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Summer Reviewer 2007 - Labor Law - Printable
Summer Reviewer 2007 - Labor Law - Printable
Summer Reviewer 2007 - Labor Law - Printable
LABOR STANDARDS
I. GENERAL PRINCIPLES
Labor Code principal labor law of the country. But
even now, there are Labor Laws that are not found in
the Labor Code.
Social Legislation the promotion of the welfare of
all the people, the adoption by the government of
measures calculated to insure economic stability of
all the component elements of society thru the
maintenance of proper economic and social
equilibrium in the interrelations of the members of the
community, constitutionally, thru the adoption of
measures legally justifiable, or extra-constitutionally,
thru the exercise of powers underlying the existence
of all governments, on the time honored principle of
salus populi esta suprema lex (Calalang v. Williams,
02 December 1940)
Social Justice humanization of laws and the
equalization of social and economic forces by the
State so that justice in its rational and objective
secular conception may at least be approximated
Labor Standards sets out the minimum terms,
conditions, and benefits of employment that
employers must provide or comply with and to which
employees are entitled as a matter of legal right
Labor Relations defines the status, rights and
duties, as well as the institutional mechanisms that
govern the individual and collective interactions
between
employers,
employees
and
their
representatives
Art. 3. Declaration of basic policy
Afford protection to labor
Promote full employment
Ensure equal work opportunities regardless of
sex, race, or creed
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Regulate the relations
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employers
Assure workers rights to self-organization,
collective bargaining, security of tenure, and just
and humane conditions of work
Seven basic rights of workers guaranteed by the
Constitution:
1. right to organize
2. to conduct collective bargaining or negotiation
with management
Adviser: Atty. Marlon J. Manuel; Head: Ryan Quan; Understudy: Kate Sabado;
Labor Standards: Kukay Malabanan; Labor Relations: Peewee Estrella; Social Legislation: Binkki Hipolito
Labor Only
Contractors
has NO substantial
capital OR investment in
the form of machinery,
tools or equipment
has no independent
business
performs activities
directly related to the
main business of the
principal
Principal treated as direct
employer of the person
recruited in all instances
(contractor is deemed
Page 3 of 83
PROHIBITED
iii.
c.
Page 5 of 83
III. PRE-EMPLOYMENT
A. PRINCIPLES AND DEFINITIONS
JMM Promotion & Management Inc. v. CA, GR No.
120095, 05 August 1996
The POEA Rules are clear. A reading thereof
readily shows that in addition to the cash and surety
bonds and the escrow money, an appeal bond in an
amount equivalent to the monetary award is required
to perfect an appeal from a decision of the POEA.
Obviously, the appeal bond is intended to further
insure the payment of the monetary award in favor of
the employee if it is eventually affirmed on appeal to
the NLRC. Overseas recruiters are subject to more
stringent requirements because of the special risks to
which our workers abroad are subjected by their
foreign employers, against whom there is usually no
direct or effective recourse. The overseas recruiter is
solidarily liable with the foreign employer. The bonds
and the escrow money are intended to insure more
care on the part of the local agent in its choice of the
foreign principal to whom our overseas workers are
to be sent. Every intendment of the law must be
interpreted in favor of the working class, conformably
to the mandate of the Constitution. By sustaining
rather than annulling the appeal bond as a further
protection to the claimant employee, this Court
affirms once again its commitment to the interests of
labor.
PNB v. Cabansag, GR No. 157010, 21 June 2005
Noteworthy is the fact that respondent likewise
applied for and secured an Overseas Employment
Certificate from the POEA through the Philippine
Embassy in Singapore. The Certificate, issued on
March 8, 1999, declared her a bona fide contract
worker for Singapore. Under Philippine law, this
Page 6 of 83
5.
6.
7.
8.
9.
10.
11.
12.
13.
Labor Code
local recruitment and
employment
Illegal Recruitment
(Art. 38):
Any recruitment
activity including
Prohibited Acts
under Art. 34
committed by nonlicensees or nonholders of authority.
Elements:
1. That the offender
has no valid license
or authority required
by law to enable one
to lawfully engage in
recruitment and
placement of
workers; and,
2. That the offender
undertakes either
any activity within
the meaning of
recruitment and
placement defined
under Article 13(b),
or any prohibited
practices
enumerated under
Article 34.
