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Labor Law Reviewer...
Labor Law Reviewer...
Labor Law Reviewer...
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
LABORLAW
Q:Whatislabor?
Q:Whatislaborlaw?
Q:Whatisthepurposeoflaborlegislation?
Q:Whataretheclassificationsoflaborlaw?
A:
1. Labor standards The minimum terms
andconditionsofemploymentprescribed
by existing laws, rules and regulations
relating to wages, hours of work, costof
living allowance and other monetary and
welfare benefits. (Batong Buhay Gold
Mines, Inc. v. Dela Serna, G.R. No. 86963,
August6,1999)
e.g.13
th
monthpay
2. Labor relations Defines and regulates
the status, rights and duties, and the
institutionalmechanisms,thatgovernthe
individual and collective interactions of
Ers, Ees, or their representatives. It is
concerned with the stabilization of
relations of Er and Ees and seek to
forestall and adjust the differences
between them by the encouragement of
collective bargaining and the settlement
of labor disputes through conciliation,
mediationandarbitration.
e.g. Additional allowance pursuant to
CBA
3. Social legislation It includes laws that
provide particular kinds of protection or
benefitstosocietyorsegmentsthereofin
furtheranceofsocialjustice.
e.g.GSISLaw,SSSLaw,Philhealthbenefits
A:Laborlegislationissometimesdistinguishedfrom
social legislation by the former referring to labor
statutes, like Labor Relations Law and Labor
Standards, and the latter to Social Security Laws.
Laborlegislationfocusesontherightsoftheworker
intheworkplace.
Q:Whatarethesourcesoflaborlaws?
A:
1. Labor Code and other related special
legislation
2. Contract
3. CollectiveBargainingAgreement
4. Pastpractices
5. Companypolicies
A. FUNDAMENTALPRINCIPLESANDPOLICIES
1.CONSTITUTIONALPROVISIONS
A:
1. Sec.3,Art.XIIITheStateshallaffordfull
protection to labor, local and overseas,
organized and unorganized, and promote
full employment and equality of
employmentopportunitiesforall.
Itshallguaranteetherightsofallworkers
to selforganization, collective bargaining
and negotiations, and peaceful concerted
activities, including the right to strike in
accordance with law. They shall be
entitled to security of tenure, humane
conditions of work, and a living wage.
They shall also participate in policy and
decisionmaking processes affecting their
UST GOLDEN NOTES 2011
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2
rightsandbenefitsasmaybeprovidedby
law.
7. Sec.18,Art.IITheStateaffirmslaboras
a primary social economic force. It shall
protect the rights of workers and
promotetheirwelfare.
Q:WhatistheStatepolicyonlaborasfoundinthe
constitution(Sec.3,Art.XIII)?
A:
1. Affordfullprotectiontolabor
2. Promotefullemployment
3. Ensure equal work opportunities
regardlessofsex,race,orcreed
FUNDAMENTAL PRINCIPLES AND POLICIES
4. Assure the rights of workers to self
organization, security of tenure, just and
humaneconditionsofwork,participatein
policy and decisionmaking processes
affectingtheirrightandbenefits
5. Regulate the relations between workers
andemployers
A:
1. Securityoftenure
2. Receivealivingwage
3. Humaneworkingconditions
4. Shareinthefruitsofproduction
5. Organizethemselves
6. Conduct collective bargaining or
negotiationwithmanagement
7. Engage in peaceful concerted activities
includingstrike
8. Participate in policy and decision making
processes
Q:Whatistheprincipleofnonoppression?
UNIVERSITYOFSANTOTOMAS
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2.NEWCIVILCODEANDOTHERLAWS
Q:Whatareotherrelatedlawstolabor?
A:
1. CivilCode
a. Art. 1700 The relations between
capital and labor are not merely
contractual. They are so impressed
with public interest that labor
contracts must yield to the common
good. Therefore, such contracts are
subject to the special laws on labor
unions, collective bargaining, strikes
and lockouts, closed shop, wages,
working conditions, hours of labor
andsimilarsubjects.
b. Art. 1701 Neither capital nor labor
shall act oppressively against the
other, or impair the interest or
convenienceofthepublic.
c. Art.1702Incaseofdoubt,alllabor
legislation and all labor contracts
shall be construed in favor of the
safety and decent living for the
laborer.
d. Art. 1703 No contract which
practically amounts to involuntary
servitude, under any guise
whatsoever,shallbevalid.
2. RevisedPenalCode
Art. 289 Formation, maintenance and
prohibition of combination of capital or
labor through violence or threats. Any
person who, for the purpose of
organizing, maintaining or preventing
coalitions or capital or labor, strike of
laborers or lockout of employees, shall
employ violence or threats in such a
degreeastocompelorforcethelaborers
or employers in the free and legal
exercise of their industry or work, if the
act shall not constitute a more serious
offenseinaccordancewiththeprovisions
oftheRPC.
3. SpecialLaws
a. GSISLaw
b. 13
th
MonthPayLaw
c. RetirementPayLaw
d. SSSLaw
e. PaternityLeaveAct
f. AntiChildLaborAct
g. AntiSexualHarassmentAct
h. Magna Carta for Public Health
Workers
i. SoloParentsWelfareActof2000
j. National Health Insurance Act as
amendedbyR.A.9241
k. Migrant Workers and Overseas
Filipinos Act of 1995 as amended by
RA10022
l. PERAActof2008
m. Home Development Mutual Fund
Lawof2009
n. TheMagnaCartaofWomen
o. ComprehensiveAgrarianReformLaw
asamendedbyR.A.9700
3.LABORCODE
Q:Whatistheaimoflaborlaws?
4
adoption by the government of measures
calculated to insure economic stability of all the
competent elements of society, through the
maintenance of a proper economic and social
equilibriumintheinterrelationsofthemembersof
the community, constitutionally, through the
adoption of measures legally justifiable, or extra
constitutionally, through the exercise of powers
underlying the existence of all governments on the
timehonored principle of salus populi est suprema
lex. (Calalang v. Williams, G.R. No. 47800, Dec. 2,
1940)
Q:Whatiscompassionatejustice?
A:Itisdisregardingrigidrulesandgivingdueweight
toallequitiesofthecase.
A:Theyshouldberesolvedinfavoroflabor.
Q:Art.4oftheLCprovidesthatincaseofdoubtin
the implementation and interpretation of the
provisionsoftheLCanditsIRR,thedoubtshallbe
resolved in favor of labor. Art. 1702 of the Civil
Code also provides that in case of doubt, all labor
legislation and all labor contracts shall be
construed in favor of the safety and decent living
ofthelaborer.
A:No,theConstitutionprovidesthattheStateshall
afford full protection to labor. Furthermore, the
State affirms labor as a primary economic force. It
shall protect the rights of workers and promote
theirwelfare.(1998BarQuestion)
a.Art.3.DeclarationofBasicPolicy
Q:WhatisthepolicyoftheStateasregardslabor
asfoundintheLaborCode(Art.12)?
A:
1. Promote and maintain a State of full
employment through improved
manpower training, allocation and
utilization;
2. Protect every citizen desiring to work
locallyoroverseasbysecuringforhimthe
best possible terms and conditions of
employment;
3. Facilitate a free choice of available
employment by persons seeking work in
conformitywiththenationalinterest;
4. Facilitate and regulate the movement of
workers in conformity with the national
interest;
5. Regulate the employment of aliens,
including the establishment of a
registrationand/orworkpermitsystem;
6. Strengthen the network of public
employment offices and rationalize the
participation of the private sector in the
recruitment and placement of workers,
locally and overseas, to serve national
developmentobjectives;
7. Ensure careful selection of Filipino
workers for overseas employment in
order to protect the good name of the
Philippinesabroad.
A:
1. Greater supply than demand for labor;
and
2. Need for employment by labor comes
from vital and desperate necessity.
(Sanchez v. Harry Lyons Construction Inc.,
G.R.L2779,Oct.18,1950)
Q:Arealllabordisputesresolvedinfavoroflabor?
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b.Art.5.RulesandRegulations
Q:Whoisgiventherulemakingpower?
A:Itmust:
1. Beissuedundertheauthorityofthelaw
2. Not be contrary to law and the
Constitution
c.Art.6.Applicability
Q:Towhomshallallrightsandbenefitsunderthe
LCapply?
XPN:
1. Governmentemployees(Ees)
2. Ees of government corporations created
byspecialororiginalcharter
3. Foreigngovernments
4. Internationalagencies
5. Corporate officers/ intracorporate
disputes which fall under P.D. 902A and
now fall under the jurisdiction of the
regular courts pursuant to the Securities
RegulationCode(SRC).
6. Local water district except where NLRCs
jurisdictionisinvoked.
7. AsmayotherwisebeprovidedbytheLC
Q:WhatisthetestindeterminingwhetheraGOCC
issubjecttotheCivilServiceLaw?
A:Itisdeterminedbythemanneroftheircreation.
Govt corporations that are created by special
(original) charter from Congress are subject to Civil
Service rules, while those incorporated under the
GeneralCorporationLawarecoveredbytheLC.
Q:Whoisanagricultural/farmworker?
A:
1. One employed in an agricultural or farm
enterprise,
2. Performs tasks which are directly related
toagriculturalactivitiesoftheEr,and
3. Any activities performed by a farmer as
anincidenttofarmingoperations.
d.Art.211.DeclarationofPolicy
A:Thestateaimstopromote:
1. Free collective bargaining (CB) and
negotiations, including voluntary
arbitration, mediation and conciliation as
modes of settling labor or industrial
disputes;
2. Freetradeunionism;
3. Free and voluntary organization of a
strongandunitedlabormovement;
4. Enlightenment of workers concerning
their rights and obligations as union
membersandasEes;
5. Adequate administrative machinery for
the expeditious settlement of labor or
industrialdisputes;
6. Stable but dynamic and just industrial
peace;
7. Participation of workers in the decision
making processes affecting their rights,
dutiesandwelfare;
8. Truly democratic method of regulating
the relations between the Ers and Ees by
means of agreements freely entered into
through CB, no court or administrative
agency or official shall have the power to
set or fix wages, rates of pay, hours of
work or other terms and conditions of
employment, except as otherwise
providedundertheLC.
e.Art.212.Definitions
Q:Whoisanemployer(Er)?
A: Any person acting in the interest of an Er,
directly or indirectly. The term does not include a
labor organization (LO) or any of its officers and
agents,exceptwhenactingasanEr.(Art.212[e])
An Er is defined as any person or entity that
employstheservicesofothers;oneforwhomwork
and who pays their wages of salaries; any person
acting in the interest of an Er; refers to the
enterprise where the LO operates or seeks to
operate.(Sec.1[s],RuleI,BookV,IRR)
Q:WhenisalabororganizationdeemedanEr?
UST GOLDEN NOTES 2011
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6
A: When it is acting as such in relation to persons
rendering services under hire, particularly in
connectionwithitsactivitiesforprofitorgain.
Note: The mere fact that respondent is a labor union
does not mean that it cannot be considered an Er for
persons who work for it. Much less should it be
exempted from labor laws. (Bautista v. Inciong, G.R.
No.L52824,Mar.16,1988)
Q:Whoisanemployee(Ee)?
A:
1. AnypersonintheemployoftheEr
2. Any individual whose work has ceased as
a result of or in connection with any
current labor dispute or because of any
unfair labor practice if he has not
obtained any other substantially
equivalentandregularemployment
3. One who has been dismissed from work
but the legality of dismissal is being
contested in a forum of appropriate
jurisdiction. (D.O. No. 4003, Mar. 15,
2003)
Note: The term shall not be limited to the Ees of a
particularErunlesstheLCexplicitlystates.
AnyEe,whetheremployedforadefiniteperiodornot,
shall, beginning on the first day of service, be
considered an Ee for purposes of membership in any
laborunion.(Art.277[c],LC)
Q:Whatisalabordispute?
A:Includesanycontroversyormatterconcerning:
1. Termsandconditionsofemployment,or
2. The association or representation of
persons in negotiating, fixing,
maintaining, changing or arranging the
termsandconditionsofemployment
3. Regardless of whether the disputants
stand in the proximate relation of Er and
Ee.(Art.212[l])
Q:Whatarethekindsoflabordisputes?
A:
1. Laborstandarddisputes
a. Compensation E.g. Underpayment
of minimum wage; stringent output
quota;illegalpaydeductions
b. Benefits E.g. Nonpayment of
holidaypay,OTpayorotherbenefits
c. WorkingConditionsE.g.Unrectified
workhazards
2. Laborrelationsdisputes
Q:Whoarethepartiestoadispute?
Q:Whatisaninteruniondispute?
A:Anyconflictbetweenandamonglegitimatelabor
unions involving representation questions for the
purposes of CB or to any other conflict or dispute
betweenlegitimatelaborunions.
Q:Whatisanintrauniondispute?
A: Any conflict between and among union
members, grievances arising from any violation of
the rights and conditions of membership, violation
of or disagreement over any provision of the
unions constitution and bylaws, or disputes from
charteringoraffiliationofunion.
Q:Whatarerightsdisputes?
A: They are claims for violations of a specific right
arising from a contract, i.e. CBA or company
policies.
Q:Whatareinterestdisputes?
A: They involve questions on what should be
included in the CBA. Strictly speaking, the parties
maychooseavoluntaryarbitratortodecideon the
terms and conditions of employment, but this is
impracticablebecauseitwillbeavaluejudgmentof
thearbitratorsandnotoftheparties.
Q:Whatarecontractnegotiationdisputes?
A:ThesearedisputesastothetermsoftheCBA.
Q:Whatarecontractinterpretationdisputes?
A:ThesearedisputesarisingunderanexistingCBA,
involving such matters as the interpretation and
application of the contract, or alleged violation of
itsprovisions.
7
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
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f.Art.255.ExclusiveBargainingRepresentation
(EBR)andWorkersParticipationinPolicyand
DecisionMaking
A:Yes,provided:
Q:ThehotelunionfiledaNoticeofStrikewiththe
NCMBduetoULPagainsttheDiamondHotelwho
refused to bargain with it. The hotel advised the
unionthatsinceitwasnotcertifiedbytheDOLEas
the exclusive bargaining agent, it could not be
UST GOLDEN NOTES 2011
8
LABORLAWTEAM:
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MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
UNIVERSITYOFSANTOTOMAS
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ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
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B. RECRUITMENTANDPLACEMENT
1. RECRUITMENTOFLOCALANDMIGRANT
WORKERS
a.RecruitmentandPlacement
Q:Whoisaworker?
Q:Whatisrecruitmentandplacement?
A:
1. Any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring
orprocuringworkers;and
2. Includes referrals, contact services,
promising or advertising for employment,
locally or abroad, whether for profit or
not.(Art.13[b],LC)
Q:Whataretheessentialelementsindetermining
whether one is engaged in
recruitment/placement?
A:Itmustbeshownthat:
Q:Whatistheruleinrecruitmentandplacement?
XPN:
1. Construction contractors if authorized by
the DOLE and Construction Industry
Authority
2. Other persons or entities as may be
authorizedbytheSLE
3. Members of the diplomatic corps (but
hiringmustgothroughPOEA)
4. Publicemploymentoffices
5. Privaterecruitmentoffices
6. Privateemploymentagencies
7. POEA
8. Shipping or manning agents or
representatives
9. Namehires
Q:Whoarenamehires?
Q:Whatisaprivateemploymentagency?
A:Anypersonorentityengagedintherecruitment
and placement of workers for a fee which is
charged, directly or indirectly, from the workers or
employersorboth.
Q:Whatisaprivaterecruitmentagency?
Q:Whoisaseaman?
Q:Whatisoverseasemployment?
UST GOLDEN NOTES 2011
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10
A: It is employment of a worker outside the
Philippines.
Q:WhoisanoverseasFilipinoworker(OFW)?
A:Apersonwhoistobeengaged,isengagedorhas
been engaged in a remunerated activity in a State
of which he or she is not a citizen or on board a
vessel navigating the foreign seas other than a
government ship used for military or non
commercial purposes or on an installation located
offshore or on the high seas; to be used
interchangeably with migrant worker. (Sec.2, R.A.
10022amendingR.A.8042)
Q:Whoisanemigrant?
A:Anyperson,workerorotherwise,whoemigrates
to a foreign country by virtue of an immigrant visa
or resident permit or its equivalent in the country
ofdestination.
b.IllegalRecruitment,Art.38(Local),Sec.6,Migrant
WorkersAct,RA8042
(a)Licensev.Authority
Q:Whatisalicense?
Q:WhatisanAuthority?
A:ItisadocumentissuedbytheDOLEauthorizing
a person or association to engage in recruitment
and placement activities as a private recruitment
entity.
A:Anyperson,corporationorentity:
1. Whichhasnotbeenissuedavalidlicense
orauthoritytoengageinrecruitmentand
placement by the Secretary of Labor and
Employment(SLE)or
2. Whose license or authority has been
suspended, revoked or cancelled by the
POEAortheSLE
Q:Whatarethegroundsforrevocationoflicense?
A:
1. Incurring an accumulated 3 counts of
suspension by an agency based on final
andexecutoryorderswithintheperiodof
validityofitslicense
2. Violationsoftheconditionsoflicense
3. Engaging in acts of misrepresentation for
the purpose of securing a license or
renewal
4. Engagingintherecruitmentorplacement
of workers to jobs harmful to the public
healthormoralityortothedignityofthe
country.(Sec.3,RuleI,BookVI,Rulesand
Regulations Governing Overseas
Employment)
A:
1. ProhibitedactsunderArt.34
2. Publishing job announcements w/o
POEAsapproval
3. Charging a fee which may be in excess of
theauthorizedamountbeforeaworkeris
employed
4. Deploying workers w/o processing
throughPOEA
5. Recruitment in places outside its
authorized area. (Sec. 4, Rule II, Book IV,
POEARules)
Q:Isthelicenseorauthoritytransferable?
A:No,theyarenontransferable.(Art.29)
Note: Changeofownershiporrelationshipofasingle
proprietorship licensed to engage in overseas
employment shall cause the automatic revocation of
thelicense.
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private recruitment and placement agency, is
covertly transporting extremists to terrorist
trainingcampsabroad.Intelligenceagenciesofthe
govt allegedly confirmed the report. Upon being
alerted by the DFA, the DOLE issued orders
cancelling the licenses of XYZ, and imposing an
immediatetravelbanonitsrecruitsfortheMiddle
East. XYZ appealed to the Office of the President
to reverse and set aside the DOLE orders, citing
damages from loss of employment of its recruits,
and violations of due process including lack of
notice and hearing by DOLE. The DOLE in its
answer claimed the existence of an emergency in
the Middle East which required prompt measures
to protect the life and limb of OFWs from a clear
and present danger posed by the ongoing war
against terrorism. Should the DOLE orders be
upheldorsetaside?
A:
1. The DOLE order cancelling the licenses of
XYZ is void because a report that an
agency is covertly transporting extremists
is not a valid ground for cancellation of a
Certificate of Registration (Art. 239, LC
and there is failure of due process as no
hearing was conducted prior to the
cancellation(Art.238,LC).
2. TheDOLEorderimposingthetravelbanis
valid because it is a valid exercise of
police power to protect the national
interest (Sec. 3, Art. XIII, Constitution on
full protection to labor safety of workers)
and on the rule making authority of the
SLE. (Art. 5, LC; Phil. Assn. of Service
Exporters v. Drilon, G.R. No. 81958, June
30,1988).(2004BarQuestion)
A:
1. UnlawfulforanyofficialorEeofthe:
a. DOLE
b. POEA
c. Overseas Workers Welfare
Administration(OWWA)
d. DFA
e. Other govt agencies involved in the
implementationofthisAct
2. Their relatives within the 4
th
civil degree
of consanguinity or affinity, to engage,
directly or indirectly in the business of
recruiting migrant workers. (Sec. 8, R.A.
8042)
(b)IllegalRecruitment
Q:WhataretheelementsofIllegalRecruitment?
A:
1. Offender is a nonlicensee or nonholder
of authority to lawfully engage in the
recruitment/placementofworkers
2. Offenderundertakes:
a. Any act of canvassing, enlisting,
contracting, transporting, utilizing,
hiring or procuring workers, and
includes referrals, contact services,
promising or advertising for
employment, locally or abroad,
whetherforprofitornot(Art.13[b]);
or
b. Any of prohibited practices under
Art.34
Q:WhenisthereSimpleIllegalRecruitment?
A: It is considered simple illegal recruitment when
itinvolveslessthanthree(3)victimsorrecruiters.
Q:WhatisthedifferencebetweentheLCandR.A.
8042 or the Overseas Filipinos and Overseas
MigrantWorkersAct?
A:
LC(Art.38)
R.A.8042,asamendedbyRA
10022
Localrecruitment
Appliestorecruitmentfor
overseasemployment
Illegal recruitment
underArt.38means
any recruitment
activity including
prohibited acts
under Art. 34
committed by non
IllegalrecruitmentunderSec.6
meansanyrecruitmentactivity
committed by nonlicensees/
nonholders of authority or
prohibited acts (same as Art.
34,LC)
UST GOLDEN NOTES 2011
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MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
12
licensees or non
holdersofauthority.
Q:Howdoesoneproveillegalrecruitment?
A:Whenitiscommitted:
1. Byasyndicatecarriedoutby3ormore
persons conspiring/confederating with
oneanotheror
2. In large scale committed against 3 or
more persons individually or as a group.
(Sec.6,10022)
Q:Whileherapplicationforrenewalofherlicense
torecruitworkersforoverseasemploymentwas
still pending Maryrose Ganda recruited Alma and
her 3 sisters, Ana, Joan, and Mavic, for
employment as housemates in Saudi Arabia.
Maryroserepresentedtothesistersthatshehada
license to recruit workers for overseas
employment and demanded and received
P30,000.00 from each of them for her services.
However, her application for the renewal of her
license was denied, and consequently failed to
employ the 4 sisters in Saudi Arabia. The sisters
charged Maryrose with large scale illegal
recruitment. Testifying in her defense, she
declared that she acted in good faith because she
believed that her application for the renewal of
her license would be approved. She adduced in
evidence the Affidavits of Desistance which the
four private complainants had executed after the
prosecution rested its case. In the said affidavits,
they acknowledge receipt of the refund by
Maryrose of the total amount of P120,000.00 and
indicated that they were no longer interested to
pursuethecaseagainsther.Resolvethecasewith
reasons.
A:Yes,illegalrecruitmentandestafacasesmaybe
filed simultaneously or separately. The filing of
charges for illegal recruitment does not bar the
filing of estafa, and vice versa. Bugos acquittal in
theillegalrecruitmentcasedoesnotprovethatshe
isnotguiltyofestafa.Illegalrecruitmentandestafa
are entirely different offenses and neither one
necessarilyincludesorisnecessarilyincludedinthe
other. A person who is convicted of illegal
recruitmentmay,inaddition,beconvictedofestafa
underArticle315,par.2(a)oftheRPC.Inthesame
manner, a person acquitted of illegal recruitment
maybeheldliableforestafa.Doublejeopardywill
not set in because illegal recruitment is malum
prohibitum, in which there is no necessity to prove
criminal intent, whereas estafa is malum in se, in
theprosecutionofwhich,proofofcriminalintentis
necessary.(Syv.People,G.R.No.183879,April14,
2010)
Q:DistinguishIllegalRecruitmentfromEstafa
RECRUITMENT AND PLACEMENT
13
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
A:
ILLEGALRECRUITMENT ESTAFA
Malumprohibitum,thus:
1. Criminal intent is NOT
necessary
2. itisacrimewhichinvolves
moralturpitude
Maluminse,
thus:
1. criminal intent is
necessary
2. crime which
involves moral
turpitude
NOTE: It is essential
that the false
statement or
fraudulent
representation
constitutes the very
cause or the only
motive which induces
thecomplainanttopart
withthethingofvalue
Illegalrecruitmentandestafacasesmaybefiled
simultaneouslyorseparately.Thefilingofchargesfor
illegalrecruitmentdoesnotbarthefilingofestafa,and
viceversa.
Doublejeopardywillnotset
(c)Liabilities
Q:Whatisthetheoryofimputedknowledge?
(d)Preteminationofcontractofmigrantworker
14
dismissal and for payment of his money claims.
The LA rendered a favorable decision to Serrano
awarding him $8,770.00, representing his salary
for 3 months of the unexpired portion of his
contract of employment applying R.A. 8042, Sec
10,par5:
MoneyClaims.Incaseofterminationofoverseas
employment without just, valid or authorized
cause as defined by law or contract, the workers
shall be entitled to the full reimbursement of his
placement fee with interest of 12% per annum,
plus his salaries for the unexpired portion of his
employment contract or for 3 months for every
yearoftheunexpiredterm,whicheverisless.
Isthesubjectclauseconstitutional?
TheclauseisaviolationoftherightofSerranoand
other OFWs to equal protection and right to
substantive due process, for it deprives him of
property, consisting of monetary benefits, without
anyexistingvalidgovernmentalpurpose.
c.DirectHiring
Q:WhatisDirecthiring?
Q:Whatisthebanondirecthiring?
XPN:
Directhiringby
1. Internationalorganizations
2. Namehires
3. Membersofthediplomaticorganizations
4. OtherErsasmaybeallowedbyDOLE
Q:Whyisdirecthiringprohibited?
A:
1. To ensure the best possible terms and
conditionsofemploymentfortheworker.
2. ToassuretheforeignErthathehiresonly
qualifiedFilipinoworkers.
3. To ensure full regulation of employment
inordertoavoidexploitation.
2.REGULATIONANDENFORCEMENT
a.Remittanceofforeignexchangeearnings
A:GR:ItshallbemandatoryforallOFWstoremita
portion of their foreign exchange earnings
to their families, dependents, and/or
beneficiaries ranging from 50% 80%
depending on the workers kind of job.
(RuleVIII,BookIII,POEARules)
XPN:
1. Theworkersimmediatefamilymembers,
beneficiariesanddependentsareresiding
withhimabroad
2. Immigrants andFilipino professionals and
employees working with the UN agencies
orspecializedbodies
3. Filipino servicemen working in U.S.
military installations. (Resolution No. 1
83, InterAgency Committee for
ImplementationofE.O.857)
Q:Whatistheeffectoffailuretoremit?
A:
1. WorkersShallbesuspendedorremoved
from the list of eligible workers for
overseasemployment.
RECRUITMENT AND PLACEMENT
15
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
2. Employers Will be excluded from the
overseas employment program. Private
employment agencies shall face
cancellation or revocation of their
licenses or authority to recruit. (Sec. 9,
E.O.857)
b.ProhibitedActivities
A:
1. Furnishing or publishing any false
notice/information/document related to
recruitment/employment
2. FailuretofilereportsrequiredbySLE
3. Inducingorattemptingtoinduceaworker
alreadyemployedtoquithisemployment
in order to offer him another unless the
transfer is designed to liberate a worker
fromoppressivetermsandconditions
4. Recruitment/placement of workers in
jobs harmful to public health or morality
ortothedignityofthecountry
5. Engaging directly or indirectly in the
managementofatravelagency
6. Substituting or altering employment
contractswithoutapprovalofDOLE
7. Chargingoracceptinganyamountgreater
than that specified by DOLE or make a
worker pay any amount greater than
actuallyreceivedbyhim
8. Committing any act of misrepresentation
tosecurealicenseorauthority
9. Influencingorattemptingtoinfluenceany
person/entity not to employ any worker
who has not applied of employment
throughhisagency
10. Obstructing or attempting to obstruct
inspection by SLE or by his
representatives
11. Withholding or denying travel documents
from applicant workers before departure
for monetary considerations other than
authorizedbylaw
12. Granting a loan to an OFW which will be
used for payment of legal and allowable
placementfees
13. Refusingtocondoneorrenegotiatealoan
incurredbyanOFWafterhisemployment
contract has been prematurely
terminated through no fault of his or her
own
14. For a suspended recruitment/manning
agency to engage in any kind of
recruitment activity including the
processing of pending workers'
applications;and
15. For a recruitment/manning agency or a
foreign principal/ Er to pass on the OFW
or deduct from his or her salary the
payment of the cost of insurance fees,
premium or other insurance related
charges, as provided under the
compulsoryworker'sinsurancecoverage
16. Imposing a compulsory and exclusive
arrangementwherebyanOFWisrequired
to:
a. Avail a loan only from specifically
designated institutions, entities or
persons
b. Toundergohealthexaminationsonly
from specifically designated medical,
entities or persons, except seafarers
whose medical examination cost is
shoulderedbytheshipowner
c. To undergo training of any kind only
from designated institutions, entities
or persons, except for
recommendatory trainings
mandated by principals/shipowners.
(Sec.6,R.A.10022)
c.RegulatoryandVisitorialPowersoftheLabor
Secretary
A:
1. Restrictandregulatetherecruitmentand
placementactivitiesofallagencies
2. Issue orders and promulgate rules and
regulations
Q:Whatconstitutevisitorialpower?
A:
1. Access to employers records and
premises at any time of the day or night,
wheneverworkisbeingundertaken
2. Tocopyfromsaidrecords
3. Question any employee and investigate
any fact, condition or matter which may
be necessary to determine violations or
which may aid in the enforcement of the
Labor Code and of any labor law, wage
order, or rules and regulation issued
pursuantthereto.
A:Powerto:
UST GOLDEN NOTES 2011
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16
Q:CanSLEissuesearchwarrantsorwarrantsof
arrest?
d.PenaltiesforIllegalRecruitment
Q:Whatistheconsequenceofconvictionofillegal
recruitment(IR)?
A:
PENALTIES(underR.A.10022)
Offender/Offense Penalty
IRaseconomic
sabotage
Provided:
1. Ifpersonillegally
recruitedisbelow
18yearsofageor
2. Illegal
recruitmentis
committedbya
nonlicensee/non
holder
Lifeimprisonment+
fineofP2MP5M
Maximumpenaltyshall
beimposed
Anypersonfound
guiltyofillegal
recruitment
12yrsand1day20yrs
imprisonment;or
Fine:P1MP2M
Anypersonfound
guiltyofthe
prohibitedacts
6yrsand1day12yrs
imprisonment;or
FineofP500KP1M
Licensee/holderof
authorityviolates
25yrsimprisonment;or
Fine:P10KP50K;
provisions orboth
Nonlicensee/non
holderofauthority
violatesprovisions
48yrsimprisonment;or
Fine:P20KP100K
orboth
Corporation,
partnership,
association,orentity
Penaltyimposedupon
officer/sresponsiblefor
violation
Alien
PenaltiesprescribedunderRA
10022,
+
Deportationwithoutfurther
proceedings
Ineverycase
Automaticrevocationof
licenseorauthorityandall
permitsandprivilegesofthe
recruitmentormanning
agency,lendinginstitutions,
trainingschoolormedical
clinic
A:
CRIMINALACTIONS
RTC
Provinceorcity:
1. Wheretheoffensewascommittedor
2. Wheretheoffendedpartyactuallyresidesatthe
sametimeofthecommissionoftheoffense
MONEYCLAIMS
NLRC
Original and exclusive jurisdiction to hear and decide
claims arising out of an ErEe relationship or by virtue
of any law or contract involving Filipino workers for
overseas deployment including claims for actual,
moral,exemplaryandotherformsofdamages.
Theliabilityoftheprincipal/Erandtherecruitment/
placement agency for any and all claims shall be
jointandseveral.
The performance bond to de filed by the
recruitment/ placement agency shall be answerable
for all money claims or damages that may be
awardedtotheworkers.
If the recruitment/placement agency is a juridical
being, the corporate officers and directors and
partners as the case may be, shall themselves be
jointly and solidarily liable with the corporation or
partnershipfortheclaimsanddamages.
ADMINISTRATIVEACTIONS
POEA
RECRUITMENT AND PLACEMENT
17
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
Originalandexclusivejurisdictiontohearanddecide:
1. All cases which are administrative in character,
involving or arising out of violations of rules and
regulations relating to licensing and registration of
recruitment and employment agencies or entities
and
2. Disciplinaryaction(DA)casesandotherspecialcases
which are administrative in character, involving Ers,
principals, contracting partners and Filipino migrant
workers.
a.ItmaybefiledwiththePOEAAdjudicationOffice
or the DOLE/POEA regional office of the place
wherethecomplaintappliedorwasrecruitedat
the option of the complainant. The office with
which the complaint was first filed shall take
cognizanceofthecase.
b. DA cases and other special cases, as mentioned
in the preceding Section, shall be filed with
POEAAdjudicationOffice.
PERIODS
MandatoryPeriodforResolutionofIllegal
RecruitmentCases
The preliminary investigations (PI) of cases under R.A.
10022 shall be terminated within a period of 30
calendardaysfromthedateoftheirfiling.
IfthePIisconductedbya
prosecutionofficeranda
primafaciecaseis
established
IfthePIisconductedby
ajudgeandaprima
faciecaseisfoundto
exist
Informationshallbefiled
incourtwithin24hours
fromtheterminationof
theinvestigation
Prosecutionofficer
within48hoursfromthe
dateofreceiptofthe
recordsofthecase.(Sec.
11)
PrescriptivePeriodforIllegalRecruitmentCases
SimpleIllegalRecruitment EconomicSabotage
Within5yrsfromthetime
illegalrecruitmenthas
happened
Within20yrsfromthe
timeillegalrecruitment
hashappened.(Sec.
12,R.A.8042)
3.OTHERRELATEDTOPICS
PhilippineOverseasEmploymentAdministration
Q:WhataretheprincipalfunctionsofthePOEA?
A:
1. Protection of the right of Filipino workers
to fair and equitable employment
practices
2. Regulation of private sector participation
in the recruitment and overseas
placement of workers by setting up a
licensingandregistrationsystem
3. Deployment of Filipino workers through
govttogovthiring
4. Formulation, implementation, and
monitoring of overseas employment of
Filipino workers taking into consideration
their welfare and domestic manpower
requirements
5. Shall inform migrant workers not only of
their rights as workers but also of their
rightsashumanbeings,instructandguide
theworkershowtoasserttheirrightsand
provide the available mechanism to
redress violation of their rights. (Sec. 14,
R.A.10022)
6. Implementation, in partnership with
other lawenforcement agencies, of an
intensified program against illegal
recruitment activities. (Sec. 14, R.A.
10022)
Q:MaythePOEA,atanytimeterminateorimpose
abanonemploymentofmigrantworkers?
2. InpursuitoftheNationalInterestor
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MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
18
3. When public welfare so requires. (Sec. 4
R.A.10022)
A:
1. Guaranteed wages for regular hours and
overtime, not lower than the minimum
wageprescribedinalloftheff:
a. Thehostcountry
b. Bilateralagreementsorinternational
conventions ratified by the host
countryandthePhilippines
c. ThePhilippines
2. Free transportation to and from the
worksiteoroffsettingbenefit
3. Free food and accommodation or
offsettingbenefit
4. Just/authorized causes of termination of
thecontractorservicesoftheworker
Q:WhatistheruleondeploymentofOFWs?
A:TheStateshallallowthedeploymentofOFWs:
A:
1. It has existing labor and social laws
protectingtherightsofworkers,including
migrantworkers;
2. It is a signatory to and/or a ratifier of
multilateral conventions, declarations or
resolutions relating to the protection of
workers,includingmigrantworkers;and
3. It has concluded a bilateral agreement or
arrangementwiththegovernmentonthe
protectionoftherightsofOFWs..(Sec.3,
R.A.10022amendingR.A.8042)
Note:Intheabsenceofaclearshowingthatanyofthe
guarantees exists in the country of destination of the
migrant workers, no permit for deployment shall be
issuedbythePOEA.
Q:Whatistheruleonrepatriation?
A:GR:Therepatriationofthe:
1. Worker and the transport of his personal
belongings shall be the primary
responsibility of the agency which
recruited or deployed the worker
overseas.
2. Remains and transport of the personal
belongings of a deceased worker and all
costs attendant thereto shall be borne
bytheprincipaland/orthelocalagency.
XPNs:
1. If the termination of employment is due
solely to the fault of the worker, the
principal/ Er or agency shall not be
responsible for the repatriation of the
formerand/orhisbelongings
2. In cases of war, epidemic, disaster or
calamities, natural or manmade, and
other similar event, and where the
principalorrecruitmentagencycannotbe
identified, the Overseas Workers Welfare
Administration, in coordination with
appropriate international agencies, shall
take charge of the repatriation. (Sec.15,
R.A.8042)
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
of not less than P500,000 but not more than
P1,000,000.(Sec.9,R.A.10022)
A:
1. Regulatory It regulates the private
sector participation in the recruitment
and overseas placement of workers
through its licensing and registration
system.
2. Adjudicatory
a. Administrative cases involving
violations of licensing rules and
regulations and registration of
recruitment and employment
agenciesorentities
b. Disciplinary action cases and other
special cases which are
administrative in character involving
employers, principals, contracting
partnersandFilipinomigrants.
A:UnderR.A.8042,theseare:
1. Prostitution
2. Unjustrefusaltodepartfortheworksite
3. Gunrunning or possession of deadly
weapons
4. Vandalism or destroying company
property
5. Violationofthelawsandsacredpractices
ofthehostcountryandunjustifiedbreach
ofemploymentcontract
6. Embezzlement of funds of the company
orfellowworkerentrustedfordeliveryto
relativesinthePhils.
7. Creating trouble at the worksite or in the
vessel
8. Gambling
9. Initiating or joining a strike or work
stoppage where the laws of the host
countryprohibitsstrikesorsimilaractions
10. Commission of felony punishable by
Philippinelawsorbythehostcountry
11. Theftorrobbery
12. Drunkenness
13. Drugaddictionorpossessionortrafficking
ofprohibiteddrugs
14. Desertionorabandonment
Q:Whatisthedistinctionbetweenthejurisdiction
oftheLAandPOEA?
A:
JURISDICTION
LaborArbiter POEA
Original and exclusive
jurisdiction over all
claims arising out of
ErEe relationship or
byvirtueofanylawor
contract involving
OFWsincludingclaims
for:
1.Actual
2.Moral
3.Exemplary
4.Other forms of
damages. (Sec. 10,
R.A.8042)
Original and exclusive
jurisdictionover:
1. All cases which are
administrative in character
relating to licensing and
registration of recruitment
andemploymentagencies
Q:Whatmattersfalloutsidethejurisdictionofthe
POEA?
A:
1. Foreign judgments such claim must be
brought before regular courts. POEA is
notacourt;itisanadministrativeagency,
exercising adjudicatory or quasijudicial
functions.
2. Torts falls under the provisions of the
CivilCode.
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MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
20
EmploymentofNonResidentAliens
Q: What is required in the employment of non
residentaliens?
A:Yes.GMCsclaimthathiringofaforeigncoachis
anErsprerogativehasnolegalbasis.UnderArt.40
of the LC, an Er seeking employment of an alien
must first obtain an employment permit from the
DOLE. GMCs right to choose whom to employ is
limited by the statutory requirement of an
employmentpermit.(GMCv.Torres,G.R.No.9366,
April22,1991)
Art.41.ProhibitionAgainstTransferofEmployment
A:GR:Onlynonresidentaliens;
XPNS:
1. Diplomatic services and foreign govt
officials
2. Officers and staff of intl organizations
andtheirlegitimatespouses
3. Members of governing board who has
votingrightsonly
4. Thoseexemptedbyspeciallaws
5. Owners and representatives of foreign
principals who interview Filipino
applicantsforemploymentabroad
6. Alienswhosepurposeistoteach,present
and/orconductresearchstudies
7. Resident aliens. (D.O. 7506, May 31,
2006)
A:Aftertheissuanceofanemploymentpermit,the
alienshallnottransfertoanotherjoborchangehis
employerwithoutpriorapprovaloftheSecretaryof
Labor.
A:AnAlienEmploymentRegistrationCertificate.
A:GR:Minimumof1year
XPN:Unlessrevokedandsubjecttorenewal
A:GR:No.
XPNs:
1. Sec. of Justice specifically authorizes the
employmentoftechnicalpersonnel
2. Aliens are elected members of the board
of directors or governing body of
corporationsorassociationsor
3. EnterprisesregisteredundertheOmnibus
Investment Code in case of technical,
supervisory or advisory positions, but for
alimitedperiod.
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
Art.25.PrivateSectorParticipationinthe
RecruitmentandPlacementofWorkers
Q:Whataretheentitiesintheprivatesectorsthat
can participate in recruitment and placement of
workers?
A:
1. Shipping or manning agents or
representatives
2. Privaterecruitmentoffices
3. Publicemploymentoffices
4. Construction contractors if authorized by
the DOLE and Construction Industry
Authority.
5. Persons that may be authorized by the
SLE
6. Private employment agencies. (Sec. 1,
RuleVII,BookI,IRR)
A:
1. Filipino citizens, partnerships or
corporations at least 75% of the
authorized capital stock of which is
owned and controlled by Filipino citizens;
(Art.27,LC)
2. Capitalization
a. Singleproprietorshiporpartnership
A minimum capitalization of P2
million
b. Corporation
A minimum paidup capital of P2
million
Provided,thatthosewithexistinglicenses
shall, within 4 yrs from the effectivity
hereof, increase their capitalization or
paidupcapital,asthecasemaybe,toP2
million at the rate of P250,000.00 every
year.(Art.28,LC)
3. Nototherwisedisqualifiedbylaworother
government regulations to engage in the
recruitmentandplacementofworkersfor
overseas employment. (Rule I, Part II,
POEARules)
4. Paymentofregistrationfees
5. Postingofsurety/cashbonds
A:Bysettingupalicensingandregistrationsystem.
(Sec.14,R.A.10022)
A:
1. Travel agencies and sales agencies of
airlinecompanies;(Art.26,LC)
2. Officers or members of the board of any
corporation or members in a partnership
engaged in the business of a travel
agency;
3. Corporations and partnerships, when any
of its officers, members of the board or
partners,isalsoanofficer,memberofthe
board or partner of a corporation or
partnership engaged in the business of a
travelagency;
4. Persons, partnerships or corporations
which have derogatory records, such as
butnotlimitedtothose:
a. Certified to have derogatory record
or information by the NBI or by the
AntiIllegal Recruitment Branch of
thePOEA;
b. Against whom probable cause or
prima facie finding of guilt for illegal
recruitment or other related cases
exists;
c. Convicted for illegal recruitment or
other related cases and/or crimes
involvingmoralturpitude;and
d. Agencies whose licenses have been
previously revoked or cancelled by
the POEA for violation of R.A. 8042,
P.D. 442 as amended and their
implementing rules and regulations
as well as these rules and
regulations.
5. Any official or Ee of the DOLE, POEA,
OWWA, DFA and other government
agencies directly involved in the
implementation of R.A. 8042 and/or any
of his/her relatives within the 4
th
civil
degreeofconsanguinityoraffinity;and
6. Personsorpartners,officersanddirectors
ofcorporationswhoselicenseshavebeen
previously cancelled or revoked for
violationofrecruitmentlaws.(Sec.2,Rule
I, 2002 Rules and Regulations on the
UST GOLDEN NOTES 2011
22
LABORLAWTEAM:
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MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
Art.26.TravelAgenciesProhibitedtoRecruit
Art.32.FeestobePaidbyWorkers
Q:Whenmayaworkerbechargedanyfee?
A:Onlywhen:
A:
1. Placement fee in an amount equivalent
toonemonthssalaryoftheworkerand
2. Documentationcosts.
LABOR STANDARDS
23
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
C.LABORSTANDARDS
1.HOURSOFWORK
a.Coverage/Exclusions
Q:Whodeterminesworkingconditions?
A:Generally,theyaredeterminedbytheemployer,
as he is usually free to regulate, according to his
discretion,allaspectsofemployment.
Q:Whatisthelimitationontheemployerspower
toregulateworkingconditions?
Q:Whendoestheconditiononemploymentunder
theLaborCodeapply?
A:OnlyifanErEerelationshipexists.
Q:Whoaretheemployeesthatarecoveredbythe
conditionsofemployment?
A:GR:ItappliestoallEesinallestablishments.
XPN:
1. Govtemployees
2. Managerialemployees
3. Fieldpersonnel
4. The employers family members who
dependonhimforsupport
5. Domestic helpers and persons in the
personalserviceofanother,and
6. Workers who are paid by results as
determinedunderDOLEregulations
Q:Whoaregovernmentemployees(Ees)?
A:TheyareEesofthe:
1. NationalGovernment
2. Anyofitspoliticalsubdivisions
3. Including those employed in GOCCs with
originalcharters.
Q:WhatlawgovernsgovernmentEes?
A:TheCivilServiceLaw,rulesandregulations.
Q:WhoaremanagerialEes?
Theymustmeetalloftheff.conditions,namely:
Q:WhyaremanagerialEesnotcovered?
Q:Whoarefieldpersonnel?
A:Theyare:
1. nonagriculturalemployees
2. whoregularlyperformtheirduties
3. away from theprincipal place of business
orbranchofficeoftheemployer;and
4. whose actual hours of work in the field
cannot be determined with reasonable
certainty.
Q:Whoareworkerspaidbyresults?
A:Theyare:
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
24
1. paidbasedontheworkcompleted;and
2. notonthetimespentinworking
3. including those who are paid on piece
work, takay, pakiaw, or task basis if
their output rates are in accordance with
thestandardsprescribed.
A:Thosewho:
A:No,thepersonnelisnotadomestichelperbuta
regularemployeeofthecompany.
A:
1. Managerial Ee One who is vested with
the powers or prerogatives to lay down
and execute management policies and/or
to hire, transfer, suspend, layoff, recall,
discharge,assignordisciplineEes.
2. SupervisoryEethosewhointheinterest
of the Er, effectively recommend such
managerial actions if the exercise of such
authority is not merely routinary or
clerical in nature but requires the use of
independentjudgment.
3. RankandFileEeallEesnotfallingwithin
anyoftheabovedefinitions.(Art.212[m])
b.Normalhoursofwork
Q:WhatarethenormalhoursofworkofanEe?
A:Itshouldnotexceed8hoursinageneralworking
day.
Q:Whatareconsideredhoursworked?
A:
1. AlltimeduringwhichanEeisrequiredto
be:
a. Onduty,or
b. AttheErspremises,or
c. Ataprescribedworkplace
A:
1. All hours which the Ee is required to give
to his Er regardless of whether or not
such hours are spent in productive labor
orinvolvephysicalormentalexertion.
