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Thread: OBJECTION Your Honor! Mag-Legal Legal-an muna tayo.

  1. #661
    ^ (Continued from above)

    Perpetual Guardian trialled a four-day week during March and April 2018 in which staff worked four eight-hour days but were paid for five. In an independent study, researchers at the Auckland University of Technology found workers at the firm, which employs 240 staff, found that stress levels decreased seven percentage points across the board, while overall life satisfaction increased by five percentage points.

    The trial had an impact. Tris Williams first read about it while browsing the news in the summer of 2018. Williams started a board games company called Big Potato with two co-founders in Shoreditch in 2014. It has since expanded to 20 people. Williams had always prided himself on running a progressive company. Big Potato offered its workers flexible working hours and cake and sandwiches on Friday lunchtimes, when everyone got together to play games. When he saw Perpetual Guardian’s story he said to his co-founders Ben Drummond and Dean Tempest: “We own a company, we can do what we want, let’s try it out.”

    They called in Autonomy, a think tank, in February 2019 to discuss how to prepare. Autonomy had just published a research paper in January making the case that the shorter working week was a powerful and practical response to a whole host of trends in the labour market, including job polarisation, the explosion of precarious forms of work, gendered inequalities, stagnating productivity, automation and inequality.

    “It’s really important from the get go that we get buy-in from workers,” says Will Stronge, director of Autonomy. “So we start with workers and how they would change their work. We say, ‘If you can make this work, you can have Friday off.’ People are motivated by the idea of having more free time.”

    Autonomy worked with each department to help them squash their duties into fewer days. They trialled “blitzing hours” for the sales team, where sales people got into a room and made a certain number of calls all together, all at once, to quickly hit targets. They introduced a quiet room for people to use when they need to focus, and they cut meetings. The logistics and warehouse team put together their own FAQ of what to do if a delivery was necessary when the team was not at work. “All these different practices were tightening up their workload,” Stronge says. “At every single stage they said, ‘This is great, we can make this work, if I need to, I can take some calls on Friday.’ All the energy staff were putting in was based on them getting something out of it.”

    Emily Bond has been head of UK sales at Big Potato for two and a half years. She remembers first hearing about the idea of a four-day week from Williams and the directors at a meeting in the summer of 2018. “At first it sounded life-changing,” she remembers. But then she thought about it. Her bonus relies on the productivity of her team. “From a sales perspective, you have one less day a week to be searching out new leads and new customers. You think: ‘This is going to mess up the numbers.’”

    When the trial started in May, some of the younger members of staff needed to be reminded that flexible working was over and the rules had changed. Bond says the transition was helped by the introduction of hard rules to encourage people to get into the office at 9.30am and leave at 6pm. The company switched from 25 days holiday plus their birthday, to 20 days and no leave on birthdays, to counterbalance the fact that they had every Friday off. “The idea is that you have Friday off, so you get things done on that day,” Williams says. “You can’t go to the dentist at 11am on a Monday, or have a fridge delivered at 4pm on a Tuesday afternoon. Well – it’s not that you can’t. But the idea is that you get it done on a Friday.”

    Bond says the atmosphere has changed. “We are definitely more focussed,” she says. “The mood in the office is different.” She hasn’t put on an out-of-office for Fridays and still checks her emails for anything urgent: “From a sales point of view, if a client wanted something urgently and they knew I wasn’t in on a Friday, they might go to another company. I want to make sure we make the sale.”

    Throughout history, productivity has repeatedly been shown to increase when labour works fewer hours. In 1926, Henry Ford found that productivity and profits increased when he became one of the first employers to introduce a five-day, 40-hour week. In 1930, Kellogg reduced factory accidents by 41 per cent with the introduction of the six-hour day. Many office workers will agree with Bond when she says: “Not a lot of productive things go on on a Friday.” Bond was surprised to notice how few emails she got on her new day off. “If I need to get out my laptop and answer a couple of emails on a Friday, I’m not going to moan. I can do it at home in my pyjamas.”

    By contrast, the extra day has revitalised her leisure time. She spends Fridays exploring other cities, doing up her holiday flat in Wales or simple doing the housework – a common thread among those who spoke to WIRED, who said their four-day week created time for housework and the emotional labour of caring for children and the elderly without suffering a pay cut. This disproportionately affects women, who still do an average of 26 hours a week of unpaid domestic labour, including cooking and cleaning, according to the ONS, alongside 74 per cent of all childcare.

    A four-day week gives people more time for civic activities that are important to the running of a democracy. “Democracy, I mean it in its widest sense, setting up a community land trust, being part of a union or taking part in a protest movement or being on the PTA or helping run the residents association – takes time,” says Lianna Etkind, a campaigns manager with the London Community Land trust, who works four days a week. “Time to be well informed and to learn about the issues in a way that's deeper than a tweet, but also time to deliberate and take action and exchange views.”

    Yet today, the historical drivers of shorter working hours – legislation, union pressure and innovative employers – are weak. As the economy has shifted to service industries, it has become less susceptible to sudden technological advancements in manufacturing that preceded shorter hours on Ford’s production lines and in Kellogg’s factories. Employers find it harder to implement blanket policies in modern workplaces. The Wellcome Collective discovered this in April, when it dropped plans to trial a four-day week for its 800 staff saying it was too “operationally complex”. The company had mooted giving staff Fridays off with no reduction in pay, but scrapped the scheme because it would make life harder for employees in back office and support functions.

