1

Caveat: These are compiled Group/Individual Online Questions and Answers

Question: It is my opinion that you are not legally obliged to hire and employ the restaurant managers and
I own two (2) tourist private buses, which I use during special occasions when there is a huge employees of your friend.
influx of foreigners visiting Cebu City during Christmas holidays. My drivers are paid a fixed Closure or cessation of business is one of the authorized causes of termination under Article
monthly salary of Php10,000. I was thinking of fixing their employment contract for one (1) 298 of the Labor Code. Although nowhere in the Labor Code does it say that change of
month only, from December 1 until December 31 but they will be made to work for a maximum ownership is a valid cause of employment termination, the Supreme Court in the case of
period of 12 hours daily. Please advise if this employment arrangement is legally viable. Manlimos et. Al v NLRC, GR No. 113337, March 2, 1995, pronounced that the issue of whether
Answer: the sale of business is closure or cessation of business is not material. In any case, the
Thank you for your trust to our services regarding your predicament. employees lose their jobs, unless the new owner opts to retain or rehire them.

Regarding your query, it is our opinion that this employment arrangement is legally viable. It There is no law that prohibits the sale of a business when it is done in good faith. When a
can be considered as“Fixed-term Employment”for the duration of the month of December. purchaser decides to buy the enterprise, he has no legal obligation to continue employing the
employees of the seller. However, if the successor-in-interest contractually committed himself
The case of Brent School v Zamora, GR 48494, Feb. 5, 1990 laid down the criteria for a valid to retain the employees of the transferor, such contractual commitment must be honored.
fixed-term employment as an exception to regular employment under the Labor Code. The
following requisites should be present: In your case, your friend has a perfectly valid reason for the sale of his business: his old-age and
1. It must not be entered into merely to circumvent employees security of tenure his dream of travelling abroad. Hence, the sale is done in good faith. In the absence of any
stipulation requiring you to retain his managers and employees, you are therefore not under
2. The fixed period of employment was knowingly and voluntarily agreed upon by the
any legal obligation to do so.
parties, without any force, duress, or improper pressure brought to bear upon the
employee and absent any other circumstances vitiating his consent I hope I have resolved your concerns. Please do not hesitate to contact me if you have further
questions.
3. Both employer and employee dealt with each other on more or less equal terms with

no moral dominance exercised by the former to the latter
Question:
In your case, as long as your drivers expressly agree to the arrangement voluntarily, then it can
After several weeks of bargaining negotiations, the certified bargaining Union was constrained
be a valid arrangement. We would, however, advise that you increase the monthly salary of
to accept a stipulation that in exchange for a yearly wage increase, it would waive full payment
your drivers so it would comply with the minimum wage as mandated by RTWPB. The current
of overtime compensation and accept no more than 5% premium for overtime work. If you
minimum wage in Cebu City is Php366.00.
were another legitimate labor union existing in the same bargaining unit, can you petition for
D.O. 118-12 states the Rules and Regulations Governing the Employment and Working the cancellation of the certified bargaining Union's registration for entering into a CBA
Conditions of Drivers and Conductors in the Public Utility Bus Industry. Rule II, Section 2 of said stipulation which is clearly illegal, unconscionable and grossly disadvantageous to the members
Department Order enumerates the minimum benefits of a bus driver, and this includes their of the bargaining unit? Please advise.
entitlement to at least the minimum wage and the duration of 8 hours for their daily hours of
Answer:
work.
Thank you for your trust in our services regarding your predicament.
You are allowed to make them work beyond 8 hours, up to a maximum of 12hours subject to
If I were another legitimate labor union existing in the same bargaining unit, I will not be able to
the condition that they be paid additional 25% overtime pay.
file a petition for cancellation of the Certified Bargaining Union’s registration, even though the
We hope we have assisted you well. Please do not hesitate to communicate to us if you Certified Bargaining Union entered into a CBA with a stipulation that is clearly illegal,
encounter any other issue. unconscionable and grossly disadvantageous to the members of the bargaining unit.

