2017 KOKOBar Last Minute Kree [ ccture Series POLYTECHNIC UIOHRSTT. OF HI PHIIPPINES. CRITICAL AREAS IN 2017 LABOR LAW BAR EXAMINATION by: ATTY. VOLTAIRE T. DUANO* CRITICAL ARTICLES: t GENERAL PROVISIONS: Articles 4 and 6 2 BOOK ONE: Anlicies 13, 18, 22, 26, 27,28, 29. 35,38,97,38 and 40 3 BOOK TWO: Articies 58, 89.73.74,78. 4. BOOK THREE: Articies 82 to 88, 93, 97 (1), 100, 105,106-109,113,114,115 124,128. 129,133, 134 to 138, 138 BOOK FOUR: Articies 173 (i J.K 1), 197,198 and 199) 6 BOOK FIVE: Articles 219.224, 225,229.232,233,,240,241,245.248.247 249.250, 263,254,255, 256,257,258 259, 260 263,264, 266,266,267 268 to 272, 273 to 276,278 to 280,284,286 and 280 7. BOOK SIX: Articies 294 10302 & BOOK SEVEN: Articies 305 anu306 2911, 2007, 1995 and 1984 Bar Examinations Workers right to participate in policy and deci: n-making processes Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such ules and regulations as the Secretary of Labor and Employment may promulgate, 10 participate in policy and decision making processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits, gate Republic Act No. 6715, March 25, 1989) and weltare, (Article 267 (255), Labor Code, as amended by Se The right of the workers right fo participate in policy and decisior ig processes affecting their rights and benefits as may be provided by law is the prineipie of co-delermination undar'Brlicle Xi, Section 3 of the 1987 Constitution 2012, 2011, 2008, 2008, 2004, 2003, 2002, 2000, 1898, 1997, 1996, 1995,1994 1991,1902 and 1990 Bar Examination Bar Examinations Defntions ofterms under Anicte 2191212) { "Employes" inctudes any person in the empioy of an employe m shall dot bo limited to the einployses of a particular empioyer, unless the $6 jndividual whose work Nas ceased as a result of or in connection with any current faboi é other substantially equivalent and regliapent (g) ‘Labor organization” megy purpose of collective bargaining or ( “Company union” means any’ by any act defined as unfair labor practice ganization whether or not employed by the employer ()) “Labor dispute" includes any controversy or matter conceming termis and conditions of employment or the association of representation of persons in negotiating, fixing, maintaining, changing or arranging the teams and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and empioyen. {0} “Strike” means any temporary stoppage of work by the concerted action af employees as 2 Iinclustrial of labor dispute, sult of an (P) “Lockout” means any temporary refusal of an employer to furnish work a8 a result of an industrial or labor aispute. (8) ‘Stake area" means the establishment, warehouses, depots, plants or offices, Ineiuciing the sites or premise used as runaway shops, of the employer etruck against, as weil as the immediate vicinity actually used by picketing strikers in moving to and fro before al points of entranve te and exit fram said! establishment (om) “Managerial employee is one wha is vested with the powers or prerogatives to lay down and execute management policies angior to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees, Supervisory empioyens are those who, in the interest of the employer, effectively 1ecommend such managenal actions ifthe exercise of such authority is not merely routinary oF clerical in nature bul requires the use of independent judgment |All emptoyees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book USEC. RYAN L ESTEVEZ, MPP. sory KOROBar Peaject Directorf 2017 KOKO Bar | ast Minute bree Lecture PORYTRCHNICUSIUERSIFY OF HIG RHULEEDISES {(h) “Certification Election” or “Consent Etection" refers fo the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate hargaining unit for purposes of callective bargaining or negotiation, A certification election is ordered by the Department, while @ consent election is voluntarily agraed upon by the parties, with o¢ without the intervention by ihe Department 2009, 2008, 2001 and 1999 Bar Examinations. Status quo of CBA (Automatic Renewal Clause/Evergreen Clauseltiold-over) It shall be the duty of both parties to keep the status quo and fo continue tn full force and effeat the terms anc conditions of the existing agreement during the 60-day period and/or until a naw agreement is reached by the parties, (Article 264 [253], Labor Code). The period of status quo and effectivity of the existing CBA is during the freedom period (60-day period) andéor until a new agreement is reached by the parties, 2012, 2006 and 1998 Bar Examinations Determination of representation status The following are the modes to determine an exclusive bargaining