    A four-day week is more complicated in public-facing jobs like medicine and teaching, two professions in which pressure on staff has been building. Some 92 per cent of teachers and 70 per cent of nurses said they were required to work “very hard” in a 2018 study of work intensity in Britain.

    But when France introduced a 35-hour working week with two laws in 1998 and 2001, it created a shortage of nurses as not enough qualified medical professionals were available to compensate for the reduced hours, making those in work even more stressed. In his report for the Labour Party, Skidelsky reveals that unskilled workers were disproportionately poorly affected by the changes in France, with many facing increasingly unpredictable working hours and less control over their schedules. “Implementation of working time reduction needs to be considered carefully on a sectoral basis,” Skidelsky says. “A one-size-fits-all approach will inevitably lead to problems in some sectors.”

    For bosses like Stone, the decision to switch to a four-day week comes down to that simple competitive advantage: people will want to join, and they will never leave. But it took 50 years for the shorter hours trialled by the Victorian industrialists to become enshrined in legislation. And if, eventually, the four-day week is commonplace, Stone’s advantage is null.

    Even now, the longer-term effects of shorter working hours among the early-movers are unclear. “There has been much attention given to recent examples of companies undergoing three- or six-month trials,” John Nash, the recruiter who inspired Stone, says. His company Nicholson Search and Selection has hired 15 people since 2015 and only lost two members of staff who were let go because they were unsuitable. “The reality is that you can only truly measure its success or otherwise after several years,” Nash says. “But for us, it’s been a huge success.”

  2. #662
    From Wired ...

    The science behind the success of a four-day working week

    An extra day off a week can work for businesses, but measuring the productivity benefits makes it tricky to argue the case

    By Richard Priday

    Wednesday 12 September 2018

    Since the Industrial Revolution, there has been one thing that has barely changed for the majority of workers – the routine of 09:00 to 17:00, five days a week. This is by no means universal, there is a significant proportion of jobs that need different hours, and flexible contracts and working from home are growing too. But why, in the year 2018, is working nine to five still such a popular way to make a living?

    Well, it might not be for long. The UK’s Trade Union Council (TUC) has called for a four-day maximum working week as part of its report into how changes to the current and future workplace can best benefit workers. This was based on a survey of its members which indicated it was the most popular option, favoured by 45 per cent of participants, with 81 per cent wanting a reduction of at least one day. But this only reflects the popularity of the idea. The effects of four-day weeks, and reducing working time in general, are more complex.

    When factory work became the primary form of employment in the Western world, employees originally worked six days a week, with Sunday, the traditional Christian day of rest, as a day off. It wasn’t until the twentieth century that businesses like US car manufacturer Ford decided that a five-day week, working eight hours a day, was better for its employees. It was justified with the fact that the extra time off would increase consumer spending and aid the economy. Also, the increased resting time would mean the workers’ productivity wouldn’t be reduced.

    This change was also a reaction to automation and the integration of the production line to the factory, meaning that it could more easily keep its output consistent with less human input. The parallels between this and the TUC setting its sights on big tech-heavy businesses like Amazon are clear.

    A trial conducted in New Zealand conducted in New Zealand at trustee company Perpetual Guardian between March and April 2018 encouraged a major discussion of the four-day work week. The aim, according to the company’s founder and CEO, Andrew Barnes, was to both improve productivity and help employees better manage their lives. The trial was studied by academics at the Auckland University of Technology and the University of Auckland and the results were encouraging: work remained up to standard while teamwork and work engagement increased, and stress decreased.

    However, there were some concerns brought up by the trial, including additional stress on certain employees, including a group having to break the terms of the trial in order to keep up with a busy period. Additionally, while there was no drop in work quality, there was not an improvement either. Away from their desks, the staff responded very well to the extra time off, with the exceptions of individuals who enjoyed the social aspect of work, or found it difficult to stay occupied without the extra day in the office.

    The reports, by Helen Delaney of UoA Business School, and Jarrod Haar, professor of human resources management at AUT, both suggested that with greater preparation and training, and a clarified purpose of how flexibly the extra day off should be treated, these problems would be resolved.

    So is there a way to use the extra day off to increase productivity? It’s difficult to figure out. Measuring daily productivity is made tricky by a large number of variables: the job itself, the demand for its services and the economic status of the worker, to name a few. And although businesses may measure their own productivity for their own records, this doesn’t tend to get shared around.

    A 2007 report by the London School of Economics looked into how productivity changes over the course of the working week and concluded that fatigue, practice-efficiency (the concept that a worker increases in efficiency after a drop in skill over a rest period), and bursts of motivation caused by deadlines or upcoming time off are major influences on the quality or quantity of a business’ output.

    Concentrating working hours during the most productive days of the week (in most cases Tuesday to Thursday) may have a positive effect, as suggested by a 1999 paper by Robert Lajeunesse, who advocated for working four days, but for ten hours each instead of eight. But Bryson and Forth’s preferred option is simply greater flexibility for working hours, instead of changing one schedule for another.

    The transition and implementation of a four-day week is certainly achievable, as shown by the New Zealand trial. But it would be wrong to expect that if such a scheme was implemented at a workplace, that there would be an automatic boost to productivity. The case for a four-day week is not made by the direct benefits to the bottom line, but by the improvement to the lives of staff members. But if better employee morale is your only goal, then perhaps it’s time consider being more flexible.

