Property regime
Verse cited:
-RATIONALE for a regime of Separation of Property
-Institution of Sakah (?) (giving of donations for charity) - one of the means for distributing property
-land code of Ottoman Empire (in Turkey?) - based on Shari'a (as opposed to other land laws of other Muslim countries which are civil law based)
Why late codification (around 1858) when Shari'a was already established long ago? Time of Ottoman, Islamic civilization was already in the decline. The late codification of laws based on Shari'a: All properties belong to God, men are only stewards of God.
Ottomans are Turks, not anymore Arabs.
-land laws of Islam are more socialist in nature...
Islamic reformist: because of the civil law influence, some Muslims want to return to the fundamental Islamic teachings from the date of the revelation to Mohammad...within the sphere of atmosphere of Mohammad's time
Why no codification of land laws: Amanat (trust) - the concept of property in Islam
-all properties are owned by God and men only hold these in trust
Trustor: God
Trustee: man
Beneficiary: mankind
Mal (property)
2 meanings of mal:
• All things capacble of being earned
• All things capable of being subject to legal relations or mal mutaqawwin
Excluded: alcohol, pigs other forbidden things (can also be property but under first classification, not under mal mutaqawwin. Cannot be subjected to legal relations. If they are transacted, the transaction is void)
Treatment of property: 2: 188
-do not consume one another's wealth unjustly
...
4: 2
Give to orphans their properties...
(protection of orphan's properties)
As to acquisition: the means of acquisition of property should be LEGAL
Land ownership: all lands are owned by God
-the heavens and the earth, God has dominion over it
Category of land
Mil - owned by God
Miri - lands that are to be distributed and are now used by the people (concept of usufruct applicable)
Communally owned lands - similar to ancestral domain (in the Code of Muslim Personal laws - mentioned as Communal property - A173)
Religious property - land for religious purposes
As compared to other laws
ROMAN LAW
-use property for legal purposes
-2 classification of property
CIVIL LAW
-Property is aggregate of rights
-classification of property: marami!
-similar to Amanat, State owns property and only taken care of by the people (recognition of a greater owner of property) - in Islamic states, the Caliph is the administrator of lands in representation of God...Steward for God
-there are also limitations to the property one can own
-Real and personal property
-Highest form of property right: ownership
-different modes of acquiring ownership
-property regimes governing marriage
Family Code
Donations by reason of Marriage
-allows donation propter nuptias of future property
X: donations made in the marriage settlements
• What about in Islamic marriages, what if the marriage push through?
If the donation, under the Muslim Code, is given to the couple as a future husband and wife, and the marriage is not pushed through, the donation can no longer be enforced
Under the Family Code, it is still considered valid, and they should go to the courts just to invalidate it!
Property Regime
Under Islamic Law: Prenuptial agreement? But in default, separation of property. If other modes of property regime, Family Code would come in suppletorily
In Family Code: Prenuptial agreement. Separation of property shall only take place after judicial order of separation of property
Only limitation to prenuptial agreement: Art 1306, Civil Code
If situation not found in FC or CMPL, custom applies
CMPL FC
Art 37. How governed Art 74
1. Contract 1. Marriage settlement before marriage
2. CMPL 2. Code
3. Custom 3. Local customs
Art 38. default property regime: complete separation of propert Art 75. Absolute community of property
Stipulations in marriage settlements Art 81. void if marriage does not take place... (sorry naguluhan, please see the provision na lang)
Art 39. Void if depend in marriage, if marriage not push through
ACP
Art 88-104, FC
-default regime in FC
-before: CPG
2 reasons for adopting ACP
1. Established customs
2. Unity of the family
-regime not waivable unless judicial separation of property
What constitutes Community property
What excluded
Charges upon and obligations of ACP
-disposition of ACP: in case of disagreement, husband's decision prevails
Causes for terminating ACP
Effects of termination of ACP
Process of liquidation of ACP
CPG
-default prior to FC, Art 105 to 133
Exclusive property
Bottomline: in FC, husband's decision over administration of property governs, but wife can assail it through court process w/n 5 years
-Effects of dissolution
Property regime of unions w/o Marriage
Art 147: unions that can be validated
-presume co-ownership
Art 148: adulterous unions
COMPLETE SEPARATION OF PROPERTY
NCC, FC CMPL
Art 143-146 Art 37-44
-may be partial or total, may include present or future property (Default regime)
Why? 4:32 and 4:17
Ante-nuptial property
Art40, CMPL
Wife shall not lose ownership
Can dispose of the same even w/o consent of husband
Can sue and be sued independently of husband with regards her own property
Art 41. EXCLUSIVE PROPERTY OF EACH SPOUSE
Husband: capital
Wife: paraphernal
-wife cannot accept gifts from outside the prohibited decrees of marriage; can accept provided it's with the consent of the husband
Note: includes (d) Dower (mahr) of the wife and nuptial gifts to each spouse
• WIFE owns the mahr exclusively!
