Go Lang, Crew! (Set 9) Flashcards
Labor Standards and Labor Relations (10 cards)
What is fixed-term employment? What are its requisites to be valid?
A fixed period employment exists where the employee’s employment contract specifies that the same will last only for a definite period. They are not regular employees because their job will exist only for a specified period of time. (Brent School v. Zamora)
-They are not permanent but the nature of work is necessary or desirable in the principal business of the employer and they enjoy security of tenure during the limited time of employment.
-A project employment is also a fixed period but not all fixed periods are project or seasonal.
-Reason: freedom of parties to contract as long as stipulations are not contrary to law, morals, good customs, public order and public policy.
Requisites:
1. Fixed period was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or
2. It satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance exercised by the former of the latter.
What is project employment?
How is it different from seasonal employment?
PROJECT EMPLOYEE:
Under Art. 295, there is project employment when the employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of engagement of the employee.
GR: their services being needed only
when there are projects to be
undertaken.
XPN: where employment of project
employees are extended long after the
supposed project has been finished,
the employees are removed from the
scope of project employees and are
considered as regular employees.
SEASONAL EMPLOYEE:
Seasonable employment is an employment arrangement where an employee is engaged to work during a particular season on an activity that is usually necessary or desirable in the usual business or trade of the employer. (Universal Robina Sugar Milling Corp. v Acibo)
What is featherbedding? Illustrate.
*Under the Labor Code, it is an unfair labor practice 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. (Article 260(d), Labor Code) [MEMAID 174/186].
*Featherbedding (Make-Work Agreements) is a term 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.
*Requisites for Featherbedding
-Requisites for featherbedding are as follows:
a. The labor organization, its officers, agents or representatives have caused or attempted to cause an
employer either:
i. To pay or agree to pay any money, including the
demand for fee for union negotiations, or
ii. To deliver or agree to deliver any things of value;
b. Such demand for payment of money or delivery of things of value is in the nature of an exaction.
i. NOTE: While it is a form of extortion, it should,
however, be differentiated from” extortion” in that, in “extortion,” the union extorts more than its due, when
something is due; in “exaction,” the union exacts what
is not due, when there is nothing due to it.
c. The services contemplated in exchange for the exaction are not actually performed or will not be performed.
- Example:
-Refers to the practice, caused and induced by a union, of hiring more workers than are needed to perform a given work, job or task or to adopt work procedures which is evidently senseless, wasteful, inefficient and without legitimate justifications since it is meant purely for the purpose of employing additional workers than are necessary. This is resorted to by the union as a response to the laying-off of workers occasioned by their obsolescence because of die introduction of machines, robots or new and innovative technological changes and improvements in the workplace or as required by minimum health and safety standards, among other reasons. Its purpose is to unduly secure the jobs of the workers.
What is a yellow dog condition? Illustrate.
*ARTICLE 259(b): Unfair Labor Practice of Employer [CHECK MEMAID 171/183].
-Requires as a condition for employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs.
*The typical yellow dog contract contains the following provisions:
○ A representation by the employee that he is not a member of a labor union;
○ A promise by the employee not to join a labor union; and
○ A promise by the employee that, upon joining a labor union, he will quit his employment.
What is Boulwarism? Illustrate.
*Boulwarism is bad faith bargaining wherein the employer proposes a union contract which is not subject bargaining or any adjustment. It is a take it or leave it offer by the employer which gives no other option to the employee.
*Example: if a company is negotiating with a union over wages, the company may use boulwarism by offering a fixed wage that the union can either accept, or reject. The company will not engage in any further negotiations or compromise on the offer.
Enumerate the authorized causes for termination of employment by the employer; explain one of them.
*The authorized causes provided in the Labor Code may generally be classified into two (2) namely:
○ Business-related causes - referring to the grounds specifically mentioned in Article 298:
■ Installation of labor-saving device;
■ Redundancy;
■ Retrenchment to prevent losses;
■ Closure or cessation of business operation
-NOT due to serious business losses or financial
reverses; and
-Due to serious business losses and financial
reverses [CHECK MEMAID 222/234].
○ Health-related causes - referring to disease under Article 299
■ 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 1-month salary or to 1/2-month salary for every year of service, whichever is greater, a fraction of at least 6 months being considered as 1 whole year.
