8 Labor Code Pt. 1

R.A. 11058 - Occupational Health and Safety Standard

The worker has the right of refusal to work without threat or reprisal from employer if, as determined by DOLE, an imminent danger situation exists in workplace that may result in illness, injury or death, and corrective actions to eliminate danger have not been undertaken.

Article XIII, Section 3 (Constitution)

The State shall afford full protection to labor, local and overseas, organized and unorganized; promote full employment and equality of employment opportunities for all; guarantee rights of all workers to self-organization and peaceful concerted activities, including right to strike according to law.

Basis of Labor Code - Police Power

Labor contracts are subject to police power of the State.

Visitorial and Enforcement Power

The Secretary of Labor and Employment or his duly authorized representatives, including labor regulation officers, shall have access to employer's records and premises at any time of day or night whenever work is being performed and right to copy therefrom, to question any employee and investigate any fact, condition or matter necessary to determine violations.

Basis of Labor Code - Social Justice

Neither communism, nor despotism, nor atomism, nor anarchy, but humanization of laws and equalization of social and economic force by the State; not intended to countenance wrongdoing simply because committed by underprivileged; cannot be refuge of scoundrels; those who invoke social justice may do so only if hands are clean and not simply because poor.

Construction in Favor of Labor

One manifestation of social justice: all doubts in the Code shall be resolved in favor of labor. If there is no doubt: do not resolve in anyone's favor; apply pure and simple meaning of law; Labor Code protects workers but not intended to destroy or oppress Capital.

Kinds of Employees (Art. 295) - Regular

(a) those engaged to perform activities which are necessary or desirable in usual business or trade of employer. Ex: public school teachers (school cannot operate without teacher). Regular does NOT mean permanent - there is probationary period.

Kinds of Employees - Project and Seasonal

Perform activities only for a specific duration or time.

Kinds of Employees - Casual

Those who perform work which are usually not necessary or desirable for employer's business; what is necessary depends on industry (Delivery riders are necessary for Lazada because industry is online selling).

Security of Tenure (Art. 294)

Right of every employee not to be dismissed without just or authorized cause and in absence of due process. In illegal dismissal cases, burden of proof is on employer (Art. 292 Par B). Fact of dismissal, if disputed, must be proven by complainant.

Four-fold Test (Employer-Employee Relationship)

Determines existence of employer-employee relationship: 1. selection and engagement 2. payment of wages 3. power of dismissal 4. employer's power to control employee on means and methods by which work is accomplished.

Control Test

The power of employer to determine means by which employee would perform task.

Award of Reinstatement and Backwages

Given to employees illegally dismissed; reinstatement to former position without loss of seniority; cannot be reinstated to different position. Types: physical reinstatement (back to former position) and payroll reinstatement (no work but paid). Backwages: from time not allowed to work up to reinstatement inclusive of allowances and benefits.

Separation Pay in Lieu of Reinstatement

One month salary for every year of service. Grounds: Strained Relations - reinstatement no longer desirable/viable; frees employee from oppressive environment and employer from maintaining worker they cannot trust.

Probationary Period for Private School Teachers

Three consecutive school years according to Manual of Regulations for Private Schools before permanent; must be full-time, must have rendered 3 consecutive years, service must be satisfactory.

Full-time Teacher

Working day (8 hours per day, 6 days a week) devoted to school; has no other regular remunerative employment; In college, load is 18 hours a week or 18 units; paid on regular monthly basis regardless of teaching hours.

Just Cause for Legal Dismissal (Art. 297)

Employee has conducted serious misconduct, guilty of fraud, or neglected duties. Misconduct = improper or wrong conduct, must be in connection with work; minumura ang students = serious misconduct.

Abandonment

Just cause for separation; Elements: 1. failure to report to work without just/valid reason 2. overt acts showing no intention to return; employer must adduce clear evidence of deliberate unjustified refusal through overt acts.

Procedure for Dismissal Due to Just Causes

Employer must give two written notices and hearing/opportunity to be heard if requested: 1st notice = specifies grounds (NTE - Notice to Explain), give reasonable time 5 calendar days to explain (to study accusation, consult union/lawyer, gather evidence). 2nd notice = notice of termination after hearing. If no two notices, dismissal could be illegal.

Hearing Requirement

Trial-type hearing not needed as long as employee given opportunity to explain by writing or verbally; hearing is not equal to verbal argumentation alone. Bare allegations not enough, must be supported by substantial evidence at least. Airing grievances in public forum is right to free expression, not violation (may become libelous if accusatory).

Authorized Causes of Dismissal (Art. 298)

Authorized because employee not at fault; employer gave grounds therefore has separation pay: installation of labor-saving devices, automation, redundancy (services in excess of what reasonably demanded), retrenchment to prevent losses, closing or cessation of operation.

Redundancy

Madaming manggagawa, kaunti ang trabaho; management must declare with sufficient basis; good faith in abolishing position; fair and reasonable criteria in determining positions to be declared redundant.

Retrenchment to Prevent Losses

No need for actual losses; even projected losses if substantial can be grounds.

