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Jerome Aning
Philippine Daily Inquirer

MANILA, Philippines–The Department of Labor and Employment regards 2008 as another year when industrial peace “reigned,” with only only five strikes recorded, the lowest in the seven decades of the agency’s existence.

DOLE’s year-end report said the country “experienced the most stable and calm industrial front ever” amid the global financial crisis spawning an economic slowdown or recession in many economies of the world.

Labor Secretary Marianito Roque, citing a report from the National Conciliation and Mediation Board (NCMB), which tries to settle labor-management disputes, said the “relentless” efforts of the agency to prevent strikes and lockouts drastically reduced their occurrence for the last 21 years.

The board primarily provides conciliation and mediation services to disputing parties. It also promotes other modes of labor dispute settlement such as grievance handling, voluntary arbitration and labor-management cooperation. It also introduced the concept of preventive mediation, wherein labor and management conflicts are settled without the pressure of a threat of strike or lockout.

Roque said that with the intervention of NCMB, the annual number of strikes and lockouts tapered off gradually from a high of 581 in 1986 to its lowest yet of five in 2008, adding that notices of strikes/lockouts had a disposition rate of 89 percent, as compared to the 86 percent in 2007. The settlement rate was at 77 percent as against 74 percent last year.

The labor chief said efforts to settle industrial disputes and prevent debilitating strikes and lockouts gained headway as disputing parties resorted to less costly and more expeditious means of settling their disputes.

Roque said that for 2008, disputing labor and management resorted to a total of 509 cases of preventive mediation (PM) processes to hasten the settlement of their disputes. With preventive mediation, disputing labor and management request the NCMB for conciliation in the settlement of their conflict.

Roque also hailed social partners for displaying maturity, saying their preference for alternative dispute resolution (ADR) modes indicated their heightened awareness of the benefits of resolving disputes amicably and expeditiously.

“ADR is less costly and more expeditious as compared to compulsory arbitration which has proven to be adversarial, expensive and susceptible to delays,” Roque said, adding that ADR “also facilitates dispute settlement and, thus, ensures labor and management harmony and continued productivity of workers.”

The DOLE chief said the preventive mediation cases handled by NCMB had a 100-percent success rate in 2008, which was just about the same in 2007.

Under PM, cumulative monetary benefits as a result of settlement of CBA deadlock issues were computed at P183 million benefiting 1,674 workers during the period.

Cebu Daily News

CEBU CITY, Philippines – Eight call center workers who lost their jobs a few days before Christmas have filed a complaint of illegal dismissal against the company before the National Labor Relations Commission in Central Visayas (NLRC-7).

NLRC-7 Administrative Officer Fe Cabigon said the employees who are in their 20s filed the complaint against SL Temps which holds office in General Maxilom Avenue in Cebu City.

She said the workers claimed they were only informed about their status last week.

The workers are seeking separation pay and 13th month pay.

“No reason was given why they were dismissed but it could be due to the global economic crisis,” Cabigon said.

She said the workers told her that more dismissed workers will file a complaint in the coming days.

Among those who filed the complaint are Randylou Vincent Regidor, Glenise Paulo, Roxanne Senarillos, Leslie Ann Yu, Victor Daria Jr., Cindy Bautista, Daniel Gavas and Sabrina Simonette Tabano.

The case was raffled off on Tuesday to executive labor arbiter Julie Rendoque.

Cabigon said the arbiter would summon both parties for a hearing next year.

The incident comes amid difficult times for several companies which cater to foreign markets, particularly in the Mactan Export Processing Zone (MEPZ) in Lapu-Lapu City.

Around 100 workers of the Lear Automotive Services in the MEPZ area filed a complaint of illegal dismissal, saying they were sacked without prior notice.

