Go Lang, Crew! (Set 11)

Question 1

Is Welga ng Bayan legal or illegal? Explain your answer.

Answer 1

A “Welga ng bayan” is illegal because it is a political strike and therefore there is neither a bargaining deadlock nor any ULP. It is a political rally (2 AZUCENA,
supra at 583-584).

Question 2

Enumerate the factors affecting the legality of strikes/lockouts. Discuss one of them.

Answer 2

1. Statutory Prohibition
2. Strict compliance with Procedural Requirements of the Law
3. Purpose must be ULP or Economic
4. Lawful Means and Methods
5. Injunction
6. Agreement of the Parties

I will discuss Statutory Prohibition. Government employees have the right to organize but they do not have the right to strike. A strike held by government
employees would be an example of an illegal strike that violates a legal prohibition.

The general rule in the past and up to the present is that, “the terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law.” Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by workers in the private
sector to secure concessions from their employers. (SSEA v. Court of Appeals)

Question 3

Distinguish between resignation and retirement.

Answer 3

According to definition, resignation is 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 service, then he has no other choice but to dissociate himself from his employment.” While retirement has been defined as a withdrawal from office, public station, business, occupation, or public duty. It is the result of a bilateral act of the parties, a voluntary agreement between the employer and the employee whereby the latter, after
reaching a certain age, agrees and/or consents to sever his employment with the former.

Question 4

What is an unfair labor practice? Cite two (2) examples of ULP committed by a labor organization or its officers and representatives.

Answer 4

Unfair labor practice is a criminal offense that aims to weaken or defeat the right to self-organize. Article 257 declares that it is unlawful for any person to restrain, coerce, discriminate against or unduly interfere with the exercise of the right to self-organization.

Two examples of ULP committed by a labor organization or its officers and representatives are:
(1) Refusal to Bargain; and
(2) CBA deal with employer. Regarding the first example, Under Article 260(c), a union violates its duty to bargain collectively by entering negotiations with a fixed purpose of not reaching an agreement or signing a contract.

Regarding the second example, not only is ULP committed, but also bribery, when a labor organization asks or accepts some “fee” from the employer as part of CBA or dispute settlement.

Question 5

How is an appeal perfected from the Labor Arbiter’s decision to the NLRC?

Answer 5

Section 4, Rule VI, 2011 NLRC Rules of Procedure: For an appeal from the LA’s decision to the NLRC to be perfected, the appeal must be
a) The appeal shall be:
i) Filed within the reglementary period provided
in Section 1 of this Rule;
ii) Verified by the appellant himself in accordance
with Sec. 4, Rule 7 of the Rules of Court
iii) In the form of a memorandum of appeal which
shall state the grounds relied upon and the
arguments in support thereof, the relief prayed
for, and with a statement of the date the
appellant received the appealed decision,
resolution or order;
iv) In three legibly typewritten or printed copies;
and
v) Accompanied by i) proof of payment of the
required appeal fee and legal research fee; ii)
posting of a cash or surety bond as provided in
Section 6 of this Rule; iii) proof of service upon
the other parties.
b) A mere notice of appeal without complying with the other requisites aforestated shall not stop the running of the period for perfecting an appeal.

 c) The appealing me file with the regional arbitration branch or original office where the appeal was filed, His or her answer or reply to appellant's memorandum of appeal, not later than 10 calendar days from receipt thereof. Failure on the part of the appellee who was properly furnished with the copy of the appeal to file his or her answer or reply within the second may be construed as a waiver on his or her part to file the same.

 d) Subject to the provisions of Article 225 of the Labor Code, once the appeal is perfected in accordance with these Rules, the Commission  shall limit itself to reviewing and deciding only the specific issues that were elevated on appeal.

Question 6

Distinguish “just cause” from “authorized cause” dismissal of employees.

Answer 6

*Dismissal for Just Cause
a) As to nature of cause:
-The employee is dismissed for causes which are attributable to his fault or culpability (D.O. No. 147-15, Sec. 4(b)).
b) As to entitlement to separation pay:
-As a rule, a dismissed employee is not entitled to separation pay.
c) As to requirement of due process:
-Before an employee is dismissed for just cause, he must be given ample opportunity to be head and to defend himself.
d) As to requirement of notice to DOLE:
-Notice to DOLE is not required.

