LABOR LAW REVIEWER (For Sale P500 only )

I

Q. When may a cert ificat ion elect ion be automat ically called?

Suggested Answer

"ART. 257. Petitions in Unorganized Establishments. - In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by any legitimate labor

organization, including a national union or federation which has already issued a

charter certificate to its 1ocal/chapter participating in the certification election or a

local/chapter which has been issued a charter certificate by the national union or

federation. In cases where the petition was filed by a national union or federation,

it shall not be required to disclose the names of the local chapter's officers and

members."

Q. What is the employees right to self -organizat ion? Suggested Answer

To form, join and assist labor organizations for the purpose of collective bargaining (CB) through representatives of their own choosing; and

To engage in lawful and concerted activities for the purpose of CB or for their mutual aid and protection. (Art. 246)

II To determine the sole and exclusive bargaining agent of the workers and employees of X Mining Co., a certificate election was held among the three contending unions, namely, Union A, Union B, and Union C. Of the 560 eligible voters, only 500 actually cast their votes, Union A garnered 220 votes, Union B garnered 242 votes, Union C garnered 30 votes, while the rest of the ballots were considered as spoiled.

Q. How do you determine the majority vote in a cert ificat ion elect ion?

Suggested Answer

50% + 1 of the valid votes cast.

Q. In the problem, which of the contending unions won the cert ificat ion elect ion, i f any?

Why?

None of the contending Unions won the certification election. The law provides that the union obtaining the majority of the valid votes cast by

the eligible voters shall be certified as the sole and exclusive bargaining agent of all

the workers in the appropriate bargaining unit. This majority is 50% + 1. Hence,

50% of 500 is 250 + 1 is 251.

In the given problem, none of the contending Unions obtained at least 251 votes.

III

Q. What is the jurisdiction of the Labor Arbiter under Art. 217 of the Labor Code of the

Philippines?

Suggested Answer

Original and exclusive jurisdiction to hear and decide the following cases involving all workers, whether agricultural or non-agricultural:

1. Unfair labor practice cases;

2. Termination disputes;

3. If accompanied with a claim for reinstatement, those cases that workers

may file involving wages, rates of pay, hours of work and other terms and

conditions of employment;

4. Claims for actual, moral, exemplary and other forms of damages arising

from employer-employee relations;

5. Cases arising from any violation of Article 264 of the Labor Code, as

amended, including questions involving the legality of strikes and lockouts;

6. Except claims for employees compensation not included in the next

succeesing paragraph, social security, medicare, and maternity benefits, all other

claims arising from employer-employee relations, including those of persons in

domestic or household service, involving an amount exceeding Five Thousand

Pesos (P5,000.00), whether or not accompanied with a claim for reinstatement;

7. Wage distortion disputes in unorganized establishments not voluntarily

settled by the parties pursuant to Republic Act No. 6727;

8. Enforcement of compromise agreements when there is non-compliance

by any of the parties pursuant to Article 227 of the Labor Code, as amended;

9. Money claims arising out of employer-employee relationship or by virtue

of any law or contract, involving Filipino workers for overseas deployment,

including claims for actual, moral, exemplary and other forms of damages as

provided by Section 10, Republic Act No. 8042, as amended by Republic Act No.

10022; and

10. Other cases as may be provided by law.

IV

Q. May the administrative proceedings and the criminal prosecution for unfair labor practices

be inst ituted and held simultaneously? Why?

Suggested Answer

No, they may not be instituted and held simultaneously. The law provides that no criminal prosecution may be instituted without a final

judgment, finding that an unfair labor practice was committed, having been first

obtained in the administrative proceeding.

V

Q. Union A wins over Union B in a certification election, then enters into a collective

bargaining agreement with the employer. The CBA contains among others a closed shop provision.

As member of Union B, the loser, did not apply for membership in Union A, the latter demanded

that the employer dismiss the said employees pursuant to the closed shop agreement. Is the

employer obliged to dismiss them? Why?

Suggested Answer

NO The closed-shop agreement should apply to persons to be hired or to employees

who are not yet members of any labor organization. It is inapplicable to those already in the service who are members of another union. To hold otherwise, i.e.,

that the employees in a company who are members of a minority union may be

compelled to disaffiliate from their union and join the majority or contracting

union, would render nugatory the right of all employees to self-organization and to

form, join or assist labor organizations of their own choosing, a right guaranteed by

the Constitution.

VI

Q. Cite the 1987 Const itut ional provision of Sect ion 3 Art icle 13.

Suggested Answer

Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of

employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane

conditions of work, and a living wage. They shall also participate in policy and

decision-making processes affecting their rights and benefits as may be provided

by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes,

including conciliation, and shall enforce their mutual compliance therewith to

foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of

enterprises to reasonable returns to investments, and to expansion and growth.