Art 43. Household property
-definition
-presumption of ownership to the spouse who customarily uses the property
Art 44. Right to sue and be sued
Note: number 4: if litigation concerns the exclusive property of husband
-can only concern the property if the administration of the property now pertains to the wife
-property of wife would not beheld liable
So difference of separation of property under FC and CMPL:
As to family expenses.
FC: borne proportionately by both spouses
CMPL: Only husband bears expenses
As to liability of creditors
FC: solidarily liable
CMPL: only husband liable
As to right to be sued and to sue
FC: should be sued jointly
CMPL: Can be sued separately
DIVORCE
GR: not allowed in the Philippines
x: MUSLIM divorces
Foreign divorces
Art. 14, CMPL
1. Social contract between husband and wife
2. Social institution taken care of by the society, foundation of society
Divorce, art 45
-Formal dissolution of the marriage bond
-Granted only after all means of reconciliation is resorted to
-most hateful to Allah
REASONS:
-by virtue of this, the family is destroyed
-contrary to the laws of nature
-gives mortal blow to the family
But why allowed:
Recognizes the reality that certain marriages can no longer be reconciled
If keep them together, they would only grow to hate each other more
Become more uncomfortable with each other: like putting together persons as if they had committed a crime
"Marriage is meaningless if there is no spark of love between the husband and the wife" - Jainal Rasul
-only possible when it would be the better option, and after all the safeguards are resorted to:
1. Idda
Purposes:
1) Bring about reconciliation
2) To avoid confusion of issues
-idda changes dependent on the basis of divorce
2. Exhaustion of all efforts to reconciliate: helped by well-meaning relatives
Why well-meaning relatives: interest in preservation of marriage; spouses would still feel that their issues/disputes are not made public (still confidential, private)
-allow divorce only after finding of irreparable breakdown of marriage and the relatives cannot do anything about it
-sir: there is nothing to prevent the parties from inviting marriage counsellors
Vs. Art 59, FC: no legal separation unless COURT has taken steps towards reconciliation...Reconciliation via marriage counsellors!
Right to divorce generally given to men
-objective ground: financial burden...
-subjective: men are the ones who accepts the women in marriage, so he is the one who can break the bonds + he is the one who pays the dowry
Classification of divorce
• By death of husband or wife
-not really divorce! More of automatic dissolution of marriage
-when wife dies, husband may immediately marry
-but when the husband dies, iddat should first expire
• By act of parties
○ By the Husband
-Talaq (repudiation)
Conditions
• Made under normal conditions (not drunk, angry, joking or coerced)
• Woman is repudiated during tuhr or clean-non-menstrual period
WHY: because if it is done during a non-menstrual period wherein the husband can have sex with wife, it means it is really serious. Minsan after sex, bati na.
• Husband, after talaq, will not have carnal knowledge of the wife thereafter
GROUNDS: none mentioned
PROCEDURE:
1. Muslim male shall file a written notice of talaq
2. Agama Arbitration Council shall be formed
LIMITATIONS:
Only on the 3rd time will the divorce be irrevocable. The first two instances, can marry again w/n Idda (but no need for another marriage ceremony). If after the Idda, should remarry (with all the requisites of marriage) (minor talaq). If after the third repudiation (GREATER talaq), the husband should first wait for another man to marry his wife in order to marry her again! It is as if the institution of marriage is reduced by the couple as something trivial!
