Professional Documents
Culture Documents
Selected Questions in Labor Law
Selected Questions in Labor Law
Selected Questions in Labor Law
NO. The POEA MEMO Circular no. 2, series of 1983 was void. Where the administrative
circular in question is one of those issuances which should be published for its effectivity, since its
purpose is to enforce and implement an existing law pursuant to a valid delegation. Considering
that POEA Administrative Circular No. 2, Series of 1983 has not as yet been published or filed with
the National Administrative Register, the same is ineffective and ma not be enforced (Philsa
International Placement and Services Corp. vs. Secretary of DOLE, G.R. No. 103144, April 4,
2001).
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Their argument is far from persuasive. Surely, they cannot expect us to utilize their noncompliance with the POEA Rules and Regulations as a basis in absolving them. To do so would be
tantamount to giving premium to acts done in violation of established rules. At most, private
respondents act of deploying petitioner to Singapore without complying with the POEA
requirements only made them susceptible to cancellation or suspension of license as provided by
Section 2, Rule I, Book VI of POEA Rules and Regulations. (Hornales v. NLRC, G.R. No. 118943,
September 10, 2001).
6. Is there a requirement that a physician must be accredited by the POEA before he can
attend to a sick seaman?
This Court also finds no basis on (sic) the petitioners contention that the companydesignated [physician] must also be accredited with the POEA before he can engage in the medical
treatment of a sick seaman. There is nothing in the Standard Employment Contract that provides
this accreditation requirement, and even if there is, this would be absurd and contrary to public
policy as its effect will deny and deprive the ailing seaman of his basic right to seek immediate
medical attention from any competent physician. The lack of POEA accreditation of a physician
who actually treated the ailing seaman does not render the findings of such physician (declaring the
seaman permanently disabled) less authoritative or credible. To our mind, it is the competence of
the attending physician, not the POEA accreditation, that determines the true health status of the
patient-seaman, which in this instant case, is [sic] the attending physicians from the Manila Doctors
Hospital (German Marine Agencies, Inc. v. NLRC, G.R. No. 142049, January 30, 2001).
Law
7. Martina is a clerk typist in Hospicio de San Jose, a charitable institution dependent for its
existence on contributions and donations from well wishers. She renders work eleven (11)
hours a day but has not been given overtime pay since her place of work is a charitable
institution. Is Socorro entitled to overtime pay? Explain briefly.
YES. Martina is entitled to overtime compensation. She does not fall under any of the
exceptions enumerated under Art. 82 of the Labor Code. Said provision equivocally states that
Title I, Book III of the Labor Code dealing with hours of work, weekly rest periods, holidays,
service incentive leaves and service charges, covers all employees in all establishments, whether
for profit or not, except the following employees:
a. Government employees
b. Managerial employees
c. Officers and members of the managerial staff
d. Field personnel
e. Members of the family of the employer who and dependent on him for support
f. Domestic helpers
g. Persons in the personal service of another
h. Workers paid by results.
A covered employee who works beyond eight (8) hours is entitled to overtime
compensation.
8. Krishna earns P7.00 for every manicure she does in the barbershop of a friend which has
nineteen (19) employees. At times, she takes home P175.00 a day and at other times she earns
nothing. She now claims holiday pay. Is Krishna entitled to this benefit?
NO. Nemia is not entitled to holiday pay. Art. 82 of the Labor Code provide that workers
who are paid by results are, among others, not entitled to holiday pay. Nemia is a worker who is
paid by results. She earns P7.00 for every manicure she does.
9. As a tireman in a gasoline station, which is open twenty four (24) hours a day with only five
(5) employees, Joewa worked from 10:00 p.m. until 7:00 A.M. of the following day. He claims
to be entitled to night shift differential. Is he correct?
NO. In the Omnibus Rules Implementing the Labor Code (Book III, Rule II, dealing with night
shift differential) it is provided that its provisions on night shift differential shall NOT apply to
employees of retail and service establishments regularly employing not more that five (5)
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Step 2: Compute wage between 8:00pm 5:00 pm using rest day wage rate
Number of hours worked
e.g.
8hrs
P81.25
= P650
P650
Regular holiday
x
200%
= P1300
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b. If he works for ten (10) hours on that day, how much should he receive for his
work? Explain.
P1,300.00 which is the amount that Bonifacio is to receive for working on May 1, 2002
should be divided by 8 to determine his hourly rate of P162.5. This hourly rate should be multiplied
by 2 (the number of hours he worked overtime). Thus, the amount that Bonifacio is entitled to
receive for his overtime work per hour on May 1, 2002 is P325.00.
Holiday wage rate + 30% of holiday rate (200%)
Step 1: Get hourly wage rate
Daily Basic Wage
Number of hours worked
8hrs x P200.00
2hrs x P260.00
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-----------P2,145
P1300
12. Sia, the employer, admits that Damascos work starts at 8:30 in the morning and ends up at
6:30 in the evening daily, except holidays and Sundays. However, Sia claims that Damascos
basic salary of P140.00 a day is more than enough to cover the one hour excess work which
is the compensation they allegedly agreed upon. What other evidences are required to warrant
the award of overtime pay?
Judicial admissions made by parties in the pleadings, or in the course of the trial or other
proceedings in the same case are conclusive, no further evidence being required to prove the same,
and cannot be contradicted unless previously shown to have been made through palpable mistake
or that no such admission was made. In view of Sias formal admission that Damasco worked beyond
eight hours daily, the latter is entitled to overtime compensation. No further proof is required. Sia
already admitted she worked an extra hour daily. Thus, public respondent gravely erred in deleting
the award of overtime pay to Damasco on the pretext that the claim has no factual basis.
Still, even assuming that Damasco received a wage which is higher than the minimum
provided by law, it does not follow that any additional compensation due her can be offset by her
pay in excess of the minimum, in the absence of an express agreement to that effect. Moreover,
such arrangement, if there be any, must appear in the manner required by law on how overtime
compensation must be determined. For it is necessary to have a clear and definite delineation
between an employees regular and overtime compensation to thwart violation of the labor
standards provision of the Labor Code (Damasco vs. NLRC, G.R. No. 115755, December 4, 2000).
