UNFAIR LABOR PRACTICES

ART. 247. CONCEPT OF UNFAIR LABOR PRACTICE AND PROCEDURE FOR PROSECUTION
THEREOF. UNFAIR LABOR PRACTICES VIOLATE THE CONSTITUTIONAL RIGHT OF WORKERS
AND EMPLOYEES TO SELF-ORGANIZATION, ARE INIMICAL TO THE LEGITIMATE INTERESTS OF
BOTH LABOR AND MANAGEMENT, INCLUDING THEIR RIGHT TO BARGAIN COLLECTIVELY AND
OTHERWISE DEAL WITH EACH OTHER IN AN ATMOSPHERE OF FREEDOM AND MUTUAL
RESPECT, DISRUPT INDUSTRIAL PEACE AND HINDER THE PROMOTION OF HEALTHY AND
STABLE LABOR-MANAGEMENT RELATIONS.
CONSEQUENTLY, UNFAIR LABOR PRACTICES ARE NOT ONLY VIOLATIONS OF THE CIVIL
RIGHTS OF BOTH LABOR AND MANAGEMENT BUT ARE ALSO CRIMINAL OFFENSES AGAINST
THE STATE WHICH SHALL BE SUBJECT TO PROSECUTION AND PUNISHMENT AS HEREIN
PROVIDED.

SUBJECT TO THE EXERCISE BY THE PRESIDENT OR BY THE SECRETARY OF LABOR AND

EMPLOYMENT OF THE POWERS VESTED IN THEM BY ARTICLES 263 AND 264 OF THIS CODE,
THE CIVIL ASPECTS OF ALL CASES INVOLVING UNFAIR LABOR PRACTICES, WHICH MAY
INCLUDE CLAIMS FOR ACTUAL, MORAL, EXEMPLARY AND OTHER FORMS OF DAMAGES,
ATTORNEY’S FEES AND OTHER AFFIRMATIVE RELIEF, SHALL BE UNDER THE JURISDICTION OF
THE LABOR ARBITERS. THE LABOR ARBITERS SHALL GIVE UTMOST PRIORITY TO THE
HEARING AND RESOLUTION OF ALL CASES INVOLVING UNFAIR LABOR PRACTICES. THEY
SHALL RESOLVE SUCH CASES WITHIN THIRTY (30) CALENDAR DAYS FROM THE TIME THEY
ARE SUBMITTED FOR DECISION.

RECOVERY OF CIVIL LIABILITY IN THE ADMINISTRATIVE PROCEEDINGS SHALL BAR RECOVERY

UNDER THE CIVIL CODE.

NO CRIMINAL PROSECUTION UNDER THIS TITLE MAY BE INSTITUTED WITHOUT A FINAL

JUDGMENT FINDING THAT AN UNFAIR LABOR PRACTICE WAS COMMITTED, HAVING BEEN
FIRST OBTAINED IN THE PRECEDING PARAGRAPH. DURING THE PENDENCY OF SUCH
ADMINISTRATIVE PROCEEDING, THE RUNNING OF THE PERIOD OF PRESCRIPTION OF THE
CRIMINAL OFFENSE HEREIN PENALIZED SHALL BE CONSIDERED INTERRUPTED: PROVIDED,
HOWEVER, THAT THE FINAL JUDGMENT IN THE ADMINISTRATIVE PROCEEDINGS SHALL NOT
BE BINDING IN THE CRIMINAL CASE NOR BE CONSIDERED AS EVIDENCE OF GUILT BUT
MERELY AS PROOF OF COMPLIANCE OF THE REQUIREMENTS THEREIN SET FORTH. (AS
AMENDED BY BATAS PAMBANSA BILANG 70, MAY 1, 1980 AND LATER FURTHER AMENDED BY
SECTION 19, REPUBLIC ACT NO. 6715, MARCH 21, 1989)
ELEMENTS [commission of ULP]:

 Employment relationship

 The act done is expressly defined in the Code as an act of ULP

Acts opposed to workers’ right to organize

PROSECUTION of ULP

- To prosecute ULP as CRIMINAL offense is not possible until after finality of judgment in the labor case, finding that the respondent indeed committed ULP

- Only SUBSTANTIAL evidence is required in the labor case in the NLRC

- JURISDICTION: concurrent jurisdiction of the MTC or RTC

- PRESCRIPTION of OFFENSE: 1 year

UNFAIR LABOR PRACTICES OF EMPLOYERS

ART. 248. UNFAIR LABOR PRACTICES OF EMPLOYERS. IT SHALL BE UNLAWFUL FOR AN

EMPLOYER TO COMMIT ANY OF THE FOLLOWING UNFAIR LABOR PRACTICE:
1) TO INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR
RIGHT TO SELF-ORGANIZATION;
2) TO REQUIRE AS A CONDITION OF EMPLOYMENT THAT A PERSON OR AN EMPLOYEE SHALL
NOT JOIN A LABOR ORGANIZATION OR SHALL WITHDRAW FROM ONE TO WHICH HE BELONGS;

3) TO CONTRACT OUT SERVICES OR FUNCTIONS BEING PERFORMED BY UNION MEMBERS

WHEN SUCH WILL INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF
THEIR RIGHTS TO SELF-ORGANIZATION;

4) TO INITIATE, DOMINATE, ASSIST OR OTHERWISE INTERFERE WITH THE FORMATION OR

ADMINISTRATION OF ANY LABOR ORGANIZATION, INCLUDING THE GIVING OF FINANCIAL OR
OTHER SUPPORT TO IT OR ITS ORGANIZERS OR SUPPORTERS;

5) TO DISCRIMINATE IN REGARD TO WAGES, HOURS OF WORK AND OTHER TERMS AND

CONDITIONS OF EMPLOYMENT IN ORDER TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN
ANY LABOR ORGANIZATION. NOTHING IN THIS CODE OR IN ANY OTHER LAW SHALL STOP THE
PARTIES FROM REQUIRING MEMBERSHIP IN A RECOGNIZED COLLECTIVE BARGAINING AGENT
AS A CONDITION FOR EMPLOYMENT, EXCEPT THOSE EMPLOYEES WHO ARE ALREADY
MEMBERS OF ANOTHER UNION AT THE TIME OF THE SIGNING OF THE COLLECTIVE
BARGAINING AGREEMENT. EMPLOYEES OF AN APPROPRIATE BARGAINING UNIT WHO ARE
NOT MEMBERS OF THE RECOGNIZED COLLECTIVE BARGAINING AGENT MAY BE ASSESSED A
REASONABLE FEE EQUIVALENT TO THE DUES AND OTHER FEES PAID BY MEMBERS OF THE
RECOGNIZED COLLECTIVE BARGAINING AGENT, IF SUCH NON-UNION MEMBERS ACCEPT THE
BENEFITS UNDER THE COLLECTIVE BARGAINING AGREEMENT: PROVIDED, THAT THE
INDIVIDUAL AUTHORIZATION REQUIRED UNDER ARTICLE 242, PARAGRAPH (O) OF THIS CODE
SHALL NOT APPLY TO THE NON-MEMBERS OF THE RECOGNIZED COLLECTIVE BARGAINING
AGENT;

6) TO DISMISS, DISCHARGE OR OTHERWISE PREJUDICE OR DISCRIMINATE AGAINST AN

EMPLOYEE FOR HAVING GIVEN OR BEING ABOUT TO GIVE TESTIMONY UNDER THIS CODE;

7) TO VIOLATE THE DUTY TO BARGAIN COLLECTIVELY AS PRESCRIBED BY THIS CODE;

8) TO PAY NEGOTIATION OR ATTORNEY’S FEES TO THE UNION OR ITS OFFICERS OR AGENTS

AS PART OF THE SETTLEMENT OF ANY ISSUE IN COLLECTIVE BARGAINING OR ANY OTHER
DISPUTE; OR

9) TO VIOLATE A COLLECTIVE BARGAINING AGREEMENT. THE PROVISIONS OF THE

PRECEDING PARAGRAPH NOTWITHSTANDING, ONLY THE OFFICERS AND AGENTS OF
CORPORATIONS, ASSOCIATIONS OR PARTNERSHIPS WHO HAVE ACTUALLY PARTICIPATED IN,
AUTHORIZED OR RATIFIED UNFAIR LABOR PRACTICES SHALL BE HELD CRIMINALLY LIABLE.
(AS AMENDED BY BATAS PAMBANSA BILANG 130, AUGUST 21, 1981)

CONDITIONS PRESEDENT to ULP CHARGE

 Injured party comes within the definition of employee

 The act charged as ULP must fall under the prohibitions of Art. 248 (ACTS OF EMPLOYER) OR Art.
249 (acts of the union)
UNFAIR LABOR PRACTICES of EMPLOYERS
Unlawful acts or acts of ULP
1. interference. to interfere with the right of self-organization of employees
Lockout = ULP when it is used as a means of dissuading the employees from exercising their rights under
this act

TEST of Employer’s Remarks: TOTALITY OF CONDUCT DOCTRINE. The culpability of employer’s remarks
have to be evaluated not only on the basis of their implications, but against the background of and in
conjunction with collateral circumstances.

Test of Interference – whether the employer has engaged in conduct which it may be reasonably be said
tends to intefere with the free exercise of employees right.

2. yellow dog condition. to require as a condition of employment, that a person should not join a
labor organizations or shall withdraw therefrom
Yellow Dog Contract; Badges
1) a representation by the employee that he is not a member of a labor union
2) a promise by the employee not to join a labor union
3) a promise by the employee that, upon joining a labor union, he will quit his employment

3. contracting out. to contract-out functions performed by union members in order to interfere with
their right of self-organization

Requisites for Valid Contracting Out

1) made in good faith
2) the contracting out must not have been resorted to, to circumvent the law
3) must not have been the result of malicious or arbitrary action

RUNAWAY shop = ULP. An industrial plant moved by its owners from one location to another to escape
union labor regulations or state laws.
Constructive Discharge – when the employer prohibits employees from exercising their rights under the
act, on pain of discharge, and the employee quits as a result of the prohibition, a constructive discharge
occurs.

4. company unionism. support a union in a multi-union establishment. May be manifested in the

following manner:
1) initiation of the company union idea
2) financial support to the union
3) employer encouragement and assistance
4) supervisory assistance

5. discrimination for or against union membership. discriminate union membership. Union Security
Clause is valid.

Mass Layoff = ULP when only union members were laid off and there is no economic reason to do so.

Sale of Business = ULP if made in bad faith and used only to get rid of the employees who were
members of the Union. If the buyer makes substantial NONDISCRIMINATORY personnel changes and
changes in the operational structure of the business, he is not a successor employer and need not
bargain with the incumbent union and the dismissal does not constitute ULP

Principal Elements: the discrimination committed by the employer must be in regard to

the hire or tenure of employment or any term or condition of employment to encourage or discourage
membership in any labor organization.

Discrimination by Blacklisting. Blacklist is a list of persons marked out for special avoidance, antagonism
or enmity on the part of those who prepare the list, or those among whom it is intended to circulate

Indirect Discrimination Present in the Following Events:

1) the dismissal of a laborer on account of union activities of his brother
2) the discharge of an employee due to the union activities of his wife
3) the discharge of wife due to the union activities of the husband
Union Security Clause; Kinds
1) Closed Shop – only union members can be hired by the company and they must remain as such to
retain employment in the company EXCEPT
a. any employee who is a member of religious organization which prohibits its members from joining
labor unions
b. employee already in a service and already a member of another union
c. confidential employees who are excluded from the rank and file bargaining unit
d. employees excluded from the closed shop by express terms of the agreement
2) Union Shop – nonmembers may be hired but to retain employment must become union members
after a certain period
3) Modified Union Shop – employees who are not union members at the time of signing the contract
need not join the union, but all workers hired thereafter must join
4) Maintenance of membership shop – no employee is compelled to join the union, but all present or
future members must, as a condition of employment, remain in good standing in the union
5) Exclusive Bargaining Shop – the union is recognized as the exclusive bargaining agent for all
employees in the bargaining unit, whether union members or not
6) Bargaining for members only – the union is recognized as the bargaining agent only for its own
member
7) Agency shop– an agreement whereby employees must either join the union or pay to the union as
exclusive bargaining agent a sum equal to that paid by the members.
Agency Fee – no authorization is required based on the doctrine of quasi-contract

6. because of testimony. dismiss or discriminate an employee for having given or being about to give
testimony under this code
7. violates the duty to bargain – or Bargaining with the Minority Union constitutes ULP as a refusal to
collectively bargain

Situations when the duty to Bargain Exists

a) the duty to bargain means in essence the mutual obligation to meet and convene for the purpose of:
b) to negotiate an agreement of mandatory subjects like: 1wages, 2hours of work and 3all other terms
and conditions of employment including for adjusting grievances or questions arising under such
agreement
c) to execute a contract incorporating such agreement if requested by either party
d) the obligation not to terminate or modify the CBA during its lifetime
Forms of Violation of the Duty to Bargain
1) failure or refusal to meet and convene – to bargain in good faith, an employer must not only meet
and confer with the union which represents his employees, but also must recognize the union for the
purpose of collective bargaining agreement

2) evading the mandatory subjects of bargaining

1. wages and other types of compensation including merit increases
2. working hours and working days, including work shifts
3. vacations and holidays
4. bonuses
5. pensions and retirement plans
6. seniority
7. transfer
8. lay-offs
9. employee workloads
10. work rules and regulations
11. rent of company houses
12. union security agreement

3) bad faith in bargaining including refusal to execute a Collective Bargaining Agreement, if requested

Good Faith Bargaining – demands more than sterile and repetitive discussion of formalities precluding
actual negotiation, more than formal replies which constitute in effect a refusal to treat with the union
and more than a willingness to enter upon a sterile discussion of union-management differences

Badges of Bad Faith Bargaining

i. when the employer fails to vest its negotiators with sufficient authority to make
agreement
ii. when after 1 month of submittal of Union’s proposal, the employer has not made any
counter proposal
iii. Surface Bargaining – a sophisticated pretense in the form of apparent bargaining
 iv. Inflexible bargaining by the union
v. Boulwarism or the take-it-or-leave-it bargaining
vi. Refusal to furnish, upon request, financial information of the company

4) gross violation of CBA [flagrant]s

Deadlock or Impasse – presupposes a reasonable effort at good-faith bargaining which, despite noble
intentions, does not conclude in an agreement between the parties. A deadlock does not mean an end
of bargaining. It signals rather the need to seek assistance of a 3rd party.

Duty to Bargain and Sale of Business: if there is a substantial and material alteration in the employing
enterprise, the new employer need not bargain with the incumbent union. If there is none, the new
employer needs to bargain with the incumbent union.

Factors to determine Substantial Continuity of the Operation

a) the new employer uses the same plant
b) he has the same or substantially the same workforce
c) the same jobs exist under the same working conditions
d) he employs the same supervisors
e) he uses the same machinery, equipment and methods

NOTE: an employer does not violate the duty to bargain when

a) the denial of the proposal is due to economic losses as long as the employer continues to negotiate
b) adoption of an adamant bargaining position in good faith
c) refusal to bargain over demands for commission of ULP
d) refusal to bargain during period of illegal strike

8. paid negotiation. to pay negotiation or attorney’s fees to the union as part of the settlement

9. GROSSLY violate the CBA. Must be gross and flagrant according to Art. 261
Criminal Liability: only officers and agents who have actually participated in, authorized or ratified ULP

REMEDIES IN ULP CASES

1. Cease and Desist Order issued by the RTC
2. mandatory injunction
3. disestablishment of company union
4. ULP is not subject to compromise
UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

ART. 249. UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS. IT SHALL BE UNFAIR LABOR
PRACTICE FOR A LABOR ORGANIZATION, ITS OFFICERS, AGENTS OR REPRESENTATIVES:

1) TO RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHT TO SELF-

ORGANIZATION. HOWEVER, A LABOR ORGANIZATION SHALL HAVE THE RIGHT TO PRESCRIBE
ITS OWN RULES WITH RESPECT TO THE ACQUISITION OR RETENTION OF MEMBERSHIP;

2) TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO DISCRIMINATE AGAINST AN

EMPLOYEE, INCLUDING DISCRIMINATION AGAINST AN EMPLOYEE WITH RESPECT TO WHOM
MEMBERSHIP IN SUCH ORGANIZATION HAS BEEN DENIED OR TO TERMINATE AN EMPLOYEE
ON ANY GROUND OTHER THAN THE USUAL TERMS AND CONDITIONS UNDER WHICH
MEMBERSHIP OR CONTINUATION OF MEMBERSHIP IS MADE AVAILABLE TO OTHER MEMBERS;

3) TO VIOLATE THE DUTY, OR REFUSE TO BARGAIN COLLECTIVELY WITH THE EMPLOYER,

PROVIDED IT IS THE REPRESENTATIVE OF THE EMPLOYEES;

4) TO CAUSE OR ATTEMPT TO CAUSE AN EMPLOYER TO PAY OR DELIVER OR AGREE TO PAY

OR DELIVER ANY MONEY OR OTHER THINGS OF VALUE, IN THE NATURE OF AN EXACTION, FOR
SERVICES WHICH ARE NOT PERFORMED OR NOT TO BE PERFORMED, INCLUDING THE
DEMAND FOR FEE FOR UNION NEGOTIATIONS;

5) TO ASK FOR OR ACCEPT NEGOTIATION OR ATTORNEY’S FEES FROM EMPLOYERS AS

PART OF THE SETTLEMENT OF ANY ISSUE IN COLLECTIVE BARGAINING OR ANY OTHER
DISPUTE; OR

6) TO VIOLATE A COLLECTIVE BARGAINING AGREEMENT.

THE PROVISIONS OF THE PRECEDING PARAGRAPH NOTWITHSTANDING, ONLY THE OFFICERS,

MEMBERS OF GOVERNING BOARDS, REPRESENTATIVES OR AGENTS OR MEMBERS OF LABOR
ASSOCIATIONS OR ORGANIZATIONS WHO HAVE ACTUALLY PARTICIPATED IN, AUTHORIZED OR
RATIFIED UNFAIR LABOR PRACTICES SHALL BE HELD CRIMINALLY LIABLE. (AS AMENDED BY
BATAS PAMBANSA BILANG 130, AUGUST 21, 1981)

UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

Featherbedding – name given to employee practices which create or spread employment by “unnecessarily” maintaining or increasing the number of employees used, or the amount of time consumed to work
on a particular job.