-Ila
...continue next meeting...
○ By the Wife
Sunday, August 15, 2010
Wednesday, August 11, 2010
"Knowledge is Power": August 11, 2010 Class Lecture for Labor Arbitration
"knowledge is power" - francis bacon
Felix frankfurter- justice of US Federal SC
-Frankfurter- smoked sausage
-civil liberties union
-activist, contributed to the formation of labor standards in US (8-hour labor law, minimum wage law)
-when Cardozo died, he replaced the former
-hired first Afro-American law clerks
ANTONIO HALAGUENA CASE
-parang Almario case, pero binayaran nya ung PAL after sabi ng PAL may utang pa sha for the training. 2 years later, humirit pa ung PAL na milyon daw ung utang nya sa PAL.
RTC: PAL estopped from claiming additional amounts
CA: Affirmed RTC
SC: mukhang upheld din
For the paper:
• Can cite newspaper sources aside from books
• Purely for Labor Arbitration class
Davao Integrated Port Stevedoring Services v. Abarquez
-Company provided for sick leave benefits for its employees, convertible to cash. Both regular employees and workpool employees enjoy said benefits. However, the employer withdrew this benefit from the workpool employees.
H: the CBA was clear: the CBA considers two kinds of workers who enjoy the sick leave benefits:
* REGULAR EMPLOYEES enjoy the 15-day fixed sick leave
* INTERMITTENT EMPLOYEES enjoy variable number of sick leave but should not exceed 15 days
-It is not disputed that both classes of workers are entitled to sick leave with pay benefits provided they comply with the conditions set forth under Section 1 in relation to the last paragraph of Section 3, to wit:
(1) the employee-applicant must be regular or must have rendered at least one year of service with the company; and
(2) the application must be accompanied by a certification from a company-designated physician.
-since this ripened into company practice, it cannot be unilaterally withdrawn by the employer - or else violation of LC
-when an existing employer practice becomes an enforceable right: a considerable amount of time has lapsed and said act has been practiced or exercised or done by the employer
-did the court set a hard and fast rule for considering an act a company practice: no, no set number of years
How many years would it take for a practice to ripen into a company practice? SC has not laid down any hard and fast rule
Sevilla Trading: the requirement for the ER to be able to get back or make bawi the benefits given is that to argue that it was given due to mistake - but should do it as early as possible, or else, it would be the fault of the employer
-what is the rule now? The burden is upon the employer to prove that he did not know about the mistake, the withdrawal was immediately done upon discovery of the error
-pwede ba, especially in CBA negotiations, change the existing policy being followed in replacement of another benefit? Yes, allowed, but the substitute should correspond to the benefit withdrawn.
How to determine if it is in equal terms?
- If the parties agree, then no problem
- If none, then labor arbiter
Kimberly Clark v. Lorredo (1st case - 1993)
-CBA provides that if an employee leaves the service of the employer, the employee who is leaving
Kimberly Clark part 2 - sorry ako nagrecite so not much case
-Voluntary arbitrator's power: VA should not dispense with their own type of justice
TSPIC v. TSPIC Union
-EE and ER entered into a CBA which provided for wage increases and regularization increase, but with a crediting clause which provided that the said increases are deemed to be compliance with subsequent wage orders. However, even with the said provision, the ER complied with subsequent wage orders, but upon finding that they made a mistake, announced that they would deduct from the salaries of the affected employees.
Court held that in interpreting the CBA, the specific provisions are followed vs. General provisions
Would not the deductions be tantamount to withdrawal of benefits? No. Not a company -practice as the court held. It was made under a mistake.