13. May a Company adopt working hours beyond 8 hours a day? If the workers do not question
such an arrangement, would that scheme be considered valid?
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b.
applicable hereto?
NO. The Motion should not be granted. The facts indicate a concerted effort on the part of
respondents to remove petitioners from the company and thus abate the growth of the union and
block its actions to enforce their demands in accordance with the Labor Standards laws. The Court
held in Insular Life Assurance Co., Ltd., Employees Association-NATU vs. Insular Life Assurance
Co., Ltd.,37 SCRA 244 (1971), that the test of whether an employer has interfered with and
coerced employees within the meaning of section (a) (1) is whether the employer has engaged in
conduct which it may reasonably be said tends to interfere with the free exercise of employees'
rights under section 3 of the Act, and it is not necessary that there be direct evidence that any
employee was in fact intimidated or coerced by statements of threats of the employer if there is a
reasonable inference that anti-union conduct of the employer does have an adverse effect on selforganization and collective bargaining.
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fraud or defend crime, the law will regard the corporation as an association of persons, or in case
of two corporations, merge them into one. The separate juridical personality of a corporation may
also be disregarded when such corporation is a mere alter ego or business conduit of another
person.
In the case at bar, it was shown that BSA was a mere adjunct of A Company. BSA, by virtue
of a contract for security services, provided A Co. with security guards to safeguard its premises.
However, records show that BSA and A Co. have the same owners and business address, and BSA
provided security services only to A Co. and other companies belonging to its owners. The
purported sale of the shares of the former stockholders to a new set of stockholders who changed
the name of the corporation appears to be part of a scheme to terminate the services of BSAs
security guards posted at the premises of A Co. and bust their newly-organized union which was
then beginning to become active in demanding the company's compliance with Labor Standards
laws. Under these circumstances, the Court cannot allow A Co. to use its separate corporate
personality to shield itself from liability for illegal acts committed against its employees. (De Leon
vs. NLRC, G.R. No. 112661, May 30, 2001)
16. Discuss the doctrine on the economic reality of the relations of parties test with respect
to the existence of employer-employee relationship.
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The concept of independent contractor is interminably linked with the economic reality
test when we consider the fact that such person is one who carries on a distinct and independent
business and undertakes to perform the job to do a piece of work on his own account and under his
own responsibility, according to his own manner and methods and free from the control and
direction of his principal, except as to the result of the work. Among the factors to be considered
are whether the contractor is carrying on an independent business; whether the work is part of the
employer's general business; the nature and extent of the work; the skill required; the term and
duration of the relationship; the right to assign the performance of the work to another; the power
to terminate the relationship; the existence of a contract for the performance of a specified piece
of work; the control and supervision of the work; the employer's powers and duties with respect to
the hiring, firing, and payment of the contractor's servants-, the control of the premises; the duty
to supply the premises, tools, appliances, material and labor; and the mode, manner, and terms of
payment. (MAFINCO Corporation v. Ople, 70 SCRA 139)
17. Pandoy was an electrician who worked within the premises of Ushio's car accessory shop, in
Banawe Street, Quezon City. He filed a complaint for illegal dismissal, non-payment of overtime
pay, holiday pay, and other benefits against Ushio, which moved to dismiss the complaint
claiming that Pandoy was not an employee but a free lance operator who waited on the shop's
customers should the latter require his services. Ushio argues that in fine, the shop owner and
the free lance operator, as an independent contractor, were partners in trade, "both benefiting
from the proceeds of their joint efforts. It further claimed that it was a recognized and
accepted trade practice peculiar to the auto spare parts shop industry operating along the
stretch of Banawe Street that shop owners would collect the service fees from its customers
and disburse the same to the independent contractor at the end of a week. Moreover, Pandoy
was free to position himself near other car accessory shops to offer his services to customers of
said shops. On the other hand, Pandoy insists that he is entitled to the benefits because he was
loyal to Ushio, as he did not perform work for anyone else. Is he correct?
LABOR LAW
19. Is there a difference between a job contractor or subcontractor and a private recruitment
and placement agency (PRPA)?
YES. A job contractor or subcontractor directly undertakes a specific job or service for a
principal, and for this purpose employs its own workers. A PRPA cannot be a subcontractor. It
simply recruits workers for the purpose of placing them with another employer so that the workers
recruited will not become the PRPA's employees.
If the four-fold test is satisfied not by the job contractor or subcontractor but by the
principal, the principal then becomes the employer of the employees engaged to accomplish the
job or service. What exists is not job contracting or subcontracting but a direct employer-employee
relationship between the principal and the employees and the job contractor becomes merely the
agent of the principal or the subcontractor, the agent of his contractor, as the case may be.
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I would present the same documents shown in the case of Escario vs. NLRC, G.R. No.
124055, June 8, 2000, to wit:
D.L. Admark is a legitimate independent contractor. Among the circumstances which tend
to establish the status of D.L. Admark as a legitimate job contractor are:
a. The SEC registration certificate of D.L. Admark states that it is a firm engaged in
promotional, advertising, marketing and merchandising activities.
b. The service contract between CMC and D.L. Admark clearly provides that the agreement is
for the supply of sales promoting merchandising services rather than one of manpower placement.
c. D.L. Admark was actually engaged in several activities such as advertising, publication,
promotions, marketing and merchandising. It had several merchandising contracts with companies
like Purefoods, Corona supply, Nabisco Biscuits and Licron. It was likewise engaged in the
publication business, as evidenced by its magazine, the Phenomenon.
d. It had its own capital assets to carry out its promotion business. It then had current assets
amounting to P6 million and is therefore a highly capitalized venture. It had an authorized capital
stocks of P500,000. It owned several motor vehicles and other tools, materials and equipment to
service its clients. It paid rentals of P30,020 for the office space it occupied.
