Employers and heads of training/educational institutions are obligated to prevent and deter sexual harassment and, in the event of a violation, provide procedures for resolution, settlement as well as prosecution of the acts of sexual harassment.

Consequently, the following things must be done:

1.) Promulgate the appropriate rules and regulations prescribing the procedure for investigating sexual harassment cases and the administrative sanctions. They shall form part of the guidelines and proper decorum in the workplace or educational/training institution. These must be done in consultation with and jointly approved by the employees or students/trainees through their duly appointed representatives. 

Note: Administrative sanctions will not bar the victim from filing suit in court.

2.) Create a committee on decorum and sexual harassment. The committee shall conduct meetings with officers, employees, teachers, instructors, coaches, trainers and students -as the case may be- to increase awareness and prevention of incidents of sexual harassment. It is also tasked to investigate cases constituting sexual harassment.

For a work-related environment, the committee shall be composed of at least 1 representative each from the management, union (if any,) supervisory employees and rank-and-file employees.

For a training/educational institution, it must be composed of at least 1 representative from the administration, trainers, teachers, professors, coaches, or instructors and students/trainees as the case may be.

The employer or administration of the training/educational institution is required to disseminate or post a copy of the law on sexual harassment for the information of all concerned.

Sexual Harassment: Penalties and Liabilities

So we've finished with what constitutes sexual harassment. Now let's look at the penalties and other things that attach to it.

Penalty and Prescription

The penalty for sexual harassment is imprisonment for 1 to 6 months and/or a fine of Php10,000 to 20,000. The crime of sexual harassment prescribes in 3 years.

Liabilities

The employer or head of the training/educational institution in question will be made solidarily liable for the sexual harassment; but this liability will become applicable only if he was informed of the violation but did nothing.

The victim is also allowed, as the basics of civil and criminal law are concerned, to file a separate and independent action for damages or other affirmative reliefs.

Sexual Harassment: Definition and Elements

Sexual harassment in RA 7877 happens when sexual favors are demanded, requested or otherwise required of a person by another who is a teacher, employer, manager, supervisor, trainer, coach, instructor, professor or has any form of authority, moral ascendancy or influence over the former. It doesn't matter if the request, demand or requirement was accepted or not. Also, the person requiring sexual favors doesn't necessarily have to be an immediate superior; and if the offender is another employee, he must belong to a position higher than the victim's. It could also be someone in authority and the person being harassed is someone who needs the former's approval or actions.

Elements:

1.) The offender is an employer (or employee of higher rank,) manager, supervisor, trainer, agent of the employer, teacher, instructor, professor, coach or any other person with authority, influence or moral ascendancy over the victim

2.) The authority, influence or moral ascendancy exists in a working environment (in case of a work-related category)

3.) The person in #1 requires, demands or requests a sexual favor from the victim

RA 7877 divides sexual harassment into 2 categories: work-related and education/training related.

Work-related 

1.) The sexual favor is made as a condition in the hiring, employment, re-employment or continued employment  of the victim. It could also be made as a condition for granting favorable compensation, terms and conditions, promotions or privileges. The refusal of the sexual favor could result in the limiting, segregating or classifying the victim in such a way that could discriminate against him/her, deprive/diminish employment opportunities or otherwise affect him/her adversely.

2.) The acts in question would impair the victim's rights and privileges under existing labor laws.

3.) The acts in question could result in an intimidating, hostile or offensive environment for the victim.

Education/training-related

1.) The victim is either (a.) under the offender's care, custody or supervision or (b.) his/her education, training, tutorship or apprenticeship is entrusted to the offender.

2.) The sexual favor is made as a condition for the giving of a passing grade, the granting of honors and scholarships or the payment of a stipend, allowance or other benefits, privileges or consideration.

3.) The sexual advances result in an intimidating, hostile or offensive environment for the victim.

Terms in RA 9208

RA 9208 is the Philippines' law against human trafficking. Below are the terms used by RA 9208

Trafficking of Persons

Recruitment, transportation, harboring or receipt of persons with or without their knowledge or consent. It can take place within or across national borders and is done by means of threat, force, any other form of coercion, abduction, fraud, deception, abuse of power/position, taking advantage of the person's vulnerability, giving/receiving payments/benefits to obtain the consent of the person who has control over the victim. Its purpose includes, at a minimum, the exploitation (whether sexual or not) of others, forced labor/services, slavery, servitude or the removal and sale of organs. 

If the victim is a child, it's still considered trafficking even if none of the above exploitation takes place (see child trafficking.)

Child

The same definition in RA 7610.

Prostitution

Any act, transaction, design or scheme where one person uses another for sexual intercourse or lascivious conduct in exchange for money, profit or other consideration.

Forced Labor/Slavery

Extraction of work/services by enticement, violence, intimidation, threat, use of force or coercion. This includes deprivation of freedom, debt bondage, deception or abuse of moral ascendancy or authority.