Bobcock v. Union
-CBA provided a relocation allowance which is given to employees relocated. 2 branches, Bauan and Makati. Those who live in Bauan, working previously in Makati, but relocated in Bauan now claim the relocation allowance
-company refuses to pay, so complaint for relocation allowance filed
H: CBA clear. Upon relocation, the employee is entitled to relocation allowance
Cheniver printing press case
-the employee was to be relocated. He did not want to be transferred, so would just resign but asks for separation pay/financial assistance
-Court required the employer to pay the affected employee financial assistance
-this ruling is dangerous, especially to pharmaceutical and distribution companies who always send its employees in far flung places
Felix frankfurter- justice of US Federal SC
-Frankfurter- smoked sausage
-civil liberties union
-activist, contributed to the formation of labor standards in US (8-hour labor law, minimum wage law)
-when Cardozo died, he replaced the former
-hired first Afro-American law clerks
ANTONIO HALAGUENA CASE
-parang Almario case, pero binayaran nya ung PAL after sabi ng PAL may utang pa sha for the training. 2 years later, humirit pa ung PAL na milyon daw ung utang nya sa PAL.
RTC: PAL estopped from claiming additional amounts
CA: Affirmed RTC
SC: mukhang upheld din
For the paper:
• Can cite newspaper sources aside from books
• Purely for Labor Arbitration class
Davao Integrated Port Stevedoring Services v. Abarquez
-Company provided for sick leave benefits for its employees, convertible to cash. Both regular employees and workpool employees enjoy said benefits. However, the employer withdrew this benefit from the workpool employees.
H: the CBA was clear: the CBA considers two kinds of workers who enjoy the sick leave benefits:
* REGULAR EMPLOYEES enjoy the 15-day fixed sick leave
* INTERMITTENT EMPLOYEES enjoy variable number of sick leave but should not exceed 15 days
-It is not disputed that both classes of workers are entitled to sick leave with pay benefits provided they comply with the conditions set forth under Section 1 in relation to the last paragraph of Section 3, to wit:
(1) the employee-applicant must be regular or must have rendered at least one year of service with the company; and
(2) the application must be accompanied by a certification from a company-designated physician.
-since this ripened into company practice, it cannot be unilaterally withdrawn by the employer - or else violation of LC
-when an existing employer practice becomes an enforceable right: a considerable amount of time has lapsed and said act has been practiced or exercised or done by the employer
-did the court set a hard and fast rule for considering an act a company practice: no, no set number of years
How many years would it take for a practice to ripen into a company practice? SC has not laid down any hard and fast rule
Sevilla Trading: the requirement for the ER to be able to get back or make bawi the benefits given is that to argue that it was given due to mistake - but should do it as early as possible, or else, it would be the fault of the employer
-what is the rule now? The burden is upon the employer to prove that he did not know about the mistake, the withdrawal was immediately done upon discovery of the error
-pwede ba, especially in CBA negotiations, change the existing policy being followed in replacement of another benefit? Yes, allowed, but the substitute should correspond to the benefit withdrawn.
How to determine if it is in equal terms?
- If the parties agree, then no problem
- If none, then labor arbiter
Kimberly Clark v. Lorredo (1st case - 1993)
-CBA provides that if an employee leaves the service of the employer, the employee who is leaving
Kimberly Clark part 2 - sorry ako nagrecite so not much case
-Voluntary arbitrator's power: VA should not dispense with their own type of justice
TSPIC v. TSPIC Union
-EE and ER entered into a CBA which provided for wage increases and regularization increase, but with a crediting clause which provided that the said increases are deemed to be compliance with subsequent wage orders. However, even with the said provision, the ER complied with subsequent wage orders, but upon finding that they made a mistake, announced that they would deduct from the salaries of the affected employees.
Court held that in interpreting the CBA, the specific provisions are followed vs. General provisions
Would not the deductions be tantamount to withdrawal of benefits? No. Not a company -practice as the court held. It was made under a mistake.