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NO. Under Article 106, a principal has two types of liability in relation to the employees of
the contractor or subcontractor. The first type of liability is limited, and is governed by the first
two paragraphs of Article 106. Thus, mere inability of the contractor or subcontractor to pay wages
will not automatically make the principal the direct employer. It will only make the principal
jointly and severally liable with the contractor or subcontractor for payment of the employees'
wages to the extent of the work performed under the contract.
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The second type of liability, which arises from the third and fourth paragraphs of Article
106, is absolute and direct. This liability arises when there is labor-only contracting as defined in
D.O. No. 3. In such cases, the principal shall be held responsible to the workers in the same manner
and extent as if it directly employed these workers.
28. Which employer should be held liable for the wages of security guards, the PRINCIPAL
EMPLOYER or the AGENCY? Explain.
There existed a contractual agreement between PTSI and EAGLE, wherein the former
availed of the security services provided by the latter. In return, the security agency collects from
its client payment for its security services. This payment covers the wages for the security guards
and also expenses for their supervision and training, the guards bonds, firearms with ammunitions,
uniforms and other equipments [sic], accessories, tools, materials and supplies necessary for the
maintenance of a security force.
Premises considered, the security guards immediate recourse for the payment of the
increases is with their direct employer, EAGLE. However, in order for the security agency to
comply with the new wage and allowance rates it has to pay the security guards, the Wage Orders
made specific provision to amend existing contracts for security services by allowing the
adjustment of the consideration paid by the principal to the security agency concerned. What the
Wage Orders require, therefore, is the amendment of the contract as to the consideration to cover
the service contractors payment of the increase mandated. In the end therefore, the ultimate
liability for the payment of the increases rests with the principal (Security and Credit
Investigation Inc. v. NLRC, G.R. No. 114316, January 26, 2001).
LABOR LAW
independent
contractors
rather
than
regular
In, MAFINCO Trading Corporation v. Ople, GR No. L-37790, March 25, 1976, it was held
where, as in the case at bar, a peddler formally entered into a peddling contract with petitioner
for the purchase and sale of Cosmos softdrinks, indicating the manner of selling the goods, whereby
the petitioner provides the peddler with delivery truck and bears the cost of gasoline and
maintenance of' the truck; while on the other hand the peddler employs the driver and helpers and
take care of the latter's compensation and social security contributions, the peddlers are
independent contractors and not employees of petitioner.
31. Is the joint and several liability of the principal and the job contractor under Articles 107
and 109, in relation to Article 106 of the Labor Code, dependent upon the insolvency or
unwillingness to pay on the part of the contractor or direct employees?
32. A taxicab company required its taxi drivers to make deposits to defray any deficiency which
the latter may incur in the remittance of their boundary and to cover car wash payments. Is
this requirement authorized under Article 114 of the Labor Code? Explain.
The requirement for deposit to defray any deficiency in the remittance of drivers
boundary is not lawful. Article 114, which provides the rule on deposits for loss or damage to
tools, materials or equipment supplied by the employer, does not apply to or permit such kind of
deposit.
But the requirement for deposit for car wash payments is lawful. There is no dispute that as
a matter of practice in the taxi industry, after a tour of duty, it is incumbent upon the driver to
NO. Nothing in Article 106 indicates that insolvency or unwillingness to pay by the
contractor or direct employer is a prerequisite for the joint and several liability of the principal or
indirect employer. This joint and several liability facilitates, if not guarantees, payment of the
workers performance of any work, task, job or project, thus giving the workers ample protection
as mandated by the 1987 Constitution (Development Bank of the Philippines vs. NLRC, June 17,
1994).
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restore the unit he has driven to the same clean condition when he took it out. Furthermore, the
amounts doled out were paid directly to the persons who washed the units. Finally, it will be noted
that there was nothing to prevent the drivers from cleaning the taxi units themselves, if they
wanted their car wash payments (Five J Taxi vs. NLRC, August 22, 1994).
33. Do disparity in wages between employees holding similar positions but located in different
regions of the country constitute wage distortion as contemplated by law? Explain.
NO. Varying in each region of the country are controlling facts, such as the cost of living,
supply and demand of basic goods, services and necessities; and the purchasing power of the peso.
The wages in different regions are not uniform. And the fact that a person is receiving more in one
region does not necessarily mean that he or she is better off than a person receiving less in another
region.
Wage distortion presupposes an increase in the compensation of the lower ranks in an
office hierarchy without a corresponding raise for higher-tiered employees in the same region of
the country, resulting in the elimination or the severe dimunition of the distinction between the
two groups (Prudential Bank Association vs. Prudential Bank and Trust Co., January 25, 1999).
34. Does a wage increase granted pursuant to a collective bargaining agreement constitute
compliance with a subsequently issued wage order?
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38. Can a maternity leave benefit be extended beyond the allowable PERIOD?
YES, a maternity leave may be extended beyond 60 days upon request of the woman
employee. Such request must be due to illness medically certified to arise out of her pregnancy,
delivery, complete abortion or miscarriage which renders her unfit to work. The extended leave
benefit shall be a hindrance to recover sickness benefit for the same period of 60 days for the same
childbirth, abortion or miscarriage.
39. What is the status of a woman permitted or suffered to work in any night club, bar, or
other similar establishment under the Labor Code?
Any woman who is permitted or suffered to work with or without compensation in any night
club, cocktail lounge, massage clinic, bar, or similar establishment shall be considered as an
employee of such establishment for purposes of labor and social legislation.
40. What other statutory benefits and services shall an employer provide the woman
employee?
The employer shall provide the following:
a. Free family planning services to employees and their spouses, if the establishment regularly
employ more than 200 workers;
b. Holiday pay during the period that the woman employee is receiving maternity or disability
benefits, equivalent to the same percentage as the benefit granted by SSS;
c. Flexible work schedule to any solo parent as defined in Republic Act No. 8972;
d. Parental leave of not more than seven days every year to the solo parent who has rendered
at least one-year service.
e. facilities for women such as seats, separate toilet rooms and nursery in the work place.
f. to determine the appropriate minimum age and other standards for retirement in special
occupations for women.