RA 8042 Overseas
Filipinos and Overseas
Migrant Workers Act
applies to recruitment for
overseas employment
Illegal Recruitment (Sec.
6):
Any recruitment activity
committed by nonlicensees / non-holders
of authority; OR
Prohibited Acts (same
as Art. 34 of LC)
committed by any
person, whether a nonlicensee, non-holder,
licensee or holder of
authority.
Added the following in
the list of Prohibited
Acts:
1. fail to actually deploy
without valid reason;
2. fail to
reimburse expenses
incurred by the worker
in connection with
his/her documentation
and processing for
purposes of
deployment, in cases
where the deployment
does not actually take
place without the
workers fault.
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Liability of surety
In a surety bond, the surety unequivocally bound
itself to answer for all liabilities which the POEA
may adjudge or impose against the principal in
connection with the recruitment of Filipino
seamen
Stronghold Insurance Co. v. CA, 205 SCRA 605
(1992)
The surety agreed to answer for whatever
decision might be rendered against the principal,
whether or not the surety was impleaded in the
complaint and had the opportunity to defend itself.
There is nothing in the stipulation calling for a direct
judgment against the surety as a co-defendant in an
action against the principal.
Power to suspend or cancel any license or
authority to recruit employees for overseas
employment is concurrently vested with the
POEA and the Secretary of Labor.
The penalties of suspension and cancellation of
license or authority are prescribed for violations
of the above quoted provisions, among others.
And the Secretary of Labor has the power under
Section 35 of the law to apply these sanctions, as
well as the authority, conferred by Section 36, not
only to 'restrict and regulate the recruitment and
placement activities of all agencies,' but also to
'promulgate rules and regulations to carry out the
objectives and implement the provisions'
governing said activities. Pursuant to this rulemaking power thus granted, the Secretary of
Labor gave the POEA on its own initiative or
upon filing of a complaint or report or upon
request for investigation by any aggrieved
Page 10 of 83
3. Contracts
Freedom to Stipulate
Vir-Jen Shipping v. NLRC, 115 SCRA 347 (1992);
125 SCRA 577 (1983)
The form contracts approved by the National
Seamen Board [now POEA] are designed to protect
Filipino seamen not foreign shipowners who can take
care of themselves. The standard forms embody the
basic minimums which must be incorporated as parts
of the employment contract. They are not collective
bargaining agreements or illimitable contracts which
the parties cannot improve upon or modify in the
course of the agreed period of time.
Policy
It is the policy of the State to provide relevant,
accessible, high quality and efficient technical
education and skills development in support of the
development of high-quality Filipino middle-level
manpower responsive to and in accordance with
Philippine development goals and priorities.
V. WORKING CONDITIONS
Coverage
Book III of the Labor Code provides the conditions or
standards of employment. These standards apply
only if there exists EER.
Excluded Employees
1. Government employees whether employed by
the National Government or any of its political
subdivisions, including those employed in
GOCCs
2. Management employees. If they meet ALL of the
following conditions:
i. Their primary duty consists of the management
of the establishment in which they are
employed or of a department or subdivision
thereof
ii. They customarily and regularly direct the work
of two or more employees therein
iii. They have authority to hire or fire other
employees of lower rank; or there suggestions
and recommendations as to the hiring and
firing and as to the promotion or any other
change of status of other employees are given
particular weight
3. Officers or members of managerial staff if they
perform the following duties and responsibilities
i. Primary duty consists of performance of work
directly related to management policies of
employer
ii. Customarily and regularly exercise discretion
and independent judgment
iii. (a) Regularly and directly assist a proprietor
or a managerial employee; (b) Execute under
general supervision work along specialized
or technical lines requiring special training,
experience or knowledge; (c) execute under
general supervision special assignments and
tasks; and
iv. who do not devote more than 20% of their
hours worked in a workweek to activities
which are not directly and closely related to
the performance of work in i-iii above.