  3. #663
    From ...

    Analyzing the Fallout Between the NBA and China After Daryl Morey’s Tweet

    At all moments, the NBA, just like other pro sports league and like every other American business, ultimately acts with business interests in mind. That’s not cynical or critical. It’s reality.

    Michael McCann

    Oct 7, 2019

    The fallout from a tweet by Houston Rockets general manager Daryl Morey about protests in Hong Kong continues to raise questions about the uneasy mix between the NBA’s business pursuits in China and democratic values shared by the NBA’s global fan base.

    Last Friday, Morey tweeted “Fight for freedom, stand with Hong Kong.” The tweet, which Morey later deleted, also included an image of a logo associated with protesters in Hong Kong. Within minutes, Rockets owner Tilman Fertitta tweeted a sharp rebuke. “Listen,” Fertitta stressed, “@dmorey does NOT speak for the @HoustonRockets . . . we are NOT a political organization.”

    The Consulate General of the People's Republic of China in Houston also lambasted Morey. A spokesperson for the Consulate General, which represents the Chinese government, expressed that “we are deeply shocked by the erroneous comments on Hong Kong made by Mr. Daryl Morey . . . we have lodged representations and expressed strong dissatisfaction with the Houston Rockets, and urged the latter to correct the error and take immediate concrete measures to eliminate the adverse impact.”

    On Sunday, Morey clarified his tweet. He conveyed that he did not intend to cause any offense or misunderstanding. Morey also stressed that he “was merely voicing one thought, based on one interpretation, of one complicated event.” Morey further emphasized that his tweets are his own and “in no way represent the Rockets or the NBA.”

    It was intially reported that the NBA on Sunday issued two statements concerning Morey. One statement was in English and the other in Mandarin. The English statement is mildly worded, noting that the league’s regards the impact of Morey’s tweets as “regrettable.” The purported Mandarin statement strikes a far more critical tone, stressing “we are extremely disappointed by the inappropriate remarks made by Houston Rockets General Manager Daryl Morey, who has undoubtedly seriously hurt the feelings of our Chinese fans.” On Monday, the NBA informed media that the league only issued one statement—the one in English—and that the statement in Mandarin, and its subsequent translation back into English, were not made by the league and do not reflect the league’s views. To bolster that point, commissioner Adam Silver was quoted by Japan’s Kyodo News on Monday as saying that Morey “is supported in terms of his ability to exercise his freedom of expression.”

    Rockets players, who are currently traveling in Tokyo, Japan as part of a preseason arrangement, have taken issue with Morey’s tweet. All-star guard James Harden told media, “We apologize. You know, we love China. We love playing there.”

    The protests in Hong Kong

    The protests began earlier this year as the government of Hong Kong debated the Fugitive Offenders amendment bill. The bill would authorize Hong Kong law enforcement to detain persons accused of crimes by governments with whom Hong Kong lacks extradition treaties. One of those governments is China, which is run by the communist party and which features fewer legal protections and civil liberties than are found in Hong Kong.

    Hong Kong was a British territory until 1997, when a lease agreement involving Great Britain and China instructed that the territory be transferred to China. Over the last 22 years, Hong Kong has remained autonomous in many ways while still part of China. This arrangement is sometimes termed “two systems, one country.” Hong Kong protesters fear that the “two systems” will gradually blend into one.

    The NBA’s ventures in China: the league is a business, not an advocacy platform

    The NBA is hardly alone as an American company pursuing business in China.

    China, in fact, is the largest trading partner of the United States. In that same vein, the idea that an American business would conduct transactions with Chinese businesses is not especially novel. The NBA is doing what numerous American companies—including Boeing, Microsoft, General Motors, Apple and Nike—have done for many years, in some cases for decades: conduct substantial business in a country with a political system at sharp odds with democratic values.

    This gets at the fact that the NBA is like any other business, be it Google or McDonald’s. It acts in its own self interests. That may sound cynical or negative but is factual and neutral. The NBA is neither a not-for-profit organization nor a foundation for the promotion of democracies or other ideological perspectives. As Article 2 of the NBA’s constitution makes clear, the league’s goal is narrow, constrained and has nothing to do with instilling socio-political beliefs. “This Association,” the Constitution notes, “ is organized to operate a league consisting of professional basketball teams, each of which shall be operated by a Member of the Association.”

    Along those lines, while the NBA is American business, it doesn’t represent the political interests of the United States or the objectives of the U.S. State Department. The NBA is an entertainment company that tries to maximize earnings—earnings that, per collective bargaining agreement provisions on basketball related income, are split more or less evenly with NBA players. The NBA, and by extension the persons who run it, are successful when the league generates more revenue and when the values of NBA franchises climb.

    Crucial to the NBA’s expansion of revenue is growth of league interests in China. China has 1.4 billion people compared to the 327 million people who reside in the United States. China also has the world’s second largest economy after the United States. Basketball has become increasingly popular in China, which features a pro league—the Chinese Basketball Association—that has employed such one-time NBA stars including Tracy McGrady and Stephon Marbury. The NBA is also aware that there are more people in China who watch NBA programming than there are people who reside in the United States. This has guided the NBA’s business operations. The league and Tencent, the NBA’s digital partner in China, recently agreed to a $1.5 billion contract. SI’s Chris Mannix has additional details on the extent to which the NBA eyes China as the next frontier for the league. Due to the sharing of basketball related income, these revenues could lead to substantially higher salaries for NBA players, too.