41. Who are considered young workers and working children?
Young workers are in different categories, namely:
a. The working youth who are between 15 and 30 years of age (Republic Act No. 8044);
b. Employed minors who are from 15 to below 18 years of age (Labor Code);
c. Working children who are below 15 years of age, subject to the exceptions specified by
Republic Act No. 7658;
d. Those engaged in Child Labor, which is prohibited by law.
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Child laborers are persons aged below 15, or from 15 to below 18 years, performing work or
service that is hazardous or deleterious in nature, or exploitative, or unsupervised by the childs
parent or guardian, or that interferes with normal development, or deprives that childs right to
health and education.
However, not all children who work are engaged in child labor. Work performed by any
person below 15 years of age is not considered child labor if it falls under allowable situations
under Republic Act No. 7658. Light work that is occasional, legal and respects the childs right to
health and education is not child labor.
50. You were asked by a paint manufacturing company about the possible employment as a
mixer of a person, aged seventeen (17), who shall be directly under the care of the section
supervisor. What advice would you give? Explain briefly.
I will advise the paint manufacturing company that it cannot hire a person aged seventeen
(17). Art. 139 (c) of the Labor Code provides that a person below eighteen (18) years of age shall
not be allowed to work in an undertaking which is hazardous or deleterious in nature as determined
by the Secretary of Labor. The Secretary of Labor has classified paint manufacturing as hazardous
work.
51. What are the benefits provided by law to young and deserving students who want to work?
Republic Act No. 7323 provides for employment assistance to students who are at least 15
but not more than 25 years of age enrolled or intending to be enrolled in any secondary, tertiary,
vocational or technological institutions. The qualified and deserving youth can be employed during
the summer and /or Christmas vacation as aid to the pursuit of their education.
As incentives for employers, they shall pay the students only 60% of the basic wage and the
remaining 40% in the form of educational vouchers payable by the government. An employer, under
this law, can be a national or local government office or a private establishment or undertaking.
52. Are SSS benefits considered property earned by the member during his lifetime? Do they
form part of his estate? Explain.
The benefits receivable under the SSS law are in 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. Such benefits cannot be considered as property earned by the member during his
lifetime. His contributions to the fund, it may be noted, constitute only an insignificant portion
thereof. Thus, the benefits are specifically declared not transferable and exempt from tax legal
processes and liens. Furthermore, in the settlement of claims, the procedure to be observed is
governed not by the general provisions of law, but by rules and regulations promulgated by the
Social Security Commission. And it is not the probate or regular court but the Commission that
determines the persons to whom the benefits are payable (Social Security System vs. Davac,
G.R. No. L-21642, July 30, 1966).
NO. The gravamen of the offense in sexual harassment is not the violation of the
employees sexuality but the abuse of power by the employer. Any employee, male or female, may
rightfully cry foul provided the claim is well substantiated. Strictly speaking there is not time
period within which he or she is expected to complain through the proper channels. The time to do
so may vary depending upon the needs, circumstances, and more importantly, the emotional
threshold of the employee (Philippine Aeolus Automotive United Corp. vs. NLRC, G.R. No.
124617, April 28, 2000).
54. The owners of FALCON Factory, a company engaged in the assembling of automotive
components, decided to have their building renovated. Fifty (50) persons, composed of
engineers, architects and other construction workers, were hired by the company for this
53. Does the delay on the part of the victim of sexual harassment to complain said act impair
his cause of action against his/her employer?
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purpose. The work is estimated to be completed in three (3) years. The employees contended
that since the work would be completed after more than one (1) year, they should be subject
to compulsory coverage under the Social Security Law. Is their contention correct?
NO. Under Section 8 (j) of RA 1161, as amended, employment of purely casual employees,
not for the purpose of the occupation or business of the employer are excepted from compulsory
coverage.
An employment is purely casual if it is not for the purpose of occupation or business of the
employer.
In the problem given, Falcon Factory is a company engaged in the assembling of automotive
components. The fifty (50) persons (engineers, architects and construction workers) were hired by
Falcon Factory to renovate its building. The work to be performed by these fifty (50) people is not
in connection with the purpose of the business of the factory. Hence, the employment of these
fifty (50) persons is purely casual. They are therefore excepted from the compulsory coverage of
the SSS law.
LABOR RELATIONS
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55. PICOP's main thesis is that the positions Section Heads and Supervisors, who have been
designated as Section Managers and Unit Managers, as the case may be, were converted to
managerial employees under the decentralization and reorganization program it implemented
in 1989. Being managerial employees, with alleged authority to hire and fire employees, they
are ineligible for union membership under Article 245 of the Labor Code. Furthermore, PICOP
contends that no malice should be imputed against it for implementing its decentralization
program only after the petition for certification election was filed inasmuch as the same is a
valid exercise of its management prerogative, and that said program has long been in the
drawing boards of the company, which was realized only in 1989 and fully implemented in
1991. PICOP emphatically stresses that it could not have conceptualized the decentralization
program only for the purpose of "thwarting the right of the concerned employees to selforganization." Is PICOPs contention tenable?
NO. The petition not being meritorious, must fail and the same should be as it is hereby
dismissed. In United Pepsi-Cola Supervisory Union (UPSU) v. Laguesma, we had occasion to
elucidate on the term "managerial employees." Managerial employees are ranked as Top Managers,
Middle Managers and First Line Managers. Top and Middle Managers have the authority to devise,
implement and control strategic and operational policies while the task of First-Line Managers is
simply to ensure that such policies are carried out by the rank-and- file employees of an
organization. Under this distinction, "managerial employees" therefore fall in two (2) categories,
namely, the "managers" per se composed of Top and Middle Managers, and the "supervisors"
composed of First-Line Managers. Thus, the mere fact that an employee is designated manager"
does not ipso facto make him one. Designation should be reconciled with the actual job description
of the employee, for it is the job description that determines the nature of employment (PICOP vs.
Laguesma, G.R. No. 101738, April 12, 2000).