Article 247 of the Labor Code states the grounds for the cancellation of union registration.
Question: These are:
My friend has been operating his restaurant business for the past 20 years. As he was getting
already old, he decided to spend the rest of my life traveling abroad, and to sell his business. I a. Misrepresentation, false statement or fraud in connection with the adoption or
agreed to buy his business for a valuable consideration and this includes the building, premises, ratification of the constitution and by-laws or amendments thereto, the minutes of
tools, facilities and equipment. ratification, and the list of members who took part in the ratification;
b. Misrepresentation, false statements or fraud in connection with the election of
I need your legal advice if I am obliged to hire and employ all the restaurant managers and officers, minutes of the election of officers, and the list of voters;
employees of my friend. Please advise. c. Voluntary dissolution by the members.
 2
Furthermore, Section 4, Rule XI of DOLE Department Order No. 40-03, series of 2003 on who
Section 3, RULE XIV of DOLE Department Order No. 40-03, series of 2003 expanded and may file Inter/Intra-Union Disputes and Other Related Labor Relations Disputes states:
added several other grounds for the cancellation of the registration of a labor organization. SECTION 4. Who May File. — Any legitimate labor organization or member(s) thereof
One ground which is mentioned in the list that is relevant to the situation at hand is the one specially concerned may file a complaint or petition involving disputes or issues
which is stated in subsection (f), which states: enumerated in Section 1 hereof. Any party-in-interest may file a complaint or petition
involving disputes or issues enumerated in Section 2 hereof. Where the issue involves
Section 3. Grounds for cancellation. - The following shall constitute grounds for the entire membership of the labor organization, the complaint or petition shall be
cancellation of registration of labor organizations: supported by at least thirty percent (30%) of its members.
xxx
(f) entering into collective bargaining agreements which provide for terms and In the first instance, the union would have legal personality to file the said petition for
conditions of employment below minimum standards established by law; cancellation as it is a party-in-interest, which would be affected by the stipulation in the CBA
xxx entered by the Certified Bargaining Union. In the second provision cited on Inter-Union Dispute,
the union would also have legal personality as it is a legitimate labor organization.
The stipulation in the CBA which provides a waiver on the full payment of overtime
compensation and to accept no more than 5% premium for overtime work in exchange for a Due to the foregoing reasons, the union may file because they have legal personality to do so.
yearly wage increase is clearly a stipulation which will effectively provide a term and/or Unfortunately, the grounds set forth in the Labor Code and its Implementing Rules and
condition of employment that is below the minimum standards established by law. Regulations are exclusive, and are not attendant in this situation. Hence, we reiterate our
previous answer that the filing of such petition would not effectively prosper.

Nonetheless, DOLE Department Order No. 40-F-03, series of 2008, effectively reverted the
We hope we have assisted you well. Please do not hesitate to communicate to us if you
grounds provided for by the Labor Code. All the other grounds provided in Department Order
encounter any other issue.
No. 40-03 were amended and were not carried over. Thus, the fact that the Certified Bargaining

Union entered into a collective bargaining agreement which provides for terms and conditions
Question: (Same Question as previous, but this was answered by a different group. Different
of employment below minimum standards established by law, is no longer a valid ground to
follow-up question was asked by Atty.)
cancel the registration of the certified bargaining union.
After several weeks of bargaining negotiations, the certified bargaining Union was constrained
Due to the foregoing reasons, it is our stand that the filing of a petition for cancellation of the to accept a stipulation that in exchange for a yearly wage increase, it would waive full payment
Certified Bargaining Union’s registration will not effectively prosper. of overtime compensation and accept no more than 5% premium for overtime work. If you
were another legitimate labor union existing in the same bargaining unit, can you petition for
the cancellation of the certified bargaining Union's registration for entering into a CBA
We hope we have assisted you well. Please do not hesitate to communicate to us if you stipulation which is clearly illegal, unconscionable and grossly disadvantageous to the members
encounter any other issue. of the bargaining unit? Please advise.


Follow-up Question: Answer:
Dear Team, does the union have the legal personality to file such petition for cancellation in the We understand the seriousness of the matter since it involves compensation of employees who
first place? Please explain. worked hard for it. However, the other legitimate labor union cannot file for a petition for

cancellation of the certified bargaining union registration for entering into a CBA stipulations.
Follow-up Answer:

Thank you for following-up with us. We would be glad to assist you further. It is true that the union should be the one who should spearhead the interest of the employees.
Now, given that there was an acceptance of a stipulation in which an exchange for a yearly
Regarding your question, it is our opinion that the union has the legal personality to file such
wage increase, it would waive full payment of overtime compensation and accept no more than
petition for cancellation.
5 percent premium over overtime work. It is important to take note that overtime
compensation is a statutory requirement.
Section 2 of Rule XIV of DOLE Department Order No. 40-03, series of 2003 on who may file
Cancellation of Registration of Labor Organizations states: Before, a petition for cancellation can be filed on the ground that the certified bargaining union
Section 2. Who may file. - Any party-in-interest may commence a petition for
entered into a CBA which provides for terms and conditions of employment below minimum
cancellation of registration, except in actions involving violations of Article 241, which
standards established by law. However, the amendments brought by Department Order 40-F-
can only be commenced by members of the labor organization concerned. 03 removed such ground. Pursuant to such amendment, section 3, Rule XIV of the said order

