LABOR LAW REVIEW / LABOR LAW II

AY 2019-2020 First Semester ATTY J. OSWALDO B. LORENZO

-Labor Law Materials 2020-

LABOR LAW MODULE 1: Labor Relations

1. The Economic Reality Test, was ruled to be an addition to the Four-Fold Test. Explain this
test.

ECONOMIC REALITY TEST

When a worker possesses one attribute of an employee and others of an independent

contractor, which make him fall within an intermediate area, he may be classified under
the category of an employee when the economic facts of the relation make it more nearly
one of the employment than one of the independent business enterprise with respect to
the ends sought to be accomplished. (Sunripe Coconut Products Co., Inc. vs CIR, etc.,
GR No. L-2009, April 30, 1949)

Broader Economic Reality Test

The determination of the relationship between employer and employee depends upon the
circumstances of the whole economic activity, such as:

1) the extent to which the services performed are an integral part of the employer's
business;

2) the extent of the worker's investment in equipment and facilities;

3) the nature and degree of control exercised by the employer;

4) the worker's opportunity for profit and loss;

5) the amount of initiative, skill, judgment, or foresight required for the success of the
claimed independent enterprise;

6) the permanency and duration of the relationship between the worker and the
employer;

7) the degree of dependency of the worker upon the employer for his continued
employment in that line of business

(The Labor Code with Comments and Cases Book I by CA Azucena, 2010 ed.)

2. When there exists Employer-Employee relationship, there is basis for the Labor Arbiter or the
Labor Tribunals to take cognizance of Labor Cases. in case there is no employer-employee
relationship, may the Labor Arbiter award Book III benefits and working conditions?
3. Are supervisors, like managerial employees, not entitled to enjoy Book III benefits from Arts.
83-96, Do you agree?

It depends. For the purpose of the benefits under Articles 83-96 of the Labor Code,
supervisors are deemed members of the managerial staff and thus, not covered by the
provisions of Book III, if they perform the following duties and responsibilities:

a. The primary duty consists of the performance of work directly related to

management policies of employer;
b. Customarily and regularly exercise discretion and independent judgment;
c. 1) Regularly and directly assist a proprietor or managerial employee whose
primary duty consists of the management of the establishment in which he is
employer or subdivision thereof;
(2) Execute under general supervision work along specialized or technical lines
requiring special training, experience or knowledge; or
(3) Execute, under general supervision, special assessment and tasks; and
d. Who do not devote more than 20% of their hours worked in a work week to
activities which are not directly and closely related to the performance of work
prescribed in pars. a, b and c above.

If the above-mentioned conditions were not present, then, such supervisors are not
deemed members of the managerial staff, and thus, covered by the provisions of Book III.

However, unlike managerial employees, supervisory employees are entitled to exercise

the right to self-organization.

4. In the case of Mayor v Macaraeg, the SC ruled that the NLRC created by RA 6715, otherwise
known as the Herrera-Veloso Law, In that case, there was no new NLRC created but still the
same collegiate body prior to 21 March 1989, is this a correct ruling?

5. In the case of John Peter Calderon v Chairman Bartolome Carale, the SC ruled that there is
no need for the NLRC Chairman and the 23 Commissioners to pass confirmation by the
Commission on Appointments. What’s the constitutional basis for this ruling?

In the case of John Peter Calderon v Chairman Bartolome Carale, the Court ruled that the
Chairman and members of the National Labor Relations Commission are not among the
officers mentioned in Section 16, Article VII of the 1987 Constitution whose appointments
require confirmation by the Commission on Appointments.

Section 16, Article VII of the 1987 Constitution provides that the President shall nominate
and, with the consent of the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers and consuls, or officers of
the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other
officers of the Government whose appointments are not otherwise provided for by law,
and those whom he may be authorized by law to appoint. The Congress may, by law, vest
the appointment of other officers lower in rank in the President alone, in the courts, or in
the heads of departments, agencies, commissions, or boards.

6. Compare Public Sector Unionism with Private sector unionism?

7. Who is a Managerial employee, supervisory employee, and rank and file employee?

Managerial employee is the one who is vested with the powers or prerogatives to lay
down or execute management policies and/or to hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline employees.