■ Requisites:
1. An employee has been found to be
suffering from any disease;
2. His continued employment is:
a. Prohibited by law; or
b. Prejudicial to his health as well to the
health of his co-employees; and
3. A competent public health authority issues
a medical certificate that the disease is of
such nature or at such stage that it cannot
be cured within a period of 6 months even
with proper medical treatment (ibid).
Enumerate the just causes for termination of employment by the employer; explain one of them.
- ARTICLE 297: TERMINATION BY EMPLOYER.
A. Just Causes
a. Serious Misconduct
i. Requisites:
1. It must be serious;
2. It must relate to the performance of the
employee’s duties;
3. It must-show that he has become unfit
to continue working for the employer,
and
4. It must have been performed with
wrongful intent.
ii. Examples: Sexual harassment; fighting
within company premises; uttering obscene,
insulting, or offensive words against a
superior; falsification of time records; sexual
intercourse inside company premises and
during work hours; and theft of company-
owned property,
b. Insubordination or Willful Disobedience of Lawful Orders
c. Gross and Habitual Neglect of Duties
d. Abandonment of Work
e. Fraud
f. Willful Breach of Trust and Confidence
g. Commission of Crime or Offense
h. Other Analogous Causes [CHECK MEMAID
218/230]
Discuss the Kiok Loy Doctrine regarding the effects of an employer’s refusal to bargain collectively.
This doctrine is based on the ruling in Kiok Loy v. NRC, where the petitioner, Sweden Ice Cream Plant, refused to submit any counter-proposal to the CBA proposed by its employees’ certified SEBA. The High Court ruled that the employer had thereby lost its right to bargain the terms and conditions of the CBA.
Consequently, all the terms and conditions of the CBA as proposed by the SEBA are deemed approved and accepted lock, stock and barrel (LSB) by the erring employer.
The Kiok Loy case epitomizes the classic case of negotiating a CBA in bad faith consisting of the employer’s refusal to bargain with the SEBA by ignoring all notices for negotiations and requests for counter-proposals made to the former by the latter. Such refusal to send its counter-proposals to the SEBA’s proposals and to bargain on the economic terms of the CBA constitutes an unfair labor practice (ULP) under Article 259(g) (248(g)] of the Labor Code. [CHAN 245/456]
*Lock, Stock and Barrel Rule (Kiok Loy Ruling)
○ Under this rule, the CBA proposed by the union may be imposed lock, stock and barrel on the employer who refused to negotiate a CBA. The employer who violates the duty to bargain collectively,
loses its statutory right to negotiate or renegotiate the terms and conditions of the draft CBA proposed by the union. Hence, the proposals of the union may be adopted as the CBA and, consequently, imposed on the employer, lock, stock, and barrel [MEMAID 178/190].
Doctrine: Unfair labor practice is committed when it is shown that the respondent employer, after having been served with a written bargaining proposal by the petitioning Union, did not even bother to submit an answer or reply to the said proposal.
Facts: In a certification election held on October 3, 1978, the Pambansang Kilusan ng Paggawa (Union), a legitimate labor federation, won and was subsequently certified as the sole and exclusive bargaining agent of the rank-and- file employees of Sweden Ice Cream Plant (Company). The Company’s motion for reconsideration of the said resolution was denied on
January 25, 1978. Thereafter, the Union furnished the Company with two copies of its proposed collective bargaining agreement, and requested the Company for its counter proposals, eliciting no response to the aforesaid request, the Union again wrote the Company reiterating its request for collective bargaining negotiations and for the Company to furnish them with its counter proposals. Both requests were ignored and remained unacted upon by the Company.
Left with no other alternative in its attempt to bring the Company to the bargaining table, the Union filed a “Notice of Strike”, with the Bureau of Labor Relations (BLR) on ground of unresolved economic issues in collective bargaining. Conciliation proceedings then followed during the thirty-day statutory cooling-off period. But all attempts towards an amicable settlement failed, prompting the Bureau of Labor Relations to certify the case to the National Labor Relations Commission for compulsory arbitration. Company requested for a series of extensions until it was denied and was deemed to have waived its right to present evidence. NLRC held the Company guilty of
unjustified refusal to bargain, in violation of Section (g) Article 248, and that the bargaining agreement sent by the Union was found to be reasonable and hence shall govern their relations.
Petitioner Company now maintains that its right to procedural due process has been violated when it was precluded from presenting further evidence in support of its stand and when its request for further postponement was denied. Petitioner further contends that the National Labor Relations Commission’s finding of unfair labor practice for refusal to bargain is not supported by law, and that the bargaining agreement is unreasonable.
