by the parties.
Art. 253-A. Terms of a collective bargaining
agreement.
Any Collective Bargaining Agreement that the parties
may enter into shall, insofar as the representation aspect
is concerned, be for a term of five (5) years. No petition
questioning the majority status of the incumbent
bargaining agent shall be entertained and no certification
election shall be conducted by the Department of Labor
and Employment outside of the sixty-day period
immediately before the date of expiry of such five-year
term of the Collective Bargaining Agreement. All other
provisions of the Collective Bargaining Agreement shall
be renegotiated not later than three (3) years after its
execution. Any agreement on such other provisions of the
Collective Bargaining Agreement entered into within six
(6) months from the date of expiry of the term of such
other provisions as fixed in such Collective Bargaining
Agreement, shall retroact to the day immediately
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12
following such date. If any such agreement is entered into
beyond six months, the parties shall agree on the
duration of retroactivity thereof. In case of a deadlock in
the renegotiation of the Collective Bargaining Agreement,
the parties may exercise their rights under this Code.
1. Duty to Bargain Defined
a. Two situations when the duty to bargain exists—
i. Where there is yet no CBA
1. Mutual obligation of ER and EEs’ majority
to meet and convene
2. Purposes of meeting and convening:
a. To negotiate an agreement on the
subject of (a) wages, (b) hours of work,
(c) other terms and conditions of ENT
b. To execute a contract incorporating
such agreement if requested by either
party
3. Kind of compliance required is prompt,
expeditious, and in GF
4. Limitations or reservations of the duty: it
does not compel any party to agree to a
proposal or make a concession
ii. Where CBA exists
1. The duty to bargain means all of the above
and the obligation to not terminate or
modify the CBA during its lifetime
2. But 60 days before the CBA expires, either
party may notify the other in writing that it
desires to terminate or modify the
agreement
3. During the 60-day period and until a new
agreement is reached, the CBA remains in
full force and effect, the parties are duty-
bound to keep the status quo. The law
provides for AUTOMATIC RENEWAL OR
EXTENSION OF THE CBA.
4. The 60-day period does not always
coincide with the freedom period. The 60-
day period refers to submission of proposal
to renegotiate the non-representational
provisions of the CBA.
LABOR ORGANIZATIONS AND UNION
REGISTRATION
Title 4 – Labor Organization
Chapter 1 – Registration and Cancellation
Article 240. Requirements of registration
• Unions shall acquire legal personality, entitled to
rights and privileges granted to LLOs upon
issuance of certificate of registration;
requirements
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
o 50 pesos registration fee
o Officers – names and addresses;
organization – principal address;
workers – list of participants
o If applicant is independent union –
names of members which should be at
least 20% of all EEs in the bargaining
unit
o If applicant union has existed for 1 or
more years – annual financial reports
o CBL, minutes of adoption, list of
members (4 copies)
Article 241. Chartering and Creation of a Local Chapter
• Duly registered F/NU may create a local chapter
by issuing a charter certificate
• Chapter shall acquire legal personality only for
purposes of filing a PCE from the date it was
issued its charter certificate
• Chapter entitled to all rights of LLO upon
submission of the following
o Officers (N/A), principal office
o CBL
o Charter Certificate
Article 242. Action on application
• Bureau shall act on all applications for registration
within 30 days from filing
Article 243. Denial of Registration; Appeal
• Decision of Labor Relations Division in the
regional office may be appealed to Bureau within
10 days from receipt of notice
Article 244. Additional requirements for Federations or
National Unions (F/NU)
a. Proof of affiliation of at least 10 local or chapters
which must all be duly recognized collective
bargaining agents
b. Companies (N/A) where locals or chapters
operate and list of all members in each
1. Definition of Labor Organization
• Any union or association of EEs in the private
sector existing for the purpose of
o Collective bargaining
o Dealing with ERs concerning terms and
conditions of employment
1.2 Union
• Any labor organization in the private sector
organized for
o Collective bargaining
o Other legitimate purposes
• To be “legitimate” – union has to be registered with
DOLE; registration confers rights and privileges
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13
• Non-registration – does not mean it is illegitimate,
but it will not posses rights of an LLO
• Legitimate Labor Organization (LLO) – any labor
organization registered or reported with DOLE
1.3. Bargaining Representative
• Not every LLO is an EBR
• To become an EBR, the union
o Has to be registered
o Go through recognition process
(certification or election)
• EBR – legitimate labor union duly recognized or
certified as representative of all the EEs in a
bargaining unit for purposes of collective
bargaining
1.4. Association
• Workers’ Association – association of workers
organized for
o Mutual aid and protection of members
o Any legitimate purpose other than
collective bargaining
• Legitimate Workers’ Association – WA registered
with DOLW
1.5. Distinction between “Collective Bargaining” and
“Dealing with ER”
• Collective bargaining – right acquired by a labor
organization after registering with the DOLE and
after being recognized or certified as the EBR of
EEs
• “Dealing with the ER” – generic description of
interactions between ER and EEs, even if the EEs’
group is not registered; involves a bilateral
mechanism where EEs make proposals and
management responds by acceptance or rejection
1.6. Labor Organization Not Necessarily a Union
• Workers may form organizations without the
formality and rigidity of a union for their mutual aid
and protection or for any legitimate purpose other
than collective bargaining (e.g. LMCs, Clubs, etc.)
1.7. ER’s Opposition to Unions
• Unions increase the bargaining power of EEs to
demand higher wages and benefits, and to a
certain degree, curtail management’s decisions
2. Classification of Labor Organization
2.1. At the National Level (Macro-Labor Relations)
• National Union/Federation – any labor
organization with at least 10 locals/chapters or
affiliates, each of which are duly certified collective
bargaining agents
• Industry union – duly registered group of LLOs
operating within an identified industry and
organized for
o Collective bargaining
o Dealing with ERs
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1st sem A.Y. 2019-2020
o Participating in formulation of social and
employment policies in the industry
• Trade union center – group of F/NUs organized for
o Mutual aid and protection of members
o Assisting members in collective
bargaining
o Participating in the formulation of social
and employment policies
• Alliance – aggregation of unions existing in one
line of industry; different unions ma form alliances
to help each other in attaining a particular purpose
o Alliances cannot represent member
unions in CBA negotiations
2.2. At the Enterprise Level (Micro-Labor Relations)
• Enterprise-level unions are either “independent” or
“chapters”
• Independent – created by independent
registration through its own actions instead of
issuance of a charter by an F/NU; has a legal
personality of its own
• Chartering – created through issuance of charter
certificate by a duly registered F/NU; legal
personality is derived from F/NU but it may
subsequently register itself independently
• Company union – labor organization which is ER-
controlled or ER-dominated (prohibited union)
2.3. Changes in RA No. 9481
• No require number – 20% registration requirement
applies only to independent unions
• Tentative legal personality – chapter acquires
legal personality to file PCE as soon as it is issued
a charter certificate; all other union rights acquired
by submission of required documents
• 3 specified grounds of cancellation
o Falsehood about CBL
o Falsehood about election of officers
o Voluntary dissolution
• Cancellation by action of members
o At least 2/3 of membership may vote to
dissolve the LO
o Requires subsequent “Application to
Cancel” submitted by board of
organization and attest by president
• PCE proceeds despite Petition to Cancel Union
Registration
o Petition to cancel registration does not
prevent filing or hearing of PCE
o Final decision revoking registration is
required to bar PCE proceedings
• Reportorial requirements
o Every LLO has to submit to BLR
§ CBL
§ Election of officers with list of
voters
§ Annual financial reports
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14
§ Annual list of members
o Non-submission is not a ground for
cancellation, but officers may be
punished by expulsion
• Affiliation with same federation
o Supervisors’ union and rank-and-file
union in same company may affiliate
under same federation
• Commingling
o Commingling is not a ground to cancel
union registration
o Excludible members are just
automatically removed from the list
• Non-disclosure of identity
o A federation that filed PCE cannot be
required to disclose the names of its
chapter’s officer and members
• Non-disclosure even in unionized company
o Non-disclosure rule applies to
federations that file PCEs on behalf of
chapter in unionized companies
• ER, a bystander
o ER has no right to oppose the PCE;
participation is limited to being informed
of PCE and being required to submit the
list of EEs
3. Registration Rationale
• Legitimate labor organization – registered with
DOLE; possesses rights and privileges granted to
LLOs
o Representational and bargaining rights
o Right to strike and picket
• Unregistered labor organization – still lawful
organization and can deal with ER, but
o No legal personality to demand
collective bargaining
o Cannot petition for a CE
o Cannot request preventive mediation
o Cannot hold legal strikes
3.1. Effect of Registration Under the Corporation Law
• LO may be organized under Corp. Law as a non-
stock corporation and be issued a certificate of
incorporation by SEC
• Only acquires juridical personality before
REGULAR COURTS; does not grant the rights
and privileges of an LLO
4. Where to register
• Filed with and acted upon by Regional office
where applicant operates
o Independent labor unions
o Chartered locals
o Workers’ associations
LABOR REVIEW REVIEWER (Atty. Quan)
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1st sem A.Y. 2019-2020
• Filed with the Bureau or Regional offices but acted
upon by Bureau
o Federations
o National unions
o Workers’ associations operating in more
than one region
5. Registration requirements
5.1. Federation or National Union
• Application accompanied by the following
documents
o Names and addresses – union and
officers
o Minutes and list of members –
organizational meeting
o Annual financial reports – (1) in
existence for at least 1 year, (2)
collected any sum from its members
o CBL
o Resolution of affiliation – at least 10
legitimate labor organizations which are
certified collective bargaining agents
o Names and addresses – companies and
members
5.2. Industry Union
• Same requirements as F/NU
5.3. Independent Labor Union
• Application accompanied by the following
documents
o Names and addresses – union and
officers
o Approximate number of EEs in
bargaining unit
o Statement – not reported as a chartered
local of any F/NU
o Minutes and list – organizational
meeting
o Names of members comprising at least
20% of all EEs in the unit
o Annual financial reports – (1) existence
for at least 1 year, (2) collected any
amount from members
o CBL
5.4. Workers’ Association
• Application accompanied by the following
documents
o Names and addresses – association
and officers
o Minutes and list of members –
organizational meeting
o Financial reports
o CBL
o If operating in more than one region –
resolution of membership of each
member association
5.5. Chartered Local
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15
5.5a. Chartered Local has to be Registered; Requirements
• Has to be registered, not just reported
• Duty of F/NU to submit the following
o Charter certificate it issued to chapter
o Names and addresses – local’s officers
and office
o CBL
5.5b. Tentative Legal Personality to File PCE
• Upon being issued a charter certificate, the
chapter acquires legal personality, but only for
purposes of filing a PCE
5.5c. Submission of Confirming Documents
• After F/NU submits documents, the Chapter also
has to submit the same (confirming documents)
• Non-submission – chapter not entitled to rights
and privileges of LLO
• Documents must be submitted within 30 days of
receipt of notice from Regional Office
• Med-Arbiter may dismiss PCE if
o Union is not listed as LLO
o Union fails to attach in its petition its
charter certificate
5.5d. Validity of DO No. 40-03
• Order imposing 30 day period for submission of
confirming documents – valid
5.5e. A Trade Union Center Cannot Create a Chapter
• Only duly registered F/NUs can create chapters
5.5f. When does a Chapter Become an LLO?
• Deemed registered and vested with legal
personality on the date of issuance of its certificate
of registration or certificate of creation
5.5g. Recognition by BLR not a Ministerial Duty
• BLR has to determine veracity of submitted
documents; has power to deny recognition
5.5h. Requirements Relaxed
• Creation of a local no longer needs subscription by
minimum number of members
• Only independent unions are required to comply
with the 20% membership requirement
5.5i. 20 Percent Membership Requirement
• Independent union needs 20% min. membership
to register
• Required at the time the independent union
applies to register
5.5j. Withdrawal by Members
• Before filing of application – presumed voluntary
and will prejudice the registrability
• After filing of application – considered involuntary
and does not prejudice application
5.5k. Union’s Legitimacy not Subject to Collateral Attack
• Legal personality may only be questioned through
an independent petition for cancellation; not be
collateral attack
6. Collective Bargaining Unit (CBU)
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1st sem A.Y. 2019-2020
• Bargaining unit – group of EEs
o Sharing mutual interests
o Within a given ER unit
o Comprised of all or less than all of the
entire body of EEs in said unit
• Units should be “appropriate” – members share
common concerns or common interest
• CBU is bigger than union and there may be
several unions in one CBU, but only 1 union can
represent the entire CBU (EBR)
7. Constitution, By-Laws, and Regulations; Limitations
• CBL must be reasonable, uniform, not
discriminatory, and not contrary to law or public
policy
• CBL constitutes a contract between the union and
its members.
7.1. Amendments
• CBL may be amended, modified, extended
a. Duly constituted union authorities
b. Majority vote of members
• Major policy questions – deliberated and decided
by secret ballot by members
8. Provisions Common to the Registration of Labor
Organization and Workers’ Association
8.1. Attestation, Fee, Copies of Documents
• Attestation requirement for application and notice
for change of name, merger, consolidation, and
affiliation
• Issuance of certificate of registration upon
payment of registration fee
• Requirement of 1 original and 2 copies of all
documents accompanying application/notice
8.2. Action on the Application/Notices
• Regional Office or Bureau must act on the
application/notice within 10 days from submission
(approve/deny)
8.3. Denial of Application/Return of Notice
• If documents incomplete or do not contain
required certification/attestation – notify
LO/Applicant in writing within 5 days and require
compliance within 30 days from receipt of notice
• If Applicant/LO fails to comply – application/notice
shall be denied (without prejudice to filing of new
notice)
• Notice from RO/Bureau denying must be in writing
and indicate clearly the reasons for denial
o If denial by RO – appeal to Bureau
o If denial by Bureau – appeal to SOLE
8.4. Appeal
• Denial by RO -> Bureau -> CA
• Denial by Bureau -> SOLE
• Appeal – within 10 days from receipt of notice of
denial
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o Ground: grave abuse of discretion OR
violation of these Rules
• Memorandum of Appeal filed with the RO/Bureau
denying which shall then transmit it with the
records to the Bureau/SOLE, respectively, within
24 hours from receipt of memo.
• Decide appeal within 20 days from receipt of
records
9. Affiliation
• Affiliate – an independently registered union that
enters into an agreement of affiliation with a
federation or a national union
o Also refers to a chartered local which
applies for and is granted an
