Labor 2

February 27, 2019

Certification election
The other important thins that you have to understand, most of the questions will pertain to double majority rule. Second,
the concept, the purpose there, of which to conduct certification election is to determine whether the bargaining unit
would choose to be represented by a union or not. That’s why you always include it as a choice, “no union” because that
is an option available to all workers. If the decision of the members of the bargaining unit is to be represented by a union
although the decision as to which union to represent them is not manifest, you have to resolve it in an exercise called run-
off election. A run-off election happens, if at least 50% of the members of the bargaining unit voted for the union choices,
according to the rules with three or more choices, results in a no choice representing the majority. However, the union
choices will comprise at least 50%. Why 50% only not majority? Because the preference is that the bargaining unit to be
organized. However, if you are not organized, you cannot pressure management to talk about or to discuss with you better
terms and conditions of employment. It’s a condition precedent for management to be obliged or for it to be mandatory,
for management to set down with the union for purposes of collecting bargaining.
Other than that, bargaining will be done individually, only based on or borne out of generosity of the employer. We have
mentioned that in the process of collective bargaining, you are talking actually of two broad subject matters and these are
the economic provision of the CBA and the political or representation issues in the collective bargaining agreement.
Remember it is crucial under art 253-a, it is very clear that other terms and conditions in the CBA may be renegotiated
after the lapse of three years, meaning to say they could agree. Normally the parties will only renegotiate the last two
years of the CBA, the CBA having a 5-year period or lifetime but other CBAs will be negotiating for another three years
and therefore that will extend more than the life of the SEBA. Remember that the five-year term of the SEBA does not
commence on the day of certification, did you realized that?
For example, you are certified today Feb.27, does your term of office starts today as a SEBA? Is your term today and five
years thereafter? Not yet, because you are supposed to negotiate a CBA for how long? By implication of law, remember
the 12-month bar. What is the purpose of 12-month bar? Why do we bar the conduct of certification election for a period
of 12 months after the conduct of certification election? Why is that? because we would want to give way to the SEBA
to negotiate a CBA, for how long? For one year. If the SEBA is not able to conclude a SEBA for a period of 1 year, what is
the conclusion of the law as far as that SEBA is concerned, it has not proven its worth to be called the bargaining agent.
Therefore, we entertain now new petition for certification of election but if it’s able to conclude a CBA within a period of
1 year then it is protected of its being the SEBA for another five years because it was able to conclude a CBA. And you call
that contract bar rule.
These are the three important bars in certification election; the 12-month bar/1-year bar, the contract bar, which is
actually coterminous with a period of the CBA except during the last 60 days. What is the other one? Deadlock bar. We
do not fault the SEBA if it is not able to conclude a CBA if it is the management who is not giving in with the demands of
the union. The rationale of the law is first you give time to negotiate, if it is able to negotiate, 5-year protection. If it does
not able to negotiate or conclude a CBA and the 12-month period already expired, do you entertain the petition for
Certification Election? Yes, except during that period if they are still negotiating and they are under a deadlock with
respect to some provisions of a CBA. That’s why you also use deadlock as a bar to the conduct of certification election.
We also use it as a bar to CE. Provided that there is a requirement for deadlock bar to be used as bar to CE. Is it automatic
that if there is a deadlock we bar CE? The framework is we also protect the SEBA. You are asked a question, are you a good
bargaining agent? Since there is a deadlock how do you know that this bargaining agent is a good bargaining agent? The
bargaining agent is exerting all effort to resolve the deadlock. Easier said than done. What are the evidence that such
effort is being exerted? How do you know that an effort is exerted to resolve the deadlock? Well, remember that
bargaining deadlock is a ground for the filing of a notice of strike. Remember, if there is a deadlock, it gives rise to a
ground to file a notice of strike. If you are the SEBA and management is having a hard line in terms of negotiating the
CBA. What do you do? You pressure the management to give in to your demands by filing a notice of strike. Your status
as a SEBA is not going to be disturbed in the meantime while efforts to resolve the deadlock is being exerted. Second, you
went to NCMB and filed a case for preventive mediation or government intervention in any form; preventive mediation,
conciliation or mediation. Therefor as a SEBA you are doing your part, you went to a government office mandated by law
to address labor dispute. In that regard you are doing job as a collective bargaining representative, as a SEBA for the
workers.
These are manifestations that the SEBA is doing its best to break the deadlock, one is filing of a notice of strike and second
there is an ongoing conciliation/mediation effort before the NCMB and third, the matter has been submitted for voluntary
arbitration. These three are the situations where the deadlock bar rule can operate.

Remember you are certified last year February 27, 2018 and today is February 27, 2019. After you have been certified,
you only have up to today to be able to conclude a CBA, in the meantime, you have been negotiating but eventually
management will not give in. Eventually you file a notice of strike a month if management will not really give in what you
are asking. An interested union now might file a petition for CE after the lapse of this period and challenge the SEBA. What
defense can you bring up? You can bring up the defense of having a deadlock with efforts manifested with a notice of
strike to support that there is such effort to resolve the deadlock. In short as it is only not a bar to CE. Because it’s very
easy for the management and the union to make it appear that there is a deadlock and forever there will be no CE.

What are the bars? The 12-month bar, the second is contract bar, the third is deadlock bar with asterisk that in deadlock,
there is effort to resolve such deadlock as manifested in the three instances.

If you are the Med-arbiter, what are the possible grounds by which you are going to deny the PCE?

First, some of them maybe found in the requisites of Art. 256, for example, it was not filed by a legitimate labor
organization, is an obvious ground for denial. Second, if it is filed outside the freedom period, obviously it is denied.
Remember that the freedom period is strictly 60 days only, the only window.

Ang mangyayari ay ganito, if the SEBA is (ang presentation ay ganito) union A. If there is a SEBA therefore the establishment
is organized. Will Union A ever file a petition for CE if union is the SEBA? Can you expect union A to file a petition for CE?
NO, why would union a challenge its incumbency or contest its being the SEBA? It will just wait for other to challenge its
incumbency as the SEBA and pray after the lapse of 60-day period no petition is filed. What happens to union A? Union A
will be given a fresh 5-year mandate. Now if you are union B and able to master about 25% of the members of the
bargaining unit to support your petition, you file a petition for certification of election. When? During the freedom period.
Remember that no CE will be conducted during the freedom period. Why no CE will be conducted during the freedom
period, in fact the med-arbiter will not decide on the petition during the freedom period per se. Remember that the 60
days’ period is only dedicated for the purpose of filing. Of course if there is union security clause, there is a closed shop
agreement, all of those agreement are considered suspended, during this period. That’s why some of them became
members of union b. How can they create a union if there is a closed shop agreement, obviously the reason why it is called
freedom period because they do what they want to do. They can register a union here and file PCE subsequently. All
within the period of 60 days. Union b organized prior, it is expected during the freedom period, union b and its officers
register and filed a PCE. What will the med-arbiter do? Wait for the period to expire. Because its possible that Union C
files a PCE. So they are three of them now. In the order of selection, Union B will be the first choice, being the petitioner.
Next is Union A, the incumbent. Is it required for Union A to do anything for them to be part of this? Or nothing, except
to attend hearings? Does union A need to file a petition for intervention or what? No, because Union A is the SEBA and
union A is automatically a choice. You call union A as the forced intervenor. Napilitan mag intervene kasi someone else
challenging its incumbency. Union B being the petitioner. If Union C file, Union C can either be, because Union C filed it
later than Union B, union C now will be an intervenor, in the petition filed by Union D. Obviously the last choice is “no
union”.
You look now at the result based on the examples given in the exam. You apply therefore the double majority rule and
you know whether or not there is a winner, to be certified as bargaining agent. Remember again that under
substitutionary doctrine; a valid and subsisting CBA cannot be abandon by the simple expedient of changing bargaining
representative. Remember that during the 60-day period, this is also the second instance by which bargaining is a duty.
The first instance being what? When there is no SEBA/CBA and one is certified as a bargaining agent, when the proposal
is submitted, bargaining is automatically becomes a duty. That is a scenario where the establishment is unorganized.
In organized establishment the 60-day period is the period where bargaining is a duty. Therefore, if you are Union A, you
commence bargaining here (pls.refer to your notes), whether or not there are hearing or gossips of PCE and people
organized themselves, you can already submit proposal to management, during this period. In fact, it is possible that you
can conclude it in 15 days and you still have a good 45 days in the freedom period. One CBA conclude a CBA in 4 hours for
example. So 15 days done, posting, ratification, registration done all in 60 days. Who negotiated that CBA, union A. Yung
nagka election talo, Union B wins, that is possible but Union B cannot abandon a valid and subsisting CBA duly ratified and
voluntary implemented during the period. Because that is already approved by the bargaining unit. Remember the
bargaining unit will have to give its stamp of approval to the CBA in an exercise called ratification. As lawyers of union B
or C, what do you do, after having known that a CBA negotiation is conducted? You can actually file a restraining order
for them not to proceed with negotiation pending resolution of representation issues. If Union B wins, you shall have
your opportunity to negotiate your own CBA.

I hope that the question of challenge is clear to you? What are the reasons why you challenge a particular vote?
Did I show the order of business in condition for certification election?
Yung PCE granted/denied and then after it is granted, inclusion/exclusion proceeding in a pre-election conference.
Where will the challenge happen? Where will the challenge of the vote happen? During the pre-election conference,
particularly in the exercise of inclusion/exclusion proceedings. What are the grounds by which you are going to challenge
voters? Depending which party you represent, either the unions. Remember that during the pre-election conference, all
of them, the three of them plus management will sit down in a pre-election conference, whose going to agree the
mechanics of election, date, venue, what time its suppose to open or close. Most importantly other than the mechanics
of the election, you are going to agree on who are eligible to vote and who are not. On the basis of one question only;
Are they members of the bargaining unit? If it is doubtful, union C challenged and union A challenged the votes. There
was one election the decision went to the SC, all votes challenged. The management challenged the votes because they
are not allegedly their employees. The med-arbiter granted the petition. Of course if you are management the first issue
that you are going to raise is to moved for the dismissal of the petition on the ground of absence of employer-employee
relationship. The med-arbiter ordered the opening of the ballots. Remember that the election officer does not have the
power to rule on a challenged vote. Who are the actors in the certification election? The med-arbiter who will decide
whether to grant or deny the petition, subsequently if it is granted, it is given to the election officer who is going to call
the shots during the election proper. What is the most important power of the election officer? Is it ruling on the eligibility
of the workers? No. The most important role of the election officer is to declare that there is run-off election. The
election officer shall motu propio conduct the run-off within ten days after the conduct of the certification election. So if
you are the election officer and the vote is challenged, I have doubts and looking at this rule, way back in 2012 I was the
med-arbiter in region 10-CDO, I was really comparing the progression of the rules. In the past there is such a thing “on the
spot challenge” My view is on the spot challenge has been removed from the rules, if no challenge was made during the
pre-election conference, the voter is considered to be (inaudible). That is my view.