2. Rest period is excluded from hours
worked, even if Ee does not leave his
workplace,itbeingenoughthat:
a. Hestopsworking
b. Mayrestcompletely
c. May leave his workplace, to go
elsewhere, whether within or
outside the premises of the
workplace
3. All time spent for work is considered
hoursworkedif:
a. The work performed was
necessary
b. IfitbenefitedtheEr
c. OrtheEecouldnotabandonhis
work at the end of his normal
working hours because he had
noreplacement
d. Provided,theworkwaswiththe
knowledge of his Er or
immediatesupervisor
4. ThetimeduringwhichanEeisinactiveby
reasons of interruptions in his work
beyond his control shall be considered
workingtime:
a. If the imminence of the
resumption of the work
requires the Ees presence at
theplaceofworkor
b. If the interval is too brief to be
utilized effectively and gainfully
in the Ees own interest. (Sec. 4,
RuleI,BookIII,IRR)
LABOR STANDARDS
25
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
(a)Exceptions:HealthPersonnel&Compressed
WorkWeek
HealthPersonnel
A:
1. Health personnel in cities and
municipalities with a population of at
least1million;or
2. Hospitals and clinics with a bed capacity
ofatleast100
Note:Art.83(2)donotrequirehospitalstopaythe
Ees a full weekly salary with paid 2 days off. (San
Juan de Dios Ees Assoc.AFW et al. vs. NLRC, G.R.
No.126383,Nov.28,1997)
CompressedWorkweek
Q:Whatisacompressedworkweek?
A:
1. The Er shall notify the DOLE through the
Regional Office which has jurisdiction
over the workplace, of the adoption of
compressedworkweek.
2. The notice shall be in Report Form
attachedtotheadvisory.
3. The Regional Office shall conduct an
ocular visit to validate whether the
adoption of the flexible work
arrangements is in accordance with this
issuance.(DepartmentAdvisoryOrderNo.
2,Seriesof2009)
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
26
c.WorkinterruptionduetobrownoutS
Q: What are the guidelines on power
interruptions?
A:
1. Brownouts of short duration but not
exceeding 20 minutes shall be treated as
worked or compensable hours whether
usedproductivelybytheemployees(Ees)
ornot.
d.MealBreak
Q:Whatisthedurationofthemealperiod?
A: Every Er shall give his Ees not less than 60
minutesor1hourtimeoffforregularmeals.
Q:Isthemealperiodcompensable?
A: Being timeoff, it is not compensable. Employee
mustbecompletelyrelievedfromduty.
Q: When is the meal period considered
compensable?
A: It is compensable where the lunch period or
mealtime:
1. Ispredominantlyspentfortheemployers
benefit;or
2. Whereitislessthan20minutes
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
d. Value of the benefits derived by the
Ees from the proposed work
arrangements is equal to or
commensurate with the
compensation due them for the
shortenedmealperiodaswellasthe
OTpayfor30minutesasdetermined
bytheEesconcerned;
e. OT pay will become due and
demandable after the new time
schedule
f. Arrangement is of temporary
duration.
e.Idletime,waitingtime,commutingtime/travel
time,whetherpartofhoursofworkornot
Q:Whenidletimeisconsideredworkingtime?
A: Whentheemployeeisidleorinactivebyreason
of interruptions beyond his control shall be
consideredworkingtime.
Q:Wheniswaitingtimeconsideredworkingtime?
A:
1. Ifwaitingisanintegralpartofhiswork,or
2. TheEeisrequiredorengagedbytheErto
wait(engagedtowait)
XPNS:
a. Emergency call outside his regular
working hours where he is required
to travel to his regular place of
businessorsomeotherworksite.
b. Done through a conveyance
providedbytheemployer(Er).
c. Done under the supervision and
controloftheEr.
d. Done under vexing and dangerous
circumstance.
3. Travelawayfromhome
GR:
a. Travel that requires an overnight
stay on the part of the Ee when it
cutsacrosstheEesworkdayisclearly
workingtime.
b. Thetimeisnotonlyhoursworkedon
regular workdays but also during
corresponding working hours on
nonworking days. Outside of these
regular working hours, travel away
from home is not considered
workingtime.
A:Alloftheff.conditionsmustbepresent:
1. Attendance is outside of the employers
regularworkinghours
2. Attendanceisinfactvoluntaryand
3. The employee does not perform any
productiveworkduringsuchattendance.
f.Overtimework:Undertimeoffsetbyovertime,
Waiverofovertime
Q:Whatisovertimework(OT)?
A: Work performed beyond 8 hours within the
workers24hourworkday.
Note: Express instruction from the employer (Er) to
the employee (Ee) to render OT work is not required
fortheEetobeentitledtoOTpay;itissufficientthat
the Ee is permitted or suffered to work. However,
written authority after office hours during rest days
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
28
and holidays are required for entitlement to
compensation.
Q:Whatisaworkday?
A: The 24hour period which commences from the
timetheemployeeregularlystartstowork
e.g. If the worker starts to work 8 am today, the
workdayisfrom8amtodayupto8amtomorrow.
Q:WhatistherationalebehindOTpay?
A: Employee is made to work longer than what is
commensurate with his agreed compensation for
the statutory fixed or voluntarily agreed hours of
laborheissupposedtodo.(PNBvs.PEMAandCIR,
G.R.No.L30279,July30,1982)
Discourages the employer (Er) from requiring such
work thus protecting the health and wellbeing of
the worker, and also tend to remedy
unemployment by encouraging Ers to employ
othersworkerstodowhatcannotbeaccomplished
duringthenormalhoursofwork.
Q:DistinguishOvertimepayfrompremiumpay.
A:
OVERTIMEPAY PREMIUMPAY
Additional
compensation for
work performed
beyond 8 hours
on ordinary days
(within the
workers 24hour
workday)
Additionalcompensationforwork
performedwithin8hoursondays
when normally he should not be
working (on nonworking days,
such as rest days and special
days.)
But additional compensation for
work rendered in excess of 8
hours during these days is also
consideredOTpay.
Q:WhataretheOTpayrates?
A:
PAYRATES
OTduringaregularworkingday
Additionalcompensationof25%oftheregularwage
OTduringaholidayorrestday
Rateofthefirst8hoursworkedon
plusatleast30%oftheregularwage(RW):
ifdoneonaspecialholidayORrestday:
30%of130%ofRW
IfdoneonaspecialholidayANDrestday:
30%of150%ofRW
ifdoneonaregularholiday:
30%of200%ofRW
Q:WhatisthebasisofcomputingtheOTpayand
additionalremuneration?
A:Regularwagewhichincludesthecashwageonly,
without deduction on account of facilities provided
bytheemployer.(Art.90)
Q: In lieu of OT pay, the employee was given
permission to go on leave on some other day, is
thatvalid?
A:No.Permissiongiventotheemployee(Ee)togo
on leave on some other day of the week shall NOT
exempt the employer from paying the additional
compensation required because it would prejudice
theEe,forhewillbedeprivedoftheadditionalpay
for the OT work he has rendered and which is
utilized to offset the undertime he may have
incured. Undertime could be charged against the
Eesaccruedleave.
Q: Socorro is a clerktypist in the Hospicio de San
Jose, a charitable institution dependent for its
existence on contributions and donations from
wellwishers.Sherenderswork11hoursadaybut
hasnotbeengivenOTpaysinceherplaceofwork
isacharitableinstitution.IsSocorroentitledtoOT
pay?Explainbriefly.
A:Yes.SocorroisentitledtoOTcompensation.She
does not fall under any of the exceptions to the
coverage of Art. 82, under the provisions of hours
of work. The Labor Code is equally applicable to
nonprofit institutions. A covered Ee who works
beyond 8 hours is entitled to OT compensation.
(2002BarQuestion)
Q: Flores applied for the position of driver in the
motorpool of Gold Company, a multinational
corporation. Danilo was informed that he would
frequently be working OT as he would have to
drive for the company's executives even beyond
the ordinary 8hour work day. He was provided
with a contract of employment wherein he would
be paid a monthly rate equivalent to 35 times his
dailywage,regularsickandvacationleaves,5day
leavewithpayeverymonthandtimeoffwithpay
LABOR STANDARDS
29
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
when the company's executives using the cars do
not need Danilo's service for more than eight
hoursaday,inlieuofOT.Aretheaboveprovisions
ofthecontractofemploymentinconformitywith,
orviolativeof,thelaw?
A: Except for the provision that Danilo shall have
time off with pay when the company's executives
usingthecarsdonotneedDanilo'sserviceformore
than 8 hours a day, in lieu of OT, the provisions of
the contract of employment of Danilo are not
violative of any labor law because they instead
improve upon the present provisions of pertinent
laborlaws.
Q: May an employee be compelled to render OT
work?
A:GR:No.OTworkisvoluntary.
(a)UndertimenotoffsetbyOvertime
Q:Canundertime(UT)offsetOT?
(b)WaiverofOvertimepay
Q:CantherighttoOTpaybewaived?
A:GR:TherighttoOTpaycannotbewaivedasit
is governed by law and not merely by the
agreementoftheparties.
XPN:
1. If the waiver is done in exchange for
certain valuable benefits and privileges,
which may even exceed the OT Pay,
waivermaybepermitted.
2. Compressedworkweek
g.Nightwork
Q:Whatisnightwork?
30
between midnight and 6am of the
followingday.
3. Agricultural undertaking at nighttime
unless she is given period of rest not less
than9consecutivehours.
XPNS:
1. Actualorimpendingemergencies
a. Caused by serious accident, fire,
flood, typhoon, earthquake,
epidemic, other disasters, or
calamity
b. Topreventlossoflifeorpropertyor
c. Incaseofforcemajeureor
d. Imminentdangertopublicsafety
2. Urgentwork
a. To be performed on machineries,
equipmentorinstallations,
b. To avoid serious loss which the Er
wouldotherwisesuffer
3. Work is necessary to prevent serious loss
toperishablegoods
4. WomanEes
a. Holds a responsible position of
managerialortechnicalnature,or
b. Has been engaged to provide health
andwelfareservices
5. Natureofthework
a. Requires the manual skill and
dexterityofwomenworkersand
b. The same cannot be performedwith
equalefficiencybymaleworkers
6. Women Ees are immediate members of
theestablishmentorundertaking
7. In analogous cases exempted by the SLE
inappropriateregulations.(Art.131)
Q:Whatisnightshiftdifferential(NSD)?
A: It is additional compensation of not less than
10% of an Ees regular wage for every hour worked
between10:00pmto6:00am,whetherornotsuch
periodispartoftheworkersregularshift.
Q:WhoareentitledtoNSD?
A:GR:NSDappliestoallemployees(Ees).
XPN:
1. Ees of the Govt and any of its political
subdivisions,includingGOCCs.
2. Retail and service establishments
regularly employing not more than 5
workers.
3. Includestaskandcontractbasis
4. Domestic helpers and persons in the
personalserviceofanother.
5. Field personnel and Ees whose time and
performance is unsupervised by the
employer
6. ManagerialEes
Q:MayanemployeewaivetherighttoNSD?
A: GR: No, such waiver is against public policy.
(Mercury Drug Co., Inc. vs. Dayao, et al., G.R.
No.L30452,Sep.30,1982)
XPN:Higher/betterbenefits
h.CBAprovisionvisvisovertimework
Q:Maytheovertimeratebesubjecttostipulation
oftheEeandEr?
A: Generally, the premium for work performed on
the employees rest days or on special days or
regular holidays are included as part of the regular
rate of the employee in the computation of
overtime pay for any overtime work rendered on
said days especially if the employer pays only the
minimum overtime rates prescribed by law. The
employees and employer, however, may stipulate
in their collective agreement the payment of
overtime rates higher than those provided by law
and excludethepremiumratesinthecomputation
of overtime pay. Such agreement may be
consideredvalidonlyifthestipulatedovertimepay
rates will yield to the employees not less than the
minimumprescribedbylaw.
2.WAGES
Q:Whatisawage?
A: It is the remuneration or earnings, however
designated, capable of being expressed in terms of
money, whether fixed or ascertained on a time,
task, piece, or commission basis, or other method
of calculating the same, payable by an employer
(Er) to an employee (Ee) under a written or
unwrittencontractofemployment:
1. For work done or to be done, or for
services rendered or to be rendered; and
includes
LABOR STANDARDS
31
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
2. Fair and reasonable value of board,
lodging, or other facilities customarily
furnished by the Er to the Ee as
determinedbySLE.
Q:Whatdoyoumeanbycustomary?
XPN: Thelaborerwasable,willingandreadyto
workbutwas:
1. Preventedbymanagement;
2. Illegallylockedout;
3. Illegallysuspended;
4. Illegallydismissed
5. Otherwise illegally prevented from
working. (Aklan Electric Coop. v. NLRC,
G.R.No.129246,Jan.25,2000)
b.CoverageandExclusions
Q:Towhomdoesthetitleonwagesapply?
A:GR:Itappliestoallemployees
XPN:
1. Farmtenancyorleasehold;
2. Household or domestic helpers, including
family drivers and persons working in the
personalserviceofanother;
3. Home workers engaged in needlework or
in any cottage industry duly registered in
accordancewithlaw;
4. Workers in duly registered cooperatives
when so recommended by the Bureau of
Cooperative Development and upon
approval of the Secretary of Labor and
Employment.
5. Workers of a barangay micro business
enterprise(R.A.9178)
c.FacilitiesandSupplements
Q:Distinguishbetweenfacilitiesandsupplement
A:
FACILITIES SUPPLEMENT
Items of expenses
necessary for the laborers
and his familys existence
andsubsistence
Note:Doesnotincludetools
oftradeorarticles/services
primarily for the benefit of
the Er or necessary to the
conductoftheErsbusiness.
Extra remuneration or
special privileges or
benefits given to or
received by the laborers
over and above their
ordinary earnings or
wages (Atok Big Wedge
Mining Co. v. Atok Big
Wedge Mutual Benefit
Assoc, G.R. No. L7349,
July19,1955).
Formspartofthewage Independentofwage
Deductiblefromwage Notwagedeductible
For the benefit of the
workerandhisfamily.
Granted for the
convenienceoftheEr.
Q:Whatisthecriterionindeterminingwhetheran
itemisasupplementorfacility?
A:Thecriterionisnotsomuchwiththekindofthe
benefit or item (food, lodging, bonus or sick leave)
given, but its purpose. (State Marine v. Cebu
SeamensAssn.,G.R.No.L12444,Feb.28,1963)
Q:Whencanthecostoffacilitiesfurnishedbythe
ErbechargedagainstanEe?
A:InorderthatthecostbechargedagainsttheEe,
the latters acceptance of such facilities must be
voluntary.
Q:Whataretherequirementsfordeductingvalues
forfacilities?
A:
1. Proof must be shown that such facilities
arecustomarilyfurnishedbythetrade
2. Theprovisionofdeductiblefacilitiesmust
bevoluntarilyacceptedinwriting
3. The facilities must be charged at fair and
reasonable value (Mabeza v. NLRC, G.R.
No.118506,April18,1997)
32
provided and indeed constituted facilities, such
facilities could not be deducted without the Er
complying first with certain legal requirements.
(Mabezav.NLRC,G.R.No.118506,April18,1997)
d.Wagesv.Salaries
Q:Distinguishbetweenwageandsalary?
A:
WAGE SALARY
(Gaavs.CA,G.R.No.44169,Dec.3,1985)
Compensationformanual
labor(skilledorunskilled)
alsoknownasblue
collaredworkers,paidat
statedtimesand
measuredbytheday,
week,monthorseason.
Paidtowhitecollared
workersanddenotes
higherdegreeof
employmentora
superiorgradeofservices
andimpliesapositionin
office.
Considerablepayfora
lowerandless
responsiblecharacterof
employment.
Outgestureofalarger
andmoreimportant
service
GR:Notsubjectto
execution
XPN:Debtsincurredfor
food,shelter,clothingand
medicalattendance.
Subjecttoexecution.
e.WageDistortion
Q:Whatiswagedistortion(WD)?
A:
1. An existing hierarchy of positions with
correspondingsalaryrates.
2. A significant change or increase in the
salary rate of a lower pay class without a
corresponding increase in the salary rate
ofahigherone;
3. The elimination of the distinction
betweenthe2groupsorclasses;and
4. The WD exists in the same region of the
country. (Alliance Trade Unions v. NLRC,
G.R.No.140689,Feb.17,2004)
Q:IstheErlegallyobligedtocorrectWD?
Q:WhatarethebasicprinciplesinWD?
A:
1. The concept of WD assumes an existing
group or classification of Ees which
establishes distinctions among such Ees
onsomerelevantorlegitimatebasis.This
classification is reflected in a differing
wagerateforeachoftheclassesofEes
2. Often results from govt decreed
increasesinminimumwages.
3. Should a WD exist, there is no legal
requirement that, in the rectification of
that distortion by readjustment of the
wage rates of the differing classes of Ees,
the gap which had previously or
historically existed be restored in
precisely the same amount. In other
words, correction of a WD may be done
by reestablishing a substantial or
significant gap (as distinguished from the
historicalgap)betweenthewageratesof
thedifferingclassesofEes.
4. The reestablishment of a significant
differenceinwageratesmaybetheresult
of resort to grievance procedures or
collective bargaining negotiations. (Metro
Transit Org., Inc. v. NLRC, G.R. No.
116008,July11,1995)
A:
Organized
Establishment
(withunion)
Unorganized
Establishments
(withoutunion)
TheErandtheunion
shallnegotiateto
correctdistortion.
TheErandtheworkers
shallendeavortocorrect
thedistortion.
Anydisputeshallbe
resolvedthrougha
grievanceprocedure
undertheCBA.
Anydisputeshallbe
settledthroughtheNCMB.
Ifitremainsunresolved,
itshallbedealtwith
throughvoluntary
arbitration.
Ifitremainsunresolved
within10daysitshallbe
referredtotheNLRC.
Thedisputewillbe
resolvedwithin10days
fromthetimethe
disputewasreferredto
voluntaryarbitration.
TheNLRCshallconduct
continuoushearingsand
decidethedisputewithin
20daysfromthetimethe
samewasreferred.
LABOR STANDARDS
33
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
Q: Can the issue of WD be raised in a notice of
strike?
f.CBAprovisionvisvisWageOrderCBACredibility
Q:DistinguishCBAandWageOrder.
A:
CBA WAGEORDER
Not an ordinary
contract. It can be
entered into only by an
exclusive bargaining
agentorunit.
Administrative issuance
which results from a
statute(RA6727)
If the CBA provides
betterbenefitsthenthe
employees shall be
entitledtothesame.
Onlysetstheminimum
g.Nondiminutionofbenefits
Q: What is the concept of nondiminution (ND) of
benefits?
A: GR: Benefits being given to employees (Ees)
cannot be taken back or reduced unilaterally by
the employer (Er) because the benefit has
become part of the employment contract,
whetherwrittenorunwritten.
XPN:Tocorrectanerror,otherwise,iftheerroris
notcorrectedforareasonabletime,itripensinto
a company policy and Ees can demand it as a
matterofright.
Q:WhenisNDofbenefitsapplicable?
A: It is applicable if it is shown that the grant of
benefit:
1. Is based on an express policy of the law;
or
2. Has ripened into practice over a long
period of time and the practice is
consistent and deliberate and is not due
to an error in the construction/
application of a doubtful or difficult
questionoflaw.
h.Workerspreferenceincaseofbankruptcy
Q:Whatisbankruptcy?
A: BankruptcyisreferredtointhePhilippinesas
Insolvency. It denotes the state of an entity or
personthathasliabilitiesgreaterthanitsassets.
34
1. Declaration of bankruptcy or judicial
liquidation before enforcement of the
workerspreferentialright;
2. Filingofclaimsbyworkers;
3. Therightdoesnotconstitutealientothe
property of the insolvent debtor in favor
ofworkers.(DBPvs.NLRC,G.R.No.82763
Mar. 19, 1990 and G.R. No. 97176, Mar.
18,1993);
4. ThepreferenceinfavoroftheEesapplies
to discharge of funds. The preference
does not only cover unpaid wages, it also
extends to termination pay and other
monetaryclaims;
Note: Termination pay, after all, is
considered as additional remuneration for
services rendered to the employer for a
certainperiodoftime;itiscomputedonthe
basisoflengthofservice.(PNBvs.Cruz,G.R.
No.80593,Dec.18,1989)
5. Applicable only to ordinary preferred
credit, hence, must yield to special
preferredcredits.
(a) Incaseswheretheworkerisinsuredwith
his consent by the employer, and the
deductionistorecompensetheemployer
for the amount paid by him as premium
ontheinsurance;
(b) For union dues, in cases where the right
of the worker or his union to check off
has been recognized by the employer or
authorized in writing by the individual
workerconcerned;and
LABOR STANDARDS
35
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
(c) Incaseswheretheemployerisauthorized
by law or regulations issued by the
SecretaryofLabor.
Art117DeductiontoEnsureEmploymentItshallbe
unlawfultomakeanydeductionfromthewagesof
anyemployeeforthebenefitoftheemployerorhis
representative or intermediary as consideration of
a promise of employment or retention in
employmentorretentioninemployment.
j.Allowabledeductionswithoutemployees
consent
Q:Whatistheruleinwagedeductions?
A:
GR:Itisstrictlyprohibited
XPN:
1. Deductions under Art. 113 for insurance
premiums
2. Unionduesincaseswheretherightofthe
workerorhisuniontocheckoffhasbeen
recognized by the employer (Er) or
authorized in writing by the individual
worker concerned (Art. 113). Art. 241(o)
providesthatspecialassessmentsmaybe
validly checkedoff provided that there is
an individual written authorization duly
signedbyeveryemployee(Ee).
3. DeductionsforSSS,MedicareandPagibig
premiums
4. TaxeswithheldpursuanttotheTaxCode
5. Deductions under Art. 114 for loss or
damagetotools,materialsorequipments
6. Deductions made with the written
authorization of the Ee for payment to a
third person. (Sec 13, Rule VIII,Book III of
theIRR)
7. Deductions as disciplinary measures for
habitual tardiness (Opinion dated March
10,1975oftheSLE)
8. AgencyfeesunderArt.248(e)
9. Deductions for value of meals and
facilitiesfreelyagreedupon
10. IncasewheretheEeisindebtedtotheEr
where such indebtedness has become
due and demandable. (Art. 1706, Civil
Code)
11. Incourtawards,wagesmaybesubjectof
execution or attachment, but only for
debts incurred for food, shelter, clothing,
and medical attendance. (Art. 1703, Civil
Code)
12. Salarydeductionofamemberofalegally
established cooperative. (R.A. 6938, Art.
59)
k.Attorneysfees
Q:Whatisordinaryattorneysfee?
UST GOLDEN NOTES 2011
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MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
36
A: It is the reasonable compensation paid to a
lawyer by his client for the legal services he has
rendered.
Q:Whatisextraordinaryattorneysfee?
Q:Whatisunionservicefee?
Q:Whatissalaryceilingmethod?
LABOR STANDARDS
37
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
A: A method of minimum wage adjustment
whereby the wage adjustment is applied to Ees
receiving a certain denominated ceiling. In other
words, workers already being paid more than the
existingminimumwagearealsotobegivenawage
increase. (ECOP v. NWCP, G.R. No. 96169, Sep. 24,
1991)
Q:Whatisafloorwagemethod?
A:Itinvolvesthefixingofadeterminateamountto
beaddedtotheprevailingstatutoryminimumwage
rates.
A:TheWageOrderisvalidinsofarasthemandated
increase applies to Ees earning the prevailing
minimum wage rate at the time of the passage of
the Wage Order and void with respect to its
application to Ees receiving more than the
prevailing minimum wage rate at the time of the
passage of the Wage Order. Pursuant to its
authority, the Regional Wage Boards may issue
wage orders which set the daily minimum wage
rates. In the present case, the Regional Wage
Board did not determine or fix the minimum wage
rate.Itdidnotsetawagelevelnorarangetowhich
a wage adjustment or increase shall be added.
Instead, it granted an acrosstheboard wage
increase of P15.00 to all Ees in the region. In doing
so,theRegionalWageBoardexceededitsauthority
by extending the coverage of the Wage Order to
wage earners receiving more than the prevailing
minimumwagerate,withoutadenominatedsalary
ceiling.TheWageOrdergrantedadditionalbenefits
notcontemplatedbyR.A.No.6727.(MBTCvNWPC
Commission,G.R.No.144322,Feb.6,2007)
A:No.TheEesshouldnotrefundthewageincrease
that they received under the invalidated Wage
Order.Beingingoodfaith,theemployeesneednot
refund the benefits they received. Since they
received the wage increase in good faith, in the
honest belief that they are entitled to such wage
increaseandwithoutanyknowledgethattherewas
no legal basis for the same, they need not refund
the wage increase that they already received.
(MBTC v NWPC Commission, G.R. NO. 144322, Feb.
6,2007)
3.RESTDAY
a.Righttoweeklyrestday,Preferemceofthe
employee,whenworkonrestdayauthorized
Q:Whatistherighttoweeklyrestday(WRD)?
A: Every employer shall give his employees a rest
period of not less than 24 consecutive hours after
every6consecutivenormalworkdays.(Sec.3,Rule
III,BookIII,IRR)
Q:WhatisthescopeofWRD?
A:Itshallapplytoallemployerswhetheroperating
for profit ornot, including public utilities operated
byprivatepersons.(Sec.1,RuleIII,BookIII,IRR)
Q:WhodeterminestheWRD?
A:GR:ErshalldetermineandscheduletheWRDof
hisEe.
XPNs:
1. CBA
2. RulesandregulationsastheSLEprovides
3. Preference of employee (Ee) based on
religious grounds Ee shall make known
his preference in writing at least 7 DAYS
beforethedesiredeffectivityoftheinitial
rest day so preferred. (Sec. 4(1), Rule III,
BookIII,IRR)
A:Ershallmakeknownrestperiodbymeansof:
1. Writtennotice
2. Postedconspicuouslyintheworkplace
3. At least 1 week before it becomes
effective.(Sec.5,RuleIII,BookIII.IRR)
UST GOLDEN NOTES 2011
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MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
38
A:GR:No.
XPN:
1. Urgent work to be performed on the
machinery, equipment or installation, to
avoid serious loss which the Er would
otherwisesuffer;
2. Nature of work requires continuous
operations for 7 days in a week or more
and stoppage of the work may result in
irreparableinjuryorlosstotheEr;
3. Abnormalpressureofworkduetospecial
circumstances, where the Er cannot be
ordinarily expected to resort to other
measures;
4. Actualorimpendingemergencies(serious
accident,fire,flood,typhoon,earthquake,
etc.)
5. Prevent loss or damage to perishable
goods;
6. Analogous or similar circumstances as
determinedbytheSLE;
7. Work is necessary to avail of favorable
weather or environmental conditions
where performance or quality of work is
dependentthereon.
Q.WhatistherulewhenanEevolunteerstowork
onhisrestdayunderothercircumstances?
A:Heshallexpressitinwritingsubjecttoadditional
compensation.(Sec.6[2],RuleIII,BookIII,IRR)
Q:Whatispremiumpay?
Q:CantheErandEeagreeontherateofpremium
payotherthanthatprovidedbylaw?
A:
INSTANCES
RATESOFADDITIONAL
COMPENSATION
Workonascheduled
restday
+30%PremiumPay(PP)
of100%regularwage
(RW).(Sec.7,RuleIII,Book
III,IRR)
Workhasnoregular
workdaysandrestdays
(Ifperformedon
SundaysandHolidays)
+30%PPof100%RW.
(Sec.7,RuleIII,BookIII,
IRR
WorkonaSunday
(IfEesscheduledrest
day)
+30%PPof100%RW.
(Sec.7,RuleIII,BookIII,
IRR)
Workperformedonany
SpecialHoliday
1st8hrs:+30%PPof
100%RW
Excessof8hrs:+30%of
hourlyrateonsaiddate.
(M.C.No.10,Seriesof
2004)
Workperformedona
SpecialHolidayand
samedayisthe
scheduledrestday
1st8hrs:+50%PPof
100%regularwage
Excessof8hrs:+30%of
hourlyrateonsaiddate.
(M.C.No.10,Seriesof
2004)
Workperformedona
SpecialWorkingHoliday
Eeisonlyentitledtohis
basicrate.NoPPis
required.
Reason:Workperformed
isconsideredworkon
ordinaryworkingdays.
(Sec.7,RuleIII,BookIII,
IRR)
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
tolaw,morals,goodcustoms,publicorderorpublic
policy for an Er and Ee to enter into a contract
where the Ees compensation that is agreed upon
alreadyincludesalltheamountsheistoreceivefor
OT work and for work on weekly rest days and
holidaysandfornightdifferentialpayforlatenight
work.(1996BarQuestion)
4.HOLIDAYS
a.RighttoHolidayPay
Q:Whatisholidaypay(HP)?
A: It is a premium given to employees (Ees)
pursuanttolawevenifhehasnotbeensufferedto
work on a regular holiday. It is limited to the 11
regular holidays, also called legal holidays listed by
law. The employee (Ee) should not have been
absent without pay on the working day preceeding
theregularholiday.
Q:Whataretheclassesofspecialdays(SD)?
A:
1. NationalSpecialPublicHoliday
GR:Nonworkingdays
XPN:Otherwisedeclaredbythe
President
NATIONALSPECIALDAYS DATE
AllSaintsDay November1
LastDayoftheYear December31
NinoyAquinoDay August21
Otherdaysdeclaredbylaw
1. SpecialNonworking
days
2. SpecialPublicHolidays
3. SpecialNational
Holiday
4. SpecialHoliday(forall
schools)
a. EdsaRevolution
Anniversary
December24
February25
LOCALSPECIALDAYS
Thosedeclaredby:
1. Lawor
2. Ordinance
e.g.Maniladay(in
Manilaonly)
Q:Whatareregularholidays(RH)?
A: They are compensable whether worked or
unworked subject to certain conditions. They are
also called legal holidays. The following are
considered regular holidays. (Presidential
ProclamationNo.18)
REGULARHOLIDAYS DATE
NewYearsDay January1
MaundyThursday April21
GoodFriday April22
EidlFitr MovableDate
ArawngKagitingan April9
LaborDay May1
IndependenceDay June12
NationalHeroesDay
Aug.29(lastMondayof
August)
BonifacioDay Nov.30
ChristmasDay December25
RizalDay Dec.30
40
Q: Can a Muslim Ee working outside the Muslim
area be compelled to work during the observance
oftheMH?
A: GR: No. Muslim Ees shall be excused from work
during MH without diminution of salary or
wages.
Q:DistinguishRHfromSD.
A:
REGULARHOLIDAY SPECIALHOLIDAY
IfUnworked
Regularpay
(subject to certain
conditions for daily paid
Ees)
NoPay
Ifworked
2xregularpay(200%)
+ 30% premium pay of
100%regularwage
Othermatters
Setbylaw Setbyproclamation
Limited to those provided
underArt.94,LC
Notexclusive
Q:WhoareentitledtoHP?
A:GR:Allemployees(Ees)areentitled.(Sec.1,Rule
IV,BookIII,IRR)
XPNS:
1. Govt Ees and any of its political
subdivisions, including GOCCs (with
originalcharter)
2. Retail and service establishments
regularlyemployinglessthan10workers
3. Domestic helpers and persons in the
personalserviceofanother
4. Ee engaged on task or contract basis or
purelycommissionbasis
5. MembersoftheFamilyoftheErwhoare
dependentonhimforsupport
6. Managerial Ee and other member of the
managerialstaff
7. Field personnel and other Ee whose time
andperformanceareunsupervisedbythe
Er
8. Eepaidfixedamountforperformingwork
irrespective of the time consumed in the
performance thereof. (Sec. 1, Rule IV,
BookIII,IRR)
Q:Whatareretailestablishments?
A: They are engaged in the sale of goods to end
usersforpersonalorhouseholduse.(e.g.Grocery)
Q:Whatareserviceestablishments?
A: They are engaged in the sale of services to
individualsfortheirownorhouseholduse.(e.g.TV
repairshop)
Q:Isanexerciseofprofessionretailorservice?
A:Itisneitherretailnorservice.
Q:MayanErrequireanEetoworkonRH?
A:
FORMULASTOCOMPUTEWAGESON
REGULARHOLIDAYS(RH)
(M.C.No.10,Seriesof2004)
RHonEesregular
workday
RHonEesrestday
Ifunworked
100%
e.g.300Php(RW)
Ifworked(1st8hrs)
200%
e.g.300(RW)
+300
600=TotalWage(TW)
+30%of200%
e.g600(200%ofRW)
X0.3
180
180+600=780(TW)
Ifworked(OT)(excessof8hrs)
230%
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
Q: Distinguish between monthly paid and daily
paidEes.
A:
MonthlyPaidEes DailyPaidEes
One who is paid his wage or
salary for everyday of the
month, including rest days,
Sundays, regular or special
days, although he does not
regularlyworkonthesedays.
(2)InCaseofTemporaryCessationofWork
Q: What is the effect in case there is a temporary
or periodic shutdown and temporary cessation of
work?
A:
TEMPORARYORPERIODICSHUTDOWNand
TEMPORARYCESSATIONOFWORK
(Sec.7,RuleIV,BookIII,IRR)
Instances Rule:
1. Yearlyinventoryor
2. When the repair or
RH falling within the
period shall be
cleaning of machineries
isundertaken
compensated.
Due to business reverses
(cessation as authorized by
theSec.ofLabor)
RH may not be paid
bytheEr
(3)HolidayPayofTeachers,Pieceworkers,
seafarers,seasonalworkers
Q:WhataretheHPsofcertainemployees?
A:
EMPLOYEES RULE
Private school
teachers (Faculty
members of
colleges and
universities)
1. RH during semestral
vacations
- NotentitledtoHP
2. RH during Christmas
vacation
- ShallbepaidHP
Eepaidby:
1. resultsor
2. output
(Piece work
payment)
HP shall not be less than his
average daily earnings for the
last 7 actual work days
precedingtheRH.
Provided: HP shall not be less
than the statutory minimum
wagerate.
SeasonalWorkers
MaynotbepaidtherequiredHP
duringoffseasonwheretheyare
notatwork.
Workers having no
regularworkdays
ShallbeentitledtoHP
Seafarers ShallbeentitledtoHP
A:
1. If during regular holiday No. Art. 94 of
LC is silent with respect to faculty members
paidbythehourwhobecauseoftheirteaching
contracts are obliged to work and consent to
be paid only for work actually done (except
when an emergency or a fortuitous event or a
national need calls for the declaration of
special holidays). RH specified as such by law
areknowntobothschoolandfacultymembers
as "no class days" certainly the latter do not
expect payment for said unworked days, and
this was clearly in their minds when they
enteredintotheteachingcontracts.(JoseRizal
Collegev.NLRC,G.R.No.65482,Dec.1,1987)
2. IfduringspecialpublicholidaysYes.The
law and the IRR governing HP are silent as to
payment on Special Public Holidays. It is
readily apparent that the declared purpose of
the HP which is the prevention of diminution
of the monthly income of the Ees on account
UST GOLDEN NOTES 2011
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ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
42
of work interruptions is defeated when a
regular class day is cancelled on account of a
special public holiday and class hours are held
on another working day to make up for time
lost in the school calendar. Otherwise stated,
thefacultymember,althoughforcedtotakea
rest, does not earn what he should earn on
thatday.Beitnotedthatwhenaspecialpublic
holiday is declared, the faculty member paid
by the hour is deprived of expected income,
anditdoesnotmatterthattheschoolcalendar
is extended in view of the days or hours lost,
for their income that could be earned from
othersourcesislostduringtheextendeddays.
Similarly, when classes are called off or
shortened on account of typhoons, floods,
rallies, and the like, these faculty members
must likewise be paid, whether or not
extensions are ordered. (Jose Rizal College v.
NLRC,G.R.No.65482,Dec.1,1987)
Q:IsdoubleHPapplicableatpresent?
Q:WhatistheconceptofsuccessiveRH?
A:
WED
MAUNDY
THURS
GOOD
FRIDAY
ENTITLED
TOHP
Worked RH RH Yes.Both
LOA
w/pay
RH RH Yes.Both
LOAw/o
pay
RH RH No.Both
LOAw/o
pay
Worked RH
Yes.Onlyto
HPon
Friday
A:Onthedayimmediatelyprecedingthe1
st
RH,he
mustbe:
1. Present(worked),or
2. On LOA with pay. (Sec. 10, Rule IV, Book
III,IRR)
Q:Whatiftheconditionsarenotmet?
A:Hemustworkonthe1
st
RHtobeentitledtoHP
onthe2
nd
RH.(Sec.10,RuleIV,BookIII,IRR)
5.LEAVES
a.ServiceIncentiveLeavePay
Q:Whatisserviceincentiveleave(SIL)?
A: It is 5 days leave with pay for every employee
who has rendered at least 1 yr of service. It is
commutable to its money equivalent if not used or
exhaustedattheendofyear.
Q:Whatdoyoumeanbyatleast1yearofservice?
A: Service for not less than 12 months, whether
continuous or broken reckoned from the date the
employee started working, including authorized
absences and paid regular holidays unless the
working days in the establishment as a matter of
LABOR STANDARDS
43
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
practice or policy, or that provided in the
employment contract is less than 12 months, in
which case said period shall be considered as one
year.(Sec.3,RuleV,BookIII,IRR)
Q:WhoareentitledtoSIL?
A: GR: Applies to every Ee who has rendered at
least1yearofservice.(Art.95[a])
XPNS:
1. Government Ees and any of its political
subdivisionsincludingGOCCs
2. Thosealreadyenjoyingthebenefit
3. Domestic helpers and persons in the
personalservicesofanother
4. Thosealreadyenjoyingvacationleavewith
payofatleast5days
5. ManagerialEes
6. Field personnel and other Ees whose
performanceisunsupervisedbytheEr
7. Employed in establishments regularly
employinglessthan10workers
8. Exemptestablishments
9. Engaged on task or contract basis, purely
commissionbasis,orthosewhoarepaidin
a fixed amount of performing work
irrespective of the time consumed in the
performancethereof.(Art.95[b])
UST GOLDEN NOTES 2011
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44
b.MaternityLeave
Q:Whatismaternityleavebenefit?
A: Acoveredfemaleemployee(Ee)isentitledtoa
daily maternity benefit equivalent to 100% of her
present basic salary, allowances and other benefits
or the cash equivalent of such benefits for 60 days
or78daysincaseofcaesariandelivery.
Q: What are the requirements in order that
maternitybenefitsmaybeclaimed?
A:
1. There is childbirth, abortion or
miscarriage
2. She has paid at least 3 monthly
contributions
Q:Whataretheconditions?
A:
1. The Ee shall have notified her employer
(Er) of her pregnancy and the probable
date of her childbirth which notice shall
betransmittedtotheSSS
3. Incaseofcaesariandelivery,theEeshall
bepaidthedailymaternitybenefitfor78
days
c.PaternityLeave
Q:Whatistheconceptofpaternityleavebenefits?
A:ThemaleEeis;
1. Legally married to, and is cohabiting with
thewomanwhodeliversthebaby
2. Eeofprivateorpublicsector;
3. Onlyforthefirst4deliveriesoflegitimate
spousewithwhomheiscohabiting;and
4. Notify his Er of the pregnancy of his
legitimate spouse and the expected date
ofsuchdelivery
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
A: No. Jemuel is not entitled to paternity
leave because the facts of the case only show that
he is only cohabiting with Paula. The law expressly
provides that the male must be legally married to
the woman with whom he is cohabiting as a
condition for entitlement of paternity leave. Even
assumingthatJemuelislegallymarriedtoPaula,he
cannotavailalsoofthepaternityleavebecausethe
law limits the deliveries only to four which include
childbirth or miscarriage. Based on the facts, it is
alreadythefifthdeliveryofthewoman.
d.ParentalLeave
Q:Whatisparentalleave?
A:Leavebenefitsgrantedtoasoloparenttoenable
him/her to perform parental duties and
responsibilities where physical presence is
required.
A:
1.Heorshemustfallamongthosereferredtoas
soloparent
2. Must have the actual and physical custody of
thechildorchildren
3. Must have at least rendered service of one
yeartohisorheremployer
4.Heorshemustremainasoloparent
1.Awomanwhogivesbirthasaresultofrape
and other crimes against chastity even
without a final conviction of the offender,
provided, That the mother keeps and
raisesthechild;
2. Parent left solo or alone with the
responsibilityofparenthooddueto:
a.Deathofspouse;
b. Detention or service of sentence of
spouseforacriminalconvictionforat
least1yr;
c. Physical and/or mental incapacity of
spouse
d.Legalseparationordefactoseparation
fromspouseforatleast1yraslongas
he/she is entrusted with the custody
ofthechildren;
e. Nullity or annulment of marriage as
decreed by a court or by a church as
long as he/she is entrusted with the
custodyofthechildren;
f. Abandonment of spouse for at least 1
yr;
3. Unmarried mother/father who has
preferred to keep and rear his or her
child/childreninsteadof:
a.havingotherscareforthemor
b.givethemuptoawelfareinstitution;
4.Anyotherpersonwhosolelyprovides:
a.parentalcareand
b.supporttoachildorchildren;
5. Any family member who assumes the
responsibilityofheadoffamilyasaresult
ofthe:
a.death,
b.abandonment,
c.disappearanceor
d. prolonged absence of the parents or
soloparent.
e.Leavesforvictimsofviolenceagainstwomen
Q:Whatistheleaveforvictimsofviolenceagainst
women or otherwise known as battered woman
leave?
6.SERVICECHARGES
a.CoverageandExclusion
Q:Whatareservicecharges(SC)?
COVEREDEes MANAGEMENT
85% 15%
Equally
distributed
1. To answer for losses and
breakagesand
2. Distributed to Ees receiving
UST GOLDEN NOTES 2011
LABORLAWTEAM:
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46
amongthem more than P2000 a month at
the discretion of the
management.
Q:WhoarecoveredEes?
XPN:ManagerialEes.(Sec.2,RuleVI,BookIII,IRR)
b.Distribution
Q:Whenistheshareofemployeedistributedand
paidtothem?
A: Not less than once every 2 weeks or twice a
monthatintervalsnotexceeding16days.
c.Integration
Q: What happens if the Service Charge is
abolished?
A:TheshareofthecoveredEesshallbeconsidered
integrated in their wages on the basis of the
average monthly share of each Ees for the past 12
monthsimmediatelyprecedingtheabolition.
Note:Servicechargesformpartoftheawardinillegal
dismissalcases.
7.13
th
MONTHPAYANDOTHERBONUSES
a.Coverage,Exclusion/exemptionsfromcoverage
Q:Whatis13
th
monthpayoritsequivalent?
MonthPayLaw)
XPN:
1. GovernmentEes
2. Householdhelpers
3. Eespaidpurelyoncommissionbasis
4. Eesalreadyreceiving13
th
monthpay
Monthpaybeforetheopeningoftheregularschoolyr.
andtheotherhalfonorbeforetheDec.24.
Q:Is13
th
MonthPaylegallydemandable?
A: Yes. It is a statutory obligation, granted to
covered Ees, hence, demandable as a matter of
right.(Sec1,P.D.851)
b.Natureof13
th
MonthPay
Q: In what form is the 13
th
month pay paid or
given?
A:Itisgivenintheformof:
1. ChristmasBonus
2. MidyearBonus
3. ProfitSharingScheme
4. Other Cash bonuses amounting to not
lessthan1/12ofitsbasicsalary
Note:Itmustalwaysbeintheformofalegaltender.
Q:Whatarenotpropersubstitutesfor13
th
Month
pay?
A:
1. Freerice
LABOR STANDARDS
47
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
2. Electricity
3. Cashandstockdividends
4. COLA(Sec.3)
XPN:
1. DistressedErs:
a. Currently incurring substantial losses
or
b. In the case of nonprofit institutions
and organizations, where their
income, whether from donations,
contributions, grants and other
earnings from any source, has
consistently declined by more than
40% of their normal income for the
last 2 years, subject to the provision
ofSec.7ofP.D.851;
4. Itsequivalentshallinclude:
a. Christmasbonus
b. Midyearbonus
c. Profitsharing payments
and
d. Other cash bonuses
amounting to not less than
1/12th of the basic salary
but
5. Itshallnotinclude:
a. cashandstockdividends,
b. COLA
c. all other allowances
regularly enjoyed by the
Ee, as well as non
monetarybenefits.
Q:WhataretheoptionsofcoveredErs?
A:
1. Pay onehalf of the 13thmonth pay
required before the opening of the
regular school year and the other half on
or before the 24th day of December of
everyyear.
2. In any establishment where a union has
been recognized or certified as the
collective bargaining agent of the Ee, the
periodicity or frequency of payment of
the13thmonthpaymaybethesubjectof
agreement.
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
48
Q:Howareclaimsadjudicated?
A:Nonpaymentofthe13
th
monthpayprovidedby
P.D. 851 and the rules of NLRC shall be treated as
moneyclaimscases.
Q: Are the following Ees entitled to 13
th
month
pay?
a. Eeswhoarepaidbyresults
b. EeswithmultipleErs
c. Privateschoolteachers
d. ResignedorseparatedEes
A:
1. Eepaidbyresultsentitledto13
th
month
pay.
2. ThosewithMultipleErsGovernmentEes
working part time in a private enterprise,
including private educational institutions,
as well as Ees working in 2 or more
private firms, whether full or part time
basis, are entitled to the required 13
th
4. ResignedorSeparatedEesIfresignedor
separated from work before the time of
payment of 13
th
month pay, entitled to
monetary benefit in proportion to the
length of time he started working during
the calendar year up to the time of
resignation or termination of service.
(Prorated13
th
monthpay)
Q:Whendoesprorationof13
th
MonthPayapply?
Q:Is14
th
MonthPaylegallydemandable?
d.CBAvisvis13
th
monthpay
Q:WhatisCBAinrelationto13
th
monthpay?
8.WOMENWORKERS
a.Discrimination(Art.135.LC);ProhibitedActs(Art.
137.LC)
LABOR STANDARDS
49
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
Q:WhataretheunlawfulactsagainstwomenEe?
A:
1. Discrimination with respect to the terms
and conditions of employment solely on
accountofsex
a. Paymentoflessercompensationtoa
female Ee as against a male Ee for
workofequalvalue
b. Favoring a male Ee with respect to
promotion, training opportunities,
study and scholarship grants on
accountofgender.(Art.135)
c. Favoring a male applicant with
respect to hiring where the
particularjobcanequallybehandled
byawoman
d. Favoring a male Ee over a female Ee
with respect to dismissal of
personnel.
2. Stipulating, whether as a condition for
employment or continuation of
employment:
a. That a woman Ee shall not get
married,or
b. That upon marriage, such woman Ee
shall be deemed resigned or
separated.(Art.136)
Note: A woman worker may not be
dismissed on the ground of dishonesty for
havingwrittensingleonthespaceforcivil
status on the application sheet, contrary to
the fact that she was married. (PT&T Co. v.