independent registration but does not
disaffiliate from its mother-federation or
national union
• Why?
o To secure support or assistance
particularly during formative stage of
unionization
o To utilize expertise in preparing and
pursuing bargaining proposals
o To marshal mind and manpower in the
course of a group action, such as a
strike
• Federation or national union ceases. As such
when it loses its locals
o Must have at least 10 locals or chapters,
each of which is a duly recognized
bargaining agent in the establishment
where it operates as affiliates
9.1. Principal – Agent Relationship
• Principal – local
• Agent – federation
• Affiliation by a duly registered union with a national
union/federation does not make the local lose its
legal personality
9.2. Report of Affiliation; Requirements
• Independently registered union affiliating is
required to report such affiliation
• Report of affiliation of independently registered
labor unions shall be accompanied by:
o Resolution of union’s board of directors
approving affiliation
o Minutes of general membership meeting
approving affiliation
o Total number of members of union and
names of those who approved
o Certificate of affiliation issued by NU/F
o Written notice to ER if affiliating union is
incumbent bargaining agent
10. Disaffiliation
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1st sem A.Y. 2019-2020
• To disaffiliate is a right, but to observe the terms
of affiliation is an obligation
• In the absence of enforceable provisions in the
federation’s constitution preventing disaffiliation of
a local union, a local may sever its relationship
with the parent (part of right to self-organization)
• EFFECT ON LEGAL STATUS: if union is not
independently registered from the federation, it is
not entitled to the rights and privileges granted to
a LLO
o Can’t file petition for certification election
10.1. Local Union is the Principal; Federation, the Agent
10.2. When to Disaffiliate
• GR: only during 60-day freedom period
immediately preceding the expiration of the CBA
o Freedom period – last 60 days of the 5th
and last year of a CBA
• XPN: before freedom period if:
o Carried out by majority of members in
the bargaining unit;
o Contract of affiliation does not specify
period for possible disaffiliation
§ If there is, stipulation must be
observed
10.3. Disaffiliation must be by Majority Decision
• Entire membership through secret balloting
• If minority – may constitute disloyalty
10.4. Disaffiliation: Effect on Union Dues
• Obligation of ER to deduct and remit dues to
federation is conditioned on the individual check-
off authorization of the local union members
• Federation entitled to receive it only as long as
local union is affiliated
• Obligation of EE to pay union dues coterminous
with affiliation/membership
• Local which has validly withdrawn from its
affiliation with the parent assoc. and which
continues to represent the EEs of an ER is entitled
to the check-off dues under CBA
10.5. Disaffiliation: Effect on Existing CBA; the
“Substitutionary” Doctrine
• CBA continues to bind members of new or
disaffiliated and independent union up to CBA’s
expiration date
• Substitutionary Doctrine – EEs cannot revoke
validly executed CBA with ER by simple expedient
of changing their bargaining agent
10.6. ER not a Party
11. Revocation of Charter of local/branch
• By serving on local/branch a verified notice of
revocation, copy furnished the Bureau
• Ground: disloyalty or other grounds specified in
C/BL of NU/F or workers’ assoc.
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17
11.1. Effect of Cancellation of Registration of Federation or
National Union or Locals/Chapters
• Divests local/chapter of their status as LLO, unless
they are covered by a duly registered CBA (in
which case, they are allowed to register as
independent unions. If they fail, they lose their
status upon CBA’s expiration)
12. Merger or Consolidation
• Merger – LO absorbs another, resulting in
cessation of absorbed LO’s existence and
continued existence of absorbing LO
o Effect – transfer to absorbing LO all
rights, interests, and obligations to the
absorbed org.
• Consolidation – creation of new union arising from
unification of 2/more unions
o Newly created org. acquires all rights
and interests of the consolidating org.
o Occurs between 2 unions that are
approximately the same size
12.1. Practical Considerations
12.2. Notice of Merger/Consolidation of LO; Where to File
• Filed and recorded by RO that issued certificate of
registration/certificate of creation of chartered
local of either the merging or consolidating LO.
• If NU/F – notice filed with Bureau
12.3. Requirements of Notice of Merger/Consolidation
• Notice of merger with:
o Minutes of merger convention or
general membership meeting/s of all
merging Los with list of members who
approved; and
o Amended C/BL and minutes of
ratification, unless ratification transpired
in merger convention, which fact shall
be indicated
• Certificate of registration issued to merged LO
shall state registration number of one of the
merging Los as agreed upon by the Los and
indicate:
o New name of merged LO
o Fact that is a merger
o Name of merged Los
o Office or business address
o Date when each LO acquired legitimate
personality as stated in original
certificate of registration
13. Change of Name
• File notice with BureauRO where concerned LO’s
certificate of registration/creation of a chartered
local was issued
• Notice for change of name with:
o Proof of approval or ratification
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ENCARNACION, MANZO
1st sem A.Y. 2019-2020
o Amended C/BL
13.1. Effect of Change of Name
• Not affect legal personality
ELIGIBILITY FOR MEMBERSHIP
SPECIAL CLASSES OF EEs
Article 255. Exclusive Bargaining Representation and
Worker’s Participation in Policy and Decision-Making
1. Workers’ Participatory Right: Its Constitutional Meaning
• Participation refers to participation in
o Grievance procedures
o Voluntary dispute settlement
o CBA
• Not to formulation of corporate programs or
policies
1.1. Adoption of the Participatory Management Style
• Human Relations approach – motivate workers to
be better through increased morale, decreased
resistance to company authority, and a fuller
sense of involvement and belonging
1.2. EE’s Participation in Formulating the Code of Discipline
• Right to participate in the DELIBERATIONS of
matters which may affect their right and the
FORMULATOIN of policies relative thereto (e.g.
code of discipline)
• Exercise of management prerogatives must be
without abuse of discretion
o Important to draw the line between
management prerogatives regarding
business operations per se and those
which affect the rights of the EEs; in
treating the latter, management should
at least ensure that EEs are properly
informed of its decisions or modes of
action
1.3. Participatory Right Does Not Grant Management
Control
• Right refers to participation and representation,
not co-management
2. Workers’ Participation as the Real Objective; The LMC
• Collective bargaining is just one for of EE
participation
• Real goal is EE participation in policy and
decision-making insofar as EE’s rights, benefits,
and welfare are concerned
• Labor Management Council – union members and
managers meeting periodically to discover,
discuss, and resolve issues or problems that are
not typically covered by a CBA
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18
o Benefit – can deal with ER on matters
affecting EE’s rights, benefits, welfare in
a less threatening method compared to
collective bargaining and without having
to face the problems arising from
periodic inter-union contests for
dominance
2.1. Department’s Promotion of LMC and Other Councils
• DOLE promotes formation of LMCs in organized
and unorganized establishments to give workers
greater participation in policy and decision-making
processes insofar as those not covered by CBA
3. Individual Grievance
• Presence of an EEs’ organization does not replace
the individual EE’s right to purse grievances
4. Collective Bargaining Unit Defined
• 3 democratic devices at the enterprise level
o Airing of grievance
o Participation in policy and decision-
making
o Collective bargaining
• “Bargaining Unit” – group of EEs sharing mutual
interests within a given ER unit, comprised of all or
less than all of the entire body of EEs in such unit
• “Bargaining agent” – chosen union to represent
CBU
o Has to be the majority union where
majority of CBU members belong
5. Appropriateness of Bargaining Unit; Factors Considered
• Test of bargaining unit’s appropriateness –
Whether it will best assure to all EEs the exercise
of their collective bargaining rights (community of
interests)
• Factors of community of interest
o Earnings
o Terms and conditions of work
o Kinds of work performed
o Qualifications, skill and training
o Frequency of contact among EEs
o Geographic proximity
o Continuity of production processes
o Common supervision and determination
of labor-relations policy
o History of collective bargaining
o Desires of the EEs
o Extent of union organization
5.1. Bargaining History Not Decisive Factor
• Although a factor in determining appropriateness
of bargaining unit, it is not decisive or conclusive –
other factors considered as a whole to determine
mutuality of interests
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1st sem A.Y. 2019-2020
5.2. Exclusion of Confidential EEs
• Confidential EEs – assist and act in confidential
capacity to, or have access to confidential matters
of, person who exercise managerial functions in
the field of labor relations
• Confidential EEs cannot be union members
5.3. Temporary or Part-Time EEs
• Eligibility to be union members depend on
“reasonable likelihood of eventual employment”
5.4. Seasonal EEs
• Included: seasonal, part-timers, BUT different
bargaining unit
• Excluded: casual EEs
o XPN: casual workers of ER who
operates a referral system, for unskilled
labor
5.5. Probationary EEs
• Included if there is reasonable likelihood of
eventual employment
6. Referendum Where Interests are Dissimilar
• Referendum to ascertain will of EEs to be included
or excluded in existing CBU when interests are
dissimilar to those other rank-and-files of the
existing bargaining unit
6.1. Desire of the EEs; The Globe Doctrine
• When all other factors are equal, the desires of the
EE are relevant in determining the appropriate
bargaining unit
7. Single or “ER Unit” Preferred
• One enterprise = one BU
• GR: Single unit preferred
XPN: substantial distinctions between members of
same class may justify creation of separate
bargaining unit
7.1. Exceptions to One-Unit Policy
• Rule must give way to right of EEs to form unions
when there are substantial differences of interests
even within workers of same class (plant unit, craft
unit, secretaries – all rank and file but no
community of interests)
8. Two Companies with Related Businesses
• 2 corporations cannot be treated as a single
bargaining unit even if their businesses are related
8.1. Subsidiaries and Spun-Off Corporations
• Workers of separate juridical personalities cannot
belong to single bargaining unit
8.2. The 4-Factor Analysis
DISCLAIMER: USE AT YOUR OWN RISK
19
• 4 factor analysis in determining whether 2 or more
ERs constitute a single ER
o Interrelations of operations
o Centralized control
o Common management
o Common ownership
• Absence of the arms-length relationship found
among unintegrated companies
• Most critical factor – centralized control
9. Summation of Significance
• Membership in bargaining unit determines
o Eligibility to vote
o EEs represented in bargaining
o EEs covered by the resulting CBA
• CBU v. Union
o In CE – voters comprise the whole
bargaining unit, not just the union
o In CBA ratification – voters are whole
bargaining unit, not just union
o In strike voting – only union members
can vote
UNION SECURITY CLAUSE
1. Valid Discrimination: Union Security Clause
• USC – requires membership in the union so that
the EE may retain his job and the union’s
existence may be assured; a form of compulsory
union membership
• USC is a generic term which comprehends – (1)
closed shop, (2) union shop, (3) maintenance of
membership, or (4) any agreement which imposes
upon EEs the obligation to acquire or retain union
membership as a condition affecting employment
• Discrimination in favor of unionism is a valid kind
of “discrimination”
• Not ULP – ER’s compliance in good faith with
request of certified union for dismissal of EEs
expelled pursuant to a union security clause
1.a. Kinds of Union Security Agreements
• Open shop – union membership is not a condition
of employment
• Closed shop – only union members can be hired,
and EEs must remain union members to retain
employment
• Union shop – nonmembers may be hired, but
membership is required to retain employment after
a certain period; applies to present and future EEs
• Modified union shop – non-member EEs at the
time of signing of the contract are not required to
join, but all workers hired thereafter must join
• Maintenance of membership shop – no EE is
compelled to join, but all present or future
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
members must remain in good standing in the
union
• Exclusive bargaining shop – union is recognized
as EBR for all EEs in the bargaining unit, whether
members or not
• Bargaining for members only – union is
recognized as EBR only for its own members
• Agency shop – EEs must either join the union or
pay the union as EBR a sum equal to that paid by
members; a.k.a. “maintenance of treasury shop
1.b. Validity of Closed-Shop Agreement
• Freedom to contract is given primacy over
Freedom to self-organize
1.c. Advantages and Disadvantages of Closed-Shop
Agreement
• Advantages
o Strengthens bargaining power of Labor
Organizations
o Prevents non-union members from
sharing in benefits without sharing with
obligations
o Prevents weakening of Labor
Organizations by discrimination against
union members
o Eliminates the lowering of standards
caused by competition with nonunion
workers
o Enables labor organizations to
effectively enforce CBAs
o Facilitates collection of dues and
enforcement of union rules
o Creates harmonious relations between
ER and EEs
• Disadvantages
o Monopolistic domination of employment
by labor organizations
o Interferers with the freedom of contract
and personal liberty of the individual
worker
o Compels ERs to discharge all nonunion
workers regardless of efficiency, length
of service, etc.
o Facilitates the use of Los by
unscrupulous union leaders for unlawful
purposes
o Denies nonunion workers equal
opportunity
o Enables union to charge exorbitant dues
and fees
1.d. “Right to Work” Laws
• “Right to Work” laws – prohibition on agreements
requiring membership in a labor organization
DISCLAIMER: USE AT YOUR OWN RISK
20
• In US – membership as a condition of employment
is whittled down to its financial core; closed shop
or union shop contracts are outlawed in 20 states
• Primacy on individual’s right to work over the rights
of unions; recognizes EE’s right to not organize
and engage in union activities
• PH does not follow this rule
1.e. Enforcement of Union Security Clause upon Corporate
Merger
• Union Shop Clause in CBA in surviving
corporation applied to absorbed EEs from
dissolved corporation; absorbed EEs will be
required to join union as condition of continued
employment
1.f. Valid Dismissal Because of Application of Union Security
Clause
• USCs in CBAs, if freely and voluntarily entered
into, are valid and binding
• Not ULP – dismissal of an EE pursuant to a union’s
demand in accordance with a union security
agreement
• Union members are bound to closed-shop
agreements even when there is lack of knowledge
• Union members have the right to disaffiliate from
their union BUT must suffer the consequences of
their separation from the union under the security
clause of the CBA
1.g. Dismissal Pursuant to a Closed-Shop Clause Must
Clearly Appear in the Contract
• Union shop provisions are strictly construed
against the existence of a union shop
• Should not be extended beyond the explicit
coverage of their terms
1.h. Due Process Required in Enforcing Union Security
Clause; Intra-union Matters becomes Termination Dispute
with ER
• USCs in CBAs may be validly enforced and
dismissal pursuant thereto are valid, BUT only
when it does not erode the fundamental
requirement of due process
• Issue of expulsion of union officers (intra-union
dispute) is converted into a termination dispute
when the ER dismisses said officers without the
benefit of a separate notice and hearing; ER incurs
liability
1.i. Liability of Union to Pay Wages and Fringe Benefits of
Illegally Dismissed EEs
• If union demands ER to dismiss an EE under the
threat of filing notice of strike due to ULP, and EE
is later on deemed illegally dismissed, union shall
LABOR REVIEW REVIEWER (Atty. Quan) 21
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1st sem A.Y. 2019-2020