All challenges will have to be made in the pre-election conference. If a vote is challenged, the first thing that you should
do is determine if challenged votes will materially alter the results of the election. As in the 2018 bar problem, the
challenged votes will not alter the results of the election, whatever happens to the 30 votes considered challenged, it will
not change the fact that still a run-off will have to be conducted. So that is the first determination that you are going to
make; Whether or not challenged votes will affect or alter the result of the election. If the answer is yes, what is the next
thing that you should do? The med-arbiter shall pass upon the question of eligibility of the challenged voters. Kung hindi
maka affect sa election whether eligible or not doesn’t matter. The eligibility will only become an issue if the challenged
votes will affect the result of the election. The mathematics is very simple.
In the Certification election, what are we trying to resolve here? Resolve questions of representation.

You may read that there is such a thing “Voluntary Recognition”. Or “Consent Election” consent election is, ganito ang
nangyayari sa consent election, no consent election will happen if there is only one choice or one union choice. For
example, Union B filed the PCE, Union A is the incumbent. Will the med-arbiter rule on the petition kahit kulang pa yan ng
whatever? Basta union A will agree on the petition because union A consented to the challenge made by union B. What is
next that will be done? Certification election immediately or it could be the three of them. Sabin ng Union A, “No problem
guys, bring it on” What will the med-arbiter do? Refer the matter to the election officer for the conduct of the CE with the
same choices obviously. Pero si union A, takot na and bring out all the necessary show to prevent the election from
happening. For example, file a cancellation case although not a prejudicial question or no 25% support. All sorts of reasons
why the election should not be conducted, in most cases.
I have some experience in Davao and CDO. There was a situation where, about the 25% support. When there is doubt,
resolve in favor in the conduct of certification election so that the question will finally be resolved by the members of
the bargaining unit themselves not you, the med-arbiter. In one case, I heard, involving a plantation in Maragusan, sabi
ng incumbent they were complaining because I granted a petition with only 23% support. I granted the petition. Eventually
the smart lawyer of the incumbent did not file any appeal. What did the smart lawyer of the incumbent union, he advised
his client to proceed with the CE. Why ? He knows that they have 70%. If they have (the other union) 23% or 24% it doesn’t
matter because we have the majority. If we file an appeal it will take time, this group might be able to eat some of your
share in the CBU. Baka this group will become stronger as time will pass, while the appeal is being heard in Manila. True
enough the vote is between 23%-25% only, those who really supported the signature. The rest is still supportive of Union
A. Union A is certified as the winner and had a fresh 5-year mandate. Do you appeal if you have grounds? Not necessarily.
In this case even if you have grounds, because the 25% is a strong doubtful question, that might sway in your favor or the
other way. Nevertheless, what do you want at the end? You want a fresh mandate and you know you can win the election
today. Why are you going to postpone that? The lawyer said that we will proceed with the election. (This is not written in
the Labor Code). The point is how you are going to serve the best interest of your client.
What I was explaining to you is the concept of Consent Election. In the past and in older med-arbiters, in unorganized
establishments, there are only two choices; Union and No union, and they will ask the management if ok lang mag consent
election ta. Some of the med-arbiter would consider in unorganized establishment, where there is only one choice and no
union choice obviously, will ask the management for consent. Is that correct or not? Obviously not because in the
certification election, management is a mere bystander. Why would you ask his opinion whether they will consent or
not. What do you consider if it is unorganized with only have one choice? You certify? No, if there is doubt whether the
choice or the union choice has 50% vote, you have to go to the process of certification election. But what is the only
thing that you are going to look at, remember that in unorganized establishment there is only one requirement; that the
petitioner must be a legitimate labor organization. That’s the only requirement. In the list if Union B is registered, fine,
grant the petition.
What can management legally put forward as an objection to the PCE?
Only the existence of employer-employee relationship, that’s the only thing. If the legitimacy is established as far as the
union is concerned, then the only question possible there, is whether these workers are in fact employees of the
respondent company. Other than that, it is impossible to block a PCE. Remember that under the rules, the granting of a
petition for certification of election in unorganized establishment is not appealable.
Let’s revisit the diagram that I told you earlier (refer to your notes please.)
In Unorganized, the scenario in unorganized is filing of PCE, the PCE is either granted or denied. If it is granted,
management will oppose whatever, appeal is not a remedy. There is no appeal, remember there’s an order here. The
petition is either granted or denied. It’s a decision already, it’s a resolution to the petition. Supposedly there should be
remedies available to you already but not in the case where the petition is granted. If the petition is granted automatically,
you proceed to pre-election conference subsequently the certification election. If its denied, obviously you cannot
proceed here. The only remedy available to you is appeal. Who will appeal? Obviously the petitioner, the petitioning
union. What is the opportunity for the management to challenge what it believes is a wrong decision of the med-arbiter.
After the PCE, it could give rise to a certification order already. There is a SEBA certification if there’s a winner. Double
majority rule is satisfied, therefore there is a SEBA certification which is also in the form of an order and therefore now
this is the order that is subject to appeal. Appeal directly to the Secretary of Labor and Employment under art. 259. The
SEBA certification is now subject to appeal. This one cannot be appealed, this one of course. This is unorganized, the
scenario that we are talking about here is unorganized. (please refer to your notes)
For organized establishments, both decisions whether granted or denied can be a subject of appeal. Of course, if it is
not challenged, you proceed to pre-election conference subsequently the certification election and then the
determination if there is a winner or not which will result in a certification order.
Maybe you have encountered, runoff election, runoff election is not an election with an entirely different character, its
actually an offshoot of a valid election. Given the scenario contemplated by law. Consent election is one where all the
union choices consent to the conduct of the election, so the med arbiter will no longer issue an order. (Here, this is now
erased, this portion here whether to grant or deny is no longer part of the process. Why? Parties already consented that
an election will be conducted. Therefore, med-arbiter will not make a decision. They will proceed to pre-election
conference and subsequently certification election)
Voluntary recognition used to be part of the rules but you can’t read in the labor code.
Voluntary recognition is resorted to in the past, when management, given that there is only one union in the bargaining
unit, with the obvious support of 50% or more or majority of the members of the bargaining unit, that the management
will now voluntarily recognize the union. Unfortunately, that has been removed from the rules? Why? It is contrary to
principle of bystander rule. Why would management voluntary recognize when it is supposed to be a bystander. What is
the mechanism that replaced voluntary recognition? Request for SEBA certification, under department order 40-I-14.
What happens, in fine, parang pareho din. You have presented yourself, I am the only union in the bargaining unit, I have
more than 50% membership. When do you submit the request, not a petition but a request to be certified automatically.
This time, management is not the recipient of the request. It’s going to be DOLE because going to certify you, after DOLE
vetted your list with the list given by the HR and it appears that in fact majority of the membership of the bargaining unit
as your members in the union. The only one there existing as a union based on DOLE record, DOLE will certify you as the
bargaining agent. So what replace voluntary recognition is RSC; Request for SEBA Certification. Certainly if another union
after the posting period, will come out and say we are also a union in the same bargaining unit. What will happen? It will
automatically refer to the election officer for the conduct of certification election, after the pre-election conference.
Obviously a pre-election conference is something that is always part of the process. It’s a simple meeting on the agreed
time and the day, mechanics, as well as exclusion/inclusion.

The last topic tonight is protest. When can protest happen? During the CE, protest can be made. How do you perfect a
protest? During the CE itself, you have to indicate in the minutes of the certification election that you are filing a protest
mechanics and conduct of the certification election by indicating the same in the minutes. Including the grounds for your
protest. It’s important that this should include grounds. Reservation to file protest is not allowed. When you say, why are
you protesting? Because the management was sitting with all the union members. You are going to indicate that one,
where? In the minutes, obviously you will not have evidence in the CE itself but you’re supposed to perfect your protest
including evidence that you can present to support your protest when 5 days after the close of certification election. Two
things you’re supposed to do; number one, indicate in the minutes that you are going to file a protest and include the
grounds for filing of such protest, second, is for you to formalize and perfect your protest five days after the close of the
close of certification election.

After art. 259, 260, 261, 262-a talks about voluntary arbitration. Other than CE, the other most important subject matter
relation is STRIKE.

-end-

March 4, 2019
Labor Relations – Atty. Jason Balais

We have clarified already that with respect to the period of cooling off and observance of the 7-day strike ban, they cannot
be counted where they think they lap(?) on particularly day precisely because they serve different purposes.

In fact, although this is not tested yet in jurisprudence, it is my submission that, you are not supposed to conduct strike
voting during the cooling off period.

There is a period by which the parties are expected to rethink and to reconsider their decision of going on a work stoppage
or refusal to furnish work. That period is dedicated to precisely cool down.

That is also the lesson here, during the 30-day period, you cannot conduct the strike referendum. If you allow the voting
during the cooling off period, that might be challenged in the NLRC on the question of legality of strike before the LA.

Let the period of cooling down be observed yet to its entirety before you ask the members of the union. So finally what,
after having thought this out and rethought and everything, are we going to proceed with the strike? That is the better
interpretation. If you follow the wisdom of the Congress, it will take 30 days for the union to cool down after they have
been denied of their demands… that is why the strike referendum will have to be conducted after the completion of the
period.

There is a little bit of strategy in terms of timing of all of these modes and submission etc depending on which party you
are representing. All of these are also directly connected to the negotiation that is ongoing. It’s not like an independent
thing that we are supposed to observe the strike because you have already decided to go on strike by filing, tama ba? That
you are just counting the days? The answer is no. You are actually using this as a tool/instrument for you to be able to get
some of the demands that you have included in you proposal.

We are made to understand that there are only two grounds by which notice of strike may be filed: 1) bargaining deadlock;
and 2) ULPs. If officers of the union were terminated by reason of their trade union movements, we call it union busting
which is actually a specie of ULP. The only difference is that if the act of mngt is to terminate all the officers of the union
then you need not observe the cooling off period, you can immediately take the strike vote and immediately count the
7day period by which you are supposed to observe before declaring the strike.