Other companies implemented shortened work days and work rotation to cut costs and sustain their operations. /Correspondent Jhunnex Napallacan

Ed Amoroso
Philippine Star

LAGUNA – Some worker groups, including a priest expressed alarm over the arrest of several labor leaders by authorities in Calabarzon region including labor leader Emmanuel Asuncion and Emmanuel Dionida, who were arrested in Calamba City last week.

“Outrageous and a blatant lie” is how the Worker Assistance Center executive director, Rev. Fr. Jose Dizon described the charges of multiple murder and multiple frustrated murder against Asuncion along with several leaders.

Dizon said Asuncion is among the 72 accused, who were ordered arrested on Oct. 3 by Judge Tomas Leynes, of the Calapan City Regional Trial Court in Mindoro Oriental based on amended information filed by the Office of the Provincial Prosecutor, in relation to a March 3, 2006 assault on elements of the Philippine National Police by alleged members of the New People’s Army in Puerto Galera, Mindoro Oriental.

He said the amended information substituted the “John Does” in an earlier information with names of leaders and members of progressive organizations.

Julie M. Aurelio
Philippine Daily Inquirer

MANILA, Philippines–Murder and arson charges against labor leaders? Very hard to believe, according to visiting Canadian labor organizers.

The Canadian Trade Union Mission to the Philippines has slammed the criminal charges against labor leaders in the provinces, saying such actions bars them from defending workers’ rights.

In a press conference on Tuesday, visiting unionists Peter Leibovitch and Daniel Kinsella called on the government to ensure the safety of labor leaders from physical harm and legal harassment.

“This apparent abuse of the legal system appears to be a change of tactics to suppress activists and critics,” the two Canadians said in a briefing in Quezon City.

Kinsella, president of the Public Service Alliance of Canada, a government union, cited the case of Lawyer Remigio Saladero Jr. of the Kilusang Mayo Uno (May 1 Movement), who has been detained at the Calapan provincial jail.

“Saladero is a full-time labor lawyer and has diabetes, while some of his companions have polio and other serious illnesses,” he told reporters in an interview.

Saladero and 72 others have been charged with multiple murder, frustrated murder and arson in connection with alleged left-wing rebel activities.

“These are very serious charges and are too far-fetched for any reasonable person to believe … I hope the President is aware of them,” he added.

Kinsella and Leibovitch of the United Steelworkers arrived in the country on Nov 14 to visit picket lines in Southern Tagalog and talk with peasant leaders and activists for the past two weeks.

Their mission was sponsored by the Center for Trade Union and Human Rights, Workers Assistance Center, National Coalition for the Protection of Workers Rights and the Confederation for Unity, Recognition and Advancement of Government Employees.

“Some of us felt the need to assess the human rights situation and hear firsthand the violations against labor and community activitists,” said PSAC communications officer Joselito Calugay.

The CTUMP said they were supporting the International Labor Organization’s recommendation for the government to accept the ILO high level mission, which would investigate the human rights conditions in the country.

The visiting union organizers added that despite claims of lower incidence of extrajudicial killings, they did not believe that the killings of activists and peasant leaders had stopped at all.

“Even if they say there were only, say six killings this year, six is still far too many. The perpetrators of the killings have never been found,” Kinsella said.

He pointed out that charging labor leaders with serious criminal offenses “is very disturbing” and that the charges had no substance.

“We will meet with the Commission on Human Rights to present our observations. We will inform relevant groups in Canada and urge them to examine the situation,” Leibovitch said.

He said he heard from labor leaders that the 1987 Constitution explicitly guaranteed the rights of workers to organize and collectively bargain, which he said, was more progressive than Canada’s own Constitution “which is not so specific about these fundamental rights.”

“But the way, it is implemented, it seems that it is sometimes against the workers and for the employers,” Leibovitch added.

The CTUMP has already talked to the Canadian embassy in the country to raise their concerns about the human rights situation facing labor and peasant organizers.