be liable to pay wages and benefits that EE failed o Invalid grounds

to receive § Illegal strike
§ Nonrenewal of
1.j. ER in Good Faith Not Liable registration/permit
o Administrative cancellation
2.0. Exemption from Compulsory Membership § Failure to submit for 5
a. Religious objectors consecutive years of
b. Members of minority unions – “closed shop” reportorial documents
provisions not applied to those already in the authorizes Bureau to institute
service at the time of its execution unless clearly cancellation proceedings on
and expressly stated; closed-shop clauses its own initiative or upon
intended to authorize dismissal of those EEs complaint by an party-in-
belonging to another labor organization are null interest
and void • Any amendment to
c. Confidential EEs C/BL and minutes
d. EEs expressly excluded by CBA stipulation of adoption or
ratification – within
2.3 Agency Fee Instead of Union Membership 30 days
• Alternative to compulsory union membership is the • Annual financial
collection of agency fee reports – within 30
• EEs benefiting from CBA may be required to pay days after close of
agency fee each fiscal or
• Written authorization from the nonunion EEs is not calendar year
required • Updated list of
• Legal bases of union’s right to collect agency fees newly-elected
is quasi-contractual – nonunion EEs may not officers with
unjustly enrich themselves by benefiting from appointive officers
employment conditions negotiated by the or agents handling
bargaining unit funds – within 30
days after each
CANCELLATION OF REGISTRATION regular or special
election or
Cancellation of Registration occurrence of any
• Govt.’s act that divests the organization of its change of such
status • Chartered locals,
• EFFECT: Revers to character prior to registration undependent
o Juridical personality and statutory rights unions, and
and privileges are suspended workers’
o It does not cease to exist or become an associations:
unlawful organisation updated list of
• Grounds for Cancellation of registration members – within
o Desire of union members themselves 30 days after close
§ Voted upon secret balloting in of each fiscal year
a meeting called for that • NU/F: Updated list
purpose of chartered locals
§ 2/3 affirmative vote of general and affiliates or
membership, not just of member orgs,
quorum CBAs executed and
§ Members’ resolution should their effectivity
be followed by application for period – within. 30
cancellation passed and days after close of
submitted by the union’s each fiscal year, as
governing board, which well as updated list
application must be attested of their authorized
to by the president representatives,
agents or

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LABOR REVIEW REVIEWER (Atty. Quan) 22
ENCARNACION, MANZO
1st sem A.Y. 2019-2020

signatories int eh closing of every fiscal year and

different regions of misrepresentation, false entries or fraud in the
the country preparation of the financial report itself;
• Who files petition for cancellation?
o Any party-in-interest may commence e. Acting as a labor contractor or engaging in the
petition for cancellation (inc. ER) “cabo” system, or otherwise engaging in any
• Petition to cancel shall be under oath activity prohibited by law;
o Facts and grounds
o Proof of service to respondent f. Entering into collective bargaining agreements
• Must be separate action and cannot be which provide terms and conditions of
entertained in petition for certification election filed employment below minimum standards
by union established by law;
• Where to file
o Independent union, chartered local, and g. Asking for or accepting attorney’s fees or
WA – may be cancelled by RD negotiation fees from employers;
§ Appealable to BLR
§ BLR decision final and h. Other than for mandatory activities under this
executory but may be Code, checking off special assessments or any
elevated to CA by certiorari other fees without duly signed individual written
o NU/F – Bureau Director authorizations of the members;
§ Appeal to SOLE then
certiorari to CA i. Failure to submit list of individual members to
o Upon filing of independent complaint or the Bureau once a year or whenever required
petition for cancellation by the Bureau; and
o Subject to reqs. Of notice and due
process j. Failure to comply with requirements under
• Procedure Articles 237 and 238.
o Rules applicable to inter/intra-union
dsputes Article. 240. Equity of the Incumbent
o Certain procedural reqs. Apply, All existing federations and national unions which meet
particularly to delisting due to failure to the qualifications of a legitimate labor organization and
comply with reportorial requirements none of the grounds for cancellation shall continue to
maintain their existing affiliates regardless of the nature
Article. 239. Grounds for Cancellation of Union of the industry and the location of the affiliates.
Registration
a. Misrepresentation, false statement or fraud in
connection with the adoption or ratification of
the constitution and by-laws or amendments BARGAINING UNIT
thereto, the minutes of ratification and the list
of members who took part in the ratification; Collective Bargaining Unit Defined
• 3 democratic devices at the enterprise level
b. Failure to submit the documents mentioned in o Airing of grievance
the preceding paragraph within thirty (30) days o Participation in policy and decision-
from adoption or ratification of the constitution making
and by-laws or amendments thereto; o Collective bargaining
• “Bargaining Unit” – group of EEs sharing mutual
c. Misrepresentation, false statements or fraud in interests within a given ER unit, comprised of all or
connection with the election of officers, minutes less than all of the entire body of EEs in such unit
of the election of officers, the list of voters, or • “Bargaining agent” – chosen union to represent
failure to submit these documents together with CBU
the list of the newly elected/appointed officers o Has to be the majority union where
and their postal addresses within thirty (30) majority of CBU members belong
days from election;
Appropriateness of Bargaining Unit; Factors
d. Failure to submit the annual financial report to Considered
the Bureau within thirty (30) days after the