1. to ask for or accept negotiations or attorney’s fees from employers as part of the settlement

2. to violate the CBA

STRIKES AND LOCKOUTS

ART. 263. STRIKES, PICKETING AND LOCKOUTS.

a. IT IS THE POLICY OF THE STATE TO ENCOURAGE FREE TRADE UNIONISM AND FREE
COLLECTIVE BARGAINING.

b. WORKERS SHALL HAVE THE RIGHT TO ENGAGE IN CONCERTED ACTIVITIES FOR

PURPOSES OF COLLECTIVE BARGAINING OR FOR THEIR MUTUAL BENEFIT AND PROTECTION.
THE RIGHT OF LEGITIMATE LABOR ORGANIZATIONS TO STRIKE AND PICKET AND OF
EMPLOYERS TO LOCKOUT, CONSISTENT WITH THE NATIONAL INTEREST, SHALL CONTINUE TO
BE RECOGNIZED AND RESPECTED. HOWEVER, NO LABOR UNION MAY STRIKE AND NO
EMPLOYER MAY DECLARE A LOCKOUT ON GROUNDS INVOLVING INTER-UNION AND INTRA-
UNION DISPUTES.

c. IN CASE OF BARGAINING DEADLOCKS, THE DULY CERTIFIED OR RECOGNIZED

BARGAINING AGENT MAY FILE A NOTICE OF STRIKE OR THE EMPLOYER MAY FILE A NOTICE OF
LOCKOUT WITH THE MINISTRY AT LEAST 30 DAY BEFORE THE INTENDED DATE THEREOF. IN
CASES OF UNFAIR LABOR PRACTICE, THE PERIOD OF NOTICE SHALL BE 15 DAYS AND IN THE
ABSENCE OF A DULY CERTIFIED OR RECOGNIZED BARGAINING AGENT, THE NOTICE OF
STRIKE MAY BE FILED BY ANY LEGITIMATE LABOR ORGANIZATION IN BEHALF OF ITS
MEMBERS. HOWEVER, IN CASE OF DISMISSAL FROM EMPLOYMENT OF UNION OFFICERS DULY
ELECTED IN ACCORDANCE WITH THE UNION CONSTITUTION AND BY-LAWS, WHICH MAY
CONSTITUTE UNION BUSTING, WHERE THE EXISTENCE OF THE UNION IS THREATENED, THE
15-DAY COOLING-OFF PERIOD SHALL NOT APPLY AND THE UNION MAY TAKE ACTION
IMMEDIATELY. (AS AMENDED BY EXECUTIVE ORDER NO. 111, DECEMBER 24, 1986)

d. THE NOTICE MUST BE IN ACCORDANCE WITH SUCH IMPLEMENTING RULES AND

REGULATIONS AS THE MINISTER OF LABOR AND EMPLOYMENT MAY PROMULGATE.

e.DURING THE COOLING-OFF PERIOD, IT SHALL BE THE DUTY OF THE MINISTRY TO EXERT ALL
EFFORTS AT MEDIATION AND CONCILIATION TO EFFECT A VOLUNTARY SETTLEMENT. SHOULD
THE DISPUTE REMAIN UNSETTLED UNTIL THE LAPSE OF THE REQUISITE NUMBER OF DAYS
FROM THE MANDATORY FILING OF THE NOTICE, THE LABOR UNION MAY STRIKE OR THE
EMPLOYER MAY DECLARE A LOCKOUT.

f. A DECISION TO DECLARE A STRIKE MUST BE APPROVED BY A MAJORITY OF THE TOTAL

UNION MEMBERSHIP IN THE BARGAINING UNIT CONCERNED, OBTAINED BY SECRET BALLOT IN
MEETINGS OR REFERENDA CALLED FOR THAT PURPOSE. A DECISION TO DECLARE A
LOCKOUT MUST BE APPROVED BY A MAJORITY OF THE BOARD OF DIRECTORS OF THE
CORPORATION OR ASSOCIATION OR OF THE PARTNERS IN A PARTNERSHIP, OBTAINED BY
SECRET BALLOT IN A MEETING CALLED FOR THAT PURPOSE. THE DECISION SHALL BE VALID
FOR THE DURATION OF THE DISPUTE BASED ON SUBSTANTIALLY THE SAME GROUNDS
CONSIDERED WHEN THE STRIKE OR LOCKOUT VOTE WAS TAKEN. THE MINISTRY MAY, AT ITS
OWN INITIATIVE OR UPON THE REQUEST OF ANY AFFECTED PARTY, SUPERVISE THE
CONDUCT OF THE SECRET BALLOTING. IN EVERY CASE, THE UNION OR THE EMPLOYER SHALL
FURNISH THE MINISTRY THE RESULTS OF THE VOTING AT LEAST SEVEN DAYS BEFORE THE
INTENDED STRIKE OR LOCKOUT, SUBJECT TO THE COOLING-OFF PERIOD HEREIN
PROVIDED. (AS AMENDED BY BATAS PAMBANSA BILANG 130, AUGUST 21, 1981 AND FURTHER
AMENDED BY EXECUTIVE ORDER NO. 111, DECEMBER 24, 1986)
g. WHEN, IN HIS OPINION, THERE EXISTS A LABOR DISPUTE CAUSING OR LIKELY TO CAUSE A
STRIKE OR LOCKOUT IN AN INDUSTRY INDISPENSABLE TO THE NATIONAL INTEREST, THE
SECRETARY OF LABOR AND EMPLOYMENT MAY ASSUME JURISDICTION OVER THE DISPUTE
AND DECIDE IT OR CERTIFY THE SAME TO THE COMMISSION FOR COMPULSORY
ARBITRATION. SUCH ASSUMPTION OR CERTIFICATION SHALL HAVE THE EFFECT OF
AUTOMATICALLY ENJOINING THE INTENDED OR IMPENDING STRIKE OR LOCKOUT AS
SPECIFIED IN THE ASSUMPTION OR CERTIFICATION ORDER. IF ONE HAS ALREADY TAKEN
PLACE AT THE TIME OF ASSUMPTION OR CERTIFICATION, ALL STRIKING OR LOCKED OUT
EMPLOYEES SHALL IMMEDIATELY RETURN-TO-WORK AND THE EMPLOYER SHALL
IMMEDIATELY RESUME OPERATIONS AND READMIT ALL WORKERS UNDER THE SAME TERMS
AND CONDITIONS PREVAILING BEFORE THE STRIKE OR LOCKOUT. THE SECRETARY OF LABOR
AND EMPLOYMENT OR THE COMMISSION MAY SEEK THE ASSISTANCE OF LAW ENFORCEMENT
AGENCIES TO ENSURE COMPLIANCE WITH THIS PROVISION AS WELL AS WITH SUCH ORDERS
AS HE MAY ISSUE TO ENFORCE THE SAME.

IN LINE WITH THE NATIONAL CONCERN FOR AND THE HIGHEST RESPECT ACCORDED TO THE
RIGHT OF PATIENTS TO LIFE AND HEALTH, STRIKES AND LOCKOUTS IN HOSPITALS, CLINICS
AND SIMILAR MEDICAL INSTITUTIONS SHALL, TO EVERY EXTENT POSSIBLE, BE AVOIDED, AND
ALL SERIOUS EFFORTS, NOT ONLY BY LABOR AND MANAGEMENT BUT GOVERNMENT AS
WELL, BE EXHAUSTED TO SUBSTANTIALLY MINIMIZE, IF NOT PREVENT, THEIR ADVERSE
EFFECTS ON SUCH LIFE AND HEALTH, THROUGH THE EXERCISE, HOWEVER LEGITIMATE, BY
LABOR OF ITS RIGHT TO STRIKE AND BY MANAGEMENT TO LOCKOUT. IN LABOR DISPUTES
ADVERSELY AFFECTING THE CONTINUED OPERATION OF SUCH HOSPITALS, CLINICS OR
MEDICAL INSTITUTIONS, IT SHALL BE THE DUTY OF THE STRIKING UNION OR LOCKING-OUT
EMPLOYER TO PROVIDE AND MAINTAIN AN EFFECTIVE SKELETAL WORKFORCE OF MEDICAL
AND OTHER HEALTH PERSONNEL, WHOSE MOVEMENT AND SERVICES SHALL BE
UNHAMPERED AND UNRESTRICTED, AS ARE NECESSARY TO INSURE THE PROPER AND
ADEQUATE PROTECTION OF THE LIFE AND HEALTH OF ITS PATIENTS, MOST ESPECIALLY
EMERGENCY CASES, FOR THE DURATION OF THE STRIKE OR LOCKOUT. IN SUCH CASES,
THEREFORE, THE SECRETARY OF LABOR AND EMPLOYMENT MAY IMMEDIATELY ASSUME,
WITHIN TWENTY FOUR (24) HOURS FROM KNOWLEDGE OF THE OCCURRENCE OF SUCH A
STRIKE OR LOCKOUT, JURISDICTION OVER THE SAME OR CERTIFY IT TO THE COMMISSION
FOR COMPULSORY ARBITRATION. FOR THIS PURPOSE, THE CONTENDING PARTIES ARE
STRICTLY ENJOINED TO COMPLY WITH SUCH ORDERS, PROHIBITIONS AND/OR INJUNCTIONS
AS ARE ISSUED BY THE SECRETARY OF LABOR AND EMPLOYMENT OR THE COMMISSION,
UNDER PAIN OF IMMEDIATE DISCIPLINARY ACTION, INCLUDING DISMISSAL OR LOSS OF
EMPLOYMENT STATUS OR PAYMENT BY THE LOCKING-OUT EMPLOYER OF BACKWAGES,
DAMAGES AND OTHER AFFIRMATIVE RELIEF, EVEN CRIMINAL PROSECUTION AGAINST EITHER
OR BOTH OF THEM.

THE FOREGOING NOTWITHSTANDING, THE PRESIDENT OF THE PHILIPPINES SHALL NOT BE

PRECLUDED FROM DETERMINING THE INDUSTRIES THAT, IN HIS OPINION, ARE
INDISPENSABLE TO THE NATIONAL INTEREST, AND FROM INTERVENING AT ANY TIME AND
ASSUMING JURISDICTION OVER ANY SUCH LABOR DISPUTE IN ORDER TO SETTLE OR
TERMINATE THE SAME.
h. BEFORE OR AT ANY STAGE OF THE COMPULSORY ARBITRATION PROCESS, THE PARTIES
MAY OPT TO SUBMIT THEIR DISPUTE TO VOLUNTARY ARBITRATION.

i. THE SECRETARY OF LABOR AND EMPLOYMENT, THE COMMISSION OR THE VOLUNTARY

ARBITRATOR SHALL DECIDE OR RESOLVE THE DISPUTE, AS THE CASE MAY BE. THE DECISION
OF THE PRESIDENT, THE SECRETARY OF LABOR AND EMPLOYMENT, THE COMMISSION OR
THE VOLUNTARY ARBITRATOR SHALL BE FINAL AND EXECUTORY TEN (10) CALENDAR DAYS
AFTER RECEIPT THEREOF BY THE PARTIES. (AS AMENDED BY SECTION 27, REPUBLIC ACT NO.
6715, MARCH 21, 1989)

STRIKE
STRIKE– a cessation of work by employees in an effort to get more favorable terms for
themselves, or as a concerted refusal by employees to do any work for their employer, or to
work at their customary rate of speed, until the object of the strike is attained by the
employer’s granting the demanded concession

Strike Area – the 1establishment, 2warehouses, 3depots, 4plants, 5offices, 6including the sites
or premises used as runaway shops of the employer, 7as well as the immediate vicinity actually
used by picketing strikers in moving to and fro before all points of entrance to and exit from
said establishment

Characteristics of a Strike
1. there is established relationship between the strikers and the person(s) against whom the
strike is called
2. the relationship must be one of employer and employee
3. the existence of a dispute between the parties and the utilization by labor of the weapon of
concerted refusal to work as a means of persuading, or coercing compliance with the working
men’s demands
4. the contention advanced by the workers that although work ceases, the employment
relation is deemed to continue albeit in a state of belligerent suspension
5. there is work stoppage, which stoppage is temporary
6. the work stoppage is done through concerted action of the employees
The STRIKING GROUP IS A LLO and, in case of bargaining deadlock, is the employees’ sole bargaining representative

LOCK OUT
the temporary refusal of an employer to furnish work as a result of an industrial or labor
dispute; an employer’s act excluding employees who are union members form his plant

Requisites of Lock-Out
1. notice of intention to declare a strike/lockout has been filed with the DOLE
2. at least 30 days has elapsed since the filing of the notice before the lockout is declared
3. an impasse has resulted in the negotiations; Other Grounds:
a. in anticipation of a threatened strike, where motivated by economic considerations
b. in response to unprotected strike or walkout
c. in response to a whipsaw strike
4. the strike/lockout is not discriminatory

Kinds of Strikes
1. General Strike – extends over a whole community, province, state or country
2. Local Strike – one undertaken by workers in a particular enterprise, locality or occupation
3. Sit-Down Strike – when a group of employees or other interest in obtaining a certain
objective in a particular business forcibly take over possession of the property of such business,
established themselves within the plant, stop its production and refuse access to the owners or
to the others desiring to work.
4. Slowdown – a willful reduction in the rate of work by a group of employees for the purpose
of restricting the output of the employer (illegal strike)
5. partial strike / quickie strike – intermittent unannounced work stoppage, including
slowdowns, unauthorized extension of rest periods, and walkouts for portions of a shift or for
entire shifts (illegal strike)
6. primary strike – one declared by the employees who have a direct and immediate interest,
whether economic or otherwise, in the subject of the dispute, which exists between them and
their employer
7. secondary strike – refers to a coercive measure adopted by workers against an employer
connected by product or employment with alleged ULP
8. ECONOMIC STRIKE– intended to force wage and other concessions from the employer
which he is not required by law to grant
9. ULP STRIKE– called against ULP of the employer usually for the purpose of making him
desist from further committing such practices

Strike / Lockout may legally be held because of either or both

1. There must be a Labor Dispute – includes any controversy or matter concerning terms and
conditions of employment or the association or representation of persons in negotiating, fixing,
maintaining, changing or arranging the terms and conditions of employment, regardless of
whether the disputants stand in the proximate relations of employer and employee
2. the Grounds must be
a) a CBA deadlock (economic)
b) an ULP act of the employer/union

NOTE:
1. NO UNION may Strike nor Employer declare a lockout on grounds involving inter-union and
intra-union disputes
2. it shall be the duty of the striking union or locking out employer to provide and maintain an
effective skeletal workforce of Medical and Other Health Personnel

Illegal Strikes
1. sympathetic strike
2. welga ng bayan
3. Legality in Strikes: until all the remedies and negotiations looking toward the adjustment or
settlement of labor disputes have been exhausted, the law does not look with favor upon resort
to radical measures, the pernicious consequences of which transcend the rights of the
immediate parties.

Protection to the right to Strike

1. it is generally not subject to labor injunction or restraining order
2. employees may not be discriminated against merely because they have exercised the right
to strike
3. the use of strike-breakers is prohibited
Strike-Breaker – any person who obstructs, impedes, or interferes with by force, violence,
coercion, threats or intimidation any peaceful picketing by employees during any labor
controversy affecting
a. Wages, hours or conditions of work
b. in the exercise of the right of self-organization or Collective Bargaining

4. mere participation in a strike does not sever the employment relationship

Striking Employees – may advice or persuade others to quit work and join in the strike, so long
as contractual rights are not invaded and that they may advice and persuade others not to
engage their services to the employer against whom the strike is directed

STATUS OF STRIKERS
The relationship existing between employer and employee is not necessarily terminated by a
strike BUT is not entitled to Wage during the strike PROVIDED THAT
a) the strike is in connection to a current labor dispute
b) where the strike is the result of ULP

Obligation of the Employer during a legal strike

a) the employer’s obligation to bargain collectively in good faith with his employees continues
notwithstanding the fact that the employees are on strike
b) the employer is under an obligation to reinstate striking employees upon termination of
the strike, without discriminating against those more actively engaged in union activities

Characteristics of an Illegal Strike

1. is contrary to specific prohibition of law
a) Government Employees may not Strike – their redress is to petition the congress for the
betterment of the terms and conditions of employment OR may do so in their FREE TIME
b) Strike must be done only after exhaustion of the Grievance Procedure and After
Arbitration
2. violates specific requirement of law
a) Notice of Strike – Notice in the prescribed form filed with the NCMB (DOLE) by the LLO.
(individual notices to strike did not conform with the notice rule)
b) Decision to declare a Strike (Strike Vote) must be approved by a Majority of the Total
UNION membership in the bargaining unit concerned.
Decision to declare a Lockout must be approved by a majority of the board of directors of the
corporation

Strike Vote Report. The result of the Vote must be submitted to the Minister of Labor within 7
days from the date of voting before the cooling-off period commences. (a strike without SVR is
illegal)

c) Cooling-off Period
Cause of Strike
Cool-off Period
Economic Grounds / Bargaining Deadlock
30 days
ULP Cases
15 days
Union Busting
No cool-off period
Union Busting – dismissal from employment of union officers duly elected where the existence
of the union is threatened

Elements of Union Busting

a) the union officers are being dismissed
b) those officers are the only duly elected in accordance with the union constitution and by-
laws
c) the existence of the union is threatened

3. is declared for an unlawful purpose, such as inducing the employer to commit an ULP
against non-union employees
Lawful Purpose of the Strike
a) Collective Bargaining Deadlock – the situation between the labor and the management of
the company where there is failure in the collective bargaining negotiations resulting in a
stalemate
b) ULP by Employer – Test in determining the existence of ULP
1) objectively, when the strike is declared in protest of ULP which is found to have been
actually committed
2) subjectively, when a strike is declared in protest of what the union believed to be ULP
committed by management, and the circumstances warranted such belief in good faith,
although found subsequently as not committed (Good Faith Strike). This further presupposes
that the procedural requirements have been complied.
b) Union Recognition Strike - to Compel Recognition of and Bargaining with the Majority
Union is VALID. However if there is a strike for union recognition without having proven
majority status, it is INVALID.

Conversion Doctrine – what had begun as a strike over bargaining demands became an ULP
when it prolonged by the union’s vote to protest the employer’s outright termination of strikers
seeking re-instatement

Non-Strikeable Issues
1. Physical rearrangement of office
2. company’s sales evaluation policy
3. salary distortion under the Wage Rationalization Act

4. employs unlawful means in the pursuit of its objective

a) Picketing; No person engaged in picketing shall
1) Commit any act of violence, coercion or intimidation
2) obstruct the free ingress to or egress from the employer’s premises for lawful purposes
3) obstruct public thorough fares
b) Use of Violence, Force or Threat to pursue labor rights

5. is declared in violation of an existing injunction

a) Strike During Arbitration – Illegal
b) Strike During Mediation – illegal
c) Strike in violation of a Court Order – Illegal

National Interest Cases– Automatic Injunction and Return-to-work Order. The President and
the Secretary of Labor shall determine which cases are considered of National Interest and shall
assume jurisdiction. (e.g. Banking, Electric Company, etc.)
a) Assumption of Jurisdiction does not require prior notice to the parties. Necessarily, the
authority to assume jurisdiction over the said labor dispute must include and extend to all
questions and controversies arising therefrom, including cases over which the labor arbiter has
exclusive jurisdiction (Interphil Lab Union v. Interphil Inc)

b) A “national interest” dispute may be certified to the NLRC even before a strike is declared
as long as there is an industrial dispute

c) The issuance of an Assumption or Certification Orders which are executory in character are
to be strictly complied with by the parties. Once an assumption/certification order is issued,
strikes are enjoined, or if one has already taken place, all strikers shall immediately return to
work. (48 hours maximum). It is immediately executory.

d) Defiance of a RTWO is a ground for loss of the employment status of any striking union
officer or member. The moment a worker defies a RTWO, he is deemed to have abandoned his
job; ABAONDONMENT; Requisites:
1) The absence of just and valid cause
2) there is an intention to abandon or defy
3) some overt act from which it may be inferred that the employee has no more interest in
working

e) Voluntary Return to Work – when the officers returned back to work after the strike, such
return did not imply the waiver of the original demands
f) Appeal in cases of Assumption of Jurisdiction.May be appealed to the CA
through certiorari. Example of Grave Abuse of Discretion: when the Secretary imposed a
stipulation which even the union did not ask for.