Jose C. Sison
Philippine Star

A person filing an action in court is required to attach to the complaint or initiatory pleading a certificate under oath: (1) that he has not theretofore commenced any action or claim involving the same issues before any other court or quasi judicial body and that no such other action is pending therein to the best of his knowledge; (2) if there is such other pending action or claim, a complete statement of its status; and (3) if he should thereafter learn that the same action has been filed or pending, to report the same to the court within 5 days. This is known as the certificate of non-forum shopping signed by the plaintiff himself or by the person duly authorized by the Board of Directors if the plaintiff is a corporation. Failure to comply with this requirement will result in the summary dismissal of the case. But if the certificate is signed by an officer of the corporation without the corresponding authority from its Board, will it result in the dismissal? This is the issue raised and answered in this case of a travel corporation (PCT).

PCT was sued before the National Labor Relations Commission (NLRC) by its employees’ union for unfair labor practice because it has been filling up positions left by regular employees with contractual employees who were nevertheless performing work of regular employees. The union prayed for the payment to the said contractual employees the differentials between the wages/benefits of regular employees and actual wages/benefits received by these employees.

The Labor Arbiter (LA) rendered a decision on the merits without awaiting the position paper of PCT because the latter instead first filed a motion to dismiss that the LA found was a prohibited pleading and therefore ruled that since the complainant’s allegations remain un-rebutted, they are deemed correct and valid. And so the LA found PCT guilty of unfair labor practice and ordered it to pay the differentials, as well as moral and exemplary damages. This was affirmed by the NLRC but without the award of damages.

When PCT filed a petition for certiorari in the Court of Appeals (CA), its petition was dismissed because the verification and certification of non-forum shopping was signed by its president without submitting any board resolution that she was duly authorized to sign for and in behalf of the corporation. Was the CA correct?

No. The general rule is that an individual corporate officer cannot solely exercise any corporate power pertaining to the corporation without authority from the Board of Directors. In a slew of cases however, the authority of the following corporate officers to sign the verification and certification against forum shopping is recognized even without the need of such board resolution: (1) the chairperson of the Board of Directors; (2) the president of a Corporation; (3) the general manager or acting general manager, (4) personnel officer; and (5) an employment specialist in a labor case. These officers or representatives can sign the said verification and certification even without any board resolution because they are in a position to verify the truthfulness and correctness of the allegations in the petition.

Hence PCT’s petition before the CA should be reinstated in order to give it the opportunity to show whether grave abuse of discretion was committed by the LA and the NLRC in not allowing it to submit its position paper on the alleged violation of the CBA or unfair labor practice. Ends of justice are better served when both parties are heard and the controversy decided on the merits (PCT Travel vs. NLRC et.al. G.R. 154379, October 31, 2008).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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E-mail at: jcson@pldtdsl.net

Marvin Sy and Mayen Jaymalin
Philippine Star

It will be a grand, week-long Christmas vacation for the country’s workforce, and hefty pay awaits those who will work during the seven straight days of regular and special non-working holidays this December.

Based on Proclamation No. 1463 issued last February by President Arroyo, Dec. 1 is the next holiday on the calendar, for the celebration of Bonifacio Day.

While Bonifacio Day normally falls on Nov. 30, the law rationalizing holidays moved the date to the Monday nearest to Nov. 30, which is Dec. 1.

The holidays this year will start on Thursday, Dec. 25, Christmas Day, and the following day, Dec. 26, has been declared a special non-working holiday.

After the weekend, there will be four days without work as Dec. 29 has been declared a special non-working holiday; Dec. 30 is Rizal Day; Dec. 31, being the last day of the year, is also a special non-working holiday; and Jan. 1, New Year’s Day, is a regular holiday.

Because Jan. 1 falls on a Thursday, the President could still declare Jan. 2 a special non-working holiday since it is so close to the weekend.

However, Malacañang has not yet made any announcement to that effect.

The adjustment of the dates for holidays was provided for under a new law in order to rationalize the country’s holidays and is in line with the so-called holiday economics, which encourages workers and their families to travel around the country and even shop, thereby helping the economy.