4. domestic servants and persons in the personal
service of another if
i.
they perform such services in the employers
home which are usually necessary or
desirable for the maintenance and enjoyment
thereof, or
ii.
minister
to
the
personal
comfort,
convenience, or safety of the employer as
well as members of the employers
household
Page 13 of 83
compensable
because it is a
normal incident of
employment
Exceptions:
1. where
employee
made to work
on an
emergency
call and travel
is necessary in
proceeding to
the workplace
2. travel is done
through a
conveyance
provided by
the employer
3. travel is done
under the
supervision
and control of
the employer
4. travel is done
under vexing
and
dangerous
circumstances
and counted
as hours
worked
when it cuts
across an
employees
workday
because it
substitutes for
the hours the
employee
should have
been in the
office
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All
establishments and enterprises may operate or open
for business on Sundays and holidays provided that
the employees are given the weekly rest day and the
benefits as provided.
Weekly Rest Day Every employer shall give his
employees a rest period of not less than 24
consecutive hrs. after every 6 consecutive normal
work days.
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Holidays
1. New Years Day
2. Maundy Thursday
3. Good Friday
4. Araw ng Kagitingan
5. Labor Day
6. Independence Day
7. Natl Heroes Day
8. Bonifacio Day
9. Eidul Fitr
10. Christmas Day
11. Rizal Day
Special Days
1. Special Non-Working Days
2. Special Public Holidays
3. Special National Holiday
Jan. 1
Movable Date
Movable Date
April 9
May 1
June 12
Last Sun. of Aug.
Nov. 30
Movable Date
Dec. 25
Dec. 30
Page 18 of 83
Nov. 1
Dec. 31
August 21
st
1 8 hrs.
+ 30% of the
daily rate of 100%
excess of 8 hrs. + 30% of
hourly rate on said
day
c. Falling on employees
rest day
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daily rate of 100%
excess of 8 hrs. + 30% of
hourly rate on said
day
3. SPECIAL WORKING HOLIDAYS only basic rate.
Page 19 of 83
VI. WAGES
A. CONCEPT AND DEFINITION
Agriculture includes farming in all its branches
and, among other things, includes cultivation and
tillage of soil, dairying, the production, cultivation,
Facilities
items of expense
necessary for the
laborers and his familys
existence and
subsistence
Supplements
extra remuneration or
special privileges or
benefits given to or
received by the
employees over and
above their ordinary
earnings or wages.
independent of the wage
not wage deductible
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Standards/Criteria
for
Minimum
Wage
Fixing must be economically feasible to maintain
the minimum standards of living necessary for the
health, efficiency and general well-being of the
employees within the framework of the national
economic and social development program. Factors
to Consider:
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Attorneys Fees
1. In case of unlawful withholding of wages, the
culpable party may be assessed attorneys fees
equivalent to ten percent of the amount of wages
recovered.
2. It shall be unlawful for any person to demand or
accept, in any judicial or administrative
proceedings for the recovery of wages, attorneys
Page 25 of 83
Prohibited Acts
It is unlawful for any employer:
1. To discharge any woman employed by him for
the purpose of preventing such woman from
enjoying the maternity leave, facilities and other
benefits provided under the Code
Below 15
Page 27 of 83
15 Below 18
18 years and
above
Hazardous Workplaces
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dangerous
environmental
elements,
contaminants or work conditions
b. Workers are engaged in construction work,
logging, fire-fighting, mining, quarrying, blasting,
stevedoring, dock-work, deep sea fishing, and
mechanized farming
c. Workers are engaged in the manufacture or
handling of explosives and other pyrotechnic
products
Page 28 of 83
Deductions No employee, contractor, or subcontractor shall make any deduction from the
homeworker's earnings for the value of materials
which have been lost, destroyed, soiled or otherwise
damaged unless the following conditions are met:
1. The homeworker concerned is clearly shown to
be responsible for the loss or damage;
2. The employee is given reasonable opportunity to
show cause why deductions should not be made;
3. The amount of such deduction is fair and
reasonable and shall not exceed the actual loss
or damages; and
4. The deduction is made at such rate that the
amount deducted does not exceed 20% of the
homeworker's earnings in a week.
Liability of employer and contractor Whenever
an employer shall contract with another for the
performance of the employer's work, it shall be the
duty of such employer to provide in such contract that
the employees or homeworkers of the contractor and
the latter's sub-contractor shall be paid in accordance
with the provisions of this Rule. In the event that such
contractor or sub-contractor fails to pay the wages or
earnings of his employees or homeworkers as
specified in this Rule, such employer 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 employees or
homeworkers were directly engaged by the employer.