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LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
• Test of bargaining unit’s appropriateness –
Whether it will best assure to all EEs the exercise
of their collective bargaining rights (community of
interests)
• Factors of community of interest
o Earnings
o Terms and conditions of work
o Kinds of work performed
o Qualifications, skill and training
o Frequency of contact among EEs
o Geographic proximity
o Continuity of production processes
o Common supervision and determination
of labor-relations policy
o History of collective bargaining
o Desires of the EEs
o Extent of union organization
• Bargaining History Not Decisive Factor
o Although a factor in determining
appropriateness of bargaining unit, it is
not decisive or conclusive – other
factors considered as a whole to
determine mutuality of interests
Exclusion of Confidential EEs
• Confidential EEs – assist and act in confidential
capacity to, or have access to confidential matters
of, person who exercise managerial functions in
the field of labor relations
• Confidential EEs cannot be union members
Treatment as to Certain EEs
• Temporary or Part-Time EEs
o Eligibility to be union members depend
on “reasonable likelihood of eventual
employment”
• Seasonal EEs
o Included: seasonal, part-timers, BUT
different bargaining unit
o Excluded: casual EEs
§ XPN: casual workers of ER
who operates a referral
system, for unskilled labor
• Probationary EEs
o Included if there is reasonable likelihood
of eventual employment
Referendum Where Interests are Dissimilar
• Referendum to ascertain will of EEs to be included
or excluded in existing CBU when interests are
dissimilar to those other rank-and-files of the
existing bargaining unit
Desire of the EEs; The Globe Doctrine
DISCLAIMER: USE AT YOUR OWN RISK
23
• When all other factors are equal, the desires of the
EE are relevant in determining the appropriate
bargaining unit
Single or “ER Unit” Preferred
• One enterprise = one BU
• GR: Single unit preferred
XPN: substantial distinctions between members of
same class may justify creation of separate
bargaining unit
Exceptions to One-Unit Policy
• Rule must give way to right of EEs to form unions
when there are substantial differences of interests
even within workers of same class (plant unit, craft
unit, secretaries – all rank and file but no
community of interests)
Companies with Related Businesses
• 2 corporations cannot be treated as a single
bargaining unit even if their businesses are related
Subsidiaries and Spun-Off Corporations
• Workers of separate juridical personalities cannot
belong to single bargaining unit
The 4-Factor Analysis
• 4 factor analysis in determining whether 2 or more
ERs constitute a single ER
o Interrelations of operations
o Centralized control
o Common management
o Common ownership
• Absence of the arms-length relationship found
among unintegrated companies
• Most critical factor – centralized control
Significance of BU
• Membership in bargaining unit determines
o Eligibility to vote
o EEs represented in bargaining
o EEs covered by the resulting CBA
• CBU v. Union
o In CE – voters comprise the whole
bargaining unit, not just the union
o In CBA ratification – voters are whole
bargaining unit, not just union
o In strike voting – only union members
can vote
BARGAINING AGENT and CERTIFICATION
ELECTION
Article 268. Representation Issue in Organized
Establishments
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
Article 269. Petitions in Unorganized Established
Article 270. When an ER May File Petition
Article 271. ER as Bystander
Article 272. Appeal from Certification Election Orders
1. Determining the Bargaining Union: Overview of the
Methods
• To bargain with ER – EEs in CBU can be
represented by on and only one union
o Legitimate labor organization
o Duly designated or selected
• Organized establishments – enterprise where
there exists a recognized or certified SOLA
• Unorganized – no union yet been duly recognized
or certified as bargaining representative
• 3 methods to determine the bargaining union
o SEBA certification
o Certification election
o Consent election
2. First Method: SENA Certification; DO No. 40-I-15
• SEBA certification – process where a union
request the DOLE to recognize and certify the
union as the SEBA of the unit
• Union should prove the following with
documentary evidence which are submitted under
oath
o Bargaining unit is ununionized
o Requesting union is the only union
o CBU majority are members of the union
• Certification shall bar filing of a petition for CE for
1 year
3. Second Method: Certification Election (CE)
• Certification election – process of determining
through SECRET BALLOT the sole and exclusive
representative of EEs in a bargaining unit for
purposes of collective bargaining
3.1. Fact-Finding
• CE proceedings are investigations of non-
adversarial and fact-finding in character
• Before holding CEs, preliminary inquiry should
show that there is reasonable doubt as to which of
the contending unions represents the majority; if
no doubt, no CE
• CEs involve only 2 issues
o Proper composition and constituency of
the bargaining unit
o Veracity of majority membership claims
DISCLAIMER: USE AT YOUR OWN RISK
24
• If “no union” wins – unit will remain ununionized for
12 months (12-month bar), after which a petition
for CE may be filed again
3.1a. Certification Election Differentiated from Union
Election
• UE – only union members can vote; object is to
elect union officers
• CE – all EEs in the unit can vote; object is to
determine SEBA of EEs in a unit
3.2. Who Files Petition for CE
• Either a registered union or the ER
3.2a. Intervention; Equity of the Incumbent
• Incumbent union – necessary party, a forced
intervenor; does not lose representative status
until actually replaced
• If PCE is filed by a federation – PCE deemed to
have been filed by the chapter, which must also be
an LLO
• Union that has no legal personality to file a PCE
cannot file petition-in-intervention
3.3. Where to File the PCE
• Filed in Regional Office which issued the union’s
certificate of registration
• Resolved by Med-Arbiter
• 2 or more petitions involving same unit
o Filed in 1 Regional Office – Med-Arbiter
who first acquired jurisdiction
o Filed in different Regional Offices –
Regional office where first petition was
filed
3.4. When to File the PCE
• If no CBA – filed anytime except within 12 months
of a previous election, if any
• If BU has existing CBA – within the last 60 days of
the fifth year of the CBA (freedom period)
3.5. Form and Contents of Petition
• GR form: (1) in writing, (2) verified under oath by
president of labor organization
o Federation – (3) verified under oath by
president of federation, (4) certification
under oath as the existence of
local/chapter, (5) charter certificate
o Local/Chapter – Charter certificate
o ER – petition verified by president
• Petition must state the following
o Bargaining unit is unorganized
o If there is CBA – petition filed within
freedom period
o If there is CBA – signatures of 25% of
EEs in bargaining unit
o If another union has been previously
certified – petition filed outside the 1-
year period from date of recording of
said certification; and no appeal is
pending
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
3.6. Action on the Petition: Preliminary Conference
• RO raffles petition to Med-Arbiter
• Preliminary Conference held within 10 working
days from MA’s receipt of petition
• Service of petition to ER and notice of preliminary
conference to petitioner and incumber bargaining
agent within 3 working days from MA’s receipt of
petition
• Copy of petition and notice of preliminary
conference posted in at least 2 conspicuous paces
in the establishment
• Issues determined in preliminary conference
o Whether PCE should be processed or
dismissed
o Determine the bargaining unit that will
participate in CE
o Identity of contending unions
o Possibility of holding a consent election
§ If unions agree to consent
election, PCE will no longer
be heard and the unions will
prepare for consent election
3.7. Action on the Petition: Hearings and Pleadings
• If unions do not agree to consent election – MA
may conduct as many hearings within a 15-day
period
• After 15 days, petition is deemed submitted for
decision
• Failure of party to appear in hearings when notified
– waiver of right to be heard
• Hearings may be cancelled for good reason but
cancellation cannot be used as basis for extending
the 15-day period
• Formal order denying/granting petition – 10 days
from date of last hearing
o If organized establishment – decision
granting petition can only be issued after
the lapse of the freedom period (bec.
other unions can still file their own PCE)
• In unorganized establishment – oce petition is
filed, MA automatically order conduction of
certification election – unappealable
3.8. Action on the Petition: Denial; 8 Grounds
EIGHT GROUNDS FOR DENIAL OF PETITION
a. Non-appearance
b. Illegitimacy – unregistered union
c. Illegitimacy – no charter
d. Absence of EER
e. Election bar – 12-month bar
f. Election bar – negotiation or deadlock
g. Election bar – existing CBA
h. Election bar – lack of support
DISCLAIMER: USE AT YOUR OWN RISK
25
3.8a. First Ground – Non-appearance
• Non=appearance of petitioner for 2 consecutive
scheduled conferences despite having notice –
petition dismissed
3.8b. Second Ground – Illegitimacy: Unregistered Union
• Only a legitimate labor organization (LLO) can file
a petition for certification election
• PCE filed by unlisted or unregistered union –
dismissed
• Legitimacy may be questioned in a separate and
independent petition for cancellation
o Mere filing of petition for cancellation
does not cause dismissal of PCE;
dismissed only if cancelled with finality
3.8c. Third Ground – Illegitimacy: No Charter
• Failure to submit duly issued charter certificate at
the time of filing of PCE – PCE dismissed
3.8d. Fourth Ground – Absence of EER
• ER may invoke and prove absence of EER to have
PCE dismissed
3.8e. Fourth Ground – The 12-month Bar
• GR: no new PCE within 12 months from last valid
election (even if “no union” wins)
XPN: (1) failure of winning union to conclude a
CBA because of cavorting with ER, (2) failure of
election because less than majority of CBU voted,
(3) radical change in size of bargaining unit within
a short period of time, (4) unit clarification petition
filed during the certification year
3.8f. Sixth Ground – Negotiation or Deadlock Bar
• Negotiation bar – no PCE if there is ongoing
negotiation
• Deadlock bar – PCE can only be entertained if
there is no pending bargaining deadlock
o Deadlock must be submitted to
conciliation or arbitration, or
o Subject of valid notice of strike or
lockout
• When deadlock bar not applicable; Artificial
Deadlock
o False deadlock – drama fabricated by
ER and union
3.8g. Seventh Ground – Existing CBA as Election Bar
• Contract bar – PCE cannot be filed during life of
registered CBA except within the freedom period
(not before, not after)
• Registered CBA – to bar a certification election,
CBA should be registered; no need to be certified
• 2 different periods
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
o Notice period (264) – renegotiation of
non-representational aspects; not later
than 3 years after execution
o Freedom period (265/268) – o Supported by at least 25% of the
representational issues; within 60 days
before expiration of CBA
• Requisites of Contract Bar – CBA must
o Contain substantial terms and
conditions of employment
o Signed by parties
o Effective and expiration date on face of
the contract
o Registered
• Contract bar rule applied
o If CBA under deadlock and contract bar
rule is applicable – old CBA is extended
until new one is signed
o Unproved surreptitious registration of
CBA – there must be evidence proving
the allegation before contract bar is lifted
• Contract bar rule not applied
o Defective CBA – if CBA is defective, no
legal effects can be attributed to it; to bar
a CE, the CBA must be adequate in that
it comprises substantial terms and
conditions of employment
o Referendum to Register an Independent
Union – referendum is not the same as
union disaffiliation/severance; not
disallowed even while CBA exists
o CBA signed before or within freedom
period – effect of “early agreement”;
representation case shall not be
adversely affected by a CBA registered
before or during the last 60 days of a
subsisting agreement
§ CBA can be renegotiated
before or during freedom
period
§ If negotiating EBR is replaced
by new winning union – new
union must respect
renegotiated CBA; recourse is
to bargain for the shortening
of the contract
§ When CBA is entered into at
the time where there is
already a pending PCE – CBA
is given temporary effectivity
until it is replaced by the new
EBR
o CBA signed despite Suspension Order
may be invalidated – MA may order
suspension upon filing of PCE until
proceedings end
DISCLAIMER: USE AT YOUR OWN RISK
26
3.8h. Eight Ground – Election Bar: Lack of 25% Support
• PCE should be filed
o Within freedom period
bargaining unit
• Requirement pertains to UNIT, not the enterprise
o If rank-and file are unionized – need
25% support
o If supervisors unorganized – not
required
• Election despite lack of 25% support – court may
Med-Arbiter may relax requirement; only relevant
when it becomes mandatory to conduct a CE
• Effect of withdrawal of signature
o Before filing – petition may be denied
(withdrawal presumed voluntary)
o After filing – petition still granted
(presumed involuntary)
3.9. Prohibited Grounds for the Denial/Suspension of the
Petition
a. Commingling
b. Assailing validity of registration
c. Challenging authority of Med-Arbiter
3.9a. Commingling
• Inclusion of EEs outside bargaining unit
• Effect – EEs are just automatically removed; PCE
is not denied
3.9b. Validity of Registration
• Validity of registrations may only be settled by the
Regional Director in an independent petition for
cancellation; cannot be collaterally attacked in
PCE proceedings
3.9c. Authority to Decide Existence of EER; Med-Arbiter’s
Order Appealable to Secretary
• Med-Arbiter has authority to decide on EER
questions; SoLE has appellate jurisdiction over
MA decisions
• Issues on existence of EER are answered in the
order granting/deying the PCE so these issues do
not stall the PCE
• MA has power to determine eligibility of voters
3.10. ER a Bystander; Cannot Oppose PCE
• Principle of ER as bystander is strictly observed in
PCE proceedings
• Choice of representative is the exclusive concern
of the EEs
• ER’s recourse – ER can file separate petition for
cancellation of registration on the following
grounds
o Misrepresentation
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
o False statement
o Fraud
3.11. Action on the Petition; Approval
• MA should decide within 10 days from last hearing
• If there are no grounds to dismiss or deny, MA
should grant PCE
3.12. First Occasion of Appeal: Order Granting or Denying
Petition for CE
- 2 appeals in PCE Proceedings; filed to SoLE
o Med-Arbiter’s decision granting or
denying PCE
o Order certifying election result
- Unappealable – approval of PCE in unorganized
establishments
- Denial of PCE is always appealable
• Appeal requirements
o Verified under oath
o Memorandum of appeal specifically
stating
§ Grounds
§ Supporting arguments
§ Evidence
o Filed in the Regional Office where
petition originated
o Copy furnished to contending unions
and ER
Ø Period to appeal – 10 days from Med-Arbiter’s
decision
Ø Regional director to transmit entire records to
SoLE within 24 hours from receipt of appeal
Ø SoLe has 15 days from receipt of the entire
records of petition to decide on appeal
Ø Filing of Memorandum of Appeal stays the holding
of any certification election
Ø SoLE decision becomes final after 10 days from
receipt of parties
Ø No Motion for Reconsideration of the decision
shall be entertained
Ø Within 48 hours from notice of receipt of decision
by parties, records shall be remanded to Regional
Office for implementation
3.13. Conducting the CE
3.13a. Pre-election Conference
• Raffle of the case – within 24 hours from receipt of
the notice of entry of final judgment granting the
PCE, Regional Director shall raffle the case to an
Election Officer who shall have control of pre-
election conference and election proceedings
• Pre-election conference completed within 30 days
from date of first hearing
DISCLAIMER: USE AT YOUR OWN RISK
27
3.13b. Conducting the CE: The Voters
a. Members of bargaining unit for at least 3 months
prior to filing of PCE
b. Dismissed from work but contesting legality of
dismissal in the proper forum
• In case of disagreement over voters’ list – all
contested voters shall be allowed to vote but their
votes shall be segregated and sealed in separate
envelopes
• EEs of an independent contractor are not qualified
to vote
• Dismissed EEs – if dismissal is under question,
they can still vote
• Probationary EE – as long as eligible to belong in
bargaining unit and has rendered at least 3
months of service
• INK Believers may vote – union membership is not
a pre-requisite to vote in CE
3.13c. Conducting the CE: The Voting
• Voting shall open on the date and time agreed
upon during the pre-election conference
• Procedure in the challenge of votes
o Votes are segregated
o Votes noted in minutes by election
officer
o Opened by Med-Arbiter only if they will
materially alter election results
• Perfection of protest – parties may file protests
based on conduct or mechanics of the election
o Protest shall be recorded in minutes
§ If not recorded – deemed
waived
o Formalized with Med-Arbiter with
specific grounds and evidence within 5
days after close of election proceedings
§ Not recorded or formalized –
protest deemed dropped
3.13d. Conducting the CE: Canvassing of Votes
• Immediately after election in the presence of
representatives of contending unions
• Election Officer shall give each representative a
copy of the minutes and results
• Ballots and tally sheets shall be sealed and
transmitted to the Med-Arbiter within 24 hours
from completion of canvass
3.13e. Who Wins in the CE; Proclamation and Certification
• Med-Arbiter issues an order proclaiming the
results and certifies the union which obtained
majority of the valid votes cast as sole and
exclusive bargaining agent if
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
o No protest was filed or perfected within
the 5-day period
o No challenge or eligibility issue war
raised or if raised would not materially
change the results
• Certification of collective bargaining agent – union
receiving majority of valid votes case certified as
EBA within 5 days from day of election, provided
no protest was recorded in minutes
3.14. Failure of Election; Motion for Another CE
• In order to have valid election – at least a majority
of ALL eligible voters in the unit must have cast
their votes
• Failure of election – less than majority if eligible
voters cast their votes and no material challenged
votes
o Effect – Another election may be held
within 6 months from date of declaration
of failure; no need to file new PCE
o Within 24 hours from receipt of motion
for new election, Election officer shall
§ Schedule another election to
be held within 15 days
§ Cause posting of otice of
election at least 10 days prior
to scheduled date of election
in 2 conspicuous paces in
establishment
3.15. Run-off Election
• Election with three or more choices (2 unions + “no
union) – no union received MAJORITY of valid
votes cast
a. Run-off election conducted within 10
days from close of election proceedings
b. Only unions which received 2 highest
votes (no more “no union”; there may be
more than 2 unions in case there was a
tie)
c. Total number of votes for all contending
unions is at least 50% of number of
votes cast (“no union” should not have
won)
• Qualification of voters in run-off election
a. Same voters’ list used in CE shall be
used in run-off elections
• Conditions of run-off election
a. Valid election
b. At least 3 choices
c. No union obtained majority of valid votes
cast
d. Total number of votes for all unions is at
least 50% of votes cast
e. No unresolved challenge of voter or
election protest
DISCLAIMER: USE AT YOUR OWN RISK
28
3.16. Second Occasion of Appeal: Order Certifying the
Election Result
• Decision of Med-Arbiter may be appealed to SoLE
within 10 days from receipt by parties
• Appealed filed in Regional Office where petition
originated
• Period to reply – 10 days from receipt of
memorandum of appeal; reply filed directly with
SoLE
• SoLE has 15 days from receipt of entire records to
decide on appeal; decision final after 10 days; no
MR allowed
3.17. Election Irregularities, Protest by ER
• ER allowed to protest CE
• Protests filed beyond 5 days may still be
entertained – policy of workers’ rights over
technicalities
4. Third Method: Consent Election
• Voluntarily agreed by parties, with or without
intervention of DOLE
• Consent election may take place in organized and
unorganized establishments
• Med-Arbiter shall persuade contending unions to
agree to consent election if possible
o If unions agree – MA no longer needs to
decide on PCE; immediately schedule
pre-election conference within 10 days
from consent election agreement
4.1. Effect of Consent Election
• Results of consent election (whether or not PCE
was filed) = bar to holding another election within
1 year (12-month bar)
5. The Winner as Sole and Exclusive Representative
• “Exclusive” – ER must treat with the representative
to the exclusion of all other claiming bargaining
agents
5.1. Exclusive Bargaining Agent Represents Even the
Minority Union
• When the certified union files a claim against the
ER and the case is decided, the decision binds
even the minority union, which, therefore, also
barred from filing another case
• EBA represents its members but it cannot negate
EE’s choices on purely personal/individual matters
Grievance Machinery and Voluntary Arbitration
Arts. 273-277, Labor Code
Art. 273 Grievance Machinery and Voluntary Arbitration
LABOR REVIEW REVIEWER (Atty. Quan) 29
ENCARNACION, MANZO
1st sem A.Y. 2019-2020

Duty of Parties to CBA to Include the Following parties by considering

Provisions in CBA
1. Those that will ensure mutual observance of
T&Cs of CBA
2. Those that establish a machinery for adjustments
and resolution of grievances
a. Implementation and Interpretation of
CBA; and
b. Enforcement or interpretation of
company personnel policies
Voluntary Arbitration
• Automatic referral to voluntary arbitration
prescribed in CBA if grievances submitted to the
machinery established by the parties in the CBA
are not settled within 7 days from date of
submission
• Parties must include the following in the CBA (in
advance)
o Name/designate voluntary arbitrator; or
o Panel of arbitrators; or
o Procedure for selection of the first 2.
• Preferably those from list of qualified voluntary
arbitrators duly accredited by Board
• If parties fail to designate – Board shall designate
pursuant to selection procedure in CBA
o Same force and effect as if parties
themselves chose such person/s
Annotations
• Contract administration is part of the duty to
bargain
o Contract negotiations – legislative
process of collective bargaining
o Day-to-day enforcement or
administration – administrative/judicial
aspects
• CBA is the law between the parties during its
lifetime
o Non-observance by one party entitles
the other to go to court for redress
o Unilateral changes of provisions cannot
contradict or undermine CBA
provisions
§ At most, they can be
suppletory
o Proposals that did not make it to the
CBA are not binding
o Construction of the Contract – NCC
provisions apply
§ Verba legis – if clear, apply
literal meaning
§ Ratio legis – if words appear
contrary to evident intention
of parties, ascertain intent of
relevant provisions
(primordial; intent governs)
§ In case of doubt, resolve in
favor of the labor 1
§ Compliance with CBA is
mandatory
§ Liberal construction – courts
should give practical and
realistic interpretation with
due consideration to the
context in which it was
negotiated and the purpose it
is intended to serve
• CBA is a contract
impressed with
public interest
§ Only provisions in CBA
should be interpreted and
complied with
o Proposal contained in Minutes but
not in CBA itself – not part of the CBA
§ cannot serve as basis for
charging a violation of the
CBA or bargaining in bad
faith
§ a mere promise cannot be
validly demanded under the
law
o Zipper Clause – device to forestall
negotiation proposals after the CBA
has been signed
§ Stipulation indicating that
issues that could have been
negotiated upon but not
contained in the CBA cannot
be raised for negotiation
when the CBA is already in
effect
• CBA is a complete
agreement;
negotiation is
closed, as a zipper
does
• Law Deemed Written in Contract
o An existing law enters into and forms
part of a valid contract without the need
for the parties expressly making
reference to it
§ XPN: If clearly excluded
therefrom, where such
exclusion is allowed
• Binding Effect of Agreement