6. is contrary to an existing agreement, such as a no-strike clause or conclusive arbitration

clause.
Note:
a) Agreement not to strike is only applicable to economic strikes and NOT to ULP strikes.
b) A no-strike clause is binding not only upon the union, but also upon its individual members
PICKETING AND OTHER CONCERTED ACTIONS

Picketing involves the presence of striking workers or their union brothers who pace back and
forth before the place of business of an employer considered “unfair to organized labor,” in the
hope of being able to persuade peacefully other workers not to work in the establishment and
customers not to do business there.

a) Picket without strike – Valid.

b) Picketing at Home – the picketing of a private home in a residential district is generally held
improper even when the pickets are domestic servants
c) Picketing must be peaceful

Other Concerted Activities

1. Collective letter
2. publicity
3. placards and banners
4. speeches, music and broadcasts

BOYCOTT – a combination to harm one person by coercing others to harm him – that is, a
combination of many to cause a loss to one person by causing others, against their will, to
withdraw from him their beneficial business intercourse through threats that unless others do
so, the many will cause similar loss to him or then.

Kinds of Boycott
1. Primary Boycott – applied directly and alone to the offending person by withdrawing from
him all business relations on the part of the organization that initiated the boycott
2. Secondary Boycott – a combination not merely to refrain from dealing with a person, or to
advice or by peaceable means persuade his customers to refrain, but to exercise coercive
pressure upon such customers, actual or prospective, in order to cause them to withhold or
withdraw patronage from him through fear of less or damage to themselves should they deal
with him
Factors to be Considered to Determine the Lawfulness of a Boycott
a) the means and methods employed - only a boycott that is free from violence or
malevolence is held to be lawful
b) the ends intended to be accomplished
1. illegal when its purpose is to require the employer to coerce his employees to pay their
back dues to the union
2. to compel the payment by an employee of a fine or other penalties
3. to compel an employee to refrain from working
4. to compel employment of more help than is necessary
5. to compel one to sign a contract
6. to compel an employer to refrain from issuing new process or machinery

Liability incase of Illegal Boycott: the person as well as all those who have combined against
him is liable PROVIDED there is a causal connection between the acts complained of and the
damage suffered

ART. 264. PROHIBITED ACTIVITIES.

a. NO LABOR ORGANIZATION OR EMPLOYER SHALL DECLARE A STRIKE OR LOCKOUT

WITHOUT FIRST HAVING BARGAINED COLLECTIVELY IN ACCORDANCE WITH TITLE VII OF THIS
BOOK OR WITHOUT FIRST HAVING FILED THE NOTICE REQUIRED IN THE PRECEDING ARTICLE
OR WITHOUT THE NECESSARY STRIKE OR LOCKOUT VOTE FIRST HAVING BEEN OBTAINED
AND REPORTED TO THE MINISTRY.

NO STRIKE OR LOCKOUT SHALL BE DECLARED AFTER ASSUMPTION OF JURISDICTION BY THE

PRESIDENT OR THE MINISTER OR AFTER CERTIFICATION OR SUBMISSION OF THE DISPUTE TO
COMPULSORY OR VOLUNTARY ARBITRATION OR DURING THE PENDENCY OF CASES
INVOLVING THE SAME GROUNDS FOR THE STRIKE OR LOCKOUT.

ANY WORKER WHOSE EMPLOYMENT HAS BEEN TERMINATED AS A CONSEQUENCE OF ANY

UNLAWFUL LOCKOUT SHALL BE ENTITLED TO REINSTATEMENT WITH FULL BACKWAGES. ANY
UNION OFFICER WHO KNOWINGLY PARTICIPATES IN AN ILLEGAL STRIKE AND ANY WORKER
OR UNION OFFICER WHO KNOWINGLY PARTICIPATES IN THE COMMISSION OF ILLEGAL ACTS
DURING A STRIKE MAY BE DECLARED TO HAVE LOST HIS EMPLOYMENT STATUS: PROVIDED,
THAT MERE PARTICIPATION OF A WORKER IN A LAWFUL STRIKE SHALL NOT CONSTITUTE
SUFFICIENT GROUND FOR TERMINATION OF HIS EMPLOYMENT, EVEN IF A REPLACEMENT HAD
BEEN HIRED BY THE EMPLOYER DURING SUCH LAWFUL STRIKE.

b.NO PERSON SHALL OBSTRUCT, IMPEDE, OR INTERFERE WITH, BY FORCE, VIOLENCE,

COERCION, THREATS OR INTIMIDATION, ANY PEACEFUL PICKETING BY EMPLOYEES DURING
ANY LABOR CONTROVERSY OR IN THE EXERCISE OF THE RIGHT TO SELF-ORGANIZATION OR
COLLECTIVE BARGAINING, OR SHALL AID OR ABET SUCH OBSTRUCTION OR INTERFERENCE.
c. NO EMPLOYER SHALL USE OR EMPLOY ANY STRIKE-BREAKER, NOR SHALL ANY PERSON
BE EMPLOYED AS A STRIKE-BREAKER.

d.NO PUBLIC OFFICIAL OR EMPLOYEE, INCLUDING OFFICERS AND PERSONNEL OF THE NEW
ARMED FORCES OF THE PHILIPPINES OR THE INTEGRATED NATIONAL POLICE, OR ARMED
PERSON, SHALL BRING IN, INTRODUCE OR ESCORT IN ANY MANNER, ANY INDIVIDUAL WHO
SEEKS TO REPLACE STRIKERS IN ENTERING OR LEAVING THE PREMISES OF A STRIKE AREA,
OR WORK IN PLACE OF THE STRIKERS. THE POLICE FORCE SHALL KEEP OUT OF THE PICKET
LINES UNLESS ACTUAL VIOLENCE OR OTHER CRIMINAL ACTS OCCUR THEREIN: PROVIDED,
THAT NOTHING HEREIN SHALL BE INTERPRETED TO PREVENT ANY PUBLIC OFFICER FROM
TAKING ANY MEASURE NECESSARY TO MAINTAIN PEACE AND ORDER, PROTECT LIFE AND
PROPERTY, AND/OR ENFORCE THE LAW AND LEGAL ORDER. (AS AMENDED BY EXECUTIVE
ORDER NO. 111, DECEMBER 24, 1986)

e. NO PERSON ENGAGED IN PICKETING SHALL COMMIT ANY ACT OF VIOLENCE, COERCION OR

INTIMIDATION OR OBSTRUCT THE FREE INGRESS TO OR EGRESS FROM THE EMPLOYER’S
PREMISES FOR LAWFUL PURPOSES, OR OBSTRUCT PUBLIC THOROUGHFARES. (AS AMENDED
BY BATAS PAMBANSA BILANG 227, JUNE 1, 1982)

ART. 265. IMPROVED OFFER BALLOTING. IN AN EFFORT TO SETTLE A STRIKE, THE

DEPARTMENT OF LABOR AND EMPLOYMENT SHALL CONDUCT A REFERENDUM BY SECRET
BALLOT ON THE IMPROVED OFFER OF THE EMPLOYER ON OR BEFORE THE 30TH DAY OF THE
STRIKE. WHEN AT LEAST A MAJORITY OF THE UNION MEMBERS VOTE TO ACCEPT THE
IMPROVED OFFER THE STRIKING WORKERS SHALL IMMEDIATELY RETURN TO WORK AND THE
EMPLOYER SHALL THEREUPON READMIT THEM UPON THE SIGNING OF THE AGREEMENT.

IN CASE OF A LOCKOUT, THE DEPARTMENT OF LABOR AND EMPLOYMENT SHALL ALSO

CONDUCT A REFERENDUM BY SECRET BALLOTING ON THE REDUCED OFFER OF THE UNION
ON OR BEFORE THE 30TH DAY OF THE LOCKOUT. WHEN AT LEAST A MAJORITY OF THE BOARD
OF DIRECTORS OR TRUSTEES OR THE PARTNERS HOLDING THE CONTROLLING INTEREST IN
THE CASE OF A PARTNERSHIP VOTE TO ACCEPT THE REDUCED OFFER, THE WORKERS SHALL
IMMEDIATELY RETURN TO WORK AND THE EMPLOYER SHALL THEREUPON READMIT THEM
UPON THE SIGNING OF THE AGREEMENT.(INCORPORATED BY SECTION 28, REPUBLIC ACT NO.
6715, MARCH 21, 1989)
IMPROVED OFFER BALLOTING: in case of a lock-out, the DOLE may conduct referendum by secret balloting on the reduced offer of the union on or before the 30th day of the lockout.

INJUNCTION
ART. 254. INJUNCTION PROHIBITED. NO TEMPORARY OR PERMANENT INJUNCTION OR
RESTRAINING ORDER IN ANY CASE INVOLVING OR GROWING OUT OF LABOR DISPUTES SHALL
BE ISSUED BY ANY COURT OR OTHER ENTITY, EXCEPT AS OTHERWISE PROVIDED IN
ARTICLES 218 AND 264 OF THIS CODE. (AS AMENDED BY BATAS PAMBANSA BILANG 227, JUNE
1, 1982)
GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

ART. 260. GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION. THE PARTIES TO A

COLLECTIVE BARGAINING AGREEMENT SHALL INCLUDE THEREIN PROVISIONS THAT WILL
ENSURE THE MUTUAL OBSERVANCE OF ITS TERMS AND CONDITIONS. THEY SHALL ESTABLISH
A MACHINERY FOR THE ADJUSTMENT AND RESOLUTION OF GRIEVANCES ARISING FROM THE
INTERPRETATION OR IMPLEMENTATION OF THEIR COLLECTIVE BARGAINING AGREEMENT AND
THOSE ARISING FROM THE INTERPRETATION OR ENFORCEMENT OF COMPANY PERSONNEL
POLICIES.

ALL GRIEVANCES SUBMITTED TO THE GRIEVANCE MACHINERY WHICH ARE NOT SETTLED
WITHIN SEVEN (7) CALENDAR DAYS FROM THE DATE OF ITS SUBMISSION SHALL
AUTOMATICALLY BE REFERRED TO VOLUNTARY ARBITRATION PRESCRIBED IN THE
COLLECTIVE BARGAINING AGREEMENT.

FOR THIS PURPOSE, PARTIES TO A COLLECTIVE BARGAINING AGREEMENT SHALL NAME AND
DESIGNATE IN ADVANCE A VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY
ARBITRATORS, OR INCLUDE IN THE AGREEMENT A PROCEDURE FOR THE SELECTION OF
SUCH VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS, PREFERABLY
FROM THE LISTING OF QUALIFIED VOLUNTARY ARBITRATORS DULY ACCREDITED BY THE
BOARD. IN CASE THE PARTIES FAIL TO SELECT A VOLUNTARY ARBITRATOR OR PANEL OF
VOLUNTARY ARBITRATORS, THE BOARD SHALL DESIGNATE THE VOLUNTARY ARBITRATOR OR
PANEL OF VOLUNTARY ARBITRATORS, AS MAY BE NECESSARY, PURSUANT TO THE
SELECTION PROCEDURE AGREED UPON IN THE COLLECTIVE BARGAINING AGREEMENT,
WHICH SHALL ACT WITH THE SAME FORCE AND EFFECT AS IF THE ARBITRATOR OR PANEL OF
ARBITRATORS HAS BEEN SELECTED BY THE PARTIES AS DESCRIBED ABOVE.
ART. 261. JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF VOLUNTARY
ARBITRATORS. THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS
SHALL HAVE ORIGINAL AND EXCLUSIVE JURISDICTION TO HEAR AND DECIDE ALL
UNRESOLVED GRIEVANCES ARISING FROM THE INTERPRETATION OR IMPLEMENTATION OF
THE COLLECTIVE BARGAINING AGREEMENT AND THOSE ARISING FROM THE INTERPRETATION
OR ENFORCEMENT OF COMPANY PERSONNEL POLICIES REFERRED TO IN THE IMMEDIATELY
PRECEDING ARTICLE. ACCORDINGLY, VIOLATIONS OF A COLLECTIVE BARGAINING
AGREEMENT, EXCEPT THOSE WHICH ARE GROSS IN CHARACTER, SHALL NO LONGER BE
TREATED AS UNFAIR LABOR PRACTICE AND SHALL BE RESOLVED AS GRIEVANCES UNDER
THE COLLECTIVE BARGAINING AGREEMENT. FOR PURPOSES OF THIS ARTICLE, GROSS
VIOLATIONS OF COLLECTIVE BARGAINING AGREEMENT SHALL MEAN FLAGRANT AND/OR
MALICIOUS REFUSAL TO COMPLY WITH THE ECONOMIC PROVISIONS OF SUCH AGREEMENT.

THE COMMISSION, ITS REGIONAL OFFICES AND THE REGIONAL DIRECTORS OF THE
DEPARTMENT OF LABOR AND EMPLOYMENT SHALL NOT ENTERTAIN DISPUTES, GRIEVANCES
OR MATTERS UNDER THE EXCLUSIVE AND ORIGINAL JURISDICTION OF THE VOLUNTARY
ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS AND SHALL IMMEDIATELY DISPOSE
AND REFER THE SAME TO THE GRIEVANCE MACHINERY OR VOLUNTARY ARBITRATION
PROVIDED IN THE COLLECTIVE BARGAINING AGREEMENT.

ART. 262. JURISDICTION OVER OTHER LABOR DISPUTES. THE VOLUNTARY ARBITRATOR OR
PANEL OF VOLUNTARY ARBITRATORS, UPON AGREEMENT OF THE PARTIES, SHALL ALSO
HEAR AND DECIDE ALL OTHER LABOR DISPUTES INCLUDING UNFAIR LABOR PRACTICES AND
BARGAINING DEADLOCKS.

ART. 262-A. PROCEDURES. THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY

ARBITRATORS SHALL HAVE THE POWER TO HOLD HEARINGS, RECEIVE EVIDENCES AND TAKE
WHATEVER ACTION IS NECESSARY TO RESOLVE THE ISSUE OR ISSUES SUBJECT OF THE
DISPUTE, INCLUDING EFFORTS TO EFFECT A VOLUNTARY SETTLEMENT BETWEEN PARTIES.

ALL PARTIES TO THE DISPUTE SHALL BE ENTITLED TO ATTEND THE ARBITRATION

PROCEEDINGS. THE ATTENDANCE OF ANY THIRD PARTY OR THE EXCLUSION OF ANY
WITNESS FROM THE PROCEEDINGS SHALL BE DETERMINED BY THE VOLUNTARY ARBITRATOR
OR PANEL OF VOLUNTARY ARBITRATORS. HEARING MAY BE ADJOURNED FOR CAUSE OR
UPON AGREEMENT BY THE PARTIES.
UNLESS THE PARTIES AGREE OTHERWISE, IT SHALL BE MANDATORY FOR THE VOLUNTARY
ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS TO RENDER AN AWARD OR DECISION
WITHIN TWENTY (20) CALENDAR DAYS FROM THE DATE OF SUBMISSION OF THE DISPUTE TO
VOLUNTARY ARBITRATION.

THE AWARD OR DECISION OF THE VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY

ARBITRATORS SHALL CONTAIN THE FACTS AND THE LAW ON WHICH IT IS BASED. IT SHALL BE
FINAL AND EXECUTORY AFTER TEN (10) CALENDAR DAYS FROM RECEIPT OF THE COPY OF
THE AWARD OR DECISION BY THE PARTIES.

UPON MOTION OF ANY INTERESTED PARTY, THE VOLUNTARY ARBITRATOR OR PANEL OF

VOLUNTARY ARBITRATORS OR THE LABOR ARBITER IN THE REGION WHERE THE MOVANT
RESIDES, IN CASE OF THE ABSENCE OR INCAPACITY OF THE VOLUNTARY ARBITRATOR OR
PANEL OF VOLUNTARY ARBITRATORS, FOR ANY REASON, MAY ISSUE A WRIT OF EXECUTION
REQUIRING EITHER THE SHERIFF OF THE COMMISSION OR REGULAR COURTS OR ANY PUBLIC
OFFICIAL WHOM THE PARTIES MAY DESIGNATE IN THE SUBMISSION AGREEMENT TO EXECUTE
THE FINAL DECISION, ORDER OR AWARD.

GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

Generally, a Grievance Machinery should be provided in the CBA on Questions (grievance) of:
a. interpretation or implementation of their CBA
b. those arising from the interpretation or enforcement of company personnel policies
Note:
a. Any issue not settled within 7 days from the date of submission automatically be referred
to Voluntary Arbitrators
b. Bypassing the Grievance Machinery is ULP however, it may be waived.

Temporary / ad hoc Arbitrator – is selected when the dispute is already at hand. Permanent
Arbitrator – one who is selected before the dispute arises

Jurisdiction of Voluntary Arbitrator has original and exclusive jurisdiction over money claims
arising from (Grievances)
1. Contract Negotiation Disputes – disputes as to the terms of a CBA
2. Contract Interpretation Disputes – disputes arising under an existing CBA involving such
matters as the interpretation and application of the contract, or alleged violation of its
provisions including company policies
1) termination disputes, however if there is already an actual termination, the matter falls
with the jurisdiction of the Labor Arbiters
2) CBA violations not constituting ULP
3) Wage distortion issues
2. Upon agreement of the parties, all labor disputes including ULP and Bargaining Deadlocks

How Arbitration is Initiated

2. a submission – Agreement signed by both parties, describing the existing dispute.
3. by a demand or notice invoking a collective agreement arbitration

Authority of an Arbitrator
1. general authority to investigate and hear the case upon notice to the parties and to render
an award based on the contract and record of the case
2. incidental authority to perform all acts, necessary to an adequate discharge of his duties
and responsibilities like setting and conduct of hearing, attendance of witnesses and production
of documents and other evidences, fact-finding and other modes of discovery, reopening of
hearing, etc.
3. special powers in aid of his general contractual authority like the authority to determine
arbitrability of any particular dispute and to modify any provision of existing agreement upon
which a proposed change is submitted for arbitration
4. authority to issue writ of execution
Appeal: Decision of the VA has a 10 calendar day finality (MR may be allowed -A 262-A). there
is no appeal from the decision of the Voluntary Arbitrator, however, when applicable, it may be
brought through Rule 65 certiorari to the CA (Sime Darby Phils v. Magsalin)

Grounds for Certiorari (Continental Marble v. NLRC)

1. want of jurisdiction
2. grave abuse of discretion
3. violation of due process
4. denial of substantial justice
5. erroneous interpretation of the law
Zipper Clause – a stipulation in a CBA 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.