 3
limits the grounds for cancellation into three grounds and the ground invoked in this case is not Question:
among those provided. The CBA that the certified bargaining Union has recently concluded with the company requires
Given that said remedy is not available on current regulation in your case, you may avail of that "all employees within the bargaining unit shall join the certified bargaining union within 30
other remedy which is to file an inter-union dispute under Department Order No. 40-03 before days from the signing of the CBA". I am a member of the bargaining unit and at the same time a
the regional office that issued the certificate of registration. member of a minority Union in the same establishment. I need to seek your advice whether I
need to abide with the CBA stipulation although I am not a member of the certified bargaining
We encourage you to avail of the proper remedy based on current regulations. Should you have Union.
further queries, please do not hesitate to contact us regarding this matter
Answer:
Follow-up Question: With regards to your query, you may not abide with the stipulations in the CBA requiring all
You said it is no longer a ground. But you advise that the union can file an inter-union dispute. employees within the bargaining unit to join the certified bargaining union within 30 days from
On what ground, and what specific law or IRR allows it? Please explain. the signing of the CBA.

Follow-up Answer: As a general rule, nothing would stop a union to require membership in a collective bargaining
You may file an inter-union dispute before the Regional Office that issued the certificate of agent for purposes of employment. However under Article 248 of the Labor Code, those
registration on the ground provided under Department Order No. 40-I-15 Rule XI Section 1(n). employees who are already members of another union at the time of the collective bargaining
Pertinent portion of which is as follows: agreement are exempted from being compelled to join the collective bargaining unit.

Such other conflicts involving the rights to self-organization, union membership and Even if you are a member of both the bargaining unit and the minority union, the stipulation
collective bargaining — would not be applicable in your case as you are already a member of another union during the
1. Between and among legitimate labor organizations; or collective bargaining agreement.
2. Between and among members of a union or worker’s association.
Thank you for trusting our services, we hope you would consult us again.
It is our view that questioning the validity of the stipulation by in the Certified Bargaining which
states that "in exchange for a yearly wage increase, it would waive full payment of overtime Question:
compensation and accept no more than 5% premium for overtime work” will fall under this On January 1, 2018, the company signed a CBA with the certified bargaining Union. However,
particular provision because the conflict or dispute was raised by another legitimate labor the CBA was never ratified by the covered employees, although they all accepted and enjoyed
organization. the wage increase and other benefits provided for in the said CBA. Neither was a copy of the
CBA submitted to the DOLE. Three (3) months after signing of the CBA, another duly registered
The Supreme Court held in the case of Goya Inc. vs. Goya Inc. Employees Union-FFW that “[a]s independent Union existing in the same establishment filed a petition for the holding of a
in all other contracts, the parties to a CBA may establish such stipulations, clauses, terms and certification election among the employees covered by the CBA and in support thereof,
conditions as they may deem convenient, provided these are not contrary to law, morals, good submitted the signature of 40% of the employees in the bargaining unit. If you were the Med-
customs, public order or public policy.” Arbiter, how will you rule on the petition? Please advise.