NLRC,G.R.No.118978,May23,1997)
3. Dismissing, discriminating or otherwise
prejudice a woman Ee by reason of her
beingmarried.(Art.136)
4. Denying any woman Ee benefits provided
bylaw.(Art.137)
5. Discharge any woman for the purpose of
preventing her from enjoying any of the
benefitsprovidedbylaw.(Art.137)
6. Discharging such woman on account of
her pregnancy, or while on leave or in
confinement due to her pregnancy. (Art.
137)
7. Discharging or refusing the admission of
such woman upon returning to her work
for fear that she may again be pregnant.
(Art.137)
50
Q:Whatisthenospouseemploymentpolicy?
A:GR:
1. Policy banning spouses from working in
thesamecompany.
2. MaynotfaciallyviolateArt.136oftheLC
but it creates a disproportionate effect
and the only way it could pass judicial
scrutinyisbyshowingthatitisreasonable
despite the discriminatory albeit
disproportionateeffect.
Q:WhatistheBFOQrule?
A:TheremustbeafindingofanyBFOQtojustifyan
Ers no spouse rule. There must be a compelling
business necessity for which no alternative exist
otherthanthediscriminatingpractice.
To justify a BFOQ the employer must prove two
factors:
1. That the employment qualification is
reasonably related to the essential
operationofthejobinvolved;and
2. That there is a factual basis for believing
that all or substantially all persons
meeting the qualification would be
unable to properly perform the duties of
the job. (Star Paper v. Simbol, G.R. No.
164774,April12,2006)
Q:WhatistheimportanceoftheBFOQRule?
A:
1. To ensure that the Ee can effectively
performhiswork
2. Sothatthenospouserulewillnotimpose
anydangertobusiness.
IsthepolicyofGlaxovalidandreasonablesoasto
constitute the act of Tecson as willful
disobedience?
c.ClassificationofCertainWomenWorkers(Art.
138,LC)
Q:WhoarecoveredunderthisTitle?
A: Any women who is permitted or suffered to
work:
1. Withorwithoutcompensation
2. In any night club, cocktail lounge,
massage clinic, bar or similar
establishment
3. Undertheeffectivecontrolorsupervision
oftheErforasubstantialperiodoftime
4. Shall be considered as an Ee of such
establishment for purposes of labor and
sociallegislation.
d.AntiSexualHarrasmentAct
RA7877
A:TheStateshall:
1. Valuethedignityofeveryindividual
2. Enhance the development of it human
resources
3. Guarantee full respect for human rights
and
4. Uphold the dignity of workers, Ee,
applicants for employment, students or
those undergoing training, instruction or
education.(Sec.2)
Q:Whomaybeheldliableforsexualharassment?
1. Ee
2. Manager
3. Supervisor
LABOR STANDARDS
51
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
4. Agentofthe(Er)
5. Teacher,instructor,professor
6. Coach,trainer,or
7. Any other person who, having authority,
influence or moral ascendancy over
anotherinaworkortrainingoreducation
environment:
a. Demands
b. Requestsor
c. Requires
any sexual favor from the other,
regardless of whether the demand,
request or requirement for
submission isaccepted by the object
ofR.A.7877.(Sec.3)
Q:Howissexualharassmentcommitted?
A:Generally,apersonliabledemands,requests,or
otherwiserequiresanysexualfavorfromtheother,
regardless of whether the demand, request or
requirement for submission is accepted by the
latter.
Q: Under the Sexual Harassment Act, does the
definition of sexual harassment require a
categoricaldemandorrequestforsexualfavor?
A: No. It is true that the provision calls for a
demand, request or requirement of a sexual
favor. But it is not necessary that the demand,
request or requirement of a sexual favor be
articulated in a categorical manner. It may be
discerned, with equal certitude, from the acts of
theoffender.
Likewise, it is not essential that the demand,
request or requirement be made as a condition for
continued employment or for promotion to a
higher position. It is enough that the respondents
acts result in creating an intimidating, hostile or
offensiveenvironmentfortheemployee.(Domingo
v.Rayala,G.R.No.155831,Feb.18,2008)
Q:Whenissexualharassmentcommitted?
A:Specifically:
1. In a workrelated or employment
environment:
a. The sexual favor is made as a
condition in the hiring or in the
employment, reemployment or
continued employment of said
individual, or in granting said
individual favorable compensation,
terms, conditions, promotions, or
privileges;ortherefusaltograntthe
sexual favor results in limiting,
segregating or classifying the Ee
which in a way would discriminate,
deprive or diminish employment
opportunitiesorotherwiseadversely
affectsaidEe;
b. TheaboveactswouldimpairtheEes
rights or privileges under existing
laborlaws;or
c. The above acts would result in an
intimidating, hostile, or offensive
environmentfortheEe.
2. Inaneducationortrainingenvironment:
a. Against one who is under the care,
custody or supervision of the
offender;
b. Against one whose education,
training, apprenticeship or tutorship
isentrustedtotheoffender;
c. Sexual favor is made a condition to
the giving of a passing grade, or the
granting of honors and scholarships,
or the payment of a stipend,
allowance or other benefits,
privileges,orconsiderations;or
d. Sexual advances result in an
intimidating, hostile or offensive
environmentforthestudent,trainee
orapprentice.
Towardsthisend,theErorheadofofficeshall:
52
A:Anactofsexualharassmentmaygiverisetocivil,
criminal and administrative liability on the part of
theoffender,eachproceedingindependentlyofthe
others.
Q:Whendoestheactionprescribe?
A:Anyactionshallprescribein3years.
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
9.MINORWORKERS
a.Regulationofworkinghoursofachild,
Employmentofthechildinpublicentertainment,
Prohibitionofemployingminorsincertain
undertakingsandincertainadvertisements
Q:Whatarethegeneralprohibitions?
A:GR:
1. No person under 18 years of age will be
allowedtobeemployedinanundertaking
which is hazardous or deleterious in
nature.
2. No Er shall discriminate against any
personinrespecttotermsandconditions
ofemploymentonaccountofhisage.
XPN:
A. Below15yrs.Old
1. The child works directly under the
sole responsibility of his parents, or
guardians who employ members of
his family, subject to the following
conditions:
a. Employmentdoesnotendanger
the childs safety, health and
morals
b. Employment does not impair
thechildsnormaldevt
c. Erparent or legal guardian
provides the child with the
primary and/or secondary
education prescribed by the
Dept.ofEducation
2. The childs employment or
participationin publicentertainment
or information through cinema,
theater, radio or television is
essentialprovided:
a. Employment contract is
concludedbythechildsparents
orlegalguardian,
b. With the express agreement of
the child concerned, if possible,
and
c. The approval of DOLE, the
following must be complied
with:
i. The employment does not
involve advertisement or
commercials promoting
alcoholic beverages,
intoxicating drinks, tobacco
and its byproducts or
exhibitingviolence
ii. there is a written contract
approvedbyDOLE
iii. the conditions provided in
thefirstinstancearemet.
B. Above 15 but below 18 may be
employedinanynonhazardouswork
C. Above18noprohibition
Q:WhatisthedutyoftheErbeforeengagingchild
intowork?
A: The Er shall first secure a work permit from the
DOLE which shall ensure observance of the
requirements.(Sec.12,R.A.7160)
Q:Whatistheruleregardingtheissuanceofwork
certificates/ permits for children at least 15 but
below18yearsofage?
A:TheissuanceofaDOLECertificatetoyouthaged
15to below18years of age is not required by law.
No employer shall deny opportunity to any such
youthapplyingforemploymentmerelyonthebasis
oflackofworkpermitorcertificateofeligibilityfor
employment. Any young person aged 15 to below
18 years of age may present copy of this DOLE
advisorytoanyemployer,jobprovider,government
authority, or his/her representative when seeking
employmentoranytimeduringemployment.(DOLE
DepartmentAdvisoryNo.0108)
Q:Whatisanonhazardouswork?
A: It is any work or activity in which the Ee is not
exposed to any risk which constitutes an imminent
dangertohissafetyandhealth.
Q:Whatarehazardousworkplaces?
A:
1. Nature of work exposes the workers to
dangerous environmental elements,
contaminantsorworkconditions
2. Workers are engaged in construction work,
logging, firefighting, mining, quarrying,
blasting, stevedoring, dock work, deepsea
fishing,andmechanizedfarming
3.Workersareengagedinthemanufactureor
handling of explosives and other pyrotechnic
products
4. Workers use or are exposed to heavy or
powerdriventools
54
(c)oftheLCprovidesthatapersonbelow18yrsof
age shall not be allowed to work in an undertaking
which is hazardous or deleterious in nature as
determined by the SLE. Paint manufacturing has
been classified by the SLE as a hazardous work.
(2002BarQuestion)
Q: What are the prohibitions on the employment
ofchildrenincertainadvertisements?
A: No employment of child models in all
commercialadvertisementspromoting:
1. Violence
2. Alcoholicbeverages
3. Intoxicatingdrinks
4. Tobaccoanditsbyproducts
A:No,heshouldnotbeprohibitedfrombeinghired
andfromperformingasasinger.UnderArt.VIIISec.
12par.2ofR.A.7619asamendedbyR.A.7658,this
constitutes an exception to the general prohibition
againsttheemploymentofchildrenbelow15years
of age, provided that the following requirements
arestrictlycompliedwith:
1. TheErshallensuretheprotection,health
safetyandmoralsofthechild
2. TheErshallinstitutemeasurestoprevent
the childs exploitation or discrimination
taking into account the system and level
of remuneration, and the duration and
arrangementofworkingtime;and
3. The Er shall formulate and implement,
subjecttotheapprovalandsupervisionof
competent authorities, a continuing
program for training and skill acquisition
of the child. Moreover, the child must be
directly under the sole responsibility of
his parents or guardian and his
employment should not in any way
interferewithhisschooling.
LABOR STANDARDS
55
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
A: Yes, he should be prohibited from working as a
dealer in casino, because Art. 140 of the LC
prohibits the employment of persons below 18
years of age in an undertaking which is hazardous
or deleterious in nature identified in the guidelines
issuedbytheSLE.Workingasadealerinacasinois
classified as hazardous under D.O. No. 04 Series of
1999 as it exposes children to physical,
psychologicalorsexualabuses.(2006BarQuestion)
b.ActAgainstChildLabor(RA9231)andChildAbuse
Law(RA7610)
Q:Whatischildlabor?
Q:Whoisaworkingchild?
A:Anychildengagedasfollows:
1. Whenthechildisbelow18yearsofagein
a work or economic activity that is not
childlabor;or
2. Whenthechildisbelow15yearsofage:
a. In work where he/she is directly
under the responsibility of his/her
parents or legal guardian and where
only members of the childs family
areemployed;or
b. In public entertainment or
information
A:
1. The parent, guardian, teacher or person
havingcareorcustodyofthechildfailsor
is unable to protect the child against
abuse,exploitationanddiscrimination;or
2. When such acts are committed against
the child by the said parent, guardian,
teacher or person having care and
custodyoverthechild
Q:Whatisthelimitationonthehoursofworkofa
workingchild?
A:Ifthechildis:
1. Below15yearsofagenotmorethan20
hours a week and not more than 4 hours
aday
- Not allowed to work between 8:00
pm6:00am
Q:Whataretheworstformsoflabor?
A:
1. All forms of slavery (AntiTrafficking of
Persons Act of 2003) or practices similar
to slavery such as sale and trafficking of
children, debt bondage and serfdom and
forced or compulsory labor, including
recruitment of children for use in armed
conflict;
2. The use, procuring, offering or exposing
of a child pornography or for
pornographicperformances;
3. The use, procuring, offering or exposing
of a child for illegal or illicit activities,
includingtheproductionandtraffickingof
dangerous drugs and volatile substances
prohibitedunderexistinglaws;
4. Employingchildmodelsinallcommercials
or advertisements promoting alcoholic
beverages, intoxicating drinks, tobacco
anditsbyproductsandviolence;and
5. Work which, by its nature or
circumstancesinwhichitiscarriedout,is
hazardous or likely to be harmful to the
health,safetyormoralsofchildren.
A:
1. Offendedparty
2. Parentsorguardians
3. Ascendants or collateral relatives within
the3
rd
degreeofconsanguinity
4. Officer,socialworkerorrepresentativeof
alicensedchildcaringinstitution
5. OfficerorsocialworkerofDSWD
6. Barangay chairman of the place where
the violation occurred, where the child is
residingoremployed
7. At least 3 concerned, responsible citizens
wheretheviolationoccurred
56
10.EMPLOYMENTOFHOUSEHELPERS
a.Definition
Q:Whatisdomesticorhouseholdservice?
A:
1. ServicesintheErshome
2. Usuallynecessaryordesirable
3. For the maintenance and employment
thereof
4. Includes ministering to the personal
comfortandconvenienceofthemembers
oftheErshousehold
5. Includingservicesoffamilydrivers.
Q:Whoisahousehelper?
A: A househelper is synonymous to domestic
servant
1.Anyperson,maleorfemale;
2. Who renders services in and about the Ers
homeand;
3. Services are usually necessary or Desirable
for the maintenance and enjoyment
thereof,and
4. Ministers exclusively to the personal
comfortandenjoymentofErsfamily
Note:Thechildrenandrelativesofahousehelperwho
live under the Ers roof and who share the
accommodations provided for the househelper by the
Ershallnotbedeemedashousehelpersiftheyarenot
otherwise engaged as such and are not required to
perform any substantial household work. (Sec 3, Rule
XII,BookIII,IRR)
The definition of a househelper cannot be interpreted
to include househelp or laundry women working in
staffhouses of a company. (APEX Mining CO., Inc., v.
NLRC,G.R.No.94951,April22,1991)
b.Benefitsaccordedhousehelpers
Q:Whataretherightsofhousehelpers?
A:
1. Originalcontractofdomesticserviceshall
not last for more than 2 years but it may
berenewedbytheparties.(Art.142)
2. Entitled to minimum wage in addition to
lodging, food, and medical attendance.
(Art.144)
3. Employmentcontractshouldbereviewed
every 3 years with the end view of
improving the terms and conditions of
employment.(Art.143)
4. SSS benefits for those who are receiving
atleastP1,000permonth.(Art.143)
5. Nonassignment to a work in a
commercial, industrial or agricultural
enterprise at a wage or salary rate lower
thanthatprovidedforagriculturalornon
agriculturalworkers.(Art.145)
6. Ees under 18 years of age shall be given
opportunity for at least elementary
education. The cost of education shall be
part of the HHs compensation, unless
otherwisestipulated.(Art146)
7. Should be treated in a just and humane
manner.(Art.147)
8. Not to be treated with physical violence
(Art.147)
9. Suitable and sanitary living headquarters
as well as adequate food and medical
attendance.(Art.148)
10. Terminationofemploymentshouldbe
a. upon expiration of term of
employment,or
b. basedonjustcause(Art.149)
11. Indemnity for unjust termination of
service
12. Employmentcertificationastonatureand
duration of service and efficiency and
conductofhousehelper.
Q:Whatistheminimumwageforhousehelpers?
A:
1.MetoManilaP800/month
2. Other Chartered Cities or First Class
MunicipalitiesP650/month
3.InotherMunicipalitiesP550/month
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
domestic servant may be considered as such an
employee.IsErlindaadomesticorhousehelper?
A: No, Erlinda is clearly not a househelper. A
househelper or domestic servant under the
Implementing Rules of the LC is one who is
employed in the Ers home to minister exclusively
to the personal comfort and enjoyment of the Ers
family. A househelper, domestic servant or
laundrywoman in a home or in a company
staffhouse is different in the sense that in a
corporation or a single proprietorship engaged in
business or industry or any agricultural or similar
pursuit,serviceisbeingrenderedinthestaffhouses
or within the premises of the business of the Er. In
suchinstance,theyareEesofthecompanyorErin
thebusinessconcerned,entitledtotheprivilegesof
aregularEe.Themerefactthatthehousehelperor
domestic servant is working within the premises of
thebusinessoftheemployerandinrelationtoorin
connection with its business, as in its staffhouses
for its guest or even for its officers and Ees,
warrants the conclusion that such househelper or
domestic servant is and should be considered a
regular Ee and not a househelper. (Remington
Industrial v. Castaneda, G.R. Nos. 16929596,
Nov.20,2006)
Q:NBChasaresthouseandrecreationalfacilityin
thehighlandsofTagaytayCityfortheuseofitstop
executives and corporate clients. The resthouse
staff includes a caretaker, two cooks and a
laundrywoman. All of them are reported to the
SSSasdomesticorhouseholdEesoftheresthouse
and recreational facility and not of NBC. Can NBC
legally consider the caretaker, cooks and
laundrywoman as domestic Ees of the resthouse
andnotofNBC?
d.ReliefsforUnjustTermination
Q:Whataretherulesforindemnity?
A:
1. If the period for household service is
fixed, neither the Er nor the househelper
may terminate the contract before the
expiration of the term except for just
cause.
2.Ifthehousehelperisunjustlydismissed,he
or she shall be paid the compensation
already earned plus that for the 15 days
bywayofindemnity.
3. If the househelper leaves without
justifiable reason, he or she shall forfeit
any unpaid salary due him or her not
exceeding15days.
11.EMPLOYMENTOFHOMEWORKERS
a.Defintion
Q:Whoarehomeworkers?
A:Theyarethosewhoperforminorabouthisown
home any processing or fabrication of goods or
materials, in whole or in part, which have been
furnished directly or indirectly, by an Er and sold
thereaftertothelatter.
Q:WhoistheErofHomeworker?
A:Includesanyperson,naturalorartificialwho,for
his account or benefit, or on behalf of any person
residing outside the country, directly or indirectly,
or through an Ee, agent contractor, subcontractor
oranyotherperson:
1. Delivers or causes to be delivered, any
goods, articles or materials to be
processed or fabricated in or about a
homeandthereaftertobereturnedorto
be disposed of or distributed in
accordancewithhisdirections.
2. Sellsanygoods,articlesormaterialstobe
processedorfabricatedinorabutahome
and then rebuys them after such
processing or fabrication, either by
himselforthroughsomeotherperson.
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
58
b.Rightsandbenefitsaccordedhomeworkers
Q: What is the duty of the Er in case he contracts
withanothertheperformanceofhiswork?
A: It shall be the duty of the Er to provide in such
contractthattheEesorHWsofthecontractor and
the latters subcontractor shall be paid in
accordancewiththeLC.
Q:WhatistheliabiltyoftheErifthecontractoror
subcontractorfailstopaythewagesorearningsof
hisEes?
A: Er shall be jointly and severally liable with the
contractor or subcontractor to the workers of the
latter to the extent that such work is performed
under such contract, in the same manner as if the
EesorHWsweredirectlyengagedbytheEr.
Q:CanHomeworkersformlabororganizations?
A:Yes.DONo.5,replacingRuleXIVoftheIRRBook
3 of the LC, authorizes the formation and
registrationoflabororganizationofindustrialHWs.
It also makes explicit the Ers duty to pay and remit
SSS,PhilhealthandECCpremiums.
Q:Whataretheprohibitionsagainsthomework?
A:Nohomeworkshallbeperformedon:
1. Explosives,fireworksandsimilararticles;
2. Drugsandpoisons;and
3. Other articles, the processing of which
requires exposure to toxic substances.
(Sec.13,RuleXIV,BookIII,IRR)
c.Conditionsfordeductionfromhomeworkers
earnings
XPN:Unlesstheff.conditionsaremet:
1. TheHWisclearlyshowntoberesponsible
forthelossordamage
2. TheEeisgivenreasonableopportunityto
showcausewhydeductionsshouldnotbe
made;
3. The amount of such deduction is fair and
reasonable and shall not exceed the
actuallossordamages;and
4. The deduction is made at such rate that
the amount deducted does not exceed
20%oftheHWsearningsinaweek.
Q:Distinguishhousehelpersfromhomeworkers.
A:
HOUSEHELPERS HOMEWORKERS
Minister to the personal
needs and comfortof his
Erinthelattershome
Performs in or about his
ownhomeanyprocessing
or fabrication of goods or
materials, in whole or in
part, which have been
furnished directly or
indirectly, by an Er and
sold thereafter to the
latter.
Q: Josie is the confidential secretary of the
Chairman of the Board of the bank. She is
presently on maternity leave. In an arrangement
where the Chairman of the Board can still have
accesstoherservices,thebankallowshertowork
inherresidenceduringherleave.Forthispurpose,
the bank installed a fax machine in her residence,
and gave her a cellphone and a beeper. Is Josie a
homeworkerunderthelaw?Explain.
A:No,sheisactuallyanofficeworker.Sheisnotan
industrial homeworker who accepts work to be
fabricated or processed at home for a contractor,
which work, when finished, will be returned to or
repurchasedbysaidcontractor.(Art.155,LC)(2000
BarQuestion)
12.APPRENTICESANDLEARNERS
a.Apprentices
Q:Whoisanapprentice?
A: Any worker who is covered by a written
apprenticeship agreement with an individual
employer or any of the entities recognized under
theLC.
Q:Whatisapprenticeship?
A: It is practical training on the job supplemented
byrelatedtheoreticalinstruction.
Q:Whatisanapprenticeableoccupation?
A: That which requires more than 3 months of
practicaltrainingwiththeoreticalinstruction
Q:Whatisonthejobtraining(OJT)?
A: It is practical work experience through actual
participation in productive activities given to or
acquiredbyanapprentice.
LABOR STANDARDS
59
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
Q:Whatarehighlytechnicalindustries?
A: Those which are engaged in the application of
advancedtechnology.
Q:Whatarerelatedtheoreticalinstructions?
Q:Whenisanoccupationdeemedhazardous?
A:
1. Nature of work exposes worker to
dangerous environmental elemental
contaminantsorworkconditions
2. Workers are engaged in construction
work, logging, firefighting, mining,
quarrying,blasting,stevedoring,deepsea
fishing,andmechanizedfarming
3. Workers are engaged in the manufacture
or handling of explosives and other
pyrotechnicproducts
4. Workers use, or are exposed to heavy or
powerdrivenmachineryorequipment.
Q:Whomayemployapprentices?
A:
1. Only employers in highly technical
industriesand
2. Only in apprenticeable occupations
approvedbySLE
Q:Whatistheemploymentstatusofapprentices?
A: They are contractual workers whose length of
service depends on the term provided for in the
apprenticeship agreement. Thus, the employer is
not obliged to employ the apprentice after the
completionofhistraining.
Q:Whatistheperiodofapprenticeship?
A:Mustnotexceed6months:
1. 2months/400hours:Tradesoroccupations
which normally require 1 year or more for
proficiency
2. 1 month/200 hours: Occupations and jobs
whichrequiremorethan3monthsbutless
than1yearforproficiency.(Sec.19,RuleVI,
BookII,IRR)
A:HeisdeemedaregularEe.Hecannotbehiredasa
probationary Ee since the apprenticeship is deemed
theprobationaryperiod.
Q:Whatisthewagerateofanapprentice?
A: Start at not less than 75% of the statutory
minimum wage for the 1
st
6 months (except OJT);
thereafter, shall be paid in full minimum wage,
includingthefullCOLA.
Note: GR: Apprenticeship programs shall be primarily
voluntary
XPN:Compulsoryapprenticeship:
1. National security or economic
developmentsodemand,thePresident
mayrequirecompulsorytraining
2. Services of foreign technicians are
utilized by private companies in
apprenticeabletrades.
60
apprenticeship programs duly approved
bytheSLE.
4. The DOLE shall develop standard model
programsofapprenticeship.(Sec.18,Rule
VI,BookII,IRR)
Q:Whosignstheapprenticeshipagreement?
Q:Whowillsigniftheapprenticeisaminor?
A:Required:
1. Byschool
2. Bythetrainingprogramcurriculum
3. ForGraduation
4. Forboardexaminations
Q:Whataretherulesonworkingscholars?
A: There is no ErEe relationship between students
on one hand, and schools, where there is written
agreement between them under which the former
agree to work for the latter in exchange for the
privilegetostudyfreeofcharge.Thestudentisnot
consideredanEe.(Sec.14,RuleIX,BookIII,IRR)
Q: Padilla entered into a written agreement with
Gomburza College to work for the latter in
exchange for the privilege of studying in said
institution.Hisworkwasconfinedtokeepingclean
the lavatory facilities of the school. One school
day, he got into a fist fight with a classmate,
Monteverde, as a result of which the latter
sustained a fractured arm. Victor filed a civil case
for damages against him, impleading Gomburza
Collegeduetothelatter'sallegedliabilityashisEr.
Underthecircumstances,couldGomburzaCollege
beheldliablebyVictorMonteverdeasanPadillas
Er?
A: Gomburza College is not liable for the acts of
Padilla because there is no ErEe relationship
between them. As provided in the Rules and
RegulationsImplementingtheLC"thereisnoErEe
relationship between students on one hand, and
schools, colleges, or universities on the other,
wherestudentsworkwiththelatterinexchangefor
the privilege to study free of charge, provided the
students are given real opportunity, including such
facilities as may be reasonable and necessary to
finish their chosen courses under such
arrangement."(1997BarQuestion)
Q: Who may terminate an apprenticeship
agreement?
A:
1. Eitherpartymayterminateanagreement
aftertheprobationaryperiodbutonlyfor
avalidcause.
2. It may be initiated by either party upon
filing a complaint or upon DOLEs own
initiative.
Q:Whomayappealthedecisionoftheauthorized
agencyoftheDOLE?
A: It may be appealed by any aggrieved person to
theSLEwithin5daysfromreceiptofthedecision.
Note: The decision of the SLE shall be final and
executory.
Q:WhatisExhaustionofAdministrativeRemedies
(EAR)?
A: It is a condition precedent to the institution of
action.(Sec.32b,RuleVI,BookII,IRR)
Q: How is the principle of Exhaustion of
AdministrativeRemediesappliedincaseofbreach
ofapprenticeshipagreement?
A: No person shall institute any action for the
enforcement of any apprenticeship agreement or
damages for breach of any such agreement, unless
he has exhausted all available administrative
remedies.
Q: Who shall settle differences arising out of
apprenticeshipagreement?
A: The plant apprenticeship committee shall have
the initial responsibility for settling differences
arising out of apprenticeship agreement. (Sec. 32b,
RuleVI,BookII,IRR)
Q: What is the procedure for the termination of
apprenticeship?
LABOR STANDARDS
61
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
A:Thepartyterminatingshall:
1. Serve a written notice on the other at
least5daysbeforeactualtermination,
2. Statingthereasonforsuchdecision;and
3. A copy of said notice shall be furnished
theApprenticeshipDivisionconcerned.
b.Learners
Q:Whoarelearners?
A:
1. They are persons hired as trainees in
semiskilled and other industrial
occupations
2. Whicharenonapprenticeableand
3. Which may be learned through practical
training on the job in a relatively short
periodoftime
4. Whichshallnotexceed3months
5. Whether or not such practical training is
supplemented by theoretical instructions.
(Sec.1a,RuleVII,BookII,IRR)
Q:Whenmaylearnersbeemployed?
A:
1. Whennoexperiencedworkerisavailable
2. It is necessary to prevent curtailment of
employmentopportunities;and
3. Employment does not create unfair
competition in terms of labor costs or
impairorlowerworkingstandards.
Q:Whatisalearnershipagreement?
Q:Whatisthequalificationofalearner?
A:Mustbeatleast15yearsofage.
Note: Those below 18 years of age shall not work in
hazardousoccupations.
Q:Whomayemploylearners?
A: Only employers in semiskilled and other
industrial occupations which are non
apprenticeable.
Q: What is the status of learners who have been
allowed or suffered work during the first 2
months, if training is terminated by the Er before
the end of the stipulated period through no fault
ofthelearner?
A: They are deemed regular employees. (Sec. 4,
RuleVII,BookII,IRR)
c.DistinctionsbetweenLearnershipand
Apprenticeship
Q:DistinguishLearnershipfromApprenticeship.
A:
Learnership Apprenticeship
Nature
Trainingonthejobinsemi
skilledandotherindustrial
occupationortradeswhich
arenonapprenticeable
andwhichmaybelearned
thrupracticaltrainingon
thejobinarelativelyshort
periodoftime.
Trainingintradeswhich
areapprenticeable,that
is,practicaltrainingon
thejobsupplemented
byrelatedtheoretical
instructionformore
than3months.
Durationoftraining
Max:3months
Min:3months
Max:6months
Commitmenttoemploy
Withcommitmentto
employthelearnerasa
regularEeifhedesires
uponcompletionof
learnership
Nocommitmenttohire
Incaseofpreterminationofcontract
ConsideredaregularEeif
preterminationoccurs
after2monthsoftraining
andthedismissalis
withoutfaultofthe
learner.
Workernotconsidered
asregularemployee.
Coverage
Semiskilled/Industrial
occupations
Highlytechnical
industriesandonlyin
industrialoccupation
Thereisalistoflearnable
tradesbyTESDA
Nolist
Writtenagreement
RequireLearnership
Agreement
RequiresApprenticeship
Agreement
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
62
13.HANDICAPPEDWORKERS(RA9277)
13.
a.Definition
Q:Whoarehandicappedworkers(HW)?
A:Thosewhoseearningcapacityisimpairedby:
1. Physicaldeficiency
2. Age
3. Injury
4. Disease
5. Mentaldeficiency
6. Illness
Q:Whatisthedurationoftheemploymentperiod
ofhandicappedworkers?
Q:Doesthemerefactthataworkerhasadisability,
makehimahandicappedworker?
A: No, because his disability may not impair his
efficiency or the quality of his work. If despite his
disability he can still efficiently perform his work, he
cannot be classified as handicapped; he would be
consideredaqualifieddisabledworkerentitledtothe
sametreatmentasqualifiedablebodiedworkers.
b.Rightsofdisabledworkers
Q: What are the rights and privileges of disabled
workers?
A:
1. Equalopportunityforemployment
2. Sheltered employment (the govt shall
endeavourtoprovidethemworkifsuitable
employment for disabled persons cannot
befoundthroughopenemployment)
3. Apprenticeship
4. Vocationalrehabilitation(meanstodevelop
theskillsandpotentialsofdisabledworkers
and enable them to compete in the labor
market)
5. Vocationalguidanceandcounselling
c.Prohibitionsondiscriminationagainstdisabled
persons
Q: What is the prohibition on discrimination
againstdisabledworkers?
A: No disable person shall be denied access to
opportunities for suitable employment. A qualified
disabled employee shall be subject to the same
termsandconditionsofemploymentandthesame
compensation, privileges, benefits, fringe benefits,
incentives or allowances as a qualified able bodied
person.
Five percent (5%) of all casual emergency and
contractual positions in the Departments of Social
Welfare and Development; Health; Education,
Culture and Sports; and other government
agencies, offices or corporations engaged in social
development shall be reserved for disabled
persons.
d.Incentivesforemployers
Q: What are the incentives provided for employers
inemployingdisabledworkers?
A:1.Entitledtoanadditionaldeduction,fromtheir
gross income, equivalent to twentyfive percent
(25%) of the total amount paid as salaries and
wagestodisabledpersons:Provided,however,That
such entities present proof as certified by the
Department of Labor and Employment that
disabledpersonsareundertheiremploy:Provided,
further, That the disabled employee is accredited
withtheDepartmentofLaborandEmploymentand
LABOR STANDARDS
63
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
the Department of Health as to his disability, skills
andqualifications
2. Private entities that improve or modify their
physical facilities in order to provide reasonable
accommodation for disabled persons shall also be
entitled to an additional deduction from their net
taxableincome,equivalenttofiftypercent(50%)of
the direct costs of the improvements or
modifications
Q:Distinguishhandicappedfromdisabled?
A:
Handicapped
Disabled
(DifferentlyAbled)
Earningcapacityis
impairedbyage,or
physicalormental
deficiencyorinjury.
Referstoallsufferingfrom
restrictionofdifferentabilities
asaresultofmental,physical
orsensoryimpairmentto
performanactivityinthe
mannerorwithinrange
considerednormalfora
humanbeing.
Coversonlyworkers.
Coversallactivitiesor
endeavors.
Basis:loss/impairment
ofearningcapacity.
Basis:rangeofactivitywhich
isnormalforahuman
being.
Lossduetoinjuryor
physicalormental
defectorage.
Restrictionduetoimpairment
ofmental/physical/sensory
defect.
Ifhired,entitledto75%
ofminimumwage.
Subjecttodefinite
periodsof
employment.
Ifqualified,entitledtoall
termsandconditionsas
qualifiedablebodiedperson.
Employableonlywhen
necessarytoprevent
curtailmentof
employment
opportunity.
Norestrictionson
employment.
Mustgetequalopportunity
andnounfaircompetition.
64
D.TERMINATIONOFEMPLOYMENT
1.EMPLOYEREMPLOYEERELATIONSHIP
IsthereanErEerelationshipbetweentheBARON,
ononehand,andtheASIAsecurityguards,onthe
otherhand?Explainbriefly.
A:Asageneralrule,thesecurityguardsofaprivate
security guard agency are the employees of the
latterandnotoftheestablishmentthathasentered
into a contract with the private security guard
agency for security services. But under the facts in
thequestion,BaronHotelappeartohavehiredthe
security guards, to have paid their wages, to have
the power to promote, suspend or dismiss the
security guards and the power of control over
them, namely, the security guards were under
orders of Baron Hotel as regard their employment.
Because of the abovementioned circumstances,
BaronHotelistheErofthesecurityguards.
A: Itislawfulforaprivatesecurityguardagencyto
place its security guard on a "floating status" if it
has no assignment to give to said security guards.
But if the security guards are placed on a "floating
status"formorethan6months,thesecurityguards
mayconsiderthemselvesashavingbeendismissed.
(1999BarQuestion)
Q:Lacsonwasoneofmorethan100Eeswhowere
terminated from employment due to the closure
ofLBMConstructionCorporation.LBMwasasister
company of Lastimoso Construction, Inc. and RL
Realty & Devt Corp. All 3 entities formed what
came to be known as the Lastimoso Group of
Companies. The 3 corporations were owned and
controlled by members of the Lastimoso family;
their incorporators and directors all belonged to
TERMINATION OF EMPLOYMENT
65
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
the Lastimoso family. The 3 corporations were
engaged in the same line of business, under one
management, and used the same equipment
including manpower services. Lacson and his co
Ees filed a complaint with the Labor Arbiter
againstLBM,RLRealtyandLastimosoConstruction
to hold them jointly and severally liable for
backwages and separation pay. Lastimoso
Construction, Inc. RL Realty & Development
Corporation interposed a Motion to Dismiss
contending that they are juridical entitles with
distinct and separate personalities from LBM
Construction Corporation and therefore, they
cannot be held jointly and severally liable for the
money claims of workers who are not their Ees.
Rule on the motion to dismiss. Should it be
grantedordenied?Why?
a.Fourfoldtest
A:Thefourfoldtest:
1. Selection and engagement of the
employee;
2. Paymentofwages;
3. Powerofdismissal;and
4. Power of control. (The Labor Code with
Comments and Cases 2007, Azucena, Vol
I,p.158)
Q:Whatiscontroltest?
A:Thepersonforwhomtheservicesareperformed
reserves a right to control not only the end to be
achievedbutalsothemeanstobeusedinreaching
suchend.
Note:However,incertaincasesthecontroltestisnot
sufficienttogiveacompletepictureoftherelationship
betweentheparties,owingtothecomplexityofsucha
relationshipwhereseveralpositionshavebeenheldby
the worker. The better approach is to adopt the two
tiered test. (Francisco vs. NLRC, G.R. No. 170087, Aug.
31,2006)
Q: Genesis entered into a Careers Agent
Agreement with EmoLife Insurance Company, a
domestic corporation engaged in insurance
business. In the Agreement, it provides that the
agent is an independent contractor and nothing
therein shall be construed or interpreted as
creating an employer employee relationship. It
further provides that the agent must comply with
three requirements: (1) compliance with the
regulations and requirements of the company; (2)
maintenance of a level of knowledge of the
company's products that is satisfactory to the
company;and(3)compliancewithaquotaofnew
businesses. However, EmoLife insurance company
terminated Genesis services. Genesis filed an
illegal dismissal complaint alleging therein that an
employeremployeerelationshipexistsandthathe
was illegally dismissed. Is he an employee of the
insurancecompany?
A:GenesisisnotanemployeeofEmoLifeInsurance
Company. Generally, the determinative element is
the control exercised over the one rendereing the
service.TheconceptofcontrolinLaborCodehas
to be compared and distinguished with control
that must necessarily exist in a principalagent
relationship. The employer controls the employee
bothintheresultsandinthemeansandmannerof
achieving this result. The principal in an agency
relationship, e.g. insurance agent, on the other
hand, also has the prerogative to exercise control
over the agent in undertaking the assigned task
based on the parameters outlined in the pertinent
laws. In the present case, the Agreement fully
servesasgrantofauthoritytoGenesisasEmoLifes
insurance agent. This agreement is supplemented
bythecompanysagencypracticesandusages,duly
accepted by the agent in carrying out the agency.
Foremost among these are the directives that the
principal may impose on the agent to achieve the
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
66
assigned tasks, to the extent that they do not
involve the means and manner of undertaking
thesetasks.Thelawlikewiseobligatestheagentto
render an account; in this sense, the principal may
imposeontheagentspecificinstructionsonhowan
accountshallbemade,particularlyonthematterof
expenses and reimbursements. To these extents,
control can be imposed through rules and
regulations without intruding into the labor law
concept of control for purposes of employment.
(Gregorio Tongko v. ManuLife Insurance Company,
G.R.No.167622,Jun.29,2010)
b.TwotieredTest
Q:Whatisthetwotieredtest?
A:
1. The putative Ers power to control the Ee
with respect to the means and methods
bywhichtheworkistobeaccomplished;
and
2. The underlying economic realities of the
activityorrelationship.
Note:TheservicesofanEewhohasbeenengaged
on probationary basis may be terminated only for
justcause,whenhefailstoqualifyasaregularEein
accordance with reasonable standards prescribed
bytheEr.
Q: Michelle Miclat was employed on a
probationary basis as marketing assistant by
ClarionPrintingHousebutduringheremployment
shewasnotinformedofthestandardsthatwould
qualify her as a regular employee (Ee). 30 days
after, Clarion informed Miclat that her
employment contract had been terminated
without any reason. Miclat was informed thather
termination was part of Clarions costcutting
measures.IsMiclatconsideredasaregularEeand
henceentitledtoitsbenefits?
A:Yes.Probationaryemploymentshallbegoverned
by the following rules: (d) In all cases of
probationaryemployment,theErshallmakeknown
totheEethestandardsunderwhichhewillqualify
as a regular Ee at the time of his
engagement.Wherenostandardsaremadeknown
totheEeatthattime,heshallbedeemedaregular
Ee. In the case at bar, she was deemed to have
been hired from day one as a regular Ee. (Clarion
PrintingHouseInc.,vs.NLRC,G.R.No.148372,June
27,2005)
A:
1. Itisanemploymentforatrialperiod;
2. Itisatemporaryemploymentstatusprior
toregularemployment;
3. It arises through a contract with the
followingelements:
a. The employee (Ee) must learn and
workataparticulartypeofwork
b. Such work calls for certain
qualifications
c. Theprobationisfixed
d. The Er reserves the power to
terminateduringorattheendofthe
trialperiod
e. And if the Ee has learned the job to
the satisfaction of the Er, he
becomesaregularEe.
XPNs:
1. Covered by an apprenticeship or
learnership agreement stipulating a
differentperiod
TERMINATION OF EMPLOYMENT
67
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
2. Voluntary agreement of parties
(especially when the nature of work
requiresalongerperiod)
3. The Er gives the(Ee a second chance to
pass the standards set. (Mariwasa
Manufacturing, Inc. v. Leogardo, Jr.,G.R.
No.74246,Jan.26,1989)
4. When the same is required by the nature
of the work, e.g. the probationary period
set for professors, instructors and
teachers is 3 consecutive years of
satisfactory service pursuant to DOLE
ManualofRegulationsforPrivateSchools.
5. When the same is established by
companypolicy.
Note:Periodofprobationshallbereckonedfromthe
datetheEeactuallystartedworking.(Sec.6[b],RuleI,
BookVI,IRR)
Afterthelapseoftheprobationaryperiod(6months),
Eebecomesregular.
Q:Whatisthepurposeoftheperiod?
A: To afford the employer an opportunity to
observe the fitness of a probationary employee at
work.
Q: In what instances is a probationary employee
(Ee)deemedaregularEe?
A:
1. If he is allowed to work after a
probationaryperiod.(Art.281)
UST GOLDEN NOTES 2011
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MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
68
2. If no standards, under which he will
qualify as a regular Ee, are made known
to him at the time of his engagement.
(Sec.6[d],RuleI,BookVI,IRR)
Note:WhileprobationaryEesdonotenjoypermanent
status, they are afforded the security of tenure
protection of the Constitution. Consequently, they
cannot be removed from their positions unless for
cause. Such constitutional protection, however, ends
upon the expiration of the period stated in their
probationarycontractofemployment.Thereafter,the
parties are free to renew the contract or not. (CSA v.
NLRC,G.R.No.87333,Sep.6,1991)
WhatmakesCruzdismissalhighlysuspiciousisthat
it took place at a time when he needs only but a
day to be eligible as a regular Ee. That he is
competentfindssupportinhisbeingpromotedtoa
lead gardener in so short span of less than 6
months. By terminating his employment or
abolishing his position with but only one day
remaining in his probationary appointment, the
hotel deprived Cruz of qualifying as a regular Ee
with its concomitant rights and privileges. (Manila
Hotel Corp. v. NLRC, G.R. No. L53453, Jan. 22,
1986)
Q:ColegioSanAgustin(CSA)hiredtheGelaJoseas
a grade school classroom teacher on a
probationary basis for SY 84 85. Her contract
wasrenewedforSYs8586and8687.OnMar.
24, 87, the CSA wrote the Gela that "it would be
in the best interest of the students and their
families that she seek employment in another
school or business concern for next school year".
Notwithstandingthesaidnotice,theCSAstillpaid
Gela her salary for April 15 to May 15, 1987. On
April 6, 87, Gela wrote the CSA and sought
reconsideration but she received no reply.
Thereafter, she filed a complaint for illegal
dismissal.WasGelaillegallydismissed?
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
a complaint for illegal dismissal against their Er.
AsaLA,howwillyouresolvethecase?
A: As a LA I will resolve the case in favor of the 8
probationary Ees due to theff::
1. Probationary Ees also enjoy security of
tenure. (Biboso v. Victoria Milling, G.R.
No. L44360,Mar.31,1977)
2. InallcasesinvolvingEesonprobationary
status, the Er shall make known to the
Ee at the time he is hired,the standards
by which he will qualify for the
positionsappliedfor.
3. The filing of the complaint for illegal
dismissal effectively negates the Ers
theory of abandonment. (Rizada v.
NLRC,G.R. No.96982,Sep.21,1999)
4. The order to go home and not to return
to work constitutes dismissal from
employment.
5. The 8 probationary Ees were terminated
without just cause and without due
process
d.Kindsofemployment
(1)Regularemployment
Q:Whatisregularemployment?
A:
1. An employment shall be deemed to be
regularwheretheEehasbeenengagedto
perform activities which are usually
necessary or desirable in the usual
businessortradeoftheEr,theprovisions
of written agreements to the contrary
notwithstanding and regardless of the
oralagreementsoftheparties.(Sec.5[a],
RuleI,BookVI,IRR)
Note:Regularizationisnotamanagementprerogative;
rather,itisthenatureofemploymentthatdetermines
it.Itisamandateofthelaw.(PALv.Pascua,G.R.No.
143258,Aug.15,2003)
Regular employment does not mean permanent
employment. A probationary Ee becomes a regular Ee
after 6 months. A regular Ee may only be terminated
forjust/authorizedcauses.
(a)Reasonableconnectionrule
Note:Theconnectioncanbedeterminedby
considering the nature of the work
performedanditsrelationtotheschemeof
the particular business or trade in its
entirety. (Highway Copra Traders v. NLRC,
G.R.No.108889,July30,1998)
2. Also,theperformanceofajobforatleast
a year is sufficient evidence of the jobs
necessity if not indispensability to the
business. This is the rule even if its
performance is not continuous and
merely intermittent. The employment is
considered regular, but only with respect
to such activity and while such activity
exists. (Universal Robina Corp. v.
Catapang, G.R. No. 164736, Oct. 14,
2005).
Q:Isthemodeofcompensationdeterminativeof
regularemployment?
A:No,whiletheEesmodeofcompensationwason
a per piece basis the status and nature of their
employment was that of regular Ees. (Labor
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70
CongressofthePhilsv.NLRC,G.R.No.123938,May
21,1998)
Q:WhendoesArt.280notapply?
A:ItdoesnotapplyincaseofOFWs.
DaguishouldlikewisebeconsideredaregularEeby
the mere fact that he rendered service for the
Tanjangcos for more than one year, that is,
beginning 53 until 82, under Doa Aurora; and
then from 1982 up to June 8, 91 under the
daughter,foratotalof29and9yearsrespectively.
Owing to Dagui's length of service, he became a
regular Ee, by operation of law, one year after he
was employed in 53 and subsequently in 82.
(Aurora Land Projects Corp. v. NLRC, G.R. No.
114733,Jan.2,1997)
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VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
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or when there would be an unexpected shortage
of manpower in any of its work places or an
unusually high volume of work. The practice was
fortheworkerstowaiteverymorningoutsidethe
gates of the sales office of the company, if thus
hired,theworkerswouldthenbepaidtheirwages
at the end of the day. Should the workers be
consideredasregularemployees(Ees)ofCCBPI?
A:Yes,therepeatedrehiringoftheworkersandthe
continuing need for their services clearly attest to
the necessity or desirability of their services in the
regular conduct of the business or trade of the
company.Thefactthattheworkershaveagreedto
be employed on such basis and to forego the
protection given to them on their security of
tenure,demonstratenothingmorethantheserious
problem of impoverishment of so many of our
peopleandtheresultingunevennessbetweenlabor
and capital. (Magsalin & CocaCola v. N.O.W.M.,
G.R.No.148492,May9,2003)
Q:Whatisprojectemployment?
UST GOLDEN NOTES 2011
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72
e. Theterminationofhisemploymentinthe
particularproject/undertakingisreported
to the Department of Labor and
Employment Regional Office having
jurisdiction over the workplace within 30
days following the date of his separation
from work, using the prescribed form on
employees
termination/dismissal/suspensions
Q:Whataretherequisitesindeterminingwhether
anemployee(Ee)isaprojectEe?
A:
1. TheprojectEewasassignedtocarryouta
specificprojectorundertaking,and
2. The duration and scope of which were
specified at the time the Ee was engaged
for that project. (Imbuido v. NLRC, G.R.
No.114734,Mar.31,2000)
3. The Ee must have been dismissed every
aftercompletionofhisprojectorphase
4. Report to the DOLE of Ees dismissal on
account of completion of contract (Policy
Inst.No.20;D.O.19[1997])
Q:Whatisaproject?