VII

Q. Discuss the composition of the National Labor Relation Commission; Qualification of the

Commissioner and Labor Arbiters.

Suggested Answer

ART. 213. National Labor Relations Commission. - There shall be a National Labor Relations Commission which shall be attached to the Department of Labor

and Employment SOLELY for program and policy coordination only, composed

of a Chairman and TWENTY-THREE (23) Members.

EIGHT (8) members each shall be chosen ONLY from among the nominees of the workers and employers organizations, respectively. The Chairman and the

SEVEN (7) remaining members shall come from the public sector, with the latter

to be chosen PREFERABLY from among the INCUMBENT LABOR

ARBITERS.

ART. 215. Appointment and Qualifications. - The Chairmans and other Commissioners shall be members of the Philippine Bar and must have been engaged in the practice of law in the Philippines for at least fifteen (15) years, with

at least five (5) years experience or exposure in the field of labor-management

relations, and shall preferably be residents of the region where they SHALL hold

office. The Labor Arbiters shall likewise be members of the Philippine Bar and

must have been engaged in the practice of law in the Philippines for at least ten

(10) years, with at least five (5) years experience or exposure in THE FIELD OF

labor-management relations.

VIII

Q. Are government employees ent it led to unionize?

Suggested Answer

The right to unionize or to form organizations is explicitly recognized and granted to employees in both the governmental and the private sectors. The Bill of Rights

provides that "(t)he right of the people, including those employed in the public and

private sectors, to form unions, associations or societies for purposes not contrary

to law shall not be abridged"

This guarantee is reiterated in the second paragraph of Section 3, Article XIII, on Social Justice and Human Rights, which mandates that the State "shall guarantee

the rights of all workers to self-organization, collective bargaining and negotiations,

and peaceful concerted activities, including the right to strike in accordance with

law ...."

Specifically with respect to government employees, the right to unionize is recognized in Paragraph (5), Section 2, Article IX B which provides that "(t)he right to self-organization shall not be denied to government employees."

IX

Q. Dist inguish managerial employees from supervisory personnel.

Suggested Answer

Art. 245 of the Labor Code Ineligibility of managerial employees to join any labor organization; right of

supervisory employees. Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for

membership in a labor organization of the rank-and-file employees but may join,

assist or form separate labor organizations of their own.

X

Q. Are legal or execut ive secretaries eligible to join the rank and file union? Why?

Suggested Answer

Legal or executive secretaries are not eligible to join the rank and file union. Legal secretaries should be differentiated from rank-and-file employees because

they are tasked with, among others, the typing of legal documents, memoranda

and correspondence, the keeping of records and files, the giving of and receiving notices, and such other duties as required by the legal personnel of the

corporation. Legal secretaries therefore fall under the category of confidential

employees. . . .

Executive secretaries are also confidential employees, hence they are not eligible to join the rank and file union. (Metrolab Industries Inc. v. Confesor, G.R. No. 108855, Feb. 28, 1996)

Another suggested answer

The secretaries/clerks and checkers, not being confidential employees, are not disqualified from membership in the Union of rank-and-file employees.

There is no showing that the secretaries/clerks and checkers assisted or acted in a confidential capacity to managerial employees and obtained confidential

information relating to labor relations policies. And even assuming that they had

exposure to internal business operations of the company, this is not per se ground

for their exclusion in the bargaining unit of the daily-paid rank-and-file employees.

(Tunay Na Pagkakaisa Ng Manggagawa Sa Asia Brewery vs. Asia Brewery, Inc.)

XI

Q. May aliens join labor unions in the Philippines?

Suggested Answer

Aliens or foreigners working in the Philippines may join labor unions but they cannot form labor unions. In order to be eligible to join labor unions, aliens must

first be issued valid working permits by the Department of Labor and

Employment. Further, aliens may join labor unions provided the following

circumstances are present:

a. The alien employee must be a citizen of a country that has democratic

ties with the Republic of the Philippines

b. The alien employee must be a citizen of a country which grants the same

or similar rights to Filipino workers a certified by the Department of foreign

Affairs (reciprocity).

XII

Q. Are employees of a cooperat ive ent it led to form a union? Why?

Suggested Answer

The right to collective bargaining is not available to an employee of a cooperative who at the same time is a member and co-owner thereof. With respect, however,

to employees who are neither members nor co-owners of the cooperative they are

entitled to exercise the rights to self-organization, collective bargaining and

negotiation as mandated by the 1987 Constitution and applicable statutes.