Prohibitions for Homework
1. explosives, fireworks and articles of like character
2. drugs and poisons
3. other articles, the processing of which requires
exposure to toxic substance
E. HANDICAPPED / DISABLED
Handicapped Workers those whose earning
capacity is impaired by age or physical or mental
deficiency or injury, disease or illness
Handicapped Worker
(Art. 78 LC)
Handicapped Person
(RA 7277 Magna Carta
Page 29 of 83
When Employable
1. their employment is necessary to prevent
curtailment of employment opportunities
2. does not create unfair competition in labor costs
3. does not impair or lower working standards
Handicapped Workers May Become Regular
Employees if their handicap is not such as to
effectively impede the performance of job operations
in the particular occupations for which they were
hired.
Equal Opportunity for Employment no disabled
person shall be denied access to opportunities for
suitable employment. Qualified disabled employees
shall be subject to same terms and conditions of
employment and the same compensation, privileges,
benefits, fringe benefits, incentives or allowances as
a qualified able-bodied person
Employment Agreement; Contents
1. Names and addresses of the employer and the
handicapped worker
2. Rate of pay of the handicapped worker which
shall not be less than 75% of the legal minimum
wage
3. Nature of work to be performed by the
handicapped worker
4. Duration of the employment
NATURE OF
POWER
EXISTENCE
OF EER
HOW
INITIATED
LIMITS AS
TO AMOUNT
OF CLAIM
APPEAL
WHO
EXERCISES
Art. 128
DOLE Sec. OR
his duly
Art. 129
Regional
Director or any
authorized
representative
who may or
may not be a
Regional
Director
Visitorial and
enforcement
power exercised
through routine
inspections of
establishment
Requires
existence of
EER
Enforcement
power is an
offshoot of
visitorial power
No limit
Appeal to Sec.
of Labor within
10 calendar
days
duly authorized
hearing officer
of DOLE
Adjudicatory
power on matter
involving
recovery of
wage
EER not
necessary since
it should not
include a claim
for
reinstatement
Sworn
complaint filed
by interested
party
Aggregate claim
of each
complainant
does not
exceed P5,000
Appeal to NLRC
within 5
calendar days
X. EMPLOYEES COMPENSATION
Workmens Compensation a general and
comprehensive term applied to those laws providing
for compensation for loss resulting from the injury,
Page 31 of 83
EMPLOYEES
COMPENSATION LAW
(ECL)
No presumption of
compensability
No presumption of
aggravation
No need for the
employer to controvert
the claim
Payment of
compensation is made
by the SSS/GSIS
through the State
Insurance Fund. The
employers obligation is
to pay his counter
contribution to the SSS
Page 33 of 83
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3. Cancellation of registration
Grounds for Cancellation of Union Registration
1. Misrepresentation, False Statement or Fraud in
connection with:
a. adoption/ratification
of
the
CBL
or
amendments thereto, minutes of ratification
and the list of members who took part in the
ratification
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officers/voters
c. in the preparation of the financial reports
2. Failure to Submit:
a. CBL, minutes of its adoption/ratification, list
of members who took part within 30 days
from adoption of ratification or amendments
thereto
Disqualification
of
Confidential
4.
5.
6.
7.
membership.
Page 42 of 83
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labor
practices
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Unfair Labor Practices
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1. To restrain or coerce employees in the exercise
of their right to self organization.
2. To attempt to or cause an employer to
discriminate against an employee to whom
membership in the labor organization was denied
or to terminate an employee on any ground other
than he usual terms and conditions under which
4.
5.
6.
Page 50 of 83
the
exclusive
Jurisdictional Requirements
1. Status of majority representation of the
employees representative.
2. Proof of majority representation
3. Demand to bargain under art. 250 (a) (Kiok Loy
v. NLRC, 141 SCRA 179)
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- Violation
of the Duty to
4 Forms of 7 ULP
Bargain Collectively
1. Failure or refusal to meet and convene
2. Evading the mandatory subjects of bargaining
3. Bad faith in bargaining
4. Gross violation of the CBA
When to file
within 30 days from execution of the CBA.
Requirements for registration
The application for CBA registration shall be
accompanied by the original and 2 duplicate copies
of the following documents.
