Constitutional Law Review

During the class last Mon, June 21, Atty. Arellano assigned the following cases:

1. Lozano vs. Nograles. I'm not sure whether or not Atty. Arellano wanted the September 23, 1997 Decision of Lozano vs Nograles (GR No. 129754), which has remained unpublished in SCRA according to Justice Panganiban's Separate Concurring Opinion in the Lambino Case (item no. 3 of this post). Since this 1997 Decision has not yet been published, it might be helpful to check Justice Panganiban's separate opinion on the Lambino case where he also reproduced his separate Opinion in the Lozano case in footnote no. 3. Anyway, here's a 2009 Decision of Lozano vs. Nograles.
   
2. PIRMA vs COMELEC. 270 SCRA 106
   
3. Lambino vs. COMELEC

Implementing Rules and Regulations for Book 5 (Labor Relations) of the Labor Code

Implementing Rules and Regulations for Book 5 (Labor Relations) of the Labor Code


Omnibus Rules Book 5

Publish at Scribd or explore others: book Uncategorizable-Unca

Taxation Cases

Additional Cases for Taxation:

1. Benguet Corporation vs Commisioner of Internal Revenue
2. Commissioner of Internal Revenue vs Fortune Tobacco
3. Commissioner of Internal Revenue vs Menguito

Copies of these cases were shared by Kaye.

Taxation Cases

1. Rizal Commercial Banking Corporation vs Commissioner of Internal Revenue
2. Judy Ann Santos vs People of the Philippines and Bureau of Internal Revenue
3. Philam Asset Management vs Commissioner of Internal Revenue

Thanks Kaye for the documents! (--,)

Problem Areas in Legal Ethics

This is a test post. I'm using dropbox to sync my files so that it will be available online. If there are errors, please bear with me. I will try to fix them as soon as possible.

1. Rules of Procedure on Bar Discipline (???)
   
2. Bobie Rose V. Frias vs Atty. Carmelita Bautista Lozada
3. Lim vs Villarosa
4. Francisco vs Portugal
5. Mar Yuson vs Atty. Vitan
6. Gisela Huyssen vs Atty. Fred Gutierrez
7. Lijauco vs. Atty. Terrado
8. Soriano vs Reyes
9. Meneses vs Macalino
10. Garcia vs Bala
11. Pineda vs Macapagal

Who has the full text of Rules of Procedure on Bar Discipline???

Law School Prom

We had a break from all the pages of SCRA and chapters of law books to make way for the JS Prom. Yes, lawschool isn't all about studying. (--,)

Labor Relations

Procedure in collective bargaining:

1. Notice with a statement of proposal
2. Reply not later that 10 calendar days
3. Conference (if differences should arise)
   
4. Conciliation meeting at the NCMB, if dispute is not settled. (During the conciliation proceedings, the parties are prohibited from doin any act which may disrupt or impede the early settlement of the disputes)
5. Voluntary arbitration

Collective bargaining - negotiations looking forward to a collective agreement. It includes four processes:

1. negotiation between representative of the management and the union regarding terms of employment
2. the execution f a written contract (CBA)
3. negotiation of any question arising as to the interpretation or application of the contract
4. negotiation over the terms of the new contract

Collective bargaining agreement (CBA) - a contract executed upon the request of either the employer or the exclusive bargaining representative of the employees incorporating the agreement reached after negotiations with respect to the terms of employment, including proposals for agjusting any grievances or questions under such agreement

A CBA is more than a contract; it is a generalized code to govern a myriad of cases; it covers the whole employment relationship and prescribes the rights and duties of the parties. It is a system of industrial self-governemnt with the grievance machinery at the very heart of the system.

Jurisdictional preconditions of collective bargaining:

1. possession of the status of majority representation of the employees' representation; through voluntary rcognition, certification election, or consent election
2. proof of majority representation
3. demand to bargain

Bargainig unit - a group of employees sharing mutual 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 such employer unit

In determining the appropriate bargaining unit, the test of grouping is mutuality or commonality of interest. The basic test of a bargaining unit's acceptability (or appropriateness) is whether it will best assure to all employees the exercise of their collective bargaining rights.