Furthermore, it is stated in the DOLE Handbook on Workers Statutory Monetary Benefits No. Answer:
IV(d), “The employees and employer, however, may stipulate in their collective agreement the With regard to your inquiry whether it is appropriate to give due course to the petition to held a
payment for overtime work at rates higher than those provided by law.” Jurisprudence also subsequent certification election filed by another duly registered independent union, I
dictates that the right to claim overtime pay is not subject to waiver, as a rule. However, if the constraint to answer in the negative. Such petition should not be given due course since it is
waiver is done in exchange for and in consideration of certain valuable benefits, such waiver expressly prohibited under our present laws governing the conduct of certification election.
may be considered valid. Hence, questioning the validity of the said stipulation is better left at
the sound discretion of the appropriate officials. Indeed, another legitimate labor organization Anent this issue, the applicable rule is explained in the implementing rules under Rule VII,
has a basis to pursue an action. Section 4.2 which provides, among others, that the certification shall bar the filing of a petition
for certification election by any labor organization for a period of one (1) year from the date of
In view of the foregoing, it is of our opinion that the proper remedy in the instant case is to file its issuance.
an inter-union dispute before the Regional Office that issued the certificate of registration on
the ground provided under Department Order No. 40-I-15 Rule XI Section 1(n). Should you have Also, in the same line, Rule VIII, Section 3 which provides that a petition may not be given due
further queries, please do not hesitate to contact us regarding this matter. course when (a) a fact of voluntary recognition has been entered or a valid certification, consent
or run-off election has been conducted within the bargaining unit within one (1) year prior to
 4
the filing of the petition for certification election and (b) when the duly certified union has absence is not sufficient that is why you have to ask them to return back to work immediately
commenced and sustained negotiations in good faith with the employer in accordance with so that you will know if they really intended to sever the relationship between you and them. It
Article 250 (now Article 261) of the Labor Code within the one year period referred to in the is you, the employer, who has the burden of proof to show a deliberate and unjustified refusal
immediately preceding paragraph.
of the employee to resume to his employment without any intention of returning.

I believe that the of non-registration and non-ratification by the covered employees is
immaterial in this issue of a petition for a subsequent certification election. What is important is If these workers would really not follow your order: to return back to work, you can now
the fact that there is already a recognized exclusive bargaining union and a collective bargaining exercise your right to terminate them as this implies their intent to abandon their duty which,
agreement has already been concluded despite the failure to register it as required by law. again, is a form of neglect of duty, a just cause for termination. For dismissal under the “just
causes,” the law requires the employer to furnish the worker sought to be dismissed with two
Thank you for trusting my services! written notices before terminating his employment.


Question:
The case of King of Kings Transport, Inc. vs. Mamac, G.R. No. 166208, June 29, 2007, lays down
Several carpenters and electricians employed by a private hospital with a bed capacity of 20
the contents of the notices to be served upon an employee prior to termination, as follows:
beds, situated in Metro Manila with a population of more than 1 Million were told by the

hospital management that effective June 30, 2018 their services will no longer be needed
1. The first written notice to be served on the employees should contain the specific causes or
because the hospital will hire an independent contractor to handle all its general and utility
ground for termination against them, and a directive that the employees are given the ample
services including carpentry and electrical work. These carpenters and electricians represented
opportunity to submit their written explanation within a reasonable period. The notice should
by Jose, the most senior employee among them, immediately went on unapproved indefinite
contain a detailed narration of the facts and circumstances that will serve as basis for the charge
leave of absence, thereby unduly disrupting the hospital operations.
against the employees. The notice should specifically mention which company rules, if any, are

violated and/or which among the ground under Art. 297 of the Labor Code is being charged
If you were the hospital management, what remedy do you have against the concerted action
against the employees.
taken by these workers? Please advise.


2. After determining that termination of employment is justified, the employers shall serve the
Answers: (same question for the two group members)
employees a written notice of termination indicating that all circumstances involving the charge

against the employees have been considered and ground have been established to justify the
Answer 1:
severance of their employment.
With regard to these workers who went on unapproved indefinite leave of absence, you can ask

them to return back to work immediately since their leave of absence was not permitted and
Please note that “Ample Opportunity” should be prior to employee’s dismissal. An employee
you may stipulate that failure for them to follow such order would result to disciplinary actions
must be given notice and an ample opportunity prior to his dismissal to adequately prepare for
or dismissal from employment.
his defense.


Section (b), Article 297 of the Labor Code of the Philippines provides that an employer may
Answer 2:
terminate an employment for gross and habitual neglect of his duties. This is a just cause that
The remedy available to you is to serve a written notice to the carpenters and electricians who
would warrant the termination of employment of an erring employee.
went to an unapproved leave for them to return to work.


Abandonment of job is a form of neglect of duty, hence, a just cause for termination of
In the case of Nightowl Watchman & Security Agency, GR No. 212096, abandonment, as
employment. In the case of Labor, et al. vs. NLRC and Gold City Commercial Complex, Inc., and
understood under our labor laws, refers to the deliberate and unjustified refusal of an
Uy, G.R. No. 110388, to constitute abandonment, two elements must concur:
employee to resume his employment. It is a form of neglect of duty that constitutes just cause
1. Failure to report for work or absence without valid or justifiable reason, and
for the employer to dismiss the employee.
2. a clear intention to sever the employer-employee relationship.