Supervisory employees are those who, in the interest of employer, effectively

recommended such managerial actions if the exercise of such authority is not merely
routinary or clerical in nature but requires the use of independent judgment.

Rank and file employees are those employees not falling as managerial or supervisory
employees.

8. Is a compromise agreement between the parties allowed, at any stage of the proceedings in
a labor case? What are privileged communications in Labor Relations?

9. What are the requisites in the Registration of the CBA? Why is the certificate of posting of
copies of CBA, and the certificate of ratification of majority of the employees in the bargaining
unit mandatory?

The requisites for registration of CBA are as follows:

Within 30 days from the execution of a collective bargaining agreement, the parties
thereto shall submit 2 duly signed copies of the agreement to the Regional Office which
issued the certificate of registration/certificate of creation of chartered local of the labor
union-party to the agreement. Where the certificate of creation of the concerned
chartered local was issued by the Bureau, the agreement shall be filed with the Regional
Office which has jurisdiction over the place where it principally operates. Multi-employer
collective bargaining agreements shall be filed with the Bureau.

The application for CBA registration shall be accompanied by the original and 2 duplicate
copies of the following documents which must be certified under oath by the
representatives of the employers and labor unions concerned.

a. the collective bargaining agreement;

b. a statement that the collective bargaining agreement was posted in at least 2
conspicuous places in the establishments cpncerned for at least 5 days before its
ratification; and
c. a statement that the collective bargaining agreement was ratified by the majority
of the employees in the bargaining unit of the employers concerned.
No document shall be required in the registration of collective bargaining agreements.

The certificate of registration of collective bargaining agreement shall be issued by the

Regional Office upon payment of the prescribed registration fee.

The Regional Office and the Bureau shall act on applications for registration of collective
bargaining agreements within 5 days from receipt thereof, either by:

a. approving the application and issuing the certificate of registration; or

b. denying the application for failure of the applicant to comply with the
requirements for registration.

Where the documents supporting the application are not complete or are not verified
under oath, the Regional Office or the Bureau shall, within 5 days from receipt of the
application, notify the applicants in writing of the requirements needed to complete the
application. Where the applicants fail to complete the requirement within 10 daysfrom
receipt of notice, the application shall be denied without prejudice.

Non-posting of the Collective Bargaining Agreement in conspicuous places in the

establishment before ratification to enable the workers to clearly inform themselves of its
provisions will render the said CBA ineffective.

10. What is a “sweetheart CBA”? Is entering into a sweetheart CBA, still a ground in the
cancellation of union registration?

11. What is a hastily concluded CBA and a precipitately concluded CBA? Will the Contract Bar
rule apply with these types of agreement?

Hastily concluded CBA happens when the labor union and the employer hastily
concluded a CBA despite the order of the Med-Arbiter enjoining them from doing so until
the issue of representation is finally resolved. Their act was clearly intended to bar the
petition for certification election filed by the other labor union. A collective bargaining
agreement which was prematurely renewed is not a bar to the holding of a certification
election. Such indecent haste in renewing the CBA despite an order enjoining them from
doing so is designed to frustrate the constitutional right of the employees to self-
organization.

Precipitately concluded CBA happens when the other party precipitately accept or agree
to the proposals of the other.

In both cases , the Contract Bar Rule will not apply. The contract bar rule is applicable
only where the petition for certification election was filed either before or after the
freedom period.
12. Memorize the acts of ULP committed by the employer and the labor organization?

13. At what time can you file the criminal aspect of ULP? And where?

The prescriptive period to file the criminal aspect of the unfair labor practices is within
one year from the accrual of the act of unfair labor practices. This ULP falls within the
jurisdiction of the Regional Trial Courts and the quantum of proof required is proof
beyond reasonable doubt.

The criminal aspect can be committed by the agents and officers of the employer who
participated, authorized and/or ratified the act.

The criminal proceeding is suspended once the civil or administrative aspect is filed. The
criminal proceeding will only continue once the administrative case has attained finality.
The final judgment in the administrative proceeding (civil aspect) finding ULP is a pre-
requisite in the filing of the criminal case for ULP. However, the final judgment in the civil
case is only a condition precedent for the filing of the criminal case and is not binding
and cannot be used as evidence in the criminal case for ULP.