Effect of the CBA

binding upon the Employer and the members of the appropriate bargaining unit even if non-
union members

enforceability of the cba to transferee employer

a) generally, the transfer of interest of the current employer to another, severs employment
relationship between the new party. EXCEPTION: when the transaction is colored or clothed
with bad faith
b) ON Mergers and Consolidation
Mergers – when 2 or more corporations joint into a single corporation which is one of the
merging corporation; the separate existence of the other constituent corporation ceases

Consolidation – when 2 or more corporation joint into an new single corporation; separate
existence of all the constituent corporation ceases, except that of the consolidated corporation

Generally, the surviving or consolidated corporation shall be responsible for all the liabilities
and obligations of each of the constituent corporation

Wiley Doctrine – the surviving or consolidated corporation shall have the duty to bargain, when
there is relevant similarity and continuity of operations across the change in ownership as
evidenced by the wholesale transfer of the smaller corporation’s employees to the larger
corporation’s plant

Substitutionary Doctrine – the employees cannot revoke the validity executed CBA with their
employer by the simple expedient of changing their bargaining agent. They may
however, negotiate the shortening of its period.

ART. 244. RIGHT OF EMPLOYEES IN THE PUBLIC SERVICE. EMPLOYEES OF GOVERNMENT

CORPORATIONS ESTABLISHED UNDER THE CORPORATION CODE SHALL HAVE THE RIGHT TO
ORGANIZE AND TO BARGAIN COLLECTIVELY WITH THEIR RESPECTIVE EMPLOYERS. ALL
OTHER EMPLOYEES IN THE CIVIL SERVICE SHALL HAVE THE RIGHT TO FORM ASSOCIATIONS
FOR PURPOSES NOT CONTRARY TO LAW. (AS AMENDED BY EXECUTIVE ORDER NO. 111,
DECEMBER 24, 1986)

EO 180 – for furtherance and protection of their interest

Declared not negotiable: those that require appropriation of funds

Negotiable: schedule of vacation and other leaves

HIGH LEVEL EMPLOYEE – one whose functions are normally considered policy determining, managerial
or whose duties are highly confidential in nature

REGISTRATION: CSC and DOLE. Upon approval of the application, a registration certificate shall be
issued to the organization

Remedies in Labor Disputes

1. Grievance Procedure in the CBA

2. Conciliation – 3rd party meets with employer and labor and aids in reaching an agreement
3. Mediation – 3rd party studies each side and makes proposals (cannot render an award or
decision)
4. Enforcement or compliance order – an act of the Secretary in the exercise of his visitorial
power
5. Certification of Bargaining Representatives – determination of which contending unions
shall represent employees in Collective Bargaining (handled by Med-Arbiters of the DOLE
Regional Offices after certification of consent elections)
6. Arbitration - submission of a dispute to an impartial person for determination on the basis
of evidence and arguments of the parties.
Voluntary Arbitration – if the submission of dispute is by agreement of the parties and the
arbitrators or panel of arbitrators is chosen by them
(more elaborate discussion further in the material)

Compulsory Arbitration – if submission of the dispute is by directive of law to the Labor

Arbiters of the NLRC
7. Assumption of jurisdiction by the Secretary
(among others)
POWERS AND DUTIES

ART. 217. JURISDICTION OF THE LABOR ARBITERS AND THE COMMISSION.

a. EXCEPT AS OTHERWISE PROVIDED UNDER THIS CODE, THE LABOR ARBITERS SHALL
HAVE ORIGINAL AND EXCLUSIVE JURISDICTION TO HEAR AND DECIDE, WITHIN THIRTY (30)
CALENDAR DAYS AFTER THE SUBMISSION OF THE CASE BY THE PARTIES FOR DECISION
WITHOUT EXTENSION, EVEN IN THE ABSENCE OF STENOGRAPHIC NOTES, 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 THE EMPLOYER-EMPLOYEE RELATIONS;

5. CASES ARISING FROM ANY VIOLATION OF ARTICLE 264 OF THIS CODE, INCLUDING
QUESTIONS INVOLVING THE LEGALITY OF STRIKES AND LOCKOUTS; AND

6. EXCEPT CLAIMS FOR EMPLOYEES COMPENSATION, 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) REGARDLESS OF
WHETHER ACCOMPANIED WITH A CLAIM FOR REINSTATEMENT.

b. THE COMMISSION SHALL HAVE EXCLUSIVE APPELLATE JURISDICTION OVER ALL CASES
DECIDED BY LABOR ARBITERS.

c. CASES ARISING FROM THE INTERPRETATION OR IMPLEMENTATION OF COLLECTIVE

BARGAINING AGREEMENTS AND THOSE ARISING FROM THE INTERPRETATION OR
ENFORCEMENT OF COMPANY PERSONNEL POLICIES SHALL BE DISPOSED OF BY THE LABOR
ARBITER BY REFERRING THE SAME TO THE GRIEVANCE MACHINERY AND VOLUNTARY
ARBITRATION AS MAY BE PROVIDED IN SAID AGREEMENTS. (AS AMENDED BY SECTION 9,
REPUBLIC ACT NO. 6715, MARCH 21, 1989)
JURISDICTION OF LABOR ARBITERS

What is the nature of jurisdiction of Labor Arbiters?

The jurisdiction is original and exclusive in nature.

Labor Arbiters have no appellate jurisdiction.

What are the money claims over which Labor Arbiters have jurisdiction?

Money claims falling within the original and exclusive jurisdiction of the Labor Arbiters may be classified as follows:
1. any money claim, regardless of amount, accompanied with a claim for reinstatement (which involves a termination case); or

2. any money claim, regardless of whether accompanied with a claim for reinstatement, exceeding the amount of P5,000.00 per claimant (which does not necessarily involve termination of employment).

 Money claims must have arisen from employment or some aspect or incident of such relationship (San Miguel Corp. vs. NLRC – implied and innominate contract)

Do Labor Arbiters have jurisdiction over wage distortion cases?

YES, only in unorganized establishments. In organized establishments, jurisdiction is vested with Voluntary Arbitrators. (Art. 124, par.5)

Do Labor Arbiters have jurisdiction over money claims of Overseas Filipino Workers (OFWs)?

YES. Those arising from 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.

(NOTE: The POEA continues to have jurisdiction over recruitment or pre-employment cases which are administrative in nature, involving or arising out of recruitment laws, rules and regulations, including money claims arising therefrom or
violation of the conditions for issuance of license to recruit workers).

How should the monetary claims of OFWs be computed?

Skippers Pacific, Inc. vs. Mira, et al., (G. R. No. 144314, November 21, 2002) Under Section 10, Republic Act No. 8042, the claim for unpaid salaries of overseas workers should be whichever is less between salaries for unexpired portion of the contract or 3
months for every year of the remaining unexpired portion of the contract (in case contract is one year or more).

Do Labor Arbiters have jurisdiction over legality of strikes and lockouts?

YES, except in strikes and lockouts in industries indispensable to the national interest, in which case, either NLRC (in certified cases) or DOLE Secretary (in assumed cases) has jurisdiction.

NOTE: Local Water District are quasi-public corporation, employees belong to civil service – dismissal governed by the CSL (PD 198 Provincial Water Utilities Act of 1973)

ART. 218. POWERS OF THE COMMISSION. THE COMMISSION SHALL HAVE THE POWER AND
AUTHORITY:

a. TO PROMULGATE RULES AND REGULATIONS GOVERNING THE HEARING AND DISPOSITION

OF CASES BEFORE IT AND ITS REGIONAL BRANCHES, AS WELL AS THOSE PERTAINING TO ITS
INTERNAL FUNCTIONS AND SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO
CARRY OUT THE PURPOSES OF THIS CODE; (AS AMENDED BY SECTION 10, REPUBLIC ACT NO.
6715, MARCH 21, 1989)

b.TO ADMINISTER OATHS, SUMMON THE PARTIES TO A CONTROVERSY, ISSUE SUBPOENAS

REQUIRING THE ATTENDANCE AND TESTIMONY OF WITNESSES OR THE PRODUCTION OF
SUCH BOOKS, PAPERS, CONTRACTS, RECORDS, STATEMENT OF ACCOUNTS, AGREEMENTS,
AND OTHERS AS MAY BE MATERIAL TO A JUST DETERMINATION OF THE MATTER UNDER
INVESTIGATION, AND TO TESTIFY IN ANY INVESTIGATION OR HEARING CONDUCTED IN
PURSUANCE OF THIS CODE;

c. TO CONDUCT INVESTIGATION FOR THE DETERMINATION OF A QUESTION, MATTER OR

CONTROVERSY WITHIN ITS JURISDICTION, PROCEED TO HEAR AND DETERMINE THE
DISPUTES IN THE ABSENCE OF ANY PARTY THERETO WHO HAS BEEN SUMMONED OR SERVED
WITH NOTICE TO APPEAR, CONDUCT ITS PROCEEDINGS OR ANY PART THEREOF IN PUBLIC OR
IN PRIVATE, ADJOURN ITS HEARINGS TO ANY TIME AND PLACE, REFER TECHNICAL MATTERS
OR ACCOUNTS TO AN EXPERT AND TO ACCEPT HIS REPORT AS EVIDENCE AFTER HEARING
OF THE PARTIES UPON DUE NOTICE, DIRECT PARTIES TO BE JOINED IN OR EXCLUDED FROM
THE PROCEEDINGS, CORRECT, AMEND, OR WAIVE ANY ERROR, DEFECT OR IRREGULARITY
WHETHER IN SUBSTANCE OR IN FORM, GIVE ALL SUCH DIRECTIONS AS IT MAY DEEM
NECESSARY OR EXPEDIENT IN THE DETERMINATION OF THE DISPUTE BEFORE IT, AND
DISMISS ANY MATTER OR REFRAIN FROM FURTHER HEARING OR FROM DETERMINING THE
DISPUTE OR PART THEREOF, WHERE IT IS TRIVIAL OR WHERE FURTHER PROCEEDINGS BY
THE COMMISSION ARE NOT NECESSARY OR DESIRABLE; AND
d.TO HOLD ANY PERSON IN CONTEMPT DIRECTLY OR INDIRECTLY AND IMPOSE APPROPRIATE
PENALTIES THEREFOR IN ACCORDANCE WITH LAW.
A PERSON GUILTY OF MISBEHAVIOR IN THE PRESENCE OF OR SO NEAR THE CHAIRMAN OR
ANY MEMBER OF THE COMMISSION OR ANY LABOR ARBITER AS TO OBSTRUCT OR INTERRUPT
THE PROCEEDINGS BEFORE THE SAME, INCLUDING DISRESPECT TOWARD SAID OFFICIALS,
OFFENSIVE PERSONALITIES TOWARD OTHERS, OR REFUSAL TO BE SWORN, OR TO ANSWER
AS A WITNESS OR TO SUBSCRIBE AN AFFIDAVIT OR DEPOSITION WHEN LAWFULLY REQUIRED
TO DO SO, MAY BE SUMMARILY ADJUDGED IN DIRECT CONTEMPT BY SAID OFFICIALS AND
PUNISHED BY FINE NOT EXCEEDING FIVE HUNDRED PESOS (P500) OR IMPRISONMENT NOT
EXCEEDING FIVE (5) DAYS, OR BOTH, IF IT BE THE COMMISSION, OR A MEMBER THEREOF, OR
BY A FINE NOT EXCEEDING ONE HUNDRED PESOS (P100) OR IMPRISONMENT NOT EXCEEDING
ONE (1) DAY, OR BOTH, IF IT BE A LABOR ARBITER.

THE PERSON ADJUDGED IN DIRECT CONTEMPT BY A LABOR ARBITER MAY APPEAL TO THE
COMMISSION AND THE EXECUTION OF THE JUDGMENT SHALL BE SUSPENDED PENDING THE
RESOLUTION OF THE APPEAL UPON THE FILING BY SUCH PERSON OF A BOND ON CONDITION
THAT HE WILL ABIDE BY AND PERFORM THE JUDGMENT OF THE COMMISSION SHOULD THE
APPEAL BE DECIDED AGAINST HIM. JUDGMENT OF THE COMMISSION ON DIRECT CONTEMPT
IS IMMEDIATELY EXECUTORY AND UNAPPEALABLE. INDIRECT CONTEMPT SHALL BE DEALT
WITH BY THE COMMISSION OR LABOR ARBITER IN THE MANNER PRESCRIBED UNDER RULE 71
OF THE REVISED RULES OF COURT; AND (AS AMENDED BY SECTION 10, REPUBLIC ACT NO.
6715, MARCH 21, 1989)

Do Labor Arbiters have contempt powers?

Yes. However, it must be noted that according to the 2003 case of Land Bank of the Philippines vs. Listana, Sr., [G. R. No. 152611, August 5, 2003], quasi-judicial agencies that have the power to cite persons for indirect contempt pursuant to Rule 71 of the
Rules of Court can only do so by initiating them in the proper Regional Trial Court. It is not within their jurisdiction and competence to decide the indirect contempt cases. These matters are still within the province of the Regional Trial Courts.

e. TO ENJOIN OR RESTRAIN ANY ACTUAL OR THREATENED COMMISSION OF ANY OR ALL

PROHIBITED OR UNLAWFUL ACTS OR TO REQUIRE THE PERFORMANCE OF A PARTICULAR ACT
IN ANY LABOR DISPUTE WHICH, IF NOT RESTRAINED OR PERFORMED FORTHWITH, MAY
CAUSE GRAVE OR IRREPARABLE DAMAGE TO ANY PARTY OR RENDER INEFFECTUAL ANY
DECISION IN FAVOR OF SUCH PARTY: PROVIDED, THAT NO TEMPORARY OR PERMANENT
INJUNCTION IN ANY CASE INVOLVING OR GROWING OUT OF A LABOR DISPUTE AS DEFINED IN
THIS CODE SHALL BE ISSUED EXCEPT AFTER HEARING THE TESTIMONY OF WITNESSES, WITH
OPPORTUNITY FOR CROSS-EXAMINATION, IN SUPPORT OF THE ALLEGATIONS OF A
COMPLAINT MADE UNDER OATH, AND TESTIMONY IN OPPOSITION THERETO, IF OFFERED, AND
ONLY AFTER A FINDING OF FACT BY THE COMMISSION, TO THE EFFECT:

1. THAT PROHIBITED OR UNLAWFUL ACTS HAVE BEEN THREATENED AND WILL BE

COMMITTED AND WILL BE CONTINUED UNLESS RESTRAINED, BUT NO INJUNCTION OR
TEMPORARY RESTRAINING ORDER SHALL BE ISSUED ON ACCOUNT OF ANY THREAT,
PROHIBITED OR UNLAWFUL ACT, EXCEPT AGAINST THE PERSON OR PERSONS, ASSOCIATION
OR ORGANIZATION MAKING THE THREAT OR COMMITTING THE PROHIBITED OR UNLAWFUL
ACT OR ACTUALLY AUTHORIZING OR RATIFYING THE SAME AFTER ACTUAL KNOWLEDGE
THEREOF;
2. THAT SUBSTANTIAL AND IRREPARABLE INJURY TO COMPLAINANT’S PROPERTY WILL
FOLLOW;

3. THAT AS TO EACH ITEM OF RELIEF TO BE GRANTED, GREATER INJURY WILL BE INFLICTED

UPON COMPLAINANT BY THE DENIAL OF RELIEF THAN WILL BE INFLICTED UPON DEFENDANTS
BY THE GRANTING OF RELIEF;

4. THAT COMPLAINANT HAS NO ADEQUATE REMEDY AT LAW; AND

5. THAT THE PUBLIC OFFICERS CHARGED WITH THE DUTY TO PROTECT COMPLAINANT’S
PROPERTY ARE UNABLE OR UNWILLING TO FURNISH ADEQUATE PROTECTION.
SUCH HEARING SHALL BE HELD AFTER DUE AND PERSONAL NOTICE THEREOF HAS BEEN
SERVED, IN SUCH MANNER AS THE COMMISSION SHALL DIRECT, TO ALL KNOWN PERSONS
AGAINST WHOM RELIEF IS SOUGHT, AND ALSO TO THE CHIEF EXECUTIVE AND OTHER PUBLIC
OFFICIALS OF THE PROVINCE OR CITY WITHIN WHICH THE UNLAWFUL ACTS HAVE BEEN
THREATENED OR COMMITTED, CHARGED WITH THE DUTY TO PROTECT COMPLAINANT’S
PROPERTY: PROVIDED, HOWEVER, THAT IF A COMPLAINANT SHALL ALSO ALLEGE THAT,
UNLESS A TEMPORARY RESTRAINING ORDER SHALL BE ISSUED WITHOUT NOTICE, A
SUBSTANTIAL AND IRREPARABLE INJURY TO COMPLAINANT’S PROPERTY WILL BE
UNAVOIDABLE, SUCH A TEMPORARY RESTRAINING ORDER MAY BE ISSUED UPON TESTIMONY
UNDER OATH, SUFFICIENT, IF SUSTAINED, TO JUSTIFY THE COMMISSION IN ISSUING A
TEMPORARY INJUNCTION UPON HEARING AFTER NOTICE. SUCH A TEMPORARY RESTRAINING
ORDER SHALL BE EFFECTIVE FOR NO LONGER THAN TWENTY (20) DAYS AND SHALL BECOME
VOID AT THE EXPIRATION OF SAID TWENTY (20) DAYS. NO SUCH TEMPORARY RESTRAINING
ORDER OR TEMPORARY INJUNCTION SHALL BE ISSUED EXCEPT ON CONDITION THAT
COMPLAINANT SHALL FIRST FILE AN UNDERTAKING WITH ADEQUATE SECURITY IN AN
AMOUNT TO BE FIXED BY THE COMMISSION SUFFICIENT TO RECOMPENSE THOSE ENJOINED
FOR ANY LOSS, EXPENSE OR DAMAGE CAUSED BY THE IMPROVIDENT OR ERRONEOUS
ISSUANCE OF SUCH ORDER OR INJUNCTION, INCLUDING ALL REASONABLE COSTS,
TOGETHER WITH A REASONABLE ATTORNEY’S FEE, AND EXPENSE OF DEFENSE AGAINST THE
ORDER OR AGAINST THE GRANTING OF ANY INJUNCTIVE RELIEF SOUGHT IN THE SAME
PROCEEDING AND SUBSEQUENTLY DENIED BY THE COMMISSION.