    With those business interests in mind, the NBA does not want to offend Chinese fans or Chinese business partners, or have persons associated with NBA franchises offer political opinions that may be popular in the United States but unpopular in China. The league would prefer that team officials simply refrain from comment on political topics.

    None of this is to say the NBA can conduct business in China without limit. The league, like any American business, must satisfy U.S. law and treaty obligations. The NBA is known for being meticulous in its operations, and its commissioner was an accomplished attorney before becoming a sports executive. There is no reason to believe that the NBA’s business in China hasn’t meet every legal obligation.

  4. #664
    Is the NBA being hypocritical since it strives to be relatively “woke” at home? No, here’s why.

    One might argue that the league is being duplicitous. While the NBA does business in a communist country where there are assorted human rights concerns, the league also actively champions progressive causes in the United States.

    For instance, in 2016, the league pulled the scheduling of the 2017 All-Star game in Charlotte in response to North Carolina adopting the Public Facilities Privacy and Security Act, better known as House Bill 2 (HB2) or “the Bathroom Bill.” The law made it unlawful for a person to use a bathroom different from the gender listed on that person’s birth certificate.

    In response, the NBA asserted that the Bathroom Bill was untenable with the league’s pledge to “create an inclusive environment for all who attend our games and events.” The NBA went so far as to identify “guiding principles” in noting that “this discriminatory law runs counter to our guiding principles of equality and mutual respect.”

    The league’s response to the Bathroom Bill was not an isolated example of social advocacy. Since Silver became commissioner in 2014, the NBA has shown little tolerance for views that the league (and most others) deem to be prejudicial.

    To that end, Silver oversaw the removal of Donald Sterling from the NBA in 2014 after the Los Angeles Clippers owner was caught on a recording making racist comments. More recently, Silver has partnered the NBA with, an organization that promotes opportunities for women. Also, while the NFL has struggled to handle players’ who engage in protest during the playing of the National Anthem, Silver has encouraged NBA players to be vocal politically while not playing. Not one NBA player under Silver’s watch has kneeled or otherwise deviated from the custom (and contractual obligation) of NBA players standing during the National Anthem. The fact of the matter is players trust Silver to do right by them.

    So how can one reconcile the NBA embracing business opportunities with its social advocacy at home? The answer is likely simple. The league, a for-profit venture, advocates for social interests in the United States because the league’s executives agree with those views and because it is good business.

    Take Sterling. It’s true the league ousted him because they found his racist comments to be abhorrent. But it’s also true that the league ousted him because NBA stars, including LeBron James and Stephen Curry, threatened to boycott playoff games unless Sterling was removed. And it’s true that the league ousted Sterling because Carmax, Virgin America, and Mercedes- Benz and other major companies threatened to end their sponsorships with the Clippers unless Sterling’s relationship with the NBA was severed.

    Remember, Sterling had been linked to many other social wrongs since his purchase of the Clippers in 1981. There is no record that the NBA punished him until 2014. This is true despite sexual harassment lawsuits and the U.S. Justice Department suing Sterling in 2006 for discriminating against non-white people when renting property. In 2009, former Clippers general manager Elgin Baylor unsuccessfully sued Sterling for race and age discrimination. Baylor asserted that Sterling would tell him he wanted a team “composed of ‘poor black boys’ from the South and a white head coach.” None of those controversies led to Sterling being punished.

    Why would the NBA wait more than three decades to hold Sterling accountable? Because in 2014, Sterling’s misconduct became a clear business concern for the NBA whereas it hadn’t before. Superstars threatened to boycott games. Sponsors threatened to drop sponsorships. Broadcast partners expressed worries about how TV ratings would be impacted if Sterling remained in the league. The league’s fan base, which includes many young people who hold progressive views, was outraged. President Barack Obama took time out a press conference in Malaysia to associate Sterling’s racist remarks with “the legacy of race and slavery” in the United States. Put bluntly, the situation on the ground had changed. It made business sense to take action against Sterling in 2014.

    At all moments, the NBA, just like other pro sports league and like every other American business, ultimately acts with business interests in mind. That’s not cynical or critical. It’s reality. It’s also why NBA players, who stand to gain about half of the revenue the NBA generates in China, have already issued comments favorable to China.

    The NBA could sanction a general manager for comments or tweets

    Sports Illustrated has learned that the NBA will not punish Morey for the tweet. However, if the controversy continues, or if another general manager weighs in on a sensitive topic for the league, there is the possibility of the league discipling a team executive.

    To that point, the contractual relationship between a general manager and the NBA is far less direct that than between an owner and the league or a player and the league. An owner has equity in an asset, an NBA franchise, that is part of an association of franchises. A person who seeks to obtain equity in an NBA franchise must comply with league due diligence requirements and must be approved by at least 23 of the 30 governors (majority owners of the franchises). A player, meanwhile, is a member of labor organization, the National Basketball Players’ Association. This labor organization negotiates a CBA and other workplace policies with the league.

    A general manager? He or she has no direct tie to the league. This person is an employee of a single franchise, much like a franchise’s marketing director and custodial staff work not for the NBA but for that single franchise employer. The NBA doesn’t approve these employment decisions.

    Still, the league constitution is constructed in a way that essentially requires teams to carry out punishments of team executives. Along those lines, Article 24 of the league constitution permits Silver to take any and all actions in furtherance of “the best interests of the Association.” The commissioner could rely on this expansively worded authority to fine or suspend team executives.