This is the most important aspect of… other than assumption matters… when does the strike become illegal? Because
strike is legal, in fact, it is a constitutional promise & right subject only to some conditions… if you follow the decisions of
the supreme court, we call this 6 factors affecting the legality of strike.

The first one: Statutory prohibition making the strike illegal or putting the strike’s legality into question in the perspective
of statutory prohibition. This means that certain provisions of the law prohibit the conduct of strike. Example: Government
workers specifically prohibited by law to go on strike

Second: Procedural Requirements – that is why the steps are important. Example: Non-observance of the strike cooling
off period; the majority vote of all the members of union in strike referendum. The procedure must be clearly observed.

Third: Grounds – ‘purpose’ in the book. Strictly 1) deadlock 2) ULP. Strike may be possible only if there is a union.

Fourth: Commission of illegal acts in the course of the strike. These illegal acts are by and large discussed under art 264
(old) – commission of acts of violence, intimidation, threat among those who do not want to join the strike will be
considered to be illegal; in the same manner that if you block ingress to or egress from the establishment, it is considered
to be illegal; if you block public thoroughfare, that is also illegal… particularly these are committed in the course of the
strike. In one case, nagkatalo lang as to who padlocked the establishment and mngt was able to take photos of union
members who padlocked the tower… operators were not able to go to the tower… that is a form of illegal act. Of course,
violence.

Fifth: violation of injunction. Who can enjoin a strike? Sec of Labor and the President. If there’s already an assumption of
jurisdiction (263 (g))… the assumption means that the strike is automatically enjoined and workers, if strike has already
been declared, are directed to return to work and that mngt is under obligation to admit them under the same terms and
conditions prior to the controversy – status quo before the strike. Strike – impending or actual. Therefore, if the workers
will not comply with the assumption of jurisdiction, that will render the strike illegal. May period be to be declared illegal
by virtue of such? Normally it is immediately upon receipt of the assumption order. Must remove all paraphernalia. If they
will not receive the order, post it in the picket zone, photograph it. But they are deemed notified. Cannot be made by
postal service – may be received after 3 weeks.

Sixth: violation of a contractual agreement. Can parties actually agree that they are not going to go on strike? Yes. This
agreement can be found in the CBA – no strike clause/provision. This is applicable only to economic strike (deadlock). This
cannot extend to ULP strike. Rationale: they have agreed to the terms 5 years ago. The recourse should be continually
talking and bargaining. Remember the automatic renewal of CBA.

Consequences of an illegal strike:

A union officer is terminated – when any or all of the six factors are present.

A union member is terminated – when he has knowingly committed an illegal act in the course of the strike; union officer
will also be terminated – because due diligence is expected from them – damay sila.

Assumption Power of Sec of Labor and Employment:

The distinction lies whether the industry is one that is indispensible to the natl interest or one that provides essential
services. In the former, the secretary MAY assume jurisdiction; in the latter, the secretary is MANDATED to assume
jurisdiction within 24 hours after receipt of the information that there is a strike or a labor dispute likely to cause a strike.

Indispensable to national interest – is not always the question of whether we survive or not but because, say for example,
it may affect the collection of taxes (example given: SM malls)

Labor Law 2

March 6, 2019 Transcription

We are going to conclude the discussion related to strike.
Assumption power of Secretary of Labor and Employment.
We are saying that there are two types of industries considered in art. 263. One is those to the mind of the Secretary,
because the law says that in his opinion there exist a labor dispute that will likely cause strike in an industry considered to
be indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction or certify
the case to the commission for compulsory arbitration. Actually, Secretary may assume jurisdiction over the controversy
and decide it or the other option is to certify the case to the commission or compulsory arbitration.
The other instance is the Secretary is mandated by law to assume jurisdiction in the period of 24 hours after he has learned
of a labor dispute that will likely cause a strike or lockout in an establishment providing essential services. Globally, under
ILO 87, 88 essential services cases are those that, when workers go on strike, it will endanger their life or limb. How do
you know? Think of a situation where it will cause danger to the people when this group will go on strike. An example of
that, at least in other countries, strikes conducted by airport tower operator. Apparently in some countries, airport
operations are done by people from government therefore they cannot go on strike. If you go on strike, certainly it will
endanger life of people, always the Secretary of Labor is mandated by law to assume jurisdiction. The other lesson that
we have to remember when it comes to national interest cases is you are not supposed to substitute your judgment over
that of the secretary because it is based actually on his assessment. That’s why in recent past, when I was in legal
department of DOLE, there are situations that secretary assumed jurisdiction over a dispute involving small college in
Davao. To the mind of the Secretary that college provides services considered to be indispensable to the national interest.
What about saging? Because saging is always a subject of labor controversy in Davao, the contribution of the banana
industry is so huge, when operation is disrupted there, certainly that is a national interest case. So what will the Secretary
do? The Secretary will come up with an assumption order. The assumption order will automatically enjoin the strike with
an order to return to work or if no strike has been declared yet, the strike or at least the notice of strike is automatically
enjoined so the workers can no longer proceed with their concerted action. Last Friday, as we started this discussion, we
said that some acts of workers while not in the character of work stoppage may also be construed as a form of a strike but
not a conduct of picket for example, not necessarily in the form of a strike. For example, there are people outside in our
office demanding this and that but that is not strike. That is only in the exercise of the workers the right to freedom of
expression, a protective right of workers.
As I have mentioned to you already, you have to look at the case of Dusit Hotel in relation to the shaving of the head.
NUWHRAIN vs Dusit Hotel. Shaving of heads is actually in the character of a concerted action and interpreted as a strike.

National Union of Workers in the Hotel Restaurant and Allied Industries v. Court of Appeals
G.R. No. 163942, 166295, November 11, 2008
DOCTRINE: A strike is any temporary stoppage of work by the concerted action of employees as a result of an industrial
or labor dispute.
FACTS: The Union is the certified bargaining agent of the regular rank-and-file employees of Dusit Hotel Nikko. The
problem arose in 2000, when the Union and the management of the Hotel failed to arrive at mutually accepted terms and
conditions of the CBA. Since the conciliation proceedings also failed, the Union reported for work sporting closely cropped
hair and shaven heads. In response, the management of the Hotel prevented such workers from entering its premises,
claiming that these workers violated the Hotel’s Grooming Standards. Because of this, the employees staged a picket
outside the premises of the Hotel which lead to a severe lack of manpower which caused the Hotel to cease operations in
three restaurants. The Hotel issued notice to Union members, preventively suspending them and subsequently dismissing
the Union officers for violation of the duty to bargain in good faith and violation of the Hotel’s Grooming Standards and
commission of illegal acts during the illegal strike. The Union filed with the NCMB a Notice of Strike on the ground of unfair
labor practice and union-busting.
ISSUE: Whether or not the Union conducted an illegal strike.
HELD: Yes, the was an illegal strike. Art. 212 (o) of the Labor Code defines a strikes "any temporary stoppage of work by
the concerted action of employees as a result of an industrial or labor dispute." The SC cited the various categories of an
illegal strike, to wit: (1) when it is contrary to a specific prohibition of law; or (2)when it violates a specific requirement of;
or (3) when it is declared for an unlawful purpose; or (4) when it employs unlawful means in the pursuit of its objective;
or (5)when it is declared in violation of an existing injunction, such as injunction, prohibition, or order issued by the DOLE
Secretary and the NLRC under Art. 263 of the Labor Code; or (6) when it is contrary to an existing agreement. In the case,
the Union is liable for conducting an illegal strike for the following reasons: First, the Union's violation of the Hotel's
Grooming Standards was clearly a deliberate and concerted action to undermine the authority of and to embarrass the
Hotel and was, therefore, not a protected action. The appearances of the Hotel employees directly reflect the character
and well-being of the Hotel, being a five-star hotel that provides service to top-notch clients. Second, the Union's
concerted action which disrupted the Hotel's operations clearly violated the CBA's "No Strike, No Lockout" provision.
Third, the Union officers and members' concerted action to shave their heads and crop their hair not only violated the
Hotel's Grooming Standards but also violated the Union's duty and responsibility to bargain in good faith.

The 6 factors should be very very familiar to you because we are going to judge the legality of a strike, all you need to do
is to run through to your mind the 6 factors affecting legality of strike.
The other lesson is about sweldo, may sweldo ba during the strike? No. If I am the labor arbiter, if its proved that the
ground of the strike is ULP for example, it might appear that the payment of the salary during the period of strike may
be ordered by the labor arbiter but that is not automatic. It’s up to the labor arbiter to order such. Obviously in the
bargaining deadlock and they used strike as a way to pressure the management to give in to the demands of the workers.
I have to say that there is no reason to grant of salary during the period of work stoppage. So depending on the situation,
that’s why we said the 7 days’ strike ban is actually a period for the workers to prepare. For a certain period, they will be
outside the company premises and they are not going to be paid of their salaries. Ang problema namin in the past is,
given now that many establishments have multiple occupancies. Because the picket should be somewhere where people
can see them but its not supposed to obstruct traffic. For example, if companies inside the mall where will they undertake
their picket? Medyo mahirap. Medyo tricky in the sense because it can cause disturbance to the public and may actually
a ground to declare the strike illegal. That might be construed as acts of violence, even just the blocking of a public
thoroughfare is already an act considered illegal, in the course of the strike.

What about replacement workers, do we allow replacement workers? Yes, we allow replacement workers in the course
of the strike. As far as jurisprudence is concerned, whenever the striking workers will now declare that their strike has
ended, automatically the replacement works are deemed terminated, there being as a replacement workers, ended at the
time workers will now consider going back to work. Kumbaga, they don’t have right per se over that position because
those position are held by striking workers and striking workers when they intend to go back are supposed to be admitted
under the same terms and conditions prior to the controversy. That is also the same principle that you apply when you
talk about the assumption power of the secretary of labor and employment.