THE UNDERTAKING HEREIN MENTIONED SHALL BE UNDERSTOOD TO CONSTITUTE AN

AGREEMENT ENTERED INTO BY THE COMPLAINANT AND THE SURETY UPON WHICH AN
ORDER MAY BE RENDERED IN THE SAME SUIT OR PROCEEDING AGAINST SAID COMPLAINANT
AND SURETY, UPON A HEARING TO ASSESS DAMAGES, OF WHICH HEARING, COMPLAINANT
AND SURETY SHALL HAVE REASONABLE NOTICE, THE SAID COMPLAINANT AND SURETY
SUBMITTING THEMSELVES TO THE JURISDICTION OF THE COMMISSION FOR THAT PURPOSE.
BUT NOTHING HEREIN CONTAINED SHALL DEPRIVE ANY PARTY HAVING A CLAIM OR CAUSE OF
ACTION UNDER OR UPON SUCH UNDERTAKING FROM ELECTING TO PURSUE HIS ORDINARY
REMEDY BY SUIT AT LAW OR IN EQUITY: PROVIDED, FURTHER, THAT THE RECEPTION OF
EVIDENCE FOR THE APPLICATION OF A WRIT OF INJUNCTION MAY BE DELEGATED BY THE
COMMISSION TO ANY OF ITS LABOR ARBITERS WHO SHALL CONDUCT SUCH HEARINGS IN
SUCH PLACES AS HE MAY DETERMINE TO BE ACCESSIBLE TO THE PARTIES AND THEIR
WITNESSES AND SHALL SUBMIT THEREAFTER HIS RECOMMENDATION TO THE COMMISSION.
(AS AMENDED BY SECTION 10, REPUBLIC ACT NO. 6715, MARCH 21, 1989)
JURISDICTION OF THE NLRC

What are the two kinds of jurisdiction of the NLRC?

The National Labor Relations Commission exercises two (2) kinds of jurisdiction:

1. original jurisdiction; and

2. exclusive appellate jurisdiction.

Original jurisdiction.

a. Injunction in ordinary labor disputes to enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith,
may cause grave or irreparable damage to any party.
b. Injunction in strikes or lockouts under Article 264 of the Labor Code.

c. Certified labor disputes causing or likely to cause a strike or lockout in an industry indispensable to the national interest, certified to it by the Secretary of Labor and Employment for compulsory arbitration.

Exclusive appellate jurisdiction.

a. All cases decided by the Labor Arbiters including contempt cases.

b. Cases decided by the DOLE Regional Directors or his duly authorized Hearing Officers (under Article 129) involving recovery of wages, simple money claims and other benefits not exceeding P5,000 and not accompanied by claim for reinstatement.

What is the distinction between the jurisdiction of the Labor Arbiters and the NLRC?

The NLRC has exclusive appellate jurisdiction on all cases decided by the Labor Arbiters. The NLRC does not have original jurisdiction on the cases over which Labor Arbiters have original and exclusive jurisdiction (see above enumeration). If a claim does
not fall within the exclusive original jurisdiction of the Labor Arbiter, the NLRC cannot have appellate jurisdiction thereover.

What is the power to assume jurisdiction or certify "national interest" labor disputes to NLRC?
When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in
an industry indispensable to the national interest, the Secretary of Labor and Employment may assume
jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory
arbitration. (Article 263 [g], Labor Code).

What are the cases falling under the DOLE Secretary's appellate power?
a. Orders issued by the duly authorized representative of the Secretary of Labor and Employment
under Article 128 (Visitorial and Enforcement Power) may be appealed to the latter. (Art. 128).

b. Denial of application for union registration or cancellation of union registration originally rendered by
the Bureau of Labor Relations (BLR) may be appealed to the Secretary of Labor and Employment. (NOTE:
If originally rendered by the Regional Office, appeal should be made to the BLR).

c. Decisions of the Med-Arbiter in certification election cases are appealable to the DOLE Secretary. (Art.
259). (NOTE: Decisions of Med-Arbiters in intra-union disputes are appealable to the BLR).
Do Labor Arbiters have injunction power?
It must be noted that the provision in the 1990 version of the NLRC Rules granting injunction power to
the Labor Arbiters is no longer found in its 2002 version. It is opined that this deletion is correct
since Article 218 of the Labor Code grants injunctive power only to the "Commission" which obviously
refers to the NLRC's various divisions and not to the Labor Arbiter.

What are the money claims falling under the jurisdiction of DOLE Regional Directors?

Under Article 129, the Regional Director or any of the duly authorized hearing officers of DOLE have
jurisdiction over claims for recovery of wages, simple money claims and other benefits, provided that:
1. the claim must arise from employer-employee relationship;
2. the claimant does not seek reinstatement; and
3. the aggregate money claim of each employee does not exceed P5,000.00.

[Distinction of Art. 217, 128, and 129] JURISDICTION OF GRIEVANCE MACHINERY IN THE CBA

What are the cases falling under the jurisdiction of the Grievance Machinery?
Any grievance arising from:
1. the interpretation or implementation of the Collective Bargaining Agreement (CBA); and
2. The interpretation or enforcement of company personnel policies.

(NOTE: All grievances submitted to the grievance machinery which are not settled within seven (7)
calendar days from the date of its submission shall automatically be referred to voluntary arbitration
prescribed in the CBA)

JURISDICTION OF VOLUNTARY ARBITRATORS OR PANEL OF Vas

What are the cases falling under the jurisdiction of the Voluntary Arbitrator or panel of Voluntary
Arbitrators?
The Voluntary Arbitrator (or panel of Voluntary Arbitrators) has original and exclusive jurisdiction over
the following:

1. All unresolved grievances arising from the interpretation or implementation of the collective
bargaining agreement after exhaustion of the grievance procedure; and

2. All unresolved grievances arising from the implementation or interpretation of company personnel
policies. (Article 261).

3. All other labor disputes including unfair labor practices and bargaining deadlocks, upon agreement of
the parties. (Article 262).

How should cases falling under the jurisdiction of the Voluntary Arbitrator but erroneously filed with
the Labor Arbiters or DOLE Regional Offices be processed?
They shall immediately be disposed and referred to the Grievance Machinery or Voluntary Arbitration
provided in the CBA.
In case of conflict, who has jurisdiction over termination disputes, Labor Arbiter or Voluntary
Arbitrator?
ATLAS FARMS, INC. VS. NLRC (G.R. NO. 142244; Nov. 18, 2002) Jurisdiction over termination disputes
belongs to Labor Arbiters and NOT with Grievance Machinery nor Voluntary Arbitrator [cited Maneja vs.
NLRC, 290 SCRA 603, 616, (1998)].
CELESTINO VIVERO VS. COURT OF APPEALS, HAMMONIA MARINE SERVICES, ET AL., (G. R. NO. 138938,
OCTOBER 24, 2000) - Under Article 262, the Voluntary Arbitrator may assume jurisdiction only when
agreed upon by the parties. Policy Instructions No. 56 issued by DOLE Secretary Confesor clarifying the
jurisdiction of Labor Arbiters and Voluntary Arbitrations does not apply. It reiterated the ruling that
dismissal is not a grievable issue.
ART. 219. OCULAR INSPECTION. THE CHAIRMAN, ANY COMMISSIONER, LABOR ARBITER OR THEIR DULY
AUTHORIZED REPRESENTATIVES, MAY, AT ANY TIME DURING WORKING HOURS, CONDUCT AN OCULAR
INSPECTION ON ANY ESTABLISHMENT, BUILDING, SHIP OR VESSEL, PLACE OR PREMISES, INCLUDING
ANY WORK, MATERIAL, IMPLEMENT, MACHINERY, APPLIANCE OR ANY OBJECT THEREIN, AND ASK ANY
EMPLOYEE, LABORER, OR ANY PERSON, AS THE CASE MAY BE, FOR ANY INFORMATION OR DATA
CONCERNING ANY MATTER OR QUESTION RELATIVE TO THE OBJECT OF THE INVESTIGATION.[This power
is not meant to duplicate visitorial-enforcement authority laid down under Art. 128]
ART. 220. COMPULSORY ARBITRATION. THE COMMISSION OR ANY LABOR ARBITER SHALL
HAVE THE POWER TO ASK THE ASSISTANCE OF OTHER GOVERNMENT OFFICIALS AND
QUALIFIED PRIVATE CITIZENS TO ACT AS COMPULSORY ARBITRATORS ON CASES REFERRED
TO THEM AND TO FIX AND ASSESS THE FEES OF SUCH COMPULSORY ARBITRATORS, TAKING
INTO ACCOUNT THE NATURE OF THE CASE, THE TIME CONSUMED IN HEARING THE CASE, THE
PROFESSIONAL STANDING OF THE ARBITRATORS, THE FINANCIAL CAPACITY OF THE PARTIES,
AND THE FEES PROVIDED IN THE RULES OF COURT.] (REPEALED BY SECTION 16, BATAS
PAMBANSA BILANG 130, AUGUST 21, 1981)
ART. 221. TECHNICAL RULES NOT BINDING AND PRIOR RESORT TO AMICABLE
SETTLEMENT. IN ANY PROCEEDING BEFORE THE COMMISSION OR ANY OF THE LABOR
ARBITERS, THE RULES OF EVIDENCE PREVAILING IN COURTS OF LAW OR EQUITY SHALL NOT
BE CONTROLLING AND IT IS THE SPIRIT AND INTENTION OF THIS CODE THAT THE
COMMISSION AND ITS MEMBERS AND THE LABOR ARBITERS SHALL USE EVERY AND ALL
REASONABLE MEANS TO ASCERTAIN THE FACTS IN EACH CASE SPEEDILY AND OBJECTIVELY
AND WITHOUT REGARD TO TECHNICALITIES OF LAW OR PROCEDURE, ALL IN THE INTEREST
OF DUE PROCESS. IN ANY PROCEEDING BEFORE THE COMMISSION OR ANY LABOR ARBITER,
THE PARTIES MAY BE REPRESENTED BY LEGAL COUNSEL BUT IT SHALL BE THE DUTY OF THE
CHAIRMAN, ANY PRESIDING COMMISSIONER OR COMMISSIONER OR ANY LABOR ARBITER TO
EXERCISE COMPLETE CONTROL OF THE PROCEEDINGS AT ALL STAGES.

ANY PROVISION OF LAW TO THE CONTRARY NOTWITHSTANDING, THE LABOR ARBITER SHALL
EXERT ALL EFFORTS TOWARDS THE AMICABLE SETTLEMENT OF A LABOR DISPUTE WITHIN
HIS JURISDICTION ON OR BEFORE THE FIRST HEARING. THE SAME RULE SHALL APPLY TO THE
COMMISSION IN THE EXERCISE OF ITS ORIGINAL JURISDICTION. (AS AMENDED BY SECTION 11,
REPUBLIC ACT NO. 6715, MARCH 21, 1989)

Basis of Decision: submission of position papers, affidavits or documentary evidence

Modicum of admissibility: substantial evidence
Ang Tibay vs. CIR (1940) cardinal primary rights which must be respected even in proceedings of this
character:
1) right to a hearing
2) tribunal must consider the evidence presented
3) decision must be supported by something (evidence)
4) supporting evidence must be substantial
5) decision must be rendered on the evidence presented or at least contained in the record and
disclosed to the parties affected
6) the body or CIR or any of its judges must act on his own independent consideration of the law and
facts, and not simply accept the views of he subordinate in arriving decision
7) decide in such manner that parties can know the various issues involved and the reason for the
decision
ART. 222. APPEARANCES AND FEES.

a. NON-LAWYERS MAY APPEAR BEFORE THE COMMISSION OR ANY LABOR ARBITER ONLY:

1.IF THEY REPRESENT THEMSELVES; OR

2.IF THEY REPRESENT THEIR ORGANIZATION OR MEMBERS THEREOF.

b.NO ATTORNEY’S FEES, NEGOTIATION FEES OR SIMILAR CHARGES OF ANY KIND ARISING
FROM ANY COLLECTIVE BARGAINING AGREEMENT SHALL BE IMPOSED ON ANY INDIVIDUAL
MEMBER OF THE CONTRACTING UNION: PROVIDED, HOWEVER, THAT ATTORNEY’S FEES MAY
BE CHARGED AGAINST UNION FUNDS IN AN AMOUNT TO BE AGREED UPON BY THE PARTIES.
ANY CONTRACT, AGREEMENT OR ARRANGEMENT OF ANY SORT TO THE CONTRARY SHALL BE
NULL AND VOID. (AS AMENDED BY PRESIDENTIAL DECREE NO. 1691, MAY 1, 1980)
APPEAL

ART. 223. APPEAL. DECISIONS, AWARDS, OR ORDERS OF THE LABOR ARBITER ARE FINAL AND
EXECUTORY UNLESS APPEALED TO THE COMMISSION BY ANY OR BOTH PARTIES WITHIN TEN
(10) CALENDAR DAYS FROM RECEIPT OF SUCH DECISIONS, AWARDS, OR ORDERS. SUCH
APPEAL MAY BE ENTERTAINED ONLY ON ANY OF THE FOLLOWING GROUNDS:
a. IF THERE IS PRIMA FACIE EVIDENCE OF ABUSE OF DISCRETION ON THE PART OF THE
LABOR ARBITER;

b. IF THE DECISION, ORDER OR AWARD WASSECURED THROUGH FRAUD OR COERCION,

INCLUDING GRAFT AND CORRUPTION;
c. IF MADE PURELY ON QUESTIONS OF LAW; AND

d. IF SERIOUS ERRORS IN THE FINDINGS OF FACTS ARE RAISED WHICH WOULD CAUSE
GRAVE OR IRREPARABLE DAMAGE OR INJURY TO THE APPELLANT.

IN CASE OF A JUDGMENT INVOLVING A MONETARY AWARD, AN APPEAL BY THE EMPLOYER

MAY BE PERFECTED ONLY UPON THE POSTING OF A CASH OR SURETY BOND ISSUED BY A
REPUTABLE BONDING COMPANY DULY ACCREDITED BY THE COMMISSION IN THE AMOUNT
EQUIVALENT TO THE MONETARY AWARD IN THE JUDGMENT APPEALED FROM.

IN ANY EVENT, THE DECISION OF THE LABOR ARBITER REINSTATING A DISMISSED OR

SEPARATED EMPLOYEE, INSOFAR AS THE REINSTATEMENT ASPECT IS CONCERNED, SHALL
IMMEDIATELY BE EXECUTORY, EVEN PENDING APPEAL. THE EMPLOYEE SHALL EITHER BE
ADMITTED BACK TO WORK UNDER THE SAME TERMS AND CONDITIONS PREVAILING PRIOR TO
HIS DISMISSAL OR SEPARATION OR, AT THE OPTION OF THE EMPLOYER, MERELY
REINSTATED IN THE PAYROLL. THE POSTING OF A BOND BY THE EMPLOYER SHALL NOT STAY
THE EXECUTION FOR REINSTATEMENT PROVIDED HEREIN.

TO DISCOURAGE FRIVOLOUS OR DILATORY APPEALS, THE COMMISSION OR THE LABOR

ARBITER SHALL IMPOSE REASONABLE PENALTY, INCLUDING FINES OR CENSURES, UPON THE
ERRING PARTIES.

IN ALL CASES, THE APPELLANT SHALL FURNISH A COPY OF THE MEMORANDUM OF APPEAL TO
THE OTHER PARTY WHO SHALL FILE AN ANSWER NOT LATER THAN TEN (10) CALENDAR DAYS
FROM RECEIPT THEREOF.

THE COMMISSION SHALL DECIDE ALL CASES WITHIN TWENTY (20) CALENDAR DAYS FROM
RECEIPT OF THE ANSWER OF THE APPELLEE. THE DECISION OF THE COMMISSION SHALL BE
FINAL AND EXECUTORY AFTER TEN (10) CALENDAR DAYS FROM RECEIPT THEREOF BY THE
PARTIES.

ANY LAW ENFORCEMENT AGENCY MAY BE DEPUTIZED BY THE SECRETARY OF LABOR AND
EMPLOYMENT OR THE COMMISSION IN THE ENFORCEMENT OF DECISIONS, AWARDS OR
ORDERS. (AS AMENDED BY SECTION 12, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

APPEALS

What are the modes of appeal from the decisions of the various labor tribunals?

1. DECISION OF LABOR ARBITERS: Appeal from the decision of the Labor Arbiter is brought by ordinary
appeal to the NLRC within ten (10) calendar days from receipt by the party of the decision. From the
decision of the NLRC, there is no appeal. The only way to elevate the case to the Court of Appeals is by
way of the special civil action of certiorari under Rule 65 of the Rules of Civil Procedure. From the ruling
of the Court of the Appeals, it may be elevated to the Supreme Court by way of ordinary appeal under
Rule 45 of the Rules of Civil Procedure. (St. Martin Funeral Home vs. NLRC, et al., G. R. No. 130866,
September 16, 1998).

2. DECISION OF VOLUNTARY ARBITRATORS: The decision of a Voluntary Arbitrator or panel of Voluntary

Arbitrators is appealable by ordinary appeal under Rule 43 of the Rules of Civil Procedure directly to the
Court of Appeals. From the Court of Appeals, the case may be elevated to the Supreme Court by way of
ordinary appeal under the same Rule 45. (Luzon Development Bank vs. Association of Luzon
Development Bank Employees, et al., G. R. No. 120319, October 6, 1995).

3. DECISION OF THE BLR: A. Denial of application for registration of a union. If the denial is issued by the
Regional Office, it may be appealed to the BLR. If the denial is originally made by the BLR, appeal may be
had to the Secretary of Labor and Employment. B. Cancellation of registration of a union. If the
cancellation of union registration is ordered by the Regional Office, the same may be appealed to the
BLR. If the cancellation is done by the BLR in a petition filed directly therewith, the BLR's decision is
appealable to the Secretary of Labor and Employment by ordinary appeal.

The decision of the BLR rendered in its original jurisdiction may be appealed to the Secretary of Labor
and Employment whose decision thereon may only be elevated to the Court of Appeals by way of
certiorari under Rule 65.

The decision of the BLR rendered in its appellate jurisdiction may not be appealed to the Secretary of
Labor and Employment but may be elevated directly to the Court of Appeals by way of certiorari under
Rule 65. (Abbott Laboratories Philippines, Inc. vs. Abbott Laboratories Employees Union, et al., G. R. No.
131374, January 26, 2000).

4. DECISION OF THE MED-ARBITER IN CERTIFICATION ELECTION CASES - The decision is appealable to the
DOLE Secretary of Labor and Employment.