    Alternatively, Silver could cite Article 35A, which applies to all employees other than players. Under Article 35A, if a team executive “gives, makes, issues, authorizes or endorses any statement having, or designed to have, an effect prejudicial or detrimental” to the NBA, Silver can fine him or her up to $1 million and suspend them for an indefinite period.

    Under his Silver’s authority, the NBA has fined NBA general managers for their statements against the league’s interests. In 2015, Toronto Raptors president of basketball operations Masai Ujiri was fined $35,000 for using an expletive while referring to Paul Pierce. The NBA has also fined team executives for tampering. In 2010, the league fined then-Phoenix Suns president of basketball operations Steve Kerr $10,000 for comments about LeBron James that the league construed to be tampering. Silver has also punished individuals for controversial tweets, including one authored by Brooklyn Nets governor Joe Tsai.

    There are still other ways for the NBA to punish a general manger. If a governor refused to sanction a general manager at the NBA’s behest, the governor himself or herself would violate certain provisions of the constitution. Article 13(a), for instance, bars owners from willfully violating the league constitution, bylaws or any other NBA agreements. Article 13(d), meanwhile, forbids owners from breaching contractual obligations in ways that detrimentally impact the NBA. The league could reason that Fertitta’s refusal to advance the NBA’s contractual obligations in China damage the league’s brand and financial stakes.

  5. #665
    The Rockets could fire Morey, which could spark a legal controversy

    According to John Gonzalez of The Ringer, the Rockets have internally discussed the possibility of firing Morey over the tweet.

    In terms of job performance, Morey is regarded as one of the best general managers of his generation. The 47-year-old MIT grad and former Boston Celtics executive has rebuilt the Rockets since becoming their general manager in 2007. The team has consistently been a contender since his arrival. There is no rationale basketball reason why the Rockets would want to replace Morey.

    Morey’s employment contract is not public. It is known, however, that Fertitta signed Morey to a five-year contract extension this past May. At the time, Fertitta said Morey is “one of the highest paid general managers” in the league.

    Still, if the Rockers decided to fire Morey over the tweet, there are two ways the firing would be classified: without cause or with cause. Usually when a team fires an executive, the firing is “without cause.” This refers to a team deciding that it simply wants someone else to run the organization. Perhaps the team underperformed in terms of expectations or perhaps a new owner wants his or her own person in charge. The reason can be any reason—hence the phrase “without” cause—so long as it isn’t a reason prohibited by civil rights laws (such as firing someone because of their race or gender).

    In a without cause firing, the employment contract usually stipulates that the team owes the fired general manager all or a large portion of the remaining salary. Sometimes that salary is offset should the general manager later become employed by another franchise. Either way, the general manager walks away with a considerable amount of money.

    The much more controversial scenario is when a firing is “with cause.” This is a firing where the team insists that the general manager’s actions or omissions betrayed their contractual responsibilities. A with cause firing (alternatively called “for cause” firing) tends to be used when the employee is accused of illegal or immoral conduct. In that same vein, a team executive’s contract often contains a “morals clause” which prohibits the executive from engaging in behavior the team deems offense. Triggering the moral clause can be used to justify a “with cause” firing.

    As mentioned above, it would be stunning to see the Rockets fire one of the NBA’s most talented general managers over a single controversial tweet. It would be just as stunning to see the team attempt to classify a firing as one “with cause.”

    Morey and his attorneys would be well positioned to argue that a “with cause” firing is unwarranted and constitutes a breach of contract. Frankly, it would be incongruous for a tweet that promotes democracy to be considered immoral. Further, Morey could potentially rely on defamation and false light laws to contend that any statements accompanying a firing might be untrue and damaging to his reputation. As a public figure, Morey would have the added litigation hurdle of establishing that the Rockets or NBA knowingly published false and defaming information or had reckless disregard for the information’s truth or falsity.

    Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.

  6. #666
    What is PET Rule 65 and why are Robredo's lawyers bringing it up?

    Kristine Joy Patag ( - October 14, 2019 - 5:20pm

    MANILA, Philippines — Former Sen. Ferdinand “Bongbong” Marcos Jr.’s poll protest against Vice President Leni Robredo has been on the agenda of the Supreme Court, sitting as Presidential Electoral Tribunal, for weeks now.

    Associate Justice Alfredo Benjamin Caguioa, member-in-charge of the case, submitted his report on the concluded recount of ballots from Marcos' three pilot provinces, the SC said September 10.

    Since then, the justices have pored over the report, as they do in all cases, Chief Justice Lucas Bersamin earlier explained.

    A month has passed and the SC has yet to act on the report.

    Bersamin earlier stressed that the SC is being “careful” in resolving the case as it involves “the credibility of our processes as well as the political system.”

    What does Rule 65 state?

    Rule 65 under the PET Rules is under the Initial Determination of the Grounds for Protest.

    The provision specifically discusses the dismissal of the protest, “when proper.”

    It states that the Tribunal may order the protestant to pick at most three provinces “best exemplifying the frauds or irregularities alleged in his petition.” The revision or recount will then begin.

    The provision further reads:

    If upon examination of such ballots and proof, and after making reasonable allowances into account, the protestant or counter-protestant will most probably fail to make out his case, the protest may forthwith be dismissed, without further consideration of other provinces mentioned in the protest.