Sex Tourism

A program organized by travel and tourism-related establishments and individuals which consists of tourism packages or activities utilizing and offering escort and sexual services as enticement for tourists. This includes sexual services and practices offered during R & R periods for military personnel.

Sexual Exploitation

Participation of a person in prostitution or the production of pornographic materials due to threat, deception, coercion, abduction, force, abuse of authority, debt bondage, fraud or abuse of the victim's vulnerability.

Debt Bondage

The debtor pledges his/her personal services/labor or those of a person under his/her control as security or payment for a debt -and when the length and nature of services isn't clearly defined or when the value of the services as reasonably assessed isn't applied as payment for the debt!

Pornography

Any representation through publication, exhibition, cinema, indecent shows, IT, or by whatever means, of a person engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a person for primarily sexual purposes.

Council

The Inter-Agency Council Against Trafficking.

Penal Provisions of RA 9231

So now we come to the penalties for violations of RA 9231.

1.) Violations of the employment guidelines for children in RA 9231, including their hours of work (as well as the advertisement prohibition) are punishable by imprisonment of 6 months and 1 day to 6 years and/or a fine of Php50,000 to 300,000.00.

2.) Violations of the prohibitions on child labor by the employer/contractor or any person are punishable by imprisonment of 12 years and 1 day to 20 years and/or a fine of Php100,000 to 1 Million.

3.) Violations of numbers 1 and 2 of the same prohibitions will be punishable under RA 9208. The penalty will be set at its maximum period.

4.) Violations of number 3 of the prohibitions with regard to dangerous drugs will be punishable under the provisions of the Dangerous Drugs Act covering minors.

5.) If a corporation is responsible for the crime, the officers responsible will be punished.

6.) Parents, whether biological or not, who violate the guidelines on working children will be fined Php10,000 to 100,000 and/or be made to perform community service for 30 days to 1 year. The penalty will be set at its maximum if the violations were committed 3 times. If the violation is committed for more than 3 times, a penalty of imprisonment for 30 days to 1 year will be imposed in addition to community service.

7.) The secretary of the DOLE can, after due notice and hearing, order the closure of any establishment found to have violated the provisions of RA 9231 more than 3 times. The closure can also be ordered if:

a.) The violation led to the death, insanity or serious physical injury of a child working in the establishment

b.) The establishment is engaged in prostitution or obscene/lewd shows

In case of closure, the employer must pay the employees separation pay and other monetary benefits provided by law.

Prohibitions in RA 9231

After reading the requirements for working children, we now turn to what should not be done. The prohibitions enumerated below are not exclusive and can cover acts of a similar nature. 

1.) All forms of slavery defined under RA 9208 (Anti-Trafficking of Persons Act) or practices similar to slavery like sale and trafficking of children, debt bondage and serfdom and forced/compulsory labor, including recruitment of children for use in armed conflict

2.) The use, procuring, offering or exposing a child for prostitution or the production of pornography/pornographic performances

3.) The use, procuring or offering a child for illegal purposes, including the production and trafficking of dangerous drugs and volatile substances prohibited under other laws

4.) If the work is, by its nature or the circumstances in which it is carried out, hazardous or likely to be harmful to the health, safety and morals of children by:

a.) Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being

b.) Exposes the child to physical, emotional, psychological or sexual abuse, if found to be highly stressful or may prejudice morals

c.) Performed  underground, underwater (like muro-ami) or at dangerous heights

d.) Involves the use of dangerous equipment and machinery (power tools, explosives, etc.)

e.) Exposes the child to physical danger such as (but not limited to) dangerous feats of balancing, physical strength or contortion or requires the transport of heavy loads

f.) Performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances and co-agents and processes involving ionizing, radiation, fire, flammable substances, noxious components, etc. or extreme temperatures, noise and vibrations

g.) Performed under particularly difficult conditions

h.) Exposes a child to biological agents (bacteria, fungi, viruses, nematodes, protozoans and other parasites)

i.) Involves the manufacture of explosives and other pyrotechnic products

Children are also not allowed to participate in advertisements directly or indirectly promoting alcoholic beverages, tobacco and its byproducts, gambling, violence or pornography.

Working Children

RA 9231 amended the provisions for working children in RA 7610. For purposes of RA 9231, the definition of a "child" is "all persons below 18." This is different from the definition in RA 7610, but RA 9231's definition of the child doesn't amend that of RA 7610. It merely determines the definition of a child for labor purposes.

In relation to the article on minors, children below 15 cannot be employed except in the following scenarios:

1.) If working directly under the sole responsibility of his/her parents/legal guardians and only where members of his/her family are employed. The child's employment must not endanger his/her life, safety, health and morals and must not impair his/her normal development. The parents and legal guardians must also provide him/her with the prescribed primary and/or secondary education.