14. Memorize the various Union Security Clauses, i.e. Close shop, etc. x----------------x

LABOR LAW MODULE 2: Areas of Jurisdictional Conflict

1. Where do you register a CBA? What are the requisites for CBA Registration?

While it is a mutual obligation of the parties to bargain, the employer, however, is not
under any legal duty to initiate contract negotiation. The mechanics of collective
bargaining is set in motion only when the following jurisdictional preconditions are
present, namely:

a. possession of the status of majority representation of the employees’

representative in accordance with any of the means of selection or designation
provided for by the Labor Code;
b. proof of majority representation; and
c. a demand to bargain under the Labor Code.

The requisites for registration of CBA are as follows:

Within 30 days from the execution of a collective bargaining agreement, the parties
thereto shall submit 2 duly signed copies of the agreement to the Regional Office which
issued the certificate of registration/certificate of creation of chartered local of the labor
union-party to the agreement. Where the certificate of creation of the concerned
chartered local was issued by the Bureau, the agreement shall be filed with the Regional
Office which has jurisdiction over the place where it principally operates. Multi-employer
collective bargaining agreements shall be filed with the Bureau.

The application for CBA registration shall be accompanied by the original and 2 duplicate
copies of the following documents which must be certified under oath by the
representatives of the employers and labor unions concerned.

d. the collective bargaining agreement;

e. a statement that the collective bargaining agreement was posted in at least 2
conspicuous places in the establishments cpncerned for at least 5 days before its
ratification; and
f. a statement that the collective bargaining agreement was ratified by the majority
of the employees in the bargaining unit of the employers concerned.

No document shall be required in the registration of collective bargaining agreements.

The certificate of registration of collective bargaining agreement shall be issued by the

Regional Office upon payment of the prescribed registration fee.

The Regional Office and the Bureau shall act on applications for registration of collective
bargaining agreements within 5 days from receipt thereof, either by:

c. approving the application and issuing the certificate of registration; or

d. denying the application for failure of the applicant to comply with the
requirements for registration.

Where the documents supporting the application are not complete or are not verified
under oath, the Regional Office or the Bureau shall, within 5 days from receipt of the
application, notify the applicants in writing of the requirements needed to complete the
application. Where the applicants fail to complete the requirement within 10 daysfrom
receipt of notice, the application shall be denied without prejudice.

2. In what office will you file a notice of strike and strike vote?

3. Where do you file a petition to assume jurisdiction of labor dispute? And who has jurisdiction?

The parties to a collective bargaining agreement shall establish a machinery for the
expeditious resolution of grievances arising from the interpretation or implementation of
the collective bargaining agreement and those arising from the interpretation or
enforcement of company personnel policies.

Unresolved grievances will be referred to voluntary arbitration and for this purpose,
parties to a collective bargaining agreement shall name and designate in advance a
voluntary arbitrator or panel of voluntary arbitrators, or include in the agreement a
procedure for the selection of such voluntary arbitrator or panel of voluntary arbitrators,
preferably from the listing of qualified voluntary arbitrators duly accredited by the Board.
4. Where do you file a petition for registration of a labor union and worker’s association?

5. Where do you file the reporting requirements for a chartered local in order to enjoy Book V
rights and benefits?

It must be filed in the Regional Office of the DOLE or to the Bureau of Labor Relations.

6. Where and when will you file a petition for certification election?

7. Where do you file the petition for the cancellation of union registration?

The registration f any legitimate independent labor union, chartered local and worker’s
association may be cancelled by the Regional Director of the DOLE, or in the case of
federations, national or industry unions and trade union centers, by the Bureau of Labor
Relations Director, upon the filing of an independent complaint or petition for
cancellation.

8. Where do you file a petition for cancellation of federation and national union’s registration?

9. Where do you file a petition for injunction with TRO?

The National Labor Relations Commission, through its Divisions, under Art. 225(e) of the
Labor Code.

10. Which office has jurisdiction on inter and intra union dispute rights and conditions of union
membership?

11. Which office has jurisdiction on actions for violations of the rights of union membership?

________________________________________________

12. Which office has jurisdiction on inquiry in to the financial activities of the union?

13. Which office has jurisdiction on inspection or enforcement cases?

The Regional Director of the Department of Labor and Employment.