The Department of Labor and Employment (DOLE) said that workers are entitled to at least 490 percent additional pay if they opt to report for work during the week-long holiday.

Trade Union Congress of the Philippines (TUCP) spokesman Alex Aguilar, however, doubted if workers would choose to vacation at this time of financial crisis.

The Employers Confederation of the Philippines (ECOP), meantime, reported yesterday that many commercial establishments nationwide are no longer requiring their workers to work overtime to avoid additional costs.

But chairman Miguel Varela said ECOP welcomes the week-long holiday.

“Employers are not really keen on long holidays, but since this is Christmas, why not give the workers a long break,” he explained.

Karen Lapitan
Philippine Daily Inquirer

LOS BAÑOS, Laguna – A militant labor leader was almost hit by bullets when two unidentified armed men shot his residence several times Thursday night in Riverside, Calamba City at 9:30 p.m., a labor group reported Friday morning.

The labor leader, identified as Arnold Cerdo, is a staff member of the Cabuyao Workers Alliance.

According to Virgilio Colandog, member of Pagkakaisa ng mga Manggagawa sa Timog Katagalugan-Kilusang Mayo Uno, two men wearing bonnets, suspected to be military agents, attempted to shoot Cerdo and his brother-in-law, Juanito Dacillo.

Fortunately, they (Cerdo and Dacillo) immediately saw the gunmen so they were able to evade the shots,” he added.

The two unidentified men with bonnets were reportedly riding a motorcycle, the usual style of perpetrators of political killings in the country, Colandog added.

Cerdo and Dacillo temporarily transferred into another house given the threats, Colandog said in a phone interview.

Prior to this incident, four Southern Tagalog activists were jailed in Calapan.

They were accused of multiple counts of murder and frustrated murder in an ambush on March 3, 2006.

Of the 72 names identified by the police, at least 30 are militant leaders.

Cerdo, however, is not included in the list.

In Cavite, a labor leader was arrested by the police Thursday morning in Barangay Manggahan, General Trias.

Arnaldo Seminiano, organizer of the militant Ilaw-Buklod Manggagawa (IBM), was reportedly arrested by four policemen, two of whom were not in uniform, at around 10 a.m. Thursday.

He was joined by another organizer of IBM, Sonny Gum-o, who was released after the police failed to present a warrant of arrest.

Their personal belongings like flash disks, cell phones and bags were reportedly confiscated by the police.

Seminiano was brought to Camp Vicente Lim, Laguna, for interrogation on Thursday.

His name is among the 72 names that appeared in the charge sheet in connection with the ambush of government troops on March 3, 2006, in Puerto Galera.

The ambush was reportedly staged by communist New People’s Army rebels.

Philippine Star

SAN FERNANDO, Pampanga – Finally, freedom to work abroad.

After languishing in unemployment limbo despite work waiting for them abroad, at least 700 former workers of Hanjin Heavy Industries, Inc. (Hanjin) in Subic, Zambales are set to fly to their new jobs in foreign lands.

The Philippine Overseas Employment Administration has announced it has suspended a memorandum of understanding that virtually blacklisted the workers.

But Ramon Lacbain, chairman of the People’s Task Force on Hanjin and Subic Bay, Inc. (Task Force Hanjin), told The Star he was not satisfied with a mere suspension of the blacklisting policy, as he called for the total scrapping of the MOU between Hanjin and POEA.

“POEA must not be used by Hanjin to harrass the latter’s former workers who had either resigned or were terminated from their shipyard job,” he said.

Lacbain also said that “POEA’s job is to facilitate employment of Filipinos abroad, not to prevent employment.”

He noted that in February, the POEA and Hanjin subsidiary KC Tech, Inc. forged the MOU that barred the ex-Hanjin workers from obtaining the required POEA clearance for their new foreign employment, unless they first paid Hanjin the cost of training they intially underwent for their initial employment at Hanjin’s shipyard facility in Subic.