56. Do labor arbiters have jurisdiction over illegal dismissal cases that may be filed against
priests and ministers?
YES. The fact that a case involves the church and its religious minister does not ipso facto
give the case a religious significance. Simply stated, what is involved in an illegal dismissal case is
the relationship of the church as an employer and the minister as an employeea purely secular
matter not related to the practice of faith, worship, or doctrines of the church (Austria vs. NLRC,
G.R. No. 124382, August 16, 1999).
57. Do Labor Arbiters or the NLRC have jurisdiction over criminal cases involving violations of
the penal provisions of labor laws? Explain.
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60. Does the Labor Arbiter have jurisdiction over disputes involving the wages and terms and
conditions of employment of COOPERATIVE employees? Explain.
YES. In the case of Perpetual Help Credit Coop Inc. vs. Faburada, G.R. No. 121498,
October 8, 2001 it was clarified that:
ART. 121. Settlement of Disputes. Disputes among members, officers, directors,
and committee members, and intra-cooperative disputes shall, as far as practicable, be
settled amicably in accordance with the conciliation or mediation mechanisms embodied in
Under this principle, a party to a labor case is estopped from raising the issue of
jurisdiction of the labor arbiter when he has participated in the proceedings from start to finish. In
this case the petitioner bank actively participated in the proceedings before the Labor Arbiter,
NLRC and Court of Appeals. It was only when the Court of Appeals made an adverse decision did it
raise the issue of jurisdiction. The Supreme Court held that it was already too late to raise the
issue of jurisdiction as the petitioner was already in estoppel. While it is true that jurisdiction over
the subject matter of a case may be raised at any time of the proceedings, this rule presupposes
that laches or estoppel has not supervened.
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c.
This also holds true for confidential employees such as accounting personnel, radio and
telegraph operators, who having access to confidential information, may become the source of
undue advantage. Said employee(s) may act as a spy (ies) of either party to a collective bargaining
agreement. This is especially true in the present case where the petitioning Union is already the
bargaining agent of the rank-and-file employees in the establishment. To allow confidential
employees to join the existing Union of the rank-and file would be in violation of the terms of the
Collective Bargaining Agreement wherein this kind of employees by the nature of their
functions/positions are expressly excluded. (Philips vs. NLRC, G.R. No. 88957, June 25, 1992).
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The Labor Code, as amended, recognizes the validity of a union shop agreement in Article
248 thereof, Section (e) provides, to wit:
to discriminate in regard to hire or tenure of employment or any term or condition
of employment in order to encourage or discourage membership in any labor organization.
Nothing in this Code or in any other law shall prevent the parties from requiring
membership in a recognized collective bargaining agent as a condition for employment,
except of those employees who are already members of another union at the time of the
signing of the collective bargaining agreement.
We affirm the ruling of the voluntary arbitrator for the inclusion of a union shop provision
in addition to the existing maintenance of membership clause in the collective bargaining
agreement. As the Solicitor General asserted in his consolidated Comment, the University's reliance
on the case of Victoriano vs. Elizalde Rope Workers' Union is clearly misplaced. In that case, we
ruled that "...the right to join a union includes the right to abstain from joining any union. The
right to refrain from joining labor organizations recognized by Section 3 of the Industrial Peace Act
is, however, limited. The legal protection granted to such right to refrain from joining is withdrawn
by operation of law, where a labor union and an employer have agreed on a closed shop, by virtue
of which the employer may employ only members of the collective bargaining union, and the
employees must continue to be members of the union for the duration of the contract in order to
keep their jobs (DLSU vs. Laguesma, G.R.No. 109002, 12 April 2000).
71. Union X, a local/chapter of Y Federation moved to disaffiliate from the latter. The move
was supported by almost all of its members. During the pendency of the disaffiliation
proceeding, the company entered into a collective bargaining agreement with Union X. Y
federation filed an action for ULP against the company. Decide.
If the local unions move to disaffiliate is supported by almost all [majority] the members
of said union, and such fact is not disputed by the federation [mother union], the companys act of
entering into a CBA with the local union does not constitute ULP.
As held in the case of Philippine Skylanders vs. NLRC, G.R. No. 127374, January 31,
2002, as PSEA has validly severed itself from PAFLU, there would be no restrictions which could
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In the case of New Pacific Timber vs. NLRC, the court had the occasion to rule that Article
253 and 253-A mandate the parties to keep the status quo and to continue in full force and effect
the terms and conditions of the existing agreement during the 60-day period prior to the expiration
of the old CBHA and/or until a new agreement is reached by the parties. Consequently, the
automatic renewal clause provided by the law, which is deemed incorporated in all CBAs provides
the reason why the new CBA can only be given a prospective effect. Thus, employees hired after
the stipulated term of a CBA are entitled to the benefits provided thereunder. To exclude them
would constitute undue discrimination and deprive them of monetary benefits they would
otherwise be entitled to under a new collective bargaining contract to which they would have been
parties.
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76. Which is the better barometer of the true financial standing of a company for purposes of
resolving an economic deadlock in collective bargaining, a proposed budget or an audited
financial statement. Explain.
As we ruled in the case of Caltex Refinery Employees Association (CREA) vs. Jose S.
Brillantes, (279 SCRA 218, 1997) [w]e believe that the standard proof of a company's financial
standing is its financial statements duly audited by independent and credible external auditors."
Financial statements audited by independent external auditors constitute the normal method of
proof of profit and loss performance of a company. The financial capability of a company cannot be
based on its proposed budget because a proposed budget does not reflect the true financial
condition of a company, unlike audited financial statements, and more importantly, the use of a
proposed budget as proof of a company's financial condition would be susceptible to abuse by
scheming employers who might be merely feigning dire financial condition in their business
ventures in order to avoid granting salary increases and fringe benefits to their employees.
77. What is the controlling doctrine on the issue of RETROACTIVITY of CBA benefits? Explain.
May the Secretary of Labor order the retroactivity of a CBA?