1. CBA
2. A statement that the CBA was posted in at least
Procedure
1. The Regional Office or the Bureau shall act on
the applications within 5 days form receipt of the
application.
2. The Regional Office or Bureau may within 5 days
from receipt of the application,
a. approve the application and issue the
certificate of registration or
b. deny the application for failure to comply with
the requirements.
c. If the supporting documents are not
complete, or are not verified under oath, the
Regional Office or the Bureau shall notify the
applicants in writing of the requirements
needed to complete the registration.
o
If the applicant fails to complete the
requirements within 10 days from
receipt of notice, application is denied
without prejudice.
o
The denial shall be in writing, stating in
clear terms the reason therefore and
served upon the applicant union and
employer within 24 hours from issuance.
3. The denial by the Regional Office of the
registration of single enterprise collective
bargaining agreements may be appealed to the
Bureau while the denial by the Bureau of the
registration
of
multi-employer
collective
bargaining agreements may be appealed to the
Office of the Secretary, both within 10 days from
receipt of the notice of denial.
4. The memorandum of appeal is filed with the
Regional Office or the Bureau, as the case may
be.
5. The memorandum of appeal and the entire
records of the application shall be transmitted to
the Bureau or the Office of the Secretary within
24 hours from receipt of the memorandum of
appeal.
6. Bureau or the Office of the Secretary shall
resolve within the same period and in the same
manner as that prescribed for inter/intra-union
disputes.
Page 53 of 83
Voluntary Recognition
When to file
In unorganized establishments with only one
legitimate labor organization, the employer may
voluntarily recognize the representation status of
the union.
Within 30 days from such recognition, the
employer and union shall submit a notice of
voluntary recognition.
Where to file
Regional Office which issued the recognized
labor unions certificate of registration or
certificate of creation of a chartered local.
Requirements for Voluntary Recognition
The notice of voluntary recognition shall be
accompanied by the original copy and 2 duplicate
copies of the following documents:
1. A joint statement under oath of voluntary
recognition attesting to the fact of voluntary
recognition.
2. Certificate of posting of the joint statement of
voluntary recognition for 15 consecutive days in
at least 2 conspicuous places in the
establishment or bargaining unit where the union
seeks to operate.
3. Approximate number of employees in the
bargaining unit, accompanied by the names of
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comprising at least
a majority
of the members of
the bargaining unit.
4. A statement that the labor union is the only
legitimate labor organization operating within the
bargaining unit.
Page 56 of 83
Challenging of Votes
An authorized representative of any of the
contending unions and employer
Before it is deposited in the ballot box
Grounds:
a. that there is no employer-employee
relationship between the voter and the
company;
b. that the voter is not a member of the
appropriate bargaining unit which
petitioner seeks to represent.
Procedure in Challenging of Votes
1. The Election Officer shall place the ballot in an
envelope.
sealed in the presence of the voter and the
representatives of the contending unions and
employer.
indicate on the envelope the voters name,
the union or employer challenging the voter,
and the ground for the challenge.
envelope shall be signed by the Election
Officer and the representatives of the
contending unions and employer.
2. The Election Officer shall note all challenges in
the minutes of the election and shall be
responsible for consolidating all envelopes
containing the challenged votes.
3. The envelopes shall be opened and the
question of eligibility shall be passed upon only
if the number of segregated voters will materially
alter the results of the election.
Protest
Any party-in-interest may file a protest based on
the conduct or mechanics of the election.
Protests shall be recorded in the minutes of the
election proceedings. Protests not so raised are
deemed waived.
The protesting party must formalize its protest
with the Med-Arbiter, with specific grounds,
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Canvassing of Votes
Counted and tabulated by the Election Officer in
the presence of the representatives of the
contending unions.
Each representative entitled to a copy of the
minutes of the election proceedings and results
of the election.
The ballots and the tally sheets shall be
i. sealed in an envelope
ii. signed by the Election Officer and the
representatives of the contending unions
iii. transmitted to the Med-Arbiter, together
with the minutes and results of the
election, within 24 hours from the
completion of the canvass
Where the election is conducted in more than
one region, consolidation of results shall be made
within 15 days from the conduct thereof.