In the case of Josan, JPS, Santiago Cargo Movers v. Aduna, for abandonment to exist, two
The second element is the more determinative factor and manifested by some overt acts. Mere
factors must be present: (1) the failure to report for work or absence without valid or justifiable
 5
reason; and (2) a clear intention to sever the employer-employee relationship, with the second exercise their rights under this Code.
element as the more determinative factor being manifested by some overt acts.
In the facts that you gave me, the company signed a CBA with the certified bargaining Union,
In the present case, the carpenters and electricians went to an unapproved leave and it was granting all covered employees an across-the-board monthly wage increase on January 1, 2015.
without a valid or justifiable reason. As to the second requisite such intention can be inferred by This not concerned with a representation aspect because this is an agreement with an
the actions of the employees and such intention may be inferred if they refuse to return to economic provision so the expiry date of such is not later than three years after its execution or
work after serving them a notice. If they return to work and explain their side then that will January 1, 2018. It is also said that finally conclude a renegotiated CBA three (3) months after
already negate abandonment and you can no longer pursue dismissing them. At most you can December 1, 2017 which is March 1, 2018. March 1, 2018 is within the six (6) months from
mete out disciplinary measures for being absent without official leave. the date of expiry of the CBA. Thus, applying the law, it shall retroact to the day
immediately following the expiry date of the CBA which is January 2, 2018.
But if they refuse to return to work, you need to follow the procedural due process. First is to
serve them the first written notice as to why they shouldn’t be declared as having abandoned Question:
his job and a second notice informing them of the decision to dismiss them on the ground of Our employer Company owns thousands of public utility buses nationwide. We, drivers are all
abandonment. This twin notice rule is pursuant to DO 147-15. members of the certified bargaining rank-and-file union. Last week, the company did not pay
the wage increases mandated by the existing CBA, which prompted our union Union to file on
Question: March 1, 2018 a notice of strike with the NCMB while our officers and members peacefully
On January 1, 2015, the company signed a CBA with the certified bargaining Union, granting all picketed the company's various bus stations nationwide. How soon and when, can our union
covered employees an across-the-board monthly wage increase of Php1,000. On December 1, actually stage a valid strike? Please advise.
2017, the parties met and convened in order to renegotiate the wages of the covered
employees for the next two (2) years. However, the negotiation was stalled due to Answer:
disagreements until the parties were able to finally conclude a renegotiated CBA three (3) Upon appreciation of the facts and as to your inquiry on how soon and when can the union
months after. Another issue came about as regards the effectivity of the renegotiated CBA. The actually stage a valid strike, the Labor Code of the Philippines provides for certain procedural
issue was submitted to arbitration. If you were the arbitrator, how will you resolve the issue? requirements which must be observed.
Please advise.
I am of the opinion that your union may validly stage a strike provided that it is done after the
Answer: cooling period of 15 days and the 7-day waiting period (strike ban) after the submission of the
At the outset, it is my professional opinion that the renegotiated collective bargaining strike voting report.
agreement will have its effectivity date on January 2, 2018.
Under Art. 278 of the Labor Code,Strikes, picketing, and lockouts. -
Under the Labor Code, Collective Bargaining Agreement that the parties may enter into (c) In cases of bargaining deadlocks, the certified or duly recognized bargaining representative
shall, insofar as the representation aspect is concerned, be for a term of five (5) years. may file a notice of strike or the employer may file a notice of lockout with the Ministry at least
No petition questioning the majority status of the incumbent bargaining agent shall be thirty (30) days before the intended date thereof. In cases of unfair labor practices, the period
entertained and no certification election shall be conducted by the Department of Labor of notice shall be shortened to fifteen (15) days; and in the absence of a duly certified or
and Employment outside of the sixty-day period immediately before the date of expiry of recognized bargaining representative, the notice of strike may be filed by any legitimate labor
such five-year term of the Collective Bargaining Agreement. All other provisions of the organization in behalf of its members.
Collective Bargaining Agreement shall be renegotiated not later than three (3) years after (d) The notice must be in accordance with such implementing rules and regulations as the
its execution. Any agreement on such other provisions of the Collective Bargaining Minister of Labor and Employment may promulgate.
Agreement entered into within six (6) months from the date of expiry of the term of (e) During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at
such other provisions as fixed in such Collective Bargaining Agreement, shall retroact to mediation and conciliation to effect a voluntary settlement. Should the dispute remain
the day immediately following such date. If any such agreement is entered into beyond unsettled until the lapse of the requisite number of days from the mandatory filing of the
six months, the parties shall agree on the duration of retroactivity thereof. In case of a notice, the labor union may strike or the employer may declare a lockout.
deadlock in the renegotiation of the Collective Bargaining Agreement, the parties may
 6
Basing on the facts you submitted, the labor dispute concerned is regarding an Unfair Labor Lastly, we hope that we were able to answer your concerns and express our gratitude for
Practice. That is why the cooling period to be observed is the 15 day-period. choosing our Law Firm to consult regarding your legal queries. We hope to hear from you soon.