1
Art. 1702, NCC in consonance with Labor Code

DISCLAIMER: USE AT YOUR OWN RISK

LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
o CBA entered into by officers of union,
as agent of the members, and an ER
gives rise to valid enforceable
contractual relations:
§ against the individual union
members - matters that affect
them peculiarly; and
§ against the union - matters
that affect the entire
membership or large classes
of its members
o Union member employed under an
agreement between his union and ER
is bound to comply with the provisions
o Persons Entitled to Benefits
§ Even non-member EEs are
entitled
• Otherwise, undue
discrimination
against non-
members
§ A laborer, even after he has
resigned from the union, can
claim benefits from CBA
entered into when he was still
a member
o Managers Not Entitled to CBA
Benefits
§ GR: managers cannot claim
(directly/indirectly)
§ XPN: ER grants benefits to
them, which are equal to or
higher that those afforded to
union members
o Effect of CBA on Individual
Contracts of Employment
§ GR: Once CBA concluded,
members of the union are
precluded from entering into
individual contracts of
employment
§ XPN: CBA merely fixes
wages and working
conditions, ER may enter into
particular contracts of
employment (but CBA
remains binding)
• Enforceability Against Transferee of
Enterprise
o Purchase of Assets
§ GR: labor contracts are not
enforceable against a
transferee of an enterprise
• in personam; no
real rights that
need to be
DISCLAIMER: USE AT YOUR OWN RISK
30
respected by 3rd
parties
§ XPN:
• Expressly assumed
• Transaction colored
or clothed with bad
faith
o Merger and Consolidation
§ Merger – 2 or more corps.
join into a single corp. which
is one of the merging corps.
§ Consolidation – 2/more
corps. Join into a new single
corp.
§ Surviving corp. is responsible
and liable for all the liabilities
and obligations of each of the
constituent corps. and any
claim prosecuted against the
surviving corp.
§ Wiley Doctrine
• Disappearance by
merger of a corp.
ER which has
entered into a CBA
with a union does
not automatically
terminate all rights
of the EEs covered,
even though the
merger is for
genuine business
reasons where
there is a
substantial
continuity of identity
in the business
• Change of Bargaining Agent
o Disaffiliation – shift in EEs allegiance
from one union to another after the
execution of the CBA and the EEs
change the bargaining representative
o Effect: CBA remains binding until
expiration date, but new EBR may
bargain for a shortening of the CBA
period
o Substitutionary Doctrine – EEs
cannot revoke the validly executed
CBA by simply changing their
bargaining agent; new agent must
respect CBA
§ Does not mean that new
union automatically assumes
all the personal undertakings
of the old union
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
§ XPN: if old union could not
have validly bound other
unions (e.g. no-strike clause)
• Grievances
o Def. – any question by the ER/union re:
interpretation/application of the CBA or
company personnel policies or any
claim of violation by either party (of
CBA/Personnel policies)
o Personnel policies are guiding
principles stated in broad, long-range
terms that express the
philosophy/beliefs of an organization’s
top authority re: personnel matters (e.g.
promotions, transfers, benefits, etc. not
stated in CBA)
o A CBA will not be registered in DOLE if
it does not contain a grievance
procedure
§ In such event, the registrar
would advise the parties to
include such procedure
before it is considered duly
registered
o Before EE can go to court, he must
exhaust all remedies available to him
under the CBA
o ULP: By-Passing the Grievance
Machinery
§ Requirement of grievance
procedure is an extension of
duty to bargain and on-
compliance constitutes ULP
§ CAA: grievance may be
brought directly to voluntary
arbitration without passing
through the grievance
machinery, especially when
the latter has proven to be
ineffective in the past or
when the parties
inadvertently failed to include
a grievance machinery
provision in the CBA
o Waiver of Grievance Machinery
Procedure and Submission to VA
§ May be brought to VA by
both parties upon agreement
any time
o Structure and Procedure (IRR)
§ Create grievance committee
within 10 days from signing
CBA
• Unless CBA has
another applicable
provision
DISCLAIMER: USE AT YOUR OWN RISK
31
§ Procedure in handling
grievances in the absence of
CBA provisions or company
practice, the following shall
apply:
• EE presents his
grievance orally/in
writing to shop
steward
• If valid, the steward
shall immediately
bring it to EE’s
immediate
supervisor and the
3 of them will exert
efforts to settle it at
their level
• If no settlement is
reached, it shall be
referred to
grievance
committee, which
must decide in 10
days
• Voluntary Arbitration (VA)
o If grievance remains unresolved, either
party may serve notice upon the other
of its decision to submit it to VA
o VA – contractual proceeding where the
parties to any dispute/controversy, in
order to obtain a speedy and
inexpensive final disposition of the
matter, select a judge of their own
choice and by consent submit their
controversy to him for determination
o Compulsory Arbitration – process of
settlement of disputes by govt. agency
or other means provided by govt. which
has the power to investigate and make
an award binding on the parties (labor
arbiter)
o Parties also fix their own rules of
procedure
o VA – A Master Procedure
§ Any and all kinds of labor
disputes may be submitted
to, settled, or resolved
through VA, if the parties so
desire
§ Takes precedence over other
dispute settlement devices
• May withdraw from
labor arbiter and
avail of VA even if
already pending
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
§ Best persons to resolve a
labor dispute are the parties
themselves
§ A dispute pending in VA
cannot be the subject of a
strike/lockout notice
COLLECTIVE BARGAINING
Title 7 – Collective Bargaining and Administration of
Agreement
Article 261. Procedure in Collective Bargaining
a. Written notice and reply – written notice served
upon other party; Reply not later than 10 calendar
days from receipt
b. Conference – should differences arise in notice
and reply, either party may request for a
conference which shall being not later than 10
calendar days from date of request
c. Conciliation meetings – if dispute is not settled,
Board shall call parties to conciliation meetings;
Board can issue subpoenas to require attendance
d. Acts which may disrupt or impede – parties are
prohibited from doing acts which may disrupt early
settlement of dispute
e. Voluntary arbitrator – Board shall exert all efforts
to amicably settle dispute and encourage parties
to submit to voluntary arbitrator
Article 262. Duty to Bargain Collectively in the Absence
of CBA
• Duty of ER and the REPRESENTATIVES of the
EEs to bargain collectively
1. Nature of Collective Bargaining
1.1. Definition of Collective Bargaining – system of
continuous processes leading to a collective agreement
• Negotiation of terms
• Execution of contract
• Negotiation of interpretation
• Negotiation of modifications
1.1a. CBA Defined
• Contract executed upon request of ER or EBR
incorporating the agreement reached after
negotiations as to terms and conditions of ENT
• General code covering whole employment
relationship and prescribes rights and duties of
parties
1.2. Rationale
• Direct government regulation hits only at extremes
• ER-EEs still most knowledgeable on matter most
vital to both parties
DISCLAIMER: USE AT YOUR OWN RISK
32
1.3. Strength of the Collective Bargaining Method
• CB provides an orderly system through which
demands of parties may be understood,
negotiated, and possibly, satisfied
2. Emergence of Collective Bargaining
2.1. Originator
2.2. Adoption in the Philippines
a. Commonwealth Act No. 213 – recognized right of
duly registered labor organizations to collectively
bargain with ERs
b. Industrial Peace Act (RA 875) – defined collective
bargaining and provided procedures, a.k.a.
“Magna Carta of Labor”
c. Administrative Code of 1987 – mandates DOLE to
uphold right of workers and ERs to organize and
promote free collective bargaining as foundation
of the labor relations system
3. Parties to Collective Bargaining
• The duty arises only between
o ER
o EEs represented by their labor union
• Both parties negotiate through their
representatives
• EBR – any LLO duly recognized or certified as the
SOLA of all the EEs in a bargaining unit; the entity
is the union, not the officers
4. Jurisdictional Preconditions of Collective Bargaining
a. Possession of status of majority representation
b. Proof of majority representation
c. Demand to bargain
- ER’s duty to bargain does not arise until the union
requests the employer to bargain
- ER has the right to demand reasonable proof of
majority status; right should be made in good faith
and not to merely to delay
4.1. Bargaining with Minority Union, ULP
• ER’s refusal to CB with majority representative is
deemed ULP
• If no designated majority yet - subsequent
appearance of properly designated majority rep
may oblige ER to negotiate with the proper union
despite commitments to the now minority
representative
• ER has no duty to bargain collectively if there is
pending issue regarding majority status
LABOR REVIEW REVIEWER (Atty. Quan) 33
ENCARNACION, MANZO
1st sem A.Y. 2019-2020

• ULP for Union – staging a strike to compel • Post-CBA

negotiations when there is a legitimate issue as to o Mutual obligation to meet and convene
which union is the legitimate representative to negotiate on terms and conditions of
ENT and execute contract
5. When Bargaining Should Begin o Obligation not to terminate or modify
• Certification Year – 12 months following the CBA during its lifetime
certification of EBR § GR: automatic renewal or
• Certified union enjoys irrefutable presumption of extension of CBA
majority status for 1 year § XPN: notice of intention to
• Presumption becomes rebuttable after renegotiate sent within 60
certification period days from date of expiry of
term
6. Single Enterprise Bargaining Procedure Broadly
Described 1.1. Four Forms of ULP in Bargaining
• Free collective bargaining – ER and EBR may
create their own bargaining rules and procedures FOUR FORMS OF ULP IN BARGAINING
• Labor Code procedure applies suppletorily only a. Failure or refusal to meet and convene
b. Evading the mandatory subjects of bargaining
7. When Should Bargaining End? c. Bad faith in bargaining
• No time limit so long as honest and in good faith d. Gross violation of the CBA

8. Multi-Employer Bargaining
• Centralized/national negotiations or Industry-wide
bargaining in other countries
• PH rule – only enterprise-level/decentralized
bargaining
8.1. Rationale of Multi-Employer Bargaining
• ERs’ union beneficial in highly competitive
industries to ensure uniformity of labor costs
Article 263. Meaning of Duty to Bargain Collectively
• Performance of a mutual obligation to meet and
convene promptly, expeditiously, and in good faith
for the purpose of negotiating an agreement and
executing a contract if requested by either party
• Duty to bargain does not compel parties to agree
Article 264. Duty to Bargain Collectively When There
Exists a CBA (Notice Period)
• If there is an existing CBA – neither party shall
terminate or modify CBA during its lifetime
o XPN – Written notice to renegotiate non-
representational provisions sent at least
60 days prior to its expiration date
(notice period)
• Duty of both parties – keep status quo during the
60-day period and/or until a new agreement is
reached
1. Duty to Bargain Defined
• 2 situations when duty exists: (1) pre-CBA, and (2)
post-CBA
• Pre-CBA – mutual obligation to meet and convene
to negotiate on terms and conditions of ENT and
execute contract
2. First ULP in Bargaining – Failure or Refusal to Meet
and Convene
• ER guilty of ULP in refusing to bargain with EBR
of EEs
• To bargain in good faith
o ER should meet with the union
o Recognize the union for purpose of
collective bargaining
o Recognize the union as EBR of all EEs
in the bargaining unit
• Duty to bargain extends beyond negotiations –
continues to apply during the entire term of the
agreement
• Union guilty of ULP in refusing to bargain
collectively (e.g. imposing condition that ER first
submit to an audit of his books before union would
meet with him)
2.1. Unresolved Petition for Union Cancellation
• Pendency of a petition for cancellation of union
registration does not preclude collective
bargaining
• Unless certificate and status are actually revoked,
ER is duty-bound to collectively bargain with Union
2.2. Refusal to Bargain with an Unregistered Chapter, not
ULP
• Local union should be
o Registered
o Designated by majority of EEs as EBR
2.3. Selling the Company