Lacbain said that those trained in Korea were asked to pay back P200,000, while those trained locally were told to pay P100,000.

In a letter addressed to Lacbain, POEA Administrator Jennifer Jardin-Manalili admitted there was indeed an MOU between her agency and KC Tech, Inc.

– Ding Cervantes

Jose C. Sison
Philippine Star

Wrongful acts or omissions of public officers like grave misconduct and conduct prejudicial to the best interest of the service give rise to threefold liabilities: civil, criminal and administrative, with the action for each proceeding independently of the other, and quantum of evidence required in each case, different. In administrative cases, substantial evidence is enough. This is illustrated in this case of Torres (not his true name).

Torres was a Special Police Lieutenant assigned as Deputy Station Commander of the Police force within the Philippine Economic Zone (PEZA) located in Mactan (MEZ). Upon assuming his post, he immediately summoned Caloy, the president of the drivers association and demanded P1,000 allegedly for payment of parking fees that were not covered by official receipts. Caloy initially agreed to such arrangement to facilitate the issuance of their ID signed by Torres.

Later on however whenever the association failed to give said “fees”, Torres would resort to harassment and threats to the lives of the members of the association. In another incident he even handed a letter to Waldo, one of the drivers, demanding a lechon from the association for his birthday celebration. Fed up, the association led by Caloy discontinued payment of the weekly tong and did not provide the roasted pig. This enraged Torres, so upon seeing Waldo, he pushed him and threatened him with bodily harm.

Since Torres had already become physical in his harassments/threats to their lives, Caloy, as president of the drivers’ association had to come out in the open by filing charges against him before the PEZA attaching thereto, the joint affidavits of four drivers including himself and Waldo relating Torres’ nefarious activities. Told to explain in writing by the Administrator, Torres categorically denied the charges and said that he was just strictly enforcing the PEZA and LTO rules and regulations on cleanliness and traffic which caught the ire of the drivers who constantly violated the said rules.

But during the hearing, direct, positive and categorical testimonies of witnesses established that Torres demanded and personally received weekly “tong” of P1,000 and ordered Waldo to produce a lechon for his birthday, and pushed and threatened them with bodily harm when they failed to deliver. Also presented were the torn IDs of Waldo and another driver to prove the harassments and threats made by Torres.

Considered in the light of Torres’ bare denials, the PEZA found him guilty of grave misconduct and conduct prejudicial to the best interest of the service and meted the penalty of dismissal as prescribed by law. On appeal, the Civil Service Commission (CSC) affirmed Torres dismissal. Were the CSC and PEZA correct?

Yes. Torres’ gross misconduct coupled with conduct prejudicial to public interest was proven by the quantum of evidence required in administrative cases — substantial evidence. The general rule is that where the findings of the administrative body are amply supported by substantial evidence, such findings are accorded not only respect but finality because of the special knowledge and expertise gained by these quasi-judicial tribunals handling specific matters falling under their jurisdiction. When confronted with conflicting versions of factual matters, it is for the administrative agency concerned in the exercise of discretion to determine which party deserves credence on the basis of evidence received.

In this case the wrongful acts committed by Torres were established through direct, positive and categorical testimonies of witnesses. Said testimonies cannot be easily overthrown by Torres’ mere denial. It is a basic rule in evidence that a negative testimony cannot prevail over a positive one.

Further, there was no evidence to prove the allegation as to the ill-motive of the drivers in filing the charges against Torres. Said witnesses would not testify unless there is some truth in their testimony (Torredes vs. Villamor, G.R. 151110, September 11, 2008)

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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E-mail at: jcson@pldtdsl.net

Jose C. Sison
Philippine Star

The jurisdiction of the National Labor Relations Commission (NLRC) is separate and distinct from that of the Secretary of Labor and Employment (DOLE). The DOLE is governed by its own rules of procedure on the disposition of labor standards cases. This is illustrated in this case of Sam and Ed.