A:Yes,whenthefollowingconcur:
Q:Whatisthedaycertainrule?
A:Itstatesthataprojectemploymentthatendson
a certain date does not end on an exact date but
uponthecompletionoftheproject.
Q:AreprojectEesentitledtoseparationpay?
A: GR: Project Ees are not entitled to separation
pay if they are terminated as a result of the
completionproject.
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
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the reportorial reqt confirms that Puente was a
projectEe.
ThemererehiringofPuenteonaprojecttoproject
basis did not confer upon him regular employment
status. The practice was dictated by the practical
consideration that experienced construction
workersaremorepreferred.Itdidnotchangehis
status as a project Ee. (Filipinas PreFabricated
Building Systems (FILSYSTEMS), Inc. v. Puente, G.R.
No.153832,Mar.18,2005)
(3)Seasonalemployment
Q:Whatisseasonalemployment?
A: Employment where the job, work or service to
be performed is seasonal in nature and the
employment is for the duration of the season.
(Sec.5[a],RuleI,BookVI,IRR)
An employment arrangement where an employee
(Ee) is engaged to work during a particular season
on an activity that is usually necessary or desirable
intheusualbusinessortradeoftheemployer(Er).
Note: ForseasonalEes,theiremploymentlegallyends
upon completion of the project or the season. The
termination of their employment cannot and should
not constitute an illegal dismissal. (Mercado v. NLRC,
G.R.No.79869,Sept.5,1991)
Q:AreseasonalEesentitledtoseparationpay?
A:No,thefactisthatbigricemillssuchastheone
ownedbythecompanycontinuetooperateanddo
businessthroughouttheyearevenifthereareonly
twoorthreeharvestseasonswithintheyear.Itisa
common practice among farmers and rice dealers
tostoretheirpalayandtohavethesamemilledas
the need arises. Thus, the milling operations are
not seasonal. Finally, considering the number of
years that they have worked, the lowest being 6
years, the workers have long attained the status of
regular Ees as defined under Art. 280. (Tacloban
SagkahanRiceMillv.NLRC,G.R.No.73806,Mar.21,
1990)
(4)Casualemployment
Q:Whatiscasualemployment?
A:
1. It is an employment where the Ee is engaged in
an activity which is not usually necessary or
desirable in the usual business or trade of the Er,
provided: such employment is not project nor
seasonal(Art.281).
Note:Butdespitethedistinctionbetweenregular
and casual employment, every Ee shall be
entitled to the same rights and privileges, and
UST GOLDEN NOTES 2011
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74
shall be subject to the same duties as may be
grantedbylawtoregularEesduringtheperiodof
theiractualemployment.
2.AnEeisengagedtoperformajob,workorservice
whichismerelyincidentaltothebusinessoftheEr,
andsuchjob,workorserviceisforadefiniteperiod
made known to the Ee at the time of engagement
(Sec.5[b],RuleI,BookVI,IRR)
Note:Ifhehasrenderedatleast1yearofservice,
whethersuchserviceiscontinuousorbroken,he
is considered as regular Ee with respect to the
activity in which he is employed and his
employment shall continue while such activity
exists.
ACasualEeisonlycasualfor1year,anditisthe
passage of time that gives him a regular status.
(KASAMMACCOv.CA,G.R.No.159828,April19,
2006)
A:
PROJECTWORKER
CASUALor
CONTRACTUAL
WORKER
Used to designate
workers in the
construction industry,
hired to perform a
specificundertakingfor
a fixed period, co
terminuswithaproject
or phase thereof
determinedatthetime
of the engagement of
theEe
Generic term used to
designate any worker
covered by a wrtitten
contract to perform a
specificundertakingfor
afixedperiod
Tobeconsideredatrue
project worker, it is
required that a
termination report be
submitted to the
nearest public
employment office
uponthecompletionof
the construciton
project. (Aurora Land
Projects Corp. v. NLRC,
G.R. No. 114733, Jan.
2,1997)
There is no such
requirement for an
ordinary contractual
worker
(5)Fixedtermemployment;Requisitesforvalidity
Q:Whatisthenatureoftermemployment?
A: A contract of employment for a definite period
terminates by its own terms at the end of such
period. (Brent School v. Zamora, G.R. No. L48494,
Feb.5,1990)
Q:Whatisafixedtermemployment?
A: It is an employment where a fixed period of
employmentwasagreedupon:
1. Knowinglyandvoluntarilybytheparties,
2. Without any force, duress or improper
pressure being brought to bear upon the
employee(Ee)and
3. Absent any other circumstances vitiating
hisconsent,or
4. WhereitsatisfactorilyappearsthattheEr
and Ee dealt with each other on more or
less equal terms with no moral
TERMINATION OF EMPLOYMENT
75
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
dominance whatever being exercised by
the former over the latter. (Brent School,
Inc. v. Zamora, G.R. No. 48494, Feb. 5,
1990)
Note:AfixedperiodEedoesnotbecomearegularEe
becausehisemploymentiscoterminuswithaspecific
periodoftime.
Q:DoestheReasonableConnectionRuleapplies
in fixed term employment for a fixed term
employee be eventually classified as regular
employee?
A:No.Petitionersweredismissedbyreasonofthe
expiration of their contracts of employment.
Petitioners'appointmentsasdean,deptheadsand
institutesecretarieswereforfixedtermsofdefinite
periods as shown by their respective contracts of
employment, which all expired on the same date,
May 31, 1988. The validity of employment for a
fixed period has been acknowledged and affirmed
bytheSC.(Blancaflorv.NLRC,G.R.No.101013,Feb.
2,1993)
e.Jobcontractingandlaboronlycontracting
Q:Whenistherejobcontracting?
A:Specifically,thereisjobcontractingwhere:
76
are necessary in the conduct of his
business.
Q:Whenistherelaboronlycontracting?
A: A person is deemed to be engaged in labor
onlycontractingwhere:
A:Thefollowingconditionsmustbemet:
3. Theagreementbetweentheprincipaland
contractor or subcontractor assures the
contractual employees entitlement to all
labor and occupational safety and health
standards, free exercise of the right to
selforganization, security of tenure, and
social welfare benefits. (Gallego v. BAYER
Phils.,Inc.,G.R.No.179807,July31,2009,
J.CarpioMorales)
Q:Whatarethefactorstoconsiderindetermining
whether contractor is carrying on an independent
business?
A:
1. Natureandextentofwork
2. Skillrequired
3. Termanddurationoftherelationship
4. Right to assign the performance of
specifiedpiecesofwork
5. Controlandsupervisionofworker
6. Power of employer to hire, fire and pay
wages
7. Controlofthepremises
8. Duty to supply premises, tools,
appliances,materialsandlabor
9. Mode, manner and terms of payment.
(Vinoya v. NLRC, G.R. No. 126286, Feb 2,
2000)
Note:Individualswithspecialskills,expertiseortalent
enjoy the freedom to offer their services as
independentcontractors.Anindividuallikeanartistor
talent has a right to render his services without any
one controlling the means and methods by which he
performs his artor craft. (Sonza vs. ABSCBN, G.R.No.
138051,June10,2004)
3. PrincipalAnyErwhoputsoutorfarmsouta
job, service, or work to a contractor or
subcontractor.
TERMINATION OF EMPLOYMENT
77
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VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
A: They shall be entitled to all the rights and
privilegesduetoaregularEeasprovidedintheLC,
asamendedtoincludetheff:
1. Safeandhealthfulworkingconditions
2. ServiceIncentiveLeave,restdays,OTpay,
holiday pay, 13
th
month pay and
separationpay
3. Socialsecurityandwelfarebenefits;
4. Selforganization, CBA and peaceful
concertedactions
5. Securityoftenure(Sec.8,DO1802)
A:
1. If prior to the expiration of the
employment contract between the
principal and the contractor or
subcontractor The right of CEe to
separation pay or other related benefits
shall be governed by the applicable laws
and jurisprudence on termination of
employment
A:Where:
1. Thereislaboronlycontracting
2. The contracting arrangement falls within
theprohibitedacts
Q:MaytheErorindirectErrequirethecontractor
or subcontractor to furnish a bond equal to the
cost of labor under contract to answer for the
wages due to Ees in case the contractor or
subcontractorfailstopaythesame?
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78
A:ThecontentionofSMCholdsnobasis.Usingthe
substantial capital doctrine and the right of
control test, the Court found that the Sunflower
had no substantial capital in the form of tools,
equipment, machineries, work premises and other
materials to qualify itself as an independent
contractor. The lot, building, machineries and all
other working tools utilized by private respondents
in carrying out their tasks were owned and
provided by SMC. In addition, the shrimp
processing company was found to have control of
the manner and method on how the work was
done.Thus,thecomplainantsweredeemedEesnot
of the cooperative but of the shrimp processing
company. Since respondents who were engaged in
shrimp processing performed tasks usually
necessary or desirable in the aquaculture business
of SMC, they should be deemed regular Ees of the
latter and as such are entitled to all the benefits
and rights appurtenant to regular employment.
(SMC vs. Prospero Aballa, et al., G.R. No. 149011,
June28,2005,J.CarpioMorales)
Note:TheEesofthecontractororsubcontractorshall
be paid in accordance with the provisions of the LC.
(Art.106)
Q:Whatislaboronlycontracting?
A: It refers to an arrangement where the following
conditionsconcur:
1. The person supplying workers to an Er
does not have substantial capital or
investment in the form of tools,
equipment, machineries, work, premises,
amongothers,or
2. Evenifsuchpersonhassubstantialassets,
thesamearenotactuallyordirectlyused
bytheEescontractedout;
3. Theworkersrecruitedandplacedbysuch
personareperformingactivitieswhichare
directly related to the principal business
ofsuchEr.
Q:Whyislaboronlycontractingprohibited?
A: ItgivesrisetoconfusionastowhoistherealEr
of the workers and who is liable to their claims. It
alsodeprivesworkersoftheopportunitytobecome
regularEes.
Q: How do we determine if one is engaged in
labor/jobonlycontracting?
A:Thetesttodeterminewhetheroneisajob/labor
onlycontractingistolookintotheelementsofajob
contractor. If all the elements of a job contractor
arepresent,thenheisajobcontractor.Absentone
of the elements for a job contractor, then the
personisalaboronlycontractor.
Note: It is the opinion of Dean Antonio H. Abad, Jr.
thatthedecisivedeterminantinjobcontractingshould
not be the fact that the contracted workers are
performingactivitieswhicharedirectlyrelatedtothe
main business of the principal, but that the principal
has no right to control the conduct of the employees
as to the means employed to achieve an end; not the
character of the activities as being usually necessary
ordesirableintheusualbusinessoftheemployer.
It cannot be gainsaid that the activities of the
contracted workers are always necessary or desirable;
even that they are directly related to the main
businessoftheprincipal.Theprimordialconsideration
should be the control test. Hence, if the
arrangement passes the control test, it is job
contracting.Ifitfails,itislaboronlycontracting.
Q: Distinguish between job contracting and labor
onlycontracting
A:
JOBCONTRACTING
LABORONLY
CONTRACTING
Liability is limited (shall be
solidarily liable with Er
only when the Er fails to
comply with reqts as to
unpaid wages and other
laborstandardsviolations)
Liability extends to all
those provided under
theLaborStandardslaw
Permissible, subject only
tocertainconditions
ProhibitedbyLaw
The contractor has
substantial capital or
investment
Has no substantial
capitalorinvestment
UNIVERSITYOFSANTOTOMAS
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VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
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productionorthenumberofworkersandthetime
used in certain areas of work. All work activities
andscheduleswerefixedbythecompany.
1.IsArnoldajobcontractor?Explainbriefly
2.Whoisliablefortheclaimsoftheworkershired
byArnold?Explainbriefly.
A:
1. No. In the problem given, Arnold did not
have sufficient capital or investment for
one. For another, Arnold was not free
from the control and direction of SMPC
because all work activities and schedules
were fixed by the company. Therefore,
Arnold is not a job contractor. He is
engagedinlaboronlycontracting.
2. SMPC is liable for the claims of the
workers hired by Arnold. A finding that
Arnold is a labor only contractor is
equivalenttodeclaringthatthereexistan
ErEe relationship between SMPC and
workers hired by Arnold. This is so
because Arnold is considered a mere
agent of SMPC (Lim v. NLRC, G.R. No.
124630, Feb. 19, 1999); 2002 Bar
Question)
A:
1. Nonsubmissionofcontractsbetweenthe
principal and the contractor or
subcontractorwhenrequiredtodoso;
2. Nonsubmissionofannualreport;
3. Findings through arbitration that the
contractor or subcontractor has engaged
in laboronly contracting and other
prohibitedactivities;
4. Noncompliancewithlaborstandardsand
workingconditions.(Sec.16,D.O.1802)
2.TERMINATIONOFEMPLOYMENT
a.Substantivedueprocess
Q:WhatisSubstantivedueprocess?
A:SubstantiveDueProcessprovidesthegroundfor
disciplinaryaction,i.e.correctiveorretributive
(a)Justcauses
A:
1. Serious misconduct or willful
disobediencebytheemployee(Ee)ofthe
lawful orders of his employer (Er) or
representative in connection with his
work
2. Gross and habitual neglect by the Ee of
hisduties
3. Fraud or willful breach by the Ee of the
trust reposed in him by his Er or duly
organizedrepresentative
4. Commission of a crime or offense by the
Ee against the person of his Er or any
immediate member of his family or his
dulyauthorizedrepresentative.
5. Othercausesanalogoustotheforegoing
Note: Theburdenofprovingthattheterminationwas
foravalidorauthorizedcauseshallrestontheEr.(Art.
277[b])
1.SeriousMisconduct
Q:Whatisseriousmisconduct?
Q:Givesomeexamplesofseriousmisconduct.
A:
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80
1. Sexualharassment
2. Fightingwithinthecompanypremises
3. Uttering obscene, insulting or offensive
wordsagainstasuperior
4. Falsificationoftimerecords
5. Grossimmorality
A:2requisitesmustconcur:
1. The employees (Ees) assailed conduct
musthavebeenwillfulor intentional,the
willfulness being characterized by a
wrongfulandperverseattitude.
2. The disobeyed orders, regulations or
instructionsoftheErmustbe:
a. Reasonableandlawful
b. SufficientlymadeknowntotheEe
c. Must pertain to or be in connection
with the duties which the Ee has
beenengagedtodischarge.(CosepV.
NLRC, G.R. No. 124966 June 16,
1998)
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transportationmoneyorassuranceofavailabilityof
work in Manila. (Escobin v. NLRC, G.R. No. 118159.
April15,1998)
3.Negligence
Q: When is negligence a just cause for
termination?
A:Whenitisgrossandhabitual.
Q:WhenisthereGrossNegligence?
A:Grossnegligenceimpliesawantorabsenceofor
failure to exercise slight care of diligence of the
entire absence of care it evinces thoughtless
disregard of consequences without exerting any
effort to avoid them. However, such neglect must
not only be gross but habitual in character. (Judy
Phils.v.NLRC,G.R.No.111934,April29,1998)
Q:WhenisthereHabitualNeglectofduties?
A: Habitual Neglect implies repeated failure to
perform ones duties over a period of time,
depending upon the circumstance. (JGB and
Associatesv.NLRC,GRNo.10939,Mar.7,1996)
Q: Antiola, as assorter of baby infant dress as for
Judy Phils. erroneously assorted and packaged
2,680 dozens of infant wear. Antiola was
dismissed from employment for this infraction.
Does the single act of misassortment constitute
grossnegligence?
A:No.Suchneglectmustnotonlybegrossbutalso
habitual in character. Hence, the penalty of
dismissal is quite severe considering that Antiola
committed the infraction for the first time. (Judy
Phils.v.NLRC,G.R.No.111934.April29,1998)
Q: Does the failure in performance evaluations
amounttogrossandhabitualneglectofduties?
A: As a general concept poor performance is
equivalent to inefficiency and incompetence in the
performance of official duties. The fact that an
employees (Ees) performance is found to be poor
or unsatisfactory does not necessarily mean that
the Ee is grossly and habitually negligent of his
duties. Gross negligence implies a want or absence
of or failure to exercise slight care of diligence or
theentireabsenceorcare.Heevincesathoughtless
disregard of consequences without exerting any
effort to avoid them. (Eastern Overseas
Employment Center Inc. v. Bea, G.R. 143023,
Nov.29,2005)
Q:Isinefficiencyajustcausefordismissal?
A: Yes, failure to observe prescribed standards of
work,ortofulfillreasonableworkassignmentsdue
to inefficiency may constitute just cause for
dismissal. Such inefficiency is understood to mean
failure to attain work goals or work quotas, either
by failing to complete the same within the allotted
reasonable period, or by producing unsatisfactory
results. (Buiser v. Leogardo, G.R. No. L63316, July
31,1984)
This ground is considered analogous to those
enumeratedunderArt.282.(SkippersUnitedPacific
v.Magud,G.R.No.166363,Aug.15,2006)
Q: Gamido was a quality control inspector of VH
Manufacturing. Gamido was allegedly caught by
the company Pres. Dy Juanco of sleeping and was
dismissed from employment. Did Gamidos act of
sleeping on the job constitute a valid cause of
dismissal?
A: Sleeping on the job as a valid ground for
dismissalonlyappliestosecurityguardswhoseduty
necessitatesthattheybeawakeandwatchfulatall
times. Gambidos single act of sleeping further
shows that the alleged negligence or neglect of
duty was neither gross nor habitual. (VH
Manufacturing v. NLRC, G.R. No. 130957, Jan. 19,
2000)
Q:Givesomeformsofneglectofduty.
A:
1. Habitualtardinessandabsenteeism
2. Abandonment:
a. Failuretoreportforworkorabsence
withoutjustifiablereason
b. Clear intention to sever ErEe
relationship manifested by some
overt acts. (Labor et. al v. NLRC, GR
No.110388,Sep.14,1995)
4.Abandonment
Q: What is abandonment as a just cause for
termination?
A: It means thedeliberate, unjustified refusal of an
employeetoresumehisemployment.
Q:Whataretherequirementsforavalidfindingof
abandonment?
82
more determinative factor, being
manifested by some overt acts. (Sta.
Catalina College s. NLRC, G.R. No.
144483,Nov.19,2003)
Q:Howtoproveabandonment?
Q:Whataretheguidelinesforthedoctrineofloss
ofconfidencetoapply?
A:
1. Loss of confidence should not be
simulated (reasonable basis for loss of
trustandconfidence)
2. Not used for subterfuge for causes which
are improper and/or illegal and
unjustified
3. Not arbitrarily asserted in the face of
overwhelmingevidencetothecontrary
TERMINATION OF EMPLOYMENT
83
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
4. Must be genuine, not a mere
afterthoughttojustifyearlieractiontaken
inbadfaithand
5. The Ee involved holds a position of trust
andconfidence
84
officers expelled by the federation for allegedly
committingactsofdisloyaltyand/orinimicalto the
interest of the federation and in violation of its
constitutionandbylaws.
The right of an Ee to be informed of the charges
against him and to be given a reasonable
opportunity to present his side in a controversy
with either the company or his own union is not
wiped away by a union security clause in a CBA.
Even assuming that a federation had valid grounds
to expel union officers, due process requires that
theseunionofficersbeaccordedaseparatehearing
by the company. (MSMG v. Ramos, G.R. No.
113907,Feb.28,2000)
7.TotalityofInfractionsdoctrine
Q:Whatisthetotalityofinfractionsdoctrine?
A:Itisthetotality,notthecompartmentalizationof
company infractions that the Ee has committed,
which justifies the penalty of dismissal. (MERALCO
v.NLRC,G.R.No.114129,Oct.24,1996)
Note: Where the Ee has been found to have
repeatedly incurred several suspensions or warnings
on account of violations of company rules and
regulations, the law warrants their dismissal as it is
akin to habitual delinquency. (Villeno v. NLRC, G.R.
No.108153,Dec.26,1995)
Q: What are the guidelines to determine the
validityoftermination?
A:Gravityoftheoffense
1. Positionoccupiedbytheemployee
2. Degreeofdamagetotheemployer
3. Previousinfractionsofthesameoffense
4. LengthofService
8.CommissionofaCrime
Q: What do you mean by commission of a crime
or offense as a just cause for termination of an
Ee?
9.AnalogousCases
Q:Whatisthedoctrineofincompatibility?
A:Wheretheemployeehasdonesomethingthatis
contrary or incompatible with the faithful
performance of his duties, his employer has a just
cause for terminating his employment. (Manila
ChauffeursLeaguev.BachrachMotorCo.,G.R.No.
L47071,June17,1940)
(b).AuthorizedCauses
Q: What are the authorized causes of termination
bytheemployer(Er)?
A:
1. Installation of laborsaving devices
(automation/robotics)
Note:Theredundancyshouldnothavebeen
createdbytheEr.
3. Reorganization
TERMINATION OF EMPLOYMENT
85
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
4. Retrenchment cutting of expenses and
includesthereductionofpersonnel;Itisa
management prerogative, a means to
protectandpreservetheErsviabilityand
ensure his survival. To be an authorized
cause it must be affected in good faith
(GF) and for the retrenchment, which is
after all a drastic recourse with serious
consequences for the livelihood of the
Eesorotherwiselaidoff.
Note:Thephrasetopreventlossesmeans
that retrenchment or termination from the
service of some Ees is authorized to be
undertaken by the Er sometime before the
anticipated losses are actually sustained or
realized. Evidently, actual losses need not
setinpriortoretrenchment.(CajucomVIIv.
TP Phils Cement Corp., et al, G.R. No.
149090,Feb.11,2005)
Q:Whatareotherauthorizedcauses?
A:
1. TotalandpermanentdisabilityofEe
2. Validapplicationofunionsecurityclause
3. Expiration of period in term of
employment
4. Completion of project in project
employment
5. Failureinprobation
6. Relocationofbusinesstoadistantplace
7. Defianceofreturntoworkorder
8. CommissionofIllegalactsinstrike
9. Violationofcontractualagreement
10. Retirement
A:
1. Written Notice to DOLE 30 days prior to
theintendeddayoftermination.
Purpose: To enable it to ascertain the
verityofthecauseoftermination.
Redundancy
Q:Whataretherequisitesofavalidredundancy?
A:
1. Written notice served on both the
employees (Ees) and the DOLE at least 1
monthpriortoseparationfromwork
2. Payment of separation pay equivalent to
at least 1 month pay or at least 1 month
payforeveryyearofservice,whicheveris
higher
3. Good faith in abolishing redundant
position
4. Fair and reasonable criteria in
ascertaining what positions are to be
declaredredundant:
a. Lesspreferredstatus,e.g.temporary
Ee
b. Efficiencyand
c. Seniority
Q:Ong,aSalesManagerofWiltshireFileCo.,Inc.,
was informed of the termination of his
employment due to redundancy upon returning
from a trip abroad. Ong maintains that there can
be no redundancy since he was the only person
occupyinghispositioninthecompany.
IsthereredundancyeventhoughOngwastheonly
oneoccupyinghisposition.
A: Redundancy in an employers (Ers) personnel
does not necessarily or even ordinarily refer to
duplication of work. The characterization ofOngs
services as no longer necessary or sustainable and
therefore properly terminable, was an exercise of
business judgment on the part of Wiltshire.
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
86
Furthermore, a position is redundant where it is
superfluous, and superfluity of a position or
positions may be the outcome of a number of
factors, such as over hiring of workers, decreased
volume of business, or dropping of a particular
product line or service activity previously
manufacturedorundertakenbytheenterprise.The
Erhasnolegalobligationtokeepinitspayrollmore
employees that are necessary for the operation of
itsbusiness.(WiltshireFileCo.,Inc.v.NLRC,G.R.No.
82249,Feb.7,1991)
Retrenchment
Q: What are the circumstances that must be
presentforavalidretrenchment?
A:
1. The losses expected should be substantial
and not merely de minimis in extent If
the loss purportedly sought to be
forestalled by retrenchment is clearly
shown to be insubstantial and
inconsequential in character, the bona
fide nature of the retrenchment would
appeartobeseriouslyinquestion.
2. Thesubstantiallossapprehendedmustbe
reasonablyimminentassuchimminence
can be perceived objectively and in good
faith by the employer (Er). There should
be a certain degree of urgency for the
retrenchment.
3. Itmustbereasonablynecessaryandlikely
to prevent the expected losse The Er
should have taken other measures prior
or parallel to retrenchment to forestall
losses such as cutting other costs than
laborcosts.
Retrenchmentisameansoflastresort.
A:
1. WrittennoticeservedonboththeEeand
the DOLE at least 1 month prior to the
intendeddateofretrenchment
2. Payment of separation pay equivalent to
at least one month pay or at least 1/2
month pay for every year of service,
whicheverishigher
3. Goodfaith
4. Proofofexpectedoractuallosses
5. The employer used fair and reasonable
criteria in ascertaining who would be
retained among the Ees, such as status,
efficiency, seniority, physical fitness, age,
and financial hardship of certain workers
(Asian Alcohol Corp. v. NLRC, G.R. No.
131108,Mar.25,1999).
Q:Whatisthelastinfirstout(LIFO)rule?
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
companyfrom closingshop. In
determining these issues, management plays a
preeminentrole.Thecharacterizationofpositions
as redundant is an exercise of business judgment
on the part of the Er. It will be upheld as long
as it passes the test of arbitrariness. (2001 Bar
Question)
Q: What is the difference between redundancy
andretrenchment?
A: In redundancy, company has no financial
problems, unlike in retrenchment where the
companywillsufferfinanciallosses.
Q: Philippine Tuberculosis Society, Inc. retrenched
116 Ees after incurring deficits amounting to 9.1
million pesos. Aside for retrenching some of its
Ees, the company also implemented cost cutting
measurestopreventsuchlossesforincreasingand
minimizing it. The NLRC ruled that the
retrenchmentwasnotvalidonthegroundthatthe
Societydidnottakeseniorityintoaccountintheir
selection. Was the retrenchment done by the
Society not valid for its failure to follow the
criterialaiddownbylaw?
A: No. The Society terminated the employment of
several workers who have worked with the Society
forgreatnumberofyearswithoutconsiderationfor
the number of years of service and their seniority
indicates that they had been retained for such a
longtimebecauseofloyalandefficientservice.The
burden of proving the contrary rest on the Society.
(Phil. Tuberculosis Society, Inc. v. National Labor
Union,G.R.No.115414,Aug.25,1998)
Q: Due to mounting losses the former owners of
Asian Alcohol Corporation sold its stake in the
companytoPriorHoldings.Upontakingcontrolof
thecompanyandtopreventlosses,PriorHoldings
implementedareorganizationplanandothercost
saving measures and one of them is the
retrenchment of 117 employees (Ees) of which
some are members of the union and the majority
held by nonunion members. Some retrenched
workers filed a complaint for illegal dismissal
alleging that the retrenchment was a subterfuge
forunionbustingactivities.
Was the retrenchment made by Asian Alcohol
validandjustified?
A: Yes. Even though the bulk of the losses were
sufferedundertheoldmanagementandcontinued
only under the new management ultimately the
newmanagementofPriorHoldingswillabsorbsuch
losses. The law gives the new management every
right to undertake measures to save the company
frombankruptcy.(AsianAlcoholCorp.v.NLRC,G.R.
No.131108,Mar.25,1999)
Closure
Q:Whataretherequisitesofavalidclosure?
A:
1. Written notice served on both the
employees (Ees) and the DOLE at least 1
month prior to the intended date of
closure
2. Payment of separation pay equivalent to
at least one month pay or at least 1/2
month pay for every year of service,
whichever is higher, except when closure
isduetoseriousbusinesslosses
3. Goodfaith
4. Nocircumventionofthelaw
5. NootheroptionavailabletotheEr
A:Onlywhereclosureisnotduetoseriousbusiness
losses nor due to an act of govt. (North Davao
Mining Corp v. NLRC, G.R. No. 112546, Mar. 13,
1996;NFLv.NLRC,G.R.No.127718,Mar.2,2000)
88
(Galaxie Steel Workers Union v. NLRC, G.R. No.
165757,Oct.17,2006)
AreEesentitledtoseparationpay?
Wastheclosurewarrantedbytheallegedbusiness
reverses?
A: The closure of a business establishment is a
ground for the termination of the services of any
employee unless the closing is for the purpose of
circumventing the provisions of the law. But, while
business reverses can be a just cause for
terminating employees, they must be sufficiently
proved.Inthiscase,theauditedfinancialstatement
ofSIMEXclearlyindicatesthattheyactuallyderived
earnings.Althoughtherejectionsmayhavereduced
theirearningstheywerenotsufferinglosses.There
is no question that an employer may reduce its
workforcetopreventlossesbutitmustbeserious,
actual and real otherwise this ground for
termination would be susceptible to abuse by
scheming employers who might be merely feigning
business losses or reverses in their business
ventures to ease out employees. (Union of Filipino
Workersv.NLRC,G.R.No.90519,Mar.23,1992)
Q: Carmelcraft Corporation closed it business
operations allegedly due to losses of P1, 603.88
aftertheCarmelcraftEesUnionfiledapetitionfor
certification election. Carmelcraft Union filed a
complaint for illegal lockout and ULP with
damages and claim for employment benefits.
Were the losses incurred by the company enough
tojustifyclosureofitsoperations?
A: The determination to cease operations is a
prerogative of management that is usually not
interfered with by the State as no business can be
required to continue operating at a loss simply to
maintain the workers in employment. That would
be a taking of property without due process oflaw
whichtheemployerhasarighttoresist.Butwhere
itismanifestthattheclosureismotivatednotbya
desiretoavoidfurtherlossesbuttodiscouragethe
workers from organizing themselves into a union
for more effective negotiations with management,
the State is bound to intervene. The losses of less
than P2,000 for a corporation capitalized at P3
millioncannotbeconsideredseriousenoughtocall
for the closure of the company. (Carmelcraft Corp.
v.NLRC,G.R.No.9063435,June6,1990)
Q: Is the transferee of the closed corporation
required to absorb theemployees (Ees) of the old
corporation?
A:
GR:Thereisnolawrequiringabonafidepurchaser
of assets of an ongoing concern to absorb in its
employ the Ees of the latter except when the
transaction between the parties is colored or
clothedwithbadfaith(BF).(SundownerDevtCorp.
v.Drilon,G.R.No.82341,Dec.6,1989)
XPNs:
1. Where the transferee was found to be
merely an alter ego of the different
mergingfirms.(FilipinasPortServices,Inc.
v.NLRC,G.R.No.97237,Aug.16,1991)
2. Where the transferee voluntarily agrees
to do so. (Marina Port Services, Inc. v.
Iniego,G.R.No.77853,Jan.22,1990)
Q:MarikinaDairyIndustries,Inc.decidedtosellits
assets and close operations on the ground of
heavylosses.Theunionsallegedthatthefinancial
losses were imaginary and the dissolution was a
schememaliciouslydesignedtoevadeitslegaland
social obligations to its employees (Ees). The
unionswantthebuyersofthecorporationsassets
restrained to operate unless the members of the
unions were the ones hired to operate the plant
under the terms and conditions specified in the
collectivebargainingagreements.
Is the buyer of a companys assets required to
absorbtheEesoftheseller?
A:Thereisnolawrequiringthatthepurchaserofa
companys assets should absorb its Ees and the
TERMINATION OF EMPLOYMENT
89
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
most that can be done for reasons of public policy
and social justice was to direct that buyers of such
assetstogivepreferencetothequalifiedseparated
Ees in the filling up of vacancies in the facilities of
the buyer. (MDII Supervisors & Confidential Ees
Assn(FFW)v.residentialAssistantonLegalAffairs,
G.R.Nos.L4542123,Sep.9,1977)
Q: What is the difference between closure and
retrenchment?
A:
CLOSURE RETRENCHMENT
Is the reversal of
fortune of the Er
whereby there is a
complete cessation of
business operations to
preventfurtherfinancial
drain upon an Er who
cannot pay anymore his
Ees since business has
alreadystopped.
Is the reduction of
personnel for the purpose
ofcuttingdownoncostsof
operations in terms of
salaries and wages
resorted to by an Er
because of losses in
operation of a business
occasionedbylackofwork
andconsiderablereduction
inthevolumeofbusiness.
One of the prerogatives
of management is the
decision to close the
entire establishment or
to close or abolish a
department or section
thereof for economic
reasons, such as to
minimize expenses and
reducecapitalization.
As in the case of
retrenchment, however,
for the closure of a
business or a department
due to serious business
lossestoberegardedasan
authorized cause for
terminatingEes,itmustbe
proven that the losses
incurred are substantial
and actual or reasonably
imminent; that the same
increasedthroughaperiod
of time; and that the
condition of the company
is not likely to improve in
thenearfuture.
DoesnotobligatetheEr
for the payment of
separation package if
there is closure of
business due to serious
losses.
LC provides for the
payment of separation
package in case of
retrenchment to prevent
losses.
Disease
Q:Whenisdiseaseagroundfordismissal?
A:WheretheEesuffersfromadisease,and:
1. His continued employment is prohibited
by law or prejudicial to his health or to
the health of his coEes. (Sec.8, Rule I,
BookVI,IRR)
2. With a certification by competent public
health authority that the disease is
incurable within 6 months despite due
medication and treatment. (Solis v. NLRC,
GRNo.116175,Oct.28,1996)
Note:Thereqtforamedicalcertificationcannot
be dispensed with; otherwise, it would sanction
the unilateral and arbitrary determination by the
Er of the gravity or extent of the Ees illness and
thusdefeatthepublicpolicyontheprotectionof
labor.(ManlyExpressvPayong,G.R.No.167462,
Oct.25,2005)
A:
1. The employer (Er) shall not terminate his
employmentunless:
a. There is a certification by a
competentpublichealthauthority
b. That the disease is of such nature or
at such a stage that it cannot be
cured within a period of 6 months
evenwithpropermedicaltreatment.
Q:Isanemployeesufferingfromadiseaseentitled
toreinstatement?
90
afflictingtheemployeesoughttobedismissedisof
suchnatureoratsuchstagethatitcannotbecured
within 6 months even with proper medical
treatment that the latter could be validly
terminated from his job. (Tan v. NLRC, G. R. No.
116807,April14,1997)
Note: Termination from work on the sole basis of
actual perceived or suspected HIV status is deemed
unlawful.(Sec.35,R.A.8504HIV/AIDSLaw)
Q: Anna Ferrer has been working as
bookkeeperatGreatFoods,Inc.,whichoperatesa
chain of highend restaurants throughout the
country, since 1970 when it was still a small
eatery at Binondo. In the early part of the year
2003, Anna, who was already 50 years old,
reported for work after a weeklong vacation in
herprovince.ItwastheheightoftheSARSscare,
andmanagementlearnedthatthefirstconfirmed
SARSdeathcaseinthePhils,abalikbayannurse
from Canada, is a townmate of Anna.
Immediately, a memorandum was issued by
managementterminatingtheservicesofAnnaon
the ground that she is a probable carrier of SARS
virus and that her continued employment is
prejudicial to the health of her coEes. Is the
actiontakenbytheemployer(Er)justified?
A: The Ers act of terminating the employment of
Anna is not justified. There is no showing that said
employeeissickwithSARS,orthatsheassociatedor
had contact with the deceased nurse. They are
merely town mates. Furthermore, there is no
certification by a competent public health authority
that the disease is of such a nature or such a stage
that it cannotbecuredwithinaperiodof6months
evenwithpropermedicaltreatment.(Implementing
Rules, Book VI, Rule 1, Sec. 8, LC) (2004 Bar
Question)
Q:Discusstherulesonseparationpaywithregard
toeachcauseoftermination.
A:
CAUSEOF
TERMINATION
SEPARATIONPAY
Automation
Equivalenttoatleast1month
pay or at least 1 month pay
for every year of service,
whicheverishigher
Redundancy
Equivalenttoatleast1month
pay or at least 1 month pay
for every year of service,
whicheverishigher
Retrenchment
Equivalent to 1 month pay or
at least month pay for
everyyearorservice
Closures or cessation
of operation not due
to serious
business
losses/financial
reverses
Equivalenttoatleast1month
pay or at least 1 month pay
for every year of service (if
duetoseverefinanciallosses,
noseparationpay
Disease
Equivalenttoatleast1month
pay or at least month pay
for every year of service,
whicheverishigher
A:
1. To give the Ees some time to prepare for
the eventual loss of their jobs and their
corresponding income, look for other
employment and ease the impact of the
lossoftheirjobs.
2. TogiveDOLEtheopportunitytoascertain
the verity of the alleged cause of
termination. (Phil. Telegraph & Telephone
Corp. v. NLRC, G.R. No. 147002, April 15,
2005)
Note:NoticetoboththeEesconcernedandtheDOLE
aremandatoryandmustbewrittenandgivenatleast
1 month before the intended date of retrenchment
and the fact that the Ees were already on temporary
layoff at the time notice should have been given to
them is not an excuse to forego the 1month written
notice. (Sebuguero v. NLRC, G.R. No.115394, Sep. 27,
1995)
Q: DAP Corp. ceased its operation due to the
terminationofitsdistributionagreementwithIntl
Distributors Corp. which resulted in its need to
ceaseitsbusinessoperationsandtoterminatethe
employment of its Ees. Marcial et al. filed a
complaint for illegal dismissal and for failure to
give the Ees written notices regarding the
termination of their employment. On the other
hand, DAP claims that their Ees actually knew of
the termination therefore the written notices
were no longer required. Are written notices
dispensed with when the Ees have actual
knowledgeoftheredundancy?
A: The Ees actual knowledge of the termination of
a companys distributorship agreement with
another company is not sufficient to replace the
formal and written notice required by law. In the
TERMINATION OF EMPLOYMENT
91
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ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
written notice, the Ees are informed of the specific
date of the termination, at least a month prior to
the date of effectivity, to give them sufficient time
to make necessary arrangements. In this case,
notwithstanding the Ees knowledge of the
cancellation of the distributorship agreement, they
remained uncertain about the status of their
employment when DAP failed to formally inform
them about theredundancy. (DAP Corp. v.CA, G.R.
No.165811,Dec.14,2005)
b.Proceduraldueprocess
Q: What are the 2fold requirements of a valid
dismissalforajustcause?
A:
1. Substantiveitmustbeforajustcause
2. Procedural there must be notice and
hearing
Note:Singlenoticeofterminationdoesnot
comply with the requirements of the law.
(Aldeguer & Co., Inc. vs. Honeyline Tomboc,
G.R.No.147633,July28,2008)
Q:Whatisthepurposeofnoticeandhearing?
A:
1. The reqt of notice is intended to inform
the Ee concerned of the Ers intent to
dismiss him and the reason for the
proposeddismissal
2. On the otherhand the reqt of hearing
affords the Ee the opportunity to answer
his Ers charges against him and
accordingly to defend himself there from
before dismissal is effected. (Salaw v.
NLRCG.R.No.90786Sep.27,1991)
Note:Failuretocomplywiththereqtofthe
2 notices makes the dismissal illegal. The
procedure is mandatory. (Loadstar Shipping
Co.Inc.v.Mesano,G.R.No.138956,Aug.7,
2003)
92
in the implementing rules and
regulations. (Perez v. PT&T, G.R. No.
152048,Apr.7,2009)
Q:Whohastheburdenofproof?
A:Theburdenofproofrestsupontheemployerto
showthatthedismissaloftheemployeeisforajust
cause,andfailuretodosowouldnecessarilymean
that the dismissal is not justified, consonant with
theconstitutionalguaranteeofsecurityoftenure.
Note: Due process refers to the process to be
followed; burden of proof refers to the amount of
prooftobeadduced.
Inmoneyclaims,theburdenofproofastotheamount
to be paid the Ees rests upon the Er since he is in
custodyofdocumentsthatwouldbeabletoprovethe
amountdue,suchasthepayroll.
Q:Whatisthedegreeofproof?
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
A: No, In Agabon v. NLRC, G.R. No. 158693, Nov.
17,2004,itwasheldthatwhendismissalisforjust
or authorized cause but due process was not
observed,thedismissalshouldbeupheld.
1. Ifbasedonjustcause(Art.282)buttheEr
failedtocomplywiththenoticereqt,the
sanction to be imposed upon him should
be tempered because the dismissal
process was, in effect, initiated by an act
imputabletotheEe;and
2. If based on authorized causes (Art. 283)
buttheErfailedtocomplywiththenotice
reqt, the sanction should be stiffer
because the dismissal process was
initiated by Ers exercise of his
managementprerogative.
c.Reliefsforillegaldismissal
(1)Reinstatementaspect
Q: What are the remedies available to an illegally
dismissedemployee(Ee)?
A:AnEewhoisunjustlydismissedfromworkshall
byentitledto:
1. Reinstatement without loss of seniority
rightsand
2. Full backwages. (Sec. 3, Rule I, Book VI,
IRR)
3. Separationpayinlieuofreinstatement,if
thelatterisnolongerfeasible
Q:Whatisreinstatement?
A:Itistherestorationoftheemployeetothestate
from which he has been unjustly removed or
separatedwithoutlossofseniorityrightsandother
privileges.
(a)Immediatelyexecutory:actualreinstatementand
payrollreinstatement
Q:Whataretheformsofreinstatement?
A:
1. Actual or physical the employee (Ee) is
admittedbacktowork
2. PayrolltheEeismerelyreinstatedinthe
payroll
Consequently, there is
nothing left to be done
except the execution
thereof.
Maybeavailedofassoon
as the labor arbiter
renders a judgment
declaring that the
dismissal of the Ee is
illegal and ordering said
reinstatement. It may be
availed of even pending
appeal
94
Rehabilitation Receiver for appropriate action.
WhetherGarciamaycollecttheirwagesduringthe
period between the LAs order of reinstatement
pendingappealandtheNLRCdecisionoverturning
thatoftheLA?
A: Par. 3 of Art. 223 of the LC provides that the
decision of the LA reinstating a dismissed or
separatedEe,insofarasthereinstatementaspectis
concerned, shall immediately be executory,
pendingappeal.
Even if the order of reinstatement of the LA is
reversed on appeal, it is obligatory on the part of
the Er to reinstate and pay the wages of the
dismissed Ee during the period of appeal until
reversal by the higher court. On the other hand, if
theEehasbeenreinstatedduringtheappealperiod
and such reinstatement order is reversed with
finality, the Ee is not required to reimburse
whatever salary he received for he is entitled to
such, more so if he actually rendered services
duringtheperiod.
In other words, a dismissed Ee whose case was
favorably decided by the LA is entitled to receive
wagespendingappealuponreinstatement,whichis
immediatelyexecutory.Unlessthereisarestraining
order,itisministerialupontheLAtoimplementthe
order of reinstatement and it is mandatory on the
Er to comply therewith. (Garcia vs. PAL, G.R. No.
164856,Jan.20,2009)
Q: What is the effect of the reversal of LAs
decisiontothereinstatedemployee(Ee)
A: If the decision of the LA is later reversed on
appeal upon the finding that the ground for
dismissal is valid, then the Er has the right to
require the dismissed Ee on payroll reinstatement
to refund the salaries he/she received while the
case was pending appeal, or it can be deducted
from the accrued benefits that the dismissed Ee
was entitled to receive from the employer under
existing laws, CBA provisions, and company
practices.However,iftheEewasreinstatedtowork
during the pendency of the appeal, then the Ee is
entitled to receive the compensation received for
actual services rendered without need of refund
(Citibank v. NLRC, G.R. No. 14273233, Dec. 4,
2007).
Q: May a court order the reinstatement of a
dismissed employee (Ee) even if the prayer of the
complaintdidnotincludesuchrelief?
A:Yes.SolongasthereisafindingthattheEewas
illegally dismissed, the court can order the
reinstatement of an Ee even if the complaint does
not include a prayer for reinstatement, unless, of
coursetheEehaswaivedhisrighttoreinstatement.
Bylaw,anEewhoisunjustlydismissedisentitledto
reinstatement among others. The mere fact that
the complaint did not pray for reinstatement will
not prejudice the Ee, because technicalities of law
and procedure are frowned upon in labor
proceedings (Pheschem Industrial Corp. v. Moldez,
G.R.No.1161158,May9,2005).
Q: What happens if there is an Order of
Reinstatement but the position is no longer
available?
A: The employee (Ee) should be given a
substantiallyequivalentposition.Ifnosubstantially
equivalent position is available, reinstatement
shouldnotbeorderedbecausethatwouldineffect
compel the employer to do the impossible. In such
a situation, the Ee should merely be given a
separation pay consisting of 1month salary for
every year of service (Grolier Intl Inc. v. ELA, G.R.
No.83523,Aug.31,1989)
(2)Separationpayinlieuofreinstatement
Q:Howcanseparationpaybeviewed?
A: Under present laws and jurisprudence,
separationpaymaybeviewedin4ways:
1. Inlieuofreinstatementinillegaldismissal
cases,whereEeisorderedreinstatedbut
reinstatementisnotfeasible.
2. As Ers statutory obligation in cases of
legal termination due to authorized
causesunderArt.283and284oftheLC.
3. As financial assistance, as an act of social
justice and even in case of legal dismissal
underArt.282oftheLC.
4. AsemploymentbenefitgrantedinCBAor
companypolicy.(Poquiz,2005)
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
3. Whenitwillnotservethebestinterestof
thepartiesinvolved.
4. Company will be prejudiced by
reinstatement.
5. Whenitwillnotserveaprudentpurpose.
6. When there is resultant strained relation
(applies to both confidential and
managerialemployees(Ees)only).
7. When the position has been abolished
(applies to both managerial, supervisory
andrankandfileEes).
Note:Insuchcases,itwouldbemoreprudenttoorder
payment of separation pay instead of reinstatement.
(Quijano v. Mercury Drug Corporation, G.R. No.
126561,July8,1998)
A:No.Whendriversvoluntarilychosenottoreturn
to work anymore, they must be considered as
having resigned from their employment. The
common denominator of those instances where
payment of separation pay is warranted is that the
employeewasdismissedbytheemployer.(Capiliv.
NLRC,G.R.117378,Mar.26,1997)
(a)Strainedrelationrule
Q:Whatisthedoctrineofstrainedrelations?
A: When the Er can no longer trust the Ee andvice
versa, or there were imputations of bad faith to
each other, reinstatement could not effectively
serve as a remedy. This doctrine applies only to
positionswhichrequiretrustandconfidence(Globe
Mackayv.NLRC,G.R.No.82511,March3,1992).
Note: Under the circumstances where the
employment relationship has become so strained to
preclude a harmonious working relationship and that
all hopes at reconciliation are naught after
reinstatement, it would be more beneficial to accord
theEebackwagesandseparationpay.