2.) In case the child's employment is in showbiz (child actors,) the employment contract must be concluded by his parents/legal guardians with the child's express agreement (if possible) and approved by the DOLE. Compliance must be made with regard to the following:

a.) The employer shall ensure the child's protection, health, safety, morals and normal development.

b.) Measures must be taken by the employer to prevent the child's exploitation or discrimination, taking into account the system and level of remuneration as well as duration and arrangement of working time.

c.) The employer shall formulate and implement a continuing program for the child's training and skills acquisition. This is subject to approval and supervision by competent authorities.

d.) The employer must obtain a working permit for the child from the DOLE before engaging him/her.

Hours of Work

1.) Below 15

Not more than 20 hours a week, maximum of 4 hours a day. No work between 8PM to 6AM of the next day.

2.) 15-17 years old

Maximum of 40 hours a week, not more than 8 hours a day. No work between 10PM to 6AM of the next day.

The Child's Income

The child is the owner of his/her income and it must be set aside primarily for his education, skills acquisition and support. The needs of his/her family take secondary importance with regard to the child's income. 20% of the income may be set aside for the family's needs.

The child's income shall be administered by the parents, or by the parent who still holds parental authority if the other parent loses authority. In case both parents are absent or incapacitated, the order of preference on parental authority in the Family Code will apply.

A trust fund taken from 30% of the child's income is to be set aside by the parents/legal guardians if the income is at least Php200,000 a year, and they are required to make a semi-annual report to the DOLE for that purpose.

When the child reaches the age of majority, he/she will have full control of the trust fund.

Voluntary Arbitration

The cases under the original and exclusive jurisdiction of the voluntary arbitrator are the following:

1.) Unresolved grievances coming from the interpretation and implementation of the CBA

2.) Unresolved grievances coming from the interpretation and implementation of company personnel policies

3.) All other labor disputes including ULPs and lockouts

Grievances not settled through the grievance machinery in the CBA within 7 calendar days are to be brought to the voluntary arbitrator. The voluntary arbitrator will then have 20 calendar days to resolve the dispute.

The award of the voluntary arbitrator acting within the scope of his jurisdiction governs the parties' rights and their decisions have the same level as those of the courts. A decision of the voluntary arbitrator takes effect after 10 calendar days from receipt of the parties.  The remedy is to file a petition for review with the CA under Rule 43 of the Rules of Court within the 10-day period. Filing of a motion for reconsideration is not allowed. A dissenting opinion from the panel of voluntary arbitrators is not binding on the parties.

Fixing of the fee for voluntary arbitration shall include the following:

1.) Nature of the case
2.) Time used while hearing the case
3.) Voluntary arbitrator's personal standing
4.) Capacity to pay of the parties
5.) Fees provided in the Rules of Court

The voluntary arbitrator is chosen by the parties. In case of a grave abuse of discretion, a petition for certiorari under rule 65 of the Rules of Court can be sent to the SC. The SC, as a matter of policy will remand the case to the CA.

Visitorial Powers

The secretary of the DOLE has a number of powers that allow him to enforce the labor laws under the Labor Code. One category of these is called the visitorial powers. They are the following:

1.) Inspection of work premises, books of accounts and records of persons/entities engaged in recruitment and placement, require them to submit regular reports in prescribed forms and act on any violations on provisions on recruitment and placement (Art. 37)

2.) Access to the employer's records and premises to determine violations and enforce laws and regulations regarding wages, orders, etc. (Art 128)

3.) Conduct industrial safety inspections (Art. 165)

4.) Inquire into the financial activities of legitimate labor unions and examine their books of accounts upon filing of a complaint under oath and duly supported by the written consent of at least 20% of the total membership of the union (Art. 274)

4.) Issue compliance orders to implement the provisions of the Labor Code and other related legislation based on the findings of labor employment and enforcement officers or industrial safety engineers in the course of inspection (Art. 128-b)

5.) Issue writs of execution to the proper authority for the enforcement of their orders, except in cases where the employer questions the findings of labor employment and enforcement officers and raises issues supported by documentary proofs that wasn't considered during the investigation (also Art. 128-b)

Termination for Authorized Causes

Besides termination of employment for just causes, there is another set of causes for termination by the employer. Authorized causes for termination of employment don't need a DOLE investigation. Notice to the DOLE and the workers is all that's needed. The causes are the following:

1.) Installation of labor-saving devices
2.) Redundancy
3.) Retrenchment to prevent losses
4.) Closure of the business establishment/cessation of operations

Retrenchment

Termination by the employer without the employees' fault which in no way makes them suffer injury. This is resorted to during periods of recession, industrial depression, seasonal fluctuations, lulls because of a lack of new orders, shortage of materials or conversion of the plant for a new production program, introduction of new methods/machinery or automation. 