Bobcock v. Union
-CBA provided a relocation allowance which is given to employees relocated. 2 branches, Bauan and Makati. Those who live in Bauan, working previously in Makati, but relocated in Bauan now claim the relocation allowance
-company refuses to pay, so complaint for relocation allowance filed
H: CBA clear. Upon relocation, the employee is entitled to relocation allowance
Cheniver printing press case
-the employee was to be relocated. He did not want to be transferred, so would just resign but asks for separation pay/financial assistance
-Court required the employer to pay the affected employee financial assistance
-this ruling is dangerous, especially to pharmaceutical and distribution companies who always send its employees in far flung places
Wednesday, August 4, 2010
August 4, 2010 Labor Arbitration Lecture Notes
Instead of Midterms, hand in a paper which would be the grade for the midterm
-September 1 deadline of paper (there's still classes on September 1)
-come up with a good paper
TOPICS:
• Almario vs. PAL: on liability of ER blah blah
• Short paper on the current dispute taking place in PAL
§ Retirement age of PAL: PAL desires to further lower the retirement age to 40 (from 55-50-45)
§ Employer's claim: the pilots that included Captains and first officers are in breach of their contractual obligations without giving the required 180 day notice before submitting their letters of resignation vs. Employer compelling them to return to their jobs vs. Ees: masaya ka!
DRILON: PAL cannot compel the Pilots to comeback or else violates involuntary servitude
(consti leading case involved a maid in Kaungka v. Salazar (unreported case))
• Claim of some labor fe
• deration officials (boy herrera): if the law, QJA...are inclined upon the presentation of required proof, to permit or allow an employer to resort to measures such as retrenchment, downsizing, restructuring...to help employer survive its plight, why can't it understand employees? Can further refine language used. Point is this: if the law allows or permits corporations to resort to harsh and extreme measures to survive, why can't the law understand the sufferings of the employees to survive?
• Not limited to these issues but sir wants us to focus on these suggested topics basta more or less related to the PAL dispute
-come up with a short paper, 10-15 pages, double spaced with necessary footnotes
SMC vs. NLRC (403 SCRA 428) (2003)
-IBM (Union) filed a notice of strike. A non-strikeable issue was included so NCMB converted it to a preventive mediation case. Still, union held strike.
H: 1. PAL v. DRILON: Declaration of preventive mediation has the effect of dropping the notice of strike from the docket
2. SMC v. NLRC (1999): Failure to exhaust all steps in the grievance machinery and arbitration proceedings in CBA. Notice of strike should be dismissed as illegal.
-the strike was illegal for lack of notice of strike
SIR: significance of these cases cannot be overestimated:
• Took JN of the fact that the NCMB has no coercive power to issue an injunction
-when the court takes JN of a fact, it means the parties need not prove the said allegation
-so can invoke it against NCMB when it exercises coercive powers, as opposed to the NLRC which has the power to stop immediately an illegal strike and any threatened illegal strike (if you're for the employer)
-strike cases: ER would go to the NLRC, say the Union has threatened an illegal strike, conducting an illegal strike - so would ask for a TRO (good for 20 days)
...so the strike would be prevented or must be stopped. If continued, can sue the union
-while TRO existing, ER must present evidence for a permanent writ of injunction to justify the relief sought
...during the actual trial, UNION must be present. Union must be given a chance to present their evidence/side as due process requirement
-here, SMC opposed Union's motion to dismiss because they had reasonable grounds to believe that a strike may be held. This was correct sabi ni sir.
CBA PROPER
RIVERA v ESPIRITU
-PAL employees went on a 3-week strike when PAL downsized its labor force (or vice versa? )
-PAL now wanted to close down...so union was forced to concede to the suspension of the CBA negotiations for 10 years, provisions of which maintained PALEA as the union and respecting the closed-shop agreement as contained in the existing CBA
-the petitioners were the breakaway group from PALEA
*Abdication of constitutional right to bargain: Court held that it was not, since the union voluntarily entered it, it was meant for the stabilization of the industrial relations within the company and for the parties to have specific time tables
* Argument that while the 10 year period running, the employees would not be able to exercise their right to change the EBR after expiration of 5 years. Court held that the employees approved it. Included in the right to collective bargaining is the right to suspend it.
-as to argument that PALEA in effect became a company union: no, it was meant to stabilize relations in the company, it was for unionism in fact by ensuring the existence of PALEA
SIR: sa SC decision, they continually said that it was the union who asked for it so they should not complain about it. Do you agree?