The requisites mentioned above must be complied with before your union can validly stage a Question:
strike. The cooling period of 15 days and the 7-day waiting period after the submission of the After several sessions, the company and the certified bargaining Union’s respective negotiating
panels entered into a deadlock during their negotiations as regards the type of union security
vote report are meant to be and should be both mandatory. Meaning, non-compliance
clause. During their lunch break, the members of the certified bargaining Union, wearing black
therewith makes the strike illegal. Thus your union can only validly stage a strike after arm bands, started to picket the premises of the Company in order to dramatize their
observance of the mandatory prescribed cooling-off period and the 7-day waiting period/strike frustration to the company’s failure to agree to their proposal. Does the company have any
ban after the submission of the report on the strike vote. remedy to enjoin the concerted activity?

Question: Answer:
I own two (2) private school buses, which I use to transport the public from Cebu City to Danao In the case of your employees, the picketing was done during their lunch break. Also, there
were no allegations of illegal and improper acts committed by the employees, which could have
City and vice-versa. My drivers are all members of the certified rank-and-file union in my
resulted in temporary stoppage of work. As such, it shall be considered as a peaceful picketing
establishment. Last week, I dismissed the union's President and Treasurer for misappropriation which is the right of the workers to peacefully march before the premises of an establishment
of company's money. As the dismissal did not go through the grievance machinery of the CBA, involved in a labor dispute. Accordingly, you cannot enjoin such concerted activity.
the Union filed a notice of strike for alleged violation of the CBA. Did the Union actcorrectly?
Please advise. Under the Labor Code, “no person shall obstruct, impede, or interfere with, by force, violence,
coercion, threats, or intimidation, any peaceful picketing by employees during any labor
controversy or in the exercise of the right to self-organization or collective bargaining, or shall
Answer:
aid, or abet such obstruction or interference.”
Here is the opinion you requested. The facts, gathered from you and your documents, are as

follows: However, even if labor unions have the right to engage in peaceful concerted activities, that
You own two (2) private school buses, which you use to transport the public from Cebu City to right is not absolute as it is subject to limitations prescribed by law. Should the act of picketing
Danao City and vice-versa. Your drivers are all members of the certified rank-and-file union in be continued beyond the lunch break, it may cause stoppage of work and will amount to illegal
your establishment. Last week, you dismissed the union’s president and treasurer for picketing. In such case, your remedy is to file a petition for injunction before the NLRC.
misappropriation of company’s money. As the dismissal did not go through the grievance
We hope that we were able to shed light on your concern.
machinery of the CBA, the Union filed a notice of strike for alleged violation of the CBA.

Question:
Now, your query is whether or not the union acted correctly? My answer would be in negative. Upon the recommendation of the City Mayor of Cebu, USC School hired three (3) ward leaders
of the Mayor. Three months after their employment, these three workers joined our rank-and-
Under DO 40A-03, Art.1 Sec. 5 Grounds of Strike. A strike or lockout may be declared in cases of file union. Upon learning of this, the Mayor coerced and intimidated the three (3) workers into
bargaining deadlocks and unfair labor practices. Violations of collective bargaining agreements abandoning our Union. What action, if any, may our Union file against the City Mayor? Please
except flagrant and/or malicious refusal to comply with its economic provisions, shall not be advise.

considered unfair labor practice and shall not be strikeable. xxx
Answer:
Good day, sir. Thank you for trusting us with your concern. This is a response relating to your
In your case, since the union’s ground in filing a notice of strike is for an alleged violation of the recent query as to whether your union can file an action against the City Mayor of Cebu after he
CBA, it must also be considered that the violation should be a flagrant and/or malicious refusal coerced three of your members to abandon your union. Based on your narration, these 3
to comply with the CBA’s economic provisions. However, in this case, there is none. Although workers were ward leaders of the Mayor that were hired by USC after his favorable
the absence of going through the grievance machinery of the CBA is a violation of the provisions recommendation.