A:
1. The Ee concerned occupies a position
whereheenjoysthetrustandconfidence
ofhisEr;and
2. That it is likely that if reinstated, an
atmosphere of antipathy and antagonism
may be generated as to adversely affect
the efficiency and productivity of the Ee
concerned. (Globe Mackay Cable & Wire
UST GOLDEN NOTES 2011
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MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
96
Corp. v. NLRC G.R. No. 82511, Mar. 3,
1992)
Fullbackwagesfromthe
timeofhiscompensation
waswithheldfromhim
uptothetimeofhis
actualreinstatement.
FullReimbursementofhis
placementfeewith
interestof12%per
annum.
(3)Backwages
Q:Whatarebackwages?
(a)Componentsoftheamountofbackwages
Q:Whatdoesthetermfullbackwagesmean?
TERMINATION OF EMPLOYMENT
97
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
A: TheLaborCodeasamendedbyR.A.6715points
to "full backwages" as meaning exactly that, i.e.,
without deducting from backwages the earnings
derived elsewhere by the concerned Ee during the
periodofhisillegaldismissal.(Buenviajev.CA,G.R.
147806,Nov.12,2002)
The underlying reason for this ruling is that the
employee, while litigating the legality (illegality) of
his dismissal, must still earn a living to support
himselfandfamily,whilefullbackwageshavetobe
paidbytheemployeraspartof thepricehehasto
pay for illegally dismissing his Ee.
(Bustamante v.
NLRC,G.R.No.111651,Mar.15,1996)
Q: Is an Ee entitled to backwages even after the
closureofthebusiness?
Q:Whatarethecircumstancesthatpreventaward
ofbackwages?
A:
1. Dismissalforcause
2. Death, physical or mental incapacity of
theemployee
3. Businessreverses
4. Detentioninprison
(4)ConstructiveDismissal
Q:Whatisconstructivedismissal?
A:Aninvoluntaryresignationresortedtowhen:
1. continued employment becomes
impossible,unreasonable,orunlikely
2. there is a demotion in rank or diminution
inpayor
3. clear discrimination, insensibility or
disdain by an Er becomes unbearable to
the Ee. (Leonardo v. NLRC, G.R.
No.125303,June16,2000)
Note: There isno formaldismissal. The Eeis placedin
a situation by the Er such that his continued
employmenthasbecomeunbearable.Abandonmentis
incompatiblewithconstructivedismissal.
Q: Reynaldo was hired by Geminilou Trucking
Service (GTS) as a truck driver to haul and deliver
products of San Miguel Pure Foods Company, Inc.
HewaspaidP400pertripandmade4tripsaday.
HeclaimedthathewasrequestedbyGTStosigna
contract entitled Kasunduan Sa PagUpa ng
Serbisyo which he refused as he found it to alter
hisstatusasaregularEetomerelycontractual.He
averred that on account of his refusal to sign the
Kasunduan, his services were terminated
promptinghimtofileacomplaintbeforetheNLRC
for constructive dismissal against the GTS. Would
Reynaldos refusal to sign the Kasunduan
adequatelysupporthisallegationofconstructively
dismissal?
A:No.Thetestofconstructivedismissaliswhether
a reasonable person in the employees (Ee's)
position would have felt compelled to give up his
job under the circumstances. In the present case,
the records show that the lone piece of evidence
submitted by Reynaldo to substantiate his claim of
constructive dismissal is an unsigned copy of the
Kasunduan. This falls way short of the required
quantum of proof which is substantial evidence, or
such relevantevidence as a reasonable mind might
accept as adequate to support a conclusion.
Reynaldo was not dismissed, but that he simply
failedtoreport forworkafteranaltercationwitha
fellow driver. (Madrigalejos vs. Geminilou Trucking
Service,G.R.No.179174,Dec.24,2008)
Q: Flores, a conductor of JAM Transportation Co.,
Inc., had an accident where he had to be
hospitalizedforanumberofdays.Uponreporting
back to the company he was told to wait. For
severaldaysthiscontinuedandhewaspromiseda
route assignment which did not materialize. Upon
speaking to Personnel Manager Medrano, he was
toldthathewillbeacceptedbacktoworkbutasa
newemployee.Floresrejectedtheofferbecauseit
wouldmeanforfeitureofhis18yearsofserviceto
the company. Is the offer for reinstatement as a
newemployee(Ee)aconstructivedismissal?
A: Yes. Flores reemployment as a new Ee would
be very prejudicial to him as it would mean a
demotion in rank and privileges, retirement
benefitsashisprevious18yearsofservicewiththe
company would simply be considered as non
existent.Itamountstoconstructivedismissal.(JAM
Transportation Co., Inc. v. Flores, G.R. No. 82829,
Mar.19,1993)
Q:Quinanolawastransferredfromthepositionof
Executive Secretary to the Executive Vice
President and General Manager to the Production
Dept as Production Secretary. Quinanola rejected
the assignment and filed a complaint for illegal
UST GOLDEN NOTES 2011
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MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
98
dismissal due to constructive dismissal. Did the
transfer of Quinanola amount to constructive
dismissal?
A: No. Quinanolas transfer was not unreasonable
since it did not involve a demotion in rank nor a
changeinherplaceofworknoradiminutioninpay,
benefits and privileges. It did not constitute a
constructivedismissal.Furthermore,anemployees
security of tenure does not give him a vested right
inhispositionaswoulddeprivethecompanyofits
prerogative to change his assignment or transfer
himwherehewillbemostuseful.(PhilippineJapan
Active Carbon Corp. v. NLRC, G.R. No. 83239, Mar.
8,1989)
Q: Sangil was a utility man/assistant steward of
thepassengercruisevesselCrownodysseyundera
oneyear contract. Sangil suffered head injuries
after an altercation with a Greek member of the
crew. He informed the captain that he no longer
intends to return aboard the vessel for fear that
further trouble may erupt between him and the
otherGreekcrewmembersoftheship.WasSangil
constructivelydismissed?
A:Yes.Thereisconstructivedismissalwheretheact
of a seaman in leaving ship was not voluntary but
was impelled by a legitimate desire for self
preservation or because of fear for his life
Constructive dismissal does not always involve
diminutioninpayorrankbutmaybeinferredfrom
an act of clear discrimination, insensibility or
disdain by an Er may become unbearable on the
part of the Ee that it could foreclose any choice by
him except to forego his continued employment.
(Sunga Ship Management Phils., Inc. v. NLRC, G.R.
No.119080,April14,1998)
(5)PreventiveSuspension
Q:Whatispreventivesuspension?
A: During the pendency of the investigation, the Er
may place the Ee under preventive suspension
leading to termination when there is an imminent
threat or a reasonable possibility of a threat to the
lives and properties of the Er, his family and
representativesaswellastheoffenderscoworkers
bythecontinuedserviceoftheEe.
Q:Whatisthedurationofpreventivesuspension?
A: It should not last for more than 30 days. The Ee
shouldbemadetoresumehisworkafter30days.It
can be extended provided the Ees wages are paid
afterthe30dayperiod.
This period is intended only for the purpose of
investigating the offense to determine whether he
istobedismissedornot.Itisnotapenalty.
Note: The Er may continue the period of preventive
suspensionprovidedthathepaysthesalaryoftheEe.
If more than 1 month, the Ee must actually be
reinstated or reinstated in the payroll. Officers are
liableonlyifdonewithmalice.
Q:CantorandPepitowerepreventivelysuspended
pending application for their dismissal by Manila
Doctors Hospital after being implicated by one
Macatubal when they refused to help him when
he was caught stealing xray films from the
hospital.WasthepreventivesuspensionofCantor
andPepitoproper?
A: Where the continued employment of an Ee
posesaseriousandimminentthreattothelifeand
propertyoftheemployeroronhiscoEes,theEes
preventive suspension is proper. In this case, no
such threat to the life and property of the Er or of
their coEes is present and they were merely
implicated by the Macatubal. (Manila Doctors
Hospitalv.NLRC,G.R.No64897,Feb.28,1985)
(6)Quitclaim
Q:Whatisaquitclaim?
A: It is a document executed by an employee in
favor of the employer preventing the former from
filing any further money claim against the latter
arisingfromemployment.
Q:Whataretheelementsofavalidquitclaim?
A:
1. Voluntarily entered into with full
understanding of what the employee is
doing
2. Representsareasonablesettlement
Q:Whatconstitutesreasonablesettlement?
A: Reasonable settlement requires that the
consideration for the quitclaim is credible and
reasonable.(Periquetv.NLRC,G.R.No.91298,June
22,1990)
Q: Is dire necessity a ground to nullify a
quitclaim?
A: Dire necessity is not an acceptable ground for
annulling the releases, especially since it has not
beenshownthattheemployeeshadbeenforcedto
executethem.Ithasnotevenbeenproventhatthe
considerations for the quitclaims were
TERMINATION OF EMPLOYMENT
99
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Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
unconscionably low and that the petitioners had
been tricked into accepting them. Furthermore, no
deception has been established on the part of the
employer that would justify the annulment of the
employees quitclaim. (Veloso v. DOLE, G.R. No.
87297,August5,1991.)
(7)Terminationofemploymentbyemployee
Q:Howcananemployee(Ee)terminatehisservice
withhisemployer(Er)?
A:
1. Without just cause by serving written
notice on the Er at least 1 month in
advance. The Er upon whom no such
notice was served may hold the Ee liable
fordamages.
2. WithjustcauseanEemayputanendto
employment without serving any notice
on the Er for any of the following just
causes:
a. Serious insult by the Er or his
representative on the hour and
personoftheEe
b. Inhuman and unbearable treatment
accorded the Ee by the Er or his
representative
c. Commissionofacrimeoroffenseby
the Er or his representative against
the person of the Ee or any of the
immediatemembersofhisfamily
d. Othercausesanalogoustoanyofthe
foregoing
Q:Whenisemploymentnotdeemedterminated?
A:
1. Bona fide suspension of the operation of
abusinessorundertakingforaperiodnot
exceeding6months,or
2. The fulfillment by the Ee of a military or
civic duty shall not terminate
employment.
Note:Inallsuchcases,theErshallreinstatetheEeto
hisformerpositionwithoutlossofseniorityrightsifhe
indicateshisdesiretoresumehisworknotlaterthan1
month from the resumption of operations of his Er or
fromhisrelieffromthemilitaryorcivicduty.(Art.286)
3.RETIREMENTPAYLAW
a.Coverage,Exclusionsfromcoverage,Components
ofretirementpay
Q:Whatisretirement?
A: It is the result of a bilateral act of the parties, a
voluntary agreement between the employer and
the employees whereby the latter after reaching a
certain age agrees and/or consents to sever his
employment with the former. (Soberano v. Sec. of
Labor, G.R. Nos. L4375356 and L50991, Aug. 29,
1980)
Q:Whatarethekindsofretirementschemes?
A:
1. Compulsoryandcontributoryinnature;
2. One set up by the agreement between
the employer (Er) and employees (Ees) in
the CBA or other agreements between
them (other applicable employment
contract);
3. One that is voluntarily given by the Er,
expressly as announced company policy
or impliedly as in the failure to contest
the Ees claim for retirement benefits.
(Marilyn Odchimar Gertach v. Reuters
Limited, Phils., G.R. No. 148542, Jan. 17,
2005)
A:
GR:Allemployees(Ees)intheprivatesector:
1. Regardless of their position, designation
orstatus;and
2. Irrespectiveofthemethodbywhichtheir
wages are paid. (Sec.1, Rule II, Book VI,
IRR)
XPN:
1. Ees of the National Govt and its political
subdivisions, including GOCCs (if they are
coveredbytheCivilServiceLaw)
2. Domestic helpers and persons in the
personalserviceofanother
3. Ees of retail, service, and agricultural
establishments or operations employing
notmorethan10Ees(Sec.2,RuleII,Book
VI,IRR)
Q:Whatistheretirementage?
A:Itistheageofretirementthatisspecifiedinthe:
1. CBA;or
2. Employmentcontract;or
3. Retirement plan (Sec. 3, Rule II, Book VI,
IRR).
4. Optional retirement age for underground
mining employees: 5060 years provided
theyhaveatleastservedforaperiodof5
years.(Art.285asamendedbyR.A.8558)
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100
Q: What is the retirement age in the absence of a
retirementplanorotherapplicableagreement?
A:
1. Optional60yearsold/5yearsinservice
(includes authorized absences, vacations,
regular holidays, mandatory military or
civicservice)
Note:Theoptiontoretireuponreachingthe
age of 60 years or more but not beyond 65
istheexclusiveprerogativeoftheemployee
(Ee)ifthereisnoprovisiononretirementin
a CBA or any other agreement or if the
employer (Er) has no retirement plan. (R.A.
7641; Capili v. NLRC, G.R. No. 117378, Mar.
26,1997)
Note:UnderSec.26ofR.A.No.4670,otherwiseknown
as Magna Carta for Public School Teachers, public
school teachers having fulfilled the age and service
reqts of the applicable retirement laws shall be given
one range salary raise upon the retirement, which
shallbethebasisofthecomputationofthelumpsum
oftheretirementpayandmonthlybenefitthereafter.
Q: Can Art. 287 of the LC (on retirement) as
amendedbyR.A.7641beappliedretroactively?
A:Yes,provided:
1. The claimant for retirement benefits was
still the employee of the employer at the
timethestatutetookeffect;and
2. The claimant was in compliance with the
reqts for eligibility under the statute for
suchretirementbenefits.(PSVSIAv.NLRC,
G.R.No.115019,April14,1997)
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
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VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
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years of service, whichever comes first. Rivera
completed 30 years of service and UNILAB retired
herpursuanttothetermsoftheplan,shereceived
the benefits in 88. At Rivera's request, UNILAB
allowedhertocontinueworkingforthecompany.
She continued working beyond the compulsory
separation from service that resulted from her
retirement.From1993to1994,Riveraservedasa
personal consultant under contract for UNILABs
sister companies which assigned Rivera to render
service involving UNILAB.In 1992, the company
amended its retirement plan, providing, among
others, for an increase in retirement benefits.
Rivera asked that her retirement benefits be
increased in accordance with the amended
retirementprogram. Whether Rivera is entitled to
theadditionalretirementbenefitsoftheamended
retirementplan?
A: No. Whether these terms included renewed
coverage in the retirement plan is an evidentiary
gap that could have been conclusively shown by
evidenceofdeductionsofcontributionstotheplan
after1988.Twoindicators,however,tellusthatno
suchcoveragetookplace.Thefirstisthattheterms
of the retirement plan, before and after its 1992
amendment, continued to exclude those who have
rendered 30 years of service or have reached 60
years of age. Therefore, the plan could not have
coveredher.Thesecondistheabsenceofevidence
of, or of any demand for, any reimbursement of
whatRiverawouldhavepaidascontributionstothe
plan had her coverage and deductions continued
after 1988. Thus, the Court concludes that her
renewed service did not have the benefit of any
retirement plan coverage. (Rivera v. United
Laboratories,Inc.,G.R.No.155639,April22,2009)
Q:Isaspecialretirementplandifferentfromthose
contemplatedundertheLCasagreeduponbythe
partiesvalid?
A:
GRATUITYPAY RETIREMENTBENEFITS
Itispaidtothe
beneficiaryforthepast
servicesorfavor
renderedpurelyoutof
thegenerosityofthe
giverorgrantor.Itisnot
intendedtopayaworker
foractualservices
renderedorforactual
performance.Itisa
moneybenefitorbounty
giventotheworker,the
purposeofwhichisto
rewardEeswhohave
renderedsatisfactory
servicetothecompany.
Areintendedtohelpthe
Eeenjoytheremaining
yearsofhislife,releasing
himfromtheburdenof
worryingforhisfinancial
support,andareaformof
rewardforhisloyaltyto
theEr.(Sta.Catalina
CollegeandSr.Loreta
Oranza,vs.NLRCand
HilariaTercera,G.R.No.
144483.November19,
2003,J.CarpioMorales)
b.RetirementpayunderRA7641visvisretireent
benefitsunderSSSandGSISlaws
Q: What is retirement pay under the LC in relation
toretirementbenefitsunderSSSandGSISlaws?
UST GOLDEN NOTES 2011
102
LABORLAWTEAM:
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MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
A:
Social
SecurityLaw
Revised
Government
Service
InsuranceAct
Employees
Compensation
Act
Compulsory
upon all E e s
n o t ov e r 6 0
years of age
andtheirErs.
1.Filipinos
recruited in
the Phils. by
foreign based
Ers for
employment
abroad may be
covered by the
SSS on a
voluntary
basis.
2.
Compulsory
upon all self
employed
persons
earning P1,800
or more per
annum.
Compulsory for
all permanent
Ees below 60
years of age
upon
appointment to
permanent
status, and for
all elective
officials for the
duration of their
tenure.
1. Any person,
whether elected
or appointed, in
the serviceof an
Er is a covered
Ee if he receives
compensation
forsuchservice.
Compulsory upon
all Ers and their
Ees not over 60
years of age;
Provided, that an
Ee who isover 60
years of age and
paying
contributions to
qualify for the
retirement or life
insurance benefit
administered by
the System shall
be subject to
compulsory
coverage.
UNIVERSITYOFSANTOTOMAS
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VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
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VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
E.MANAGEMENTPREROGATIVE
Q:WhatisManagementPrerogative?
A:
GR: It is the right of an Er to regulate,
according to his own discretion and judgment,
allaspectsofemployment,including:
1. Hiring
2. Workassignments
3. Workingmethods
4. Time,placeandmannerofwork
5. Toolstobeused
6. Processestobefollowed
7. Supervisionofworkers
8. Workingregulations
9. TransferofEes
10. Worksupervision
11. Layoffofworkers
12. Discipline
13. Dismissal
14. Recallofworkers
XPNs:Otherwiselimitedbyspeciallaws.
A:
1. No,thepolicydoesnotviolatetheLC.The
practiceisavalidexerciseofmanagement
function. Considering the nature and
reason for existence of the school, it may
adopt such policy as will advance its
laudable objectives. In fact, the policy
accordswiththeconstitutionalpreceptof
inculcating ethical and moral values in
schools. The school policy does not
discriminate against women solely on
account of sex (Art. 135, LC) nor are the
actsprohibitedunderArt.137oftheLC.
Q:LittleHandsGarmentCompany,anunorganized
manufacturer of children's apparel with around
1,000workers,sufferedlossesforthe1stfirsttime
in history when its US and European customers
shiftedtheirhugeorderstoChinaandBangladesh.
ThemanagementinformeditsEesthatitcouldno
longer afford to provide transportation shuttle
services. Consequently, it announced that a
normal fare would be charged depending on the
distance traveled by the workers availing of the
service.
WastheLittleHandsGarmentsCompanywithinits
rights to withdraw this benefit which it had
unilaterallybeenprovidingtoitsEes?
1.DISCIPLINE
Q:DiscussbrieflytheErsrighttodisciplinehisEes.
104
(PLDT vs. Teves, G.R. No. 143511, November 10,
2010)
A:TheErhastheobligationtosharewithitsEesits
prerogativeofformulatingacodeofdiscipline.This
is in compliance with the States policy stated in
Article 211 of the Labor Code, to ensure the
participation of workers in decision and policy
making processes affecting their rights, duties and
welfare. The exercise of management prerogatives
has, furthermore, never been considered to be
boundless. This obligation is not dispensed with by
a provision in the collective bargaining agreement
recognizing the exclusive right of the Er to make
andenforcecompanyrulesandregulationstocarry
outthefunctionsofmanagementwithouthavingto
discuss the same with the union and much less
obtain the latters conformity thereto. A code of
discipline unilaterally formulated and promulgated
by the Er would be unenforceable. (Philippine
Airlines, Inc. vs. NLRC et al., G.R. No. August 13,
1993.)
2.TRANSFEROFEMPLOYEES
A:Inthepursuitofitslegitimatebusinessinterests,
especially during adverse business conditions,
management has the prerogative to transfer or
assign Ees from one office or area of operation to
another provided there is no demotion in rank or
diminution of salary, benefits and other privileges
and the action is not motivated by discrimination,
bad faith, or effected as a form of punishment or
demotion without sufficient cause. This privilege is
inherent in the right of Ers to control and manage
theirenterpriseseffectively.
A:No.ThereisnolawthatcompelsanEetoaccept
promotion,asapromotionisinthenatureofagift
or a reward, which a person has a right to refuse.
When an Ee refused to accept his promotion, he
wasexercisinghisrightandcannotbepunishedfor
it.Whileitmaybetruethattherighttotransferor
reassign an Ee is an Ers exclusive right and the
prerogative of management, such right is not
absolute. (Dosch vs. NLRC and Northwest Airlines,
G.R.No.51182,July5,1983)
A: TheErmustbeabletoshowthatthetransferis
notunreasonable,inconvenientorprejudicialtothe
Ee; nor does it involve a demotion in rank or a
diminution of his salaries, privileges and other
benefits.ShouldtheErfailtoovercomethisburden
of proof, the Ees transfer shall be tantamount to
constructive dismissal. (Blue Dairy Corporation v.
NLRC,314SCRA401[1999])
3.PRODUCTIVITYSTANDARD
Q:MayanErimposeproductivitystandardsforits
workers?
4.GRANTOFBONUS
Q:Whatisabonus?
A:ItisanamountgrantedandpaidtoanEeforhis
industry and loyalty which contributed to the
success of the Ers business and made possible the
realizationofprofits.
Q:Canbonusbedemanded?
MANAGEMENT PREROGATIVE
105
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ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
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A:
GR: Bonus is not demandable as a matter of
right. It is a management prerogative given in
addition to what is ordinarily received by or
strictly due to recipient. (Producers Bank of the
Phil.v.NLRC,G.R.No.100701,March28,2001)
XPNs:Givenforalongperiodoftime
1. Consistent and deliberate Er continued
giving benefit without any condition
imposedforitspayment
2. Er knew he was not required to give
benefit
3. Nature of benefit is not dependent on
profit
4. Made part of the wage or compensation
agreed and stated in the employment
contract.
5.CHANGEOFWORKINGHOURS
A:Wellsettledistherulethatmanagementretains
theprerogative,wheneverexigenciesoftheservice
sorequire,tochangetheworkinghoursofitsEes.
6.MARITALDISCRIMINATION
A:TheErmustprove2factors:
1. That the employment qualification is
reasonably related to the essential
operationofthejobinvolved;and
2. That there is a factual basis for believing
that all or substantially all persons
meeting the qualification would be
unable to properly perform the duties of
thejob.(StarPaperetal.vs.Simbol,G.R.
No.164774,April12,2006)
7.POSTEMPLOYMENTBAN
8.LIMITATIONSINITSEXERCISE
A:No.Itiscircumscribedbylimitationsfoundin:
1. Law,
2. CBA,or
3. Generalprinciplesoffairplayandjustice
Note:Itmustbeestablishedthattheprerogativebeing
invokedisclearlyamanagerialone
SOCIAL LEGISLATION
107
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F.SOCIALLEGISLATION
Q:WhatisSocialLegislation?
1.SOCIALSECURITYLAW
(RA8282)
Q:Whatisthepolicyobjectiveintheenactmentof
(SSS)Law?
A:ItisthepolicyoftheStatetoestablish,develop,
promoteandperfectasoundandviabletaxexempt
SSSsuitabletotheneedsofthepeoplethroughout
the Phils., which shall promote social justice and
provide meaningful protection to members and
their beneficiaries against the hazards of disability,
sickness, maternity, old age, death, and other
contingenciesresultinginlossofincomeorfinancial
burden.(Sec.2)
TheenactmentofSSSlawisalegitimateexerciseof
thepolicepower.Itaffordsprotectiontolaborand
is in full accord with the constitutional mandate on
the promotion of social justice. (Roman Catholic
ArchbishopofManilav.SSS,G.R.No.15045Jan.20,
1961)
Q:Arethepremiumsconsideredastaxes?
Q:ArebenefitsreceivedunderSSSLawpartofthe
estateofamember?
A:No.BenefitsreceivableundertheSSSLawarein
the nature of a special privilege or an arrangement
secured by the law pursuant to the policy of the
State to provide social security to the workingman.
The benefits are specifically declared not
transferable and exempt from tax, legal processes
and liens. (SSS v. Davac, et. al., G.R. No.21642, July
30,1966)
Q:Howaredisputessettled?
A:
DISPUTESETTLEMENT
Social
Security
Commission
(SSC)
Disputesinvolving:
1. Coverage
2. Benefits
3. Contributions
4. Penalties
5. Anyothermatterrelated
thereto.
Execution
ofdecision
SSCmay,motupropriooronmotionof
any interested party, issue a writ of
execution to enforce any of its
decisions or awards, after it has
becomefinalandexecutory.(Sec.5d)
Q:Whoisanemployer(Er)?
108
Q:Whoisanemployee(Ee)?
Q:Whatisemployment?
A:GR:AnyserviceperformedbyanEeforhisEr.
XPNs:
1. Employmentpurelycasualandnotforthe
purpose of occupation or business of the
Er;
2. Service performed on or in connection
with an alien vessel by an Ee if he is
employedwhensuchvesselisoutsidethe
Phils;
3. Service performed in the employ of the
Phil. Government or instrumentality or
agencythereof;
4. Service performed in the employ of a
foreign government or international
organization, or their whollyowned
instrumentality:
5. Such other services performed by
temporary and other Ees which may be
excluded by regulation of the SSC. Ees of
bona fide independent contractors shall
notbedeemedEesoftheErengagingthe
servicesofsaidcontractors.(Sec.8[j])
Q:Whatisacontingency?
a.Coverage
Q:WhoarecoveredbySSS?
A:
1. CompulsoryCoverage
a. All Ees not over 60 years of age and
theirErs;
b. Domestic helpers whose income is
not less than P 1000/month and not
over60yearsofageandtheirErs;
Limitations:
a. Any benefit earned by the Ees
under private benefit plans
existing at the time of the
approval of the Act shall not be
discontinued, reduced or
otherwiseimpaired;
b. Existing private plans shall be
integrated with the SSS but if
the Er under such plan is
contributing more than what is
required by this Act, he shall
pay to the SSS the amount
required to him, and he shall
continue with his contributions
lesstheamountpaidtoSSS;
c. Any changes, adjustments,
modifications, eliminations or
improvementsinthebenefitsof
theremainingprivateplanafter
the integration shall be subject
to agreements between the Ers
andtheEesconcerned;and
d. The private benefit plan which
the Er shall continue for his Ees
shall remain under the Ers
managementandcontrolunless
there is an existing agreement
tothecontrary
c. All selfemployed considered both
anErandEe
d. Professionals;
e. Partners and single proprietors of
business;
f. Actors and actresses, directors,
scriptwriters and news
correspondents who do not fall
within the definition of the term
Ee;
g. Professional athletes, coaches,
trainersandjockeys;AND
h. Individual farmers and fisherman.
(Sec.9)
2. Voluntary
a. Spouses who devote full time to
managing the household and family
affairs, unless they are also engaged
in other vocation or employment
which is subject to mandatory
coverage;(Sec.9[b])
b. Filipinos recruited by foreignbased
Ers for employment abroad may be
covered by the SSS on a voluntary
basis;(Sec.9[c])
c. Ee separated from employment to
maintainhisrighttofullbenefits
d. Selfemployed who realizes no
incomeforacertainmonth
3. ByAgreement
Any foreign government, international
organization, or their whollyowned
SOCIAL LEGISLATION
109
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VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
instrumentality employing workers in the
Phils., may enter into an agreement with
the Phil. government for the inclusion of
such Ees in the SSS except those already
covered by their respective civil service
retirementsystems.
A:
1. Employeronthefirstdayofoperation
2. Employeeonthedayofhisemployment
3. Compulsory coverage of selfemployed
uponhisregistrationwiththeSSS
Q:Whatistheeffectofseparationofanemployee
fromhisemploymentundercompulsorycoverage?
A:
1. His Ers obligation to contribute arising
from that employment shall cease at the
endofthemonthofseparation,
2. But said Ee shall be credited with all
contributions paid on his behalf and
entitled to benefits according to the
provisionsofR.A.9282.
3. He may, however, continue to pay the
totalcontributionstomaintainhisrightto
fullbenefit.(Sec.11)
Q:Whatistheeffectofinterruptionofbusinessor
professionalincome?
A: Iftheselfemployedmemberrealizesnoincome
inanygivenmonth:
b.Exclusionsfromcoverage
A:UnderSection8(j)ofR.A.1161,asamended,the
following services or employments are excepted
fromcoverage:
1. Employmentpurelycasualandnotforthe
purpose of occupation or business of the
employer;
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110
5. Such other services performed by
temporary and other employees which
may be excluded by regulation of the
Commission. Employees ofbona
fideindependent contractors shall not be
deemed employees of the employer
engagingtheserviceofsaidcontractors.
c.Benefits
Q:WhatarethebenefitsundertheSSSAct?
A:
1. MonthlyPension
2. RetirementBenefits
3. DeathBenefits
4. DisabilityBenefits
5. FuneralBenefits
6. SicknessBenefits
7. MaternityBenefits
Q:WhatarethereportorialrequirementsoftheEr
andselfemployed?
A:
1. Er Report immediately to SSS the names,
ages, civil status, occupations, salaries and
dependentsofallhiscoveredEes
2. SelfemployedReporttoSSSwithin30days
fromthefirstdayofhisoperation,hisname,
age, civil status, occupation, average
monthlynetincomeandhisdependents
MonthlyPension
Q:Howmuchisthemonthlypension?
A:
1. The monthly pension shall be the highest
ofthefollowingamounts:
a. Thesumofthefollowing:
ii. P300.00;plus
iii. 20% of the average monthly
salarycredit;plus
iv. 2% of the average monthly
salary credit for each credited
year of service in excess of 10
years;or
b. 40% of the average monthly salary
credit;or
c. P1,000.00, provided that the
monthly pension shall in no case be
paidforanaggregateamountofless
thansixty(60)months(Sec.12[a])
2. MinimumPension
a. P1,200.00 members with at least
10creditedyearsofservice
b. P2,400.00 for those with 20 credited
yearsofservice.(Sec.[b])
Q:Whatwillhappentothemonthlypensionofa
retireeincaseofdeath?
A:
1. Upon the death of the retired member,
hisprimarybeneficiariesasofthedateof
his retirement will get 100% of his
monthly pension plus the dependent's
pensionforeachchild.
2. Ifhedieswithin60monthsfromthestart
of his pension and he has no primary
beneficiaries, his secondary beneficiaries
willreceivealumpsumbenefitequivalent
to the difference of 60 multiplied by the
monthly pension and the total monthly
pensions paid by the SSS excluding the
dependent'spension.(Sec.12B[d])
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
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VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
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respective marriages to the SSS members were
contracted after the latters retirement; (2) due
process clause because it outrightly deprives
spouses who married the SSS members after their
retirement of the survivors pension, a property
interest, without giving them opportunity to be
heard;and(3)socialjustice.
A:
1. Uponthereemploymentorresumptionof
selfemployment
2. Recovery of the disabled member from
hispermanenttotaldisability
3. Failuretopresenthimselfforexamination
at least once a year upon notice by the
SSS.(Sec.13A[b])
RetirementBenefit
Q:Whatisaretirementbenefit?
A:Itisacashbenefitpaidtoamemberwhocanno
longerworkduetooldage.
Q:Whatarethetypesofretirementbenefits?
A:
1. Monthly Pension Lifetime cash benefit
paidtoaretireewhohaspaidatleast120
monthly contributions to the SSS prior to
thesemesterofretirement.
2. Lump Sum Amount Granted to a retiree
who has not paid the required 120
monthlycontributions.
Q:Whoareentitledforretirementbenefits?
A:
1. Amemberwho
a. has paid at least 120 monthly
contributions priorto the semester of
retirement;
b. atleast60yearsold;and
c. already separated from employment
orhasceasedtobeselfemployed,OR
3. Amember
a. At least 60 years old at retirement;
and
b. Doesnotqualifyforpensionbenefits
underparagraph(a)aboveentitled
to a lump sum benefit equal to the
total contributions paid by him and
onhisbehalf;
c. Must be separated from
employment and is not continuing
payment of contributions to the SSS
onhisown.(Sec.12B[b])
A:Yes(Sec.12[A]).However,only5minorchildren,
beginning from the youngest, are entitled to the
dependents' pension. No substitution is allowed.
Where there are more than 5 legitimate and
illegitimate children, the legitimate ones will be
preferred.
DeathBenefit
A:
1. Upondeathofamember,ifhehaspaidat
least 36 monthly contributions prior to
thesemesterofdeath:
a. primary beneficiaries shall be
entitledtothemonthlypension;or
b. If there are noprimary beneficiaries,
secondary beneficiaries shall be
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112
entitled to a lump sum benefit
equivalent to 36 times the monthly
pension.
2. Upon death of a member If he has not
paid the required 36 monthly
contributions prior to the semester of
death:
a. Primary or secondary beneficiaries
shall be entitled to a lump sum
benefit equivalent to the monthly
pensionmultipliedbythenumberof
monthly contributions paid to the
SSS:or
b. 12 times the monthly pension,
whicheverishigher.(Sec.13)
DisabilityBenefit
Q:Whatisadisabilitybenefit?
A:
DeathBenefits PTDBenefits
Requisite
atleast36monthlycontributions
Benefitspayabletowhom
PrimaryBeneficiaries Member
Failuretomake36monthlypayments
Benefitsshallbeinlumpsumequivalenttothe
monthlypensiontimesthenumberofmonthly
contributionspaidtoSSSor12timesthemonthly
pension,whicheverishigher.
A:
1. Primary beneficiaries are entitled to
receivemonthlypensionasofthedateof
disability.
2. No primary beneficiaries and he dies
within 60 months from the start of his
monthlypensionsecondarybeneficiaries
shall be entitled to a lump sum benefit
equivalent to the total monthly pensions
corresponding to the balance of the 5
year guaranteed period excluding the
dependentspension.(Sec.13A[c])
FuneralBenefit
Q:Whatisthefuneralbenefit?
A:AfuneralgrantequivalenttoP12,000.00shallbe
paid, in cash or in kind, to help defray the cost of
expenses upon the death of a member or retiree.
(Sec.13B)
SicknessBenefit
Q:Whatissicknessbenefit?
A: Itisadailycashallowancepaidforthenumber
ofdaysamemberisunabletoworkduetosickness
orinjury.
A:
1. The member paid at least 3 monthly
contributions in the 12month period
immediately preceding the semester of
sicknessorinjury
2. Confined for more than 3 days in a
hospital or elsewhere with the approval
oftheSSS
3. He has used all current company sick
leaveswithpayforthecurrentyear
4. Notified his Er or the SSS, if he is a
separated, voluntary or selfemployed
member
Q:Whowillpaysicknessbenefits?andhowmuch
isthebenefit?
A:TheErshallpaythe:
1. Ee for each compensable confinement or
fractionthereofor
UNIVERSITYOFSANTOTOMAS
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b. Notpaidformorethan240dayson
account of the same confinement;
and
c. Ee member shall notify his Er of the
fact of his sickness or injury within 5
calendar days after the start of his
confinement unless such
confinement:
i. isinahospital
ii. the Ee became sick or was
injured while working or
within the premises of the Er
(notification to the Er not
necessary);
A:
1. Beginsonthe1stdayofsickness
2. Payment of such allowances shall be
promptlymadebytheEr:
a. every regular payday or on the 15
th
andlastdayofeachmonth,
b. incaseofdirectpaymentbytheSSS
as long as such allowances are due
andpayable.(Sec.14[b])
Q:WhataretherequirementsinorderthatErmay
claimreimbursementofthesicknessbenefit?
A:
1. 100% of daily benefits shall be
reimbursed by SSS if the following
requirementsaresatisfied:
a. Receipt of SSS of satisfactory proof
ofsuchpaymentandlegalitythereof:
b. The Er has notified the SSS of the
confinement within 5 calendar days
after receipt of the notification from
theEemember:
Q:WhenwillreimbursementbemadebySSS?
XPN:Confinementinahospitalinwhichcasethe
claimforbenefitorreimbursementmustbefiled
within 1 year from the last day of confinement.
(Sec.14[c])
MaternityBenefit
Q:Whatisthematernitybenefit?
A:
1. She has paid at least three monthly
contributionswithinthe12monthperiod
immediately preceding the semester of
herchildbirthormiscarriage.
2. She has given the required notification of
her pregnancy through her employer if
employed, or to the SSS if separated,
voluntaryorselfemployedmember.
Q:Howmuchisthematernitybenefit?
Q:Howisthematernitybenefitcomputed?
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114
A:
1. Exclude the semester of contingency
(deliveryormiscarriage).
2. Count12monthsbackwardsstartingfrom
the month immediately before the
semesterofcontingency.
4. Addthesixhighestmonthlysalarycredits
togetthetotalmonthlysalarycredit.
6. Multiplythedailymaternityallowanceby
60 (for normal delivery or miscarriage) or
78days(forcaesareansectiondelivery)to
getthetotalamountofmaternitybenefit.
Q:Whatisthedifferenceofcompensabilityunder
theLaborLawandtheSocialSecurityLaw?
LABORLAW SOCIALSECURITYLAW
Purpose
Governs compensability
of:
1. workrelated
disabilities
2. when there is loss
of income due to
workconnected
or work
aggravated injury
orillness.
Benefits are intended to
provide insurance or
protection against the
hazards or risks of
disability, sickness, old
age or death, inter alia,
irrespective of whether
theyarosefromorinthe
course of the
employment.
Nature
A disability is total and
permanentifasaresultof
the injury or sickness the
Ee is unable to perform
Disability may be
permanent total or
permanentpartial.
anygainfuloccupationfor
a continuous period
exceeding 120 days
regardless of whether he
losestheuseofanyofhis
bodyparts.
d.Beneficiaries
Q:Whoareprimarybeneficiaries?
A:
1. The dependent spouse until he or she
remarries
Q:Whoaresecondarybeneficiaries?
Q:Whoareconsidereddependents?
A:
1. The legal spouse entitled by law to
receivesupportfromthemember;
2. The legitimate, legitimated, or legally
adopted,andillegitimatechildwho:
a. Isunmarried,
b. Notgainfullyemployed,and
c. Hasnotreached21yearsofage,orif
over 21 years of age, he is
congenitallyorwhilestillaminorhas
been permanently incapacitated and
incapable of selfsupport, physically
ormentally.
3. The parent who is receiving regular
supportfromthemember.
Q:Whatismeantbydependentforsupport?
Ifawifewhoisalreadyseparateddefactofromher
husband cannot be said to be "dependent for
support"uponthehusband,absentanyshowingto
SOCIAL LEGISLATION
115
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
the contrary. Conversely, if it is proved that the
husband and wife were still living together at the
timeofhisdeath,itwouldbesafetopresumethat
she was dependent on the husband for support,
unless it is shown that she is capable of providing
forherself.(SSSv.Aguas,G.R.No.165546,Feb.27,
2006)
Q:Whatiscompensation?
2.GSIS
(R.A.8291)
Q: What are the purposes behind the enactment
oftheGSISAct?
1. Compulsorylifeinsurance
2. Optionallifeinsurance
3. Retirementbenefits
4. Disability benefits to workrelated
contingencies;and
5. Deathbenefits
A:
1. NationalGovernment
2. Its political subdivisions, branches,
agencies,instrumentalities
3. GOCCs, and financial institutions with
originalcharters
4. Constitutional Commissions and the
Judiciary(Sec.2[c])
Q:CanSSSEesbecoveredbyGSIS?
A:Yes.
Q:WhoisanEmployeeormember?
A:Anyperson,receivingcompensationwhileinthe
service of an Er, whether by election or
appointment,irrespectiveofstatusofappointment,
including barangay and sanggunian officials. (Sec.
2[d])
Q:Whatiscompensation?
116
Occ.andispaidonaperdiembasis.Ontheother
hand, Belo a ViceGovernor of Capiz is in a hold
over capacity and is paid on a per diem basis. Are
the services rendered by Baradero and Belo on a
per diem basis creditable in computing the length
ofserviceforretirementpurposes?
Q:WhatarethesourcesoffundsoftheGSIS?
a.Coverage
A:
GR: All Ees receiving compensation who have
not reached the compulsory retirement age,
irrespectiveofemploymentstatus.
XPNs:
1. Uniformedmembersofthe:
a.AFP;and
b.PNP.
2. Contractuals who have no Er and Ee
relationshipwiththeagenciestheyserve.
A:
GR: All members of the GSIS shall have life
insurance, retirement, and all other social
security protections such as disability,
survivorship, separation, and unemployment
benefits.(Sec.3)
XPNs:Membersof:
1. Thejudiciary;and
2. Constitutional commissions who shall
havelifeinsuranceonly.
b.Exclusionsfromcoverage
A:
1. Ees who have separate retirement
schemes (members of the Judiciary,
Constitutional Commissions and others
similarlysituated)
2. Contractual Ees who have no ErEe with
theagenciestheyserve
3. Uniformed members of the AFP, BJMP,
whose coverage by the GSIS has ceased
effectiveJune24,1997
4. Uniformed members of the PNP whose
coveragebytheGSIShasceasedeffective
February1,1996.(Sec.2.4,RuleII,IRR)
Q:Forthepurposeofbenefitentitlement,howare
themembersclassified?
A:
1. Activemembers
a. Still in the service and are paying
integratedpremiums.
SOCIAL LEGISLATION
117
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
b. Covered for the entire package
benefits and privileges being
extendedbyGSIS.
2.Policyholders
a. Coveredforlifeinsuranceonly
b. Canavailofpolicyloanprivilegeonly
c. Mayalsoapplyforhousingloans
d. Judiciary and Constitutional
Commissions
3. RetiredMembers
a. Former active members who have
retired from the service and are
already enjoying the corresponding
retirementbenefitsappliedfor
b. Not entitled to any loan privilege,
except stock purchase loan (Sec. 2.2,
RulesII,IRR)
c.Benefits
A:
1. Separation
2. Unemploymentorinvoluntaryseparation
3. Retirement
4. Permanentdisability
5. Temporarydisability
6. Survivorship
7. Funeral
8. LifeInsurance
9. Such other benefits and protection as
may be extended to them by the GSIS
suchasloans.
Q:WhatarethebenefitsunderP.D.1146(Revised
GSIS Act of 1977) that may be granted to the
separatedmembersofthePNP,BJMPandBFP?
A:GR:
1. Oldagebenefit
2. Permanentdisabilitybenefit
3. Survivorshipbenefit
4. Funeralbenefit
5. Retirementbenefit
XPN:Judiciary(Lifeinsuranceonlytaxexempt)
SeparationBenefits
Q:Whataretheeffectsofseparationfromservice
withregardtomembership?
Inthecaseofforfeiture,theseparatedemployeeshall
be entitled to receive only of the cash surrender
valueofhisinsurance.
UnemploymentBenefits
A:
1. The recipient must be a permanent
employeeatthetimeofseparation;
2. Hisseparationwasinvoluntaryduetothe
abolitionofhisofficeorpositionresulting
fromreorganization;and
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
118
3. He has been paying the contribution for
atleast1yearpriortoseparation.
Q:Whatwillconsistofanunemploymentbenefit?
Note:Amemberwhohasrenderedatleast15yearsof
service will be entitled to separation benefits instead
ofunemploymentbenefits.
RetirementBenefits
Q:Whataretheconditionsinordertobeentitled
toretirementbenefits?
A:
1. Amemberhasrenderedatleast15years
ofservice;
2. He is at least 60 years of age at the time
ofretirement;and
3. He is not receiving a monthly pension
benefit from permanent total disability.
(Sec.13A)
A:ThedoctrineinCenavs.CSC(G.R.No.97419,July
3, 1992), was modified in Rabor vs. CSC, (G.R. No.
111812,May31,1995),wheretheSCheldthat:The
head of the government agency concerned is
vested with discretionary authority to allow or
disallowextensionoftheserviceofanofficialorEe
who has reached 65 years old without completing
the15yearsofgovernmentservice.However, this
discretion is to be exercise conformably with the
provisions of Civil Service Memorandum Circular
No. 27, series of 1990 which provides that the
extensionshallnotexceed1year.
Q:Whatisthereasonforcompulsoryretirement?
Q:Whataretheoptionsoftheretireewithregard
tohisorherretirementbenefits?
A:Theretireemaygeteitherofthefollowing:
PermanentDisabilityBenefits
Q:Whatisdisability?
Q:Whatistotaldisability?
Q:Whatispermanenttotaldisability(PTD)?
Q:Whatispermanentpartialdisability(PPD)?
Q:Whataretheconditionsinordertobeentitled
forpermanentdisabilitybenefits?
1. Gravemisconduct
2. Notoriousnegligence
3. Habitualintoxication
4. Willfulintentiontokillhimselforanother
SOCIAL LEGISLATION
119
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
Q: What are the two types of permanent
disability?
A:
1. Permanent total disability (PTD) accrues
or arises when recovery from any loss or
impairment of the normal functions of
the physical and/or mental faculty of a
member which reduces or eliminates his
capacity to continue with his current
gainfuloccupationorengageinanyother
gainful occupation is medically remote.
[Section2(q)and(s)]
PTD PPD
Causes
1. Completelossofsight
ofbotheyes
2. Lossof2limbsator
abovetheankleor
wrist
3. Permanentcomplete
paralysisof2limbs
4. Braininjuryresulting
inincurableimbecility
orinsanity
5. Suchothercasesas
maybedetermined
bytheGSIS
Complete and
permanent loss of the
useof:
1.Anyfinger
2.Anytoe
3.Onearm
4.Onehand
5.Onefoot
6.Oneleg
7.Oneorbothears
8.Hearingofoneorboth
ears
9.Sightofoneeye
2.Ifthememberdoesnot
satisfy the conditions
abovebuthasrenderedat
least 3 years service, he
shallbeadvancedthecash
payment equivalent to
100% of his average
monthlycompensationfor
each year of service he
has pad contributions but
not less than P12,000.00
which should have been
his separation benefit (he
shall no longer receive
separationbenefits)
A:
1. Incaseamemberisreemployed;or
2. Member recovers from disability as
determinedbytheGSIS;or
3. Fails to present himself for medical
examination when required by the GSIS.
(Sec.16[c])
120
which he was hospitalized several times in 97
developed from his workrelated illnesses. The
GSISdisapprovedManiososrequest.
TemporaryDisabilityBenefits
Q:Whendoestemporarytotaldisabilityarises?
A:
1. Member is entitled to 75% of his current
daily compensation for each day or
fractionthereofoftotaldisabilitybenefit,
to start at the 4
th
day but not exceeding
120daysinonecalendaryearwhen:
a. Hehasexhaustedallsickleaves
b. CBAsickleavebenefits
Provided,that:
i. He was in the service at time of
disability;or
ii. If separated, he has rendered at
least 3 years of service and has
paid at least 6 monthly
contributions in the year
precedinghisdisability
2. The temporary total disability benefits
shallinnocasebelessthanP70aday.