CHA: NO. The employees were pinned to agree to the suspension because the company was about to close. If they do not agree, they would lose their jobs.
-the SC in effect says that the government could step in to prevent the closure of the company.
Recall Manila fashions: since the company was closing, the Union agreed to condone the minimum wage orders. But here the court held that the waiver of the wage order is illegal. Why did the court not make a similar declaration:
CHA: because that involved a negotiation of an issue which is not really subject to CBA negotiations, as it should be provided by law
FASAP Case: they were illegally dismissed because PAL failed to present evidence that the retrenchment was necessary. What the corporation should have presented was the balance sheet, audited financial report.
-There was bad faith on the part of PAL: Right after they dismissed the employees, they hired another set of new employees for probation.
...but in the end, justified daw PAL in terminating the employees. Now the Cabin crew are seeking reconsideration of the ruling
INTERPHIL LAB UNION v. INTERPHIL LAB
F: ER refused to renegotiate with the union because allegedly it was "premature" (2 years first then around 4 months early?) but the union insisted in renegotiating the CBA. When the ER refused to renegotiate, they undertook a boycott of work schedule, arguing that the 2-shift schedule was not in the CBA (note however that the employees have been complying with the 2-shift schedule and they were paid overtime pay)
H: the union cannot invoke that since the2-shift work schedule is not in the CBA so they are not compelled to follow it, it being that they have been observing it as company practice
SIR: In addition, there is a crucial fact that the CBA recognizes the discretion of the employer to change the working hours
-why slowdown is not lawful: you are still being paid even if you are there in the premises of the employer but not doing job for the employer
SMC EMPLOYEES UNION V. CONFESSOR
F:
Under the labor code, a CBA has a lifetime of only 5 years?
Substitutionary doctrine: after the lifetime of the EBR, a new union can argue that the former EBR does not represent the majority of the employees in the bargaining unit. PCE...basta new union emerges triumphant. But then the CBA is still not expiring. What will happen to the old CBA? The CBA continues, has to be respected. The new union will assume the role of the administrator of the old CBA. What the new EBR could do is to ask for the shortening of the period of the CBA.
-see the history of the HERRERA-VELOSO law
-September 1 deadline of paper (there's still classes on September 1)
-come up with a good paper
TOPICS:
• Almario vs. PAL: on liability of ER blah blah
• Short paper on the current dispute taking place in PAL
§ Retirement age of PAL: PAL desires to further lower the retirement age to 40 (from 55-50-45)
§ Employer's claim: the pilots that included Captains and first officers are in breach of their contractual obligations without giving the required 180 day notice before submitting their letters of resignation vs. Employer compelling them to return to their jobs vs. Ees: masaya ka!
DRILON: PAL cannot compel the Pilots to comeback or else violates involuntary servitude
(consti leading case involved a maid in Kaungka v. Salazar (unreported case))
• Claim of some labor fe
• deration officials (boy herrera): if the law, QJA...are inclined upon the presentation of required proof, to permit or allow an employer to resort to measures such as retrenchment, downsizing, restructuring...to help employer survive its plight, why can't it understand employees? Can further refine language used. Point is this: if the law allows or permits corporations to resort to harsh and extreme measures to survive, why can't the law understand the sufferings of the employees to survive?
• Not limited to these issues but sir wants us to focus on these suggested topics basta more or less related to the PAL dispute
-come up with a short paper, 10-15 pages, double spaced with necessary footnotes
SMC vs. NLRC (403 SCRA 428) (2003)
-IBM (Union) filed a notice of strike. A non-strikeable issue was included so NCMB converted it to a preventive mediation case. Still, union held strike.
H: 1. PAL v. DRILON: Declaration of preventive mediation has the effect of dropping the notice of strike from the docket
2. SMC v. NLRC (1999): Failure to exhaust all steps in the grievance machinery and arbitration proceedings in CBA. Notice of strike should be dismissed as illegal.