14. Which office has jurisdiction on simple money claims?

15. Which office has jurisdiction on money claims with claims for reinstatement?

The Labor Arbiters of the National Labor Relations Commission

16. Which office has jurisdiction on money claims below P 5000.00 without claim for
reinstatement?

17. Which office has jurisdiction to declare strike legal or illegal?

The Labor Arbiters of the National Labor Relations Commission, except in strikes and
lockouts in industries indispensable to the national interest, in which case, either NLRC
(in certified cases) or DOLE Secretary (in assumes cases).
18. Which office has jurisdiction on pre-employment cases of OFWs?

19. Which office has jurisdiction on post-employment cases of OFWs?

The Labor Arbiters of the National Labor Relations Commission.

20. Which office has jurisdiction on wage distortion cases?

21. Which office has jurisdiction on the breach of apprenticeship agreements?

The appropriate agency of the Department of Labor and Employment or its authorized
representatives.

22. Which office has jurisdiction on the civil or administrative aspect of ULP?

23. Which office has jurisdiction on the criminal aspect of ULP?

Regional Trial Court

24. Which office has jurisdiction over unresolved issues of the CBA and company personnel
policies?

25. Which office has jurisdiction on ULP and termination disputes?

The Labor Arbiters of the National Labor Relations Commission

26. Which office has jurisdiction on direct and indirect contempt case?

27. Which office has jurisdiction on award of damages?

The Labor Arbiters of the National Labor Relations Commission

28. Which office has jurisdiction on preventive mediation cases?

29. Which office has jurisdiction to issue wage orders?

Regional Tripartite Wages and Productivity Boards

30. Which offices have jurisdiction to issue writs of execution?

31. Which offices have jurisdiction to appoint special sheriffs?

The Chairman of the National Labor Relations Commission.

LABOR LAW MODULE 3: Union Formation

1. There are 2 kinds of union formation. Formation of Worker’s Association for mutual aid and
protection only; while the other mode of union formation is the creation of a Labor Organization
or a Chartered Local for the purpose of collective bargaining. Do you agree that collective
bargaining can only be effected if there is an employer?
2. Under Art. 240 of the Labor Code as amended. There is a requirement that when a rival
union files a verified petition for certification election that it should append a 20% written consent
of all the employees belonging to the bargaining unit. i.e. Rank and file bargaining unit.
Supposing, during the formation of the labor organization, out of 100 employees belonging to
the bargaining unit, only 10 employees participated in the election of officers and adopting the
by-laws, Are these acts by the 10 employees valid? At what time do you need to comply with
the 20% written consent requirement, is it during the registration of the labor organization with
the appropriate DOLE Office?

3. What are the 3 grounds for cancellation of Union Registration?

A. Misrepresentation, false statement or fraud in connection with the adoption or

ratification of the constitution and by-laws or amendments thereto, the minutes of
ratification, and the list of members who took part in the ratification;

B. Misrepresentation, false statements or fraud in connection the electon of officers,

minutes of the election of officers, and the list of voters;

C. Voluntary dissolution by the members.

4. Is there such a thing as an “administrative cancellation of union registration”?

5. Is it correct to state, that any action for the cancellation of union registration be done by direct
attack, / action, or collaterally?

No. Before the cancellation of union registration may be granted, it must be shown that
there was misrepresentation, false statement or fraud in connection with the adoption or
ratification of the constitution and by-laws or amendments thereto, the minutes of
ratification, or in connection with the election of officers, minutes of the election of
officers, the list of voters, or failure to submit these documents to the BLR. It is not
enough to establish that the rank-and-file union includes ineligible employees in its
membership.

6. What are the requisites for the registration of a national union or federation?

LABOR LAW MODULE 4: Elections

These are the kinds of certification election:

a) petition filed in an organized establishment where there is a SEBA;

b) petition in an unorganized establishment, there is no SEBA;

c) petition for certification election filed by the employer, in case it is not sure that the alleged
SEBA represents the majority of the employees of the bargaining unit.
What are the various bars on certification election?

NOTE: Under RA 9481, a bill that became a law by itself for failure of President GMA to affix her
signature, under the same law the employer has very limited rights, and it is now merely
considered a bystander. At what time may a rival union file a petition for certification election in
an organized establishment? At what time may a petition be filed in an unorganized
establishment, Is it at any time? Suppose, in a corporation there are 3 unions operating in that
establishment, Labor Union A is the SEBA and the majority and contracting union.