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LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
• ER guilty of ULP – directly discharged EEs to
forestall a demand for collective bargaining; selling
to a company he knows will not accept his EEs
• Only motive of ER for the sale of his business is to
avoid a collective bargaining negotiation
2.4. Successor Employer: Continuity and Identity
• Transferee is “successor ER” when there is a
transfer of assets and EEs but the identity of the
employing enterprise is unchanged
o No substantial and material alteration in
the enterprise
• Transferor’s duty to recognize and bargain
devolves upon the transferee
• Acquiring ER is successor of the bargaining
obligations of his predecessor IF there is a
continuity in the business operation
• Not Successor ER – buyer makes substantial and
non-discriminatory personnel and operational
changes
o No need to recognize or bargain with the
incumbent union
o Duty arises only after he sets initial
terms and conditions of ENT
2.5. Conversion to Independent Franchise or Operation
• Decision to relinquish operational control is not a
mandatory subject of bargaining
• Not ULP even if all union members are terminated
if ER had no anti-union motivation and decision
was solely for business reasons
2.6. Do Economic Exigencies Justify Refusal to Bargain? –
No.
• Not ULP – ER rejects demands BUT continues to
negotiate
2.7. Acts not Deemed Refusal to Bargain
a. Adoption of adamant position in good faith
b. Refusal to bargain over demands for commission
of ULP (e.g. refusal to bargain with uncertified
union)
c. Refusal to bargain during period of illegal strike
(ER’s duty to bargain becomes operative again as
soon as union voluntarily terminates illegal strike)
d. No request for bargaining
e. Union seeks recognition for inappropriately large
unit
f. Union seeks to represent some excluded persons
g. Rank-and-file unit includes supervisors
h. Demand for recognition and bargaining made
within year following certification election and
workers voted for no union
i. Union makes unlawful bargaining demands
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34
2.8. Alleged Interference in the Selection of the Union’s
Negotiating Panel
• If ER interferes in selection of union negotiators, it
can be presumed that ER did so to defeat workers’
rights
• Substantial evidence required to support claim
2.9. Non-reply to Proposal; CBA Imposed on ER: “The Kiok
Loy Experience”
• NLRC can order that the proposed CBA imposed
be adopted if ER is guilty of unjustified refusal to
bargain
• Company’s refusal to make counter proposals, if
considered in relation to the entire bargaining
process, may indicate bad faith
3. Second ULP in Bargaining – Evading the Mandatory
Subjects
• Mandatory subjects – wages, hours, and other
terms and conditions of employment
• ULP – refusal to negotiate on mandatory subjects
• Not ULP – refusal to negotiate on non-mandatory
subjects (inclusion/exclusion of people in panel,
reinstatement of EE prior to negotiating, etc.)
3.1. Wages and Employment Conditions
• Wage – remuneration or earning, however
designated, capable of being expressed in terms
of money
3.1a. Wage Factors; “Solomonic” Approach
• Solomonic approach (middle-ground approach) –
not necessarily the best method of resolving wage
disputes; tends to lead to more deadlocks than
practical solutions
• Factors considered
o Bargaining history, when applicable
o Trends and amounts of arbitrated and
agreed wage awards
o Previous CBAs
o Industry trends
o Capacity to pay
o Public interest
3.2. Workloads and Work Rules
• Employee workloads – mandatory subject
• Company rules relating to safety and work
practices within the meaning of “other terms and
conditions of employment” – mandatory subjects
3.2a. Code of Conduct
• Code of Discipline – mandatory subject
3.3. Management Prerogatives Clause
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
• Not ULP – ER’s insistence, even to the point of
impasse, on inclusion of management
prerogatives clause covering conditions of
employment in CBA
3.4. Union Discipline Clause
• Internal union disputes are not mandatory
subjects (parties cannot insist to the point of
impasse)
3.5. Arbitration, Strike-Vote, or No-Strike Clauses
• ER may bargain to an impasse over inclusion of
arbitration and no-strike clauses
3.6. No-Lockout Clause; Clause Fixing Contractual Term
• ULP – ER’s refusal to bargain over the duration of
the contract; but ER can refuse to agree
3.7. Signing Bonus
• Grant motivated by goodwill created when CBA is
successfully negotiated and signed; if no goodwill,
signing bonus is not demandable
3.8. Voluntary Benefits
• Benefits granted by ER but not required by law
• Mandatory subject if affects terms and conditions
of employment
3.9. No Duty to Agree Even on Mandatory Subjects
• Duty to bargain does not include obligation to
agree
3.10. Non-Mandatory Subjects
• Bargaining Impasse
o Mandatory subject – parties can insist
on inclusion even to the point of a
bargaining impasse
o Non-Mandatory subject - parties cannot
insist to the point of a bargaining
impasse, even if in good faith; parties
may only discuss non-mandatory
subjects if both agree
• Strike/Lockout
o Mandatory subject – allowed to
strike/lockout in case of deadlock
o Non-mandatory subject – may discuss
but if parties cannot agree, they cannot
resort to strikes/lockouts
3.11. Bargaining to the Point of Impasse; Not Necessarily
Bad Faith
• Impasse does not establish bad faith
• Mandatory subject – insistence will not be
construed as bargaining in bad faith
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35
• Non-mandatory subject – insistence can be
construed as bargaining in bad faith (ULP –
evasion of duty to bargain)
3.12. When Is There Deadlock or Impasse?
• Bargaining impasse
o Good faith bargaining of parties
o Failure to resolve the issue
o No definite plans for further efforts to
break the deadlock
• No valid bargaining impasse if deadlock is caused
by failure of one of the parties to bargain in good
faith
3.12a. “Off-the-Record” Discussion, Deadlock
• Off-the-record discussions may be considered in
determining impasse
3.12b. Duty to Bargain When There Is Deadlock or Impasse
• In case of deadlock – negotiations continue with
assistance of third party
3.12c. Strike or Lockout in Case of Deadlock
• Bargaining deadlock is valid reason to declare a
strike or lockout
• S/LO is a method of resolving an impasse –
constrains parties to end impasse and go back to
negotiation table
• Deadlocks can be resolved through arbitration by
Labor Arbiters – Even if union’s petition was for
compulsory arbitration, the subsequent
agreement of ER to submit to arbitration makes
the arbitration a voluntary one. Labor Arbiter can
arbitrate voluntary arbitrations as long as parties
agree.
4. Third ULP in Bargaining – Bad Faith
• Good faith bargaining requires more than formal
discussions – there must be sincere effort to reach
agreement even when none is reached
• ER cannot be guilty of refusal to bargain if the
union itself is not bargaining in good faith
4.1 Determination of Good Faith; A Question of Fact
• Good faith or bad faith is inferred from the facts
• Court looks into evidence to find if there is
substantial proof of bad faith
• Determination based on negotiations as a whole
(not particular provisions of the contracts)
4.2. When Can Bargaining in Bad Faith Occur?
• Charge should be raised while the bargaining is in
progress
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
• When the bargaining is finished and CBA has
been executed voluntarily by the parties, charge of
bad faith is too late and untenable
• CBA is proof that ER exerted reasonable effort of
good faith bargaining
4.3. Instances of Bad Faith: Delay of, or Imposing Time Limit
on Negotiations
• Unwarranted delay in negotiations may be
evidence of bad faith
• Delay motivated by desire to undermine the union
• Company’s refusal to make counter-proposal to
the union’s proposed CBA
• Mere filing of petition for certification election does
not justify suspension of negotiation by ER;
petition must first comply with rules
4.3a. Bad Faith: Surface Bargaining; Shifting Bargaining
Positions; Blue Sky Bargaining
• Surface bargaining – entering negotiations without
any intention of reaching an agreement (ULP)
• Shifting bargaining positions – repeated shifts in
position and attitude whenever a tentative
agreement is reached (ULP)
• Blue-Sky bargaining – making exaggerated or
unreasonable proposals (not ULP)
• Intent can only be inferred from the totality of the
party’s conduct both at and away from the
bargaining table
4.3b. Giving of Information
• Part of good faith bargaining is supplying of
information to the other party
• EBR has the right to ask for and be furnished with
the ER’s annual audited financial statements if
requested in writing
o After union has been recognized by ER
as EBR
o After union is certified by DOLE as EBR
o During the collective bargaining
negotiations
o Within the last 60 days of the life of a
CBA (freedom period)
• Audited financial statements should be provided
by ER within 30 calendar days after receipt of
union’s written request
o Refusal to provide relevant information
is violation of duty to bargain
• Duty to provide information applies to both ER and
Union
4.3c. Bad Faith: Inflexible Demands; Strike Amid
Negotiations
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4.3d. Bad Faith: Boulwarism; “Take-It-or-Leave-it”
Bargaining
4.4. Not Bad Faith to Propose Modification to the Expiring
CBA
• When CBA is about to expire, not bad faith
bargaining when a party proposes modifications to
it (see rule on notice period)
5. Fourth ULP in Bargaining – Gross Violation of the
Contract
• Occurs during the effectivity of a CBA
• Duty to bargain goes beyond negotiations;
includes faithful adherence to contract
6. Ratification by the CBU; Mandatory Requirements
• Agreement negotiated by EBR should be
approved by the majority of all the workers in the
bargaining unit
• Posting of CBA in 2 conspicuous places in the
establishment for 5 days
• The CBA submitted to DOLE must contain a
sworn statement of Union Secretary, attested by
the Union President
6.1. Invalid Ratification
• Non-compliance with mandatory requirements
renders CBA ineffective
6.2. When Ratification Not Needed
• When CBA is a product of an arbitral award by
government authority or by voluntary arbitrator
• CBA still has to be posted (for information, not
ratification) and registered with DOLE
• Remedy against arbitral awards – certiorari
6.3. Ratified but Unsigned
• CBA effective on ratification even without
signature of union president
• Effective even if there’s a provision stating
“agreement not valid unless signed”
6.4. Unratified but Implemented
• CBA valid if EEs enjoyed benefits from it
• Cannot receive benefits and later disclaim validity
7. Execution of Contract
• Law does not specify which comes first, ratification
or execution – sequence is immaterial as long as
it is ratified
7.1. Unwritten or Unsigned Agreement
• Valid even if not reduced to writing if neither party
requests a written instrument
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
7.2. Effect of Signing on Other Disputes
• Provision of the bargaining contract declaring that
is settled all matters, questions, and disputes
between parties is valid (Zipper Clause)
o Union cannot later on claim what it
already renounced under the CBA
8. Registration of CBA
• After ratified, must be registered with DOLE
Regional Office where bargaining union is
registered
• Must be registered within 30 calendar days from
execution of agreement
• Failure to register does not invalidate CBA – once
duly entered into and signed by parties,
agreement is effective and binding between
parties
• Failure to register only means union’s status can
be challenged by other unions any time (see
Contract Bar rules)
8.1. Registration Requirements
• Application for CBA Registration accompanied by
original and 2 duplicates of the following
documents which must be certified under oath by
the representatives of both parties
o CBA
o Statement of compliance with posting
requirement
o Statement that CBA was ratified
• No other documents required
• Application for registration may be denied if
incomplete or unverified
o Appealable to Bureau within 10 days
o If denial by Bureau, appealable to SoLE
9. Implementation, then Renegotiation
• Implementation follows execution and registration
• Implementation is still part of duty to bargain
(violating terms of CBA is ULP)
• Part of duty is obligation to renegotiate contract
when it is about to expire but only as to
renegotiable provisions (nonrepresentational
aspects)
10. Automatic Renewal of CBA (Principle of Hold-Over)
• Parties shall continue the CBA in “full force and
effect” until they reach a new agreement
Article 265. Terms of a CBA
1. Effectivity and Retroactivity of CBA
• First CBA in bargaining unit – effectivity date is
whatever date the parties agree on
• Renegotiated CBA
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o Concluded within 6 months – date
following old expiry date
o Beyond 6 months – no automatic
retroaction; duration agreed by parties
§ Valid to agree that CBA does
not retroact
• “Concluded” – date of agreement, not date of
signing
1.1. Effectivity of CBA Concluded After 6 Months from
Expiration of Old CBA
• Law is silent; thus, the following principles are
applied
o “Principle of Hold-Over” – maintenance
of status quo
o Arbitrated CBA – nature of judicial
award; applied prospectively
§ In the absence of a CBA,
arbitrator has discretionary
powers over date of
retroactivity (based on what is
reasonable)
2. Duration of CBA
• Representation aspect – 5 years
• All other provisions – not more than 3 years; may
be shortened by agreement
3. Extension of Effectivity of CBA, When Valid
a. Extension acceptable to both parties
b. Does not violate any law
3.1. 10-year Suspension of CBA
• Valid – The right to free collective bargaining
includes the right to suspend it
• Representation limit for EBR applies only when
there is a CBA in full force and effect; parties’
agreement to suspend CBA put in abeyance the
limit on the representation period
3.2. Union’s Initiative to Help the Company
• Labor disputes are generally not subject to
injunction
• An injunctive order in “non-national interest”
disputes can be directed only against the illegal
acts being committed in connection with the labor
dispute; cannot be directed against the dispute
itself (e.g. injunction not against the strike but only
against the violence committed against the ERs)
Article 266. GR: no injunction
1.1. Reason of No-Injunction Policy
• Tendency to tip scales of the controversy
• May be used as a strike-breaking weapon
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
1.2. Injunction issued by Regular Court, When Proper
• Industrial Court – filed by ERs or EEs
• Regular Court – persons unrelated to labor dispute
(e.g. neutral ERs in common situs picketing)
• Limited to restraining any unlawful act/protecting
innocent third parties
UNFAIR LABOR PRACTICES
Title 6 – Unfair Labor Practices
Chapter 1 – Concept
Article 258. Concept of ULP and Procedure for
Prosecution Thereof
• ULPs violate the constitutional right of workers to
self-organization
• Violation of civil rights of both labor and
management; criminal offenses against State
• Civil aspect
o Jurisdiction of Labor Arbiters
o Subject to exercise of President or SoLE
of their powers
o Covers claims for damages, attorney’s
fees, and other affirmative reliefs
o Las to resolve within 30 calendar days
from the time they are submitted for
decision
o Recovery of civil liability in
administrative proceedings bars
recovery under Civil Code
• Criminal aspect
o Final judgement in admin. proceeding
finding ULP is required before any
criminal prosecution of case
o Period of prescription of offense is
interrupted during pendency of admin.
Case
o Final judgment in admin. case not
binding in criminal case nor can it be
considered evidence of guilt; ONLY
serves as proof of compliance for
requirement of filing criminal action
1. Concept of ULP
• Pertains to practices unfair to labor; can be
committed by ER or Labor Organization
• Based on Constitutional right to self-organize –
violations are considered public offenses which
carry both civil and criminal liabilities
• Refers only to acts opposed to workers’ right to
organize; if not pertaining to said right, not deemed
ULP no matter how unfair
• ULP v. Breach of Contract
o ULP – involve violation of public right or
policy, prosecuted like criminal offenses
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o BoC – contractual breach redressed like
an ordinary contract or obligation
1.1. Elements – ULP at the enterprise level:
a. EER
b. Act done is expressly defined in the Code as an
act of ULP
1.2. Prejudice to Public Interest is not an Element of ULP
2. Prosecution of ULP
• Civil aspect
o Liability for damages passed upon by
Labor Arbiter
o Quantum of evid.: substantial evidence
• Criminal offense
o Instituted after finality of judgement in
labor case
o Criminal charge proven independently
from labor case
o Quantum of evid.: beyond reasonable
doubt
o Concurrent jurisdiction of MTC and RTC
o Prescription: 1 year
Chapter 2 – ULP of ERs
Article 259. ULP of ERs
ULP OF ERs
a. Interference
b. Yellow dog conditions
c. Contracting out
d. Company unionism
e. Discrimination for or against union membership
f. Discrimination because of testimony
g. Violation of duty to bargain
h. Paid negotiation
i. Violation of CBA
1. Conditions Precedent to ULP charge
a. Injured part within definition of EE
b. Act charged falls under prohibitions of Code
- ULP is and has to be related to worker’s right to
organize. If this connection is absent, the
contention of ULP may be rejected as baseless
and irrelevant.
- Even if EE was illegally dismissed, not ULP if act
is not connected with union activities
- Enumeration is not exhaustive listing of ULP
incidents
1.1. Historical Legislative Evidence of the Link
2. ILO Convention No. 98
3. No ULP: Valid Exercise of Management Rights
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
a. Personnel movements
b. Acceptance of mass resignation
c. Grant of profit-sharing benefits to non-union
members
d. Forced vacation leave
e. Issuance of rules or policy
f. Taking action against slowdown
- ULP laws not intended to deprive ER of
fundamental right to prescribe and enforce rules in
his business
- ER also has right of selection and discharge of
EEs
- Such rights should be exercised in good faith
3.1. Personnel Movements
• Transfer of EE should be considered lawful when
the interests of the company reasonably demand
it
3.2. Acceptance of mass resignation
• Not ULP – EE did not assume the status of strikers
before tendering mass resignations (lack of status
= not deemed a concerted activity protected by
law)
3.3. Grant of Profit-Sharing Benefits to Non-Union Members
• Management has prerogative to regulate all
aspects of employment as long as (1) done in
good faith, (2) not for purposes of defeating
workers’ rights, and (3) not exercised in malicious
manner
• Not ULP – committed by the ER as the situation of
the union EEs is different from that of non-union
EEs, moreso when there is a CBA provision
stating the union members derive their benefits
from the terms and conditions of the CBA and non-
union members derive benefits elsewhere
3.4. Forced Vacation Leave
• Not ULP if – (1) in view of economic crisis, and (2)
not maliciously done
• Sometimes considered a more humane solution
instead of a retrenchment/reduction of EEs
3.5. Issuance of Rules or Policy
• Valid exercise of management prerogatives
• Free will of management to conduct its own
business to achieve its purpose cannot be denied
3.6. Taking Action Against Slowdown
• EEs have right to strike, but they have no right to
continue working on their own terms while
rejecting the standards desired by their ER
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39
• Not ULP – to discharge EEs who engage in
slowdown, even if their object for doing so was
lawful
4. Determination of Validity
• Involves appraisal of ER’s motives by NLRC
• Mere suspicion is not enough, it must be
supported by other facts and evident to sustain an
adverse finding against ER
5. First ULP – Interference
a. Interrogation
b. ULP even before union is registered
c. Prohibiting organizing activities
d. Violence or intimidation
e. Espionage and surveillance
f. Economic inducements
g. ER’s expression of opinion
h. Mass layoff amounting to ULP
i. Lockout or closure amounting to ULP
j. Successor ER
- The most obvious form is outright and
unconcealed intimidation; warrants the issuance
of a “cease and desist” order even for the first
offense
- Usually though, ER’s efforts are more covert and
generally disguised to escape detection
- Example – grievance letters written by union
officers is a protected concerted activity; dismissal
for writing such letters is deemed ULP
5.1. Interrogation
• Persistent interrogation of EEs to elicit information
on union activities in interference, unless:
o ER communicates purpose of
questioning
o Assurance of non-reprisal
o Voluntary participation of EE
o Context free from hostility to union
organization
o Not coercive in nature
5.2. ULP Even Before Union is Registered
• Interference with right to self-organization before
union is registered is ULP, e.g. dismissal of EEs
soliciting signatures to form a union
5.3. Prohibiting Organized Activities
• Unlawful if applied to both working and non-
working hours
• ULP cases are not subject to compromise due to
public interest involved
5.4. Violence or Intimidation
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
• Directly or indirectly using V/I to interfere, e.g.
indirect – hiring men to provoke union EEs to