Issue: Whether or not Sweden Ice Cream Plant is guilty of unfair labor practice.
Ruling: Yes. From the overall conduct of petitioner company in relation to the task of negotiation, there can be no doubt that the Union has a valid cause to
complain against its (Company’s) attitude, the totality of which is indicative of the latter’s disregard of, and failure to live up to, what is enjoined by the Labor
Code — to bargain in good faith.
*Article 249, par. (g) of the Labor Code makes it an unfair labor practice for an employer to refuse “to meet and convene promptly and expeditiously in good
faith for the purpose of negotiating an agreement with respect to wages, hours of work, and all other terms and conditions of employment including proposals for adjusting any grievance or question arising under such an agreement and executing a contract incorporating such agreement, if requested by either party.”
While it is a mutual obligation of the parties to bargain, the employer, however, is not under any legal duty to initiate contract negotiation. The mechanics of collective bargaining is set in motion only when the following jurisdictional preconditions are present, namely, (1) possession of the status of majority representation of the employees’ representative in accordance with any of the means of selection or designation provided for by the Labor Code; (2) proof of majority representation; and (3) a demand to bargain under Article 251, par. (a) of the New Labor Code . . . all of which preconditions are undisputedly present in the instant case.
It has been indubitably established that (1) respondent Union was a duly certified bargaining agent; (2) it made a definite request to bargain, accompanied with a copy of the proposed Collective Bargaining Agreement, to the Company not only once but twice which were left unanswered and unacted upon; and (3) the Company made no counter proposal whatsoever all of which conclusively indicate lack of a sincere desire to negotiate. A Company’s refusal to make counter proposal if considered in relation to the
entire bargaining process, may indicate bad faith and this is especially true where the Union’s request for a counter proposal is left unanswered. Even during the period of compulsory arbitration before the NLRC, petitioner Company’s approach and attitude — stalling the negotiation by a series of postponements, non-appearance at the hearing conducted, and undue delay in submitting its financial statements, lead to no other conclusion except that it is unwilling to negotiate and reach an agreement with the Union.
Hence, Sweden Ice Cream Plant is guilty of unfair labor practice when after having been served with a written bargaining proposal by the petitioning Union, did not even bother to submit an answer or reply to the said proposal.
Discuss the effects of non-observance of procedural due process in termination disputes.
When dismissal is for a just or authorized cause, but due process was not observed, the dismissal should be upheld. However, the employer should be held liable for non-compliance with the procedural requirements of due process (i.e. damages) (Agabon v. NLRC, G.R. No. 158693, November 17, 2004) [MEMAID 229/241].
○ If based on a just cause (Art. 297) but the employer failed to comply with the notice requirement, the sanction to be imposed upon him should be tempered because the dismissal process
was, in effect, initiated by an act imputable to the employee; and
○ If based on an authorized cause (Art. 298) but the employer failed to comply with the notice requirement, the sanction should be stiffer because the dismissal process was initiated by the employer’s exercise of his management prerogative (JAKA Food Processing v. Pacot, G.K. No. 151378, March 28, 2005).
What is a collective bargaining unit? Enumerate the factors in determining the appropriateness of a collective bargaining unit.
*Bargaining Unit is a group of employees of a given employer, comprised of all or less than all the entire body of the employees, which, consistent with equity to the employer, indicate to be best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provision of the law.
*Bargaining unit is “the legal collectivity for collective bargaining purposes whose members have Substantially mutual bargaining interests in terms and conditions of employment as will assure to all employees, their collective bargaining rights.” (Toyota Molor PHL. . v Toyota Motor PHL Corp Labor Union, G.R. No. 121084, February 19, 1997)
Four Factors in Determining the Appropriate Bargaining Unit (C-GEH) [MEMAID 181/193]
1. Community of Interest Doctrine or Substantial Mutual Interest Rule
a. Affinity and unity of employees’ interest, such
as substantial similarity of work and duties, or
similarity of compensation and working
conditions.
2. Globe Doctrine
a. Based on the express will or desire of the
employees.
3. Employment Status, such as:
a. Temporary;
b. Seasonal; and
c. Probationary Employee
4. Prior Collective Bargaining History
a. NOTE: The existence of prior collective
bargaining history is neither decisive nor
conclusive in the determination of what
constitutes an appropriate bargaining unit (San
Miguel Corp. v. Laguesma, G. R. No. 100485).