NOTE: Labor Union A is the contracting union because it was the same union that entered into
a CBA with a corporation. Labor Union A is also known as the majority union because it won in
a recent certification election garnering the majority of the valid votes cast, and as the winner
thereof, Labor Union A has the right to be certified as the Sole and bargaining agent or SEBA
Now, B and C Labor Unions are known as minority unions and also rival and contesting unions.
They are minority unions because they lost in the certification election recently held. They are
also considered as rival and contesting unions because their continuous intention is to wrest the
majority status from Labor Union A as SEBA, now if Labor Union A registered the CBA, then it is
now considered registered and certified CBA. Today, the lifetime of the CBA is 5 years, and
prior to the expiration of the term, there is a 60-day freedom period.

One day before the 60th day, reckoned from the date of registration of the CBA there will be no
petition for Certification Election to be entertained by the Med. Arbiter, and if one is filed by the
Labor Union, then it can be opposed by Labor Union A, citing the Contract Bar Rule. Note: If the
CBA was not registered by Labor Union A, is the CBA Invalid?

A: The CBA is valid between Labor Union A and a corporation, but without registration thereof, it
does not bind third parties such as Labor Unions B and C, which means that the majority status
of Labor Union A is subject to challenge any time.

At what time then, may Labor Unions B and C, file a verified petition for certification election?

A: Only during the freedom period, which is the last 60 days prior to expiration of the CBA.
During the Freedom period, the Contract Bar Rule no longer applies.

Assuming that the Labor Union B, intends to file a verified petition for CE during the freedom
period, however aside from complying with the 60-day period within which to file the petition,
there is a need to comply with the 25% written consent or consent signatures of the employees
belonging to the bargaining unit. Now, prior to the filing of the verified petition, out of the 25%,
5% of the employees withdrew their signatures from the petition. Is the withdrawal of signatures
by the employees voluntary?

A: Yes, the withdrawal is voluntary, because the management does not know as of yet who lent
their signatures to the petition, but after the petition has been filed with the DOLE Regional
Office, and there are withdrawals thereafter (assuming 5% of the employees withdrew), this is
considered involuntary, because management already knows those who signed the petition.
Therefore, this union members may be subject to threat and intimidation and even bribery by
management.
Supposing Labor Union C, want to participate in the petition file by Union B, is it required to
comply with the 25% requirement?

A: No, because according to Book V rules, labor union C is merely considered an intervenor
union, and there is no need to comply with the 25% requirement.

How about union A, can it participate in the petition filed by union B?

A: Yes, under Book V Rules, Union A is a forced intervenor, and whether it likes it or not it is a
party to the proceedings. Explain the Double majority rule in certification election.

LABOR LAW MODULE 5: Collective Bargaining

1. If there is a CBA, and if there is no existing CBA in the company? What is the difference?

The duty to bargain collectively. When there is a CBA, the duty to bargain collectively
shall also mean that neither party shall terminate nor modify such agreement during its
time. (Art. 264)

2. The three jurisdictional pre-conditions in Collective Bargaining. READ. Case References: -

Kiok Loy v NLRC, 141 SCRA 179. - Divine Word University v Sec. of Labor

3. What is difference of Automatic Renewal Clause and the Doctrine of Automatic Retroaction?

The automatic renewal clause means that the CBA shall remain effective and enforceable
even after theexpiration of the period fixed by the parties as long as no new agreement is
reached by them and no petition for certification election is filed, while Automatic
retroaction clause pertains to any agreement on such other provisions of the CBA
entered into within 6 months from the date of expiry of the term of such other provisions
as fixed in such CBA, shall retroact to the day immediately following such date.

4. What do you mean by multi-employer bargaining and single employer bargaining?

5. What are the proper subjects of Collective Bargaining?

The proper subjects of the collective bargaining the determination and settlement of
issues concerning wages, hours of work and other terms and conditions of employment
as well as the settlement of disputes in the workplace.

6. Read Art. 278 of the Labor Code, as Amended, on Strikes and Lockouts.

Happy Reading and Good Luck!