Distinctions between CBU and Union:

1. In a certification election, the voters are the CBU, whether union or non-union members
2. In CBA ratification, the voters are the members of the CBU, not just the union members
3. In strike voting, the voters are the member of the union, not all of the unit.

Voluntary Recognition; requisites:

1. The establishment is unorganized. An unorganized establishment refers to one where no union has yuet been duly recognized or certified as the bargaining representative.
2. Only one union is asking for recognition.
3. The union voluntarily recognized should be the majority union as indicated by the fact that members of the bargaining unit did not object to the projected recognition

Voluntary Recognition; procedure:

1. Within 30 days from recognition, employer and union shall submit a Notice of Voluntary Recognition to the Regional Office which issued the recognized labor union's Certificate of Registration of Certificate of a Chartered Local
2. Submission of requirements which must all be certified under oath both by the representative of the employer and president of the recognized labor union
3. Within 10 days from receipt of the notice, if such is sufficient in form, number and substance, the Labor Relations Division of the Regional Office shall record the fact of voluntary recognition in its roster of legitimate labor unions and notify thelabor union concerned.
4. From the time of recording of voluntary recognition, the recognized labor union shall enjoy the rights, privileges, and obligation sof an existing bargaining agent of all the employees in a bargaining unit.

***12-month bar: The employer and the union should conclude a CBA within one (1) year from the voluntary recognition, otherwise, the recognition will lapse and a rival union may petition for a certification election.

Certification Election - the process of determining through secret ballot the sole and exclusive representative of employees in an appropriate bargaining unit, for purposes of collective bargaining or negotiation; it is properly called certification election because it serves as the officieal, reliable and democratice basis for the Bureau to determine and certify the union that shall be the exclusive representative of the employees (in the bargaining unit) for the purpose of bargaining with the employer. A certification election is a process ordered and supervised by DOLE, of determining, through secret ballot, whether or not an majority of employees with to be represented by a labor organization and, in the affirmative case, by which particular labor organization.

Certification Election; Procedure:

1. Filing of Petition for Certification Election at the Regional Office which issued the pertitioning union's Certificate of Registration or Certificate of Creation of a Chartered Local. The proper time to file a PCE depends on whether the CBU has a CBA or not. If it has no CBA, the Petition may be filed anytime outside the 12-month bar. If it has a CBA, it can be filed only within the last 60 days of the 5th year of the CBA (or within the freedom period)
2. Preliminary Conference
3. Hearings and submission of pleadings
4. Order denying or granting the Petition
5. Appeal to the Secretary of Labor and Employment (SOLE). If Petition is granted in an UNORGANIZED establishment, NO APPEAL is allowed. In all other cases, appeal may be had, within 10 days from notice of the Order.
6. Reply to the Appeal within 10 days from the receipt of the Memorandum on Appeal
7. Decision of the SOLE which shall become final and executory after 10 days from receipt of the parties.

Conducting the Certification Election:

1. Raffle of the case to an Election Office who shall have control of the pre-election conference and election proceedings
2. Pre-election conference
3. Certification Election
4. Canvassing of votes
5. Proclamation and Certification

Notes:
*PCE requires that it should be supported by a written consent of at least 25% of all the employees in a bargaining unit.
*The labor union reeiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of such bargaining unit.
* To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes.

Run-off Election; requisites:

1. A valid election took place
2. The election presented at least 3 choices
3. Not one of the unions obtained the majority of valid votes
4. The total number of votes for all the unions is at least 50% of the valid votes cast
5. There is no unresolved challenge of voter or election protest

Consent Election

• The purpose of consent election is the same as that of a certification election, namely: to find out which union should serve as the bargaining agent.
• The difference is that a certification election is ordered by the Department while a consent election is voluntarily agreed upon by the parties.

Bargaining in bad faith

1. Surface bargaining - going through the motions of negotiating without any legal intent to reach an agreement
2. Shifting bargaining positions - repeated shifts in position and attitude on the part of an employer whenever a tentative agreement is reached
3. Blue-Sky bargaining - making exaggerated or unreasonable proposals
4. Boulwarism - take-it or leave-it bargaining
   

Voluntary Arbitration Notes

CONSTITUTIONAL PROVISIONS pertinent to LABOR

Art. 13, Sec. 3, Par. 3

• The State shall promote the principle of shared responsibility between workers and emplyers and the preferential use of voluntary modes in settling disputes including reconciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

Art. 2, Section 18, Constitution:

• The State affirms labor as a primary social economic force. It sahll portect the right of workers and promote their welfare.