Labor laws are silent as to when an arbitral award in a labor dispute where the Secretary
had assumed jurisdiction by virtue of Article 263 (g) of the Labor Code shall retroact. In general, a
CBA negotiated within six months after the expiration of the existing CBA retroacts to the day
immediately following such date and if agreed thereafter, the effectivity depends on the
agreement of the parties. On the other hand, the law is silent as to the retroactivity of a CBA
arbitral award or that granted not by virtue of the mutual agreement of the parties but by
intervention of the government. Despite the silence of the law, the Court rules herein that CBA
arbitral awards granted after six months from the expiration of the last CBA shall retroact to such
time agreed upon by both employer and the employees or their union. Absent such an agreement as
to retroactivity, the award shall retroact to the first day after the six-month period following the
expiration of the last day of the CBA should there be one. In the absence of a CBA, the Secretary's
determination of the date of retroactivity as part of his discretionary powers over arbitral awards
shall control (MERALCO v. Quisumbing, G.R. No. 127598, February 22, 2000).
Law
78. May the Labor Unions and the Company enter into a CBA that grants a moratorium of ten
years in collective bargaining? Is this not a novation of the unions right to collective
bargaining? Explain.
On the second issue, petitioners contend that the controverted PAL-PALEA agreement is
void because it abrogated the right of workers to self-organization and their right to collective
bargaining. Petitioners claim that the agreement was not meant merely to suspend the existing
PAL-PALEA CBA, which expires on September 30, 2000, but also to foreclose any renegotiation or
any possibility to forge a new CBA for a decade or up to 2008. It violates the protection to labor
policy laid down by the Constitution.
Under Article 253-A of the Labor Code insofar as representation is concerned, a CBA has a
term of five years, while the other provisions, except for representation, may be negotiated not
later than three years after the execution. Petitioners submit that a 10-year CBA suspension is
inordinately long, way beyond the maximum statutory life of a CBA, provided for in Article 253-A.
By agreeing to a 10-year suspension, PALEA, in effect, abdicated the workers constitutional right
to bargain for another CBA at the mandated time. We find the argument devoid of merit (Rivera v.
Espiritu, G.R. No. 135547, January 23, 2002).
79. Is there a conflict between a CBA that grants a 10-year moratorium on CBA bargaining on
one hand, and Art. 253-A of the Labor Code, on the other? Explain.
The assailed PAL-PALEA agreement was the result of voluntary collective bargaining
negotiations undertaken in the light of the severe financial situation faced by the employer, with
the peculiar and unique intention of not merely promoting industrial peace at PAL, but preventing
the latters closure. We find no conflict between said agreement and Article 253-A of the Labor
Code. Article 253-A has a two-fold purpose. One is to promote industrial stability and
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Direct Certification
Certification
Election
Consent Election
81. Can the Bureau of Labor Relations certify a union as the exclusive bargaining
representative after showing proof of majority representation through union membership cards
without conducting an election?
NO. The Bureau of Labor Relations cannot certify a union as the exclusive collective
bargaining representative after a showing of proof of majority representation through union
membership cards without conducting a certification election. The Labor Code (in Arts. 256 and
258) provides only for a certification election as the mode for determining exclusive collective
bargaining representative if there is a question on representation in an appropriate bargaining unit.
Where a petition for certification election had been filed and upon the intercession of the
med-arbiter, the parties agree to hold a consent election, the result thereof shall constitute a bar
to the holding of a certification election for one year from the holding of such consent election.
However, where the total number of valid votes cast in a consent election is less than the majority
of all the eligible employees in the bargaining unit, there shall be a failure of election. Such failure
will not bar the filing of a petition for the immediate holding of a certification election. Where no
petition for certification election had been filed but the parties themselves have agreed to hold a
consent election, the result thereof shall not constitute a bar to another certification election,
unless the winning union had been extended voluntary recognition.
83. Union X, a legitimate labor organization filed a petition for certification election during the
freedom period. Union Y, another union in the same company, moved to dismiss the same
82. When is consent election a bar to a petition for certification election? When is it not a bar?
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alleging among others that Union X is composed of not only rank and file employees, but also of
supervisory employees, who under the law, may not join a labor organization composed of rank
and file employees. What is the effect of such allegation upon the petition for certification
election?
There is no effect. After a certificate of registration is issued to a union, its legal
personality cannot be subject to a collateral attack. It may be questioned only in an independent
petition for cancellation in accordance with Section 5 of Rule V, Book IV of the Implementing Rules
of the Labor Code (Tagaytay Highlands International Gold Club, Inc. vs. Tagaytay Highlands
Employees Union-PTGWO GR No. 142000 January 22, 2003). Having attained such status, the
petition of the union stands unless the registration of the union is cancelled in accordance with the
aforementioned rule.
The infirmity in the membership of the respondent union can be remedied in the preelection conference thru the exclusion-inclusion proceedings.
Furthermore, the status of being a supervisory employee does not by itself disqualify an
employee from joining a labor organization composed of rank and file employee. A supervisory
employee to be disqualified must possess the powers similar to that of a managerial employee such
as the complete discretion to decide on matters without being under the control of or subject to
the review of some other superior.
84. May an employee who was improperly laid off be entitled to vote in a certification election?
YES. The employees who have been improperly laid off but who have a present,
unabandoned right to an expectation of reemployment, are eligible to vote in certification
election. Thus, if the dismissal is under question, whereby a case of illegal dismissal and/ or ULP
was filed, the employees could and should still qualify to vote. (Phil Fruits & Vegetables
Industries, Inc. vs. Torres)
85. Does a decision in a certification election case regarding the existence of an employeremployee relationship foreclose all further disputes between the parties as to the existence or
non-existence of such relationship?
Law
NO. However final it may become, the decision in a certification election case, by the very
nature of such proceeding, is not such as to foreclose all further dispute as to the existence, or
non-existence of an employer-employee relationship.
It is established doctrine that for res adjudicata to apply, the following requisites must
concur: (1) the former judgment or order must be final; (2) the court which rendered said
judgment or order must have jurisdiction over the subject matter and the parties; (3) said
judgment or order must be on the merits; and (4) there must be between the first and second
actions identity of parties, subject matter and cause of action.