fabricate a ground for dismissal
5.5. Espionage and Surveillance
• Spying on the EEs even if the fruits of the
espionage were not actually used against them
5.6. Economic Inducement
• ER announces benefits prior to a representation
election intended to induce EEs to vote against the
union
5.7. ER’s Expression of Opinion; Totality of Conduct
Doctrine
• Totality of Conduct Doctrine – ER’s culpability due
to remarks made based on their (1) implications
and (2) the collateral circumstances when remarks
were uttered
• Test of Interference or Coercion – whether the ER
has engaged in conduct which may reasonably
tend to interfere with the free exercise of EEs’
rights; certainty is not required
5.8. Mass Layoff Amounting to ULP
• Fabricating loss to justify mass layoff in the guise
of capital reduction efforts is ULP
5.9. Lockout or Closure Amounting to ULP
• A lockout, whether actual or threatened, as means
of dissuading EEs from exercising their rights
• Evidence must establish that ER’s purpose was to
interfere
• Not ULP – honest closing of business
5.9a. Closure, a Subterfuge
• Closing the business to defeat union activities
• Threats of discharge and closure made by
supervisors is ULP if ER tolerates such acts
• ER bears burden of showing dismissal/closure
was for a just cause
• Clear and convincing evidence of imminent
economic reversals is required
• Act need not be entirely be motivated by union’s
activities; ULP even if the discrimination was only
a contributing factor
5.9b. Sale in Bad Faith
• Simulated sales to get rid of EEs who are union
members
• Both VENDOR and VENDEE will be liable
5.9c. Assumption of Obligations by New Company
a. New company organized as an attempt to relieve
consequences of present litigation
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b. Purchaser acquired assets assuming the risk of
having to bear the liabilities that said litigation may
eventually entail
5.10. Successor ER; Piercing the Corporate Veil
• EEs cannot be separated if no real closure, e.g.
same company merely reappeared under a
different name
o Engaging in same business
o Owned by same people
o “closure” calculated to defeat workers
organizational right
• “New” company will be treated as continuation of
the old one
• Corporation will be considered as a mere
association of persons and liability will attach
directly to the officers and stockholders
6. Second ULP – “Yellow Dog’ Condition
• Contract whereby an EE agrees that during the
period of his employment he will not form, become
a member, or assist any labor union
7. Third ULP – Contracting Out
• Contracting out of functions being performed by
union members should IRC in the EE’s exercise of
their right to self-organize
• Contracting out, in itself, is not ULP; it is the ILL
INTENTION that makes it so
• Not ULP – legitimate business reasons or need to
reduce costs
7.1. Contracting Out Restricted by CBA
• Contracting out when there is an assurance of
security of tenure during the lifetime of the CBA is
ULP
7.2. Runway Shop
• Business relocation animated by anti-union
animus (ill will) or calculated to escape union labor
regulations
8. Fourth ULP – Company-Domination of Union; Forms
a. Initiation of the company union idea (outright
formation, outright ER demand or influence,
managerially motivated formation)
b. Financial support to the union (defraying union
expenses, paying attorney’s fees who drafted
CBL of union)
c. Employer encouragement and assistance
(recognition of EBR without proper determination)
d. Supervisory assistance (coercing membership
under threats of dismissal)
9. Fifth ULP – Discrimination
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
a. Discrimination in work quota
b. Discrimination in bonus allocation or salary
adjustments
c. Discrimination in layoff or dismissal
d. Discrimination in regularization
e. Discrimination by blacklisting
f. Indirect discrimination
- Discrimination to encourage or discourage
membership in a labor organization
- Discrimination v. Classification
o D – discrimination on terms and
conditions of employment to influence
membership in labor organization
o C – recognition of differences in job
requirements as basis of varying levels
of pay or benefits
9.1. Discrimination in Work Quota
9.2. Discrimination in Bonus Allocation or Salary
Adjustments
9.3. Discrimination in Layoff or Dismissal
9.4. Discrimination in Regularization
9.5. Discrimination by Blacklisting
• Blacklist – list of persons marked out for special
avoidance by those who prepared the list or those
among whom the list is intended to circulate
• ULP when – used as means to prevent
employment of EEs for union activities
• Not ULP – if not made for defamatory purposes;
ERs’ community of interests acts both to justify the
combination and the privileged communication
9.6. Indirect Discrimination
• What is prohibited to be done directly shall not be
allowed to be accomplished indirectly (e.g.
dismissal of EE due to union activities of wife)
9.7. Test of Discrimination
• Was the act motivated by the EE’s union
affiliation/activities?
• If it can be established that the true and basic
inspiration for the ER’s act is derived from the EEs’
union activities, the assignment by the ER of
another reason is unavailing
• There should be evidence, whether direct or
circumstantial, to support adverse claim against
ER
9.8. Constructive Discharge
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41
• ER prohibits EEs from exercising their rights on
pain of discharge, and the EE quits as a result of
such prohibition
9.9. Discharge Due to Union Activity, A Question of Fact
• Relation of discharge to union activities is a
question of fact; NLRC findings are conclusive and
binding if supported by substantial evidence
• Substantial evidence – relevant evidence as a
reasonable mind might accept as adequate to
support a conclusion
9.10. Valid Discrimination: Union Security Clause
• USC – requires membership in the union so that
the EE may retain his job and the union’s
existence may be assured; a form of compulsory
union membership
• USC is a generic term which comprehends – (1)
closed shop, (2) union shop, (3) maintenance of
membership, or (4) any agreement which imposes
upon EEs the obligation to acquire or retain union
membership as a condition affecting employment
• Discrimination in favor of unionism is a valid kind
of “discrimination”
• Not ULP – ER’s compliance in good faith with
request of certified union for dismissal of EEs
expelled pursuant to a union security clause
9.10a. Kinds of Union Security Agreements
KINDS OF UNION SECURITY ARRANGEMENTS
1. Open shop – union membership is not a condition of
employment
2. Closed shop – only union members can be hired,
and EEs must remain union members to retain
employment
3. Union shop – nonmembers may be hired, but
membership is required to retain employment after
a certain period; applies to present and future EEs
4. Modified union shop – non-member EEs at the time
of signing of the contract are not required to join, but
all workers hired thereafter must join
5. Maintenance of membership shop – no EE is
compelled to join, but all present or future members
must remain in good standing in the union
6. Exclusive bargaining shop – union is recognized as
EBR for all EEs in the bargaining unit, whether
members or not
7. Bargaining for members only – union is recognized
as EBR only for its own members
8. Agency shop – EEs must either join the union or pay
the union as EBR a sum equal to that paid by
members; a.k.a. “maintenance of treasury shop
9.10b. Validity of Closed-Shop Agreement
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
• Freedom to contract is given primacy over
Freedom to self-organize
9.10c. Advantages and Disadvantages of Closed-Shop
Agreement
• Advantages
o Strengthens bargaining power of Labor
Organizations
o Prevents non-union members from
sharing in benefits without sharing with
obligations
o Prevents weakening of Labor
Organizations by discrimination against
union members
o Eliminates the lowering of standards
caused by competition with nonunion
workers
o Enables labor organizations to
effectively enforce CBAs
o Facilitates collection of dues and
enforcement of union rules
o Creates harmonious relations between
ER and EEs
• Disadvantages
o Monopolistic domination of employment
by labor organizations
o Interferers with the freedom of contract
and personal liberty of the individual
worker
o Compels ERs to discharge all nonunion
workers regardless of efficiency, length
of service, etc.
o Facilitates the use of Los by
unscrupulous union leaders for unlawful
purposes
o Denies nonunion workers equal
opportunity
o Enables union to charge exorbitant dues
and fees
9.10d. “Right to Work” Laws
• “Right to Work” laws – prohibition on agreements
requiring membership in a labor organization
• In US – membership as a condition of employment
is whittled down to its financial core; closed shop
or union shop contracts are outlawed in 20 states
• Primacy on individual’s right to work over the rights
of unions; recognizes EE’s right to not organize
and engage in union activities
• PH does not follow this rule
9.10e. Enforcement of Union Security Clause upon
Corporate Merger
• Union Shop Clause in CBA in surviving
corporation applied to absorbed EEs from
DISCLAIMER: USE AT YOUR OWN RISK
42
dissolved corporation; absorbed EEs will be
required to join union as condition of continued
employment
9.10f. Valid Dismissal Because of Application of Union
Security Clause
• USCs in CBAs, if freely and voluntarily entered
into, are valid and binding
• Not ULP – dismissal of an EE pursuant to a union’s
demand in accordance with a union security
agreement
• Union members are bound to closed-shop
agreements even when there is lack of knowledge
• Union members have the right to disaffiliate from
their union BUT must suffer the consequences of
their separation from the union under the security
clause of the CBA
9.10g. Dismissal Pursuant to a Closed-Shop Clause Must
Clearly Appear in the Contract
• Union shop provisions are strictly construed
against the existence of a union shop
• Should not be extended beyond the explicit
coverage of their terms
9.10h. Due Process Required in Enforcing Union Security
Clause; Intra-union Matters becomes Termination Dispute
with ER
• USCs in CBAs may be validly enforced and
dismissal pursuant thereto are valid, BUT only
when it does not erode the fundamental
requirement of due process
• Issue of expulsion of union officers (intra-union
dispute) is converted into a termination dispute
when the ER dismisses said officers without the
benefit of a separate notice and hearing; ER incurs
liability
9.10i. Liability of Union to Pay Wages and Fringe Benefits of
Illegally Dismissed EEs
• If union demands ER to dismiss an EE under the
threat of filing notice of strike due to ULP, and EE
is later on deemed illegally dismissed, union shall
be liable to pay wages and benefits that EE failed
to receive
9.10j. ER in Good Faith Not Liable
9.11. Exemption from Compulsory Membership
e. Religious objectors
f. Members of minority unions – “closed shop”
provisions not applied to those already in the
service at the time of its execution unless clearly
and expressly stated; closed-shop clauses
intended to authorize dismissal of those EEs
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
belonging to another labor organization are null
and void
g. Confidential EEs
h. EEs expressly excluded by CBA stipulation
9.12. Agency Fee Instead of Union Membership
• Alternative to compulsory union membership is the
collection of agency fee
• EEs benefiting from CBA may be required to pay
agency fee
• Written authorization from the nonunion EEs is not
required
• Legal bases of union’s right to collect agency fees
is quasi-contractual – nonunion EEs may not
unjustly enrich themselves by benefiting from
employment conditions negotiated by the
bargaining unit
9.13. Possible Effect of the Philippine Competition Law
10. Sixth ULP – Discrimination Because of Testimony
• By protecting the EEs right to testify, the law
shields the workers’ right to self-organization from
indirect assault by the ER
• ULP – reprisal against a testifying EE violates the
right to engage in concerted activity, a right
included in the right to self-organize
• Concerted activity does not require several
persons acting in unison – an EE acting alone
pursuing a group interest deemed doing a
concerted activity
10.1. Refusal to Testify
• ER retaliates against an EE who refuses to testify
in favor of the ER
10.2. Labor Standards Violation, if Coupled with Retaliation,
May Validate a Strike
• Not ULP – labor standards violation but ER does
not retaliate to EEs who reported the situation
• ULP – if ER retaliates for EEs’ act of reporting;
strikable
11. Seventh ULP – Violation of the Duty to Bargain
12. Eight ULP – Paid Negotiation
• ER pays the union or any of its officers any
negotiation fee or attorney’s fee as part of
settlement in collective bargaining or any labor
dispute
13. Ninth ULP – Violation of the CBA
• Noncompliance with the agreement amounts to
ULP; violation must be “gross”
DISCLAIMER: USE AT YOUR OWN RISK
43
14. Relief in ULP Cases
a. Cease and Desist Order
b. Affirmative Order
c. Order to Bargain
d. Disestablishment
14.1. Cease and Desist Order
• Order requiring ER to cease and desist from such
ULP and take such affirmative action as will
effectuate the policies of the Act (e.g.
reinstatement)
• To support a cease and desist order
o Record must show that the restrained
misconduct is an issue in the case
o There was a finding of fact of said
misconduct
o Such finding was supported by evidence
• Injunction must be confined to specific act/s
14.2. Affirmative Order
• Court has power not only to issue negative or
prohibitive orders (cease and desist) but also
affirmative or positive orders (reinstatement,
payment of back wages, dismiss new hires to
make room for returning EE, etc.)
14.3. Order to Bargain; Mandated CBA
• Affirmative order to compel ER to bargain with the
bargaining agent
• Imposing a CBA upon ERs who refuse to bargain
14.4. Disestablishment
• Court orders ER to withdraw all recognition and
disestablish the dominated labor union
15. ULP not Subject to Compromise
• Impressed with public interest so labor contracts
must yield to common good
16. ULP in a Given Period Should be Included in Single
Charge
• Charges filed by EEs should include all the acts of
ULP committed against any and all of the union
members during a given period
• Splitting of action to harass ER with subsequent
charges is not allowed
17. ER’s Responsibility for ULP Acts by Subordinate
Officials
• If the ER has authorizes/ratifies such acts – ER is
liable even if not actual actor
• If authorization/ratification cannot be proven,
consider the following
o ER’s knowledge of his official’s improper
acts (and failure to prevent)
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
o Continuity of improper conduct by
officials (continued, repeated, or
widespread)
o ER’s past policy and attitude (might be
indicative of concerted effort between
ER and official)
Chapter 3 – ULP of Labor Organizations
Article 260. ULP of Labor Organizations
ULPs OF LABOR ORGANIZATIONS
a. Restrain or coerce EEs in the exercise of their
right to self-organization
b. Cause an ER to discriminate against an EE on
ground other than usual terms and conditions
c. Violate the duty to bargain collectively
d. Cause an ER to pay exactions for services not
performed
e. Ask for negotiations or attorney’s fees from ER
as part of settlement
f. Violate CBA
1. Restraint or Coercion by Labor Organization;
Interference by Union is not ULP
• Interference by a labor organization is not ULP as
long as it does not amount to restrain or coercion
• Not ULP because interference is itself a function
of self-organizing
1.1. Coercing Participation in Strike
• Union restraining or coercing an EE in exercise of
right to refuse participation in or recognize a strike
• Includes threats and use of bodily harm to force
them to strike
2. Union-Induced Discrimination
• Union attempts to cause ER to grant advantages
for union members over non-members
• Forbidden discrimination – terms of hiring, firing,
seniority, benefits
2.1. Arbitrary Use of Union Security Clause
• Union may not arbitrarily exclude qualified
applicants for membership or deny readmission in
order to use closed-shop provisions against said
applicants
• Right of EE unfairly dismissed due to Union’s ULP
– EE entitled to reinstatement to union and
company, back pay borne exclusively by union,
not ER
2.2. Not Disloyalty to Ask Help from Another Union
• The mere act of seeking help from another union
does not constitute disloyalty; it may be an act of
self-preservation driven by desperation
3. Refusal to Bargain
DISCLAIMER: USE AT YOUR OWN RISK
44
• Union should have same attitude of willingness to
agree as law requires of management
• ULP – entering negotiations with fixed purpose of
not reaching an agreement
4. Featherbedding and Make-Work Arrangements
• Featherbedding – EE practices which create or
spread employment by “unnecessarily”
maintaining or increasing the number of EEs used,
or the time consumed, to work on a particular job
5. CBA Deal with ER
• Asking for or accepting some “fee” from ER as part
of CBA or dispute settlement is ULP by Union
• Considered a betrayal of trust
6. Violation of CBA
Title 7 – Collective Bargaining and Administration of
Agreement
Article 261. Procedure in Collective Bargaining
f. Written notice and reply – written notice served
upon other party; Reply not later than 10 calendar
days from receipt
g. Conference – should differences arise in notice
and reply, either party may request for a
conference which shall being not later than 10
calendar days from date of request
h. Conciliation meetings – if dispute is not settled,
Board shall call parties to conciliation meetings;
Board can issue subpoenas to require attendance
i. Acts which may disrupt or impede – parties are
prohibited from doing acts which may disrupt early
settlement of dispute
j. Voluntary arbitrator – Board shall exert all efforts
to amicably settle dispute and encourage parties
to submit to voluntary arbitrator
Article 262. Duty to Bargain Collectively in the Absence
of CBA
• Duty of ER and the REPRESENTATIVES of the
EEs to bargain collectively
1. Nature of Collective Bargaining
1.1. Definition of Collective Bargaining – system of
continuous processes leading to a collective agreement
• Negotiation of terms
• Execution of contract
• Negotiation of interpretation
• Negotiation of modifications
1.1a. CBA Defined
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
• Contract executed upon request of ER or EBR
incorporating the agreement reached after
negotiations as to terms and conditions of ENT
• General code covering whole employment
relationship and prescribes rights and duties of
parties
1.2. Rationale
• Direct government regulation hits only at extremes
• ER-EEs still most knowledgeable on matter most
vital to both parties
1.3. Strength of the Collective Bargaining Method
• CB provides an orderly system through which
demands of parties may be understood,
negotiated, and possibly, satisfied
2. Emergence of Collective Bargaining
2.1. Originator
2.2. Adoption in the Philippines
d. Commonwealth Act No. 213 – recognized right of
duly registered labor organizations to collectively
bargain with ERs
e. Industrial Peace Act (RA 875) – defined collective
bargaining and provided procedures, a.k.a.
“Magna Carta of Labor”
f. Administrative Code of 1987 – mandates DOLE to
uphold right of workers and ERs to organize and
promote free collective bargaining as foundation
of the labor relations system
3. Parties to Collective Bargaining
• The duty arises only between
o ER
o EEs represented by their labor union
• Both parties negotiate through their
representatives
• EBR – any LLO duly recognized or certified as the
SOLA of all the EEs in a bargaining unit; the entity
is the union, not the officers
4. Jurisdictional Preconditions of Collective Bargaining
d. Possession of status of majority representation
e. Proof of majority representation
f. Demand to bargain
- ER’s duty to bargain does not arise until the union
requests the employer to bargain
- ER has the right to demand reasonable proof of
majority status; right should be made in good faith
and not to merely to delay
4.1. Bargaining with Minority Union, ULP
DISCLAIMER: USE AT YOUR OWN RISK
45
• ER’s refusal to CB with majority representative is
deemed ULP
• If no designated majority yet - subsequent
appearance of properly designated majority rep
may oblige ER to negotiate with the proper union
despite commitments to the now minority
representative
• ER has no duty to bargain collectively if there is
pending issue regarding majority status
• ULP for Union – staging a strike to compel
negotiations when there is a legitimate issue as to
which union is the legitimate representative
5. When Bargaining Should Begin
• Certification Year – 12 months following the
certification of EBR
• Certified union enjoys irrefutable presumption of
majority status for 1 year
• Presumption becomes rebuttable after
certification period
6. Single Enterprise Bargaining Procedure Broadly
Described
• Free collective bargaining – ER and EBR may
create their own bargaining rules and procedures
• Labor Code procedure applies suppletorily only
7. When Should Bargaining End?
• No time limit so long as honest and in good faith
8. Multi-Employer Bargaining
• Centralized/national negotiations or Industry-wide
bargaining in other countries
• PH rule – only enterprise-level/decentralized
bargaining
8.1. Rationale of Multi-Employer Bargaining
• ERs’ union beneficial in highly competitive
industries to ensure uniformity of labor costs
LABOR REVIEW REVIEWER (Atty. Quan) 46
ENCARNACION, MANZO
1st sem A.Y. 2019-2020