Due Process for Authorized Causes

Give two notices at least one month before intended dismissal: one to employee (warn impending loss of livelihood) and one to DOLE (to ascertain validity).

Separation Pay - Labor-Saving Devices or Redundancy

At least one month pay or at least one month pay for every year of service whichever higher. Ex: 9 months service = one month salary, 4 years service = 4 months salary. To provide wherewithal while looking for employment.

Separation Pay - Retrenchment and Closure

One month pay or 1/2 month pay for every year of service whichever higher. Ex: 9 months = one month salary, 4 years = 2 months salary. No separation pay if closure due to serious business losses; burden of proving losses is on employer with financial statements covering sufficient time.

Ineffectual Dismissal

Employee dismissed through just or authorized means but employer did not follow due process; no reinstatement, no backwages, no separation pay; employer must pay nominal damages (Court decides amount).

Constructive Dismissal

Continued employment rendered impossible, unreasonable or unlikely, as offer involving demotion in rank or diminution in pay and benefits; dismissal in disguise caused by bad behavior of employer; occurs not when employee ceases to report but when unwarranted acts committed to make continued employment intolerable.

Disease as Ground for Termination (Art. 299)

Employee who is sick may be dismissed if: suffers from disease that cannot be cured within six months and continued employment is prohibited by law or prejudicial to health of employee or co-employees; certification must be issued by competent public health authority; entitled to separation pay: 1 month salary or 1/2 month salary for every year of service whichever higher.

Floating Status (Art. 301)

Should not exceed six months; D.O. 215 allows extension for another six months but according to Supreme Court not valid as floating beyond six months is tantamount to constructive dismissal.

Resignation (Art. 300)

Employee may terminate without just cause by serving written notice at least one month in advance; when no notice, may be held liable for damages; may dispense with notice if: serious insult by employer, inhuman and unbearable treatment, commission of crime/offense by employer or rep against employee or immediate family, other analogous causes.

Separation Pay Upon Resignation

Voluntary resignation does not deserve separation pay unless employment contract stipulates it.

Retirement Pay (Art. 302)

Employee may retire at age 60 to 65 provided at least five years in establishment; 65 is compulsory retirement age; entitled to at least 1/2 month salary for every year = 15 days + 2.5 days of 13th month pay + cash equivalent of not more than 5 days SIL = 22.5 days per year; based on latest salary.

Retirement Plan must be fair and voluntary

Employer free to impose retirement age less than 65 as long as employees' consent; termination based on retirement plan not freely assented = illegal dismissal.

Part-time Employees Retirement

Retirement Pay Law did not distinguish kind of employees; entitled but smaller than full-time.

Prescription of Action (Art. 306)

Prescriptive period up to when legal action may be filed; covers claims for overtime pay, holiday pay, SIL pay, bonuses, salary differentials, illegal deductions; does NOT include money claims based on illegal dismissal.

Prescriptive Periods

Illegal dismissal - 4 years; Service Incentive Leave - 3 years; Pure Money Claims arising from employer-employee relationship - 3 years from when cause of action accrued otherwise forever barred.

Right to Unionize

Right of employees to form unions, associations, or societies for purposes not contrary to law shall not be abridged; interference is unfair labor practice (Art. 219).

Totality Test

In determining whether act is ULP, totality of circumstances must be considered; if unfair treatment does not relate to or affect right to unionize, then not ULP.

Dismissal of Union Officers

Unnecessary, discriminatory dismissal of union officer is worst kind of ULP; not unnecessary/discriminatory if officer committed act of misconduct.

Yellow Dog Contract

Employees employed if they vow to not join, assist, form, or even attempt to foster union for duration of employment; void undertaking; ULP.

Run-away Shop

Employer moves business to another location or temporarily closes for anti-union purposes; plant removed to discriminate against employees at old plant because of union activities.

Blue-Sky Bargaining

Demanding too much, unreasonable proposals; ex: union wants to raise minimum wage way beyond Regional Wage Board; ULP.

Boulwarism

"Take it or leave it" stand; offer or counteroffer not meant to be negotiated; prohibited because employer and union mandated to bargain in good faith; ULP.

Surface Bargaining

They go through motion of bargaining without intention to reach agreement; ULP.

Featherbedding

Committed by union against employer; union attempts to cause employer to pay for services not to be performed; no featherbedding if paid work is performed.

Sweetheart Contract / Deal (Art. 260e)

To ask for or accept negotiation or attorney's fees from employers as part of settlement of any issue in collective bargaining or other dispute; will not improve life of employees, only negotiators paid.

Certification Election

Process of determining through secret ballot sole and exclusive representative of employees in appropriate bargaining unit for collective bargaining; ordered by DOLE, filing petition to regional office; Consent Election - gentleman's agreement without petition.

Double Majority Vote (to Win Certification)

First majority - majority of bargaining unit must have voted; Second majority - winning union must have garnered majority of valid votes cast.

Failure of Election

Number of votes is less than majority of number of voters (first majority); Effects: anyone may file another petition for certification election within six months from declaration of failure.