Requirements:

1.) The retrenchment is reasonably necessary and likely to prevent business losses which, if incurred, aren't minimal but serious, or if only expected, reasonably imminent as perceived objectively and in good faith by the employer

2.) The employer serves written notice to the employees and the DOLE at least 1 month before the intended date of retrenchment

3.) Employees are paid at least 1 month's wages or 1/2 month per year of service, whichever is higher

4.) The employer exercises the prerogative to retrench employees in good faith to protect its interests but not to circumvent the employees' right to security of tenure

5.) Use of fair and reasonable criteria in ascertaining who to dismiss and who to retain (such as status, efficiency, seniority, physical fitness, age and financial hardship for certain workers)

Redundancy

Redundancy happens when there is an excess of the service capability of work (read: more workers than the employer actually needs.) Several factors influence redundancy: overhiring of workers, decrease of business volume, dropping of a particular line previously manufactured by the company, phasing out of a service facility previously undertaken by the business, etc. The employer isn't obliged to keep more employees than he actually needs during these conditions.

Requirements:

1.) Written notice to the employees and DOLE at least 1 month before the intended date

2.) Payment of separation pay equal to at least 1 month's wages or 1 month per year of service, whichever is higher

3.) Good faith in abolishing redundant positions

4.) Fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished

Losses

Requirements are the following:

1.) Actual or expected losses must be substantial and not minimal

2.) Expected losses must be reasonably imminent and this imminence can be perceived by the employer objectively and in good faith

3.)  The termination must be necessary and likely to prevent the losses expected (and the employer must have taken measures to cut costs other than labor costs)

4.) Losses, whether expected or actual must be proved by sufficient and convincing evidence

Cessation/Closure

There is nothing in the law that will prevent the employer from deciding to close his business, otherwise it would be oppressive to him and deny him his basic rights.

Requirements:

1.) Written notice to the employees and DOLE at least 1 month before the intended date of closure

2.) The closure must be bona fide in character

3.) Payment of at least 1 month's wages or 1 month per year of service, whichever is higher

Principle of Absorption

A bona fide buyer or transferee of all or substantially all of the previous owner's business isn't obliged to absorb his (the previous owner's) employees. Liabilities of the previous business owner are also not enforceable against the new owner unless he unequivocally assumes them or if the sale/transfer was made in bad faith (Barayoga vs. Asset Privatization Trust, 473 SCRA 690.)

From the Labor Arbiter to the NLRC

Now that you've read this article and this one, here's what happens next.

Labor Arbiter

Under Art. 221 of the Labor Code, a decision of the labor arbiter that has become final and executory can still be changed by agreement of the parties. This is because Art. 221 requires the labor arbiter to exert all possible effort to help both parties to the case arrive at an amicable settlement. In fact, an amicable settlement while a case is pending, even before the NLRC, is allowed.

A judgment of the labor arbiter won't bind parties that didn't sign the agreement; therefore res judicata can't be raised as a valid argument.

A decision, order or award from the labor arbiter can be stayed by perfecting an appeal to the NLRC; the exception is reinstatement, which is immediately executory. These are the steps:

1.) Within 10 days from receipt of the decision, file a notice of appeal with an appeal memorandum. It must be verified by the appellant and carry an certificate of non-forum shopping. The following must be shown:

a.) The verification must be made in accordance withe Sec. 4 of Rule 7 of the Rules of Court.

b.) The memorandum must contain the grounds relied on, the arguments that support them, the reliefs prayed for and a statement of the date the appellant received the decision, order or resolution.

c.) The notice of appeal, as well as the memorandum, must be made in 3 copies.

2.) Proof of service to the other party must also be shown, as well as proof of payment of the appeal fees.

3.) Put up a cash /surety bond equal to the award in the judgment.

The grounds for appeal from the labor arbiter/DOLE regional director are the following:

1.) Prima facie evidence of abuse of discretion on the part of the labor arbiter/regional director

2.) The decision, resolution or order in question was secured through fraud or coercion, including graft and corruption

3.) Made purely on questions of law

4.) Raising of serious errors made in the findings of fact which could cause grave or irreparable damage or injury to the appellant if not corrected

The BLR and NCMB

The Bureau of Labor Relations has jurisdiction over the following cases:

A.) Original and Exclusive

1.) Inter-union conflicts

2.) Intra-union conflicts

3.) All disputes, problems, or grievances that are founded on or affect labor-management relations, whether agricultural or not (except those founded on an interpretation or interpretation of a CBA -these are subject either to the grievance procedure and/or voluntary arbitration)

B.) Appellate

1.) Decisions of med-arbiters in intra-union disputes
2.) Regional office decisions on petitions to cancel a union's registration certificate

A med-arbiter is an officer in the DOLE regional office or BLR whose job is to hear and decide representation, intra/inter-union disputes and other labor relations disputes except cases on cancellation of union registration. Decisions of the med-arbiter/regional director are appealable to the the BLR within 10 days from receipt of the decision. The BLR has 15 days to work on cases submitted to it. This period can be extended on agreement by the parties. A decision of the BLR must also be appealed within 15 days from its receipt; the appeal is to the DOLE secretary.