*Termination for Authorized Cause
a) As to nature of cause:
-The employee is dismissed for causes brought by the necessity and exigencies of business, changing economic conditions and illness of the employee * (D.O. 147-15, Sec. 4(a)).
b) As to entitlement to separation pay:
-Entitled to separation pay
c) As to requirement of due process
-Employer must give the employee to be terminated a written notice at least one month before the intended day of termination
d) As to requirement of notice to DOLE
-Notice to DOLE is required.

Question 7

Enumerate the exclusive and original jurisdiction of the Labor Arbiter.

Answer 7

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 279 of this Code, including questions involving the legality of strikes and lockouts;
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, regardless of whether accompanied with a claim for reinstatement.

*Additional Cases:
1. Money claims arising out of em-rel or by virtue of any law or contract, involving OFW’s, including claims for actual, moral, exemplary and other forms of damages, as well as employment termination of OFWs;
2. Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to R.A. No. 6727, as reflected in Article 124;
3. Enforcement of compromise agreements when there is non-compliance by any of the parties pursuant to Article 233 of the Labor Code, as amended; and
4. Other cases as may be provided by law.

Question 8

What is voluntary arbitration? Discuss the jurisdiction of a Voluntary Arbitrator.

Answer 8

Voluntary Arbitration refers to the mode of settling labor-management disputes by which the parties select a competent, trained and impartial person who shall decide on the merits of the case and whose decisions is final, executory and unappealable.

Jurisdiction of VA’s:
1. Unresolved grievances from the interpretation or implementation of the CBA
2. Unresolved grievances arising from the interpretation or enforcement of company personnel policies.
3. Violations of the CBA which are not gross in character.
4. Other labor disputes, including unfair labor practices and bargaining deadlocks, upon agreement of the parties.
5. Wage distortion issues arising from the application of any wage orders in organized establishments.
6. Unresolved grievances arising from the interpretation and implementation of the Productivity Incentive Programs under RA No. 6971(Sec. 9)
7. National Interest Cases
8. Termination disputes if there was an agreement that the termination dispute should be submitted to grievance machinery and voluntary arbitration. Without such explicit agreement, the labor arbiter may hear and decide the case.

The Voluntary Arbitrators have original and exclusive jurisdiction over money claims arising from the interpretation or implementation of the CBA and those arising from the interpretation or enforcement of company personnel policies.

Violations of CBA, except those which are gross in character, shall no longer be treated as ULP and shall be resolved as grievances.

Question 9

What is a grievance? How is grievance resolved?

Answer 9

Grievance is defined as “any question by either the employer or the union regarding the interpretation or application of the collective bargaining agreement or company personnel policies or any claim by either party that the other party is violating any provision of the CBA or company personnel policies.

Grievance refers to any question by either the employer or the union regarding:
1. The interpretation or implementation of any provision of the CBA;
2. Interpretation or enforcement of company personnel policies; or
3. Violation of any provisions of the CBA or company personnel policies

Grievance handling is suggested in the Implementing Rules:
-In the absence of applicable provision in the collective bargaining agreement, a grievance committee shall be created within 10 days from the signing of the collective bargaining agreement.
Section 2. Procedure in handling grievances. - In the absence of a specific provision in the collective bargaining agreement or existing company practice prescribing for the procedures in handling grievance, the following shall apply:
(a) An employee shall present his grievance or
complaint orally or in writing to the shop steward.
(b) If the grievance is valid, the shop steward shall
immediately bring the complaint to the
employee’s immediate supervisor. The shop
steward, the employee and his immediate
supervisor shall exert efforts to settle the
grievance at their level.
(c) If no settlement is reached, the grievance shall
be referred to the grievance committee which
shall have 10 days to decide the case.

Question 10

What is a collective bargaining agreement? Explain the “automatic renewal rule” (362) in connection therewith.

Answer 10

Collective bargaining agreement refers to the contract between a legitimate labor union and the employer concerning wages, hours of work, and all other terms and conditions of employment in a bargaining union.

The automatic renewal rule was explained in the case of New Pacific Timber where it was held that the CBA between petitioner Company and NFL remained in full force and effect even beyond the stipulated term, in the absence of a new agreement.

It was discussed in the case that under Article 264 of the Labor Code that until a new Collective Bargaining Agreement has been executed by and between the parties, they are duty-bound to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement.

Petitioner Company insists that the rank-and-file employees hired after the term of the CBA inspite of their subsequent membership in the bargaining
unit, are not parties to the agreement, and may not claim the benefits. The court does not agree. The court held that when a collective bargaining contract is entered into by the union representing the benefits of the contract. To accord its benefits only to members of the union without valid reason would constitute undue discrimination against non-members.