    Rule 65 in Marcos’ poll protest

    On Sept. 5, 2017, the tribunal issued a 34-page resolution on the preliminary conference of the poll protest.

    In the said ruling, the PET cited Rule 65 of the PET rules and referred to the three pilot provinces as “test cases” by which it will “make a determination as to whether it would proceed with the Protest—that is, retrieve and revise the ballots for all the remaining protested clustered precincts—or simply dismiss the Protest for failure of the protestant to make out his case.”

    The Tribunal reiterated Rule 65 in a July 2, 2019 ruling.

    The tribunal acted on Marcos’ plea to conduct technical examination of ballots in Basilan, Maguindanao and Lanao del Sur, as stated in the third cause of action of his protest.

    The PET said that it would defer conducting the technical examination because the proceedings under Rule 65 of the PET Rules—the recount of pilot provinces—were then ongoing.

    The ruling stated: “Rule 65 allows the Tribunal to conduct revision of ballots and reception of evidence on the designated pilot provinces first, and on such basis, dismiss the protest if it finds that the protestant will most probably fail to make out his case.”

    The PET also stated that it moved to defer action “until such time that an initial determination has been made on the protest, based on the explicit mandate of Rule 65 in the 2010 PET Rules.”

    October 15 en banc

    Robredo's lawyers, Romulo Macalintal and Bernadette Sardillo, reiterated Rule 65 in their latest Manifestation before the SC, filed Monday, a day before the SC en banc is set to meet and deliberate on the poll protest.

    Chief Justice Bersamin had been careful in giving information on the voting on the said case. but in a chance interview last week, he said that there “probably” will be voting on the poll protest next en banc session, October 15.

    He explained that the said vote will be on something that divides the court, and not about “housekeeping matters” such as “certain aspects of the case.”

    The chief justice said that the public can expect “something definite” on October 15.

  7. #667
    PET dilemma: Drop VP protest or not?

    POSTSCRIPT - Federico D. Pascual Jr.
    (The Philippine Star) - October 15, 2019 - 12:00am

    THE PRESIDENTIAL Electoral Tribunal is expected to decide today whether to dismiss the protest of ex-senator Bongbong Marcos against the 2016 election of Vice President Leni Robredo or to continue revising/nullifying more ballots that he is disputing beyond his pilot areas.

    Today is Chief Justice Lucas P. Bersamin’s last en banc session with the PET, composed of fellow Supreme Court justices, before his retirement on Friday at age 70. He is expected to make sure a decision is made today on the application of the tribunal’s Rule 65.

    Under Rule 65, the protest may be dismissed at this stage if the results of the revision of ballots in the three pilot provinces chosen by Marcos does not show him substantially recovering votes. But if there is convincing recovery, the recount may continue in other contested areas.

    The recount results may be announced today. Bersamin has said, however, that the PET is not bound by Rule 65 to dismiss the protest, implying that it may continue revising ballots in the other disputed provinces and cities until convinced who the real winner is.

    Aside from expanding the revision area, Marcos has moved for a technical examination of the election records in Basilan, Maguindanao and Lanao del Sur, presumably intending to have the results in those places annulled if fraud is uncovered.

    Robredo’s lead counsel, lawyer Romulo Macalintal, has said that if the PET ignores Rule 65, in effect changing the rules in the middle of the game, they will file a motion for reconsideration (MR) within 15 days. He asked: “What are rules for if we don’t follow them?”

    Marcos will then be asked to comment on the MR, starting a legal volleyball game during which Robredo will continue to sit as the regularly elected and proclaimed Vice President.

    If her MR is denied, Robredo can go to the Supreme Court on a petition for certiorari and have the PET decision reviewed.

    But the SC and the PET consist of the same magistrates. The only difference is that the PET head is a chairman and the others are members, while the SC head is Chief Justice and the members are Associate Justices.

    We once asked Macalintal why one must go through a seemingly futile process of asking the SC to review a decision of the PET since the petitioner would be appealing to the same individuals whose actions he was questioning.

    He recalled filing a case in 2010 against the PET wherein, he said, the SC held that the PET is an “independent body” like the electoral tribunals in the House (HRET) and the Senate (SET), and that these are independent, although not separate, from the Congress and the SC.

    If the annulment bid pushes through, the technical examination of 2,756 voting records and the Election Day computerized list of voters in the Autonomous Region of Muslim Mindanao may also take around one and a half years.

    The findings on the technical examination will be subject to MRs by the aggrieved party. An MR normally takes the PET a month or two to resolve, and the petition with the SC, if given due course, may also take a while.

    (This non-lawyer wonders why Robredo would be a party to the reexamination of the ARMM records without her being first implicated in any fraud in their preparation or use. Will this issue require a separate filing and hearing?)

    If our information is right, another problem ahead for the PET is that it still has no clear rules on how to conduct a technical examination of voting records. When rules are being laid down, they are subject to comments and objections by affected parties.

    SO FAR we have been talking only of Marcos’ protest. Remember, after the loser in the vice presidential race filed a protest, Robredo filed a counter-protest covering 18 provinces (compared to her rival’s 25 provinces and five highly urbanized cities).

    After the PET disposes of the possible technical examination of the ARMM records, coupled with a bid to annul questioned votes, the tribunal can turn its attention to the Robredo counter-protest.