We have already answered as to the question “Who will be terminated in case the strike is declared illegal”.
By the way, management has no power to terminate an employee by reason of strike. In fact, it is not among the grounds
for termination under articles 282 and 283 and 284. Its not among the grounds because management has no power to
undertake or implement termination by virtue of illegal strike. That power is vested in the labor arbiter, so its the labor
arbiter who supposed to order which employee has lost their employment by reason of participation in illegal strike or
commission of illegal acts in the course of a strike. Depending on whether you are an officer or a member only of the
union.
That will take care of the entire book five of the labor code.
We are moving now in Post-Employment.
Look at the labor relation framework that I discussed to you. We discussed labor relations, how do they become legitimate,
what are the grounds by which their legitimacy maybe challenged, can they voluntarily resolve this, what if these rights
to self-organization is violated? What about questions as to the composition of the union? These are things that we have
covered, the homogeneity of the members of the union for example. We have distinguished what is a bargaining unit from
the Union. Then we moved to discussions of violations constitutional guaranty to self-organization which is ULP. We
discussed collective bargaining, representation matters and subsequently we discussed strike. Practically the entire
matters of Labor Relations have been covered already in our discussions.
Post-employment or Termination
The first part is security of tenure, which is art 278, on security of tenure. Security of tenure is not permanence.
The entire of 278 to 287, actually speaks of termination. Remember that it is a termination dispute; jurisdiction is in the
Labor Arbiter.
I hope we can discuss the jurisdictions. Jurisdiction of med arbiter, regional director, labor arbiter, voluntary arbitrator,
secretary of labor, commission. In labor standard; wage board, NCMB. In pre-employment; OWWA, POEA, regular courts.

NCMB have jurisdiction over strike. The NCMB is only ousted of its jurisdiction as far as the strike is concerned as soon as
the secretary assume jurisdiction. Precisely because AJ siya, the Secretary ASSUMES JURISDICTION, whoever assumes the
jurisdiction over the dispute is already ousted of jurisdiction. Whenever, that is not resolved yet, the NCMB continues to
have jurisdiction at least for the purpose. Remember that the strike will not be going to be resolved. No one will resolve a
strike, it’s either the workers and the strike or management can actually agree to the demands of the union and that will
end the controversy but no entity or no tribunal can end the strike unless the secretary assumes jurisdiction. The secretary
now may together with the assumption of jurisdiction, order to end the strike but NCMB can never end the strike. NCMB
is just there to mediate.
Art. 265 Improved and reduced offer balloting. Even if the strike has already been declared but there appears to be some
movements in the proposals, in the positions of the parties, government through NCMB can moto propio ask the union
members again “do you want to proceed or continue with the strike or not anymore?” Is it reduced offer or improved
offer? Depending on who you are asking, which one who are you looking at. Maybe if its management, management will
give you improve offer. If it’s a lockout, the union will probably reduce their demand. A reduction in the demand or
improvement in offer may, the law is saying 30 days but actually any movement in the position of the parties may warrant
the calling the strike referendum again, for as long as there is significant movement. If there is a movement certainly you
can intervene already as government practice, NCMB.

The concept of tenurial security, is actually saying that no person or no employment maybe terminated unless based on
just cause or when authorized by law. 278 and 279 on security of tenure, art 280 is regular employment.
What makes a person regular? Who is a regular employee? (Kharrel was called and grilled by sir) Meaning to say at some
point, time will say whatever is your status and therefore if you are asked with the question; “Will time dictate the status
of the regular?” What circumstances would that be possible? (Sir called sir besa)
Think of a job that is not considered to be necessary or desirable in the usual business or trade of an employer.
All employees should be considered regular but why many employees are not regular? How many status are there in the
labor code? 6 status. Regular, casual, project, seasonal, probationary, found in the provisions but what the SC added there
is fixed-period employment in the case of Brent School. Why is that like that when we say that all activities are usually
necessary and desirable?
-end-

LABREL (March 11, 2019)

RECIT.
Could you explain to us the concept of regular employment in the light of provisions of Article 280?
---necessary and desirable---
WHAT IS REGULAR EMPLOYMENT?
It appears that all activities are “usually” necessary or desirable in the usual trade or business of the employer.
So, I challenge you, can you give an example of a job performed by an employee
Who/which might not be considered necessary or desirable. We all admitted that that is the case and
therefore, what reason do we have for making a distinction when in fact all activities performed by a worker is
considered to be necessary or at the very least, desirable?

HOW MANY STATUS OF EMPLOYMENT ARE THERE, MENTIONED IN THE LABOR CODE?
1. regular
2. project
3. seasonal
4. casual
5. fixed
6. probationary

WHAT ABOUT CONTRACTUAL EMPLOYEES?

They are seasonal? If you are contractual, you are seasonal? Ha?

IS A CONTRACTUAL EMPLOYEE A STATUS OF EMPLOYMENT?

How do we treat now a contractual employee?
So there is no such thing as a regular-contractual employee?

REGULAR-CONTRACTUAL EMPLOYEE: are those terms incompatible?

Granting I am a contractual employee and I have rendered one year in service, am I a regular employee?

Remember, BENEFITS, as you construe it, is --- actually SWB. Social Welfare Benefits referring to the benefits
that are mandated by law in your context. But these are actually in compliance to the so-called SOCIAL
LEGISLATION. These are SOCIAL LEGISLATIONS and never did we imagine that all of these apply only to REGULAR
EMPLOYMENT. REMEMEBER, since JUNE up to OCTOBER or NOVEMBER, we never discussed to you REGULAR
EMPLOYMENT. Why? Because LABOR STANDARDS DO NOT DISTINGUISH. Can you imagine, after completing all
discussions related to labor, now that we are about to end the semester, you are asked a question WHO IS A REGULAR
EMPLOYEE?

After all these months, we have not talked about REGULAR EMPLOYMENT. Why? Because all of these rights to
LABOR STANDARDS, SECURITY OF TENURE, THE RIGHT TO SELF-ORGANIZATION AND COLLECTIVE BARGAINING, are all
available to all employees regardless of status. We’d want to make a distinction now because the different status of
employment will become material for the purpose of say, tenurial security. What defines that security. We said there is
REGULAR EMPLOYMENT, there is such a thing as PROJECT EMPLOYMENT, there is such a thing as ---, there
is such a thing as SEASONAL EMPLOYMENT. Or you can be considered CASUAL, or according to you,
PROBATIONARY STATUS. What about contractual workers? Have you heard of contractual workers?

CONTRACTUAL WORKERS
Public, in general, construe contractual employees as their STATUS OF EMPLOYMENT. Where do they
migrate after being contractual employees? What is the understanding of many people that after being contractual,
they will migrate to being regular? Sometimes we are confused with contractual, casual, or project employees. All of
these may be defined by time BUT NOT NECESSARILY. What about contractual workers? Is their employment defined by
time? No! not necessarily. So do not associate LABOR STANDARDS AND RIGHTS OF WORKERS IN RELATION TO
REGULAR EMPLOYMENT. That even the right to self-organization and collective bargaining applies to
workers under probation, under temporary status, under project employment or those that are considered to be fixed
period employment. Those rights apply to all workers, diba? No distinction whatsoever. Even in Article 82: applies to all
workers, may it be RELIGIOUS, NONPROFIT, all types of employment. But now we came to a point where we have to
distinguish the different status of employment.
What are we talking about here?
Who is a regular employee again? ONE WHO PERFORMS ACTIVITIES NECESSARY OR DESIRABLE TO THE USUAL
BUSINESS OR TRADE OF THE EMPLOYER. The thing is, all types of jobs in a bilateral employment may be considered to be
either necessary or at least desirable. Because if you look at it, there are only three types of work people do in this country
or in the whole world. What is the first one? Directly related. An example of directly related would be a teacher employed
by the university. What about an accountant? An accountant is necessary so that the tuition, etc are all taken care of.
What about desirable? As I mentioned last time, an AIRCON TECHNICIAN. Is it directly related? No, there will always be an
aircon technician wherever we go. Can the school survive without an aircon technician? The answer is YES. That can be
outsourced anytime.

Or you have an in-house mechanic who will take care of the repairs and maintenance of your cars. OKAY! Is that
desirable? Yes! Is that necessary? No! because you can always have the autoshop take care of the maintenance of your
vehicles. And therefore, in relation to Article 280, there are only TWO categories mentioned. Because we know if it’s
directly related, it is NECESSARY. Directly related is mentioned in what article? It’s mentioned in Article 106.

WHAT IS DIRECTLY RELATED?

Directly related is actually mentioned in relation to our law on labor-only contracting. By way of recall, there
are two tests by which you will know that the arrangement is LABOR-ONLY CONTRACTING.
What is that? The first set is that THE CONTRACTOR IS NOT SUBSTANTIALLY CAPITALIZED, IT HAS NO INVESTMENTS IN
THE FORM OF TOOLS, MACHINERY AND EQUIPMENT AND WORK PREMISES; AND THAT THE WORKERS EMPLOYED BY
THE CONTRACTOR ARE PERFORMING ACTIVITIES WHICH ARE DIRECTLY NECESSARY TO THE MAIN BUSINESS OF THE
PRINCIPAL. Tama? That is where DIRECTLY RELATED WAS MENTIONED. So that, obviously if it’s directly related and no
capitalization on the part of the contractor then the arrangement is LABOR ONLY CONTRACTING.

Of course, the second set is with respect to that the contractor does not exercise the right to control over the
performance of his workers. Stand-alone criterion for purposes of determining Labor-only contracting. So that is clear.
But that term DIRECTLY RELATED is used to distinguish or identify the in the work arrangement is considered to be LOC.
And then months passed and we discussed so many things. This was probably last August. Eventually, we are now
presented an IDEA that there are two other types of what people do. And these are those that are considered necessary
and those that are considered desirable. And these two determine the status of a particular employee. If he performs
these functions, he is considered to be REGULAR.

But then, the Labor Code also allowed other forms of employment arrangement. Remember that REGULAR
EMPLOYMENT IS NOT DEFINED BY TIME. It’s indefinite. The correlation there is Article 287 on RETIREMENT. Kung baga,
the end of my engagement as a regular employee is when I RETIRE. Or when I resign. Or when I am terminated based on
just and authorized causes of termination. That’s the end of my employment. But in the meantime, I do not know when
is that going to end. Because my employment is not defined by time. Fortunately for the employer, there are things that
people do which can either be defined by time or by a contingency.
What types of work are defined by contingency? Obviously, a project employment is defined by contingency. What
is your employment contingent of? It is contingent on the completion of the project or a phase thereof. The best example
there is in the construction business. If you are a steel man, or you are an aircon technician, you install air-conditioning in
a building, you don’t come in when they’re doing ground works. What do you do? What are you going to do there if you
are an aircon technician? If you are an aircon installer or you are the electrical guy. Who are electrical engineers here?
*looks for engineers. if you studied engineering, you will understand that projects are done on phases. *talks about jobs
related to construction etc. in the same manner that if you are a tile installer, you don’t come in when they are still
repairing the structure, your time comes in when they are about to finish to project. And therefore, your engagement will
only be a phase of the project. Therefore, your status is a project employee. What determines your engagement? It is a
PARTICULAR CONTINGENCY. Or it is based on something that may be defined by time because some projects are defined
by time. Therefore, you are a project employee.