Sam and Ed were hired by a security agency (PVSIA) as security guards sometime in 1988. They were stationed at a food factory in Laguna. When the factory terminated its security contract with PVSIA in 2000, Sam and Ed were not given new assignments nor paid their 13th month pay, overtime pay, holiday pay and wage differentials due to underpayment of wages. Hence Sam and Ed filed a complaint for violation of labor standards with the DOLE Regional Office.

Acting on the complaint, the labor employment officer of the DOLE Region, Mr. Carlos, conducted an inspection during which PVSIA failed to present its payroll and the daily time records of Sam and Ed in violation of the Labor Standards. So Mr. Carlos issued a notice of inspection to the duly authorized representative of PVSIA, Mr. Julio. Carlos explained to Julio the significance and contents of the notice and emphasized the need for PVSIA either to comply with the labor standards by paying the claims of Sam and Ed as computed by him, or to raise any question regarding the notice to the Regional Office.

PVSIA neither paid the claims of Sam and Ed nor questioned the findings of Carlos. Hence the DOLE Regional Director adopted the findings of Carlos and issued an order dated May 10, 2001 requiring PVSIA and or Mr. Julio to pay the aggregate amount of P206,569.20 within 10 days.

When their motion for reconsideration was denied, PVSIA and Julio filed an appeal (with motion to reduce cash or surety bond) to the DOLE Secretary. In his July 9, 2002 order, the DOLE Secretary found that PVSIA and Julio failed to perfect their appeal since they did not post a cash or surety bond equivalent to the monetary award. Thus the appeal was dismissed and the DOLE Regional Director’s order dated May 10, 2001 was declared final and executory.

When PVSIA and Julio questioned the said ruling via a petition for certiorari, the Court of Appeals (CA) reversed the DOLE order and eventually ruled that PVSIA and Julio can still pursue their appeal in the DOLE. According to the CA, in practice, a motion to reduce the appeal bond may be filed within the reglamentary period for appealing and may be granted on meritorious grounds. Hence in the meantime, the appeal is not perfected until a ruling on the motion to reduce the appeal bond is acted upon. The CA cited by analogy, the practice in the NLRC which was recognized as valid in one case (Star Angel Handicraft vs. NLRC 236 SCRA 580). Was the CA correct?

No. Article 128 of the Labor Code explicitly provides that in case an order issued by the duly authorized representative of the DOLE involves a monetary award, an appeal by the employer may be perfected only by posting of a cash or surety bond in an amount equivalent to the monetary award within 10 calendar days from receipt of the order. The word “only” makes it clear that the lawmakers intended the posting by the employer of the required cash or surety bond as the exclusive means by which its appeal may be perfected. In this case PVSIA and Julio admit that they failed to post the required bond when they filed their appeal to the DOLE Secretary. Because of such failure, the appeal is never perfected and the May 10, 2001 order of the Regional Director attained finality.

The motion to reduce appeal bond is not allowed in appeals to the DOLE Secretary. No provision in the Rules on the Disposition of Labor Standards Cases allows the filing of a motion for reduction of the amount of the bond. By ruling that the Rules of Procedure of the NLRC should be applied by analogy to PVSIA and Julio’s appeal to the DOLE, the CA effectively amended the rules on disposition of labor standards cases and encroached on the rule making power of the DOLE Secretary.

The posting of a cash or surety bond in an amount equivalent to the monetary award to perfect an appeal has a two-fold purpose: (1) to assure the employee that if he finally prevails in the case, the monetary award will be given to him; and (2) to discourage the employer from using the appeal to delay or evade payment of the obligations to the employee. The CA disregarded these pro labor objectives when it treated PVSIA and Julio’s failure to post the required bond with undue leniency (Secretary of Labor etc. vs. Panay Veteran’s Security etc. G.R. 167708, August 22, 2008).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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E-mail at: jcson@pldtdsl.net