FAQ’s on Labor Law 2

More FAQ’s on Labor Law

Can striking workers continue with their strike even after an assumption order is made by the Secretary of Labor?

Regardless therefore of their motives, or the validity of their claims, the striking workers must cease and/or desist from any and all acts that tend to, or undermine this authority of the Secretary of Labor, once an assumption and/or certification order is issued. They cannot, for instance, ignore return-to-work orders, citing unfair labor practices on the part of the company, to justify their actions.

What is the nature of a return to work order?

The return to work order does not so much confer a right as it imposes a duty; and while as a right it may be waived, it must be discharged as a duty even against the worker’s will. Returning to work in this situation is not a matter of option or voluntariness but of obligation. The worker must return to his job together with his co-workers so the operations of the company can be resumed and it can continue serving the public and promoting its interest.

Can a return-to-work order be issued pending the determination of the legality or illegality of the strike?

It must be underscored thatthe return-to-work order is issued pending the determination of the legality or illegality of the strike. It is not correct to say that it may be enforced only if the strike is legal and may be disregarded if the strike is illegal, for the purpose precisely is to maintain the status quo while the determination is being made. Otherwise, the workers who contend that their strike is legal can refuse to return to work to their work and cause a standstill on the company operations while retaining the positions they refuse to discharge or allow the management to fill. Worse, they will also claim payment for work not done, on the ground that they are still legally employed although actually engaged in the activities inimical to their employer’s interest.

What is the effect of an assumption and/or certification order of the Secretary of Labor?

An assumption and/or certification order of the Secretary of Labor automatically results in a return-to-work of all striking workers, whether or not a corresponding order has been issued by the Secretary of Labor. Article 264(g) is clear, once an assumption/certification order is issued, strikes are enjoined, or if one has already taken place, all strikers shall immediately return to work.

What is the nature of the assumption of jurisdiction by the Secretary of Labor over labor disputes?

The assumption of jurisdiction by the Secretary of Labor over labor disputes causing or likely to cause a strike or lockout in an industry indispensable to the national interest is in the nature of a police power measure.The compelling consideration of the Secretary’s assumption of jurisdiction is the fact that a prolonged strike or lockout is inimical to the national economy and thus, the need to implement some measures to suppress any act which will hinder the company’s essential productions is indispensable for the promotion of the common good.

What is the function of the NLRC when it is sitting in a compulsory arbitration certified to by the Secretary of Labor?

When sitting in a compulsory arbitration certified to by the Secretary of Labor, the NLRC is not sitting as a judicial court but as an administrative body charged with the duty to implement the order of the Secretary. Its function only is to formulate the terms and conditions of the CBA and cannot go beyond the scope of the order. Moreover, the Commission is further tasked to act within the earliest time possible and with the end in view that its action would not only serve the interests of the parties alone, but would also have favorable implications to the community and to the economy as a whole. This is the clear intention of the legislative body in enacting Art. 263 paragraph (g) of the Labor Code, as amended by Section 27 of R.A. 6175.

What must an accusation of unfair labor practice include?

We have already held that when a labor union accuses an employer of acts of unfair labor practice allegedly committed during a given period of time, the charges should include all acts of unfair labor practice committed against any and all members of the union during that period. The union should not, upon dismissal of the charges first preferred, be allowed to split its cause of action and harass the employer with subsequent charges based upon acts committed during the same period of time (Dionela, et al. v. CIR, No. L-19334, August 31, 1963, 8 SCRA 832 at 837).

What must an employer establish in dismissal of employees based on loss of confidence?

Now, there is no gainsaying that loss of confidence is a recognized ground for the discharge of an employee from employment. But such a ground must be founded from facts established by substantial evidence. And the burden of establishing such facts as reasonably cause loss of confidence in an employee  such facts as reasonably generate belief by the employer that the employee is connected with some misconduct and the nature of his participation therein is such as to render him unworthy of the trust and confidence demanded of his position  is on the employer. The fact that the employee has been absolved in a criminal prosecution involving said misconduct does not preclude the employer from attempting to prove the same before the labor arbiter or the latter from accepting that evidence as sufficient foundation for a finding of lawful termination of employment. Withal, the employer’s evidence, although not required to be of such degree as is required in criminal cases, i.e., proof beyond reasonable doubt, must be substantial, must clearly and convincingly establish the facts upon which loss of confidence in the employee may fairly be made to rest.

What are the just causes for the dismissal of an employee?

Under Article 282 of the Labor Code, an employer may terminate an employment for any of the following

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

(e) Other causes analogous to the foregoing.

Are there instances wherein separation pay needs to be paid by the employer even if the employee was validly dismissed?

The only cases when separation pay shall be paid, although the employee was lawfully dismissed, are when the cause of termination was not attributable to the employee’s fault but due to: (1) the installation of labor-saving devices, (2) redundancy (3) retrenchment, (4) cessation of the employer’s business, or (5) when the employee is suffering from a disease and his continued employment is prohibited by law or is prejudicial to his health and to the health of his co- employees. (Articles 283 and 284, Labor Code.) Other than these cases, an employee who is dismissed for a just and lawful cause is not entitled to separation pay even if the award were to be called by another name.

What are the elements of the crime of illegal recruitment?

To prove illegal recruitment, only two elements need be shown, (1) the offender undertakes either any activity within the meaning of “recruitment and placement” defined under Art. 13 (b), or any of the prohibited practices enumerated under Article 34 of the Labor Code; and  (2) he has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers.

When is there labor-only contracting?

There is “labor-only” contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer.

Why does the POEA require cash and surety bonds from recruitment and placement agencies?

Cash and surety bonds are required by the POEA from recruitment and employment companies precisely as a means of ensuring prompt and effective eecourse against such companies when held liable for applicant’s or worker’s  claims.  The cash and surety bonds shall answer for all valid and legal claims arising from violations of the conditions for the grant and use of the license, and/or accreditations and contracts of employment.  The bonds shall likewise guarantee compliance with the provisions of the Code and its implementing rules and regulations relating to recruitment and placement, the POEA Rules and relevant issuances of the Department and all liabilities which the POEA may impose.

How is the existence of an employer-employee relationship determined by law?

To determine the existence of an employer-employee relationship, the Supreme Court in a long line of decisions has invariably applied the following four-fold test: [1] the selection and engagement of the employee; [2] the payment of wages; [3] the power of dismissal; and [4] the power to control the employee’s conduct. Among the four requisites, control is deemed the most important that the other requisites may even be disregarded. Under the control test, an employer-employee relationship exists if the “employer” has reserved the right to control the “employee” not only as to the result of the work done but also as to the means and methods by which the same is to be accomplished. Otherwise, no such relationship exists.

What is the test used to determine whether an employee has supervisory or managerial status?

The Supreme Court has ruled on numerous occasions that the test of supervisory or managerial status is whether an employee possesses authority to act in the interest of his employer which authority is not merely or clerical in nature but requires use of independent judgment. What governs the determination of the nature of employment is not the employee’s title, but his job description. If the nature of the employee’s job does not fall under the definition of “managerial” or “supervisory” in the Labor Code, he is eligible to be a member of the rank-and-file bargaining unit. (Pier 8 Arrastre & Stevedoring Services, Inc. vs. Confesor, et.al., 241 SCRA 294 [1995])