IF YOU ARE DOING ACTIVITIES WHICH ARE USUALLY NECESSARY AND DESIRABLE IN THE USUAL BUSINESS OR TRADE OF
THE EMPLOYER AND YOUR EMPLOYMENT IS ONLY FOR A PARTICULAR PHASE OR PROJECT, what is your status?
 What about the fact that what you are doing. If you are in the construction business and you are doing tile setting.
Is that necessary or desirable in the business of construction? Yes or no? What is your status? Why are you a project
employee? What is the conclusion now?
It appears that NOT ALL JOBS which are considered to be necessary and desirable would immediately graduate to
be a REGULAR. You are a project employee because your employment is defined based on a particular project. Whose
start and finish is determined at the start of your engagement. And therefore, your status is project employment. There
is a definite thing that you’re supposed to do and when this thing is done, employment ceases.

Which is not difficult to explain now the concept of seasonal employment. What is seasonal employment? You
are only employed for the duration of the season. And this season will be defined also by the season. If it’s a harvest
season. For example, in the sugarcane industry. What is your status? Your status is a SEASONAL EMPLOYEE. Meaning to
say you are hired to be a harvester for how long? Well, the harvest of our 100 hectare of sugarcane will be for three
months more or less. That is your employment for a particular season. It’s different with project because project may not
necessarily be attached to a particular season. In that sense, it’s not. you can construct in January, February, all year-round
you can do construction. But there is a project you are supposed to complete or there is a phase thereof that determines
your engagement.

WHAT IS THE FOURTH ONE: FIXED PERIOD EMPLOYMENT

As defined to us by the SC in Brent School. Sabi ng Brent School “okay lang na fixed period employment for as long
as the requisites concur.”
****Requisites of a valid fixed period employment.
THEY DEAL WITH EACH OTHER ON MORE OR LESS EQUAL FOOTING WITH THE EMPLOYER HAVING NO MORAL
DOMINANCE OVER THE EMPLOYEE. Kung baga, this does not apply when you are a sales associate of a mall. Payag ka
5mons lang, fixed period employment. Worker: basta naa lay trabaho, boss. The question is “DID THE ER-EE DEAL WITH
EACH OTHER WITH MORE OR LESS EQUAL FOOTING?” the ruling in BRENT SCHOOL was used in PUREFOODS. Pwede naman
pala, so all the canning factory workers are supposed to be on fixed period employment. Sabi ng SC: NO! that’s not what
we mean when we say “they should be dealing with each other with more or less equal footing” you know what is the
most important criteria in FIXED PERIOD EMPLOYMENT? It’s the level of knowledge and aptitude of the worker with
respect to the employer.
Kungbaga, the contemplation of the law here maybe if you are a lawyer and you are engaged by the company for
a particular fixed period, and then when you are terminated because your contract ended already, you cannot say, if you
are a lawyer that “you know, we have not dealt with each other with more or less equal footing” they asked me to sign
something that I do not understand. Can a lawyer say that? Definitely not! Why? Because it is assumed that that person
can deal with the Er on more or less equal terms.
Those persons in the malls are given fixed period employment and the question is are they dealing with the
employer with more or less equal footing? Oh pirma! –unsa diay ni mam? –pirma para kasugod ka ugma. – kani unsa diay
ni mam? –unsa man, musugod ka ugma o dili? PIRMA! What is signed is actuallt a blank payroll with presigned resignation
letter, waiver… at least in the past. These things happen in the past. That workers are asked to sign everything before they
actually engage.
Ang concept before, bakit 5 months lang kasi para mag abot ng 6 months. Bakit kung 6 mons pala? Maging regular.
So nag rest ng 1 month, next month again, another 5 months. Dili gyud paabuton ug 6 months because they will become
REGULAR. Then came the term 555.
IT IS NOT ACTUALLY TIME THAT DETERMINES THE STATUS OF EMPLOYMENT. IT IS THE NATURE OF THE JOB
PERFORMED BY THE EMPLOYEE.

SEGUE (tips on presentation)

By way of guidance in the presentation, if you really know the case, you can cite that at the beginning. “as cited
by the SC in” if you are confident. *talks about his bar exam.
If you’re not sure, nevermind. Example, “the authority in this subject matter is Brent School” you don’t even have
to cite everything because basta mga landmark cases, your examiner will not expect you to do the elaboration.
The case carries with it the authority of a legal principle which everybody knows, it’s enough that you cite the title
of the case.
ARE YOU CLEAR ABOUT FIXED PERIOD EMPLOYMENT?
We’re not talking about just any other engagement with anyone that you would want to put on fixed period
employment. The most important requisite is ACTUALLY THE ABILITY OF THE EMPLOYEE TO DEAL WITH THE EMPLOYER
ON MORE OR LESS EQUAL FOOTING. Parang doctor ito that you employ for one year, oh sige inhouse dentist. What I’m
doing is necessary to the business of the company. You agreed to a fixed period employment. Do you think the dentist
would have signed anything without reading and without knowingly discussed this with the employer. “yung employment
mo ditto is good only for one year” that should take care of your employment with us. Kasi depende yan, in the case kasi
of Brent School, the subject there is an athletic consultant. Can you imagine if Norman Black files a case against Ateneo
for Illegal Dismissal? Because he’s terminated as a coach for example? Do you think Norman Black had not dealt with
Ateneo on more or less equal footing, that probably applies to other coaches also. So, in this case, he agreed to a three
year engagement with Brent School. tapos nung natapos na ang contract, “why am I terminated?” he must’ve loved Brent
School. so he filed a complaint for illegal dismissal. The SC affirmed the fact that he agreed to a valid fixed period
employment. The distinction is clear with respect to the employees of the canning factory and this Alegre guy being the
consultant of the college for it’s athletic program.

The other one. How many have we mentioned. Regular, project, seasonal, fixed period, and casual employee.
Who are casual employees? UNFORTUNATELY there is no definition for CASUAL EMPLOYEE except that what? They are
neither of the FOUR. Meaning to say he is not doing activities which are usually necessary. Casual employees have no
definite period of engagement. He’s only defined by the fact that what he’s doing is not among the first four. He’s neither
REGULAR. He’s not project, seasonal, fixed period. What is he? Ano daw example dyan? Parang Xerox operator ka of a
company who is not in the business of reproduction. But in the meantime, they have papers to reproduce. Or was it
shedding machine operator. In the meantime, they have so much files that they need to dispose of and therefore someone
should do the shredding. And they hired someone to do the shredding. What status am I going to give to this guy? Maybe
contingent upon the completion of the shredding of all these papers. For as long as there are papers to shred, you are
employed. And if you have been there for one year, you become regular for as long as there are still papers to shred.
Because that is the definition of a casual employee right? Contingent as long as that activity exists. Pag naka one year na
sya, regular. To my mind, there is no such thing as a casual employee. The closest that I have read is the shredding guy.

COMBINATION: regular-project and regular-seasonal

March 15, 2019

Labor Relations – Atty. Jason Balais
Different status of employment in relation to Art 106:
In trilateral arrangement, you have three entities here, you have the Principal, the contractor, and the Employees
of the contractor. Just to clarify the concept of a “contractual employees” (ConEe)… if you define ConEe, by way
of saying that they are ConEes because their employment is governed by a contract, then whose employment
is not covered by a contract? Those of us who are working, including myself, have a contract to the Republic…
whether in writing or not… it does not matter… but you have a contract definitely. I am a ConEe because I have
a contract with my employer, is that the definition? No. because there is no such thing actually as ConEe per se.
By reason of that, Con-employment is only available because we have trilateral work arrangement (P-C-Ees of
C). Example: Janitorial services in UM. The contractor hires his employees. Their status of employment will
depend on what art 280 says. Therefore, since their employer is the contractor with the presumption that the
contracting is legitimate, they are performing activities which are necessary and desirable in the usual business
of the employer, then they are regular employees to their employer. No relationship with the principal.
Bilateral arrangement: Er-Ee. No problem. Status of employment depends on Art 280.
Their status as employee will have to do with what the business of their employer is. They could also be seasonal,
project… that is the concept of ConEmployment in a sense… they are contractual because they are employees
of the contractor probably from the perspective of the employees of the principal. This is their view of who these
people are. But that is not the status of their employment. Note: If it is labor only contracting, they become
employees of the principal.
Probationary employment (PE/Ee):
Reason of the law: the employer is given the chance to test the fitness of the person for regular employment up
to a maximum of six months which is equivalent to 180 days as defined in Mitsubishi case.
180 days – starts from the time he is given his appointment as Pee; time of his engagement plus 180 days
thereafter – that is his period of probation.
Subject to 2 exceptions/circumstances/instances – more than 180 days of period of probation:
1) When the employer gives chance to the employee to prove himself his fitness for regular employment
done in good faith and not in circumvention of the law on PE – example: maayo ning bataa, buotan pero
may pagkatanga lang gyud pero sge lang, hatagan ug chance. Note: Prolonged extension will belie the
fact… it will tell us already that his fitness for regularization has already been proved by the Er. Before
the end of six months, you will tell the Ee, your period of probation is extended because we have not
proved your capacity to become regular; will give you another chance to prove your work. When are you
supposed to communicate this? Prior to the exp of the period of probation; otherwise, day one or
immediately after the exp of the period of probation, when the employee suffered to work he is considered
to have attained the status of regular employee.
2) Codal provision Art 296 – if it is established by way of an approved apprenticeship agreement/program,
that that kind of work necessitates longer than 6 months for the person to familiarize himself with the job
and for that matter, to be tested for his fitness for that particular kind of work. Exception rather than the
rule. In this regard, it is now clear that there cannot be duplication between apprenticeship and prob
employment. Remember apprenticeship and learnership… Apprenticeship, after July 2018, has now
been brought to our attention again and we are now saying that prob and apprenticeship cannot be
treated separately. The period of probation may also be the period of apprenticeship. You cannot be put
in an apprenticeship and then now you are on probation. (example of old HRs daw na naagian tanan
status of employment) (note: app. And learnership – 75% of minimum wage; probation – mandated
minimum wage)

Requisites of a valid PE:

1) Apprise the employee of the his status at the time of engagement – proof must be established that the
employee was informed as his status as a Pee at the time of his engagement; and
2) The standard by which he will be assessed whether he is ready for regular employment or not should be
made known to him also at the time of engagement

Therefore, failure on the part of the Er to comply with these requisites, that means that the employee was never
placed on probation. His status now will be… regular – if nec and desirable.
Remember…
GR: Regular
XPN: Probationary
These matters are those pertaining to employees not in the field of teaching – different set of rules that govern
those in the academic institutions – private sectors
Requisites to become regular Ee:
1) 3 years of service/ 6 semesters/ 9 trimesters – full time
2) Must be satisfactory; and
 3) Continuous

Under MORPHE:
1) Academic teaching positions – e.g. teachers
2) Academic non-teaching – unique to the academe – e.g. registrar, librarian, guidance counselor
3) Non-acad & non-teaching – e.g. sir alex – not unique

The regulation applies only to (1) and (2) – 3 years

(3) is covered by the Labor Code – 6 months
Termination:
Meron na tayong mga termination na napag-usapan –
Casual Ee – when job no longer exists – terminated
Seasonal Ee – end of season – terminated
Project Ee – end of project – terminated
Fixed period Ee – end of FPE – terminated
Probationary Ee – failed to qualify for regularization – terminated
Under Apprenticeship Program – failed to qualify for regularization – terminated
Of course, not true for learners because there is promise to hire after 3 months.
It appears now that, except for regular employment, all of them could actually be considered legal ground by
which termination may be effected.
Articles 282 and 283 (old) – subject matter of many controversies
Constructive dismissal – an employee is placed in a circumstance/s which render/s him no other choice except
to resign. (E.g. transferred from one place to another) – not found in Labor Code but in jurisprudence
Causes of termination & their differences:
Art 282 (old) – common to the enumerations/nature of these offenses – acts committed by the employee/fault
attributable to the employee… distinguished from…
Art 283 (old) – common to all of them – these are an exercise of management prerogatives (best example:
automation)
282 - never mentioned separation pay
283 - mentioned separation pay of varying amounts and computations
282 – Serious misconduct:
Impt – Relationship of the offense to the work performed by the employee – 2013 Bar Q:
Jose and Erica, former sweethearts, both worked as sales representatives for Magna, a multinational firm
engaged in the manufacture and sale of pharmaceutical products. Although the couple had already broken off
their relationship, Jose continued to have special feelings for Erica.

One afternoon, Jose chanced upon Erica riding in the car of Paolo, a co-employee and Erica's ardent suitor; the
two were on their way back to the office from a sales call on Silver Drug, a major drug retailer. In a fit of extreme
jealousy, Jose rammed Paolo's car, causing severe injuries to Paolo and Erica. Jose's flare up also caused
heavy damage to the two company-owned cars they were driving.
 (A) As lawyer for Magna, advise the company on whether just and valid grounds exist to dismiss Jose.
(4%)

(B) Assuming this time that Magna dismissed Jose from employment for cause and you are the lawyer
of Jose, how would you argue the position that Jose's dismissal was illegal? (4%)

How would you argue in behalf of Jose?

Requisites for “serious misconduct”
1) It must be serious
2) It must relate to the performance of the employee’s duties
3) It must show that the employee has become unfit to continue working for the employer

What Jose did was not related to the job he is in charged to.
Now, argue in behalf of management:
Look at it from all possible arguments. All other grounds in Art 282 may be argued except for, obviously,
serious misconduct argument which is in favor of Jose already.
- Commission of crime
- May breach of trust & confidence – nature of job, in possession of money
- May be neglect of duty – may have the duty to take care of the company-owned car

Labor Law 2 March 25, 2019 Transcription

So what are the issues related to Post-employment?

As a matter of fact in the med-rep example we had last time (2013 bar question), practically it covers already the entire
principle related to post employment in as far as just causes of termination are concerned. Meron na tayong issues on
serious misconduct, yung serious misconduct in relation to bar question, ang issue talaga ng misconduct is on the
relationship of the act committed by the employee in relation to his job, always. No matter how it appears to be as
serious misconduct. For example, gibuak tanan botelya sa beer, walay labot, does nothing to do with his job. Unless of
course, where in the person who would act in the public like that, where he would probably be charged of for purposes
of termination? Baka dun titirahin sa willful disobedience. Bakit? Probably in the employment contract, he must have
agreed there to conduct himself in public in accordance with the standard of society for example. Therefore, if he violates
that, he is not guilty of serious misconduct but his guilty of wilful disobedience of what has been stipulated in his
employment contract. That is where the trick might be coming from. (Litanya ni sir, some of us cannot identify the issue
in the exam )

Willful disobedience

What is the issue? you just look at based on whether the order or what is given as an order is considered to be reasonable
or legal, was it merely communicated to the person, is that related to the thing that his in charged to do? Look at the
requisites when it comes to wilful disobedience. Pag wala dyan, it’s not willful disobedience. When you are asked to jump,
what is your answer? That is the matter related to wilful disobedience. It has to be in relation to the thing or the person
in charged to do.

Breach of Trust and Confidence

The other question is on the matter of breach of trust and confidence is also a relevant question in the bar. What is
important in that regard is, with respect to breach of trust and confidence, dapat this is confined only to people or persons
charged with the trust and confidence particularly those people occupying managerial positions and those occupying
supervisory positions. Accordingly, also they should be in charged of the money and property. Yung mga na enumerate in
many positions, yung mga chef, property custodian, driver, your position is one that is reposed with trust and confidence,
not just anybody, halimbawa, janitor. It cannot be like that.

Gross and Habitual Neglect of Duty

The question would come on the matter of the requisite of damage. Diba, there is gross and habitual neglect of duty. Is
damage an element for that offense to be committed as a ground of termination? Kailangan ba may damage? Is damage
and element or pwede ka ma terminate kahit walang damage for as long as you have abandon or neglecting your duty?
The answer is damage is not an element. According to the rules you cannot wait for the management to suffer damage
before you remove an impending evil. Wag mo nang antayin that damage is done before you terminate that person. You
can terminate the person if the person is habitually neglecting his duty.

Commission of crime

If a worker or employee commits an offense against you in the context of our criminal law, then that person can certainly
be terminated.

Procedural Aspect

Let me talk about the procedural aspect together with dun sa authorized causes of termination under Art. 283. Yung 282,
what is the nature of the offense again? These are offenses that are attributable to the fault of the employee. Dun tayo
sa management prerogative. Art. 283 is not grounds that are attributable to the fault of the management. That is wrong.
These are grounds in the exercise of management prerogative. There are four of them:

Automation/labor-saving device

Why is that labor saving? Do they save labor? Actually they are saving on labor costs, not saving labor. In fact, labor is
terminated by reason of that. You save in the cost of labor that’s why it’s called labor saving device or automation. When
company resorts to computerization, automation for example, that may affect the worker.

Redundancy

When is there redundancy? What are the three instances by which redundancy may happen? OPV

1. When there is overstaffing- You have more people than you need therefore, under the law you are allowed to
terminate the services of your employees. You call it redundancy resulting from overstaffing
2. Dropping of a particular product line- Example is Merco, there used to be dinuguan, puto, luglug (makagutom)
what happens to those people preparing the food? They’re all terminated. Did merco cease doing business? No
Merco is still selling cakes and ice creams but they no longer serve dinuguan and all. They drop the restaurant
business. Workers are termninated but you are required to pay separation pay.
3. Reduce volume of production- bakit ka mag reduce? Probably your market has been cut down. For example saging
in the past where no longer exported in many countries like Iran, Russia and middle east. What did our banana
plantations do is they reduce the volume of production, they also have to cut their people.
The three of them will constitute redundancy; overstaffing, dropping of a particular product line and reduced volume of
production. Nokia has reduced production significantly. Those who are affect by the reduced volume of production are
terminated under the context of redundancy.

Retrenchment

What is difference between retrenchment and redundancy? Retrenchment to prevent losses, you don’t retrench if losses
are not eminent or losses is not eminent. Example. Bakit ka magreretrench? Wala lang, kasi sobra tao namin. Wrong! If
sobra ang tao what do you do? You declare those positions redundant. You don’t resort to retrenchment. Why is
distinction material between retrenchment and redundancy? Because the requirement of separation pay is different. For
retrenchment its only ½ month per year of service. For redundancy its 1 month per year of service. Of course the minimum
will always be 1 month for all grounds of termination under art. 283. That is retrenchment, retrenchment is to prevent
losses. Yung mga requisites of a valid retrenchment. What is that? It is necessary to avert losses, the losses mut be
substantial and not mere de minimis .That is retrenchment, retrenchment is to prevent losses.

May mga requisites din for a valid retrenchment. What is that?

1. It is necessary to avert losses.

2. The losses must be substantial and note mere de minimis.

Tinanong nayan sa bar. Sabi sa bar exam “Ang income nila last year 100 million ang losses this year, 3 million. Can they
resort to retrenchment, to prevent losses?”

It’s actually a test for you to enumerate the requisites. Whether you judge the 3 million is substantial or not is another
thing. You have to be mindful for this type of questions. Its not asking you judge whether the losses is substantial or not
or mere de minimis. Its calling you to enumerate the requisites for a valid retrenchment .

3. It should also be real and not imagine. Therefore, it is imminent and must be shown that when retrenchment is
resorted to it will save the company from bankruptcy or further losses.

It is important to underscore; it must be shown that all efforts have been exerted to save in all other respect before you
reduce the cost of labor. In short, in retrenchment issues, matters related to losses, the last that shall be affected will be
the cost of labor. It cannot be that the company continue to spend on foreign travel, hefty allowances, power consumption
continue to rise or say “lugi na kami, why? We cannot go to Australia next year or our bonus will be affected. What do we
do? We Terminate people” That is not the concept of losses. In short what should be the last that will be affected? It
should be the cost of labor.

Cessation of business

The cessation of business must not be grounded on losses. If it is grounded on losses, there is no requirement to pay
separation pay. Cessation of business must not be due to financial reverses. The closure has nothing to do with financial
reverse because if financial reverses is the cause of the cessation of business, the ruling in North Davao Mining Corp. vs
NLRC will apply. The company is no longer required to pay separation pay but if the cessation is by reason other than
serious financial reverses, the law requires the payment of separation pay. The procedure in 283 and 282 is different.

In 283, obviously there is no requirement for the employer to explain because the decision comes from the management.
Therefore, what would we do? We comply with the notices requirement.