Clearly, implicit in these requisites is that the action or proceedings in which is issued the
prior Judgment that would operate in bar of a subsequent action between the same parties for
the same cause, be adversarial, or contentious, as distinguished from an ex parte hearing or
proceeding of which the party seeking relief has given legal notice to the other party and afforded
the latter an opportunity to contest it, and a certification case is not such a proceeding.
A certification proceeding is not a litigation in the sense in which this term is commonly
understood, but a mere investigation of a non-adversary, fact-finding character, in which the
investigating agency plays the part of a disinterested investigator seeking merely to ascertain the
desires of the employees as to the matter of their representation. The court enjoys a wide
discretion in determining the procedure necessary to insure the fair and free choice of bargaining
representatives by the employees (Sandoval Shipyards vs. Prisco Pepito, G.R. No. 143428, June
25, 2001).
86. What is the statutory policy on certification elections? How does the law treat
managements attempts to thwart initiatives to hold certification election?
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92. What is the legal implication of defying the RETURN TO WORK ORDER in a strike case which
is under assumption of jurisdiction?
In the case of Telefunken Semiconductors Employees Union FFW v. CA, G.R. No.
143013-14, December 18, 2000, the Supreme Court held that the strike of the Union cannot be
viewed as anything but illegal for having been staged in open and knowing defiance of the
assumption and return-to-work orders. The necessary consequence thereof are also detailed by the
Supreme Court in its various rulings. In Marcopper Mining Corp. v. Brillantes (254 SCRA 595), the
High Tribunal stated in no uncertain terms that -
YES. The Supreme Court said so in the case of Samahan ng Manggagawa sa Moldex v.
NLRC, G.R. No. 119467, February 1, 2000. It has been shown that the results of the strike-vote
were never forwarded to the NCMB, as admitted by petitioners themselves and as attested to by a
Certification of Non-Submission of Strike Vote issued by the NCMB. There is thus no need for
additional evidence on the matter, as it would not change the fact that the results of the strikevote were not submitted to the NCMB. Without the submission of the results of the strike-vote, the
strike was illegal, pursuant to Article 264 of the Labor Code
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Constructive retrenchment
An employee whose number of working days was reduced to just two (2) days a week due
to the financial losses suffered by the employers business, and who was rotated in such a way that
the number of working days had been substantially reduced for more than six months, and
considering further that the business was ultimately closed and sold off, the Supreme Court upheld
the ruling of the NLRC that the employee was thereby constructively dismissed or retrenched from
employment (International Hardware, Inc. vs. NLRC, et. al., G.R. No. 80770, August 10, 1989).
Similarly, in Wiltshire File Co., Inc. v. NLRC petitioner company effected some changes in
its organization by abolishing the position of Sales Manager and simply adding the duties previously
discharged by it to the duties of the General Manager to whom the Sales Manager used to report. In
that case, we held that the characterization of private respondents services as no longer necessary
or sustainable, and therefore properly terminable, was an exercise of business judgment on the
part of petitioner company. The wisdom or soundness of such characterization or decision is not
subject to discretionary review on the part of the Labor Arbiter or of the NLRC so long as no
violation of law or arbitrary and malicious action is indicated (Ismael Santos v. CA, G.R. No.
141947, July 5, 1997).
95. What are the guidelines for the correct interpretation of the DOCTRINE OF LOSS OF
CONFIDENCE? Explain.
The Court, however, is cognizant of the fact that in numerous dismissal cases, loss of trust
and confidence has been indiscriminately used by employers to justify almost every instance of
termination and as a defense against claims of arbitrary dismissal. In the case of General Bank and
Trust Company vs. Court of Appeals, 135 SCRA 569 the Court came up with the following
guidelines for the application of the doctrine of loss of confidence:
Law
94. Is it within the jurisdiction of the Labor Arbiter or the NLRC to pass judgment on the
soundness of the management decision to declare that a position is no longer necessary? Why?
and
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Backwages is the relief given to an employee to compensate him for lost earnings during
the period of his dismissal.
Unpaid Wages are wages earned prior to the illegal dismissal but are not yet paid to the
employee.
b.What economic components constitute backwages for a rank and file employee? Are
these components equally applicable to a managerial employee?
The Labor Code (Art. 279) provides that an employee who is unjustly dismissed from work
is entitled to reinstatement and also to his full backwages, inclusive of allowances, and to his other
benefits or their monetary equivalent computed from the time his compensation was withheld from
him up to his actual reinstatement.
An employee is entitled to all the above benefit regardless if he is a rank and file employee
or a managerial employee. However, backwages may also include the 13th month pay which is paid
to rank and file employees, as well as benefits arising from the CBA given only to the employees in
Separation Pay is monetary amount intended to provide the employee money during the
period in which he will be looking for another employment.
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the bargaining unit. Managerial employees cannot be given the same since they are ineligible to
join the labor organization.
100. Does Republic Act No. 7641, the Retirement Law, apply to employees covered with a valid
retirement plan? Can it be given a retroactive effect?
Yes. The said law intends to give the minimum retirement benefits to employees not
entitled thereto under collective bargaining and other agreements. Its coverage applies to
establishments with existing collective bargaining, or other agreements or voluntary retirement
plans whose benefits are less than those prescribed under the proviso in question.
The said law is a curative social legislation, which, by their nature, may be given
retroactive effect, unless it will impair vested rights. It has a retroactive effect to include in its
coverage the employees services to an employer rendered prior to its effectivity. It applies to
employees in the employee of employers at the time the law took effect and who are eligible to
benefits under that statute (MLQU vs. NLRC, G.R. No. 141673, October 17, 2001).
Law
Suggested Answer:
Yes. The State is bound under the Constitution to afford full protection to Labor; and when
conflicting interests collide and they are to be weighed on the scales of social justice, the law
should accord more sympathy and compassion to the less privileged working man (Fuentes v.