agent Request lor Sole an! Exclusive Bargaining Ayent (SEGA) Ceriication, (Section 1, Rule Vi Book V, ig the Labor Code, as amended by Section 2 of Department Order No. 40-1-15, Series cal 10n. (Section 2, Rule Vil, Book V, Omnibys Rules implementing the Labor Code) R an. (Section 2, Rule X, Book ¥, Omnibus Rules impleriienting the Labor Code) 4. Consent Election (Section 2, Rule Vil, Book V, Omnibus Rules Implementing the€abor Code) §. Re-1un Election, (Section 18, Rule 1% Book V, Omnibus Rules implementing the Labor Code, ps emanded by Department Order No, 40-15, Sovies of 2015), Request for Sole and Exclusive Bargaining Ag@nt (SEBA) Certification Requost for Sole and Exclusive Bargaining Agent (SEBA) Cerification Any lgitimate abororganvzaion may le a request for SEBA Certiteaton so the Fegianal office which Iauegsiscetiate of rejstroton ot cenifeate Srostion ofshareted loca! (Seetion 7, Rute Vi, Book V, Onmnibus Rulesdpleaneniting the Labor Cove, as mended by Section 3 of Department Order No. 40-15, Series of 201 Requirements for reque: c and addross of the requesting togitr a : 8 of the company where it operates (¢} The bargaining unit sought to be fi nployees in the bargaining unit, and {9} The statement of the oxistence/t other 1s A. The certificate of registration as duly certified by the president of the ni af Shactered local as duly certified by the president of the federation of the lo : i 2, Rule Vil, Book V, Omnibus Rules Implementing the Labor Code, as ain ? Request for certification irr ‘organization: validation proceedings "the regional director fnds the establishment unorganized with only one (1) legitimate labor organizaticn, Neishe shall calla conference within v= (5) days for the submission of the foliawing: 9, The names of employees in the covered bargaining unit who signify thelr support for the certification, provided that said employees comprise at laast majarity of the number of employees in the covered bargaining unit, and b. Certification under oath by the president ofthe requesting union oF local that all documents submitted are true and correct based on his/her parsonat knowledge. The submission shail be presumed to bo true and correct unless contested under oath by any member of the bargaining unit during the validation conference. for this purpose, the employer or any representative of the employer shail not be deemed a perty in-interest bul only as a by-stander to the process of cerifialion ifthe requesting union or lucab falls to complele Ue requirements for SEBA Cerifcation during the conference, the request for SEBA Cerifcation shall be veferred to the clection officer for the conduct of election pursuant to rule bof this rules. (Section 4, Rule Vil, Baok V, Omnibus Rules Implementing the Labor Code, as amended by Section 3 of Department Order No. 4041-15, Series of 2015) 2014 and 1999 Bar Examinations ‘Quatification of voters; inclusion-exclusion All employees who are members of the appropriate bargaining unit three (3) months prior to the filing of the petition/request shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the disrnissal in a forum of appropriate jurisdiction at the tims of the issuance of the otder for the conduct of a certification election shall be considered a qualified vot hisher dismissal was declared valid in a tinal judgment at the time of the unless conduct of the certification election. In case of disagreement over the voters’ list ar ver the eligibitiy of voters, all contested voters shall be allowed to vote, But their votes shall be segregated and sealed in individual envelopes in USEC. RYAN 1 ESTEVEZ, MPP 201 KOKO Bar Prnjoet Director1017 KOKOBar Last Minute ree Lecture Series POL MEECHNIC NIERSE IY OF FE PITER DINGS: accordance with Sections 10 and 11 of this Rule, (Section 6, Rule IX, Book V, Omnibus Rules Implementing the Labor Code, as amended/renumbered by Section 19 of Department Order No. 40-1-18, Series of 2015) Re-run Election ~ When a certification, consent or run-off election results to a tle between the two (2) choices, the election offcer shali immediately notily the parties of a re-sun election. the election officer shall cause the posting of the notice of re-run within five (5) days from the certification, consent or run-off election. the re-run election shall be conducted within ten (10) days after the posting of notice. The choise receiving the highest voles, during the re-run election shail be declared the winner and shall be certified accordingly. (Section 18, Rule 1X, Book V, Omnibus Rules implementing the Labor Code, added by Section 16 of