AnapplicationfordisabilitymustbefiledwiththeGSIS
within 4 years from the date of the occurrence of the
contingency.
SurvivorshipBenefits
Q:Whoareentitledtosurvivorshipbenefits?
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
his death with at least 3 years of service;
OR
3.Acashpaymentequivalentto100%ofhis
average monthly compensation for each
year of service he paid contributions, but
not less than P12,000.00: Provided, That
the deceased has rendered at least 3
years of service prior to his death but
does not qualify for the benefits under
item (1) or (2) of this paragraph. [Sec. 21
(a)]
Q:Aftertheendoftheguaranteed30months,are
the beneficiaries still entitled to any survivorship
benefits?
Q:Whatarethebenefitsthatthebeneficiariesare
entitledtouponthedeathofthepensioner?
A:
1. Upon the death of an oldage pensioner
or a member receiving the monthly
income benefit for permanent disability,
the qualified beneficiaries shall be
entitled to the survivorship pension
defined in Sec. 20 of this Act, subject to
theprovisionsofpar.(b)ofSec.21.
2. When the pensioner dies within the
period covered by the lump sum, the
survivorship pension shall be paid only
aftertheexpirationofthesaidperiod.
122
due to accidental electrocution in his house)
compensable?Why?
A:Yes.TobecompensableundertheGSISLaw,the
deathneednotbeworkconnected.
FuneralBenefits
Q:Whatcomprisesthefuneralbenefit?
A:CashnotlessthanP12,000tobeincreasedtoat
least P18,000 after 5 years (specifically year 2002).
The amount shall be determined and specified by
theGSISthroughaninformationcirculardistributed
to all Ers for posting at their premises. (Sec. 23,
par.1)
Q:Whenwillitbepaid?
A:Uponthedeathof:
1. Anactivemember
2. A member who has been separated from
the service but is entitled to future
separationorretirementbenefits
3. A member who is a pensioner (excluding
survivorshippensioners)
4. A retiree who is at the time of his
retirement was of pensionable age, at
least 60 years old, who opted to retire
under RA 1616 (An act further amending
Sec.12, C.A. 186, as amended, by
prescribingtwoothermodesofretirement
andforotherpurposes).
LifeInsurance
Q:Whataretheclassesoflifeinsurancecoverage?
A:
1. Compulsorylifeinsurance
2. Optionallifeinsurance
Note:Theplansmaybeendowmentorordinarylife.
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
3. For those without any life insurance as of
the effectivity of this Act, their insurance
shalltakeeffectfollowingsaideffectivity.
A:
1. A member may at any time apply for
himself and/or his dependents an
insurance and/or preneed coverage
embracing:
a. Life
b. Memorialplans
c. Health
d. Education
e. Hospitalization
f. Other plans as maybe designed by
GSIS
Q:WherecanGSISloansbeinvestedin?
A:
1. In direct housing loans to members and
group housing projects secured by first
mortgage giving priority to the low
incomegroups
2. In short and medium term loans to
members such as salary, policy,
educational, emergency stock purchase
plan,andothersimilarloans
A:
GR:4Yearsfromthedateofcontingency
XPN:Lifeinsuranceandretirement(Sec.28)
A:Wheneverotherlawsprovidesimilarbenefitsfor
the same contingencies covered by this Act, the
memberwhoqualifiestothebenefitsshallhavethe
optiontochoosewhichbenefitswillbepaidtohim.
However,ifthebenefitsprovidedbythelawchosen
are less than the benefits provided under this Act,
theGSISshallpayonlythedifference.(Sec.55)
d.Beneficiaries
Q:Whoaretheconsideredbeneficiaries?
A:
1. Primarybeneficiaries
a. The legal dependent spouse until
he/sheremarriesand
b. Thedependentchildren.(Sec.2[g])
2. Secondarybeneficiaries
a. Thedependentparentsand
b. Subject to the restrictions on
dependent children, the legitimate
descendants.(Sec.2[h])
Q:Whoareconsidereddependents?
A:
1. Legitimate spouse dependent for support
uponthememberorpensioner;
2. Legitimate, legitimated, legally adopted
child,includingtheillegitimatechild,
a. whoisunmarried,
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
124
b. notgainfullyemployed,
c. not over the age of majority, or if
over the age of majority,
incapacitated and incapable of self
support due to a mental or physical
defect acquired prior to age of
majority;and
3. Parents dependent upon the member for
support.(Sec.2[f])
3.LIMITEDPORTABILITYLAW
(RA7699)
Q:WhatistheLimitedPortabilityRule?
4.EMPLOYEESSCOMPENSATION
Coverage
Q:WhoaresubjecttocoverageundertheECP?
A: ErsandtheirEesnotoversixty(60)yearsofage
are subject to compulsory coverage under this
program.
TheErmaybelongtoeitherthe:
TheEemaybelongtoeitherthe:
Q:Whendoescompulsorycoveragetakeeffect?
A:
1. Employeronthefirstdayofoperation
2. Employeeonthedayofhisemployment
Q:WhatisanOccupationalDisease?
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
occupationahazardwhichdistinguishesitfromthe
usual run of occupations and is in excess of the
hazardattendingtheemploymentingeneral
Q:WhatisSickness?
Q:DiscussbrieflythetheoryofIncreasedRisk.
A:ThetermsicknessasdefinedinArticle167(l)of
the Labor Code is a recognition of the theory of
increased risk. To establish compensability under
thesame,theclaimantmustshowsubstantialproof
of workconnection, but what is required is merely
a reasonable workconnection and not a direct
causalrelation.Proofofactualcauseoftheailment
isnotnecessary.Thetestofevidenceofrelationof
thediseasewiththeemploymentisprobabilityand
notcertainty.(Jimenezv.EmployeesCompensation
Commission, G.R. No. L58176, March 23, 1984;
Panotesvs.ECC,G.R.No.L64802,March29,1984)
A:Thefollowingdefensesmaybesetup:
A:
1. Yes.TheinjurywassustainedbyAbrahamDino
in his place of work and while in the
performanceofhisofficialfunctions.
A:Yes.Filipinosworkingabroadintheserviceofan
Er, domestic or foreign, who carries on in the
Philippines any trade, business, industry,
undertaking or activity of any kind, are covered by
theECP.(Rule1,Section5,ECCRules;Art.169,LC)
XPNS:
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
126
1. WheretheEeisproceedingtoorfromhis
workonthepremisesoftheEr;
2. Proximity Rulewhere the Ee is about to
enter or about to leave the premises of
his Er by way of exclusive or customary
meansofingressandegress;
3. Eeischarged,whileonhiswaytoorfrom
his place of employment or at his home,
or during this employment with some
dutyorspecialerrandconnectedwithhis
employment;and
4. Where the Er as an incident of the
employment provides the means of
transportation to and from the place of
employment.
Q:WhoareentitledtobenefitsundertheECP?
Q:WhoarethedependentsoftheEe?
A:
1. Legitimate, legitimated, legally adopted
or acknowledged natural child who is
unmarried, not gainfully employed, and
not over twentyone (21) years of age or
over twentyone (21) years of age
provided he is incapacitated and
incapableofselfsupportduetoaphysical
or mental defect which is congenital or
acquiredduringminority;
2. LegitimatespouselivingwiththeEe;and
3. ParentsofsaidEewhollydependentupon
himforregularsupport.(Art.167(i),LC,as
amendedbyP.D.1921)
Q:Whoareincludedinthetermbeneficiaries?
A:
1. MedicalBenefits
2. DisabilityBenefits
3. DeathBenefits
4. FuneralBenefits
MedicalBenefit
DisabilityBenefit
Q:Whataredisabilitybenefits?
A:Yes.Thisisinlinewiththesocialjusticeprovision
in the Constitution. A persons disability may not
manifest itself fully at one precise moment in time
but rather over a period of time. And disability
should not be understood more on its medical
significancebutonthelossofearningcapacity.
SOCIAL LEGISLATION
127
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
Q: May permanent total disability arise although
the Ees does not lose the use of any part of his
body?
DeathBenefit
A:
1. Dependent Spouseuntil he or she
remarries.
2. Dependent Childrenuntil they get
married, or find gainful employment, or
reachtwentyone(21)yearsofage.
3. Dependent Child suffering from physical
or mental defectuntil such defect
disappears.
FuneralBenefit
Q:Whatisthefuneralbenefit?
Q:Whoarerequiredtomakecontributionstothe
SIF?
A:No,asexpresslyprovidedforinArticle173ofthe
Labor Code, payment of compensation under the
SIF shall not bar the recovery of benefits underthe
SSS Law, Republic Act No. 1161, as amended.
Benefits under the SIF accrueto the Ees concerned
duetohazardsinvolvedandaremadeaburdenon
the employment itself. On the other hand, social
security benefits are paid to SSS members by
reason of their membership therein for which they
contribute their money to a general fund. (Maao
Sugar Central Co., Inc. vs. CA, G.R. No. 83491,
August27,1990)
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
128
G.LABORRELATIONSLAW
1.RIGHTTOSELFORGANIZATION
a.Whomayunionizeforpurposesofcollective
bargaining
A:Itincludestheright:
A:Theentitiescoveredareallpersonsemployedin:
1. Commercial industrial, and agricultural
enterprises;and
2. In religious, charitable, medical or
educational institutions whether
operatingforprofitornot.(Art.243)
A:Thefollowingenjoytherighttoselforganization
formutualaidandprotection:
1. Ambulantworkers
2. Intermittentworkers
3. Itinerantworkers
4. Selfemployedpeople
5. Ruralworkers
6. Those without and definite Ers. (Art.
243)
Q:Whoarethepersons/Eesnotgrantedtheright
toselforganization:
A:
1. High level or Managerial Government
Ees.(Sec.3,E.O.180)
2. Ees of International organizations with
immunities. (ICMC v. Calleja, G.R. No.
85750,Sep.28,1990)
3. ManagerialEmployees.(Art.212ofLC)
4. Members of the AFP including the police
officers, policemen, firemen, and jail
guards.(Sec.4,E.O.180)
5. Confidential Employees. (Metrolab
Industries Inc. v. Confesor, G.R. No.
108855,Feb.28,1996)
6. Employees of cooperatives who are its
members. (Benguet Elec. Coop. v. Ferrer
Calleja, G.R. No. 79025, Dec. 29, 1989);
However they may form workers
association. (NEECO Ees Assoc. v. NLRC,
G.R.No.16066,Jan.24,2000)
7. NonEes.(RosarioBros.v.Ople,G.R.No.
L5390,July31,1984)
8. Govt Ees, including GOCCs with original
charters. (Arizala v. CA, G.R. Nos. 43633
34,Sep.14,1990)
9. Aliens without a valid working permit or
aliens with working permits but are
nationalsofacountrywhichdonotallow
Filipinos to exercise their right of self
organization and to join or assist labor
organizations. (Art. 269 of LC; D.O. No. 9
[1997],RuleII,Sec.2)
b.BargainingUnit
Q:Whatisabargainingunit?
A:ItisagroupofEesofagivenEr,comprisedofall
orlessthanalloftheentirebodyoftheEeswhich
thecollectiveinterestofalltheEesconsistentwith
equitytotheemployer,indicatetobebestsuitedto
servethereciprocalrightsanddutiesoftheparties
under the collective bargaining provisions of the
law.
Q:Whatisanappropriatebargainingunit?
A: 1.Agroupofemployees(Ees)
2. Ofagivenemployer
3. Comprised of all or less than all of the
entirebodyofEes
4. WhichthecollectiveinterestofalltheEes
consistentwithequitytotheEr
5. Indicate to be best suited to serve the
reciprocal rights and duties of the parties
underthecollectivebargainingprovisions
ofthelaw.
(1)Testtodeterminetheconstituencyofan
appropriatebargainingunit
Q:Whatarethefactorsconsideredindetermining
theappropriatenessofabargainingunit?
A:
1. WilloftheEes.(GlobeDoctrine)
LABOR RELATIONS LAW
129
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
2. AffinityandunityoftheEesinterest,such
as substantial similarity of work and
duties, or similarity of compensation and
working conditions. (Substantial Mutual
InterestRule)
3. Priorcollectivebargaininghistory
4. Similarity of employment status. (SMC v.
Laguesma, G.R. No. 100485, Sep. 21,
1994)
Q:Whatarethefactorsconsideredindetermining
thesubstantialmutualinterestdoctrine?
Q:AregisteredlaborunioninUP,ONAPUP,fileda
petition for certification election (PCE) among the
nonacademicEes.Theuniversitydidnotoppose,
however,anotherlaborunion,theAllUPWorkers
Union assents that it represents both academic
andnonacademicpersonnelandseekstouniteall
workers in 1 union. Do Ees performing academic
functions need to comprise a bargaining unit
distinctfromthatofthenonacademicEes?
A: Yes. The mutuality of interest test should be
taken into consideration. There are two classes of
rankandfileEesintheuniversitythatis,thosewho
perform academic functions such as the professors
andinstructors,andthosewhosefunctionarenon
academic who are the janitors, messengers, clerks
etc.Thus,notmuchreflectionisneededtoperceive
that the mutuality of interest which justifies the
formation of a single bargaining unit is lacking
between the two classes of Ees. (U.P. v. Ferrer
Calleja,G.R.No.96189,July14,1992)
Q:Isthebargaininghistoryadecisivefactorinthe
determination of appropriateness of bargaining
unit?
A:No.Whiletheexistenceofabargaininghistoryis
a factor that may be reckoned with in determining
the appropriate bargaining unit, the same is not
decisive or conclusive. Other factors must be
considered. The test of grouping is community or
mutuality of interests. This is so because the basic
testofanassertedbargainingunitsacceptabilityis
whetherornotitisfundamentallythecombination
whichwillbestassuretoallEestheexerciseoftheir
CB rights. (Democratic Labor Assn v. Cebu
Stevedoring Company, Inc., G.R. No. L10321, Feb.
28,1958)
Q:Whatisoneunion,onecompanypolicy?
A:GR:ItistheproliferationofunionsinanErunit.
Suchisdiscouragedasamatterofpolicyunless
therearecompellingreasonswhichwoulddeny
a certain class of Ees to the right to self
organization for purposes of collective
bargaining(CB).
XPNs:
1. Supervisory Ees who are allowed to form
their own unions apart from the rank
andfileEesand
2. ThepolicyshouldyieldtotherightofEes
to form union for purposes not contrary
tolaw,selforganizationandtoenterinto
CBnegotiations.
130
to another and back again by simply fillingup a
common proforma slip; 5) they always hold joint
yearly ceremonies such as the PGA Annual Awards
Ceremony; and 6) they continue to be represented
byonecounsel.
Hence, the veil of corporate fiction of the 3
agencies should be lifted for the purpose of
allowing the Ees of the 3 agencies to form single
union.Asasinglebargainingunit,theEesneednot
file 3 separate PCE. (Philippine Scout Veterans
Security and Investigation Agency v. SLE, G.R. No.
92357,July21,1993)
(2)VoluntaryRecognition
Q: What are the 3 methods of determining the
bargainingrepresentative?
A:
1. Voluntaryrecognition
2. Certificationelectionwithorwithoutrun
off
3. Consentelection
Q:Whatisvoluntaryrecognition(VR)?
A:Theprocess bywhicha legitimatelaborunionis
recognized by the employer (Er) as the exclusive
bargaining representative or agent in a bargaining
unit, reported with the Regional Office. (Sec. 1
[bbb],RuleI,BookV,IRR)
Q:WhataretherequirementsforVR?
A: The notice of VR shall be accompanied by the
originalcopyand2duplicatecopiesofthefollowing
reqts:
1. JointstatementunderoathofVR
3. Certificateofposting
5. Statementthatthelaborunionistheonly
LLOoperatingwithinthebargainingunit.
Q:Whatarethethree(3)conditionstovoluntary
recognition(VR)?
A:VRrequires3concurrentconditions:
1. VR is possible only in an unorganized
establishment.
2. Onlyoneunionmustaskforrecognition.If
there 2 or more unions asking to be
recognized, the Er cannot recognize any
of them; the rivalry must be resolved
throughanelection.
Q:WhereandwhentofilethepetitionforVR?
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
organization for a period of 1 year from
thedateofentryofVR.
(3)CertificationElection
Q:Whatiscertificationelection(CE)?
A: It is the process of determining through secret
ballot the sole and exclusive representative of the
Ees in an appropriate bargaining unit, for purposes
ofCBornegotiation.(Sec.1[h],RuleI,BookV,IRR)
Note:TheprocessiscalledCEbecauseitservesasthe
official, reliable and democratic basis for the BLR to
determine and certify the union that shall be the
exclusive bargaining representative of the Ees for the
purposeofbargainingwiththeEr.
Q:Whatisthenatureofcertificationelection?
Q:Whatisthepurposeofacertificationelection?
A:Itisameansofdeterminingtheworkerschoice
of:
Note:SomeoftheEesmaynotwanttohaveaunion;
hence, no union is one of the choices named in the
ballot. If no union wins, the company or the
bargaining unit remains ununionized for at least 12
months, the period is known as 12month bar. After
thatperiod,apetitionforaCEmaybefiledagain.
Q:Distinguishtherequisitesforapetitionfor
certificationelectionbetweenanorganizedandan
unorganizedestablishment.
A:
Art.256.ORGANIZED Art.257.UNORGANIZED
Bargainingagent
Present None
Petitionfiled
Hastobeaverified
petition
Noneedtobeverified
FreedomPeriod
NopetitionforCEexcept
within60daysbeforethe
expirationoftheCBA.
(SeeArt.253&253A)
Notapplicable.No
freedomperiod.Petition
canbefiledanytime.
Substantialsupportrule
Mustbedulysupported
by25%ofallthe
membersofthe
appropriatebargaining
unit(ABU).
Percentagebase:all
membersofanABU.
Nosubstantialsupport
rule.
Why?Intentionoflawis
tobringintheunion,to
implementpolicybehind
Art.211(a).
A:
1. Anylegitimatelabororganization(LLO)
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
132
2. A national union or federation which has
already issued a charter certificate to its
localchapterparticipatingintheCE
3. A local chapter which has been issued a
chartercertificate
4. An Er only when requested to bargain
collectively in a bargaining unit where no
registered CBA exists. (Sec. 1, Rule VIII,
BookV,IRRasamendedbyD.O.40F03)
Note:Anationalunionorfederationfilingapetitionin
behalf of its local/chapter shall not be required to
disclose the names of the local/chapters officers and
members, but shall attach to the petition the charter
certificate it issued to its local/chapter. (Sec. 1, Rule
VIII,BookV,IRRasamendedbyD.O.40F03)
Q:WhereisPCEfiled?
Q:WhoshallhearandresolvethePCE?
A:TheMediatorArbiter.
Q:WhentofilePCE?
1. IfithasnoCBA,thepetitionmaybefiled
anytime outside the 12month bar
(certificationyear).
2. IfithasCBA,itcanbefiledonlywithinthe
last60daysofthe5
th
yearoftheCBA.
A:
UNIONELECTION CERTIFICATIONELECTION
Heldpursuanttothe
unionsconstitutionand
Theprocessisordered
andsupervisedbyDOLE
bylaws
Righttovoteisenjoyed
onlybyunionmembers
AllEeswhetherunionor
nonunionmemberswho
belongtotheappropriate
bargainingunitcanvote
Winnersofunionelection
becomeofficersand
representativesofthe
uniononly
ThewinnerinaCEisan
entity,aunion,which
becomesthe
representativeofthe
wholebargainingunit
thatincludeseventhe
membersofthedefeated
unions.
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
freedomperiodoftheoldCBAwhichisoutsidethe
freedom period of the new CBA that had been
prematurelyenteredinto.
Q: Are probationary employees (Ees) entitled to
voteinaCE?Why?
A: Yes, in a CE, all rankandfile Ees in the
appropriate bargaining unit (ABU) are entitled to
vote. This principle is clearly stated in Art. 255 of
the LC which states that the "labor organization
designatedorselectedbythemajorityoftheEesin
such unit shall be the exclusive representative of
the Ees in such unit for the purpose of collective
bargaining(CB)."
CB covers all aspects of the employment relation
and the resultant CBA negotiated by the certified
unionbindsallEesinthebargainingunit.Hence,all
rankandfileEes,probationaryorpermanent,have
a substantial interest in the selection of the
bargaining representative. The LC makes no
distinction as to their employment status as basis
for eligibility to vote in the petition for CE. The
law refers to "all" the Ees in the bargaining unit.
All they need to be eligible to vote is to belong
to the "bargaining unit" (Airtime Specialists, Inc. v.
FerrerCalleja, G.R. No. 8061216, Dec. 29, 1989).
(1999BarQuestion)
Q:Whatisdirectcertification?
A: It is the process whereby the MedArbiter
directly certifies a labor organization of an
appropriate bargaining unit (ABU) of a company
after a showing that such petition is supported by
atleastamajorityoftheEesinthebargainingunit.
Q: Does the failure of SAMAFIL (an independent
union) to prove its affiliation with NAFLUKMU
federation affect its right to file a PCE as an
independentunion?
A: No, as a LLO, it has the right to file a PCEon its
own beyond question. Its failure to prove its
affiliation with the NAFLUKMU cannot affect its
right to file said PCE as an independent union. At
the most, its failure will result in an ineffective
affiliationwithNAFLUKMU.Despiteaffiliation,the
local union remains the basic unitfree to serve the
common interest of all its members and pursue its
own interests independently of the federation.
(Samahan ng mga Manggagawa sa Filsystems v.
SLE,G.R.No.128067,June5,1998)
Q: May illegally dismissed Ees of the company
participateinthecertificationelection(CE)?
A: Yes, it is now wellsettled that Ees who have
been improperly laid off but who have at present
an unabandoned right to or expectation of re
employment,areeligibletovoteinCEs.Thus,and
to repeat, if the dismissal is under question, as in
the case now at bar whereby a case of illegal
dismissal and/or ULP was filed, the Ees concerned
could still qualify to vote in the elections. (Phil.
Fruits & Vegetables Industries v. Torres, G.R. No.
92391,July3,1992)
Q:Isdirectcertification(DC)stillallowed?
A: No. Even in a case where a union has filed a
petition for CE, the mere fact that there was no
opposition does not warrant a DC. More so in a
casewhentherequiredproofisnotpresentedinan
appropriate proceeding and the basis of the DC is
the unions selfserving assertion that it enjoys the
support of the majority of the Ees, without
subjecting such assertion to the test of competing
claims. (Samahang Manggagawa sa Permex v.
Secretary,G.R.No.107792,Mar.2,1998)
Q:WhatarethegroundsfordenyingthePCE?
A:
1. The petitioning union or federation is not
listed in the DOLEs registry of legitimate
labor unions or that its registration
certificate legal personality has been
revokedorcancelledwithfinality
2. Failure of a local chapter or national
union/federation to submit a duly issued
charter certificate upon filing of the
petition
3. The petition was filed before or after the
FREEDOM PERIOD of a duly registered
CBA; provided that the 60day period
based on the original CBA shall not be
affectedbyanyamendment,extensionor
renewaloftheCBA;(contractbarrule)
4. The petition was filed within 1 year from
entry of voluntary recognition or within
thesameperiodfromavalidcertification,
consentorrunoffelectionandnoappeal
ontheresultsofthecertification,consent
or runoff election is pending; (12month
bar;certificationyearbarrule)
5. A duly certified union has commenced
and sustained negotiations with the Er in
accordancewithArt.250oftheLCwithin
the1yearperiod.(negotiationbarrule)
6. There exists a bargaining deadlock which
had been submitted to conciliation or
arbitration or had become the subject of
avalidnoticeofstrikeorlockouttowhich
an incumbent or certified bargaining
agentisaparty.(deadlockbarrule)
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
134
7. In case of an organized establishment,
failure to submit the 25% support reqt
forthefilingofthePCE.
8. Nonappearance of the petitioner for 2
consecutive scheduled conferences
before the medarbiter despite due
notice,and
9. AbsenceofErEerelationshipbetweenall
themembersofthepetitioningunionand
the owner of the establishment where
the proposed bargaining unit is sought to
berepresented.(Sec.14[a],RuleVIII,Book
V,IRR,asamendedbyD.O.40F03)
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
A:
1. TheCBAisunregistered
2. TheCBAisinadequateandincomplete
3. The CBA was hastily entered into
(Doctrineofprematureextension)
4. Withdrawal of affiliation from the
contracting union brought about by
schismormassdisaffiliation
5. Contract where the identity of the
representative is in doubt. (ALU v. Ferrer
Calleja,G.R.No.85085,Nov.6,1989)
6. CBAenteredintobetweentheErandthe
union during the pendency of a petition
for CE (Vassar Industries Ees Union v.
Estrella,G.R.No.L46562,Mar.31,1978)
7. CBA conducted between the Er and the
unionisnotbartoacertificationelection
filed by another union and said CBA can
be renegotiated at the option of the new
bargainingagent.(ATUv.Hon.Noriel,G.R.
No.L48367,Jan.16,1979)
8. ACBAregisteredwithfalsifiedsupporting
documents
9. CBA was concluded in violation of an
order enjoining the parties from entering
into a CBA until the issue of
representationisresolved
10. Petition is filed during the 60day
freedomperiod.
Q:CapitolMedicalCenterEesAssociationAlliance
of Filipino Workers (CMCEAAFW) emerged as the
certified representative of the rankandfile Ees at
Capitol Medical Center (CMC). Due to CMCs
refusal to bargain collectively, CMCEAAFW filed a
noticeofstrikeandlateronstagedthestrikeafter
complying with the other legal reqts. The SLE
assumed jurisdiction over the case and issued an
order certifying the same to the NLRC for
compulsory arbitration. During all of these events
Capitol Medical Center Alliance of Concerned
employees (Ees)Unified Filipino Service Workers
filedapetitionforCEamongtheregularrankand
fileEesofCMC.ThepetitionforCEwasdismissed
and the CMC was directed to negotiate with
CMCEAAFW.WasthedismissalofthePCEproper?
Thecircumstancesinthiscaseshouldbeconsidered
as similar in nature to a "bargaining deadlock"
whennoCEcouldbeheld.Thisisalsotomakesure
that no floodgates will be opened for the
circumvention of the law by unscrupulous Ers to
prevent any certified bargaining agent from
negotiating a CBA. Sec. 3, (Rule VIII), Book V of the
IRRshouldbeinterpretedliberallysoastoincludea
circumstance where a CBA could not be concluded
due to the failure of one party to willingly perform
its duty to bargain collectively. (Capitol Medical
Center Alliance of Concerned Ees v. Laguesma, G.R.
No.118915,Feb.4,1997)
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
136
Q:Shouldthecertificationelectionproceedingsbe
suspended in view of the pending case for
cancellation of the unions certificate of
registration?
A:No,thependencyofacancellationcaseisnota
ground for the dismissal or suspension of a
representation proceeding considering that a
registeredlabororganization(LO)continuestobea
legitimateoneentitledtoalltherightsappurtenant
thereto until a final valid order is issued cancelling
suchregistration.
Once a LO attains the status of a LLO it begins to
possess all of the rights and privileges granted by
law to such organizations. As such rights and
privileges ultimately affect areas which are
constitutionallyprotected,theactivitiesinwhichLO,
associations and unions are engaged directly affect
the public interest and should be zealously
protected. (Progressive Devt Corp. v. SLE, G.R. No.
115077,April18,1997)
Q:Whatisnegotiationbarrule?
Q:Whatiscertificationyearrule?
(4)RunoffElection
Q:Whatisarunoffelection?
A:Anelectionconductedwhen:
1. An election which provides for 3 or more
choices results in none of the contending
unions receiving a majority of the valid
votescast,and
2. There are no objections or challenges
whichifsustainedcanmateriallyalterthe
results,provided
3. The total number of votes for all the
contending unions is at least 50% of the
numberofvotescast.(Sec.1,RuleX,Book
V,IRR)
4. Not one of the choices obtained the
majority of the valid votes cast (50%+ 1
secondmajority);
5. The two choices which garnered the
highest votes will be voted and the one
which garners the highest number of
votes will be declared the winner
provided they get the majority votes of
thetotalvotescast.
Q:Whoarethechoicesinarunoffelection?
A: Theunionsreceivingthehighestand2
nd
highest
number of the votes cast. (Sec.2, Rule X, Book V,
IRR)
(5)RerunElection
Q:WhendoesRerunElectiontakeplace?
A: 1.Ifonechoicereceivesapluralityofthe
voteandtheremainingchoicesresultsina
tie;or
2.Ifallchoicesreceivedthesamenumber
ofvotes.
Note:Inbothinstances,thenounionisalsoachoice.
(5)ConsentElection
Q:Whatisaconsentelection?
Q:Howtodeterminethedoublemajorityrule?
A:
1. Indeterminingtheeligiblevotescast(first
majority)includespoiledballots
2. In determining valid votes (second
majority), eliminate spoiled ballots but
includedthechallengedvotes.
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
Q: A certification election was conducted among
the rankandfile Ees of Holiday Inn Manila
Pavilion Hotel. In view of the significant number
of segregated votes, contending unions, National
UnionofWorkersinHotels,RestaurantsandAllied
IndustriesManila Pavilion Hotel Chapter
(NUWHRAINMPHC) and Holiday Inn Manila
Pavilion Hotel Labor Union (HIMPHLU), referred
the case back to the MedArbiter to decide which
among those votes would be opened and tallied.
11 votes were initially segregated because they
were cast by dismissed Ees, albeit the legality of
their dismissal was still pending before the CA. 6
othervotesweresegregatedbecausetheEeswho
cast them were already occupying supervisory
positions at the time of the election. Still 5 other
votes were segregated on the ground that they
were cast by probationary Ees and, pursuant to
the existing CBA, such Ees cannot vote.
NUHWHRAINMPHC further avers that HIMPHLU,
which garnered 169 votes, should not be
immediatelycertifiedasthebargainingunit,asthe
opening of the 17 segregated ballots would push
the number of valid votes cast to 338, hence, the
169 votes which HIMPHLU garnered would be 1
vote short of the majority which would then
become170.
Was HIMPHLU able to obtain the required
majority for it to be certified as the exclusive
bargainingagent?
A: No, it is wellsettled that under the double
majority rule for there to be a valid certification
election, majority of the bargaining unit must have
voted and the winning union must have garnered
majorityofthevalidvotescast.
Following the ruling that all the probationary Ees
votes should be deemed valid votes while that of
the supervisory Ees should be excluded, it follows
thatthenumberofvalidvotescastwouldincrease.
Under Art. 256 of the LC, the union obtaining the
majorityofthevalidvotescastbytheeligiblevoters
shall be certified as the sole exclusive bargaining
agent of all the workers in the appropriate
bargainingunit.Thismajorityis50%+1,inthiscase
at least 170. HIMPHLU obtained 169, clearly it was
not able to obtain a majority vote. (NUWHRAIN
MPHCv.SLE,G.R.No.181531,July31,2009)
Q: Distinguish certification election, consent
election, direct certification, and runoff and re
runelections.
A:
Purpose
Participationof
MedArbiter
CertificationElection
Todeterminethesole
andexclusivebargaining
agentofalltheEesinan
appropriatebargaining
unitforthepurposeof
collectivebargaining.
RequirespetitionforCE
filedbyaunionorEr.A
MedArbitergrantsthe
petitionandanelection
officerisdesignatedby
regionaldirectorto
supervisetheelection.
Note:MedArbitermay
determineifthereisErEe
relationshipandifthe
votersareeligible.
ConsentElection
Todeterminetheissueof
majorityrepresentation
ofalltheworkersinthe
appropriateCBunit
mainlyforthepurposeof
determiningthe
administratoroftheCBA
whenthecontracting
unionsufferedmassive
disaffiliationandnotfor
thepurposeof
determiningthe
bargainingagentfor
purposeofCB.
Heldbyagreementofthe
unionswithorwithout
theparticipationofthe
MedArbiter.
DirectCertification
ALOisdirectlycertified
asanappropriate
bargainingunitofa
companyuponshowing
thatpetitionissupported
byatleastamajorityof
theEesinthebargaining
unit.
Note:Directcertificationis
nolongerallowed.
MedArbiterdirectly
certifiesthatalabor
unionistheexclusiveCB
representativeoftheEes
ofanappropriate
bargainingunitwithout
holdingaCE,butmerely
onthebasisofevidence
ofinsupportofthe
unionsclaimthatisthe
choiceofthemajorityof
theEes.
RunOffElection
Takesplacebetweenthe
unionswhoreceivedthe
twohighestnumberof
votesinaCEwith3or
morechoices,wherenot
oneoftheunions
obtainedthemajorityof
thevalidvotescast,
providedthetotalunion
votesisatleast50%of
thevotescast.
RerunElection
Takes place in 2
instances:
1. Ifonechoicereceivesa
plurality of the vote
and the remaining
choices results in a tie;
or
2. If all choices received
the same number of
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
138
votes.
1. Thechaptershallacquirelegalpersonality
only for purposes of filing a petition for
certificationelectionfromthedateitwas
issuedachartercertificate
2. The chapter shall be entitled to all other
rights and privileges of a legitimate labor
organization (LLO) only upon the
submissionofthefollowingdocumentsin
additiontoitschartercertificate:
a. Names of the chapters officers,
their addresses, and the principal
officeofthechapter
b. Chaptersconstitutionandbylaws
c. Where the chapters constitution
and bylaws are the same as that of
thefederationorthenationalunion,
this fact shall be indicated
accordingly
3. The genuineness and due execution of
thesupportingrequirementsshallbe:
a. Certifiedunderoathbythesecretary
ortreasurerofthelocal/chapter,and
b. Attestedtobyitspresident(Sec.2[e],
Rule III, Book V, IRR, as amended by
D.O.40F03)
Q:WhatisthedutyoftheBLRafteraLOhadfiled
the necessary papers and documents for
registration?
A:ItbecomesmandatoryfortheBLRtocheckifthe
reqts under Art. 234 of the LC have been
sedulously complied with. If its application for
registration is vitiated by falsification and serious
irregularities,especiallythoseappearingontheface
oftheapplicationandthesupportingdocuments,a
LO should be denied recognition as a LLO.
(ProgressiveDevtCorp.PizzaHutv.Laguesma,G.R.
No.115077,April18,1997)
Q: Within what period should the BLR act on the
applicationssubmittedbeforeit?
A: It shall act on all applications for registration
within10mdaysfromreceipteitherby:
Note:Allrequisitedocumentsshallbe:
1. Certified under oath by the secretary or
treasurer of the organization, as the case
maybeand
2. AttestedtoitbyitsPresident.
Q:MaytheBLRreviewtheissuanceofacertificate
ofregistration?
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
Q:Whataretherequirementsbeforeafederation
canbeissuedacertificateofregistration?
A: The application for registration of federations
and national unions shall be accompanied by the
followingdocuments:
1. A statement indicating the name of the
applicant labor union, its principal
address,thenameofitsofficersandtheir
respectiveaddresses;
4. Theapplicantunion'sconstitutionandby
laws, minutes of its adoption or
ratification, and the list of the members
whoparticipatedinit.Thelistofratifying
members shall be dispensed with where
the constitution and bylaws was ratified
or adopted during the organizational
meeting(s). In such a case, the factual
circumstances of the ratification shall be
recorded in the minutes of the
organizationalmeeting(s);
Q:Whataretherequirementsforaffiliation?
Q:Whatistheeffectofaffiliation?
A:Thelaborunionthataffiliateswithafederationis
subjecttothelawsoftheparentbodyunderwhose
authority the local union functions. The
constitution, bylaws and rules of the mother
federation,togetherwiththecharteritissuestothe
local union, constitutes an enforceable contract
between them and between the members of the
subordinate union inter se. Thus, pursuant to the
constitution and bylaws, the federation has the
right to investigate andexpel members of the local
union. (Villar v. Inciong, G.R. No. L5028384, April
20,1983)
140
constitution preventing disaffiliation of a local
union. (Tropical Hut Ees Union v. Tropical Hut, G.R.
Nos.L4349599,Jan.20,1990)
Note: A prohibition to disaffiliate in the Federations
constitutionandbylawsisvalidbecauseitisintended
foritsownprotection.
Q:Whatistheeffectofcancellationofregistration
ofafederationoranationalunion?
A:
GR: It shall operate to divest its locals/chapters
oftheirstatusasLLO.
XPN: Locals/chapters retain status as LLO if
theyarecoveredbyadulyregisteredCBA.
Note Locals or chapters who retained status as LLO
shall be allowed to register as independent unions. If
they fail to register, they shall lose their legitimate
statusupontheexpirationoftheCBA.
Q: PSEA is a local union in Skylander company
which is affiliated with PAFLU. PSEA won the
certification election among the rank and file Ees
oftheSkylandercompanybutitsrivalunionPSEA
WATU protested the results. Pending the
resolution of such controversy, PSEA disaffiliated
with PAFLU and hence affiliated with NCW which
was supportedby its members. May a local union
disaffiliatewithitsmotherfederationpendingthe
settlement of the status as the sole and exclusive
bargainingagent?
A: Yes. The pendency of an election protest does
not bar the valid disaffiliation of the local union
which was supported by the majority of its
members.
The right of a local union to disaffiliate with the
federation in the absence of any stipulation in the
constitution and bylaws of the federation
prohibiting disaffiliation is well settled. Local
unions remain as the basic unit of association, free
toservetheirowninterestsubjecttotherestraints
imposedbytheconstitutionandbylawsofnational
federationandarefreetorenouncesuchaffiliation
upon the terms and conditions laid down in the
agreement which brought such affiliation to
existence.Inthecaseatbar,noprohibitionexisted
under the constitution and bylaws of the
federation. Hence, the union may freely disaffiliate
with the federation. (Philippine Skylanders v. NLRC,
G.R.No.127374,Jan.31,2002)
Q: Distinguish between an independently
registeredandunregisteredcharteredlocalunion.
A:
CHARTEREDLOCALUNION
Independently
Registered
Unregistered
Howtoaffiliate?
Bysigningcontractof
affiliation
Byapplicationofwiththe
federationforthe
issuanceofacharter
certificatetobe
submittedtotheBLR
EffectofDisaffiliationtotheunion(local)
Wouldnotaffectitsbeing
aLLOandthereforeit
wouldcontinuetohave
legalpersonalityandto
possesallrightsand
privilegesofLLO.
WouldceasetobeLLO
andwouldnolonger
havethelegalpersonality
andtherightsand
privilegesgrantedbylaw
toLLO,unlessthelocal
chapteriscoveredbyits
dulyregisteredCBA.
EffectofDisaffiliationtotheCBA
AnexistingCBAwould
continuetobevalidas
theLOcancontinue
administeringthenCBA.
TheCBAwouldcontinue
tobevalid.Thelocal
chapterwillnotloseits
personality,unlessit
registersanew.
EntitlementtounionduesafterDisaffiliation
LOentitledtotheunion
duesandnotthe
federationfromwhich
theLOdisaffiliated.
Unionduesmayno
longerbecollectedas
therewouldnolongerbe
anylaborunionthatis
allowedtocollectsuch
unionduesfromtheEes.
Q:Whatistheformofthedecisionofthedenialof
applicationforregistration?
A:Itshallbe:
1. Inwriting
2. Stating in clear terms the reason for the
decision
3. Applicantunionmustbefurnishedacopy
ofsaiddecision.
Q:Isthedenialofregistrationappealable?
A:Yes.
1. Decisions of the Regional Office shall be
appealabletotheBLRandCA.
2. The BLRs decisions on cases appealed
from Regional Director are final and not
appealabletotheSLE.
3. Decisions of the BLR denying the
registration of a LO (federation or
national union) is appealable to the SLE
within 10 days from receipt of the
decision,ongroundsof:
a. Graveabuseofdiscretion;or
b. Grossincompetence.
4. DecisionofSLEappealabletoCA.
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
Q: How is appeal taken with regard to denial or
cancellationofregistration?
A:
DENIALORCANCELLATIONOFREGISTRATION
ByRegionaloffice ByBLR
Transmitrecordswithin24hours
fromreceiptoftheMemoofAppeal
BLRwilldecideonthe
matterwithin20days
fromreceiptofthe
records
SLEdecidesonthematter
within20daysfrom
receiptofrecords
AppealtoCAviaRule65
Q:Whatistheeffectofcancellationofregistration
if the cancellation is made in the course of the
proceedings?
A: Where a labor union is a party in a proceeding
and later it loses its registration permit in the
course or during the pendency of the case, such
union may continue as party without need of
substitution of parties, subject however to the
understanding that whatever decision may be
renderedwillbebindingonlyuponthosemembers
of the union who have not signified their desire to
withdrawfromthecasebeforeitstrialanddecision
onthemerits.
Note: Rationale: Principle of agency is applied the
Eesaretheprincipals,andtheLOismerelyanagentof
the former, consequently, the cancellation of the
unions registration would not deprive the consenting
memberEesoftheirrighttocontinuethecaseasthey
areconsideredastheprincipals.
Q: What are the groundsfor cancellationof union
registration?
A:
1. Misrepresentation, false statement or
fraudinconnectionwiththe:
a. Adoption or application of the
constitution and bylaws or
amendmentsthereto
b. Minutesofratificationand
c. Listofmemberswhotookpartinthe
ratification;
d. Electionofofficers
e. Minutes of the election of officers
and
f. Listofvoters(Art.239asamended)
Note:Apronouncementastothelegalityofthestrike
isnotwithinthemeaningofArt.239oftheLC.
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
142
Q: What are the prohibited grounds for
cancellationofunionregistration?
A:
1. TheinclusionasunionmemberofEeswho
are outside the bargaining unit shall not
be a ground to cancel the union
registration. The ineligible Ees are
automatically deemd removed from the
list of membership of the union as.(Art.
245AasamendedbyRA9481)
2. The affiliation of the rankandfile and
supervisory unions operating within the
same establishment to the same
federationornationalunionshallnotbea
ground to cancel registration of either
union. (Sec. 6, Rule XIV, Book V, as
insertedbyD.O.40F03)
(a)SubstitutionaryDoctrine
Q:Whatisthesubstitutionarydoctrine?
A: It is where there occurs a shift in the Ees union
allegiance after the execution of a collective
bargaining (CB) contract with the Er, the Ees can
change their agent (labor union) but the CB
contract which is still subsisting continues to bind
the Ees up to its expiration date. They may
however, bargain for the shortening of said
expirationdate.
Note: The Er cannot revoke the validly executed CB
contract with their Er by the simple expedient of
changing their bargaining agent. The new agent must
respectthecontract.(BenguetConsolidatedInc.v.BCI
EesandWorkersUnionPAFLU,G.R.No.L24711,April
30,1968)
It cannot be invoked to support the contention that a
newlycertifiedCBagentautomaticallyassumesallthe
personalundertakingsoftheformeragentliketheno
strikeclauseintheCBAexecutedbythelatter.
(8)UnionDuesandSpecialAssessments
(a)UnionDues
Q:Whatareuniondues?
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
benefits given to them by the CBA and to finance
theactivitiesoftheunioninrepresentingtheunion.
Q:Whatischeckoff?
A:ItisamethodofdeductingfromanEespayata
prescribed period, the amounts due the union for
fees,finesandassessments.
Deductionsforunionservicefeesareauthorizedby
law and do not require individual checkoff
authorizations.
Q:Whatisthenatureandpurposeofcheckoff?
A:Unionduesarethelifebloodoftheunion.
All unions are authorized to collect reasonable
membership fees, union dues, assessments and
fines and other contributions for labor education
and research, mutual death and hospitalization
benefits, welfare fund, strike fund and credit and
cooperativeundertakings.(Art.277[a])
Q:Whataretherequisitesofavalidcheckoff?
A:
GR: No special assessments, attys fees,
negotiationfeesoranyotherextraordinaryfees
maybecheckedofffromanyamountduetoan
employee (Ee) without individual written
authorizationdulysignedbytheEe.
Theauthorizationshouldspecificallystatethe:
1. Amount
2. Purpose&
3. Beneficiaryofthededuction.
XPNs:
1. FormandatoryactivitiesundertheLC
2. Foragencyfees
3. When nonmembers of the union avail of
thebenefitsoftheCBA:
a. Nonmembers may be assessed
unionduesequivalenttothatpaidby
unionmembers;
b. Only by board resolution approved
by majority of the members in
general meeting called for the
purpose.
(b)SpecialAssessments
A:
1. Authorization by a written resolution of
themajorityofallmembersatthegeneral
membership meeting duly called for that
purpose;
2. Secretarys record of the minutes of the
meeting,whichmustincludethe:
a. Listofmemberspresent
b. Votescast
c. Purposeofthespecialassessments
d. Recipientofsuchassessments;
3. Individual written authorization to check
off duly signed by the Ee concerned to
levysuchassessments.
Exceptiontosuchrequirement
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
144
(Agencyfees)
Notnecessarywhen:
1. Formandatoryactivities
undertheLC
2. Foragencyfees
3. Whennonmembersof
theunionavailofthe
benefitsoftheCBA:
a. Saidnonmembers
maybeassessed
unionduesequivalent
tothatpaidbyunion
members;
b. OnlybyBoard
resolutionapproved
bymajorityofthe
membersingeneral
meetingcalledforthe
purpose
Noexception;written
resolutionismandatory
inallinstances.
(9)AgencyFees
Q:Whatisanagencyfee?
A:Itisanamountequivalenttouniondues,whicha
nonunion member pays to the union because he
benefitsfromtheCBAnegotiatedbytheunion.
Note:AgencyfeecannotbeimposedonEesalreadyin
the service and are members of another union. If a
closed shop agreement cannot be applied to them,
neither may an agency fee, as a lesser form of union
security, be imposed to them. Payment by nonunion
membersofagencyfeesdoesnotamounttoanunjust
enrichment basically the purpose of such dues is to
avoid discrimination between union and nonunion
members.
Q: What are the requisites for assessment of Agency
fees(Art.248[e],LC)?
A:
1. Theemployeeispartofthebargainingunit
2. Heisnotamemberoftheunion
3. HepartookofthebenefitsoftheCBA
Note:TheindividualauthorizationrequiredunderArt.
242, par. O of the LC shall not apply to the non
members of the recognized collective bargaining
agent.
Q:Distinguishunionduesfromagencyfees.
A:
UnionDues AgencyFee
Isdeductedfrom
membersforthe
paymentofuniondues
Isdeductedfromnon
membersofthe
bargainingagent(union)
fortheenjoymentofthe
benefitsundertheCBA.
Maynotbededucted
fromthesalariesofthe
unionmemberswithout
thewrittenconsentof
theworkersaffected.
Maybedeductedfrom
thesalaryoftheEes
withouttheirwritten
consent.
2.RIGHTTOCOLLECTIVEBARGAINING
Q:Whatiscollectivebargaining(CB)?