    Like Marcos, Robredo will be asked under Rule 65 to pick three pilot provinces from her 18 protested provinces. When the PET and the poll materials and workers are ready, there will be a similar review and recount of the votes in her pilot provinces.

    It took three years to revise the ballots in Marcos’ three provinces. How long will it take the PET to go through a similar process in the Robredo counter-protest?

    One odd effect would be like the sovereign will of citizen-voters being stymied by a tedious process leading to a decision by a mere majority of 15 appointive SC members as to who should sit as Vice President.

    If the idea behind the Marcos protest is to snatch the vice presidency to be in immediate line for the presidency in the event the President steps down or a permanent vacancy occurs, the scheme might just be foiled by the convoluted process.

    By the time Duterte steps down in June 2022 (assuming he survives that long as president or does not try something like trashing the Constitution to stay longer), the SC/PET could still be revising the ballots in Robredo’s counter-protest.

    This October or shortly after, Duterte will appoint a new Chief Justice and three fresh justices to replace the newly retired members (Bersamin, Francis Jardeleza and Antonio Carpio). That tightens his hold on the Court, but will not substantially alter the procedural timetable for the Marcos protest.

    The test of endurance, resources and other variables will continue till the 2022 buzzer – unless the SC/PET, as Bersamin seemed to hint at days ago to our surprise, does the unexpected and dismisses the Marcos protest on the basis of Rule 65.

  8. #668
    Lawmaker wants to extend probationary period for workers up to two years

    By Xave Gregorio, CNN Philippines

    Published Oct 16, 2019 6:27:33 PM

    Metro Manila (CNN Philippines, October 16) — A businessman-lawmaker wants to extend the maximum probationary period for workers from the present six months to two years.

    Probinsyano Ako party-list Rep. Jose “Bonito” Singson Jr. filed House Bill No. 4802, saying that the current maximum six-month probationary period “is not sufficient a period in order for the employer to determine if the probationary employee is qualified for regular employment.”

    “Employers are left with no recourse but to end the probationary employment even when they are still in the process of evaluating the probationary employee to avoid the automatic regularization of an unqualified employee in their workforce,” Singson said.

    While his measure seeks to extend the probationary period up to two years, Singson said employers can regularize workers any time within this period.

    Under current labor laws, workers can only be placed under a probationary period of up to six months unless an apprenticeship agreement stipulates a longer timeframe. Workers are automatically regularized when they reach their sixth month of employment.

    This provision has led to the controversial practice called endo — short for “end of contract” — where employees would only hire workers for a period of less than six months so they would not have to regularize them and pay for benefits.

    But under HB 4802, Singson said, “workers will be able to enjoy continuous employment for more than six months, which will enable them to qualify for some of the mandatory benefits under existing laws.”

    He added that this would also give workers the time to acquire skills, talents and other qualifications that would lead to their regularization.

    “We are in effect creating better job security for the average probationary employee, who most often than not fall victim to company practices that take advantage of loopholes in the law,” Singson said.

    President Rodrigo Duterte has promised to put an end to endo, but this vow has yet to be fulfilled. In July, he vetoed the Security of Tenure bill as it supposedly destroys “balance” between companies and workers.

    The same measure, which he had certified as urgent only to turn his back on it, has been refiled in Congress.

  9. #669
    No parking, no illegal garaging

    By: Joey C. Papa - @inquirerdotnet

    04:04 AM October 22, 2019

    Many residents park on the streets because they do not have their own garages, or have other vehicles that would not fit in their garage. Others use their garage as a “bodega” for merchandise or household items. Neighborhood groceries also use the streets for delivery trucks. Restaurants that have no provisions for customer parking get those customers just the same, thanks to the public roads they end up using.

    With President Duterte’s order to Interior Secretary Eduardo Año in his State of the Nation Address to reclaim public roads and sidewalks from obstructions, the Department of the Interior and Local Government (DILG) immediately issued a memorandum circular to this effect to all mayors and barangay chairpersons.

    Illegal parking — garaging, actually — worsens the already heavy traffic and deprives workers, employees and students rushing to their work and schools the benefit of a smooth, safe and efficient commute. All this time, sidewalks have been expropriated for stalls, offices, additional rooms, dirty kitchens and what not. Meanwhile, poor vendors have had to make do selling their wares on the streets.

    Upon receipt of the DILG memo, some enterprising barangay officials were quick to “invent,” without consulting their community, the “one-side” parking scheme, disregarding the clear message of the order that “no parking” is no parking, not “one-side parking.” Immediately, notices were printed and posted along the streets ordering residents to park their vehicles on one side from Day 1-15 and on the other from Day 16-30. Stickers for sale to residents who owned vehicles would allow them to park along any of the streets of the barangay without being accosted. How much did the posters and stickers cost? This scheme smacks of corruption.

    What happens to compliant residents if a violator would park in front of the former’s house for two weeks in a month? Worse, owners of vehicles with stickers can just park on and use as a garage any free space. One resident I know whose frontage had been taken over by a pick-up truck, used for business by a neighbor, asked the help of the barangay personnel in charge of street clearing. The driver of the vehicle answered, “first come, first served.” The compliant resident then asked the help of law enforcers of the Metropolitan Manila Development Authority (MMDA). When they arrived, the owner of the pick-up immediately opened his garage and parked the vehicle inside, where merchandise supplies were stored.

