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G. Rights of public officers

1. RIGHT TO CONTINUE IN OFFICE

A “right” to hold a public office is the just and legal claim to hold and enjoy the powers and responsibilities of the office. (Paredes v. Abad, G.R. Nos. L-36927, L-37715, and L-38331, 15 April 1974)

2. RIGHT TO COMPENSATION AND BENEFITS

a. Not a criterion for public office

A salary is a usual but not a necessary criterion for determining the nature of the position. It is not conclusive. The salary is a mere incident and forms no part of the office. (Laurel v. Desierto, G.R. No. 145368, 12 April 2002)

1) Honorary office

Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good. (Ibid.)

Case Law

1) The office of petitioner as National Centennial Commission (NCC) Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached.  But it is a public office, nonetheless. (Ibid.)

2) Ex-officio position

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. (PEZA v. COA, En Banc, G.R. No. 189767, 03 July 2012)

Case Law

1) Say,if  the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution. (Ibid.)

3. RIGHT TO SELF-ORGANIZATION

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. (Section 8, Article III, 1987 Constitution)

a. Form unions or associations

GENERAL RULE: All government employees, including those in government-owned or controlled corporations with original charters, can form, join or assist employees’ organizations of their own choosing for the furtherance and protection of their interests. They can also form, in conjunction with appropriate government authorities, labor-management committees, work councils and other forms of workers’ participation schemes to achieve the same objectives. (Section 38[1], Chapter 6, Title I-A, Book V, E.O. 292, Administrative Code)

EXCEPTION: These shall not apply to the members of the Armed Forces of the Philippines, including police officers, policemen, firemen and jail guards. (Section 38[2], Chapter 6, Title I-A, Book V, Ibid.)

LIMITATION: High-level employees whose functions are normally considered as policy-making or managerial or whose duties are of a highly confidential nature shall not be eligible to join the organization of rank-and-file government employees. (Section 39, Chapter 6, Title I-A, Book V, Ibid.)

Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. (SSS v. CA, G.R. No. 85279, 28 July 1989)

b. No right to strike, walk-outs or other temporary work stoppages

But employees in the civil service may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Govemment to accede to their demands. (Ibid.)

c. Protection of the right to organize

1) No discrimination

Government employees shall not be discriminated against in respect of their employment by reason of their membership in employees’ organizations or participation in the normal activities of their organizations. (Section 40[1], Chapter 6, Title I-A, Book V, E.O. 292, Administrative Code)

Their employment shall not be subject to the condition that they shall not join or shall relinquish their membership in the employees’ organizations. (Ibid.)

2) Non-interference

Government authorities shall not interfere in the establishment, functioning or administration of government employees’ organizations through acts designed to place such organizations under the control of government authority. (Section 40[2], Chapter 6, Title I-A, Book V, E.O. 292, Administrative Code)

d. Registration of employees’ organization

Government employees’ organizations shall register with the CSC and the DOLE. The application shall be filed with the Bureau of Labor Relations of the DOLE which shall process the same in accordance with the provisions of the Labor Code of the Philippines. Applications may also be filed with the Regional Offices of the DOLE which shall immediately transmit the said applications to the Bureau of Labor Relations within three (3) days from receipt thereof. (Section 41, Chapter 6, Title I-A, Book V, Ibid.)

1) Certificate of Registration

Upon arrival of the application, a registration certificate shall be issued to the organization recognizing it as a legitimate employees’ organization with the right to represent its members and undertake activities to further and defend its interests. The corresponding certificates of registration shall be jointly approved by the Chairman of the CSC and the Secretary of DOLE. (Section 42, Chapter 6, Title I-A, Book V, Ibid.)

e. Appropriate organizational unit

The appropriate organizational unit shall be the employer’s unit consisting of rank-and-file employees unless circumstances otherwise require. (Section 43, Chapter 6, Title I-A, Book V, Ibid.)

1) Sole and Exclusive Employees’ Representatives.

The duly registered employees’ organization having the support of the majority of the employees in the appropriate organizational unit shall be designated as the sole and exclusive representative of the employees. (Section 44[1], Chapter 6, Title I-A, Book V, Ibid.)

A duly registered employees’ organization shall be accorded voluntary recognition upon a showing that no other employees’ organization is registered or is seeking registration, based on the records of the Bureau of Labor Relations, and that the said organization has the majority support of the rank-and-file employees in the organizational unit. (Section 44[2], Chapter 6, Title I-A, Book V, Ibid.)

Where there are two or more duly registered employees’ organizations in the appropriate organizational unit, the Bureau of Labor Relations shall, upon petition, order the conduct of a certification election and shall certify the winner as the exclusive representative of the rank-and-file employees in said organizational unit. (Section 44[3], Chapter 6, Title I-A, Book V, Ibid.)

f. Public Sector Labor-Management Council

A Public Sector Labor-Management Council is hereby constituted to be composed of the following: The Chairman of the CSC, as Chairman; the Secretary of DOLE, as Vice-Chairman; and the Secretary DOF, the Secretary of DOJ and the Secretary of DBM, as members. (Section 45, Chapter 6, Title I-A, Book V, Ibid.)