Conduct of Election and Canvass of Votes
The election precincts shall open and close on
the date and time agreed upon during the preelection conference.
The opening and canvass shall proceed
immediately after the precincts have closed.
Failure of any party or the employer or
his/her/their representative to appear during the
election proceedings shall be considered a
waiver to be present and to question the conduct
thereof.
Certification of Exclusive Bargaining Agent
The union which obtained a majority of the valid
votes cast shall be certified as the sole and exclusive
bargaining agent of all the employees in the
appropriate bargaining unit within 5 days from the
day of the election, provided no protest is recorded in
the minutes of the election.
Failure of Election
and a in a certification
Where the number
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or consent election
is less
the majority of the
number of eligible voters and there are no
material challenged votes.
A failure of election shall not bar the filing of a
motion for the immediate holding of another
certification or consent election within 6 months
from date of declaration of failure of election.
Run-off Election
When an election which provides for 3 or more
choices results in none of the choices (unions or no
union choice) receiving a majority of the valid votes
cast, the Election Officer shall motu propio conduct a
run-off election within 10 days from the close of the
election proceedings between the labor unions
receiving the two highest number of votes. Provided,
that the total number of votes for all contending
unions is at least 50% of the number of votes cast.
Page 58 of 83
Deadlock Bar
A petition for certification election cannot be
entertained if, before the filing of the petition for
certification election, a bargaining deadlock to which
an incumbent or certified bargaining agent is a party,
had been submitted to conciliation or arbitration or
had become the subject of a valid notice of strike or
lockout.
Negotiation Bar
A petition for certification election cannot be filed
if the duly certified union has commenced and
sustained negotiations in good faith with the
employer in accordance with Art. 250 of the Labor
Code within 1 year prior to the filing of the petition for
certification election.
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Certification Year Rule
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No petition for certification election may be filed
within one year from the date of a valid certification,
consent, or run-off election or from the date of
voluntary recognition.
Conversion Doctrine
A strike may start as economic and, as it
progresses, becomes ULP, or vice-versa.
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Preventive Mediation
The regional branch may treat the notice as
preventive mediation case upon agreement of the
parties.
Strike or lockout vote
1. approved by majority of total union membership
or by majority of the BOD or partners
2. by a secret ballot
3. in a meeting called for that purpose
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Good-Faith Doctrine
Page 64 of 83
V. POST-EMPLOYMENT
A. REGULAR, CASUAL,
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PROBATIONARY
EMPLOYMENT
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Project Employment
One whose employment has been fixed for a
specific project or undertaking the completion of
which has been determined at the time of
engagement of the employee; the period is not
the determining factor, so that even if the period
is more than 1 year, employee does not
necessarily become regular
Maraguinot v. NLRC, 284 SCRA 539 (1998)
Repeated hiring on a project to project basis is
considered necessary and desirable to the business
of the employer. Thus, employee is regular.
FilSystems v. Puente, GR No. 153832, 18 March
2005
Repeated hiring does not necessarily mean
regular employment.
Probationary Employment
GR: Not to exceed 6 months
Exceptions:
a. covered by an apprenticeship agreement
stipulating a longer period
b. voluntary agreement of parties (especially when
nature of work requires a longer period)
c. the employer gives the employee a second
chance to pass the standards set
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Just
Causes
for
Termination
by
Serious Misconduct
Improper or wrong conduct; the transgression of
some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in
character, and implies wrongful intent and not mere
error in judgment. To be serious within the meaning
and intendment of the law, the misconduct must be of
such grave and aggravated character and not merely
trivial or unimportant (Villamor Golf Club v. Pehid, 04
October 2005)
Elements of Serious Misconduct
1. serious;
2. relate to the performance of the employees
duties;
3. employee has become unfit to continue working
for the employer (Phil. Aeolus v NLRC, 2000)
Elements of Willful Disobedience
1. employees assailed conduct was willful or
intentional, the willfulness being characterized by
a wrongful and perverse attitude;
2. the order violated must have been reasonable,
lawful, made known to the employee and must
pertain to the duties which he has been engaged
to discharge (Micro Sales Operation Network v.
NLRC,11 October 2005)
Gross and Habitual Neglect
GROSS and HABITUAL must concur together.