Art. 3. Sec. 1

• No person shall be deprived of life, liberty and property without due process of law, nor shall any person be denied the equal protection of the laws.

Art. 3, Sec 8

• The right of the people, including those employed in the public and private sectors, to form unions, associations or societies for purposes not contrary to law shall not be abridged.

CIVIL CODE PROVISIONS pertinent to LABOR

Art. 1700

• The relation between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore such contracts are subject tot he special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hour of labor, similar subjects.

Art. 1701

• Neither capital nor labor shall act oppressively againt the other or impair the interest or convenience of the public.

Art. 1702

• In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.

Art. 1708

• The laborer's wages shall not be subject to execution or attachment, except for debts incurred for food, shelter, clothing and medical attendance.

Social Justice - the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. It is the promotion of the welfare of all the people, the adoption by the government of measures calculated to ensure economic stability of all competent elements of society.

Grievance - any question by either the employer or union regarding the interpretation or application of the collective bargaining agreement or company personnel policies or any claim by either party that the other party is violating any provision of the CBA or company personnel policies.

Voluntary Arbitration - contractual proceedings where the parties to a dispute select a judge of their own choice and by consent submit their controversy to him for determination

Voluntary Arbitration = Arbitrator
Compulsory Arbitration = Labor Arbiter

Zipper Clause - a device to forestall negotiation proposals after the CBA has been signed

Labor Arbitration - the reference of a labor dispute to a third party for determination on the basis of evidence and arguments presented by such parties, who are bound to accept the decision.

The CBA is an in personam contract. Thus, the CBA is binding only between the parties, it is NOT ENFORCEABLE against a transferee of an enterprise or a purchaser of assets except if the transaction is clothed with bad faith.

Wiley Doctrine - The duty to arbitrate arising from a CBA survives the employer's ceasing to do business as a separate entity after its merger with a substantially large corporation, so as to be binding on the larger corporation, where relevant similarity and continuity of operations across the change in ownership is evidenced by the wholesale transfer of the smaller corporation's employees to the larger corproration's employees to the larger corporation's plant.
Exceptions:

1. It does not survive where there is lack of any substantial continuity of identity in the business enterprise before and after the change;
2. Where the union abandons its rights to arbitration by failing to make its claims known

Substitutionary doctrine - The contract continues to bind the employees despite the change of a bargaining representative up to the CBA's expiration date. THe new agent, howver, may bargain for the shortening of the contract period.

May a grievance be brought to Voluntary Arbitration without passing through the grievance procedure in the CBA?

• No, except when:

1. the grievance machinery has proven to be ineffective in the past;
2. the parties inadvertently failed to include a grievance machinery in their CBA

Compulsory Arbitration - the process of settlement of labor disputes in a government agency (or other means provided by the government) which has the power to investigate and make an award binding upon the parties.

Primary functions of Voluntary Labor Arbitration:

1. a process for the orderly disposition of disputes;
2. a foundation for a stable labor-management relation.

Criteria for the accreditation of Voluntary Arbitrators:

1. must be a Filipino citizen
2. a holder of a degree of Behavioral or Applied Sciences or equivalent educational trainings short of a Bachelor's Degree
3. at least 5 years experience in labor management relations
4. completion of a training course on voluntary arbitration conducted by NCMB
5. a person of good moral character

Contract negotiation - a.k.a. arbitration of interest, regarding disputes as to the terms of a CBA

Contract interpretation - a.k.a. arbitration of rights, regarding disputes arising under an existing CBA, involving such matters as the interpretation and application of the contract, or alleged violation of its provisions.

Taxation Cases for Midterms

1. Marcos vs Court of Appeals
2. Court of Industrial Relations vs Benguet Corporation
3. Court of Industrial Relations vs Pagbilao
4. Court of Industrial Relations vs American Express International, Inc.

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Taxation Cases

Publish at Scribd or explore others: Research tax taxation cases

New Rule on Small Claims

The Rule of Procedure on Small Claims Cases (A.M. No. 08-8-7-SC) may be found here.