5. DECISION OF THE DOLE REGIONAL DIRECTORS OR HIS DULY AUTHORIZED HEARING OFFICERS UNDER
ARTICLE 129 INVOLVING RECOVERY OF WAGES, SIMPLE MONEY CLAIMS AND OTHER BENEFITS NOT
EXCEEDING P5,000 AND NOT ACCOMPANIED BY CLAIM FOR REINSTATEMENT - The decision is
appealable to the NLRC and not to the DOLE Secretary.

(NOTE: Appeal from CA to SC should be under Rule 45 (Petition for Review on Certiorari) and not Rule
65 (Special Civil Action for Certiorari) - SEA POWER SHIPPING ENTERPRISES, INC. VS. COURT OF
APPEALS, ET AL., G. R. NO. 138270, JUNE 28, 2001)
APPEAL TO THE NLRC FROM DECISIONS OF LABOR ARBITERS
What are the grounds for appeal?

There are four (4) grounds, to wit:

(a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter;
(b) If the decision, order or award was secured through fraud or coercion, including graft and
corruption;
(c) If made purely on questions of law; and
(d) If serious errors in the findings of facts are raised which would cause grave or irreparable damage or
injury to the appellant.

What are the requisites for perfection of appeal?

Requisites for perfection of appeal.

a. the appeal should be filed within the reglementary period;

b. the Memorandum of Appeal should be under oath;
c. payment of appeal fee;
d. posting of cash or surety bond, if judgment involves monetary award; and
e. proof of service to the adverse party.

What is the reglementary period to perfect the appeal?

The reglementary period is ten (10) calendar days.

What is the reinstatement aspect of the Labor Arbiter's decision?

If reinstatement is ordered by the Labor Arbiter in an illegal dismissal case, it is immediately executory
even pending appeal. Such award does not require a writ of execution. In the case of Pioneer Texturizing
Corporation vs. NLRC, et al., 280 SCRA 806 [1997], it is the employer who is duty-bound to inform
employee of the reinstatement (either in the payroll or in the position previously held or in a
substantially equivalent position if no longer available, at the option of the employer). The employee
ordered reinstated need not secure a writ of execution from the Labor Arbiter. If employer refuses to
reinstate, the employee may file a motion to cite the former in contempt. The posting of bond does not
stay reinstatement.

Options of the employer.

The employer is practically left with no effective contra-remedy that may forestall or stay the execution
of a Labor Arbiter's order for immediate reinstatement pending appeal. All that the employer has is to
avail of any of the following options:

1. actual reinstatement of the employee to his work under the same terms and conditions prevailing
prior to his dismissal or separation; or

2. reinstatement of the employee in the payroll of the company, without requiring him to report back to
his work. (Article 223, Labor Code; Zamboanga City Water District vs. Buat, 232 SCRA 587).
Employer has to notify employee of his choice of option.
Having ruled in Pioneer Texturizing [supra] that henceforth, an award or order for reinstatement under
Article 223 is self-executory, the Supreme Court prescribes the procedure to be followed, thus:
"After receipt of the decision or resolution ordering the employee's reinstatement, the employer
has the right to choose whether to re-admit the employee to work under the same terms and
conditions prevailing prior to his dismissal or to reinstate the employee in the payroll. In either
instance, the employer has to inform the employee of his choice. The notification is based on
practical considerations for without notice, the employee has no way of knowing if he has to
report for work or not." [Underscoring supplied]
Failure to exercise option, employer should pay salary.
Failing to exercise any of the options, the employer can be compelled, under pain of contempt, to pay
instead the salary of the employee. The employee should not be left without any remedy in case the
employer unreasonably delays reinstatement. The unjustified refusal of the employer to reinstate an
illegally dismissed employee entitles the employee to payment of his salaries. (Pioneer Texturizing
Corporation vs. NLRC, supra).

The entitlement of the dismissed employee to his salaries occasioned by the unjustified refusal of the
employer to reinstate him becomes effective from the time the employer failed to reinstate him despite
the issuance of a writ of execution. (Roquero vs. Philippine Air Lines, Inc., supra).

Remedy in case of employer's refusal to comply with writ of execution to reinstate is contempt citation.
If despite several writs of execution, the employer still refuses to reinstate the employee, the remedy is
not the grant of additional backwages to serve as damages but to file a motion to cite the employer for
contempt. (Christian Literature Crusade vs. NLRC, 171 SCRA 712, April 10, 1989; See also Industrial and
Transport Equipment, Inc. vs. NLRC, G. R. No. 113592, Jan. 15, 1998).

Reinstatement in case of two successive dismissals.

In Sevilla vs. NLRC, [G. R. No. 108878, Sept. 20, 1994], a case involving two (2) successive dismissals, it
was held that the order of reinstatement pending appeal under Article 223 issued in the first case, shall
apply only to the first case and shall not affect the second dismissal. The Labor Arbiter was correct in
denying the third motion for reinstatement filed by the petitioner (employee) because what she should
have filed was a new complaint based on the second dismissal. The second dismissal gave rise to a new
cause of action. Inasmuch as no new complaint was filed, the Labor Arbiter could not have ruled on the
legality of the second dismissal.

Reinstatement when position already filled up.

If the former position is already filled up, the employee ordered reinstated under Article 223 should be
admitted back to work in a substantially equivalent position. (Medina vs. Consolidated Broadcasting
System [CBS]-DZWX, 222 SCRA 707; Pedroso vs. Castro, 141 SCRA 252 [1986]).

What are the rules in case of appeal involving monetary award?

The following basic principles are worth mentioning:

a. No monetary award, no appeal bond required.

b. Labor Arbiter's decision or order is required to state the amount awarded. If the amount of the
monetary award is not included in the judgment, the appeal bond equivalent to the amount of the
monetary award is not required to be posted. (Orozco vs. The Fifth Division of the Honorable Court of
Appeals, [G. R. No. 155207, April 29, 2005])
c. Cash, property or surety bond is required for perfection of appeal from monetary award. The surety
bond should be issued by an accredited surety company.

d. Bond should be posted within the 10-calendar day reglementary period.

e. Award of moral and exemplary damages and attorney's fees, excluded from computation of bond.

f. If bond is not genuine, appeal is not perfected.

g. Non-posting of bond will not perfect the appeal.

h. Remedy of employee in case employer failed to post bond is to file a motion to dismiss the appeal.

May a Motion to Reduce Bond be filed?

1. Motion to reduce bond may be granted only in meritorious cases such as when the monetary claims
have already prescribed.

2. The filing of a motion to reduce bond does not stop the running of the period to perfect appeal. In
order to effectively stop the running of the period within which to perfect the appeal, the motion to
reduce bond must comply with the requisites that:
1. it should be filed within the reglementary period;
2. it should be based on meritorious grounds; and
3. a reasonable amount of bond in relation to the monetary award should be posted together with
said motion.

The failure to post the bond must be caused by a third party, not by the appellant himself.

In Mary Abigail's Food Services, Inc. vs. CA, G. R. No. 140294, May 9, 2005, it was held that in the cases
where delayed payment of the bond was allowed, the failure to pay was due to the excusable oversight
or error of a third party, that is, the failure of the Labor Arbiter to state in the decision the exact amount
awarded and the inclusion of the bond as a requisite for perfecting an appeal.

Alternative remedy is to pay partial appeal bond while motion to reduce bond is pending with the NLRC.
In the 1998 case of Rosewood Processing, Inc. vs. NLRC, [352 Phil. 1013 (1998)], the petitioner was
declared to have substantially complied with the rules by posting a partial surety bond of fifty thousand
pesos issued by Prudential Guarantee and Assurance, Inc. while its motion to reduce appeal bond was
pending before the NLRC.

The partial payment of bond must be made during the reglementary period.
In Filipinas [Pre-fabricated Bldg.] Systems 'Filsystems,' Inc. vs. NLRC, (G. R. No. 153859, Dec. 11, 2003), it
was held that the partial payment of the bond, in order to forestall the decision of the Labor Arbiter
from becoming final and executory, should be made within the reglementary period. The late filing of
the bond divests the NLRC of its jurisdiction to entertain the appeal since the decision of the Labor
Arbiter has already become final and executory with the lapse of the reglementary period.
.

ART. 224. EXECUTION OF DECISIONS, ORDERS OR AWARDS.

a. THE SECRETARY OF LABOR AND EMPLOYMENT OR ANY REGIONAL DIRECTOR, THE

COMMISSION OR ANY LABOR ARBITER, OR MED-ARBITER OR VOLUNTARY ARBITRATOR MAY,
MOTU PROPRIO OR ON MOTION OF ANY INTERESTED PARTY, ISSUE A WRIT OF EXECUTION ON
A JUDGMENT WITHIN FIVE (5) YEARS FROM THE DATE IT BECOMES FINAL AND EXECUTORY,
REQUIRING A SHERIFF OR A DULY DEPUTIZED OFFICER TO EXECUTE OR ENFORCE FINAL
DECISIONS, ORDERS OR AWARDS OF THE SECRETARY OF LABOR AND EMPLOYMENT OR
REGIONAL DIRECTOR, THE COMMISSION, THE LABOR ARBITER OR MED-ARBITER, OR
VOLUNTARY ARBITRATORS. IN ANY CASE, IT SHALL BE THE DUTY OF THE RESPONSIBLE
OFFICER TO SEPARATELY FURNISH IMMEDIATELY THE COUNSELS OF RECORD AND THE
PARTIES WITH COPIES OF SAID DECISIONS, ORDERS OR AWARDS. FAILURE TO COMPLY WITH
THE DUTY PRESCRIBED HEREIN SHALL SUBJECT SUCH RESPONSIBLE OFFICER TO
APPROPRIATE ADMINISTRATIVE SANCTIONS.

b. THE SECRETARY OF LABOR AND EMPLOYMENT, AND THE CHAIRMAN OF THE COMMISSION
MAY DESIGNATE SPECIAL SHERIFFS AND TAKE ANY MEASURE UNDER EXISTING LAWS TO
ENSURE COMPLIANCE WITH THEIR DECISIONS, ORDERS OR AWARDS AND THOSE OF THE
LABOR ARBITERS AND VOLUNTARY ARBITRATORS, INCLUDING THE IMPOSITION OF
ADMINISTRATIVE FINES WHICH SHALL NOT BE LESS THAN P500.00 NOR MORE THAN
P10,000.00. (AS AMENDED BY SECTION 13, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

ART. 225. CONTEMPT POWERS OF THE SECRETARY OF LABOR. IN THE EXERCISE OF HIS
POWERS UNDER THIS CODE, THE SECRETARY OF LABOR MAY HOLD ANY PERSON IN DIRECT
OR INDIRECT CONTEMPT AND IMPOSE THE APPROPRIATE PENALTIES THEREFOR.
BUREAU OF LABOR RELATIONS

ART. 226. BUREAU OF LABOR RELATIONS. THE BUREAU OF LABOR RELATIONS AND THE
LABOR RELATIONS DIVISIONS IN THE REGIONAL OFFICES OF THE DEPARTMENT OF LABOR,
SHALL HAVE ORIGINAL AND EXCLUSIVE AUTHORITY TO ACT, AT THEIR OWN INITIATIVE OR
UPON REQUEST OF EITHER OR BOTH PARTIES, ON ALL INTER-UNION AND INTRA-UNION
CONFLICTS, AND ALL DISPUTES,GRIEVANCES OR PROBLEMS ARISING FROM OR AFFECTING
LABOR-MANAGEMENT RELATIONS IN ALL WORKPLACES, WHETHER AGRICULTURAL OR NON-
AGRICULTURAL, EXCEPT THOSE ARISING FROM THE IMPLEMENTATION OR INTERPRETATION
OF COLLECTIVE BARGAINING AGREEMENTS WHICH SHALL BE THE SUBJECT OF GRIEVANCE
PROCEDURE AND/OR VOLUNTARY ARBITRATION.
THE BUREAU SHALL HAVE FIFTEEN (15) WORKING DAYS TO ACT ON LABOR CASES BEFORE IT,
SUBJECT TO EXTENSION BY AGREEMENT OF THE PARTIES. (AS AMENDED BY SECTION 14,
REPUBLIC ACT NO. 6715, MARCH 21, 1989).

JURISDICTION OF THE BUREAU OF LABOR RELATIONS (BLR)/MED-ARBITERS

What are the cases falling under the jurisdiction of the BLR?
The BLR has original and exclusive jurisdiction over the following:

1. "Inter-union disputes" or "representation disputes" which refer to cases involving petition for
certification election filed by a duly registered labor organization which is seeking to be recognized as
the sole and exclusive bargaining agent of the rank-and-file employees in the appropriate bargaining
unit of a company, firm or establishment.

2. "Intra-union disputes" or "internal union disputes" which refer to disputes or grievances arising from
any violation of or disagreement over any provision of the constitution and by-laws of the union,
including any violation of the rights and conditions of union membership provided for in the Labor Code.

3. All disputes, grievances or problems arising from or affecting labor-management relations in all
workplaces, except those arising from the interpretation or implementation of the CBA which are
subject of grievance procedure and/or voluntary arbitration.

What are the relevant administrative functions of the BLR?

The BLR has the following administrative functions: (1) registration of labor unions; (2) keeping of
registry of labor unions; and(3) maintenance and custody of CBAs.
ART. 227. COMPROMISE AGREEMENTS. ANY COMPROMISE SETTLEMENT, INCLUDING THOSE
INVOLVING LABOR STANDARD LAWS, VOLUNTARILY AGREED UPON BY THE PARTIES WITH THE
ASSISTANCE OF THE BUREAU OR THE REGIONAL OFFICE OF THE DEPARTMENT OF LABOR,
SHALL BE FINAL AND BINDING UPON THE PARTIES. THE NATIONAL LABOR RELATIONS
COMMISSION OR ANY COURT, SHALL NOT ASSUME JURISDICTION OVER ISSUES INVOLVED
THEREIN EXCEPT IN CASE OF NON-COMPLIANCE THEREOF OR IF THERE IS PRIMA FACIE
EVIDENCE THAT THE SETTLEMENT WAS OBTAINED THROUGH FRAUD, MISREPRESENTATION,
OR COERCION.

ART. 228. INDORSEMENT OF CASES TO LABOR ARBITERS.

a. EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS ARTICLE, THE LABOR ARBITER SHALL
ENTERTAIN ONLY CASES ENDORSED TO HIM FOR COMPULSORY ARBITRATION BY THE
BUREAU OR BY THE REGIONAL DIRECTOR WITH A WRITTEN NOTICE OF SUCH INDORSEMENT
OR NON-INDORSEMENT. THE INDORSEMENT OR NON-INDORSEMENT OF THE REGIONAL
DIRECTOR MAY BE APPEALED TO THE BUREAU WITHIN TEN (10) WORKING DAYS FROM
RECEIPT OF THE NOTICE.
b.THE PARTIES MAY, AT ANY TIME, BY MUTUAL AGREEMENT, WITHDRAW A CASE FROM THE
CONCILIATION SECTION AND JOINTLY SUBMIT IT TO A LABOR ARBITER, EXCEPT DEADLOCKS
IN COLLECTIVE BARGAINING.] (REPEALED BY SECTION 16, BATAS PAMBANSA BILANG 130,
AUGUST 21, 1981)
ART. 229. ISSUANCE OF SUBPOENAS. THE BUREAU SHALL HAVE THE POWER TO REQUIRE
THE APPEARANCE OF ANY PERSON OR THE PRODUCTION OF ANY PAPER, DOCUMENT OR
MATTER RELEVANT TO A LABOR DISPUTE UNDER ITS JURISDICTION, EITHER AT THE REQUEST
OF ANY INTERESTED PARTY OR AT ITS OWN INITIATIVE.

ART. 230. APPOINTMENT OF BUREAU PERSONNEL. THE SECRETARY OF LABOR AND

EMPLOYMENT MAY APPOINT, IN ADDITION TO THE PRESENT PERSONNEL OF THE BUREAU
AND THE INDUSTRIAL RELATIONS DIVISIONS, SUCH NUMBER OF EXAMINERS AND OTHER
ASSISTANTS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSE OF THE CODE. (AS
AMENDED BY SECTION 15, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

ART. 231. REGISTRY OF UNIONS AND FILE OF COLLECTIVE BARGAINING AGREEMENTS. THE
BUREAU SHALL KEEP A REGISTRY OF LEGITIMATE LABOR ORGANIZATIONS. THE BUREAU
SHALL ALSO MAINTAIN A FILE OF ALL COLLECTIVE BARGAINING AGREEMENTS AND OTHER
RELATED AGREEMENTS AND RECORDS OF SETTLEMENT OF LABOR DISPUTES AND COPIES
OF ORDERS AND DECISIONS OF VOLUNTARY ARBITRATORS. THE FILE SHALL BE OPEN AND
ACCESSIBLE TO INTERESTED PARTIES UNDER CONDITIONS PRESCRIBED BY THE SECRETARY
OF LABOR AND EMPLOYMENT, PROVIDED THAT NO SPECIFIC INFORMATION SUBMITTED IN
CONFIDENCE SHALL BE DISCLOSED UNLESS AUTHORIZED BY THE SECRETARY, OR WHEN IT
IS AT ISSUE IN ANY JUDICIAL LITIGATION, OR WHEN PUBLIC INTEREST OR NATIONAL
SECURITY SO REQUIRES.

WITHIN THIRTY (30) DAYS FROM THE EXECUTION OF A COLLECTIVE BARGAINING AGREEMENT,
THE PARTIES SHALL SUBMIT COPIES OF THE SAME DIRECTLY TO THE BUREAU OR THE
REGIONAL OFFICES OF THE DEPARTMENT OF LABOR AND EMPLOYMENT FOR REGISTRATION,
ACCOMPANIED WITH VERIFIED PROOFS OF ITS POSTING IN TWO CONSPICUOUS PLACES IN
THE PLACE OF WORK AND RATIFICATION BY THE MAJORITY OF ALL THE WORKERS IN THE
BARGAINING UNIT. THE BUREAU OR REGIONAL OFFICES SHALL ACT UPON THE APPLICATION
FOR REGISTRATION OF SUCH COLLECTIVE BARGAINING AGREEMENT WITHIN FIVE (5)
CALENDAR DAYS FROM RECEIPT THEREOF. THE REGIONAL OFFICES SHALL FURNISH THE
BUREAU WITH A COPY OF THE COLLECTIVE BARGAINING AGREEMENT WITHIN FIVE (5) DAYS
FROM ITS SUBMISSION.