One is automation, number two is redundancy, number three is retrenchment and number four is cessation of business
or closure. The first two which is automation or labor saving devices and redundancy will require the payment of one
month or one month per year of service, of course, whichever is higher to pay for a separation pay to be paid to the
workers. The last two which is retrenchment and cessation of business will require the payment of one half month per
year of service or one month only whichever is higher. So that is the difference between retrenchment and redundancy.
In retrenchment you are only required to pay one half, in redundancy you are required to pay one month per year of
service. The difference is actually huge. How do we know if we use redundancy or retrenchment? What is important is the
losses must be supported by substantial evidence, for a retrenchment to be resorted to. Otherwise, that will be construed
as redundancy. For example, will reduced volume of production resort to losses? It may or may not? If it results to losses,
therefor, what you will use is retrenchment. Pero kung reduced volume of production without necessarily the matter
resulting to losses, you cannot use retrenchment. All you can use is redundancy which will require the payment of one
month or one salary per year of service.

Disease

The other one is found in 284 which is disease. What are the requisites for disease to be used as a ground for termination?
Of course, one is that it will endanger the life of the employer or that of his co-employees and the same must certified
as such by a government physician/government doctor, if not, you cannot use disease as a ground for termination. Why
we include disease? Because disease is part of the 4. Although in 284, the requirement in 284 is also the payment of
separation pay equivalent to one half month per year of service. How many ground would require one half month of
separation pay? Three, retrenchment, closure and disease. For one month, (two grounds only) automation and
redundancy. Yun yung mga requirement for separation pay.

By the way, the ruling in PLDT, the SC ordered PLDT to pay the worker for his 27 faithful years of service in PLDT tapos
nangawat siya ug wire. Obviously, SC said terminated because that is serious misconduct but why the SC ordered the
payment of the 27 years of service? It was not in the form of separation pay, the SC refused to call it separation pay, it
was financial assistance so not to distort our law. So financial assistance may be or not be given. Why was financial
assistance ordered in that regard? because it was his first offense. The service was very long. Obviously dili ok mangawat
if you are in the service for 27 years, you will be terminated. Then again because of faithful service, first offense for
example, give it financial assistance but not separation pay because it is an offense committed by the employee, there is
no requirement to pay separation pay only those that are in the exercise of management prerogative.

Let’s go to the procedure. What is the procedure for termination in just causes?

Two-notice rule

What is the two-notice rule? What is the first notice? You call it the notice of charged. Some HR call it notice to explain
but actually you are being charged of, for example, serious misconduct, willful disobedience, gross and habitual neglect
of duty, abandonment. By the way, for abandonment to be used as a ground for termination. It is important according to
SC that there is serious effort on the of the employer to inform the employee that he is required to come back and his
refusal to come back will now warrant a conclusion of abandonment. If there is no effort on the part of the employer to
invite him to come back to work, that cannot be said to be abandonment. In fact, the SC looks at this that it is inconsistent
for the employer to charge abandonment when the employee challenged the legality of his termination. In short, the filing
of an illegal dismissal case is inconsistent of the charged of abandonment. Nag file ka ng illegal dismissal asking for
reinstatement tapos he is being charged of abandonment. The SC said parang hindi tama. It is incompatible. The charge
of abandonment is incompatible to the move of the employee to challenge the legality of his termination and asking for
reinstatement.

(going back to two-notice rule) Kung yun ang mga grounds for example, to write an employee, to give him what is known
as notice to explain or notice of charge. After the notice of charge, what is next? The conduct of administrative
investigation or administrative hearing. After the conduct of administrative hearing, he attends or does not attend, it
doesn’t matter as long as he is given the opportunity to be heard. What is next is giving of the second notice which is the
Notice of Decision. Sometimes, more often, it’s now called the notice of termination, the decision is to terminate. How
long is the gap between the first and second notice? If you look at the law, the law does not say about that. For example,
In the morning you give notice of charge, in the afternoon you give notice of termination. In two hours write your
explanation. No, is it ten days or two days? Within reasonable period, but it’s not defined by law. In 2015, it is the period
of 5 days, between the charges; the notice of charge/notice to explain and notice of decision. You know this guys, due
process, the opportunity to be heard, may formal hearing ba? Not necessarily.

What do you do if authorized causes under 283 and 284?

For management prerogative dismissal, what is the procedural due process requirement? You call it? The procedural due
process is called Twin-notice rule. In just causes termination, the procedural due process requirement is called Two-notice
rule, in authorized causes its called Twin-notice rule.

Twin-notice rule

Twin notice rule is notice to employee and notice to DOLE simultaneously filed 30 days prior to the effectivity of
termination. You have to give notice to the affected employees and DOLE, for DOLE to file. In order for DOLE to provide
bridging assistance, other employment, provide emergency employment for the meantime for 30 days. All kinds of support
just to cushion the impact of loss of the job. Of course, the second requirement after the Twin-notice is the payment of
separation pay. May mga practice na ganito, for example, ang termination is April 26, so bukas March 26 wag ka ng
pumasok but we will pay you from March 26 to April 26. Is that ok or not? Will that comply with the 30 days’ requirement?
In fact, it more than satisfy the requirement of 30 days’ notice. What is the idea of 30 notice for the worker? To look for
another job or to prepare himself for the termination. All the more he can prepare if he is no longer reporting work pero
paid, the next 30 days is considered paid. That is of course allowed.

This is about termination, what about suspension? Pwede bang mag suspend ng tao or hindi? Termination talaga? This is
how it is. There are two types of suspension: suspension acknowledged as a form of penalty and the other type is known
as preventive suspension What is the purpose of preventive suspension? So that the person subject of an investigation
cannot influence the outcome of an investigation, if he has access to file or talk to people there and influence the outcome
of investigation. In the course of the investigation, diba first notice, together with the first notice normally the person is
subjected to preventive suspension for a maximum of 30 days. For a maximum of 30 days, the person can be placed on
preventive suspension. After that, can you extend the period of preventive suspension? The answer is yes but during that
period the employee is considered paid. The other type of suspension is a form of penalty. Is it allowed? Of course.
Example, Ang infraction lang naman niya ay not wearing the uniform for several times, instead of terminating the person,
suspension for 5 days. Pwede yan. There is a graduation of penalty. That is certainly ok also but that is not mentioned in
the labor code. The rules on preventive suspension.

Procedural and substantive aspect

Do you have questions about the procedural and the substantive aspect of this? What is a substantive aspect? Whether
the person is really guilty or not. Correct? Or whether there is really redundancy, sobra ba talaga ang tao or am I being
singled out. In a way, in retrenchment, there should be a definite criteria for retrenchment. Sino ba dapat ang ma
retrench? Normally, the retrenchment formula, this is not the formula but this is also suggested, the so called LI-FO (Last
in-First out). This is the formula provided for by the labor code. (comment: inconsistent ang gi ingon ni sir, please refer
nalang sa notes/book) There is no such thing, walang ganyan. Management in cooperation of the workers and the union
could agree to a formula for retrenchment. “Ano bang unahin natin? Let’s offer first the retrenchment program to those
who are about to retire.” Next, LI-FO na. In the formula, if the criteria is not followed, it will result in an act of
discrimination. That’s why the substantive aspect now of the case is put to question. “Bakit ako? Why am I being singled
out?” When the criteria say, I will not fall among the first one to be terminated if only the criteria is strictly followed. That’s
why you challenge the legality of your termination. So you fall now into the substantive question of retrenchment. No
problem with the procedural aspect because you were given the notice 30 days prior and you are being invited to receive
your separation pay but you don’t want to receive because you questioned the legality of your termination. So the
question now falls in the substantive aspect. Parang automation din, “Why me? The thing that I’m doing is not being
replaced by a computer, Why I am included?” You are now questioning the substantive aspect. In the just causes, you can
question the substantive aspect, Example: “I just misplaced the refrigerator” You were charged with theft. That is serious
misconduct and your contention is that it was just misplaced. No you challenged, “Why I’m being terminated?” Another
example; Accompany her husband to the casino and she did not agree, terminated. Now you question the legality of
termination, so you can question the substantive aspect and question the procedural aspect of the termination. So the
termination dispute in actual could be the procedural aspect or substantive aspect.

Now, what are the consequences, why relation of both or either? In just causes of dismissal, if the violation is substantive
rights will that result in the finding of illegal dismissal? What are just causes again? Misconduct, disobedience, loss of trust
and confidence, gross and habitual neglect of duty, commission of a crime against the employer and other analogous
causes. If those substantive rights are violated, what will be the consequence? You go back to the provision of 223 or 224,
somewhere there. On the consequences of illegal dismissal. What are the consequences of illegal dismissal? By default,
an illegal dismissal will result in an order of reinstatement and payment of back wages. In the alternative it could be
payment of back wages plus separation pay in lieu of reinstatement by reason of strained relations. So kung violation
is substantive due process, it results in a declaration of illegal dismissal.

What happens if the grounds are correct but the procedure is wrong? In short, the person was not notified, he was not
given his opportunity to be heard, he was not given all the notices, although iya jud gibitbit ang refrigerator pagawas.
What happens to him? “Sabi ng owner sa guard, do not let this person get inside my premises” Is that an act of dismissal,
when you are precluded from entering the premises of establishment? Is that dismissal or not? It is dismissal. So the
person went to (inaudible) and say “I was illegally dismissed, even if I was the one who stole the refrigerator but I was not
given the opportunity to be heard”, will that warrant the finding of illegal dismissal? Yes or no? In short his procedural due
process rights was violated although the allegations are true. Is there illegal dismissal or no illegal dismissal? The answer
is, there is no illegal dismissal. In short, in just causes of termination, if the violation is on the procedural due process
rights, that will not result in illegal dismissal. That is of course different when the ground is anchored on substantive due
process.

Authorized causes

Let’s go to authorized causes. If there’s really no losses and no reduction in volume of production, there is no closure
actually. Nag close pero the next owner is his wife or anak niya, just to avoid the union for example, therefore what is
violated is? Their substantive due process, will that result in illegal dismissal? Yes or no? The answer is yes because its
substantive due process. What about procedural due process? The 30-day notice was not given, binigyan nalang ng
separation pay. The notice was only for 4 days. Therefore, the 30 days’ notice was violated. In short the procedural rights
of the workers were violated. Will that warrant a finding of illegal dismissal? Yes or no? The answer is no. In short there
is no illegal dismissal in the procedural due process rights violation for as long as the substance is correct. The labor
arbiter and our courts will always uphold the legality of the termination but of course that is not the end of the story. At
any rate you violated the procedural due process rights of the workers. Obviously, the employer will be penalized. Which
of the two do you think would have higher penalty? Just causes or authorized causes, which one will penalize the employer
more? for failure to observe due process in the procedural aspect? Obviously it should be the authorized causes. Why?
It is in the exercise of management prerogative at hindi pa kayo marunong mag dismiss, mag terminate ng tao. Unlike just
causes, the employee attempted on the life of the employer. Please explain why I will not terminate you after you have
stab me at back. Do you conduct administrative investigation there? Maybe not. What do you do? You terminate the
employee immediately and the penalty there according to the wordings of the SC in JAKA vs NLRC and subsequently clarify
by the SC in Agamon vs NLRC. In JAKA, the SC pegged at 50K, penalty. In Agamon, the SC just provided the guidelines.