A:
1. It is the process of negotiation by an
organization or group of workmen, in
behalfofitsmembers,withtheemployer
(Er), concerning wages, hours of work,
and other terms and conditions of
employmentand
2. Thesettlementofdisputesbynegotiation
between an Er and the representative of
hisemployees(Ee)
Note:
GR: No court or administrative agency or official
shall havethe powerto set or fixwages,ratesof
pay,hoursofwork,orothertermsandconditions
ofemployment
XPNs:AsotherwiseprovidedundertheLC:
1. National Wages and Productivity
Commission and RTWPB as to wage fixing.
(Art.99and122,LC)
2. NCMB and NLRC as to wage distortion.
(Art.124,LC)
3. SLE and President of the Philippines as to
certification and assumption of powers
overlabordisputes.(Art.236[g],LC)
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
Q:Whatisthepurposebehindthisrule?
Q:WhoarethepartiestoaCB?
A:
1. Employer
2. Employees, represented by the exclusive
bargainingagent
A:
1. Possession of the status of majority
representation of the employees
representative in accordance with any of
the means of selection or designation
providedfortheLaborCode
2. Proofofmajorityrepresentation
3. AdemandtobargainunderArt.250(a)of
the LC. (Kiok Loy v. NLRC, G.R. No. L
54334,Jan.22,1986)
a.DutytoBargainCollectively
A:OnlyaftertheunionrequeststheErtobargain.If
thereisnodemand,theErcannotbeindefault.
Wherethereisalegitimaterepresentationissue,there
is no duty to bargain collectively on the part of the Er
(LakasngmgaManggagawangMakabayanv.Marcelo
Enterprises,G.R.No.L38258,Nov.19,1982)
Q:Whatisazipperclause?
Q:Whenshallbargainingcommence?
Q:WhatistheprocedureinCB?
A:Whenapartydesirestonegotiateanagreement:
Note:DuringtheconciliationproceedingintheNCMB,
the parties are prohibited from doing any act which
may disrupt or impede the early settlement of
disputes.(Art.250[d],LC)
Q:WhatarethestagesinCB?
A:
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
146
1. Preliminary process: Sending a written
notice for negotiation which must be
clearandunequivocal
2. Negotiationprocess.
3. Execution process: The signing of the
agreement
4. Publication for at least 5 days before
ratification
5. Ratification by the majority of all the
workers in the bargaining unit
represented in the negotiation (not
necessaryincaseofarbitralaward)
6. Registrationprocess.
7. Administration process: The CBA shall be
jointly administered by the management
andthebargainingagentforaperiodof5
years.
8. InterpretationandApplicationprocess.
Q:Whatarethelimitationstothedutytobargain
collectively?
A:
1. Such duty does not compel any party to
agree to a proposal or to make any
concession.
2. Parties cannot stipulate terms and
conditions of employment which are
below the minimum reqts prescribed by
law.
Q:Mayeitherpartybargaintoanimpasse?
A:Itdepends:
Q:Whatisthetestofbargaininginbadfaith?
Note:WiththeexecutionoftheCBA,BFcannolonger
be imputed upon any of the parties thereto. All
provisions in the CBA are supposed to have been
jointly and voluntarily incorporated therein by the
parties. This is not a case where private respondent
exhibited an indifferent attitude towards CB because
the negotiations were not the unilateral activity of
petitionerunion. TheCBAisgood enoughthatprivate
respondent exerted reasonable effort of GF
bargaining. (Samahang Manggagawa sa Top Form
ManufacturingUnited Workers of the Phils v. NLRC,
G.R.No.113856,Sept.7,1998)
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
agreement. While the law makes it an obligation
for the Er and the Ees to bargain collectively with
each other, such compulsion does not include the
commitmenttoprecipitatelyacceptoragreetothe
proposals of the other. All it contemplates is that
both parties should approach the negotiation with
an open mind and make reasonable effort to reach
a common ground of agreement. (Union of Filipro
Ees v. Nestle Phils., G.R. Nos. 15893031, Mar. 3,
2008)
Q:Whatisadeadlock?
A:Thepartiesmay:
A:
1. When there is a CBA the duty to bargain
collectively shall also mean that neither
party shall terminate nor modify such
agreementduringitslifetime.
2. Either party can serve a written notice to
terminate or modify the agreement at
least60dayspriortoitsexpirationdate.
3. Itshallbethedutyofbothpartiestokeep
the status quo and to continue in full
forceandeffectthetermsandconditions
of the existing agreement during the 60
day period and/or until a new agreement
isreachedbytheparties.(Art.253,LC)
Q:WhatistheautomaticrenewalclauseofCBAs?
A:AlthoughaCBAhasexpired,itcontinuestohave
legaleffectsasbetweenthepartiesuntilanewCBA
has been entered into (Pier & Arrastre Stevedoring
Services, Inc. v. Confessor, G.R. No. 110854,
February 13, 1995). This is so because the law
makes it a duty of the parties to keep the status
quo and to continue in full effect the terms and
conditions of the existing agreement until a new
agreement is reached by the parties. (Art. 253, LC).
(2008BarQuestion)
A:
1. A labor union may disaffiliate from the
mother union to form a local or
independentuniononlyduringthe60day
freedom period immediately preceding
theexpirationoftheCBA.
2. Either party can serve a written notice to
terminate or modify agreement at least
60dayspriortoitsexpirationperiod.
3. A petition for certification election may
befiled.
Q:WhentofileCBA?
A:Within30daysfromexecutionofCBA.
Q:Whataretherequirementsforregistration?
Q:Whatisasingleenterprisebargaining?
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
148
A: It involves negotiation between one certified
labor union and one Er. Any voluntarily recognized
or certified labor union may demand negotiations
with its Er for terms and conditions of work
coveringEesinthebargainingunitconcerned.
Q:WhatisamultiErbargainingscheme?
Q:WhatisthedurationofaCBA?
A:
1. Withrespecttotherepresentationaspect
(referstotheidentityandmajoritystatus
of the union that negotiated the CBA as
the exclusive bargaining representative):
5years
2. Withrespecttoallotherprovisions(refers
to the rest of the CBA, economic as well
as noneconomic provisions other than
representationalprovisions):3yearsafter
theexecutionoftheCBA
Q:WhataretheeconomicprovisionsofaCBA?
A:
1. Wages
2. Familyplanning
3. Effectivityoftheagreement
4. Other terms and conditions of
employment
A:
1. Coverageofthebargainingunit
2. Unionsecurityclauses
3. Management prerogatives and/or
rights/responsibilitiesofemployees
4. Grievance machinery and voluntary
arbitration
5. Nostrikenolockoutprovision
Q:Whatistheeffectivityandretroactivitydateof
othereconomicprovisionsoftheCBA?
A:
1. If the CBA is the very first for the
bargainingunit,thepartieshavetodecide
theCBAeffectivitydate.
2. Thosemadewithin6monthsafterdateof
expiry of the CBA are subject to
automatic retroaction to the day
immediatelyfollowingthedateofexpiry.
Q:MaytheeconomicprovisionsofanexistingCBA
be extended beyond the 3 year period as
prescribed by law in the absence of a new
agreement?
A:Yes.Undertheprincipleofholdover,untilanew
CBAhasbeenexecutedbyandbetweentheparties,
they are duty bound to keep the status quo and
mustcontinueinfullforceandeffectthetermsand
conditionsoftheexistingagreement.Thelawdoes
not provide for any exception or qualification as to
which of the economic provisions of the existing
agreement are to retain force and effect.
Therefore, it must be encompassing all the terms
and condition in the said agreement. (New Pacific
Timberv.NLRC,G.R.No.124224,Mar.17,2000)
Q: Mindanao Terminal Company and respondent
union has an existing CBA which was about to
expire. Thus, negotiations were held regarding
certain provisions of the CBA which resulted in a
deadlock. Thus the union filed a notice of strike.
During the conference called by the NCMB the
company and the union were able to agree on all
of the provisions of the CBA except for one.
However, the last unresolved provision was
subsequently settled but no CBA was signed.
Hence,intherecordsoftheMediationArbiter,all
issues were settled before the lapse of the 6
month period after the expiration of the old CBA.
Does the signing of the CBAdetermine the date it
wasenteredintowithinthe6monthperiod?
A: No. The signing of the CBA does not determine
whethertheagreementwasenteredintowithinthe
6 month period from the date of expiration of the
old CBA. In the present case, there was already a
meeting of the minds between the company and
the union prior to the end of the 6 month period
after the expiration of the old CBA. Hence, such
meeting of the mind is sufficient to conclude that
anagreementhasbeenreachedwithinthe6month
period as provided under Art. 253A of the LC.
LABOR RELATIONS LAW
149
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
(Mindanao Terminal and Brokerage Services Inc., v.
Confessor,G.R.No.111809,May5,1997)
Q:WhenistheeffectivityofaCBAarbitralaward
concludedbeyond6monthsfromtheexpirationof
theoldCBA?
A: The CBA arbitral awards granted 6 months from
theexpirationofthelastCBAshallretroacttosuch
time agreed upon by both the Er and the union.
Absent such agreement as to retroactivity, the
awardshallretroacttothe1
st
dayafterthe6month
period following the expiration of the last day of
the CBA should there be one. In the absence of a
CBA, the SLEs determination of the date of
retroactivity as part of his discretionary powers
over arbitral award shall control. (Manila Electric
Company v. Quisumbing, G.R. No. 127598, Feb. 22
andAug.1,2000)
Q: PAL was suffering from a worsened financial
condition resulting to a retrenchment which
downsized its labor force by more than 1/3
thereby affecting numerous union members.
Hence, the union went on strike. The PAL offered
that shares of stock be transferred to its Ees but
the union refused. Thus, PAL claimed it has no
alternative left but to close. Hence, the union
PALEA offered that the CBA be suspended for 10
yearsandtowaivesomeoftheeconomicbenefits
in the CBA provided they remain the certified
bargaining agent. PAL agreed and resumed
operations. Is the agreement to suspend the CBA
for 10 years abdicated the workers right to
bargain?
A: No. The primary purpose of a CBA is to stabilize
labormanagement relations in order to create a
climateofasoundandstableindustrialpeace.The
assailed agreement was the result of the voluntary
CB negotiations undertaken in the light of severe
financialsituationfacedbyPAL.
Q: Is the agreement in conflict with Art. 253A of
theLC?
A: No. There is no conflict between the agreement
and Art. 253A of the LC for the latter has a 2fold
purpose namely: a) to promote industrial stability
and predictability and b) to assign specific time
tables wherein negotiations become a matter of
right and requirement. In so far as the first
purpose, the agreement satisfies the first purpose.
Asregardthesecondpurpose,nothinginArt.253A
prohibits the parties from waiving or suspending
the mandatory timetables and agreeing on the
remediestoenforcethesame.
Q: Does the agreement violate the 5 year
representation limit as provided under Art. 253A
oftheLC?
A:No.Forunderthesaidarticle,therepresentation
limit of the exclusive bargaining agent applies only
when there is an existing CBA in full force and
effect. In this case, the parties agreed to suspend
the CBA and put in abeyance the limit on
representation.(Riverav.Espiritu,G.R.No.135547,
Jan.23,2002)
b.MandatoryprovisionsoftheCBA
Q:WhatarethemandatoryprovisionsoftheCBA?
A:
1. Grievancemachinery
2. Voluntaryarbitration
3. Wages
4. Hoursofwork
5. Familyplanning
6. Ratesofpay
7. Mutualobservanceclause
Q:Whatisgrievance?
A:
1. Provisions that will ensure the mutual
observanceofitstermsandconditions.
2. A machinery for adjustment and
resolutionofgrievancesarisingfromthe:
a. Interpretation/implementation of
theCBAand
UST GOLDEN NOTES 2011
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MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
150
b. Interpretation/ enforcement of
company personnel policies. (Art.
260,par.1).
(1)GrievanceProcedure
Q:Whatisgrievancemachinery?
Q:Howisgrievancemachineryestablished?
A:
1. Agreementbytheparties
2. A grievance committee composed of at
least 2 representatives each from the
members of the bargaining unit and the
employer, unless otherwise agreed upon
bythepartiesshallbecreatedwithin10
daysfromthesigningofCBA
Q:Whatisgrievanceprocedure?
A:Theyshallautomaticallybereferredtovoluntary
arbitration prescribed in the CBA. (Art. 260, par.2,
LaborCode)
(2)VoluntaryArbitration
Q:Whatisvoluntaryarbitration?
UNIVERSITYOFSANTOTOMAS
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ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
the preferential use of voluntary modes in settling
disputes, including conciliation, and shall enforce
their mutual compliance therewith to foster
industrialpeace(Sec.3,Art.XIII,1987Constitution).
(3)NoStrikeNoLockoutClause
(4)LaborManagementCouncil
A:TheDepartmentshallpromotetheformationof
labormanagement councils in organized and
unorganized establishments to enable the workers
to participate in policy and decisionmaking
processes in the establishment, insofar as said
processes will directly affect their rights, benefits
and welfare, except those which are covered by
collective bargaining agreements or are traditional
areasofbargaining.
c.ULPinCollectiveBargaining
Q:WhataretheformsofULPinbargaining?
A:
1. Failuretomeetandconvene
2. Evading the mandatory subjects of
bargaining.
3. Bad faith in bargaining (boulwarism),
including failure to execute the CBA if
requested
4. GrossviolationoftheCBA
5. SurfaceBargaining
6. Blueskybargaining
Q:Whenisthererefusaltobargain?
A:Aunionviolatesitsdutytobargaincollectivelyby
entering negotiations with a fixed purpose of not
reachinganagreementorsigningacontract.
Q:Whatisfeatherbedding/makeworkactivities?
A:Itreferstothepracticeoftheunionoritsagents
in causing or attempting to cause an employer (Er)
to pay or deliver or agree to pay or deliver money
or other things of value, in the nature of an
exaction, for services which are not performed or
not to be performed, as when a union demands
that the Er maintain personnel in excess of the
lattersrequirements.
Note:Itisnotfeatherbeddingiftheworkisperformed
nomatterhowunnecessaryoruselessitmaybe.
Q:Whatisthesweetheartdoctrine?
A:ItiswhenaLOasksfororacceptsnegotiationsor
attysfeesfromemployersaspartofthesettlement
ofanyissueinCBoranyotherdispute.
Note:TheresultingCBAisconsideredasasweetheart
contract a CBA that does not substantially improve
theemployeeswagesandbenefitsandwhosebenefits
arefarbelowthanthoseprovidedbylaw.
Q:Whatisblueskybargaining?
A: It is defined as making exaggerated or
unreasonableproposals.
Note:Whetherornottheunionisengagedinbluesky
bargainingisdeterminedbytheevidencepresentedby
the union as to its economic demands. Thus, if the
unionrequiresexaggeratedorunreasonableeconomic
demands, then it is guilty of ULP. (Standard Chartered
Bankv.Confessor,G.R.No.114974,June16,2004)
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152
Q:Whendoesboulwarismoccur?
A: It occurs when employer (Er) directly bargains
withtheemployee(Ee)disregardingtheunion;the
aim was to deal with the labor union through Ees
ratherthanwiththeEesthrutheunion.Ersubmits
itsproposalsandadoptsatakeitorleaveitstand.
d.UnfairLaborPractice
(1)ULPofEmployers
A:
1. Interference
2. Yellowdogcondition
3. Contractingout
4. Companyunionism
5. Discrimination for or against union
membership
6. Discriminationbecauseoftestimony
7. Violationofdutytobargain
8. Paidnegotiation
9. GrossviolationofCBA
(a)Interference
Q:Whatismeantbyinterference?
A:TheactofErtointerferewith,restrainorcoerce
Eesintheexerciseoftheirrighttoselforganization.
Q:Whatisthetestofinterference?
A:WhethertheErhasengagedinconductwhich,it
mayreasonablybesaid,tendstointerferewiththe
freeexerciseoftheEesrighttoselforganization.
Q:Whatisthetotalityofconductdoctrine?
1. Thecircumstancesunderwhichtheywere
uttered
2. The history of the particular Ers labor
relationsorantiunionbias
3. Their connection with an established
collateralplanofcoercionorinterference.
(The Insular Life AssuranceNATU v. The
Insular Life Co. Ltd, G.R. No.L25291, Jan.
30,1971)
Q:Whatisalockout?
Q:WhendoeslockoutorclosureamounttoULP?
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
A:
1. Outrightandunconcealedintimidation
2. In order that interrogation would not be
deemedcoercive:
a. The Er must communicate to the Ee
thepurposeofquestioning
b. Assure him that no reprisal would
takeplace
c. ObtainEeparticipationvoluntarily
d. Must be free from Er hostility to
unionorganization
e. Mustnotbecoerciveinnature
3. IntimidatingexpressionsofopinionbyEr
(b)YellowDog
Q:Whatisayellowdogcondition?
A:Itistorequireasaconditionofemploymentthat
apersonoranEeshallnotjoinalabororganization
orshallwithdrawfromonetowhichhebelongs.
Q:Whatisayellowdogcontract?
A:Itisapromiseexactedfromworkersascondition
of employment that they are not to belong to or
attempt to foster a union during their period of
employment.
Q:Isyellowdogcontractvalid?
A:No.Itisnullandvoidbecause:
1. It is contrary to public policy for it is
tantamounttoinvoluntaryservitude.
2. It is entered into without consideration
for Ees in waiving their right to self
organization.
3. Ees are coerced to sign contracts
disadvantageoustotheirfamily.
Q:Whatarethe3usualprovisionsunderayellow
dogcontract?
A:
1. ArepresentationbytheEethatheisnota
memberofalaborunion.
2. A promise by the Ee not to join a labor
union.
3. A promise by the Ee that upon joining a
laborunion,hewillquithisemployment.
(c)ContractingOut
Q:WhatiscontractingoutasaformofULP?
A:
GR:ContractingoutservicesisnotULPperse.
XPNs:ItisULPonlywhentheff.exists:
1. The services contracted out are being
performedbyunionmembers;and
2. Such contracting out interferes with,
restrains, or coerce Ees in the exercise of
theirrighttoselforganization.
Q:Whatisarunawayshop?
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154
A:Itisanindustrialplantmovedbyitsownersfrom
onelocationtoanothertoescapelaborregulations
or State laws or to discriminate against Ees at the
oldplantbecauseoftheirunionactivities.
Q:IsresortingtorunawayshopULP?
(d)CompanyUnionism
Q:Whatisacompanyunion?
Q:Whataretheformsofcompanyunionism?
A:
1. Initiationofthecompanyunionideaby:
a. Outright formation by Er or his
representatives
b. Ee formation on outright demand or
influencebyErand
c. Manageriallymotivatedformationby
Ees
2. Financialsupporttotheunionby:
a. Erdefraysunionexpenses
b. Pays attys fees to the attorney who
drafted the Constitution or bylaws
oftheunion.
3. Er encouragement assistance
Immediately granting of exclusive
recognition as bargaining agent without
determining whether the union
representsthemajorityoftheemployees
(e)Discriminationfororagainstunionmembership
Q:WhenisadischargeofanEediscriminatory?
A:Yes.Thesharingofthebonusesisdiscriminatory
andsuchconstituteULP.ThePinesHotelEeswould
bereceivingfewerbonusescomparedtotheEesof
Taal Vista Lodge and Manila Hotel where neither
has a LO nor does the complainant union has a
member. Taking into account that Pines Hotel is
realizingprofitcomparedtothatofTaalVista.Same
analogyappliesinthesalaryincrease.(ManilaHotel
Co. v. Pines Hotel Ees Assn, G.R. No.L30139, Sep.
28,1972)
Q:Whencantherebeavaliddiscrimination?
LABOR RELATIONS LAW
155
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
A: The employer is not guilty of ULP if it merely
complies in good faith with the request of the
certified union for the dismissal of employees
expelled from the union pursuant to the union
security clause in the CBA. (Soriano v. Atienza, G.R.
No.L68619,Mar.16,1989)
Q: A profit sharing scheme was introduced by the
companyforitsmanagersandsupervisorswhoare
notmembersoftheunion,hencedonotenjoythe
benefitsoftheCBA.Therespondentunionwanted
to participate with the scheme but was denied by
the company due to the CBA. Subsequently the
company distributed the profit sharing to the
manager, supervisors and other nonunion
memberEes.Asaresulttheunionfiledanoticeof
strike alleging ULP. Is the nonextension of the
profit sharing scheme to union members
discriminatoryandanULP?
A: No. There can be no discrimination when the
Eesarenotsimilarlysituated.Thesituationofunion
members is different and distinct from nonunion
members because only union members enjoy the
benefit under the CBA. The profit sharing scheme
was extended to those who do not enjoy the
benefits of the CBA. Hence, there is no
discriminationandULPisnotcommitted.(Wiseand
Co.,Inc.v.NLRC,G.R.No.L87672,Oct.13,1989)
Q: Is dismissal of an Ee pursuant to a union
securityclauseaformofULP?
A: No. Union security clauses in the CBA, if freely
and voluntarily entered into, are valid and binding.
Thus, the dismissal of an Ee by the company
pursuant to a labor unions demand in accordance
with a union security agreement does not
constitute ULP. (Malayang Samahan ng mga
Manggagawa sa M. Greenfield v. Ramos, G.R. No.
113907,Feb.28,2000)
A union member who is employed under an
agreement between the union and his Er is bound
by the provisions thereof since it is a joint and
several contract of the members of the union
enteredintobytheunionastheiragent.(Manalang
v.ArtexDevt,G.R.No.L20432,Oct.30,1967)
Q: Is notice and hearing required in case an Ee is
dismissedpursuanttoaunionsecurityclause?
A: Yes. Although a union security clause in a CBA
may be validly enforced and dismissal pursuant to
thereto may likewise be valid, this does not erode
the fundamental requirement of due process. The
reason behind the enforcement of union security
clauses which is the sanctity and inviolability of
contractscannoterodeonesrighttodueprocess.
Notwithstanding the fact that the dismissal was at
theinstanceofthefederationandthatitundertook
toholdthecompanyfreefromanyliabilityresulting
from such dismissal, the company may still be held
liable if it was remiss in its duty to accord the
wouldbe dismissed Ees their right to be heard on
thematter.
Q: Mabeza and her coEes were asked by the
company to sign an affidavit attesting to the
latters compliance with pertinent labor laws.
Mabeza signed the affidavit but refused to swear
toitsveracitybeforetheCityprosecutor.Mabeza
then filed a LOA which was denied by
management. After sometime, she attempted to
returntoworkbutthecompanyinformedhernot
toreportforworkandcontinuewithherunofficial
leave.DidthecompanycommitULP?
A: Yes. The act of compelling an Ee to sign an
instrument indicating the Ers compliance with
Laborlawswhichthecompanymighthaveviolated
together with the act of terminating or coercing
those Ees to cooperate is an act of ULP. This is
analogous with Art. 248 (f) of the LC which
provides: to dismiss, discharge or otherwise
prejudice or discriminate against an Ee for having
given or being about to give testimony under this
Code. For in not giving a positive testimony in
favor of the Er, Mabeza reserved not only her right
to dispute the claim but also to work for better
terms and condition. (Mabeza v. NLRC, G.R No.
118506,April18,1997)
(f)ViolationofDutytoBargain
Q: What is violation of the duty to bargain as a
kindofULP?
A: This is the act of violating the duty to bargain
collectivelyasprescribedintheLC.
Q:WhataretheformsofULPinbargaining?
A:
1. Failureorrefusaltomeetandconvene
2. Evading the mandatory subject of
bargaining
3. Badfaith(BF)bargaining,includingfailure
toexecutetheCBAifrequested
4. GrossviolationoftheCBA
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156
Q:WhataretheexamplesofULPinbargaining?
A:
1. Delaying negotiations by discussing
unrelatedmatters
2. Refusaltoacceptrequesttobargain
3. Rejecting a unions offer to prove its
majorityclaim
4. Shutdowntoavoidbargaining
5. Engaginginsurfacebargaining
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
extendedtothem.(AlhambraIndustriesv.CIR,G.R.
No.L25984,Oct.30,1970)
Q:WhatarethereliefsavailableinULPcases?
A:Thefollowingreliefsmaybeavailedof:
1. Ceaseanddesistorder
2. Affirmativeorder
3. Courtmayordertheemployertobargain.
CBAmaybeimposed.
4. Strikebyunionmembers
Note:ULPcasesarenotsubjecttocompromiseinview
of the public interest involve. The relation between
capital and labor is not merely contractual. They are
impressed with public interest that labor contracts
mustyieldtocommongood.
Q:IsinterferencebyaLOanULP?
A: No,becauseinterferencebyaLOintheexercise
of the right to organize is itself a function of self
organizing.
A:
1. Union campaigns for membership even
amongmembersofanotherunion
2. Filing by a union of a petition to dislodge
anincumbentbargainingunion
3. A bargaining union, through a union
security clause, requires an incoming
employeetojointheunion.
Q:MayaunioncoerceEestojoinastrike?
A:No.Aunionviolatesthelawwhen,torestrainor
coerce nonstrikers from working during the strike,
it:
1. Assaultsorthreatenstoassaultthem
2. Threatensthemwiththelossoftheirjobs
3. Blocks their ingress to or egress from the
plant
4. Damages nonstrikers automobiles or
forcesthemoffthehighway
5. Physicallypreventingthemfromworking
6. Sabotages the Ers property in their
presence, thereby creating an
atmosphereoffearorviolence
7. Demonstrates loudly in front of a non
strikers residence with signs and shouts
accusingthenonstrikerofscabbing
8. Holdingthenonstrikeruptoridicule
9. Seeking public condemnation of the non
striker
158
andimpetuousreasonsorforcausesforeigntothe
closed shop agreement. (Manila Mandarin Ees
Unionv.NLRC,G.R.No.76989,Sep.29,1987)
Laborunionsarenotentitledtoarbitrarilyexclude
qualified applicants for membership and a closed
shop applicants provision will not justify the
employerindischarging,oraunionininsistingupon
thedischargeofanemployeewhomtheunionthus
refuses to admit to membership without any
reasonable ground thereof. (Salunga v. CIR, G.R.
No.L22456,Sep.27,1967)
Q:Whenisthererefusaltobargain?
A:Aunionviolatesitsdutytobargaincollectivelyby
entering negotiations with a fixed purpose of not
reachinganagreementorsigningacontract.
3.RIGHTTOPEACEFULCONCERTEDACTIVITIES
Q: What is the constitutional basis of strikes,
lockoutsandotherconcertedactivities?
A: The State shall guarantee the rights of all
workers to selforganization, collective bargaining
andnegotiations,andpeacefulconcertedactivities,
including the right to strike in accordance with law
(Sec.3,Art.XIII,1987Constitution).
Note: The law does not look with favor upon strikes
and lockouts because of their disturbing and
perniciouseffectsuponthesocialorderandthepublic
interests; to prevent or avert them and to implement
Sec.6,Art.XIVoftheConstitution,thelawhascreated
severalagencies,namely:theBLR,theDOLE,theLabor
Management Advisory Board, and the CIR. (Luzon
Marine Devt Union v. Roldan, G.R. No. L2660, May
30,1950)
Q:Whatisaconcertedaction?
A: It is an activity undertaken by 2 or more
employees,byoneonbehalfoftheothers.
Q:Areallconcertedactionsstrikes?
A:Notallconcertedactivitiesarestrikes.Theymay
only be protest actions they do not necessarily
cause work stoppage by the protesters. A strike in
contrast is always a group action accompanied by
workstoppage.
Q: The Ees wrote and published a letter to the
bank president, demanding his resignation on the
grounds of immorality, nepotism, favoritism and
discrimination in the appointment and promotion
ofbankEes.Thebankdismissedthe8Eesonthe
alleged libelous letter. Were the Ees engaged in a
concertedactivity?
Thejoininginprotestsordemands,evenbyasmall
group of Ees, if in furtherance of their interests as
such is a concerted activity protected by the
Industrial Peace Act. It is not necessary that union
activity be involved or that collective bargaining be
contemplated. (Republic Savings Bank v. CIR, G.R.
No.L20303,Oct.31,1967)
Q:Whatisastrike?
A:Itmeansanytemporarystoppageofworkbythe
concerted action of employees as a result of an
industrial or labor dispute. (Sec.1 [uu], Rule I, Book
V,IRR)
Q:Whatisthepurposeofastrike?
Q:Whatisalockout?
Q:Whatispicketing?
A:Itistheactofmarchingtoandfrotheemployers
premises which is usually accompanied by the
display of placard and other signs, making known
thefactsinvolvedinalabordispute.
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
evenintheabsenceofErEerelationship.(PAFLUv.
Cloribel,G.R.No.L25878,Mar.28,1969)
Q:Istherighttopicketanabsoluteright?
Therighttopeacefulpicketingshallbeexercisedby
the workers with due respect for the rights of
others.No person engaged in picketing shall
commit any act of violence, coercion or
intimidation.Stationary picket, the use of means
like placing of objects to constitute permanent
blockade orto effectively close points of entry or
exitincompanypremisesareprohibitedbylaw.
Q:Whoisastrikebreaker?
Q:Whatisastrikearea?
A:Itmeanstheestablishment,warehouses,depots,
plants or offices, including the sites or premises
used as runaway shops, of the Er struck against, as
well as the immediate vicinity actually used by
picketing strikers in moving to and fro before all
points of entrance to and exit from said
establishment.(Sec.1[vv],RuleI,BookV,IRR)
Q:Whatisaninternaluniondispute?
A:Itincludesalldisputesorgrievancesarisingfrom
anyviolationofordisagreementoveranyprovision
oftheconstitutionandbylawsofaunion,including
any violation of the rights and conditions of union
membershipprovidedforinthisLC.(Art.212[q])
Q:Whatisaboycott?
A: It is an attempt, by arousing a fear of loss, to
coerce others, against their will to withhold from
one denominated unfriendly to labor their
beneficialbusinessintercourse.
Q:Whatisaslowdown?
A: It is a method by which ones employees,
without seeking a complete stoppage of work,
retard production and distribution in an effort to
compel compliance by the employer with the labor
demandsmadeuponhim.
Q: Does an overtime boycott or work
slowdown by the employees constitute a strike
and hence a violation of the CBAs No strike, no
lockoutclause?
Q:Whatarethecharacteristicsofastrike?
A:
1. ExistenceofanErEerelationship
2. Existenceofalabordispute
3. Employment relation is deemed to
continuealthoughinastateofbelligerent
suspension
4. Temporaryworkstoppage
5. Workstoppageisdonethroughconcerted
action
6. The striking group is a legitimate labor
organization; in case of a bargaining
deadlock, it must be the employees sole
bargainingrepresentative
160
resignation or retirement was accepted by PAL
wereEnriquezandEcarma.
Q:DoestheactionoftheEesofPALfallunderthe
ambitofconcertedactionsprotectedbylaw?
Q:Whatisalabordispute?
A:
1. Ifreliefissoughtagainsthimorit,and
2. He or it is engaged in the same industry,
trade, craft, or occupation in which such
disputeoccurs,or
3. Hasadirectorindirectinteresttherein,or
4. Is a member, officer, or agent of any
association composed in whole or in part
of employees or employers engaged in
suchindustry,trade,craft,oroccupation.
Q:LiwaywayPublicationInc.isasecondsublessee
of a part of the premises of the Permanent
Concrete Products, Inc. It has a bodega for its
newsprint in the sublet property which it uses for
its printing and publishing business. The daily
supply of newsprint needed to feed its printing
plant is taken from its bodega. The Ees of the
Permanent Concrete Products Inc. declared a
strike against their company. The union members
picketed, stopped and prohibited Liwayways
trucks from entering the compound to load
newsprintfromitsbodega.
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
A:Yes,theconcertedeffortsofthemembersofthe
union and its supporters caused a temporary work
stoppage.Theallegationthattherecanbenowork
stoppagebecausetheoperationinthedivisionhad
been shut down is of no consequence. It bears
stressing that the other divisions were fully
operational. (Bukluran ng Manggagawa sa
Clothman Knitting Corp. v. CA, G.R. No. 158158,
Jan.17,2005)
a.FormsofConcertedActivities
Q:Whatarethetypesofstrike?
A:
1. Economic strike used to secure the
economic demands such as higher wages
and better working conditions for the
workers
2. ULP strike protest against ULP of
management
Q:Distinguishbetweenaneconomicstrikeandan
ULPstrike.
A:
ECONOMICSTRIKE ULPSTRIKE
Astonature
Voluntarystrike
becausetheEewill
declareastriketo
compel
managementto
grantitsdemands
Involuntarystrike;theLO is
forcedtogoonstrikebecause
oftheULPcommittedagainst
thembytheEr.Itisanactof
selfdefensesincetheEesare
beingpushedtothewalland
theironlyremedyistostagea
strike
Whowillinitiate
TheCBagentof
theappropriate
bargainingunitcan
declarean
economicstrike
EithertheCBagentortheLLOin
behalfofitsmembers
Astothecoolingoffperiod
30daysfrom
noticeofstrike
beforethe
intendeddateof
actualstrike
subjecttothe7
daystrikeban
15daysfromthefilingofthe
noticeofstrike
Astotheexceptiontothecoolingoffperiod
Noexception
mandatory
Note:noticeof
strikeandstrike
votemaybe
dispensedwith;
theymaystrike
immediately
Thecoolingoffperiodmaybe
dispensedwith,andtheunion
maytakeimmediateactionin
caseofdismissalfrom
employmentoftheirofficers
dulyelectedinaccordancewith
theunionsconstitutionandby
laws,whichmayconstitute
unionbustingwherethe
existenceoftheunionis
threatened.Itmuststillobserve
themandatory7daystrikeban
periodbeforeitcanstagea
validstrike
Q:Whatarethedifferentformsofstrike?
A:
1. Legal Strikeone called for a valid purpose
and conducted through means allowed by
law.
2. Illegal Strikeone staged for a purpose not
recognizedbylaw,orifforavalidpurpose,
conducted through means not sanctioned
bylaw.
3. Economic Strike one staged by workers to
force wage or other economic concessions
from the employer which he is not
required by law to grant
(Consolidated Labor Association
of the Phil. vs. Marsman, G.R. No. L
17038,July31,1964)
4. ULPStrikeonecalledtoprotestagainstthe
employers acts of unfair practice
enumerated in Article 248 of the Labor
Code, as amended, including gross
violation of the collective bargaining
agreement(CBA)andunionbusting.
5. Slow Down Strikeone staged without the
workers quitting their work but by merely
slackening or by reducing their normal
workoutput.
6. WildCat Strikeone declared and staged
without filing the required notice of strike
and without the majority approval of the
recognizedbargainingagent.
7. Sit Down Strikeone where the workers
stop working but do not leave their place
ofwork.
b.Whomaydeclareastrikeorlockout
Q:Whomaydeclareastrikeorlockout?
A:
1. Any certified or duly recognized
bargaining representative may declare a
strike in cases of bargaining deadlock
and unfair labor practice. Likewise, the
employer may declare a lockout in the
samecases.
2. In the absence of a certified or duly
recognized bargaining representative,
any legitimate labor organization in the
establishment may declare a strike but
only on the ground of unfair labor
practice. (Section 2, Rule XIII Book V,
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162
Omnibus Rules Implementing The Labor
Code,asamended).
c.Requisitesforavalidstrike/lockout
Q:Whataretherequisitesofalawfulstrike/
lockout?
1. Itmustbebased onavalidandfactual
ground;
3. Incasesofdismissalfromemploymentof
union officers duly elected in accordance
with the union constitution and bylaws,
which may constitute UNION BUSTING
where the existence of the union is
threatened, the 15day coolingoff period
shall not apply and the union may take
actionimmediatelyafterthestrikevoteis
conducted and the result thereof
submitted to the Department of Labor
andEmployment.
4. A strike must be approved by a majority
vote of themembers of the Union and a
lockout must be approved by a majority
vote of the members of the Board of
Directors of the Corporation or
Association or of the partners in a
partnership,obtainedbysecretballotina
meetingcalledforthatpurpose.
5. AstrikeorlockoutVOTEshallbereported
to the NCMBDOLE Regional Branch at
least7daysbeforetheintendedstrikeor
lockoutsubjecttothecoolingoffperiod.
6. In the event the result of the
strike/lockout ballot is filed within the
coolingoffperiod,the7dayrequirement
shall be counted from the day following
the expiration of the coolingoff
period. (NSFW vs. Ovejera, G.R. No.
59743,May31,1982)
Incaseofdismissalfromemploymentof
unionofficerswhichmayconstituteunion
busting, the time requirement for the
filing of the Notice of Strike shall be
dispensed with but the strike vote
requirement, being mandatory in
character, shall in every case be
compliedwith.
7. Thedisputemustnotbethesubjectofan
assumption of jurisdiction by the
President or the Secretary of Labor and
Employment, a certification for
compulsory arbitration, or submission to
compulsoryorvoluntaryarbitrationnora
subject of a pending case involving the
samegroundsforthestrikeorlockout.
Q:Whatarethevalidgroundsfordeclaringa
strikeorlockout?
Note:Itispossibletochangeaneconomicstrikeintoa
ULP strike. (Consolidated Labor Assn of the Phils. v.
MarsmanandCo.,G.R.No.L17038,July31,1964)
Q:Whatisconversiondoctrine?
Q:Canastrikebeconvertedintoalockout?
A:No,astrikecannotbeconvertedintoapureand
simple lockout by the mere expedient of filing
before the trial court a notice of offer to return to
work during the pendency of the labor dispute
between the union and the employer. (Rizal
Cement Workers Union v. CIR, G.R. No. L18442,
Nov.30,1962).
A:
1. Sitdown strike Characterized by a
temporaryworkstoppageofworkerswho
seize or occupy property of the Er or
refusetovacatethepremisesoftheEr.
LABOR RELATIONS LAW
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Illegal Amounts to a criminal
act because of the Ees trespass
onthepremisesoftheEr
2. Wildcat strike A work stoppage that
violates the labor contract and is not
authorizedbytheunion.
Illegal Because it fails to
comply with certain reqts of
the law, to wit: notice of strike,
voteandreportonstrikevote
3. SlowdownStrikeonaninstallmentplan;
an activity by which workers, without
complete stoppage of work, retard
productionortheirperformanceofduties
and functions to compel management to
granttheirdemands
IllegalItisapoliticalrally
A:Yes.Ees,whohavenolabordisputewiththeirEr
but who, on a day they are scheduled to work,
refuse to work and instead join a welga ng bayan
commit an illegal work stoppage. There being no
showing that the two unions notified the
corporations of their intention, or that they were
allowed by the corporations, to join the welga ng
bayan, their work stoppage is beyond legal
protection.(BIFLEX Phils. Inc. Labor Union (NAFLU)
vs.FILFLEXIndustrialandManufacturingCorp.,G.R.
No.155679,Dec.19,2006)
Q:Whatarethetestsindeterminingthelegalityof
strike?
A:Thefollowingmustconcur:
1. Purpose test the strike must be due to
either bargaining deadlock and/or the
ULP
2. Compliance with the procedural and
substantive reqts of the law. (See
requisitesofavalidstrike)
3. Means employed test It states that a
strike may be legal at its inception but
eventually be declared illegal if the strike
is accompanied by violence which is
widespread, pervasive and adopted as a
matter of policy and not mere violence
whichissporadicwhichnormallyoccurin
astrikearea.
Q:Whataretheinstanceswhenastrikeorlockout
cannotbedeclared?
A:Nonstrikableissues:
1. CBAviolationsnotgrossincharacter
2. Grounds involving inter/intraunion
disputes
3. When there is no notice of strike or
lockout or without the strike or lockout
vote
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164
4. After assumption of jurisdiction by the
SLE
5. After certification or submission of
dispute to compulsory or voluntary
arbitration or during the pendency of
cases involving the same grounds for
strikeorlockout
6. Labor standards cases such as wage
orders. (Guidelines governing Labor
Relations [Oct. 19, 1987] issued by Sec.
Drilon.SeealsoArt.261,LC)
A:
1. Notice of strike filed with the NCMB
taking into consideration the coolingoff
period
3. Strikevote
a. Thedecisiontodeclareastrikemust
be approved by a majority of the
total union membership in the
bargainingunitconcerned.
b. It must be obtained by secret ballot
throughmeetingsorreferendacalled
forthepurpose.
c. Its purpose is to ensure that the
intendedstrikeisamajoritydecision.
The report on the strike vote must
besubmittedtoDOLEatleast7days
beforetheintendedstrikesubjectto
thecoolingoffperiod.
d. The regional branch may supervise
theconductofthesecretballotingat
its own initiative or upon request of
anyparty.
Note: TogiveDOLEanopportunitytoverify
whether the projected strike really carries
the imprimatur of the majority of the union
members in addition to the coolingoff
period before the actual strike. (Lapanday
Workers Union, et.al. v. NLRC, G.R. Nos.
9549497,Sep.7,1995)
Q:Whatisacoolingoffperiod?
A:Thestrikemaybedeclaredillegal.
A:
1. Inform the NCMB of the intent of the
uniontoconductastrikevote;
2. Give the NCMB ample time to decide on
whether or not there is a need to
supervise the conduct of the strike vote
to prevent any acts of violence and or
irregularities;
3. Ample time to prepare for the
deployment of the requisite personnel.
(Capitol Medical Center v. NLRC, G.R. No.
147080,April26,2005)
Q:Isanostrike/lockoutclauselegal?
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A: Yes,butitisapplicableonlytoeconomicstrikes,
not ULP strikes. As a provision in the CBA, it is a
valid stipulation although the clause may be
invokedbyanemployer(Er)onlywhenthestrikeis
economic in nature or one which is conducted to
force wage or other concessions from the Er that
arenotmandatedtobegrantedbythelawitself.It
would be inapplicable to prevent a strike which is
grounded on ULP. (Panay Electric Co. v. NLRC, G.R.
No. 102672, Oct. 4, 1995; Malayang Samahan ng
mgaManggagawasaGreenfieldv.Ramos,G.R.No.
113907,Feb.28,2000)
Q:Whatisapreventivemediationcase?
Q:Whatarethecontentsofthenoticeofstrikeor
lockout?
A:
1. NameandaddressesofEr
2. Unioninvolved
3. Nature of the industry to which the Er
belongs
4. Numberofunionmembers
5. Workersinthebargainingunit
6. Otherrelevantdate
7. In case of bargaining deadlocks:
unresolved issues, written proposals of
the union, counterproposals of the Er
and proof of request for conference to
settledifferences
8. In case of ULP: The acts complained of,
and the efforts taken to resolve the
dispute
Q:Whatactionwilltheboardtakeonthenoticeof
strikeofstrikeorlockout?
A:
1. Upon receipt of notice, the regional
branch of the Board shall exert all efforts
at mediation and conciliation to enable
thepartiestosettlethedisputeamicably.
It shall also encourage the parties to
submit the dispute to voluntary
arbitration.
2. The regional branch of the NCMB may,
upon agreement of the parties, treat a
noticeasapreventivemediationcase.
3. During the proceedings, the parties shall
not do any act which may disrupt or
impede the early settlement of the
dispute. They are obliged, as part of their
duty to bargain collectively in good faith
and to participate fully and promptly in
conciliation meetings called by the
regionalbranchoftheNCMB.
4. A notice, upon agreement of the parties,
may be referred to alternative modes of
dispute resolution, including voluntary
arbitration.
Q:Wasthestrikeheldbytheunionlegalbasedon
the fact that the notice of strike only contained
generalallegationsofULP?
166
was actually held. (NFSW v. Ovejera, G.R. No. L
59743,May31,1982)
Q:FilTransitEesUnionfiledanoticeofstrikewith
the BLR because of alleged ULP of the company.
Because of failure to reach an agreement the
union went on strike. Several employees (Ees)
were dismissed because of the strike. The union
filedanothernoticeofstrikeallegingULP,massive
dismissalofofficersandmembers,coercionofEes
and violation of workers rights to self
organization. The Ministry of Labor and
Employment, after assuming jurisdiction over the
dispute, ordered all striking Ees including those
who were dismissed to return to work. The
company however countered that no strike vote
had been obtained before the strike was called
and the resultof the strike vote was not reported
to Ministry of Labor and Employment. Was the
strikeheldbytheunionillegalforfailuretoholda
strikevote?
A: Yes, there is no evidence to show that a strike
vote had in fact been taken before a strike was
called. Even if there was a strike vote held, the
strike called by the union was illegal because of
nonobservance by the union of the mandatory 7
day strike ban counted from the date the strike
voteshouldhavebeenreportedtotheDOLE.(First
City Interlink Transportation Co., Inc. v. Confessor,
G.R.No.106316,May5,1997)
Q: The company conceived and decided to
retrench its Ees and selected about 40 Ees to be
dismissedbecauseofthelackofwork.Becauseof
this about 200 Ees during breaktime boarded
buses and went to the Ministry of Labor but they
wereadvisedtoreturntowork.
Upon returning to the companys premises, the
Ees were only allowed to stay in the canteen and
were not given work because according to the
company the machines were undergoing repairs.
Are the Ees entitled to reinstatement and
backwages?
A:TheEesareentitledtoreinstatementbutnotto
backwages. Both parties being in pari delicto,
having conducted an illegal strike and lockout
respectively, there must be a restoration of the
status quo ante and must bring the parties back to
their respective positions prior to the illegal strike
and lockout which shall be done by reinstating the
remaining Ees. However, it is the general rule that
strikersarenotentitledtobackwages.Theprinciple
of no work, no pay is applicable in view of the
finding of the illegality of the strike. (Philippine
InterFashion,Incv.NLRC,G.R.No.L59847,Oct.18,
1982)
Q: What are the exceptions tothe no backwages
ruleofstrikers?
A:
1. When the Ees were illegally locked thus
compellingthemtostageastrike
2. WhentheErisguiltyofthegrossestform
ofULP
3. When the Er committed discrimination in
therehiringofstrikersrefusingtoreadmit
those against whom there were pending
criminalcaseswhileadmittingnonstrikers
who were also criminally charged in
court;
4. When the workers who staged a
voluntary ULP strike offered to return to
work unconditionally but the Er refused
toreinstatethem.(ManilaDiamondHotel
vs.ManilaDiamondHotelEesUnion,G.R.
No.158075,June30,2006)
d.AssumptionofJurisdictionbytheSecretaryof
LabororCertificationoftheLabordisputetothe
NLRCforcompulsoryarbitration
Q: Discuss the assumption of jurisdiction by the
Secretary of Labor and Employment (SLE) on
strikes/lockouts.
A:
1. Discretionary
a. If in his opinion there exists a labor
dispute causing or likely to cause a
strike or lockout in an industry
indispensabletothenationalinterest.
b. He may certify the same to the NLRC
forcompulsoryarbitration
c. Effect Automatically enjoins the
intended or impending strike/lockout
but if one has already taken place, all
striking or locked out Ees shall
immediatelyreturntoworkandtheEr
shall immediately resume operations
and readmit all workers under the
same terms and conditions prevailing
before the strike or lockout (Trans
Asia Shipping Lines, Inc.Unlicensed
Crews Ees Union v. CA, G.R. No.