THE BUREAU OR REGIONAL OFFICE SHALL ASSESS THE EMPLOYER FOR EVERY COLLECTIVE
BARGAINING AGREEMENT A REGISTRATION FEE OF NOT LESS THAN ONE THOUSAND PESOS
(P1,000.00) OR IN ANY OTHER AMOUNT AS MAY BE DEEMED APPROPRIATE AND NECESSARY
BY THE SECRETARY OF LABOR AND EMPLOYMENT FOR THE EFFECTIVE AND EFFICIENT
ADMINISTRATION OF THE VOLUNTARY ARBITRATION PROGRAM. ANY AMOUNT COLLECTED
UNDER THIS PROVISION SHALL ACCRUE TO THE SPECIAL VOLUNTARY ARBITRATION FUND.

THE BUREAU SHALL ALSO MAINTAIN A FILE AND SHALL UNDERTAKE OR ASSIST IN THE
PUBLICATION OF ALL FINAL DECISIONS, ORDERS AND AWARDS OF THE SECRETARY OF
LABOR AND EMPLOYMENT, REGIONAL DIRECTORS AND THE COMMISSION. (AS AMENDED BY
SECTION 15, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

ART. 232. PROHIBITION ON CERTIFICATION ELECTION. THE BUREAU SHALL NOT ENTERTAIN
ANY PETITION FOR CERTIFICATION ELECTION OR ANY OTHER ACTION WHICH MAY DISTURB
THE ADMINISTRATION OF DULY REGISTERED EXISTING COLLECTIVE BARGAINING
AGREEMENTS AFFECTING THE PARTIES EXCEPT UNDER ARTICLES 253, 253-A AND 256 OF THIS
CODE. (AS AMENDED BY SECTION 15, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

ART. 233. PRIVILEGED COMMUNICATION. INFORMATION AND STATEMENTS MADE AT

CONCILIATION PROCEEDINGS SHALL BE TREATED AS PRIVILEGED COMMUNICATION AND
SHALL NOT BE USED AS EVIDENCE IN THE COMMISSION. CONCILIATORS AND SIMILAR
OFFICIALS SHALL NOT TESTIFY IN ANY COURT OR BODY REGARDING ANY MATTERS TAKEN UP
AT CONCILIATION PROCEEDINGS CONDUCTED BY THEM.
POST EMPLOYMENT

TERMINATION OF EMPLOYMENT

ART. 278. COVERAGE. THE PROVISIONS OF THIS TITLE SHALL APPLY TO ALL ESTABLISHMENTS
OR UNDERTAKINGS, WHETHER FOR PROFIT OR NOT.

ART. 279. SECURITY OF TENURE. IN CASES OF REGULAR EMPLOYMENT, THE EMPLOYER

SHALL NOT TERMINATE THE SERVICES OF AN EMPLOYEE EXCEPT FOR A JUST CAUSE OR
WHEN AUTHORIZED BY THIS TITLE. AN EMPLOYEE WHO IS UNJUSTLY DISMISSED FROM WORK
SHALL BE ENTITLED TO REINSTATEMENT WITHOUT LOSS OF SENIORITY RIGHTS AND OTHER
PRIVILEGES AND TO HIS FULL BACKWAGES, INCLUSIVE OF ALLOWANCES, AND TO HIS OTHER
BENEFITS OR THEIR MONETARY EQUIVALENT COMPUTED FROM THE TIME HIS
COMPENSATION WAS WITHHELD FROM HIM UP TO THE TIME OF HIS ACTUAL
REINSTATEMENT. (AS AMENDED BY SECTION 34, REPUBLIC ACT NO. 6715, MARCH 21, 1989)

SECURITY of TENURE
- it pertains to the Constitutional guaranty found in Sec. 3, Art. XIII of the 1987 Constitution that no
employee, whether regular or non-regular shall be terminated without just causes authorized by the law
under Art. 282 and Art. 283 of the Labor Code.
ART. 280. REGULAR AND CASUAL EMPLOYMENT. THE PROVISIONS OF WRITTEN AGREEMENT
TO THE CONTRARY NOTWITHSTANDING AND REGARDLESS OF THE ORAL AGREEMENT OF THE
PARTIES, AN EMPLOYMENT SHALL BE DEEMED TO BE REGULAR WHERE THE EMPLOYEE HAS
BEEN ENGAGED TO PERFORM ACTIVITIES WHICH ARE USUALLY NECESSARY OR DESIRABLE
IN THE USUAL BUSINESS OR TRADE OF THE EMPLOYER, EXCEPT WHERE THE EMPLOYMENT
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
EMPLOYEE OR WHERE THE WORK OR SERVICE TO BE PERFORMED IS SEASONAL IN NATURE
AND THE EMPLOYMENT IS FOR THE DURATION OF THE SEASON.

AN EMPLOYMENT SHALL BE DEEMED TO BE CASUAL IF IT IS NOT COVERED BY THE

PRECEDING PARAGRAPH: PROVIDED, THAT ANY EMPLOYEE WHO HAS RENDERED AT LEAST
ONE YEAR OF SERVICE, WHETHER SUCH SERVICE IS CONTINUOUS OR BROKEN, SHALL BE
CONSIDERED A REGULAR EMPLOYEE WITH RESPECT TO THE ACTIVITY IN WHICH HE IS
EMPLOYED AND HIS EMPLOYMENT SHALL CONTINUE WHILE SUCH ACTIVITY EXISTS.

REGULAR EMPLOYMENT
- the employment is deemed to be regular where the employee has been engaged to perform activities
which are usually necessary or desirablein the usual business or trade of the employer.
- (1) nature of service (2) length of time

CASUAL EMPLOYEE
(2) engaged to perform task which are not necessary and desirable in the usual business or trade of
employer if hired and served of at least one (1) year, continues or not continuous servic

Regular Employees – may not be terminated except for a just or authorized cause. (applies also to non-
regular employees)

Test of Regular Employees Status – where the employee has been engaged to perform activities which
are usually necessary or desirable in the usual business or trade of the employer EXCEPT
1. Project Employee. where the employment has been fixed for a specific project or undertaking the
completion or termination of which has been determined at the time of this engagement of the
employee

NOTE: the length of service of a project employee is NOT the controlling test of employment but
whether or not the employment 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 employee

Indicators that an Employee is Project

a. the duration of the specific undertaking for which the worker is engaged is reasonable
b. such duration as well as the specific work to be performed is defined in an employment agreement
and is made clear to the employee at the time of hiring
c. the work/service performed by the employee is in connection with the particular project for which
he is engaged
d. the employee, while not employed and awaiting engagement, is free to offer his services to any
other employer
e. Note: the termination of his employment is reported to the DOLE within 30 days from his separation
from work using prescribed forms (Phil. National Const. v.NLRC)
f. An undertaking in the employment contract by the employer to pay completion bonus to the
project employee as practiced by most construction companies

Rule on Separation Pay: Project employees are generally NOT entitled to separation Pay. EXCEPT
a) a project employee if separated without cause before the termination of the project is entitled to
separation pay
b) project employees with expired contracts when their services are still needed
Work Pool: if employees in a work pool are not free to engage other transactions, he is a regular
employee, else, he is a project employee

Project Employee = Regular When: Requisites

1) there is a continuous rehiring of project employees even after cessation of a project; and
2) the task performed by the alleged “project employee” are vital, necessary and indispensable to the
usual business or trade of the employer
Effect of Illegal Dismissal= entitled to backwages from the date of their dismissal until reinstatement
without deducting whatever earnings derived elsewhere during the period of illegal dismissal (deducting
the period when there is no project)

2. One Season Employee. where the work or services to be performed is seasonal in nature and the
employment is for the duration of the season

Seasonal employee = Regular Employee

Seasonal employee become regular employees if engaged in more than 1 season. Their employment
between seasons is merely suspended.

3. Seamen. A seafarer is not a regular employee and Filipino seamen are governed by the rule sand
regulations governing overseas employment and the said rules do not provide for separation /
termination pay (Pabl Coyoca v. NLRC)
4. A Radio Officer on board a vessel cannot be considered as a regular employee notwithstanding that
the work he performs is necessary and desirable in the business of the company.

Regular employee by years of Service - any casual employee who has rendered at least 1 year of service
(continuous or broken) shall be considered as Regular Employee with respect to the activity in which he
is employed.

Casual Employees – are employees other than those classified.

ART. 281. PROBATIONARY EMPLOYMENT. PROBATIONARY EMPLOYMENT SHALL NOT EXCEED
SIX (6) MONTHS FROM THE DATE THE EMPLOYEE STARTED WORKING, UNLESS IT IS COVERED
BY AN APPRENTICESHIP AGREEMENT STIPULATING A LONGER PERIOD. THE SERVICES OF AN
EMPLOYEE WHO HAS BEEN ENGAGED ON A PROBATIONARY BASIS MAY BE TERMINATED FOR
A JUST CAUSE OR WHEN HE FAILS TO QUALIFY AS A REGULAR EMPLOYEE IN ACCORDANCE
WITH REASONABLE STANDARDS MADE KNOWN BY THE EMPLOYER TO THE EMPLOYEE AT THE
TIME OF HIS ENGAGEMENT. AN EMPLOYEE WHO IS ALLOWED TO WORK AFTER A
PROBATIONARY PERIOD SHALL BE CONSIDERED A REGULAR EMPLOYEE.

Probationary Employee
Conditions of Probationary Employment
a) employment shall not exceed 6 months from the date of employment UNLESS covered by an
apprenticeship agreement stipulating a longer period
b) the termination shall be
1. for a just cause
2. when he fails to qualify as a regular employee in accordance with reasonable standards made
known by the employer to the employee at the time of his engagement
Limitation for Termination
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 so as to circumvent the
contract or the law
d. there must be no unlawful discrimination in the dismissal
3. a valid dismissal presupposes not only the validity of the cause, but also the validity fo the manner
by which dismissal is done, and failure to prove the observance of due process, taints the dismissal.
(Azcuna Decision Aberdeen Court v. Mateo)

c) considered a regular employee if he has been allowed to work after the final probationary
period. NOTE: There can be NO successive Probations. EXCEPTION: when the extension was made for
the benefit of the employee so that he can qualify.
d) Probation of Teachers the legal requisites for acquisition by a teacher of permanent employment,
or security of tenure are:
1) the teacher is a full-time teacher - one whose total working day is devoted to the school, has no
other regular remunerative employment and is paid on a regular monthly basis regardless of the
number of teaching hours
2) the teacher must have rendered 3 consecutive years of service
3) such service must have been satisfactory
ART. 282. TERMINATION BY EMPLOYER. AN EMPLOYER MAY TERMINATE AN EMPLOYMENT FOR ANY OF
THE FOLLOWING CAUSES:

a. SERIOUS MISCONDUCT OR WILLFUL DISOBEDIENCE BY THE EMPLOYEE OF THE LAWFUL ORDERS

OF HIS EMPLOYER OR REPRESENTATIVE IN CONNECTION WITH HIS WORK;
b. GROSS AND HABITUAL NEGLECT BY THE EMPLOYEE OF HIS DUTIES;

c. FRAUD OR WILLFUL BREACH BY THE EMPLOYEE OF THE TRUST REPOSED IN HIM BY HIS
EMPLOYER OR DULY AUTHORIZED REPRESENTATIVE;

d. COMMISSION OF A CRIME OR OFFENSE BY THE EMPLOYEE AGAINST THE PERSON OF HIS

EMPLOYER OR ANY IMMEDIATE MEMBER OF HIS FAMILY OR HIS DULY AUTHORIZED REPRESENTATIVES;
AND

e. OTHER CAUSES ANALOGOUS TO THE FOREGOING.

TERMINATION BY THE EMPLOYER

Grounds
1. serious misconduct. 1serious misconduct or 2willful disobedience by the employee of the lawful
orders of his employer or representative in connection with his work

Serious Misconduct
a) sexual harassment of a customer or co-employee
b) cheating a customer
c) extramarital relationship of a teacher
d) Immorality – that conduct which is so willful, flagrant or shameless as to show indifference to the
opinion of good and respectable members of the community.
generally, does not justify a discharge therefore unless such conduct is prejudicial or in some way
detrimental to the employer’s interest OR if it amounts to a Criminal Act

Willful Disobedience of Lawful order; Elements

1) the employee’s assailed conduct must have been willful or intentional, the willfulness being
characterized by a “wrongful and perverse attitude”
2) the order Must
a) reasonable and lawful
b) sufficiently known to the employee; and
c) in connection with the duties which the employee has been engaged to discharge
Notes
a. The Disobedience must relate to substantial matters, not merely trivial or unimportant.
b. Violation of a reasonable company rule or regulation
Rule on Transfer: Generally, management has the right to transfer or reassign an employee. The only
limitation on the discretion of management in this regard is the lawfulness and reasonableness.

Rule on Promotion: Promotions may be refused by the employee. There is no law that compels an
employee to accept a promotion, as a promotion is in the nature of a gift or reward, which a person has
a right to refuse.

2. Gross AND Habitual Neglect. gross and habitual neglect by the employee of his duties

Gross Neglect – an absence of that diligence that an ordinarily prudent man would use his own affairs.

Incompetency – Generally, an employee cannot be discharged on the ground of incompentency when

he fails to employ the highest degree of care UNLESS
a. the contract of employment expressly stipulates for such degree of skill and care
b. the employee represents that he possess such skill

Notes
a. abandonment is a form of neglect of duty
Element of Abandonment
1) the failure to report for work or absence without valid or justifiable reason
2) a clear intention to sever the employment relationship
Notes on Abandonment
1) abandonment is a matter of intention; it cannot be inferred or presumed from equivocal acts
2) if an employee who loses no time in protesting his layoff cannot by any reasoning be said to have
abandoned his work
b. Generally, the immediate filing of a complaint for illegal dismissal negates abandonment. EXCEPT:
when it can be inferred by the action of the employee
c. Tardiness and absenteeism are form of neglect of duty

3. Fraud / willful breach. fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative
Fraud – any act, omission, or concealment which involves a breach of legal duty, trust, or confidence
justly reposed and is injurious to another
Guidelines for Loss of Confidence
1) the loss of confidence should not be simulated
2) it should not be used as a subterfuge for causes which are improper, illegal or unjustified
3) it may not be arbitrarily asserted in the face of overwhelming evidence to the contrary
4) it must be genuine, not a mere afterthought to justify earlier action taken in bad faith
5) the employee involved holds a position of trust and confidence; employees are either
a) cases involving employees occupying positions of trust and confidence
b) to those situations where the employee is routinely charged with the care and custody of the
employer’s money or property
Generally, a rank and file employee cannot be dismissed on the ground of Loss of Confidence

Note: the act complained of must be related to the performance of the duties of the employee such as
would show him to be thereby unfit to continue working for the employer

4. crime.commission of a crime or offense by the employee against the person of his employer or any
immediate member of his family or his duly authorized representative; and
Conviction or Prosecution – the conviction of an employee in a criminal case is not indispensable to
warrant his dismissal and the fact that a criminal complaint against the employee has been dropped by
the city fiscal is not binding and conclusive upon the labor tribunal

5. other analogous cases

===============

PROCEDURE FOR TERMINATION OF EMPLOYMENT

Requisites of Valid Termination under Just Causes
1. substantive due process. the dismissal is grounded on any of the Just Causes of the labor code
2. Twin Notice Rule
a. notice of the intention to dismiss, indicating therein his acts or omissions complained therein
b. notice of the decision to dismiss;
Note: VIOLATION of the Twin Notice Rule entitles the Employee. AN investigation does not amount to
notices.
c. indemnity only (nominal damages) in the minimum amount of 20,000 (Agabon Case)

3. procedural due process (PDP). and an ample opportunity to answer and rebut the charges against
him, in between such notices
Ample Opportunity – every kind of assistance that management must accord to the employee to enable
him to prepare adequately for his defense

ART. 283. CLOSURE OF ESTABLISHMENT AND REDUCTION OF PERSONNEL. THE EMPLOYER

MAY ALSO TERMINATE THE EMPLOYMENT OF ANY EMPLOYEE DUE TO THE INSTALLATION OF
LABOR-SAVING DEVICES, REDUNDANCY, RETRENCHMENT TO PREVENT LOSSES OR THE
CLOSING OR CESSATION OF OPERATION OF THE ESTABLISHMENT OR UNDERTAKING UNLESS
THE CLOSING IS FOR THE PURPOSE OF CIRCUMVENTING THE PROVISIONS OF THIS TITLE, BY
SERVING A WRITTEN NOTICE ON THE WORKERS AND THE MINISTRY OF LABOR AND
EMPLOYMENT AT LEAST ONE (1) MONTH BEFORE THE INTENDED DATE THEREOF. IN CASE OF
TERMINATION DUE TO THE INSTALLATION OF LABOR-SAVING DEVICES OR REDUNDANCY, THE
WORKER AFFECTED THEREBY SHALL BE ENTITLED TO A SEPARATION PAY EQUIVALENT TO AT
LEAST HIS ONE (1) MONTH PAY OR TO AT LEAST ONE (1) MONTH PAY FOR EVERY YEAR OF
SERVICE, WHICHEVER IS HIGHER. IN CASE OF RETRENCHMENT TO PREVENT LOSSES AND IN
CASES OF CLOSURES OR CESSATION OF OPERATIONS OF ESTABLISHMENT OR UNDERTAKING
NOT DUE TO SERIOUS BUSINESS LOSSES OR FINANCIAL REVERSES, THE SEPARATION PAY
SHALL BE EQUIVALENT TO ONE (1) MONTH PAY OR AT LEAST ONE-HALF (1/2) MONTH PAY FOR
EVERY YEAR OF SERVICE, WHICHEVER IS HIGHER. A FRACTION OF AT LEAST SIX (6) MONTHS
SHALL BE CONSIDERED ONE (1) WHOLE YEAR.