The Council shall implement and administer the provisions on the right to self-organization. For this purpose, the Council shall promulgate the necessary rules and regulations to implement this Chapter. (Paragraph 2, Section 45, Chapter 6, Title I-A, Book V, Ibid.)

4. TO SECURITY OF TENURE

a. Concept

GENERAL RULE: No officer or employee in the Civil Service shall be removed or suspended except for cause provided by law. (Ong v. Office of the President, G.R. No. 184219, 30 January 2012)

EXCEPTIONS:

1) Contractual and co-terminous appointments; and,

2) Policy-determining positions;

3) Primarily confidential positions; and,

4) Highly technical positions. (Ibid. cf. De los Santos v. Mallare, En Banc, G.R. No. L-3881, 31 August 1950)

EXCEPTION TO THE EXCEPTION: If appointment is for a fixed-term, and prior to the expiration of the term, the temporary appointee may be removed only for just cause. (Ambas v. Buenaseda, En Banc, G.R. No. 95244, 04 September 1991)

The fact that petitioners’ appointments were classified as “temporary” did not grant a blanket authority to the Secretary of Health to remove them at anytime without cause for the term fixed by law protects the right of the resident trainees from being removed from office without cause. A “term” of office fixed by law allows the appointee to hold office, perform its functions, and enjoy its privileges and emoluments until the expiration of said period. It is the definite period of time prescribed by law by which an officer may hold office. (Ibid.)

1) Contractual and co-terminous appointments

The right to security of tenure is not available to those employees whose appointments are contractual and co-terminous in nature. (Ong v. Office of the President, supra.)

2) Policy-determining posityions

3) Primarily confidential positions

4) Highly technical positions

Three specified classes of positions — policy-determining, primarily confidential and highly technical — are excluded from the merit system and dismissal at pleasure of officers and employees appointed therein is allowed by the Constitution. These positions involved the highest degree of confidence, or are closely bound out with and dependent on other positions to which they are subordinate, or are temporary in nature. It may truly be said that the good of the service itself demands that appointments coming under this category determinable at the will of the officer that makes them. (De los Santos v. Mallare, supra.)

b. Permanent Appointment; CES eligibility

Security of tenure in the career executive service, which presupposes a permanent appointment, takes place upon passing the CES examinations administered by the CES Board. (Amores v. CSC, G.R. No. 170093, 29 April 2009)

An appointee without the requisite CES eligibility cannot hold the position in a permanent capacity. Temporary appointments are made if only to prevent hiatus in the government’s rendition of public service. (Ong v. Office of the President, supra.)

1) CES eligible v. First- and Second- level employees

As to those with eligibilities, their rights to security of tenure pertain to ranks but not to the positions to which they were appointed. (Ong v. Office of the President, supra.)

The mere fact that an employee is a CES eligible does not automatically operate to vest security of tenure on the appointee inasmuch as the security of tenure of employees in the career executive service, except first and second-level employees, pertains only to rank and not to the office or position to which they may be appointed. (Amores v. CSC, G.R. No. 170093, 29 April 2009)

c. Temporary appointments

A temporary appointee can be removed even without cause and at a moment’s notice. (Ong v. Office of the President, supra.)

The acceptance of a temporary appointment divests an appointee of the right to security of tenure against removal without cause. (Ibid.)

One who holds a temporary appointment has no fixed tenure of office; his employment can be terminated at the pleasure of the appointing authority, there being no need to show that the termination is for cause. (Carillo vs. CA, G.R. No. L-24554, 31 May 31, 1967)

Co-terminous appointment – is one wherein the employment is co-existent with the tenure of the appointing authority or at his pleasure. (Ong v. Office of the President, supra.)

1) Removal v. Revocation of appointment

The replacement of a temporary appointee is not a removal but rather as an expiration of term and no prior notice, due hearing or cause were necessary to effect the same. (Ibid.)

A removal from office takes place after title to the office has become vested in the appointee, whereas revocation of an appointment is had, if it is to be successful, before the appointment is complete.  (Mitra v. Subido, En Banc, G.R. No. L-21691, 15 September 1967)

The moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable right, which is protected not only be statute, but, also by the Constitution, it cannot be taken away from him, either by revocation of the appointment or by removal, except for cause, and with previous notice and hearing, consistent with Section 4 of Article XII of our fundamental law, and with the constitutional requirement of due process. (Ibid.)

2) Designation

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named. (Binamira vs. Garrucho, En Banc, G.R. No. 92008, 30 July 1990)

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