Representation cases are those cases meant to determine which among rival unions in an establishment should be the appropriate representative for collective bargaining purposes. Inter-union disputes are disputes between unions while an intra-union dispute is a dispute within a union.

The NCMB

The National Conciliation and Mediation Board is an attached agency under the supervision and control of the DOLE. It was created to handle the conciliation, mediation, and voluntary arbitration functions of the BLR and is composed of an administrator and 2 deputies.

Functions:

1.) Formulate policies, programs, procedures, standards, operation manuals and guidelines on effective mediation and conciliation of labor disputes

2.) Preventive mediation and conciliation functions

3.) Coordinate and maintain linkages with other sectors and institutions and other government authorities concerned with matters relative to the prevention and settlement of labor disputes

4.) Formulate policies, plans, programs, standards, procedures, operations manuals and guidelines pertaining to the promotion of cooperative and non-adversarial schemes, grievance handling, voluntary arbitration and other voluntary modes of dispute settlement

5.) Administer the voluntary arbitration program; maintain/update a list of voluntary arbitrations and compile arbitration awards and decisions

6.) Provide counseling and preventive mediation assistance particularly in the administration of collective agreements

7.) Monitor and exercise technical supervision over BLR programs implemented in regional offices

8.) Perform other such function provided by law or assigned by the DOLE secretary

The NLRC's Jurisdiction

The NLRC has jurisdiction over the following matters:

1.) Appellate jurisdiction over all cases decided by the labor arbiter

2.) Exclusive appellate jurisdiction over all cases decided by the regional directors or hearing officers involving the recovery of wages and other monetary claims and benefits arising from employer-employee relationships where the total money claim is Php5,000.00 or less

3.) Original exclusive jurisdiction as compulsory arbitration body over labor dispautes certified to it by the DOLE secretary

4.) Original exclusive jurisdiction to issue labor injunctions and exercise contempt powers under Art. 218 (e) of the Labor Code (illegal acts committed during a labor dispute)

5.) Original exclusive jurisdiction over contempt cases committed against it or any of its members under Art. 218 (d) of the Labor Code (acts of contempt during proceedings)

6.) Exclusive jurisdiction over cases involving petition for relief from judgment from a decision/order from a labor dispute involving fraud, accident, mistake or excusable negligence

The NLRC sits en banc only to promulgate rules rules and regulation on the hearing and disposition of cases before any of its decisions and regional branches and formulating policies affecting its administration. In all other cases, cases before the NLRC are taken up in division.

The NLRC is on the same level as the CA.

The Labor Arbiter

The labor arbiter has the exclusive and original jurisdiction over the following cases, regardless of whether or not the establishment in question is agricultural or industrial:

1.) ULPs

2.) Termination disputes

3.) If with a reinstatement claim, those cases workers can file involving wages, pay rates and other terms and conditions of employment

4.) Claims for actual, moral, exemplary an other forms of damages resulting from an employer-employee relationship

5.) Cases arising from violations of Art. 264 of the Labor Code involving questions on the legality of strikes and lockouts

6.) All other claims resulting from an employer-employee relationship, including those of person of domestic or household service involving amounts greater than Php5,000.00 whether or not accompanied by a reinstatement claim -except claims for employees compensation, social security, Philhealth and maternity benefits

7.) Money claims from an employer-employee relationship or by virtue of law or contract involving Filipino workers for overseas deployment, including claims for moral, actual, exemplary and other forms of damages

8.) Wage distortion cases in unorganized establishments not voluntarily settled by the parties under RA 6727

9.) Enforcement of compromise agreements where one of the parties isn't complying pursuant to Art. 227 of the Labor Code

10.) Other cases provided by law

Cases involving the interpretation and implementation of a CBA will be dismissed by the Labor Arbiter; they'll be referred to the CBA's grievance mechanism and voluntary arbitration. Also, a complaint for reimbursement of training expenses isn't in the labor arbiter's jurisdiction.

If an order for reinstatement from the labor arbiter is reversed on appeal, the employer must still reinstate the employee and pay wages during the appeal period until a higher court affirms the reversal. If the reversal is final, the employee isn't supposed to reimburse the employer for wages paid.

The labor arbiter is considered on the same level as the RTC.

Cancellation of Registration Certificate

While this deals with the same topic, this is now from the BLR's point of reference.

The BLR can cancel a union's certificate of registration after due hearing if it has reason to believe that the union no longer meets one or more of the requirements prescribed by the Labor Code.