Department Order No. 40-1-15, Serias of 2015) 2006 Bar Examination Run-off elections When an election which provides for three (2) or more choices resulls in none af the. contending unions receiving a majority of the valid voles cast, and there are no objections or challenges whieh if sustained can materially alter the resuits, the Election Officer shall motu prope canduct a run-off election within ten. (40) days from the close of the election proceedings between jhe labor unions receiving the two highest cumber of votes; provided, that the total number of votes for all contending unions 1s at least fifty (50%) percent of the number of votes cast, "No Union” shall not be a choice in the run-olf election. (Section 1, Rule X, Book V, Omnibus Rules Implementing the Labor Code) 2015 and 2012 Bar Examinations Instances when no strike of lockout may be declareg"The following are the instances when no sie or lockout may be declared: 1. Violations of collective bargaining agreements, except flagrant and maticious refusal to Comply with ts economic provisions, (Section 5, Rulo XX, BBOk V, Omnibus Feules Implementing the Labor Code! {in colation t0 Article 274 [261)}, Labor Code) 2. No sfrike or lockout may be Gaclared on grounds mvolNg infor union and intra union depts or without fst having Hoa note fo sre or tackout or without the necesoary ste or lockaut vote having been onbtained and reported to the Board. (Section 8, Rule XX, Book V, Omnibus Rules Implementing the Labor Code’ in relation to Articles 276 (by [263 (b)] and 279 (a) (264 (a)j, Labor Code) 2015, 2010 and 2008 Bar Examinations National interest cases When, in hig opinion, out in an industry indispensable, sat jurisdiction aver the dispute and do 278(g) [263(g)], Labor Code) causing oF jikely te cause a strike ar Gr and Empioyment may: 1. Assume Bh for conipulsory arbitration. {Article Assumption by the Sec Implementing the Labor Code iplemening the Labor Code, as amended issued ana amended by Deparimen! Order No. 40-H-13 Serias of 2013 as follows: When a fab Indispensabie to the national interes, the Secretary of CABEPERTEmployment nay assume atecicion over the dispute an decide tor cenify the same 10 the Netionat Labor Relations Commission for compulsory arbitration, provived, that any of the following conditions is present: 1. Both panties havo requested the Secretary of Labor and Employment to assume junsdiction over the fabor dispute; or 2. ARer a conference called by the Ofive of the Secretary of Labor and Employment oo the propriety of its issuance, motu proprio or upon a request or grlion by either panies to the labor Uispute (Section 15, Rule XXIl, Book V, Omnibus Rules Implementing the Labor Code, a amended by Departinent Order No. 40-H-13, Series of 2013) Effects of assumption Such essumption or certification shall Nave the effect of 4, Automaticaly enjoining the intended or impending strike oF ‘ockout as specified in the assumption oF certification cider, 2 fone fias already taken place atthe time of assumption oF certification, all striking or locked out empioyecs shall immediately return-to-work and the employer shall immediately resume operations and readmit ait workers unver the same terms and conditions prevailing before the strike oF lockout; 3. The Secretary of Labor and Employment or the Commission may seek the fassisiance ol law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. (Article 278(g) [263(q)], Labor Code) Industries indispensable to the national interest as interpreted by the Omnibus Rules implementing the Labor Code For the guidance af the workers and employers in the filing of petition for assumption of jurisdiction. the ‘ollowing industflesiservices are hereby recognized as deemed indispensable lo the national inteiest. a Hospital sector: b, Electric power industry; c. Water supply services, to exclude small water supply sevvices such as boiling and refiling stations; d. Air trafic control: and @, Such other industries as maybe recominended by tne national USEC. RV.AN 1. BSTRVEZ, MPP 2017 KOKORar Project Directora 2017 KOKOBar | ast Minute Free Lecture Series ROLWOECHINECE NEVES EY OF FE PHIEIPPINES, ‘ripartite industrial peace counci! (TIPC).” (Section 16, Rule XXil, Book V, Omnibus Rules fmplementing the Labor Code, as amended by Department Order No. 40-H-13, Series of 2012) 2013 and 4999 Bar Examinations. Scope of the “assume jurisdiction” In Tabangao Shel! Refinery Enyployees Association v. Pilipinas Petroleum Corporation, G. R. No. 170007, April 7, 2014 the scope of the “assume jurisdiction” was expiained as follows: Article 263{q) is both an