145428,July7,2004)
2. Mandatory(within24hours)
a. In labor disputes adversely affecting
the continued operation of hospitals,
clinicsormedicalinstitutions.
LABOR RELATIONS LAW
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b. Mayassumejurisdictionorcertifyitto
theNLRCforcompulsoryarbitration
c. DutyofstrikingunionorlockingoutEr
to provide and maintain an effective
skeletal workforce of medical and
other health personnel, where
movement and service shall be
unhampered and unrestricted as are
necessary to insure the proper and
adequate protection of the life and
health of its patients most especially
emergency cases for the duration of
thestrikeorlockout(Art.263[g])
A:
GR: It contemplates only actual reinstatement.
This is in keeping with the rationale that any
work stoppage or slowdown in that particular
industry can be inimical to the national
economy.
Q:WhatareissuesthattheSLEmayresolvewhen
heassumesjurisdictionoveralabordispute?
A:
1. IssuessubmittedtotheSLEforresolution
and such issues involved in the labor
dispute itself. (St. Scholasticas College v.
Torres,G.R.No.100158,June2,1992)
2. SLE may subsume pending labor cases
before LAs which are involved in the
dispute and decide even issues falling
under the exclusive and original
jurisdiction of LAs such as the declaration
of legality or illegality of strike (Intl.
Pharmaceuticals v. SLE, G.R. Nos. 92981
83,Jan.9,1992)
A:
1. May determine the industries, which are
in his opinion indispensable to national
interest
2. May intervene at any time and assume
jurisdictionoveranysuchlabordisputein
order to settle or terminate the same.
(Art.263[g])
e.NatureofAssumptionOrderorCertification
Order
A:Theassumptionofjurisdictionisinthenatureof
a police power measure. This is done for the
promotion of the common good considering that a
prolonged strike or lockout can be inimical to the
national economy. The SLE acts to maintain
industrial peace. Thus, his certification for
compulsory arbitration is not intended to impede
the workers right to strike but to obtain a speedy
settlementofthedispute.(PhiltreadWorkersUnion
v.Confesor,G.R.No.117169,Mar.12,1997)
Art.263(g)doesnotinterferewiththeworkersright
to strike but merely regulates it, when in the
exercise of such right national interest will be
affected. The LC vests upon the SLE the discretion
to determine what industries are indispensable to
nationalinterest.
168
Q:DoestheRTChavejurisdictiontodecideonthe
casefiledbythePSBAstudents?
f.EffectofdefianceofAssumptionorCertification
Order
A:Itshallbeconsideredanillegalactcommittedin
the course of the strike or lockout and shall
authorize the SLE or the NLRC, as the case maybe,
to enforce the same under pain or loss of
employment status or entitlement to full
employment benefits from the lockingout Er or
backwages, damages and/or other positive and/or
affirmative reliefs, even to criminal prosecution
against the liable parties. (Sec. 6, Rule IX, of the
New Rules of Procedure of the NLRC; St.
Scholasticas College v. Torres, G.R. No. 100158,
June2,1992)
g.IllegalStrike
Q:Whenisastrikeillegal?
A:
1. Contrary to specific prohibition of law,
such as strike by employees (Ees)
performinggovernmentalfunctions;
2. Violatesaspecificreqtoflaw;
LABOR RELATIONS LAW
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3. Declaredforanunlawfulpurpose,suchas
inducingtheemployer(Er)tocommitULP
againstnonunionEes;
4. Employsunlawfulmeansinthepursuitof
its objective, such as widespread
terrorismofnonstrikers;
5. Declared in violation of an existing
injunction;
6. Contrary to an existing agreement, such
as a no strike clause or conclusive
arbitrationclause
Q:Whatisgoodfaith(GF)strikedoctrine?
A:Astrikemaybeconsideredlegalwheretheunion
believed that the company committed ULP and the
circumstances warranted such belief in GF,
although subsequently such allegations of ULP are
found out as not true. (Bacus v. Ople, GR No. L
56856, Oct. 23, 1984, Peoples Industrial and
CommercialEes andOrganization(FFW)v.Peoples
Industrial and Commercial Corp., G.R. No.37687,
Mar.15,1982)
A:
GR:AstrikegroundedonULPisillegalifnosuch
actsactuallyexist.
A:Strikingemployeesareentitledtoreinstatement,
regardless of whether or not the strike was the
consequence of the employers ULP because while
out on strike, the strikers are not considered to
haveabandonedtheiremployment,butratherhave
only ceased from their labor; the declaration of a
strikeisnotarenunciationofemploymentrelation.
Q:Whoarenotentitledtoreinstatement?
A:
1. Union officers who knowingly participate
intheillegalstrike
2. Any striker or union who knowingly
participates in the commission of illegal
actsduringthestrike
Note:Thoseunionmemberswhohavejoinedanillegal
strike but have not committed any illegal act shall be
reinstatedbutwithoutbackwages.
Theresponsibilityfortheillegalactscommittedduring
the strike must be on an individual and not on a
collective basis. (First City Interlink TransportationCo.,
Inc.v.Confesor,G.R.No.106316,May5,1997)
A:
GR:No,evenifsuchstrikewaslegal.
XPN:
1. Where the strikers voluntarily and
unconditionallyofferedtoreturntowork,
but the employer refused to accept the
offerworkersareentitledtobackwages
fromthedatetheirofferwasmade
2. Whenthereisareturntoworkorderand
the Ees are discriminated against other
Ees, workers are entitled to back wages
fromthedateofdiscrimination
3. IncaseofaULPstrike,inthediscretionof
theauthoritydecidingthecase
Q:Whatistheruleinstrikesinhospitals?
A:
1. It shall be the duty of the striking
employees or lockingout employer to
provideandmaintainaneffectiveskeletal
workforce of medical and health
personnelforthedurationofthestrikeor
lockout.
2. SLE may immediately assume jurisdiction
within 24 hours from knowledge of the
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170
occurrence of such strike or lockout
certify it to the NLRC for compulsory
arbitration.
Q:Moreorless1400Eesofthecompanystageda
mass walkout,allegedly without anybody leading
them as it was a simultaneous, immediate and
unanimous group action and decision, to protest
thenonpaymentoftheirsalariesandwages.The
MinisterofLaborandEmploymentwhofoundthe
strike to be illegal granted the clearance to
terminate the employment of those who were
instigatorsintheillegalstrike.Wasthedecisionof
the Minister of Employment in granting the
clearancecorrect?
A:No,toexcludeunionofficers,shopstewardsand
thosewithpendingcriminalchargesinthedirective
tothecompanytoacceptbackthestrikingworkers
without first determining whether they knowingly
committed illegal acts would be tantamount to
dismissal without due process of law. (Telefunken
Semiconductors Ees UnionFFW v. SLE, G.R. No.
122743&127215,Dec.12,1997)
(2)WaiverofIllegalityofStrike
j.Injunctions
Q:Whatisaninjunction?
A: It is an order or a writ that commands a person
to do or not to do a particular act. It may be a
positive (mandatory) or a negative (prohibitory)
command.
(1)RequisitesforLaborInjunctions
Q: May thecourt or quasijudicial entity issueany
injunctionduringstrikes/lockouts?
A:GR:Nocourtorentityshallenjoinanypicketing,
strikeorlockout,oranylabordispute.
XPN:
1. When prohibited or unlawful acts are
being or about to be committed that will
causegrave or irreparable damage to the
complainingparty.(Art.218[e])
2. Onthegroundofnationalinterest
3. The SLE or the NLRC may seek the
assistanceoflawenforcementagenciesto
ensure compliance with this provision as
well as with such orders as he may issue
toenforcethesame(Art.263[g])
(2)InnocentBystanderRule
A:Theinnocentbystandermustshow:
Q:MaytheRTCtakecognizanceofthecomplaint
where the same is but an incident of a labor
dispute?
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VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
courts have no jurisdiction to act on labor cases or
various incidents arising therefrom, including the
executionofdecisions,awardsororders.
Q:TheemployerfiledwiththeRTCacomplaintfor
damages with preliminary mandatory injunction
againsttheunion,themainpurposeofwhichisto
dispense the picketing of the members of the
union. The union filed a motion to dismiss on the
ground of lack of jurisdiction. The RTC denied the
motion to dismiss and enjoined the picketing, it
said that mere allegations of ErEe relationship
does not automatically deprive the court of its
jurisdiction and even the subsequent filing of
charges of ULP, as an afterthought, does not
deprive it of its jurisdiction. Was the issuance by
theRTCoftheinjunctionproper?
A:No,theconcertedactiontakenbythemembers
of the union in picketing the premises of the
departmentstore,nomatterhowillegal,cannotbe
regarded as acts not arising from a labor dispute
over which the RTCs may exercise jurisdiction.
(Samahang Manggagawa ng Liberty Commercial v.
Pimentel,G.R.No.L78621,Dec.2,1987)
172
H.PROCEDUREANDJURISDICTION
1.LABORARBITER
a.Jurisdiction
Q:Whatisthedistinctionbetweenthejurisdiction
of the labor arbiter (LA) and the National Labor
RelationsCommission(NLRC)?
A:
1. The NLRC has exclusive appellate
jurisdictiononallcasesdecidedbytheLA.
2. The NLRC does not have original
jurisdiction on the cases over which the
LAhaveoriginalandexclusivejurisdiction.
3. The NLRC cannot have appellate
jurisdiction if a claim does not fall within
the exclusive original jurisdiction of the
LA.
A:Itisoriginalandexclusive.LAshavenoappellate
jurisdiction.
Q:Whatarethecasesfallingunderthejurisdiction
oflaborarbiters(LAs)?
A: Exclusive and original jurisdiction to hear and
decidethefollowingcasesinvolvingallworkers:
1. ULPcases
2. Terminationdisputes
3. If accompanied with a claim for
reinstatement, those that workers file
involving wages, rates of pay, hours of
work and other terms and conditions of
employment
4. Claims for actual, moral, exemplary and
other forms of damages arising from Er
Eerelations
5. Cases arising from any violation of Art.
264, including questions involving the
legalityofstrikesandlockouts;
6. Except claims for Employment
Compensation, Social Security, Philhealth
and maternity benefits, all other claims
arising from ErEe relations, including
those of persons in domestic or
household service, involving an amount
exceeding P5000 regardless of whether
accompanied with a claim for
reinstatement
7. Monetary claims of overseas contract
workersarisingfromErEerelationsunder
the Migrant Workers Act of 1995 as
amendedbyRA10022
8. Wage distortion disputes in unorganized
establishments not voluntarily settled by
thepartiespursuanttoRA6727
9. Enforcement of compromise agreements
when there is noncompliance by any of
the parties pursuant to Art. 227 of the
LaborCode(LC),asamended;and
10. Othercasesasmaybeprovidedbylaw
Q:Whatisthenatureofthecaseswhichthelabor
arbiter(LA)mayresolve?
A:
GR: LAs have no jurisdiction over unresolved or
unsettled grievances arising from the
interpretation or implementation of the CBA
and those arising from the interpretation or
enforcementofcompanypersonnelpolicies.
PROCEDURE AND JURISDICTION
173
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
XPN:Actualterminationdisputes
Q:Whatarethecaseswhichdonotfallunderthe
jurisdictionofthelaborarbiters(LA)?
A:LAshavenojurisdictionovertheff:
1. Foreign governments (JUSMAGPhils. v.
NLRC,G.R.No.108813,Dec.15,1994)
2. Intl agencies (Lasco v. NLRC, G.R. Nos.
109095109107,Feb.23,1995)
3. Intracorporate disputes which fall under
P.D. 902A and now falls under the
jurisdictionoftheregularcourtspursuant
to the new Securities Regulation Code
(Nacpil v. IBC, G.R. No. 144767, Mar. 21,
2002)
4. Executing money claims against
government (Dept of Agriculture v. NLRC,
G.R.No.104269,Nov.11,1993)
5. Cases involving GOCCs with original
charters which are governed by civil
servicelaw,rulesorregulations(Art.IXB,
Sec.2,No.1,1987Constitution)
6. Local water district (Tanjay Water District
v. Gabaton, April 17, 1989) except where
NLRC jurisdiction is invoked (Zamboanga
City Water District v. Buat, G.R. No.
104389,May27,1994)
7. The aggregate money claim does not
exceed P5000 and without claim for
reinstatement(RajahHumabonHotel,Inc.
v. Trajano, G.R. Nos. 10022223, Sep.14,
1993)
8. Claim of employee (Ee) for cash prize
under the Innovation Program of the
company, although arising from ErEe
relationship, is one requiring application
of general civil law on contracts which is
within the jurisdiction of the regular
courts(SMCv.NLRC,G.R.No.80774,May
31,1988)
9. Cause of action based on quasidelict or
tort which has no reasonable connection
with any of the claims enumerated in
Art.217 of the LC (Ocheda v. CA, G.R. No.
85517,Oct.16,1992)
10. Complaint arising from violation of
training agreement (Singapore Airlines v.
Pano,G.R.No.L47739,June22,1983)
Q: FASAP, the sole and exclusive bargaining
representative of the flight attendants, flight
stewards and pursers of PAL, and respondent PAL
entered into a CBA incorporating the terms and
conditions of their agreement for the years 01
05. Sec. 144, Part A of the CBA provides that
compulsoryretirementshallbe55forfemalesand
60 for males. They filed an action with the RTC
claiming that the CBA provision is discriminatory
andhenceunconstitutional.TheRTCissuedaTRO.
The appellate court ruled that the RTC has no
jurisdictionoverthecaseatbar.WhetherRTChas
jurisdictionoverthepetitioners'actionchallenging
the legality of the provisions on the compulsory
retirementagecontainedintheCBA?
174
A:TheNLRC.
Q:Whatistheeffectofperfectionofanappealon
execution?
Note:TheprovisionofArt.223isclearthatanaward
by the LA for reinstatement shall be immediately
executor even pending appeal and the posting of a
bond by the employer shall not stay the executionfor
reinstatement.(PioneerTexturizingCorp.v.NLRC,G.R.
No.118651,Oct.16,1997)
b.Effectofselfexecutingorderofreinstatementon
backwages
A:
1. Theappealisperfected:
a. Filed within the reglementary period
providedinSec.1ofthisRules
b. Verified by the appellant himself in
accordancewithSec.4,Rule7ofthe
RulesofCourt,asamended
c. In the form of a memorandum of
appealwhichshallstatethegrounds
relied upon and the arguments in
support thereof, the relief prayed
for,andwithastatementofthedate
the appellant received the appealed
decision,resolutionororder
d. In 3 legibly typewritten or printed
copies
e. Accompaniedby(i)proofofpayment
of the required appeal fee; (ii)
posting of a cash or surety bond as
provided in Sec. 6 of this Rule; (iii) a
certificate of nonforum shopping;
and (iv) proof of service upon the
otherparties.
A:Yes.IncasethedecisionoftheLAortheRegional
Director involves a monetary award, an appeal by
the employer may be perfected only upon the
posting of a bond. (Sec.6, Rule VI, NLRC 2005 Rules
ofProcedure)
Q:Whataretheformsoftheappealbond?
Q:Whomayissueasuretybond?
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
2. AnindemnityagreementbetweentheEr
appellantandbondingcompany;
3. Proof of security deposit or collateral
securingthebond:provided,thatacheck
shall not be considered as an acceptable
security;
4. A certificate of authority from the
InsuranceCommission;
5. CertificateofregistrationfromtheSEC;
6. Certificate of authority to transact surety
businessfromtheOfficeofthePresident;
7. Certificate of accreditation and authority
fromtheSC;and
8. A notarized board resolution or
secretary's certificate from the bonding
company showing its authorized
signatoriesandtheirspecimensignatures.
(Sec. 6, Rule VI, NLRC 2005 Rules of
Procedure)
Q:Maythebondbereduced?
A:
GR:No.
Q:Whatistheeffectifnoserviceofsummonswas
made?
A: In the absence of service of summons or a valid
waiver thereof, the hearings and judgment
renderedbythelaborarbiterisnullandvoid.
Q:Whatiscompulsoryarbitration?
A: Theprocessofsettlementoflabordisputesbya
government agency which has the authority to
investigate and make an award binding on all the
parties.
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
176
Q: Can the Labor Arbiter (LA) conduct compulsory
arbitration?
A: Yes. Under the Labor Code, it is the LA who is
clothed with the authority to conduct compulsory
arbitration on cases involving termination disputes
[Art.217,P.D.442,asamended].(PALv.NLRC, G.R.
No.55159,Dec.22,1989)
Q:Whataretherulesonvenueoffilingcases?
A:
1. All cases which the Labor Arbiters (LAs)
have authority to decide may be filed in
the Regional Arbitration Branch (RAB)
having jurisdiction over the workplace of
thecomplainant/petitioner.
5. ForOverseasContractWorkerswherethe
complainant resides or where the
principal office of the respondent Er is
located,attheoptionofthecomplainant.
2.NATIONALLABORRELATIONSCOMMISSION
(NLRC)
Q:WhatistheNLRC?
A: It is an administrative body with quasijudicial
functionsandtheprincipalgovernmentagencythat
hearsanddecideslabormanagementdisputes;itis
attachedtotheDOLEsolelyforprogramandpolicy
coordinationonly.
Q: How are the powers and functions of the NLRC
allocated?
A:
1. EnBanc
a. Promulgating rules and regulations
and governing the hearings and
disposition of cases before any of its
divisionsandregionalbranches.
b. Formulating policies affecting its
administrationandoperations.
c. On temporary or emergency basis, to
allow cases within the jurisdiction of
anydivisiontobeheardanddecided
by any other division whose docket
allows the additional workload and
such transfer will not expose litigants
tounnecessaryadditionalexpense.
2. Division(8Divisionswith3members)
a. Adjudicatory;
b. All other powers, functions and
duties;
c. Exclusive appellate jurisdiction over
cases within their respective
territorialjurisdiction.
a.Jurisdictions
A:
1. ExclusiveOriginalJurisdiction
a. Certified labor disputes causing or
likely to cause a strike or lockout in
anindustryindispensabletonational
PROCEDURE AND JURISDICTION
177
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
interest, certified to it by the
Secretary of Labor or the President
forcompulsoryarbitration
b. Injunction in ordinary labor disputes
to enjoin or restrain any actual or
threatened commission of any or all
prohibited or unlawful acts or to
require the performance of a
particular act in any labor dispute
which,ifnotrestrainedorperformed
forthwith, may cause grave or
irreparabledamagetoanyparty
c. Injunction in strikes or lockouts
underArt.264oftheLaborCode(LC)
d. Contemptcases
2. ExclusiveAppellateJurisdiction
a. All cases decided by the Labor
Arbiters under Art. 217(b) of the LC
and Sec. 10 of R.A.8042 (Migrant
WorkersAct);and
b. Cases decided by the Regional
Offices of DOLE in the exercise of its
adjudicatory function under Art.129
of the LC over monetary claims of
workersamountingtonotmorethan
P5000andnotaccompaniedbyclaim
forreinstatement.
Q:WhatisthecompositionoftheNLRC?
A:
1. Chairman
2. 23Members
a. 8memberseach,shallbechosenonly
from among the nominees of the
workers and employers (Er)
organizationrespectively.
b. The Chairman and the 7 remaining
members shall come from the public
sector, with the latter to be chosen
preferably from among the
incumbentLaborArbiters.
c. Upon assumption into office, the
members nominated by the workers
and Ers organization shall divest
themselves of any affiliation with or
interest in the federation or
associationtowhichtheybelong.
Q:HowdoestheNLRCadjudicatecases?
A:
1. The NLRC adjudicates cases by division. A
concurrence of 2 votes is needed for a
validjudgment.
Note:Whenevertherequiredmembershipin
a division is not complete and the
concurrence of the Commissioners to arrive
at judgment or resolution cannot be
obtained, the Chairman shall designate such
number of additional Commissioners from
theotherdivisionsasmaybenecessary.
3. Acertificationthataconsultationhasbeen
conducted, signed by the presiding
commissioner of the division, shall be
issued(copyattachedtotherecordofcase
andservedupontheparties).
Q:WhatarethequalificationsoftheChairmanand
theCommissioners?
A:
1. MemberofthePhilippineBar
2. Engaged in the practice of law in the
Philippinesforatleast15years
3. At least 5 years experience or exposure in
handlinglabormanagementrelations
4. Preferably a resident of the region where
heistoholdoffice
A:
1. MemberofthePhilippineBar
2. Engaged in the practice of law in the
Philippinesforatleast10years
3. At least 5 years experience or exposure in
handlinglabormanagementrelations
178
Commissionenbanc.
A:Yes,theunionofficersarecorrectinclaimingthat
the NLRC has no jurisdiction over the appealed
ruling of the RD. in Barles v. Bitonio, G.R. No.
120220,June16,1999,theSCruled:
Appellate authority over decisions of the RD
involvingexaminationofunionaccountsisexpressly
conferred on the Bureau of Labor Relations (BLR)
under the Rule of Procedure on Mediation
Arbitration.
Sec. 4. Jurisdiction of the BLR (b) The BLR shall
exercise appellate jurisdiction over all cases
originating from the RD involving complaints for
examinationofunionbooksofaccounts.
The language of the law is categorical. Any
additional explanation on the matter is
superfluous."(2001BarQuestion)
Q:Company"A"andUnion"B"couldnotresolve
their negotiations for a new CBA. After
conciliation proceedings bef ore t he NCMB
proved futile, B went on strike. Violence during
the strike prompted A to file charges against
strikermembers of B for their illegal acts. The
SLE assumed jurisdiction, referred the strike to
the NLRC and issued a returntowork order.
The NLRC directedthe parties to submit their
respective position papers and documentary
evidence. At the initial hearing before the NLRC,
the parties agreed to submit the case for
resolution after the submission of the position
papersandevidence.
A:Theappealshouldnotprosper.TheSC,inmany
cases, has ruled that decisions made by the NLRC
maybebasedonpositionpapers.Inthequestion,it
isstatedthatthepartiesagreedtosubmitthecase
for resolution after the submission of position
papers and evidence. Given this fact, the striker
membersofBcannotnowcomplainthattheywere
denied due process. They are in estoppel. After
voluntarily submitting a case and encountering an
adversedecisiononthemerits,itistoolateforthe
loser to question the jurisdiction or power of the
court. A party cannot adopt a posture of double
dealing. (Marquez vs. Secretary of Labor, G.R. No.
80685,March16,1989).(2001BarQuestion)
Q:WhatarethepowersoftheNLRC?
A:
1. Rule making power promulgation of
rulesandregulations:
a. Governing disposition of cases
before any of its division/regional
offices.
b. Pertainingtoitsinternalfunctions
c. Asmaybenecessarytocarryoutthe
purposesoftheLaborCode.
2. Power to issue compulsory processes
(administer oaths, summon parties, issue
subpoenas)
3. Power to investigate matters and hear
disputes within its jurisdiction
(adjudicatory power original and
appellatejurisdictionovercases)
4. Contemptpower
5. OcularInspection
6. Powertoissueinjunctionsandrestraining
orders
b.EffectofNLRCreversalofLaborArbitersorderof
reinstatement
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
A: Yes. Par. 3 of Art. 223 of the Labor Code
provides that the decision of the LA reinstating a
dismissed or separated Ee, insofar as the
reinstatement aspect is concerned, shall
immediatelybeexcutory,pendingappeal.
Even if the order of reinstatement of the LA is
reversed on appeal, it is obligatory on the part of
theemployer(Er)toreinstateandpaythewagesof
the dismissed Ee during the period of appeal until
reversal by the higher court. On the other hand, if
theEehasbeenreinstatedduringtheappealperiod
and such reinstatement order is reversed with
finality, the Ee is not required to reimburse
whatever salary he received for he is entitled to
such, more so if he actually rendered services
during the period. (Pfizer v. Velasco, G.R. No.
177467,March9,2011)
c.RequirementstoperfectappealtoCourtof
Appeals
Q: Is judicial review of the NLRCs decision
available?
A: Yes, through petitions for certiorari (Rule 65)
which should be initially filed with the CA in strict
observance of the doctrine on the hierarchy of
courts as the appropriate forum for the relief
desired.TheCAisprocedurallyequippedtoresolve
unclear or ambiguous factual finding, aside from
the increased number of its component divisions.
(St.MartinFuneralHomev.NLRC,G.R.No.130866,
Sep.16,1998)
Q:WhomayissueaTRO?
A:
1. President(Art.263[g])
2. SecretaryofLabor(Art.263[g])
3. NLRC(Art.218)
A:
1. Filingofaverifiedpetition
2. Hearingafterdueandpersonalnoticehas
been served in such manner as the
Commissionshalldirectto:
a. All known persons against whom
reliefissought
b. Also the Chief Executive or other
public officials of the province or
city within which the unlawful acts
have been threatened or
commercial charged with the duty
to protect the complainants
property.
3. Reception at the hearing of the
testimonies of the witnesses with
opportunity for crossexamination, in
support of the allegations of the
complaint made under oath as well as
testimonyinoppositionthereto.
4. Finding of fact of the Commission to the
effectthat:
a. Prohibited or unlawful acts have
been threatened and will be
committed,orhavebeenandwillbe
continued unless restrained, but no
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
180
injunction or TRO shall be issued on
account of any threat, prohibited or
unlawful act, except against the
persons, association or organization
makingthethreatorcommittingthe
prohibitedorunlawfulactoractually
authorizing or ratifying the same
afteractualknowledgethereof.
b. The substantial and irreparable
injurytothecomplainantsproperty.
Note: Irreparable Injury an injury
which cannot be adequately
compensated in damages due to the
natureoftheinjuryitselforthenature
of the right or property injured or
when there exist no pecuniary
standard for the measurement of
damages.
c. That as to each item of relief to be
granted, greater injury will be
inflicted upon the complainant by
the denial of the relief than will be
inflicted upon the defendants by the
grantingoftherelief.
d. That complainant has no adequate
remedyatlaw
Note: Adequate remedy one that
affords relief with reference to the
matter in controversy and which is
appropriate to the particular
circumstances of the case if the
remedy is specifically provided by law.
(PALv.NLRC,GR.No.120567,Mar.20,
1998)
e. Thatpublicofficerschargedwiththe
duty to protect complainants
property are unable or unwilling to
furnishadequateprotection.
5. Postingofabond.
3.BUREAUOFLABORRELATIONS(BLR)MED
ARBITERS
a.Jurisdiction
Note:Jurisdictionoverlabormanagementproblemsor
disputesisalsoexercisedbyotheroffices:
1. DOLERegionalOffices
2. OfficeoftheSecretaryofLabor
3. NLRC
4. POEA
5. OWWA
6. SSSECC
7. RTWPB
8. NWPC
9. Regular courts over intracorporate
disputes.
Q:Whoisamediatorarbiter?
1. Interuniondisputes
2. Intrauniondisputes
3. Otherrelatedlaborrelationsdisputes
A:Theyshallinclude:
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
noncompliance with the reportorial
requirementsunderRuleV;
13. Such other disputes or conflicts involving
the rights to selforganization, union
membershipandCB
a. BetweenandamongLLOand
b. Between and among members of a
unionorworkersassociation.(Sec.1,
Rule XI, Book V, IRR as amended by
D.O.40F03)
A:
1. Anyconflictbetween:
a.Alaborunionandtheemployer(Er);or
b.Alaborunionandagroupthatisnota
labororganization(LO);or
c. Alaborunionandanindividualwhois
notamemberofsuchunion
2. Cancellation of registration of unions and
workers associations filed by individual/s
other than its members, or group that is
notaLO.
3. ApetitionforInterpleaderinvolvinglabor
relations. (Sec. 2, Rule XI, Book V, IRR as
amendedbyD.O.40F03)
A:Thecomplaintmustbesignedbyatleast30%of
theentiremembershipoftheunion.
Q:Whatiftheissueinvolvesamemberonly?
Note:
GR: Redress must first be sought within the union
itself in accordance with its constitution and by
laws
XPNs:
1. Futilityofintraunionremedies;
2. Improperexpulsionprocedure;
3. Undue delay in appeal as to constitute
substantialinjustice;
4. Theactionisfordamages;
5. Lackofjurisdictionoftheinvestigatingbody;
action for the administrative agency is
patentlyillegal,arbitraryandoppressive;
6. Issueispurelyaquestionoflaw;
7. Where the administrative agency had
alreadyprejudgedthecase;and
8. Where the administrative agency was
practically given the opportunity to act on
thecasebutitdidnot.
A:Yes.
Q:Withinwhatperiodmayanappealtoadecision
of the medarbiter or regional director in an
inter/intrauniondisputebefiled?
A:Thedecisionisappealabletothe:
1. Bureau of Labor Relations (BLR): if the
case originated from the MedArbiter or
RegionalDirector;
2. SLE:ifthecaseoriginatedfromtheBLR.
A:
1. Itmayholdareferendumelectionamong
the members of a union for the purpose
ofdeterminingwhetherornottheydesire
tobeaffiliatedwithafederation.
2. ButtheBLRhasnoauthorityto:
182
conciliation and mediation proceedings on labor
controversies before endorsement to the
appropriatelaborarbiterforadjudication.
A:
1. Regulationofthelaborunions
2. Keepingtheregistryoflaborunions
3. MaintenanceofafileoftheCBA
4. Maintenanceofafileofallsettlementsor
final decisions of the SC, CA, NLRC and
otheragenciesonlabordisputes
A:
1. Therightsrelationshipsandobligationsof
the partylitigants against each other and
other partiesininterest prior to the
institution of the petition shall continue
to remain during the pendency of the
petitionanduntilthedateofthedecision
rendered therein. Thereafter, the rights,
relationshipsandobligationsoftheparty
litigants against each other and other
partiesininterest shall be governed by
thedecisionordered.
A:
1. FormalRequirements
a. Underoath
b. Consistofamemorandumofappeal.
c. Based on either of the following
grounds:
i. Graveabuseofdiscretion
ii. Grossviolationoftherules
iii. With supporting arguments and
evidence
2. Period within 10 days from receipt of
decision.
3. Towhomappealable
a. BLRifthecaseoriginatedfromthe
MedArbiter/RegionalDirector.
b. SLE if the case originated from the
BLR.
4. Where Filed Regional Office or to the
BLR, where the complaint originated
(records are transmitted to the BLR or
Sec. within 24 hours from the receipt of
the memorandum of appeal). (Rule XI,
D.O.4003)
4.NATIONALCONCILIATIONANDMEDIAITON
BOARD(NCMB)
Q: What are the alternative modes of settlement
oflabordisputeunderArt.211oftheLaborCode?
A:
1. VoluntaryArbitration
2. Conciliation
3. Mediation
a.Conciliationvs.Mediation
Q:WhatisConciliatonandMediation?
A:
CONCILIATION MEDIATION
Is conceived of as a
mild form of
intervention by a
neutralthirdparty
Is a mild intervention
by a neutral third
party
The conciliator
Mediator, relying on
his persuasive
expertise, who takes
an active role in
assisting parties by
trying to keep
disputants talking,
facilitating other
procedural niceties,
carrying messages
back and forth
between the parties,
andgenerallybeinga
goodfellowwhotries
to keep things calm
and forwardlooking
inatensesituation
The conciliator
mediator, whereby
hestarts advising the
parties or offering
solutions or
alternatives to the
problems with the
end in view of
assisting them
towards voluntarily
reaching their own
mutually acceptable
settlement of the
dispute
It is the process
whereadisinterested
3rd party meets with
management and
labor, at their
requestorotherwise,
during a labor
dispute or in
Itiswhena3rdparty
studies each side of
the dispute then
makes proposals for
the disputants to
consider. The
mediator cannot
make an award nor
PROCEDURE AND JURISDICTION
183
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
collective bargaining
conferences, and by
cooling tempers, aids
in reaching an
agreement
renderadecision
Mediationisamildinterventionbyaneutralthird
party, the ConciliatorMediator, whereby he starts
advising the parties or offering solutions or
alternativestotheproblemswiththeendinviewof
assisting them towards voluntarily reaching their
ownmutuallyacceptablesettlementofthedispute.
It is when a 3
rd
party studies each side of the
dispute then makes proposals for the disputants to
consider. The mediator cannot make an award nor
renderadecision.
Q:WhatistheLegalBasisofConciliationand
Mediation?
A:Article13,Section3,ofourNewConstitution
provides:
The State shall promote xxx the preferential
use of voluntary modes of setting disputes
including conciliation and shall ensure mutual
compliance by the parties thereof in order to
fosterindustrialpeace.
Q:WhocanavailofConciliationandMediation
ServicesoftheNCMB?
A:Anypartytoalabordispute,eithertheunion
or management, may seek the assistance
of NCMB or any of its Regional Branches by
means of formal request for conciliation and
preventive mediation. Depending on the nature
of the problem, a request may be filed in the
form of consultation, notice of preventive
mediationornoticeofstrike/lockout.
A:Aninformalorformalrequestforconciliation
and mediation service can be filed at the NCMB
Central Office or any of its Regional Branches.
There are at present fourteen (14) regional
offices of the NCMB which are strategically
located all over the country for the convenient
useofprospectiveclients.
b.PreventiveMediation
Q:WhatisPreventiveMediationCases?
184
A:Certainly,thepartiesareboundtohonorany
agreement entered into by them. It must be
pointed out that such an agreement came into
existenceasaresultofpainstakingeffortsamong
the union, management, and the Conciliator
Mediator. Therefore, it is only logical to assume
that the Conciliator assigned to the case has to
followupandmonitortheimplementationofthe
agreement.
Q:Whenthedisputehasalreadybeenassumed
or certified to the NLRC, is it also possible to
remand the same to conciliation and mediation
services?
c.Artbitration
Q:Whatisarbitration?
Q:Canthecourtfixresorttovoluntaryarbitration
(VA)?
A:ResorttoVAdispute,shouldnotbefixedbythe
court but by the parties relying on their strengths
andresources.
Q:Whoarethepartiestolaborrelationscases?
A:
1. Employeesorganization
2. Management
3. Thepublic
Q:Whatistheconceptoftripartism?
A:Itistherepresentationof3sectors.Theseare:
1. Thepublicorthegovernment
2. Theemployers
3. Theworkers
inpolicymakingbodiesofthegovt.
5.DOLEREGIONALDIRECTORS
a.SmallMoneyClaims
A:
1. The aggregate money claim of each
employee (Ee) or househelper (HH) does
notexceedP5,000.
2. TheclaimispresentedbyanEeorperson
employed in the domestic or household
serviceorHH.
PROCEDURE AND JURISDICTION
185
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
3. TheclaimarisesfromErEerelationship.
4. The claimant does not seek
reinstatement.
Q:WhatistheadjudicatorypoweroftheRegional
Director(RD)?
Q:Anairlinewhichfliesboththeinternationaland
domestic routes requested the SLE to approve the
policy that all female flight attendants upon
reaching age 40 with at least 15 years of service
shall be compulsorily retired; however, flight
attendants who have reached age 40 but have not
worked for 15 years will be allowed to continue
workinginordertoqualifyforretirementbenefits,
but in no case will the extension exceed 4 years.
Does the SLE have the authority to approve the
policy?
A:
Art.128
VPandEPof
SLE
Art.129
RD
Art.217(a)(6)
LA
Inspectionof
establishments
andissuance
ofordersto
compel
compliance
withlabor
standards,
wageorders
Adjudicationof
Eesclaimsfor
wagesand
benefits
LAexercises
originaland
exclusive
jurisdiction
andother
laborlaws
Enforcement
oflabor
legislationin
general
Limitedto
monetaryclaims
Allotherclaims
arisingfromEr
Eerelations
Proceedingis
anoffshootof
routine
inspections
Initiatedby
sworncomplaints
filedbyany
interestedparty
LAdecidescase
within30
calendardays
after
submissionof
thecasebythe
partiesfor
decision
No
jurisdictional
reqts
Jurisdictional
reqts:
1)Complaint
arisesfromErEe
relationship
2)Claimantisan
Eeorperson
employedin
domesticor
household
serviceoraHH
3)Complaint
doesNOTinclude
aclaimfor
reinstatement
4)Aggregate
moneyclaimof
EACHclaimant
doesnotexceed
P5,000
1)Allother
claimsarising
fromErEe
relations
2)Including
thoseof
personsin
domesticor
household
service
3)Involvingan
amount
exceeding
P5,000
4)Whetheror
not
accompanied
withaclaimfor
reinstatement
Appealableto
SLE(Incase
compliance
orderisissued
byRegional
Office)
Appealableto
NLRC
Appealableto
NLRC
6.DOLESECRETARY
a.VisitorialandEnforcementPowers
Q:Whatarethe3kindsofpowersoftheSecretary
ofLaborandEmployment(SLE)?
A:
1. Visitorialpowers
2. Enforcementpowers
3. Appellateorpowertoreview
Q:Whatconstitutevisitorialpower?
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
186
A:
1. Access to employers records and
premises at any time of the day or night,
wheneverworkisbeingundertaken
2. Tocopyfromsaidrecords
3. Question any employee and investigate
any fact, condition or matter which may
be necessary to determine violations or
which may aid in the enforcement of the
Labor Code and of any labor law, wage
order, or rules and regulation issued
pursuantthereto.
A:Powerto:
Q:Whatisenforcementpower?
A:ItisthepoweroftheSLEto:
1. Issuecomplianceorders
2. Issue writs of execution for the
enforcement of their orders, except in
cases where the employer (Er) contests
the findings of the labor officer and raise
issues supported by documentary proof
which were not considered in the course
ofinspection
3. Order stoppage of work or suspension of
operation when noncompliance with the
laworimplementingrulesandregulations
poses grave and imminent danger to
health and safety of workers in the
workplace
4. Require Ers to keep and maintain such
employmentrecordsasmaybenecessary
in aid to the visitorial and enforcement
powers
5. Conduct hearings within 24 hours to
determinewhether:
a. An order for stoppage of work or
suspension of operations shall be
liftedornot;and
b. Er shall pay employees concerned
their salaries in case the violation is
attributabletohisfault.(Asamended
by RA 7730; Guico v. Secretary, G.R.
No.131750,Nov.16,1998)
Q:WhataretheviolationsunderArt.128?
A:
1. Obstruct, impede, delay or otherwise
renderineffectivetheordersoftheSLEor
hisauthorizedrepresentatives
2. Any government employee found guilty
of, or abuse of authority, shall be subject
to administrative investigation and
summarydismissalfromservice.
Q:Whatarethelimitationstoothercourts?
A:
1. Case does not arise from the exercise of
visitorialpower
2. WhenErEerelationshipceasedtoexistat
thetimeoftheinspection
3. If employer contests the finding of the
Labor Regulation Officer and such
contestable issue is not verifiable in the
normalcourseofinspection
b.PowertoSuspendEffectsofTerminationArt.277
(b),LC
A:Yes,underArticle277(b)oftheLaborCode,the
Secretary of Labor may suspend the effects of the
terminationpendingresolutionofthedisputeinthe
event of a prima facie finding by the appropriate
PROCEDURE AND JURISDICTION
187
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
official of the Department of Labor and
Employment before whom such dispute is pending
that the termination may cause serious labor
disputeorisinimplementationofamasslayoff.
7.VOLUNTARYARBITRATORS
a.SubmissionAgreement
Q:Howisarbitrationinitiated?
A:
1. Submission agreement Where the
partiesdefinethedisputestoberesolved
2. Demand notice Invoking collective
agreementarbitrationclause
Q:Whoisavoluntaryarbitrator(VA)?
A:
1. Any person accredited by the NCMB as
such
2. Any person named or designated in the
CBAbythepartiestoactastheirVA
3. One chosen with or without the
assistance of the NCMB, pursuant to a
selection procedure agreed upon in the
CBA
4. Anyofficialthatmaybeauthorizedbythe
SLEtoactasVAuponthewrittenrequest
and agreement of the parties to a labor
dispute.(Art.212[n])
Q:Whatarethepowersofavoluntaryarbitrator?
A:
1. Holdhearings
2. Receiveevidence
3. Take whatever action necessary to
resolve the dispute including efforts to
effect a voluntary settlement between
parties.(Art.262A)
A:
1. The parties in a CBA shall designate in
advance a VA/panel, preferably from the
listing of qualified VAs duly accredited by
theNCMB,or
2. Include in the agreement a procedure for
the selection of such VA or panel of VAs,
preferably from the listing of qualified
VAs duly accredited by the NCMB.
(Art.260,par.3)
A: ItistheNCMBthatshalldesignatetheVA/panel
based on the selection procedure provided by the
CBA. (Manila Central Line Free Workers Union v.
Manila Central Line Corp., G.R. No. 109383, June
15,1998)
A:Yes.ThereisnothinginthelawthatprohibitsLAs
fromalsoactingasVAsaslongasthepartiesagree
to have him hear and decide their dispute. (Manila
Central Line Free Workers Union v. Manila Central
LineCorp.,G.R.No.109383,June15,1998)
Q:WhatcasesarewithinthejurisdictionofVA?
A:Originalandexclusivejurisdictionover:
4. ViolationsofCBAprovisionswhicharenot
grossincharacterarenolongertreatedas
ULP and shall be resolved as grievances
undertheCBA
Note:GrossviolationofCBAprovisionsshall
mean flagrant and/or malicious refusal to
comply with the economic provisions of
suchagreement.
UST GOLDEN NOTES 2011
LABORLAWTEAM:
ADVISER:ATTY.JOEVEND.DELLOSA;SUBJECTHEAD:ANGELOS.DIOKNO;ASST.SUBJECTHEADS:KARENSABUGO,GENESISR.FULGENCIO
MEMBERS:PALMACLARISSAV.CARILLO,RANDOLPHIANCLET,MICHAELAARONP.GACUTAN,LORRAINETAGUIAM
188
5. Anyotherlabordisputesuponagreement
by the parties including ULP and
bargainingdeadlock.(Art.262)
A:No.Theymustimmediatelydisposeandreferthe
same to the grievance machinery or voluntary
arbitrationprovidedintheCBA
A:ThedecisionorawardoftheVAactingwithinthe
scope of its authority shall determine the rights of
the parties and their decisions shall have the same
legal effects as judgment of the courts. Such
mattersonfactandlawareconclusive.
Q:Whatisthenatureofthepowerofavoluntary
arbitrator?
b.Rule43,RulesofCourt
A:GR:DecisionsofVAarefinalandexecutoryafter
10 calendar days from receipt of the copy of the
awardordecisionbytheparties.(Art.262A)
XPNs:
1. Appeal to the CA via Rule 43 of the Rules
of Court within 15 days from the date of
receipt of VAs decision. (Luzon Devt
Bank v. Assn of Luzon Devt Bank Ees,
G.R.No.120319,Oct.6,1995)
2. If decision of CA is adverse to a party,
appeal to the SC via Rule 45 on pure
questionsoflaw.
Note:AVAbythenatureofherfunctionsactsinquasi
judicial capacity. There is no reason why the VAs
decisions involving interpretation of law should be
beyond the SCs review. Administrative officials are
presumedtoactinaccordancewithlawandyettheSC
will not hesitate to pass upon their work where a
question of law is involved or where a showing of
abuse of authority or discretion in their official acts is
properly raised in petitions for certiorari. (Continental
Marble Corporation v. NLRC, G.R. No. L43825, May 9,
1988)
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
involve the interpretation or implementation of a
CBA. (Sanyo Philippines Workers UnionPSSLU v.
Canizares,G.R.No.101619,July8,1992)
DoestheLAhavejurisdictionoverthecase?
Doesthevoluntaryarbitrator(VA)havethepower
to pass upon not only the question of whether to
grant the performance bonus or not but also to
determinetheamountthereof?
Onappeal,theCAruledinfavorofRPNbecauseit
considered the waiver of petitioner to file her
complaint before the grievance machinery as a
relinquishment of her right to avail herself of the
aidoftheVA.TheCAsaidthatthewaiverhadthe
effect of resolving an otherwise unresolved
grievance, thus the decision of the VA should be
setasideforlackofjurisdiction.Istherulingofthe
CAcorrect?
8.COURTOFAPPEALS
190
(St.MartinFuneralHomev.NLRC,G.R.No.130866,
Sep.16,1998)
Note:Rule65,Section1,RulesofCourt
9.SUPREMECOURT
Note:Rule45,Section1,RulesofCourt:
FilingofpetitionwithSupremeCourt.Apartydesiring
to appeal by certiorari from a judgment, final order or
resolution of the Court of
Appeals,theSandiganbayan,theCourtofTaxAppeals,
the Regional Trial Court or other courts, whenever
authorized by law, may file with the Supreme Court a
verified petition for review on certiorari. The petition
may include an application for a writ of preliminary
injunctionorotherprovisionalremediesandshallraise
only questions of law, which must be distinctly set
forth. The petitioner may seek the same provisional
remediesbyverifiedmotionfiledinthesameactionor
proceedingatanytimeduringitspendency.
Q:GivethepolicyoftheSupremeCourtregarding
appealsinlaborcases.
10.PRESCRIPTIONOFACTIONS
Q:Givetherulesasregardstheprescriptiveperiod
providedforintheLaborCode(LC).
A:
SUBJECT PRESCRIPTIVEPERIOD
Offensespenalized
undertheLC
3years
ULP
One(1)yearfrom
accrualofsuchULP;
otherwiseforever
barred(Art.290)
MoneyClaims
3yearsfromthetime
thecauseofaction
accrued;otherwise
foreverbarred
Allmoneyclaims
accruingpriortothe
effectivityoftheLC
Withinone(1)year
fromthedateof
effectivity,in
accordancewithIRR;
otherwise,theyshall
foreverbebarred
Workmens
Compensationclaims
accruingpriortothe
Dec.31,1974shallbe
filednotlaterthanMar.
31,1975beforethe
PROCEDURE AND JURISDICTION
191
UNIVERSITYOFSANTOTOMAS
Fac ul t a d de De r e c h o Ci v i l
ACADEMICSCHAIR:LESTERJAYALANE.FLORESII
VICECHAIRSFORACADEMICS:KARENJOYG.SABUGO&JOHNHENRYC.MENDOZA
VICECHAIRFORADMINISTRATIONANDFINANCE:JEANELLEC.LEE
VICECHAIRSFORLAYOUTANDDESIGN:EARLLOUIEM.MASACAYAN&THEENAC.MARTINEZ
effectivityoftheLCand
betweenNov.1,1974
Dec.31,1974
appropriateregional
officesofthe
DepartmentofLabor.
(Art.291)
IllegalDismissalCases
4years.Itcommences
torunfromthedateof
formaldismissal.
(Mendozav.NLRC,G.R.
No.122481,Mar.5,
1998)