o Evaluation using appraisal forms for

ANNEX I:
QUAN HIGHLIGHTS
Highlights for Teachers and professors
• Full-time
o REQs.
§ Min. academic qualifications
(MORPHE: Master’s/license)
§ Paid monthly/hourly
§ Total hours is 8 hours/day
§ No other work that conflicts
with schoolwork
§ No other educational
institution (full-time)
• Unless otherwise
allowed by ER
o Full-time tenure usually yearly, UOP by
rules (FTE in contracts)
o Can be terminated after end of contract
period
o Schools can have their own definition of
what qualifies as full-time (load)
• Part-time: does not meet reqs. For full-time
• Tenure ends at end of semester
o No vested right to be re-hired
• Permanent/Tenured
o REQs.
§ Full-time
§ At least 3 years satisfactory
service (probationary service)
• Primary/secondary
– 3 consecutive
years
• Tertiary – 6
consecutive
semesters or 9
consecutive terms
for trimestral
• Period can be less if
waived by ER
o Just and authorized cause only
• Son v. UST
o CBA provided that EE is regular if re-
hired after 5 years even without master’s
o MORPHE requires master’s
o SC: law prevails over CBA; waiver of ER
must be in accordance with law
Highlights for Classes of EEs
• Take note of pieces of evidence used to determine
that EE was regular in PNOC v. Buenviaje
o Re-appointment letter that did not
indicate she was probationary
permanent EEs even if the ER had a
form for probationary EEs
• Distinction between job description (what needs to
be done). And standards for ENT (how job was
performed)
• Repeated re-hiring is evidence of necessity and
desirability of work
• Regularization as to particular activity: 1 year can
be continuous or broken (total # of days)
• You can be regular because of CBA (must be
favorable to EE)
• Peninsula Manila v. Alipi is an example of how
work can be desirable to a business (clinic)
• Samonte v. La Salle Greenhils, Inc.
o If contracting is an issue – presumption
that it is a labor-only contractor
o If not an issue, go straight to kinds of
EEs
o Use this case for repeated re-hiring as
proof of desirability/necessity
• Basan v. Coca-cola - route helpers considered
regular
o Basis for control
issue/desirability/necessity
• Sagun v. ANZ Global – stray case
Highlights for Unions
• Commingling not a ground for cancellation of
registration
o Suspensive condition was not met so
there was no EER yet
o SC: ENT contract required satisfactory
completion of his background check
before he may be deemed an EE, but
because of discrepancies in his
declared information and documents,
this was not met
§ No EER even if had already
started working at the time he
was given the letter of
retraction by ER
o In enterprise level – not allowed
o In NU/F – allowed (GR)
• Fraud and misrepresentation
o Must go into consent; material and
compelling
o Burden of proof on petitioner
• Charter certificate – issued by NU/F with
independent legal personality
o Issuance gives limited legal personality
to file petition for CE
o Need not be under oath
o Failure to file additional documents – no
personality

DISCLAIMER: USE AT YOUR OWN RISK

LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
• Chartered local – can file reqs. For independent
union by filing requirements for the latter
o Disaffiliation without additional reqs. =
loss of legal personality
• CBA not enough to override constitutionally
protected right to self-organization
• Difference between union and workers’
association
o EER not required for WA; only requires
sharing of same interest
o Right to choose whether to form LU or
WA belongs to workers
o Even EEs with definite ERs can form
WA
DISCLAIMER: USE AT YOUR OWN RISK
47
• Mere preparatory act for new union for CE is NOT
disloyalty
o Otherwise, you’ll never get another
union to replace current EBR
• Non-compliance with union security clause for
religious grounds I valid
o EE cannot be dismissed
o They may also form their OWN union
• When legal personality acquired
o ILO – issuance for certificate of
registration
o Chartered local – issuance of charter
certificate
LABOR REVIEW REVIEWER (Atty. Quan)
ENCARNACION, MANZO
1st sem A.Y. 2019-2020
Apprenticeship
At least 15 y/o
Vocational aptitude
3-6 mos.
Skilled (highly technical)
Probationary
Max. 6 mos.
Standards for regularization communicated at time of
engagement
Security of tenure during probationary period – removal for just
or authorized causes + failure to meet standards
Casual
Not regular
Not w/in XPNs in Art. 295
(project/seasonal)
XPN: 1 year (continuous or broken)
NOTE: Even if you become regular, it is
limited to the subsistence of the activity
DISCLAIMER: USE AT YOUR OWN RISK
48
ANNEX II
TABLES
Learnership
Same
Max. 3 mos.
Semi-skilled/other industries
Failure to comply – becomes regular EE
Regular
2 ways to be regular:
1. Nature of work (UNOD to UTOB of ER)
2. Length of service (1 year, continuous or broken; lasts
until activity subsists)
Security of tenure:
Removal only for just or authorized causes
XPNs:
1. Probationary
2. Seasonal
3. Fixed-term
Project Seasonal
Project/specific undertaking Not all farm workers are seasonal
• Person can be project EE in the • If they are made to do other
same company several times work even outside the season
because of clearly distinct projects for the same ER = regular
REQs. 1. Seasonal nature of work
1. Duration OR scope 2. Hired for duration of season ->
2. 2 reports filed with DOLE ENT ends (1 season only)
Duration is:
1. Fixed period
2. Day certain
OR
Scope communicated at time of
engagement’
Reports Reqd. to DOLE:
1. upon est. of ENT
2. upon termination (no need to notify EE)
XPNs (considered regular) XPN (considered regular)
1. Failure to est. REQs. = regular 1. Repeated re-hiring (at least 2x)
2. repeated re-hiring for SAME job AND 2. Vital/necessary tasks habitually
tasks are vital, necessary, indispensable needed in regular course of ER’s
business
EFFECT: expectancy to be re-hired
next season
XPN to XPN
Construction industry – not regular
because of nature of industry