Run-off Election

Occurs when certification or consent election with at least 3 choices (2 unions = 3 choices including 'no union') and no winner got double majority; two unions with highest votes have another bout; 'no union' no longer choice; those who did not vote in certification CAN VOTE in run-off.

Re-run Election

If certification, consent, or run-off results in tie between two choices, election officers notify each party within 5 days, within 10 days scheduled election between two tied parties.

Certified Bargaining Agent

Winners of elections; During elections = contending union; As winner = bargaining agent/representative; While bargaining = bargaining union; Having contract = contracting union.

Collective Bargaining Agreement (CBA)

Contract between employer and bargaining union incorporating agreement reached after negotiations with respect to wages, hours of work, and all other terms and conditions of employment.

CBA Posting Requirement

Must be posted in at least two conspicuous places (where people congregate) 5 days prior to day of ratification; Non-posting is fatal defect, violates bargaining unit's right to information; posting is employer's responsibility.

Ratification and Registration

Ratification: majority of all workers in bargaining unit must vote to ratify; if majority did not vote, cannot be registered, returned to bargaining table. Registration: if ratified, should be registered to Bureau of Labor Relations; if not registered, still valid and binding between union and employer but cannot invoke Contract Bar Rule (Art. 238); Must be registered to bar petition for certification election for five years except freedom period.

Lifetime of CBA (Art. 264 and 265)

Representation issue max 5 years; 3-year period: on 3rd year, economic benefits alone can be renegotiated (not mandatory). Freedom Period: 60 days before 5 years completed. Automatic Renewal Clause / Evergreen Clause: when CBA expires and no new CBA, all terms renewed until new CBA concluded. Automatic Retroaction: pertains to economic provisions; any economic provisions concluded within 6 months from expiration shall retroact to day after expiration and persist until agreed upon.

Effectivity of Arbitral Award

Will take effect on day set by voluntary arbitrator; happens when CBA is result of arbitration (union and employer cannot agree).

Grievance (Art. 273)

Refers to any question by either employer or union; sources: interpretation and implementation of CBA provisions, interpretation or enforcement of company personnel policies.

Grievance Machinery

Parties of CBA establish machinery for expeditious resolution; unresolved will be referred to voluntary arbitration. Grievance Committee created by employer and union within 10 days from signing CBA. All grievances must be submitted and acted upon within 7 calendar days, if unresolved automatically forwarded to voluntary arbitrators accredited by NCMB and selected by parties.

Compulsory Arbitrators

Mandated by law to resolve all issues in labor and jurisdiction provided by law.

CBA Violations vs Gross Violations

All CBA violations are grievances except gross violation of CBA = flagrant or malicious refusal to comply with economic provisions; gross violations considered unfair labor practices. CBA violations = voluntary arbitrator; gross violations = labor arbiter.

Jurisdiction of Voluntary Arbitrator

Have jurisdiction over wage distortion issues in organized establishments (Art. 124); parties may agree to submit other issues like ULP or illegal dismissal if expressed stipulation in CBA; in absence of stipulation, cannot because under labor arbiter jurisdiction.

Article 276 Procedures

Voluntary arbitrators upon receipt of unresolved grievances must rule within 20 calendar days (can be extended by agreement); final and executory after 10 calendar days from receipt of decision; allowed to file motion for reconsideration; after denial, go to Court of Appeals within 15 calendar days.

Strike (Art. 219)

Means any temporary stoppage of work caused by employees due to labor dispute.

Valid Grounds for Strike

Bargaining deadlock, unfair labor practice, union busting, dismissal of union officers without grounds.

Notice of Strike

Filed with NCMB: 30 days before intended date, 15 days in case of ULP, no need in case of union busting but strike vote mandatory.

Cooling-off Period

30 days for economic strike, 15 days for ULP, no period required for union busting; period where workers not allowed to strike; purpose: afford parties opportunity to resolve dispute with assistance of NCMB conciliator/mediator (preventive mediation).

Strike Vote

Gather all union members votes through secret balloting within 24 hours if unresolved after notifying NCMB; must notify NCMB prior to conduct of strike vote report; failure to notify renders strike illegal; Purpose of notice: for NCMB to supervise election.

Strike Vote Report

Reported to NCMB at least seven days before intended strike.

7-day Strike Ban

Time notice of strike given to DOLE (NCMB) of results of strike voting; gives time to NCMB to determine if decision to conduct strike has vote of majority.

Lockout

Temporary refusal of employer to furnish work because of labor dispute.

Picketing

Right of workers to peacefully march to and fro before establishment involved in labor dispute; exercise of freedom of expression.

Consequences of Illegal Strike

Union officers may be dismissed after due process; union members may not be dismissed unless they participated in commission of illegal activities; it is not illegal to have strike in hospitals but must maintain skeletal force.

Power to Assume Jurisdiction

Secretary of Labor may assume jurisdiction over dispute and decide; Power can be assumed by President.

Aliens and Union Activities

Aliens not allowed to participate in union activities; Exceptions (Art. 284): if alien has valid working permit, in their country of origin Filipinos also given same right to unionize (principle of reciprocity).