extraordinary and a preemptive power lo address an extraordinary situation -a strike of lockout in an industry indispensable fo the national Interest. This grant is nat limited to the grounds cited in the notice of sirike or lockout thal may have preceded the slvike or fockout; nor is it imited to the tricidants of the strike or leckout that in the meanwhile may have taken place. As the term “assume jurisdiction” conriotes, the intent of the law is to give the Labor Secretary full authanty to resolve alt matters within the dispute thal gave tise 10 or which arose out of the atrike oF ‘ockoult it includes and extends to ait questions and controversies arising from or related to the dispute, including casas ‘over which the labor arbiter has exclusive jurisdiction, (Citation onvitted.) 2015, 2014, 2042, 2010, 2008, 2007, 2006, 1997, 1995 and 1994 Bar Examinations Effects of participation in ilfegal strike and commission of illegat acts during strike The following are the effects of participation in an itiegal strike and commission of tlegal acts during strike: 1 Any union officer who knowingly participates in an illegat strike; and 2, Any worker or union officer who knowingly participates in the cosimission of legal acts during a strike may be deciared to have lost his empioyment slatus, (Third paragraph, Article 279 (2) [264 (a)], Labor Code) 2044, 2042, 2006 and 1995 Bar Examinations Effect of participation in a lawful strike The mece*narticipation of a warker ia a lawlul stike shal not constitute sufficient ground for termination of his employfient, even a replacement had been hired by the ‘employer during such lawful strike. (Third paragraph, Article 279 (a) [264 (a)}, Labor Code} 2014, 2007, 2004, 2001 and 1994 Bar Examinations |) & requirements for a vatid strike, it ma of the Labor Gode, as amended by "es of the Omnibus Rules implement 1) A notice of strike, with the ise lie eopte BOWE IFEROLE, spociically ne Regional Branch of the NCMB, copy furnished the enif nin Pp {be observed balween the ting of notice and the actual execution of tha vs A of unfair labor practice. However, In i iistence is threatened, the cooling-off period need not be observed. xx xx iced, a strike vote should be taken by Secret balloting, with a 24-hour prior notice 3 sike requires the secret-ballot approval cf majority of the total union membershin i if Teported f0 the NCMB at least seven (7) days Dérore Fike or igckout, subject to the cooing-of perioa (National Federation of Labor (NFL) v. NLRC, G.R. No. 113465, December 15, 1997, 283 SCRA 275, 286) lis seltied that these requirements are mandatory in nature and failure to comply therewith renders the strike ilegal. (CCBPI Postmix Workers Union v. NLRC, G.R. No, 114521, November 27, 1998, 299 SCRA 410, 424) 2012, 2009, 2006, 2004, 1999, 1998 and 1994 Bar Examinations Bue process in employment termination The two aspects of due process are the following 1 Substantive, Le, the valid and authorized causes of employment termination under the Labor Code, and procedural, 7 the manner of dismissal; 2. Procedural due process requirements (or dismissal are found in the Implementing Rules of P.D. 442, as amended, otherwise known as the Labor Code of the Philippines in 800k Vi, Rule |, Sec. 2, a8 amended by Department Order Nos, 9 and 10, (Department Order No. 9 took effect on 21 June 1997. Department Order No. 10 took effect on 22 June 1997) Breaches of these duo process requiremenis violate the Labor Code. Therefore statutory due process should be differentiated fram failure 1o comply with constitutional due process (Agabon v. NLRC G.R. No. 158693, November 17,2004) ‘Three types of employees under Article 295 [280] of the Labor Code in Par v. Northern Tobacco Redrying Co., Inc., G, R. No. 199554, February 18, 2015, the Supreme Court discussed that jurisprudence identified three types of employees as follows" Article 280 of the Labor Code and jurisprudence identified three types of employees, hamely: "(1) regular employees of those who have been engaged to perfor activities which are usually necossary oF desirable in the usual business or trade of the employer; (2) project employees or those whase employinent has been fixed for a specific project or undertaking, the compistion oF termination of whieh has been determined at the time of the engagement of the employee or where the work oF service lo be performed is seasonal in ature and the employment is for the duration of the season; and (3) casual employees ar those who are neither regular nor project employees." USEC, RYAN 1, ESTEVEZ, MPP. 7 KOKOBar Project Director