XIII

Q. May an employee be compelled to become a member of a labor organizat ion? Explain

briefly?

Suggested Answer

An employee may not be compelled to become a member of a labor organization. As employees have rights to form, join, and assist labor organizations, it follows

that they have the right not to form, join, and assist labor organization.

XIV

Q. May a deduction for death aid benefits be made from the wages of the union members by

means of a board resolut ion of the directors of the union?

Suggested Answer

Art. 113 Wage DeductionNo employer in his own behalf or in behalf of any

person, shall make any deduction from the wages of his employees, except:

(a) In cases where the worker is insured with his consent by the employer,

and the deduction is to recompense the employer for the amount paid by him as premium on the insurance;

(b) For union dues, in cases where the right of the worker or his union to

check off has been recognized by the employer or authorized in writing by the

individual worker concerned; and

(c) In cases where the employer is authorized by law or regulations issued by

the Secretary of Labor.

XV

Q. May the employer file a pet it ion for cert ificat ion elect ion in an unorganized establishment? Explain. Suggested Answer

Article 257. Petitions in Unorganized Establishments. - In any establishment where there is no certified bargaining agent, a certification election shall

automatically be conducted by the Med-Arbiter upon the filing of a petition by any

legitimate labor organization, including a national union or federation which has

already issued a charter certificate to its 1ocal/chapter participating in the

certification election or a local/chapter which has been issued a charter certificate

by the national union or federation. In cases where the petition was filed by a

national union or federation, it shall not be required to disclose the names of the

local chapters officers and members.

Article 258. When an employer may file petition. When requested to bargain collectively, an employer may petition the Bureau for an election. If there is no

existing certified collective bargaining agreement in the unit, the Bureau shall, after

hearing, order a certification election.

Article 258-A. Employer as Bystander. - In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the

employer shall not be considered a party thereto with a concomitant right to

oppose a petition for certification election.

XVI

Q. May a petition for certification election filed after the lapse of sixty-day freedom period be

allowed? Why?

Suggested Answer

As a general rule, in an establishment where there is a CBA in force and effect, a PCE may be filed only during the freedom period of such CBA. But to have that

effect, the CBA should have been filed and registered with the DOLE. (Art. 231,

253A and 256, LC). (1997 Bar Question)

Thus, a CBA that has not been filed and registered with the DOLE cannot be a bar to a CE and such election can be held outside the freedom period of such

CBA.

Alternative Answer:

A PCE may be filed outside the freedom period of a current CBA if such CBA is a new CBA that has been prematurely entered into, meaning, it was entered into

before the expiry date of the old CBA. The filing of the PCE shall be within the

freedom period of the old CBA which is outside the freedom period of the new

CBA that had been prematurely entered into.

XVII

Q. What is a Collect ive Bargaining Agreement?

Suggested Answer

It is a contract executed upon request of either the employer or the exclusive bargaining representative of the employees incorporating the agreement reached

after negotiations with respect to wages, hours of work and all other terms and

conditions of employment, including proposals for adjusting any grievances or

questions under such agreement.

XVIII

Q. Explain the meaning of the duty to bar gain collect ively.

Suggested Answer

Article 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.

XIX

Q. Describe briefly the procedure in collect ive bargaining.

Suggested Answer

Article 250. Procedure in collective bargaining. The following procedures shall be observed in collective bargaining:

(a) When a party desires to negotiate an agreement, it shall serve a written notice

upon the other party with a statement of its proposals. The other party shall make

a reply thereto not later than ten (10) calendar days from receipt of such notice;

(b) Should differences arise on the basis of such notice and reply, either party may

request for a conference which shall begin not later than ten (10) calendar days

from the date of request.

(c) If the dispute is not settled, the Board shall intervene upon request of either or

both parties or at its own initiative and immediately call the parties to conciliation

meetings. The Board shall have the power to issue subpoenas requiring the

attendance of the parties to such meetings. It shall be the duty of the parties to

participate fully and promptly in the conciliation meetings the Board may call;

(d) During the conciliation proceedings in the Board, the parties are prohibited

from doing any act which may disrupt or impede the early settlement of the

disputes; and

(e) The Board shall exert all efforts to settle disputes amicably and encourage the

parties to submit their case to a voluntary arbitrator.

XX

Q. Discuss briefly the importance of union secur ity clause.

Suggested Answer

A union security clause in a CBA should be interpreted to give meaning and effect to its purpose, which is to afford protection to the certified bargaining agent and

ensure that the employer is dealing with a union that represents the interests of the

legally mandated percentage of the members of the bargaining unit.