Grounds

1.) Violation of basic requirements of registration

2.) Violation of additional requirements for registration of federations/national unions as well as the following:

a.) Misrepresentation, false statement, in connection with the adoption and ratification of the constitution and by-laws (or its amendments) minutes of ratification and list of members taking part in the ratification of the constitution and by-laws and amendments

b.) Misrepresentation, false statement or fraud in connection with election of officers, list of voters or failure to submit these documents together with the list of newly elected/appointed officers and their addresses within 30 days from their election/appointment

c.) Failure to submit annual financial report to the BLR within 30 days from the close of the fiscal year -including misrepresentation, false entries and fraud in the preparation of the report itself

d.) Acting as a labor-only contractor, engaging in the cabo system and engaging in activities prohibited by law

e.) Entering into sweetheart contracts

f.) Asking for/accepting attorney's fees or negotiation fees from the employer (which is an unfair labor practice and the employer can sue the union for this)

g.) Checking off of special assessments or other fees without duly signed individual authorization of members

h.) Failure to submit a list of individual members to the BLR at least once a year or so as required

When a complaint for cancellation is filed, the BLR or DOLE will issue a written notice of issue to the union, stating the grounds for cancellation. It will be sent 15 calendar days before the scheduled hearing.

Formation of Labor Unions

Categories of Employees

1.) Managerial -those vested with the power to lay down and execute management policies, hire, transfer, suspend, lay-off, recall, discharge, assign and discipline employees. They're not allowed to form labor unions.

2.) Supervisory -those in the employer's interest who recommend managerial actions (actions of managerial employees) if the exercise of such authority requires one's own independent judgment. They can form labor unions.

3.) Rank and File -neither managerial nor supervisory employees. They can form labor unions.

4.) Confidential -entrusted with confidence on delicate matters or with the care, protection and custody of the employer's property (doctrine of necessary implication.) Not allowed to form labor unions.

All agricultural and industrial enterprises, regardless of whether formed for profit or not, have the right to form unions and engage in collective bargaining. Foreigners can't form nor join labor unions. The body responsible for doing this in the company is the labor union.

Registration of Labor Unions

The registration of a labor union is indispensable. An unregistered union is an illegal one. The purposes of registration are as follows:

1.) To protect both labor and the public from abuses, fraud and, most importantly, impostors who don't really have the concerns of labor at heart and pretend to be organizers of unions they claim to represent (Villar vs. Inciong, 121 SCRA 444.)

2.) Registration is a valid exercise of police power since labor activities affect public interest.

Registration isn't the only requirement of a legitimate labor union. It must also maintain a registered status. The application for registration must be signed by 20% of the employees who form the bargaining unit (the union) and filed with the BLR or the DOLE regional office where the applicant's principal is located. The following must be prepared:

1.) Registration fee (Php50.00)

2.) Names of the officers and their addresses as well as the principal address of the union

3.) Minutes of organization meetings and a list of the workers who participated in them

4.) Names of all the members ( must comprise at least 20% in the bargaining unit where it intends to operate -in case it's an independent union)

5.) Annual finance report (if the union has been in existence for more than a year)

6.) 4 copies of the constitution and by-laws, minutes of its adoption and ratification and a list of members who participated in the ratification (the list can be disregarded if the constitution and by-laws were ratified/adopted during the organizational meeting)

7.) Sworn statement by the applicant union that:

a.) There is no certified bargaining agent in the bargaining unit concerned

b.) In case there is an existing CBA registered with the DOLE, a statement that application for registration is filed during the freedom period (60 days before the expiry of the CBA)

c.) The application and documents must be under oath by the union secretary or treasurer and attested to by its president

Once the requirements are submitted, the DOLE regional office has 30 days to approve or deny the application. If denied, the union has 10 days to appeal to the BLR director. If still denied, it's appealable to the CA.

Once approved, the legitimacy of a labor union can't be attacked collaterally. The remedy is to file a petition for the cancellation of registration. Cancellation, however, won't suspend certification election proceedings. It also won't prevent the filing of a petition for certification election.

The grounds of cancellation of union registration are the following:

1.) Misrepresentation, false statements or fraud in connection with the adoption/ratification of the constitution and by-laws or its amendments, minutes of ratification and list of members who participated in the ratification

2.) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers and list of voters

3.) Voluntary dissolution by the members

For federations or national unions, the following requirements are needed:

1.) Statement indicating the name of the applicant union, its principal address, names of its officers and addresses

2.) Minutes of the organizational meeting and a list of employees who participated in it

3.) Annual financial reports if it has been in existence for 1 year or more -unless it hasn't collected any amount from the members (a statement to that effect will be included in that case)

4.) Union constitution and by-laws and the minutes of its adoption/ratification and a list of the members who participated in it (the list isn't necessary if the same instance in #6 in the list of requirements for registration)

5.) Proof of affiliation of at least 10 locals/chapters (each of the must be a duly certified/recognized bargaining agent in the establishment/industry where it operates)

6.) Names and addresses of the companies where the locals/chapters operate and a list of members in each chapter/local in each company

Unions that are members of a federation or national union are called "chartered locals." A chartered local can be registered without the 20% minimum membership and can adopt the constitution and by-laws of the federation/national union as its own.