Implies a want or absence of or failure to
exercise slight care or diligence, or the entire
absence of care. It evinces a thoughtless
disregard of consequences without exerting any
effort to avoid them.
Previous infractions by the employee should
have been acted upon appropriately by the
employer before terminating the former.
Fraud or Willful Breach of Trust
Can be committed only by confidential and
managerial employees
- confidential employees charged with custody
and protection of employers property like a
cashier (this is different from the confidential
employees in labor relations)
A criminal case need not be actually filed.
Commission of acts constituting a crime is
sufficient.
Analogous Cases; Examples
violation of safety rules
gross inefficiency
wrongful acts of employee against the company
violation of code of discipline
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Retrenchment
Resorted primarily to avoid or minimize business
losses.
Standards to Justify Retrenchment
1. The losses expected should be substantial and
not merely de minimis in extent.
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Preventive Suspension
Retrenchment to
prevent losses
Closures or cessation of
operations of
establishments or
undertaking NOT due to
serious business losses
or financial reverses
Disease
Closures or cessation of
operations due to
serious business losses
or financial reverses
no separation pay
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F. RETIREMENT
Art. 287. Retirement
(as amended by the Retirement Pay Law RA 7641)
Exempted:
retail, service, agricultural establishments
operations employing not more than
employees
10
Kinds
1. OPTIONAL 60 years old / 5 years in service
(includes authorized absences/vacations/regular
holidays/mandatory military or civic service). This
depends on the stipulations in the CBA, company
retirement plan, or employment contract.
2. COMPULSARY 65 years old/ regardless or
years of service (company not bound to dismiss
employee)
Benefits
1/2 month salary per year of service which shall
include:
1. 15-day basic wage, plus
th
2. 1/12 of the 13 month pay, plus
3. 5-day Service incentive leave pay plus
4. other benefits as maybe agreed upon by
employer and employee
(a fraction of at least 6 months considered as 1 year)
Minimum benefits to be received =
(no. 1 + no. 2 + no. 3) x years of service
If CBA / retirement plan has no prohibition, an
employee can get pay under the law, CBA, and
the retirement plan.
If what is provided in the CBA is lower that what
is provided for in law, the employee is entitled to
the higher amount.
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Jurisdiction
1. Inter-union conflicts
2. Intra-union conflicts
3. All disputes, grievances or problems arising from
or affecting labor-management relations in all
workplaces EXCEPT those arising from the
implementation or interpretation of the CBA
which shall be the subject of grievance procedure
and/or voluntary arbitration
4. Complaint involving federations, national unions,
industry unions, its officers or member
organizations
Compromise Agreements
If voluntarily agreed upon by the parties with the
assistance of the BLR or the regional office of
DOLE final and binding upon the parties
The only time NLRC or any courts can assume
jurisdiction over issues involved therein:
a. in case of non-compliance thereof
b. if there is prima facie evidence that the
settlement was obtained through fraud,
misrepresentation or coercion
Power to Issue Subpoena
When relevant to a labor dispute under its
jurisdiction either at the request of any interested
party or at its own initiative
Privileged Communication
Information and statements made at conciliation
meetings shall NOT be used as evidence in the
NLRC
Conciliators and similar officials shall not testify in
any court or body regarding any matters taken up
at conciliation proceeding conducted by them
Appeal
within 10 days to the DOLE Secretary
Grounds:
a. grave abuse of discretion
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Held:
No. Unlike the NLRC which is explicitly vested
with the jurisdiction over claims for actual, moral,
exemplary and other forms of damages, the BLR is
not specifically empowered to adjudicate claims of
such nature arising from intra-union or inter-union
disputes.
c.