in the collective bargaining agreement, it is however not a malicious refusal to comply with the
After conducting a research on the issue at hand and a careful examination of the facts you
CBA’s economic provisions. Thus, the union did not act correctly in filing a notice of strike.
have provided, it is our opinion that a criminal action for unfair labor practice may be filed
against the City Mayor of Cebu.
 7
The wages of workers are protected by law and cannot be easily diminished. As such, there
As we have understood your situation, it can be said that the Mayor is essentially an indirect are specific requirements that must be complied with in order to validly diminish an
employer of the wardens under the Labor Code. As defined under Art. 219, paragraph (e) of the employee's wage. The most important of such, is the employee's consent and authorization.
Labor Code of the Philippines, an employer pertains to any person acting in the interest of the
employer, directly or indirectly. In your case, the fact that the wardens were hired by USC only The board resoution is asking for is a special assessment, and such is prohibited under the
because of the recommendation of the mayor validates the conclusion that he is acting under law, without the individual's written authorization. It also mandates that such deductions
the interest of the employer USC albeit indirectly. Thus, it can be concluded that he is covered must comply with the prrocedural requirements as stated under Article 250 of the Labor
by the term employer as defined above. Code.

It must be noted that for an act to be embraced within the ambit of an unfair labor practice, the Since the only action taken by the Union was the mere issuance of a Board Resolution, such
following conditions must be attendant: check-off would not be valid under the law.
a) employer-employee relationship between the offender and the offended party; and
b) the act done is expressly defined as an act of Unfair Labor Practice under the Labor Code. The Union member's consent is vital in the deduction of his wages, even more so when it is
with regards to a Special Assessment.
Moreover, Art. 259 of the Labor Code categorically states that an employer shall "not interfere
with, restrain or coerce employees in the exercise of their right to self-organization." In your Failure to secure your written individual authorization for such deductions, means that such
case, the act of the Mayor in unduly interfering with their right to self-organization by coercing deductions cannot be allowed.
and intimidating them to abandon the union constitutes a clear case of unfair labor practice.
Thank You for coming to me with your Legal concern, and I hope I have addressed your
As defined in Insular Life Assurance Co., Ltd, Employees Assoc.-NATU vs. The Insular Life concern promptly.
Assurance Co., Ltd, the test of interference is whether the employer has engaged in conduct
which, it may be reasonably said, tends to interfere with the free exercise of the employees' Follow-up Question:
right and it is not necessary that there be direct evidence that any employee was in fact Please quote the law, including the applicable IRR to support your opinion.
intimidated or coerced by the statements of threats or the employer if there is a reasonable
interference that the anti-union conduct of the employer does have an adverse effect of self- Follow-up Answer:
organization. To Support my legal opinion, Paragraph (n) of Article 250 in The Labor Code lays down the
requirements for a valid special assessment;
Criminal ULP cases may be filed with the regular courts in cases of unfair labor practice. No
criminal prosecution may be instituted, however, without final judgement from the Labor "No special assessment or other extraordinary fees may be levied upon the members of a
Arbiter of the NLRC that ULP has been committed. The prescriptive period to file criminal case is Labor organization unless authorized by a written resolution of a majority of all the members
one year from the accrual of the ULP act, which accrues from the date the action may be in a general membership meeting duly called for the purpose. The secretary of the
brought. organization shall record the minutes of the meeting including the list of all members
present, the votes cast, the purpose of the special assessment or fees and the recipient of
We hope that this correspondence appropriately answered all your queries. Thank you. such assessment or fees. The record shall be attested to by the president."