The federation or national union can also revoke the charter of a chartered local on the grounds of disloyalty and others indicated in its constitution and by-laws. It can do this by serving a verified notice on the chartered local with a copy furnished to the BLR.

Independent unions may affiliate themselves with a federation or national union. It can do this by submitting such an issue to its members. A majority vote is needed. After the majority vote is reached, a resolution or request is sent to the federation. If the federation or national union accepts, it offers the affiliate a contract of affiliation. Disaffiliation is also allowed; it depends on the terms and conditions of the contracts and the relations between the affiliate and the federation. The requirements for affiliation are as follows:

1.) Resolution of the union's board of directors approving the affiliation

2.) Minutes of the membership meeting approving the affiliation

3.) Total number of members comprising the union and the names of the members who approved of the affiliation

4.) Certificate of affiliation issued by the federation in favor of the independently registered union

5.) Written notice to the employer if the affiliating union is the incumbent bargaining agent in the CBA

For chartered locals and affiliates, there are additional requirements needed:

1.) Constitution and by-laws

2.) Set of officers

3.) Books of accounts

A local will only be recognized as such if the following are submitted to the BLR:

1.) The certificate issued by the federation/national union within 30 days from its issuance

2.) Constitution and by-laws, statement as to set of officers and books of accounts (all must be certified by the local treasurer or secretary and attested to by its president)

Failure of the union to submit its books of accounts to the BLR can be a ground the employer can rely on to oppose a petition for certification election filed by the chartered local concerned (Protection Technology, Inc. vs. Secretary of Labor, GR 117211, March 1, 1995.)

Substitutionary Doctrine

Employees can't revoke a validly-executed CBA by simply changing their bargaining agent. The new bargaining agent must respect the CBA. They can. however, agree with the employer to shorten the term of the CBA.

Collective Bargaining Subjects

The constitution allows labor the right to collective bargaining in order to protect workers' rights. The agency whose duty it is to bargain with the employer on the side of the workers is the labor union. The workers who can form labor unions are those who are employed in the following establishments:

1.) Commercial

2.) Industrial

3.) Agricultural

4.) Religious

5.) Charitable

6.) Medical

7.) Educational

It won't matter if establishments 4 to 7 are operating for profit or not.

The mandatory subjects for collective bargaining are the following:

1.) Wages and other types of compensation

2.) Work hours and work days, including night shifts

3.) Holidays and vacations

4.) Bonuses

5.) Pensions and retirement plans

6.) Seniority

7.) Transfers

8.) Lay-offs

9.) Employee workloads

10.) Work rules and regulations

11.) Rental of company houses

12.) Arrangements for union security

Wage Deductions

There are 2 groups of wage deductions: those under Art. 113 of the Labor Code and those under other laws. The allowable wage deductions under Art. 113 of the Labor Code are the following:

1.) In cases where the worker is insured with his consent by the employer and the deduction is to compensate the employer for the amount he paid as a premium on the insurance

2.) For union dues if the employer recognizes the worker's or union's right to check-off (deduct from wages) or is authorized by the worker himself

3.) In cases where the law or regulations issued by the DOLE Secretary authorizes the employer to make deductions

The following are deductions allowed by other laws

1.) If the employee has a debt to the employer and it's now due and demandable (Civil Code, Art. 1706)

2.) In court awards, wages can be subject to execution or attachment only if they cover debts for food, shelter, clothing or medical attendance (Civil Code, Art. 1703)

3.) Withholding taxes (NIRC)

4.) Salary deductions of a member of a legally established cooperative (RA 9520, Art. 58, which amended RA 6938/Philippine Cooperative Code of 2008)

5.) Deductions for payment to third persons, with the employee's written authorization (Labor Code Implementing Rules, Book 3, Rule 8, Sec. 13)

6.) Union dues (Labor Code, Art. 241 and 277)

7.) Agency fee (Labor Code, Art. 248, par. e)

8.) Deductions for meals and other facilities (Labor Code Implementing Rules, Book 3, Rule 7-A, Sec. 7)

9.) Deductions for loss or damage (Art. 114, Labor Code)

10.) SSS, Medicare, Pag-IBIG, premiums

Note, however, that under Art. 114 of the Labor Code the employer can't make the employee make a deposit to cover damages to company property. Whatever damage the employee commits must be charged  to his salary.

Strikes: Requirements and Limitations

A strike is a temporary stoppage of work by the concerted action of the employees as a result of an industrial or labor dispute. There are 2 kinds of strikes, based on their grounds: Economic and ULP. Economic strikes are declared to force wage or other concessions which the employer isn't required by law to grant, such as a deadlock in collective bargaining. If the CBA has a no-strike clause, economic strikes can't be resorted to. ULP strikes happen when there are ULPs.

