Go Lang, Crew! (Set 12) Flashcards
Labor Standards and Labor Relations (10 cards)
What is constructive dismissal? How is it different from actual dismissal?
*Constructive Dismissal
-There is constructive dismissal when any or all of the following three (3) circumstances exist:
1. When continued employment is rendered impossible, unreasonable or unlikely
2. When there is a demotion in rank and/pr or a diminution in pay; or
3. When a clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee that it could foreclose any choice by him except to forego his continued employment.
There may be 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 [MEMAID 232/244]
On the other hand, actual dismissal is where the dismissal has been terminated by the employer due to the terms under the employment contract with regard to just and authorized causes of termination.
What is preventive suspension? When may it be imposed?
Preventive Suspension is a tool that can be used by employers to temporarily remove an employee from his or her post while an investigation into alleged
misconduct is ongoing. An employee may be place under preventive suspension, during the pendency of the case if:
- The evidence of guilt is strong, and the employer or head of establishment is convinced that the continued stay of the employee during the period of investigation constitutes a distraction to the normal operations of the company; and
- His continued employment poses a serious and imminent threat to the life or property of the employer or his co-workers.
It shall be for a maximum period of 30 days, during which period the employee placed under preventive suspension is not entitled to any wages. After the lapse of 30 days, for justifiable reasons, the same can be extended provided the employer pays the suspended employee his wages and other benefits. After this period, the employee must either be reinstated or formally charged.
Explain how the legality or illegality of a strike is affected by “agreement” and “statutory prohibition”.
(Page 501, Art. 279) With regard to Statutory prohibition, this is the first factor in legality of strike. Government employees have the right to organize and
this has been discussed in Articles 253-257. 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.
(Page 571, Art. 279) With regard to agreements, a CBA contains no strike / no lockout clause. It provides that disputes between the parties, including alleged U.L.P. act by the employer should be resolved through voluntary arbitration instead of through a strike. Is the stipulation valid? May the union disregard it and stage a strike?
Two decisions of the Supreme Court on this matter conflict with each other. One, promulgated on May 15, 1979, in the case of Philippine Metal Foundries, Inc. us. CIR, declared that a no-strike prohibition in a Collective Bargaining Agreement is applicable only to economic strikes. In other words, U.L.P. strike is not covered, and workers may go on strike based on U.L.P. despite the
no-strike provision. In this Metal Foundries case, it is admitted by the employer company that it accepted the invitation of Baylon [union president] for a grievance conference on October 5, 1963. Yet, two hours after it accepted the letter of invitation, it dismissed Baylon without prior notice and/ or
investigation. Such dismissal was undoubtedly an unfair labor practice committed by the company. Under these facts and circumstances, Baylon and the members of the Union had valid reasons to ignore the scheduled grievance conference and declared a strike. When the Union declared a strike in the belief that the dismissal of Baylon was due to union activities, said strike was not illegal. It is not even required that there be in fact an unfair labor practice committed by the employer. It suffices if such a belief in good faith is entertained by labor as the inducing factor for staging a strike. The strike declared by the Union in this case cannot be considered a violation of the “no strike” clause of the Collective Bargaining Agreement because it was due to the unfair labor practice of the employer. Moreover, a no strike clause prohibition in a Collective Bargaining Agreement is applicable only to economic strikes.
The other decision, issued on September 10, 1979, in the case of GOP-CCP Workers Union us. CIR, enforced the binding effect of the “no-strike” stipulation in the CBA.
Ruling in the Master Iron Case: if the employer commits an unfair labor practice, as in the above case, the right to strike becomes available despite a no-strike provision in the CBA of the parties.
Ano strike-no lockout stipulation generally deserves respect by the parties to the CBA and by the labor authorities. Such stipulation applies even to a deadlock in renegotiating the economic provisions of the CBA. Where the CBA stipulates that disputes between the parties should be resolved through a grievance machinery, including voluntary arbitration, a notice of strike filed by the union violates that agreement. The NCMB should consider such notice as not duly filed and then direct the union to avail itself of the grievance machinery and voluntary arbitration. A similar posture should be taken by the Secretary of Labor instead of assuming jurisdiction over the dispute.
Explain the doctrine of the “employer is a mere bystander” in a petition for certification election.
What is the rationale for this doctrine?
An employer is a bystander and has no right to oppose the petition. His participation is limited to being informed about the petition and to being required to submit the list of employees if a CE will be held.
It was also held that in certification elections, the employer is a mere bystander; it has no right or material interest to assail the certification election.
What do you understand by “tentative legal personality”?
A local chapter is created once a federation (same as a national union) issues a charter certificate. Once issued a charter, the chapter acquires legal personality to file a petition for CE. All other union rights will be acquired by submitting the following in addition to the charter certificate.
Art. 241. A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate.
What is the doctrine of “non-commingling of members”? What is the effect, if any, of commingling of members?
There is a prohibition against the mingling of supervisory and rank-and-file employees in one labor organization. Any mingling between supervisory and
rank-and-file employees in its membership cannot affect its legitimacy for that is not among the grounds for cancellation of such registration, unless such mingling was brought about by misrepresentation, false statement or fraud under Art. 239 of the Labor Code.
Art. 256. Effect of Inclusion as Members of Employees Outside the Bargaining Unit. The inclusion as members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said union.
When may an employer validly dismiss an employee on the ground of “retrenchment”?
Requisites:
a. There is proof of actual losses or possible imminent losses that would justify termination of employment
b. There is good faith in effecting the termination
c. The termination is a matter of last resort, there being no other option available to the employer after resorting to cost-cutting measures
d. Two (2) separate written notices are served on both the affected employee and the DOLE at least one (1) month prior to the intended date of termination
e. That separation pay is paid to the affected employee, which is equivalent to one (1) month pay or at least ½ month pay for every year of service, whoever is higher, a fraction of at least 6 months shall be considered as 1 whole year
f. Fair and reasonable criteria in ascertaining what positions are to be affected by the termination
g. Losses must not be de minimis
h. There must be proof that the retrenchment is expected to be affecting in preventing or reducing losses
May an employee validly sever the employer employee relationship without giving a 30-day notice to the employer? Explain.
Explain the procedural due process requirements in authorized cause termination of employment by the employer.
It is classified into TWO (2):
1. Termination due to BUSINESS-RELATED CAUSES;
such as installation of labor-saving device,
redundancy, retrenchment and closure of business
or establishment; and
2. Termination due to DISEASE.
*Termination due to BUSINESS-RELATED CAUSES
Procedural Steps:
-Separate and simultaneous service of written notice of the intended termination to both:
i. The employee to be terminated; and
ii. The appropriate DOLE Regional Office
At least one (1) month before the intended date of termination specifying the ground/s therefor and the undertaking to pay the separation pay required under Art. 298 of the Labor Code.
*Termination due to Health-Related Causes (DISEASE)
1. Written notice to employee concerned at least thirty (30) days prior to the intended date of termination
2. Written notice to DOLE at least thirty (30) days prior to the intended date of termination
3. Payment of separation pay
Enumerate the Unfair Labor Practices that are related to collective bargaining.
*ARTICLE 259. [248] Unfair Labor Practices of Employers
(e) 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[204] shall not apply to the non-members of the recognized collective bargaining agent;
(g) To violate the duty to bargain collectively as prescribed by this Code;
(h) 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
(i) To violate a collective bargaining agreement.
*ARTICLE 260. [249] Unfair Labor Practices of Labor Organizations. (c) To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees;
(e) 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
(f) To violate a collective bargaining agreement.