Question: Furthermore, Paragraph (o) of Article 250 also emphasizes the mandatory requirement of an
In accordance with its CBA with the company, union A submitted to the company a board employee's individual written authorization, to wit;
resolution authorizing the company to deduct from the wages of each of the union’s
members a special assessment in the sum of P200 to help pay for the expenses of the union’s "Other than for mandatory activities under the code, no special assessments, attorney's fees,
president who will be attending an international labor conference in manila. As a union negotiation fees or any other extraordinary fees may be checked off from any amount due to
member, I need your advice as regards the action taken by the union as this would diminish an employee without an individual written authorization duly signed by the employee. The
my wages. authorization should specifically state the amount, purpose and beneficiary of the
deduction."
Answer:
Regarding your concern, I would like to inform you that such deductions from the wages of Finally, under the Omnibus Rules Implementing the Labor Code, Book III, Rule VIII;
the Union members is invalid.
"Section 13. Wages deduction - Deductions from the wages of the employees may be made
by the employer in any of the following cases:
 8
The cooperative is not a certified Bargaining Union or a Legitimate Labor Organization,and
(a) When the deductions are authorized by law, including deductions for the issuance of the reason of for the strike is not Unfair Labor Practice or a Bargaining Deadlock. In sum, the
premiums advanced by the employer in behalf of the employee as well as union dues where Cooperative does not have any standing to file a notice of strike. Thank you!
the right to check-off has been recognized by the employer or authorized in writing by the
individual employee himself." Question:
USC is a private educational institution, which has 3 departments, the elementary, high
In conclusion, the proposal of the imposition of a special assessment, which was only done school and college, all of which are controlled by one Board of Trustees, serviced by one
through a mere board resolution, and failing to meet the requirements of Paragraph (n) of cashier and one registrar. It has a full complement of 500 teachers. I have convinced my
Article 250 of the Labor Code, is invalid. fellow teachers that the best way to secure more benefits and better working conditions is to
formally organize a Union. We are however undecided as to whether to forma a single Union
Question: for the entire faculty staff or a separate Union for each department. Kindly advise and guide
Our employer Company owns thousands of transport network services nationwide under the us.
name and style of GRAB transport services. The drivers of our transport service are members
of a duly registered cooperative. Last week, the drivers refused to ply their usual schedule Answer:
thereby unduly disrupting operations nationwide. The company acted immediately, and First of all, thank you for coming to us regarding your concern. We hope we may be able to
replaced these drivers with an independent transport service provider. The driver's assist you in resolving such.
cooperative filed a notice of strike with the NCMB accusing management of unfair labor
practice since they were replaced by a contractor without notice at all. Did the cooperative We understand that you come to us with a legal query whether you and your fellow teachers
act in accordance with law? Please advise. employed in USC should form a single Union for the entire faculty staff or a separate Union
for each department. We have to answer in favor of the former option.
Answer:
With regards to the current issue that you raised; In a unorganized establishment, where The issue to be resolved is mainly with regard to the composition of the bargaining unit for
there is no certified (SEBA) any legitimate organization in the establishment may declare a your proposed Union. Under Department Order No. 40-03 (Series of 2003), as amended, Rule
strike but only on the ground of unfair labor practice. In this case there was no unfair labor I, Section 1(d) therein, a bargaining unit refers to a group of employees sharing mutual
practice necessitating a strike. interests within a given employer unit, comprised of all or less than all of the entire body of
employees in the employer unit or any specific occupational or geographical grouping within
Under the labor code, Art. 259 (c ) provides that to contract out services or functions being such employer unit. Additionally, as provided in San Miguel Foods vs. San Miguel Corp
performed by union members when such will interfere with, restrain or coerce employees in Supervisors and exempt Union, 2011 and other related jurisprudence, the test of grouping is
the exercise of their rights to self-organization is unfair labor practice. This is not wanting in community or mutuality of interest. This is so because the basic test of an asserted
this case. bargaining unit’s acceptability is whether or not it is fundamentally the combination which
will best assure to all employees the exercise of their collective bargaining rights.
The reason why the company replaced the drivers for the reason of refused to ply their usual
schedule and not in the exercise of their rights to self-organization. Thus, there is no valid Applying the foregoing principles, we advise that it is proper to form a single Union for the
ground for the cooperative to cause a strike. Hope that I answered your legal query, and if entire faculty staff, provided you comply with all the requirements under the Rules and law,
you have more questions feel free to ask me anytime and all the members in your Union are your fellow rank-and-file teachers and none of those
disqualified members (e.g. supervisory employees’ membership in rank-and-file bargaining
Follow-up Question: unit, confidential employees and managerial employees). What is important is that all the
Does the cooperative have a right to file a notice of strike? members in the bargaining unit share mutuality of interests with regard its terms of
employment and working conditions as evinced by the type of work performed. It is
Follow-up Answer: characterized by similarity of employment status, same duties and responsibilities and
The Cooperative does not have a right to file a notice of strike. substantially similar compensation and working conditions. In your case, it is undeniable that
the teachers employed whether in separate departments share commonality in terms of
It is provided by law that only Certified Bargaining Unions are allowed to file a notice of strike employment and working conditions.
on the ground of Unfair Labor Practice and Bargaining Deadlock; Legitimate Labor
Organizations only on the ground of Unfair Labor Practice. In sum, we advise on the formation of a single Union for the entire faculty staff, given the
facts of your case. Thank you once again for availing of our services. We hope we have
addressed the matter completely. Thank you!