AUTHORIZED CAUSES OF TERMINATION

a) Installation of Labor-Saving Devices
b) Redundancy– when the services of an employee are in excess of what is reasonably demanded by
the actual requirements of the enterprise. A position is redundant when it is superfluous, and
superfluity of a position or positions could be that result of a number of factors such as 1the overhiring
of workers, 2a decrease in the volume of the business or the 3dropping of a particular line or service
previously manufactured or undertaken by the enterprise.

c) Retrenchment to prevent losses – may be

1. Lack of work
2. business recession
3. fire
4. when the employer is under conservatorship

Requisites of Retrenchment
1. the retrenchment is necessary to prevent losses and such losses are proven; Standards for the
Losses
6) the losses expected should be substantial and nor merely de minimis in extent
7) the substantial loss apprehended must be reasonably imminent, as such imminence can be
perceived objectively and in good faith by the employer
8) it must be reasonably necessary and likely to effectively prevent the expected losses
9) alleged losses if already realized, and the expected imminent losses sough to be forestalled, must be
proven by sufficient and convincing evidence
2. written notice of the employees and to the Department of Labor and Employment at least 1 month
prior to the intended date of retrenchment
3. payment of separation pay equivalent to 1 month or at least ½ month pay for every year of service
which ever is higher
4. the employer exercises its prerogatives to retrench employees in good faith for the advancement of
its interest and not to defeat or circumvent the employee’s right to security of tenure
5. the employer uses fair and reasonable criteria in ascertaining who will be dismissed or retained
among the employees, such as
1) less preferred status (such as temporary employees)
2) efficiency rating
3) seniority
Notes
1. the hiring of additional employees after retrenchment, negates alleged losses
2. Contracting out after retrenchment is valid if done in good faith and to promote economy and
efficiency
3. Temporary Retrenchment – if employee is made to return within 6 months

d) The closing or cessation of operationof the establishment or undertaking UNLESS the closing is for
the purpose of circumventing the provisions of law
Requirements
1. service of a written notice tot eh employees and to the DOLE at least 1 month before the intended
date thereof
2. the cessation of or withdrawal from business operations must be bona fide in character
3. payment to the employees of termination pay amounting to at least ½ month pay for each year of
service or 1 month pay whichever is higher

Note:
1. There can be a closing or cessation of operation even if the business is not suffering any loss.
2. closure not in good faith is ULP
ART. 284. DISEASE AS GROUND FOR TERMINATION. AN EMPLOYER MAY TERMINATE THE SERVICES OF
AN EMPLOYEE WHO HAS BEEN FOUND TO BE SUFFERING FROM ANY DISEASE AND WHOSE CONTINUED
EMPLOYMENT IS PROHIBITED BY LAW OR IS PREJUDICIAL TO HIS HEALTH AS WELL AS TO THE HEALTH
OF HIS CO-EMPLOYEES: PROVIDED, THAT HE IS PAID SEPARATION PAY EQUIVALENT TO AT LEAST ONE
(1) MONTH SALARY OR TO ONE-HALF (1/2) MONTH SALARY FOR EVERY YEAR OF SERVICE, WHICHEVER IS
GREATER, A FRACTION OF AT LEAST SIX (6) MONTHS BEING CONSIDERED AS ONE (1) WHOLE YEAR.

Other Causes
1total and permanent disability of an employee, 2disease not curable in 6 months, 3valid application of
a union security clause, 4expiration of the period in term of employment (among others)

Ailment or Disease
If the employee suffers from a disease and his continued employment is prohibited by law or prejudicial
to his health or to the health of his co-employees, the EMPLOYER shall not terminate UNLESS
a) there is a certification by a competent public health authority
b) that the disease is of such nature or such a stage
c) that it cannot be cured within a period of 6 months even with proper medical treatment

Common to Just and Authorized Cause: No more prior written authority from the secretary is required

PDP Termination due to Just Cause

1. a written notice served on the employee specifying the ground(s) for termination, and giving said
employee reasonable opportunity within which to explain his side
2. a hearing or conference during which the employee concerned, with the assistance of counsel, if
the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut
the evidence presented against him
Substantial Evidence – more than mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion
3. a written notice of termination served on the employee indicating that upon due consideration of
all the circumstances, grounds have been established to justify his termination

PDP Termination due to Authorized Causes

1. service of a written notice to the employee
2. service of notice to the RO of the DOLE
both services at least 30 days before termination, specifying the ground(s) for termination

NOTE on PDP Authorized Causes

a) no hearing is required
b) voluntary arbitration is substantial compliance with the 1-month mandatory notice (only in
authorized causes)

PDP Probationary Employees: it shall be sufficient that a written notice is served the employee within a
reasonable time from the effective date of termination

PREVENTIVE SUSPENSION –
a) only if the employee’s continued employment poses a serious and imminent threat to the life or
property of the employer or of his co-workers
b) maximum period of suspension – 30 days
Violation of the 30-day Maximum: there is constructive dismissal. Constructive Dismissal does not
always involve forthright dismissal or diminution in rank, compensation, benefit and privileges. There
is Constructive Dismissal if an act of clear discrimination, insensibility, or disdain by an employer
becomes so unbearable on the part of the employee that it could foreclose any choice by him except to
forego his continued employment
Constructive Dismissal – quitting when continued employment is rendered impossible, unreasonable or
unlikely as the offer of employment involves a demotion in rank and diminution of pay
c) there is payment of employer’s salary and wages during his suspension

CONSEQUENCES OF TERMINATION
a) Separation Pay – the amount that an employee receives at the time of his severance from the
service and is designed to provide the employee with the wherewithal during the period that he is
looking for another employment
Separation Pay includes not only the basic salary of the employee but also her transportation and
emergency living allowances

RULE ON SEPARATION PAY

Just Causes
Separation pay may be given as a measure of social justice OTHER
1. than serious misconduct OR
2. those reflecting on his moral character
Authorized Cause
Amount of Separation Pay
1. Installation of labor-saving devices
2. Redundancy

At least 1 month pay for every year of service (1 month pay minimum)
1. retrenchment to prevent losses
2. closure or cessation of operations of establishment or undertaking NOT due to serious business
losses or financial reverses
3. Ailment or Disease - a fraction more than 6 month is considered as 1 year

At least ½ month pay for every year of service (1 month pay minimum)
1. Closure of business due to Serious Business Losses or Financial reverses
2. when closure was brought not by a unilateral and voluntary act of the employer but due to the act
of the government
No Separation Fee
Sale of Business in Good Faith: Unless the successor employer employs the employees
Seller pays the separation Fee under Closure NOT due to serious losses

Kinds of Separation Pay

1. authorized cases. separation pay as employer’s statutory obligation in cases of legal termination
due to authorized causes

2. Just causes. separation pay as financial assistance, as an act of social justice even in cases of legal
dismissal by the employer. – Except those involving Serious Misconduct or those Reflecting on his moral
character.
Amount: based on equity on compassionate justice. It rests on the sound judgment of the adjudicating
authority, weighing the peculiar circumstances of each case

3. in lieu of reinstatement. separation pay in lieu of reinstatement in illegal dismissal cases where the
employee is ordered reinstated is not feasible
Examples:
1) when the employee’s position no longer exists,
2) or the company has closed down,
3) or severely strained relations has set in between the parties
Strained Relations – may be invoked only against employees whose positions demand trust and
confidence, or whose differences with their employer are of such nature or degree as to preclude
reinstatement
4) when the employee does not want to be reinstated
Rule: if reinstatement is no longer possible, then there is payment of SEPARATION PAY

4. CBA/Policy. separation pay as an employment benefit granted in the CBA or company policy
Example: Retirement or by virtue of a company policy in other cases.

b) Backwages – the loss of earnings that would have accrued to the dismissed employee during the
period between dismissal and reinstatement
1. Cannot be replaced by Separation pay and is always available when the termination is Illegal or
there is bad faith.
2. Unpaid Salary. Unpaid Salary is not back wage. This refers to payment to services already
rendered.
3. When due but not awarded. Substantive rights like the award of backwages resulting from
illegal disimissal must not be prejudiced by a rigid and technical application of the rule.

Amount:
1. not only the basic salary, but also the regular allowances that he had been receiving such as the
emergency living allowances and the 13th month pay mandated under the law
2. the whole amount of salaries plus all other benefits and bonuses and general increase to which the
latter should have been normally entitled had he not been dismissed

Full Backwages in cases of Illegal Dismissal:

a) 3 years. before RA 6715 or March 21, 1989, the award of backwages is limited to 3 years without
deduction
b) Full (current). if after 3/21/1989, FULL backwages under the Bustamante is applicable up to
Retirement age only
c) Inflation is not applicable without 1agreement by the parties and 2without an official declaration
thereof by competent authority

c) Indemnity (nominal damages) – meant to vindicate or recognize the right of an employee to due
process which has been violated by the employer
Moral Damages – may be awarded
1. to compensate one for diverse injuries such as mental anguish, besmirched reputation, wounded
feelings and social humiliation.
2. It is essential that they have sprung from a wrongful act or omission of the defendant which was
the proximate cause thereof
3. implies a conscious and intentional design to do a wrongful act for a dishonest purpose or some
moral obliquity and must be duly proven

Exemplary Damages – awarded only when dismissal was shown to have been effected in a wanton,
oppressive or malevolent manner (exemplary damages may not be awarded if there is no moral
damages)

Attorney’s Fees – not recoverable where there is no sufficient showing of bad faith on the part of
employer
d) Reinstatement – the normal consequences of a finding that an employee has been illegally
dismissed are that the employee becomes entitled to
1. reinstatement to his former position without loss of seniority rights. In lieu of reinstatement,
separation pay may be awarded.
2. payment of backwages (no backwages if the employer dismissed the employee in good faith
believing the existence of a just or authorized cause.

Notes
1. Salary on Reinstatement – equal to the last salary in that position
2. Order of Reinstatement – the decision of Labor Arbiter reinstating a dismissed employee
is immediately executory (but not self-executory; there must be an order of execution) even while the
case is brought on appeal UNLESS there is a TRO/Injunction issued by the NLRC
Reinstatement may be
a. actual reinstatement
b. Payroll REinstatement. It is grave abuse of discretion when the NLRC orders reinstatement in the
pay-roll only when the facts does not call for it. A strained relationship between the striking employees
and management is NO reason for payroll reinstatement in lieu of actual reinstatement (Azcuna
Decision – Manila Diamond Hotel v. CA)
Valid Reinstatement in Pay-Roll incases of teachers because it would be impracticable to reinstate them
in the middle of the semester (UST v. NLRC)
3. Order of Reinstatement Executed but Reversed on Appeal – the employee is not obliged to
reimburse the Employer of the income he received during the pendency of the case.

e) Persons liable for Wrongful Dismissal

1. Sunio v. NLRC mere ownership by a single stockholder or by another corporation of all or nearly all
of the capital stock of a corporation is not of itself sufficient ground for disregarding the separate
corporate personality
2. Piercing the Corporate Veil. Officers become personally liable – when the corporation is made as a
1shield of fraud or an illegal act or 2as a vehicle for the evasion of an existing obligation, 3the
circumvention of statutes, and or 4to confuse legitimate issues.

Instances when Corporate Fiction is pierced

1. when the directors and trustees or, in appropriate cases, the officers of a corporation:
a. vote for or assent to patently unlawful acts of the corporation
b. act in bad faith or with gross negligence in directing the corporate affairs
c. guilty of conflict of interest to the prejudice of the corporation, its stockholders or members, and
other persons
2. when the director or officer has consented to the issuance of watered stocks or who, having
knowledge thereof, did not forthwith file with the corporate secretary his written objection thereto
3. when a director, trustee or officer has contractually agreed or stipulated to hold himself personally
and solidarily liable with the corporation
4. when a director, trustee or officer is made, by specific provision of law, personally laible for his
corporate actions

f) QUITCLAIMS – Generally, once an employee resigns and executes a quitclaim in favor of the
employee, he is thereby estopped from filing any further money claim against the employer arising from
his employment. EXCEPTIONS:
1. it was done involuntarily EXCEPT when there is a clear proof that the waiver was wangled from an
unsuspecting or gullible person, or the terms of settlement are unconscionable on its face
2. Quitclaims executed by the employees DO NOT estop them from pursuing their claim arising from
the ULP of the employer
3. Quitclaims cannot bar an employee from demanding benefits to which he is legally entitled.
4. generally, a final and executory judgment cannot be compromised UNLESS such compromise is
reasonable and voluntary.

ART. 285. TERMINATION BY EMPLOYEE.

1. AN EMPLOYEE MAY TERMINATE WITHOUT JUST CAUSE THE EMPLOYEE-EMPLOYER

RELATIONSHIP BY SERVING A WRITTEN NOTICE ON THE EMPLOYER AT LEAST ONE (1)
MONTH IN ADVANCE. THE EMPLOYER UPON WHOM NO SUCH NOTICE WAS SERVED
MAY HOLD THE EMPLOYEE LIABLE FOR DAMAGES.
2. AN EMPLOYEE MAY PUT AN END TO THE RELATIONSHIP WITHOUT SERVING ANY
NOTICE ON THE EMPLOYER FOR ANY OF THE FOLLOWING JUST CAUSES:

1. SERIOUS INSULT BY THE EMPLOYER OR HIS REPRESENTATIVE ON THE HONOR AND

PERSON OF THE EMPLOYEE;

2. INHUMAN AND UNBEARABLE TREATMENT ACCORDED THE EMPLOYEE BY THE EMPLOYER

OR HIS REPRESENTATIVE;

3. COMMISSION OF A CRIME OR OFFENSE BY THE EMPLOYER OR HIS REPRESENTATIVE

AGAINST THE PERSON OF THE EMPLOYEE OR ANY OF THE IMMEDIATE MEMBERS OF HIS
FAMILY; AND
4. OTHER CAUSES ANALOGOUS TO ANY OF THE FOREGOING.

TERMINATION BY EMPLOYEE
1. Without Just Cause. By serving a written notice on the employer at least 1 month in advance
Resignation – the voluntary act of an employee who finds himself in a situation where he believes that
personal reason cannot be sacrificed in favor of the exigency of the service, then he has no other choice
but to dissociate himself from his employment.
a) Resignation, once accepted, may not be withdrawn without the consent of the employer
b) Resignation Pay. Generally, there is NO resignation pay UNLESS stipulated in the CBA or is
sanctioned by Employer Practice or Policy
c) Constructive Dismissal – a quitting because continued employment is rendered impossible,
unreasonable or unlikely, as an offer involving a demotion in rank and diminution pay. There is
constructive dismissal when
1) when the status is changed from regular to casual
2) preventive suspension > 30 days is constructive dismissal

2. Just Causes. In case of Just causes, notice is not necessary.

a) serious insult by the employer of his representative on the honor and person of the employee
b) inhuman and unbearable treatment accorded by employee by the employer or his representative
c) commission of a crime or offense by the employer or his representative against the person of the
employee or any of the immediate members of his family
d) other analogous cases
ART. 286. WHEN EMPLOYMENT NOT DEEMED TERMINATED. THE BONA-FIDE SUSPENSION OF
THE OPERATION OF A BUSINESS OR UNDERTAKING FOR A PERIOD NOT EXCEEDING SIX (6)
MONTHS, OR THE FULFILLMENT BY THE EMPLOYEE OF A MILITARY OR CIVIC DUTY SHALL NOT
TERMINATE EMPLOYMENT. IN ALL SUCH CASES, THE EMPLOYER SHALL REINSTATE THE
EMPLOYEE TO HIS FORMER POSITION WITHOUT LOSS OF SENIORITY RIGHTS IF HE INDICATES
HIS DESIRE TO RESUME HIS WORK NOT LATER THAN ONE (1) MONTH FROM THE RESUMPTION
OF OPERATIONS OF HIS EMPLOYER OR FROM HIS RELIEF FROM THE MILITARY OR CIVIC DUTY.

SUSPENSION OF OPERATION
When there is a
a) bona fide suspension of operation for not more than 6 months
b) The fulfillment by the employee of a military or civic duty shall NOT terminate employment. He
must indicate his desire to resume his work not later than 1 month from the resumption of operation
Employees are considered on Floating Status. When the Floating status lasts for more than 6 months,
he may be considered to have been illegally dismissed from service.
RETIREMENT FROM THE SERVICE
ART. 287. RETIREMENT. ANY EMPLOYEE MAY BE RETIRED UPON REACHING THE RETIREMENT
AGE ESTABLISHED IN THE COLLECTIVE BARGAINING AGREEMENT OR OTHER APPLICABLE
EMPLOYMENT CONTRACT.

IN CASE OF RETIREMENT, THE EMPLOYEE SHALL BE ENTITLED TO RECEIVE SUCH

RETIREMENT BENEFITS AS HE MAY HAVE EARNED UNDER EXISTING LAWS AND ANY
COLLECTIVE BARGAINING AGREEMENT AND OTHER AGREEMENTS: PROVIDED, HOWEVER,
THAT AN EMPLOYEE’S RETIREMENT BENEFITS UNDER ANY COLLECTIVE BARGAINING AND
OTHER AGREEMENTS SHALL NOT BE LESS THAN THOSE PROVIDED THEREIN.

IN THE ABSENCE OF A RETIREMENT PLAN OR AGREEMENT PROVIDING FOR RETIREMENT

BENEFITS OF EMPLOYEES IN THE ESTABLISHMENT, AN EMPLOYEE UPON REACHING THE AGE
OF SIXTY (60) YEARS OR MORE, BUT NOT BEYOND SIXTY-FIVE (65) YEARS WHICH IS HEREBY
DECLARED THE COMPULSORY RETIREMENT AGE, WHO HAS SERVED AT LEAST FIVE (5) YEARS
IN THE SAID ESTABLISHMENT, MAY RETIRE AND SHALL BE ENTITLED TO RETIREMENT PAY
EQUIVALENT TO AT LEAST ONE-HALF (1/2) MONTH SALARY FOR EVERY YEAR OF SERVICE, A
FRACTION OF AT LEAST SIX (6) MONTHS BEING CONSIDERED AS ONE WHOLE YEAR.

UNLESS THE PARTIES PROVIDE FOR BROADER INCLUSIONS, THE TERM ‘ONE-HALF (1/2)
MONTH SALARY’ SHALL MEAN FIFTEEN (15) DAYS PLUS ONE-TWELFTH (1/12) OF THE 13TH
MONTH PAY AND THE CASH EQUIVALENT OF NOT MORE THAN FIVE (5) DAYS OF SERVICE
INCENTIVE LEAVES.

RETAIL, SERVICE AND AGRICULTURAL ESTABLISHMENTS OR OPERATIONS EMPLOYING NOT

MORE THAN TEN (10) EMPLOYEES OR WORKERS ARE EXEMPTED FROM THE COVERAGE OF
THIS PROVISION.

VIOLATION OF THIS PROVISION IS HEREBY DECLARED UNLAWFUL AND SUBJECT TO THE

PENAL PROVISIONS UNDER ARTICLE 288 OF THIS CODE.

RETIREMENT FROM SERVICE; Requisites

a) Age – if not fixed by the CBA,
1) if not fixed, 60 to 65 (compulsory) years old
2) in case of underground mining employees, 50 to 60 (compulsory) years old
b) Service. Has served at least 5 years in said establishment
c) Amount:
1) ½ month salary for every year of service (a fraction of at least 6 months being considered as one
whole year
2) 1/12 of the 13th month pay
3) cash equivalent of not more than 5 days of SIL
EXEMPTION:
a) Retail, Service, agricultural establishments or operation employing not more than 10 employees or
workers
b) RA 7641, granting mandatory retirement benefits, shall be given retroactive effect where:
1. the claimant for retirement benefits was still the employee of the employer at the time the statute
took effect; and
2. the claimant was in compliance with the requirements of eligibility under the statute for such
retirement benefits

Retirement – the withdrawal from office, public station, business, occupation or public
duty. Retirement pay and separation pay does not necessarily exclude each other. If Retirement pay is
due, even if there is separation pay for illegal dismissal, the retirement pay would still be paid (Aquino v.
NLRC)

Note: An employee compulsorily retired before the age of retirement can demand both separation pay
and retirement pay under the CBA (S. Villena v. NLRC)