-the strike was illegal for lack of notice of strike
SIR: significance of these cases cannot be overestimated:
• Took JN of the fact that the NCMB has no coercive power to issue an injunction
-when the court takes JN of a fact, it means the parties need not prove the said allegation
-so can invoke it against NCMB when it exercises coercive powers, as opposed to the NLRC which has the power to stop immediately an illegal strike and any threatened illegal strike (if you're for the employer)
-strike cases: ER would go to the NLRC, say the Union has threatened an illegal strike, conducting an illegal strike - so would ask for a TRO (good for 20 days)
...so the strike would be prevented or must be stopped. If continued, can sue the union
-while TRO existing, ER must present evidence for a permanent writ of injunction to justify the relief sought
...during the actual trial, UNION must be present. Union must be given a chance to present their evidence/side as due process requirement
-here, SMC opposed Union's motion to dismiss because they had reasonable grounds to believe that a strike may be held. This was correct sabi ni sir.
CBA PROPER
RIVERA v ESPIRITU
-PAL employees went on a 3-week strike when PAL downsized its labor force (or vice versa? )
-PAL now wanted to close down...so union was forced to concede to the suspension of the CBA negotiations for 10 years, provisions of which maintained PALEA as the union and respecting the closed-shop agreement as contained in the existing CBA
-the petitioners were the breakaway group from PALEA
*Abdication of constitutional right to bargain: Court held that it was not, since the union voluntarily entered it, it was meant for the stabilization of the industrial relations within the company and for the parties to have specific time tables
* Argument that while the 10 year period running, the employees would not be able to exercise their right to change the EBR after expiration of 5 years. Court held that the employees approved it. Included in the right to collective bargaining is the right to suspend it.
-as to argument that PALEA in effect became a company union: no, it was meant to stabilize relations in the company, it was for unionism in fact by ensuring the existence of PALEA
SIR: sa SC decision, they continually said that it was the union who asked for it so they should not complain about it. Do you agree?
CHA: NO. The employees were pinned to agree to the suspension because the company was about to close. If they do not agree, they would lose their jobs.
-the SC in effect says that the government could step in to prevent the closure of the company.
Recall Manila fashions: since the company was closing, the Union agreed to condone the minimum wage orders. But here the court held that the waiver of the wage order is illegal. Why did the court not make a similar declaration:
CHA: because that involved a negotiation of an issue which is not really subject to CBA negotiations, as it should be provided by law
FASAP Case: they were illegally dismissed because PAL failed to present evidence that the retrenchment was necessary. What the corporation should have presented was the balance sheet, audited financial report.
-There was bad faith on the part of PAL: Right after they dismissed the employees, they hired another set of new employees for probation.
...but in the end, justified daw PAL in terminating the employees. Now the Cabin crew are seeking reconsideration of the ruling
INTERPHIL LAB UNION v. INTERPHIL LAB
F: ER refused to renegotiate with the union because allegedly it was "premature" (2 years first then around 4 months early?) but the union insisted in renegotiating the CBA. When the ER refused to renegotiate, they undertook a boycott of work schedule, arguing that the 2-shift schedule was not in the CBA (note however that the employees have been complying with the 2-shift schedule and they were paid overtime pay)
H: the union cannot invoke that since the2-shift work schedule is not in the CBA so they are not compelled to follow it, it being that they have been observing it as company practice
SIR: In addition, there is a crucial fact that the CBA recognizes the discretion of the employer to change the working hours
-why slowdown is not lawful: you are still being paid even if you are there in the premises of the employer but not doing job for the employer
SMC EMPLOYEES UNION V. CONFESSOR
F:
Under the labor code, a CBA has a lifetime of only 5 years?
Substitutionary doctrine: after the lifetime of the EBR, a new union can argue that the former EBR does not represent the majority of the employees in the bargaining unit. PCE...basta new union emerges triumphant. But then the CBA is still not expiring. What will happen to the old CBA? The CBA continues, has to be respected. The new union will assume the role of the administrator of the old CBA. What the new EBR could do is to ask for the shortening of the period of the CBA.
-see the history of the HERRERA-VELOSO law
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