Ano ang guidelines? In just causes, the guidelines in Agamon is the penalty is tempered. What do you mean tempered?
Maliit lang. In authorized causes, the penalty is stiffer, the penalty should be stiff. Why? Because it is in the exercise of
management prerogative. Dapat inayos niyo ang termination process, you should have given 30 days’ notice, payment of
separation pay and that’s the time that you can make the determination effective. Pero kasalanan ng tao, serious
misconduct for example, etc., many employers will just agree to pay 5k. Just not to see the face of the person anymore.
Obviously, there is a procedure to follow.

The penalty should be stiff. WHY?

Because it is in the exercise of management prerogative. Dapat inayos nyo ang termination process. You should’ve given
30day notice, payment of separation pay, and that’s the time that you can make the termination effective. Pero kasalanan
ng tao, serious misconduct for example, etc. many employers will just agree to pay 5k. just not to see the face of that
person anymore. tama? But there is a procedure to follow also, as what we have discussed already.

WHAT IS THE LESSON?

The lesson is THERE IS ILLEGAL DISMISSAL ONLY IF WHAT IS VIOLATED IS SUBSTANTIVE RIGHT. If it is procedural rights that
are violated, there is no ILLEGAL DISMISSAL. When it appears to be surprising but that is how it is in LABOR.
Situation: probably they don’t that they’re supposed to give termination. Ah ten days lang okay nana. Ten days, violation
of the procedure. Nevertheless, they would really want to stop doing business, what can we do? Oh business parin,
reinstate the people. Oh gud. Eh they don’t want to wake up early in the morning anymore to open the carinderia or the
restaurant. Let them shut down or close the business but you have to pay a stiffer penalty for failure to comply with the
procedure.

So we have discussed the SUBSTANTIVE ASPECT and the PROCEDURAL ASPECT of all of these.

So we have covered SECURITY OF TENURE IN 279,

280 on STATUS OF EMPLOYMENT
281 on PROBATIONARY EMPLOYMENT
282, 283, and 284 tonight.

285 is about the termination by the employee.

The EMPLOYEE terminated the employment, not the employer.
When the employee terminates the relationship, it is known in our language as RESIGNATION.
How would they resign?
They resign by giving also, in interest of shared responsibility and equal protection. Employees are also required to issue
or to notify the employer ONE MONTH PRIOR to the effectivity of the termination of employment. EXCEPT if the ground
for termination are the ones mentioned in 285. You are humiliated, insulted, etc. (read 285)

The employer attempted on your life, “boss, I will resign, 30 days from today” you can leave immediately, ha?

Otherwise what? If you do no give the notice what are you guilty of? The law will not stop you … if you go back because
that will result in involuntary servitude.

WHAT WILL THE LAW DO TO YOU FOR FAILURE TO COMPLY WITH THE 30day notice REQUIREMENT?
You will be charged for damages. Whatever damages the employer incurred by reason of your “abandonment” the
employer may be awarded damages for that but of course you will not be required to go back, obviously. That’s the easier
part: resignation. If you resign, there will be no requirement to pay separation pay.

THE EXCEPTION TO THIS, ALL OF THIS, NON PAYMENT OF SEPARATION PAY is what?
IF there is stipulation in the Collective Bargaining Agreement or it is borne out of company policy. Lahat ng aalis kahit may
resignation bigyan ng separation pay, kung merong ganyang policy, OK! Kung wala, there is no requirement.
NEXT IS 286: FLOATING STATUS
That provision is actually about temporary cessation or temporary closure and when you volunteer to the Philippine Navy
to fight the Chinese in Spratly’s. Pagbalik mo, welcome parin, your job is still yours. Is that what the law is saying? – READ
286.

*talks about being assign in Spratly

What is availing in any circumstances will be, nag renovate ang isang branch. McDonald’s for example, the mcdonald was
in Victoria was renovated, what happened to the employees there? Were they terminated? In the mean time, they’re not.
because hindi umabot ng 6 months. Kasi nag serado. Was there cessation of business so we apply 283? WALA DIBA? ONLY
TEMPORARY CESSATION OF OPERATIONS FOR A PERIOD NOT EXCEEDING SIX MONTHS.

In the mean time, what happens to the workers? The workers are NOT TERMINATED, they are on FLOATING STATUS. If
you’re on floating status, do you receive salary o wala? Wala. Very good!

This is also true ha. Meron lang a little bit of conflict…Under our law in contracting and subcontracting, pwede ka maka
floating status kasi for example, the contract of UM and METROGUARD.
Sabi ng UM kay Metroguard, “ayaw na namin sa inyo” syempre lahat ng guards ng METROGUARD walang trabaho ngayon.
They considered themselves terminated, sabi ng metroguards “wala kaming employment sa inyo, guards” mga 100. No
other contract available to deploy you. What happens to the guards, the guards are considered to be on FLOATING
STATUS.

UNDER DO 174-17 employees of the contractor will only have THREE months on FLOATING STATUS. Otherwise they are
already deemed terminated with the obligation to pay separation pay. At how much? ½ month per year of service.

DO 174-17 does not ament 286. Because 286 (to my mind) is applicable to bilateral relations. Two parties are involved.
In DO 174 kasi there are three parties involved. UM-METROGUARD-GUARDS. If that is the case, they only have to count
three months.
Under the provision in 286, that will give a little bit of hope to the employees that they will be called to duty soon after
the period of six months, when the renovation is completed..mga ganyan.
Of course, when you apply the other side of the provision, is that when you volunteer to serve in the military. Example:
boss, I am going to stop in the military and continue my work in Davao. Pag dating mo, andito parin ang job mo.

After the period of six months has ended and company has not resumed operations, that is when termination becomes
effective. The period of six months lapsed. You will not be required to wait for more than six months. Otherwise, parang
nagiging indefinite na iyong status. After six months, you are not called to duty, then you are terminated. You are going
to receive your separation pay.

287: RETIREMENT
60 and 65 plus 5 years in service.
2015 bar question
Nag work sa company for 30 years, at the age of 60 he retired. Is he entitled to the retirement benefits? The answer is
YES. Why? Because the formula is available. 60 years old, in the service for five years. immediately, the day after his
retirement he was hired by the same company and served for another five years until he reached the age of 65.
QUESTION: entitled pa ba sya ng separation pay?
Well I submit that the formula of 60 and 65 and five years of service is still available to him. Of course, you will no longer
count the years that were settled already in the first retirement. This time around, he is 65 which is mandatory. Was he
able to serve FIVE YEARS? the answer is YES. May five years in service sya. He is in the right age of 65 to retire and he
availed the benefit under our laws on retirement. It appears that that is the case. The requisites are present. You have to
be 60 or 65.

CAN YOU RETIRE ANYTIME BETWEEN 60 and 65?

Either 60 or 65?
Actually you can retire any time as you have served the company for five years. and our formula for retirement.. how
much is the retiree entitled to? How do you compute the retirement benefit? It’s ½ month right? but ½ month has been
interpreted as 15 days of service plus five days of SIL plus 2.5 days of 13th month pay. 22.5 days.

The 22.5 days applies only to retirement and NOT in retrenchment and cessation of business.

In retrenchment and cessation of business, it is really ½ month of whatever his monthly pay is. If he is daily paid, obviously,
he is entitled to 15 days. Pero here, ½ month is interpreted for purposes of retirement, equivalent to 22.5 days per of
service. Unless, of course, again the colatilla(?) (sorry bugo lang lol), unless there is a better retirement package provided
for in the CBA or as a matter of company practice – borne out of company policy. The law only requires employer to pay
22.5 days per year of service FOR RETIREMENT.

Book seven material articles: penal provision and on prescription.

288: penal provision

Yun lang ang pinaka penal provisions ng labor code, pinaka panakot ng DOLE sa mga employers who do not comply with
our laws on labor standards. Notice to comply + “otherwise you will be charged criminally or violation of the labor code
under art 288 which imprisonment of 3 years (mej weird pagka construct ni sir hehe) pero other than that, there is no
other penal provisions found in the labor code. The good thing thereis... they are couched in general terms – any violation
of the provision... except those that are subject to voluntary arbitration, diba interpretation of CBA and company policies.

Prescription

3 material things:

1) With respect to ULP – prescribes in 1 year only

2) All other violations including money claims arising from employment – prescribes in 3 years. Therefore, money
claims arising from employment including labor standards and all other claims prescribes in 3.
3) Violation of employment or deprivation of your employment – interpreted by the SC as violation of your property
rights – deprivation of property rights – prescribes in 4 years. Therefore, for illegal dismissal cases, except money
claims, it prescribes in 4.

Whether or not SIL prescribes? No.

The sil prescribes if he was employed from year 1 to year 10. Sil was never converted to cash during this period (1-6) but
you are still employed. Meaning to say, can you only claim you sil from years 7-10, not year 1-10? No. In Autobus Company
case, sil accrues every year, just like sil in government, dagdag lang nang dagdag hanggang sa employment is terminated,
say in year 15. The sil was never converted to cash, that entire 15 years, you have your sil. In year 15, this is the time that
the prescriptive period of 3 years will now start to count. You only have up to year 18 to claim your sil, otherwise it already
prescribes. THIS ONLY TRUE TO SIL unlike OT – year 1-10, you have never claimed your OT pay, you are only entitled to
your OT pay within this period of 3 years; 13th moth pay, wage, all other labor standards EXCEPT SIL. SIL is added every
year. 15 years = 75 days should be converted to cash at the day of termination then prescribes in 3 years.

Finals coverage: WHOLE LABOR CODE - 70% from strike, VA, post-employment, and relevant provs of book 7. Then general
principles in labor law or constitutional provisions related to labor or mga essay type of questions na pang opening
questions sa BAR