The right to strike is a constitutional right. The Philippines is probably the only country in the world where the right to strike became constitutional, but this right must be exercised peacefully and in accordance with law. It is the most powerful weapon of labor, but it must be handled delicately because it can go out of control and can even be detrimental to the economy; the right to strike is not meant (and should never be resorted to) to destroy or oppress the employer (AIUP vs. NLRC, GR 120505, March 25, 1999.) The requirements for a valid strike must be properly complied with, or the strike will become illegal. Some labor unions have abused the right to strike in the following ways:

1.) To force employers to grant unreasonable demands

2.) To destroy an insignificant minority in the workforce

3.) Violating Art. 264 of the Labor Code (prohibited activities) by replacing picket lines of striking workers with barricades or other means, like coercion and intimidation, to prevent entry to and exit from the workplace (and making the right to strike a means to coerce instead of to persuade)

Requirements of a Valid Strike

1.) Valid and factual ground

2.) Notice of strike filed either by the bargaining agent at least 30 days before the intended date (in case of a deadlock in collective bargaining) or by the registered union in the affected bargaining unit at least 15 days before the intended date (in case of a ULP)

3.) Notice filed with the NCMB

4.) Notice filed at least 24 hours before taking a strike vote through secret ballot, informing the NCMB of the decision to vote on the strike as well as its time, date and place

5.) The vote requires the majority of the union members

6.) Strike vote report is submitted to the NCMB at least 7 days before the intended date of the strike

7.) The cooling-off period is to be observed (30 days for collective bargaining deadlock and 15 days for ULP) except in case of union-busting

8.) Observe the 7-day strike ban/waiting period after submission of the strike vote report to the NCMB

9.) If the CBA has a no-strike clause, ULPs can be a valid ground but collective bargaining can't

10.) Persons in the picket line can't violate Art. 264 (see above)

11.) No strike can be declared after the DOLE Secretary assumes jurisdiction over the dispute

If the strike is lawful, it enjoys the following protective measures:

1.) Not subject to a labor injunction or restraining order

2.) Strike-breakers are prohibited

3.) Protected as a worker's constitutional and legal right

4.) Mere participation of an employee in a lawful strike isn't a ground for dismissal, disciplinary action or termination or discrimination

Mandatory Requirements of a Strike:

1.) Strike notice (30 days for collective bargaining deadlock, 15 days for ULP)

2.) Majority vote by secret ballot

3.) Submission of the strike vote report to the NCMB at least 7 days before the strike (7-day strike ban)

Flow-through of a Strike

1.) Filing of the notice of strike

2.) Cooling-off period (see above)

3.) Must be based on either collective bargaining deadlock or ULP

4.) Before the strike is actually started, the strike vote must be held with the 24-hour prior notice to the NCMB

5.) The results of the strike vote should be reported to the NCMB at least 7 days before the date of strike, but subject to the cooling-off period

Limitations of a Strike

1.) Means and purpose must be lawful

2.) National interest disputes assumed by the DOLE Secretary or one certified by him to the NLRC for compulsory arbitration: strike is subjected to injunction or restraining order and/or return-to-work order from the Secretary or NLRC

3.) Limited to CBA no-strike clause, if there is any

4.) Requirements should be complied with or it will be illegal

5.) Government employees under civil service and GOCCs with legislative franchise are prohibited from going on strike

6.) Employees of public utility and public service companies taken over by the government can't go on strike

Things to Watch Out For When There's a Union

I'm not anti-labor but I want all of you to be aware of the fact that both employers and employees are capable of committing abuses, and I'm not just talking about ULPs. These are other things you have to be aware of.

Closed-shop Agreement

An agreement that can be put into the main CBA (Collective Bargaining Agreement) where the employer agrees not to hire anyone unless he's a member of the union that entered into the CBA.

Agency Shop Agreement

Can also be put into the CBA. The employer agrees to check-off (deduct) a reasonable amount from the salaries of non-union workers that equals the dues and fees union members pay to the union if the non-union workers accept the benefits of the CBA.

Discrimination

Failure to treat all persons equally when there is no reasonable distinction between those preferred and those not preferred.

Surface Bargaining

When entering into collective bargaining, both parties go through the motions of bargaining but don't have a legal intent to make an agreement. Basically, it's simulated bargaining.

Shifting Bargaining Positions

The employer repeatedly shifts in attitude and position whenever there's a tentative agreement.

Blue-sky Bargaining

Bargaining where exaggerated or unreasonable proposals are made. Happens very often when the labor union is belongs to an extreme faction.

Boulwarism

Bargaining technique where a proposal is offered on a "take it or leave it" basis.

Featherbedding

The union makes/tries to make the employer pay for services that were not rendered.

Yellow Dog Contract

The employer makes the employees promise not to form or join a union as a condition for employment.

Sweetheart Contract

A CBA whose terms and conditions of employment are below the minimum standards set by law.