B. PROCEDURE
Art. 221. Technical rules not binding and prior
resort to amicable settlement
Art. 222. Appearances and Fees
Grounds
1. prima facie evidence of abuse of discretion on
the part of LA
2. the decision, order or award was secured through
fraud or coercion including graft and corruption
3. pure questions of law
4. raised serious errors in the findings of facts which
could cause grave or irreparable damage or
injury to the appellant
5. additional Requirement: in case of judgment
involving a monetary award-employer (appellant)
may perfect the appeal only upon the posting of a
cash or surety bond issued by a reputable
bonding company duly accredited by the NLRC in
the amount equivalent to the monetary award in
the judgment appealed from
Requisites for Perfection of Appeal
1. filed within the reglementary period
2. Memorandum of Appeal under oath
3. appeal fee
4. cash, property, or surety bond, if judgment
involves monetary award
5. proof of service to the adverse party
Procedure
1. File Memorandum of Appeal within 10 calendar
days, counted from receipt of decision
2. Other party can file an Answer within 20 calendar
days from receipt of Appeal
3. NLRC decides
4. NLRC decision becomes final and executory 10
days after it is rendered
Appeal Involving Monetary Award
No monetary award, no appeal bond required
If LAs decision does not provide for a
computation of the monetary award, no appeal
bond is required to be filed.
Bond should be posted within the 10-day period
for filing of appeal
If no bond is filed, appeal is not perfected
Remedy in case of failure to post bond, remedy is
to file a motion to dismiss
Motion to Reduce Bond
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Enforcement
Any law enforcement agency may be deputized
by the DOLE Secretary or the NLRC
Issuance of writ of execution on a judgment
within 5 years from date it becomes final and
executory motu proprio or in motion of any
interested party
Reinstatement Pending Appeal
If reinstatement is ordered in an illegal dismissal
case, it is immediately executory even pending
appeal
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execution
Either admitted back to work under the same
terms and conditions prevailing prior to his
dismissal or separation or merely reinstated in
the payroll (at the option of the employer, i.e.
confidential employee, but the choice must be
communicated to the employee by the employer)
Posting of a bond shall not stay the execution of
reinstatement
Summary
Decision of the Voluntary Arbiter appeal to CA
under Rule 43 (Luzon Devt Bank)
Decision of the DOLE and other attached
agencies (including NLRC) should be brought to
the CA under Rule 65 (St. Martin Funeral Homes)
Decision of the DOLE Secretary certiorari to the
CA under Rule 65 (NAFLU v. Laguesma)
Order of the Med-Arbiter in CE in organized
establishments not appealable under DO 40-03
(2003). Thus, the recourse is certiorari under
Rule 65.
Decisions of the BLR in its appellate certiorari
under Rule 65 (UST Employees Union v. Bitonio)
Certiorari is not a substitute for lost appeal.
10 days to perfect appeal by filing a
Memorandum of Appeal
Property bond is now allowed. [UERM-Memorial
Medical Center v. NLRC, 269 SCRA 70 (1997)]
Appeal bond must be strictly complied with.
NLRC cannot resuscitate a lost appeal.
Only 1 MR is allowed.
LA cannot entertain an MR or a petition for relief
of judgment
After the decision has become final and
executory, the writ of execution is NOT
appealable.
To stay writ of execution, ask for an injunction
under Art. 218(e)
Period to appeal cannot be extended BUT in a
number of cases, SC entertained appeals filed
out of time under the interest of justice rule (esp.
if the appellants are the employees).
Doctrine of supervening event (i.e. closure of
company) requires payment of separation pay
and full backwages up to the time of the closure
of the company.
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Reinstatement Pending
Appeal
(RPA)
1. Decision of the LA
2. Independent right
3. Payroll reinstatement
4. Receipt of LAs decision
SOCIAL LEGISLATION
THIRTEENTH-MONTH PAY (PD 851)
Page 77 of 83
All employers are required to pay all their rankand-file employees a 13th month pay not later
than December 24 of every year. Such
employees are entitled to the benefit regardless
of their designation or employment status and
irrespective of the method by which their wages
are paid, provided that they have worked for at
least 1 mo. during a calendar year.
13th Month Pay 1/12th of the basic salary of an
employee within a calendar year
Coverage
It applies to all government employees--employees
of all branches, subdivisions, instrumentalities, and
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Right to Organize
Prescription: 3 years
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The Civil Service and
labor
and procedures,
whenever applicable, shall be followed in the
resolution of complaints, grievances and cases
involving government employees. In case any dispute
remains unresolved after exhausting all the available
remedies under existing laws and procedures, the
parties may jointly refer the dispute to the Council, for
appropriate action. (16)
are needed
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INSURANCE
The compulsory health insurance program of the
government as established in this Act, which shall
provide universal health insurance coverage and
ensure affordable, acceptable, available and
accessible health care services for all citizens of the
Philippines.
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