    Citizens do obey when the law is asserted. However, the space vacated after the pick-up was brought to its lawful place revealed pieces of empty plastic bags used for soft drinks, straws, sachets, bread wrappers. The same happens often in front of the adjacent property, which has no garage for those renting the apartments inside. Others even wash their vehicles on the road, or convert the road into auto repair shops.

    Imagine how much havoc is generated in the metropolis alone, as illegal garaging also violates the Ecological Solid Waste Management Act, Clean Water Act and the antilittering ordinance. These obstructions have also prevented fire trucks from getting to the scene of fires, or ambulances from rushing patients to the hospital.

    This abusive, antipeople practice must be stopped. Secondary or barangay roads are arteries of bigger, heavily congested roads, and clearing them of illegally parked and garaged vehicles and other obstructions will help ease the traffic.

    After the 60-day allowance for local government units to clear their roads, the DILG should buckle down to implement its order to the hilt, making sure that no corruption will again enter the picture, as seems already evident with the printing
    of posters, sale of stickers and even the charging of fees for parking space, as some barangays are reportedly doing. MMDA officials have said that in at least two Metro Manila cities, there is no one-side parking at all times. If these cities can do it, why can’t the others? Again, the DILG order does not say “clear one side only.”

    Greater consideration, however, should be afforded the poor vendors. Give them space, not on the sidewalk, but where they can reasonably continue to work and earn a decent livelihood. And protect them from “sidewalk syndicates.”

    It’s time citizens respected their neighbors by returning public roads to the public.

    * * *

    Joey C. Papa ( is president of the Bangon Kalikasan Movement/Ecology Centers.

  10. #670
    Agreeing to disagree with Justice Carpio

    By: Artemio V. Panganiban - @inquirerdotnet

    Philippine Daily Inquirer / 04:40 AM October 27, 2019

    Congratulations to new Chief Justice Diosdado M. Peralta. In appointing him, President Duterte — I was told by Executive Secretary Salvador C. Medialdea — wanted to “instill stability in the Court”; thus, he chose the most senior of the three nominees. And if I may add, his appointment also assures a smooth transition because he is an ideological partner of outgoing Chief Justice Lucas P. Bersamin; they have voted on the same side most (but not all) of the time. I will write more about him in the future.

    Meanwhile, let me continue my piece last week on Senior Justice Antonio T. Carpio. During a recent testimonial held in his honor, I said that we have developed a “long (since 1992) and close, even if at times testy, friendship.”

    In his response, he acknowledged that indeed, we were of one mind on important national issues, but on a few occasions “we have agreed to disagree,” pointing to two recent decisions he penned that are unfavorable to a publicly-listed company where I am an independent director.

    Surprised, some well-meaning friends asked, “You’re such good friends, have you really taken opposite sides?”

    Yes, though we (together with his wife Ruth and my wife Leni, plus a few other friends) socialize regularly and enjoy warm personal ties, we have differed a number of times on how to interpret the Constitution and the law. Let me cite three examples.

    First, in a recent interview by GMA News and by ANC with Karen Davila, I vigorously supported the resolution of the Supreme Court requiring both Vice President Leni Robredo and former senator Bongbong Marcos to comment on (1) the report of Justice Alfredo Benjamin S. Caguioa showing that VP Leni increased her lead by about 15,000 votes during the recount in the three pilot provinces involved in the “Second Cause of Action” of the election protest; and, on (2) the viability of the “Third Cause of Action” for the annulment of all the votes cast in three other provinces in Mindanao due to alleged massive fraud, terrorism and other irregularities.

    He dissented from the resolution, arguing that Bongbong’s protest should be dismissed outright since Caguioa’s report showed no “substantial recovery.” However, I countered that, without passing judgment on the merits of the case, due process must first be observed before the Presidential Electoral Tribunal could act with finality.

    Second, I opined in several columns that while we should celebrate our arbitral victory in the West Philippine Sea (WPS) dispute, we should also explore alternative ways to uphold our sovereign rights.

    I wrote that since China refuses to recognize the arbitral award, much less to obey it, we should alternatively invoke China’s Note Verbale dated April 13, 2009, addressed to the UN Secretary General impliedly admitting our maritime entitlements in the WPS. Notably, China has never denied this Note and its implications.

    Another alternative is the Memorandum of Agreement made in November last year, in which China agreed to a 60-40 sharing in our favor of the resources extracted in the WPS. China has expressed willingness to abide by this MoA.

    To me, these two alternatives are win-win solutions because without loss of face for China, we will be able to harvest our WPS resources consistent with our Constitution.

    Third, I wrote the first two decisions on the party-list: (1) Ang Bagong Bayani v. Comelec (June 26, 2001) limiting the system “only to the marginalized and underrepresented sectors,” and (2) Veterans Party v. Comelec (Oct. 6, 2000) restricting the party-list winners only to those obtaining at least 2 percent of the total votes cast, and ruling that the constitutional allocation of 20 percent of all House seats to the party-list was merely directory, not mandatory.

    After I retired, Justice Carpio reversed my ponencias, and held (1) in Atong Paglaum v. Comelec (April 2, 2013) that party-list candidates need not represent the marginalized and underrepresented, and (2) in Banat v. Comelec (April 21, 2009) that the 20-percent allocation is mandatory, thereby opening the party-list floodgates.

    Despite these differences, he and I (and our spouses) remain the best of personal friends, enjoying our 95-percent harmony and overlooking our 5-percent cacophony. Indeed, friends can differ without being difficult.

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