NLRC, 266 SCRA 24, 1997). However, it should be borne in mind that social justice ceases to be an
effective instrument for the equalization of the social and economic forces by the State when it
is used to shield wrongdoing (Corazan Jamer v. NLRC, 278 SCRA 632, 1997).
Alternative Answer:
No. Social justice as a guiding principle in law may not be used by the courts if it collides
with the equal protection clause of the Constitution. Social justice is not a magic wand applicable
in all circumstances. Not all labor cases may be automatically decided in favor of the worker.
Management also has rights which are entitled to recognition and protection; justice must be
dispensed according to facts and the law; and social justice is not designed to destroy or oppress
the employer.
Another Alternative Answer:
Social justice as a guiding principle in Labor Law can be implemented side by side with the
equal protection clause of the Constitution.
In the implementation of the principle of social justice, the Constitution commands that
the State shall afford full protection to labor. Thus, Labor Law may be pro-labor in the sense that
labor is given certain benefits not given to management. But this is not necessarily violative of the
equal protection clause of the Constitution because said clause allows reasonable classification.
TOPIC: CONSTITUTIONAL PROVISIONS RELATED TO LABOR LAW
What are the salient features of the protection to labor provision of the Constitution?
The salient features of the protection to labor provisions of the Constitution (Article XIII,
Section 3) are as follows:
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1. LABOR STANDARDS
TOPIC: EMPLOYER-EMPLOYEE RELATIONSHIP
SUMMARY OF THE RULE: What determines employer-employee relationship is the power of the
employer to control the employee regarding the manner of how the work should be done.
A labor federation organized ZaCSI and filed a petition for a consent election. The boys,
sympathizing with the workers, joined the union. At the pre-election conference, the lawyer
for ZaCSI moved to exclude the boys as voters.
As Med-Arbiter handling the case, rule on the objection. Would you ruling be different if in this
case, ZaCSI provided the boys with the shoe shine boxes and their contents? Explain.
Zapato Custom-made make shoes to customer specifications and repaired them. As a service to
customers, a shoe shine stand was operated on its premises. There were 10 shoe shine boys at
the stand. They owned their shoe shine boxes with cleaning agent polish, brushes, and rags.
Walk-in customers willing to wait were led by the shoe shine boys to a seat at the stand where
he waited while the boy asked the customer to pay to the receptionist. Customers not willing
to wait left the shoes with the stands receptionist who gave a receipt with the price for the
service and pick-up date and time indicated. The boys were free to get shoes to be shined for
the receptionist when there were no waiting walk-ins. For each pair shined, the boys got
markers corresponding to the price for their service. ZaCSIs staff did not interfere with, nor
supervise, how the boys went about their tasks. At days end, the markers held by each boy
were tallied and paid for. The boys signed a receipt to acknowledge full payment for work
done.
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As Med-arbiter, I will rule that the shoe shine boys should be excluded as voters in the
consent election. The shoe shine boys are not employees of ZaCSI and thus could not be considered
as employees belonging to bargaining unit who will designate or select a bargaining representative.
They are not employees of ZaCSI because according to the given facts, they are not under the
control of ZaCSI which is an essential element for the existence of employer-employee relationship.
In the statement of facts, it is said that ZaCSIs staff did not interfere with, nor supervise how the
boys went about their task.
My ruling will not be different even if ZaCSI provided the boys with the shoe shine boxes
and their contents. ZaCSI, by this act, is not yet exercising control that is determinative of the
existence or non-existence of control over them. It is the existence of employer-employee
relationship.
TOPIC: MANAGEMENT PREROGATIVE
SUMMARY OF THE RULE: The management has the right to use its discretion and judgment in the
determination of policies regarding the aspects of employment. Contracting out services or
functions being performed by union members becomes illegal only when it interferes with, restrains
or coerces employees in the exercise of their right to self-organization.
Harbor View Hotel has an existing Collective Bargaining Agreement (CBA) with the union of
rank-and-file employees consisting, among others, of bartenders, waiters, roomboys, housemen
and stewards. During the lifetime of the CBA, Harbor View Hotel, for reasons of economy and
efficiency, decided to abolish the position of housemen and stewards who do the cleaning of
the hotels public areas. Over the protest of the Union, the Hotel contracted out the
aforementioned job to the City Service Janitorial Company, a bonafide independent contractor
which has a substantial capital in the form of janitorial tools, equipments, machineries and
competent manpower.
Law
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(b) Distinguish the liabilities of an employer who engages the services of a bona_fide
independent contractor from one who engages a labor-only contractor?
A person who engages the services of a bona_fide independent contractor for the
performance of any work, task, job or project is the indirect employer of the employees who have
been hired by the independent contractor to perform said work, task, job or project.
In the event that the independent contractor fails to pay the wages of his employees, an
indirect employer, in the same manner and extent that he is liable to employees directly employed
by him, is jointly and severally liable with the independent contractor to the employees of the
latter to the extent of the work performed under the contract.
As for the person who engages the services of a labor only contractor, the latter is
considered merely as an agent of the former who shall be responsible to the workers hired by the
labor only contractor in the same manner and extent as if the directly employed such workers.
ALTERNATIVE ANSWER:
An employer who engages the services of a bona fide independent contractor is solidarily
liable with his contractor or sub-contractor only for non-payment or under-payment of wages and
other labor standards provisions of the Labor Code, whereas an employer that it normally grants to
its regular or direct employees.
An employer who deals with a bona-fide independent contractor shall only be subsidiary
liable, if the contractor or sub-contractor fails to pay the wages to the workers in accordance with
the Labor Code.
Upon the other hand, an employer who deals with a labor-only contractor shall be
primarily responsible to the workers in the same manner and extent as if the latter were directly
employed by him. (Art 106-107, Labor Code)
(c) Distinguish between an award for back wages and an award for unpaid wages.
ALTERNATIVE ANSWER:
An award of backwages is given to an employee who is unjustly dismissed. On the other
hand, an award of unpaid wages is given to an employee who has not been paid his salaries or
wages for services actually rendered. The cause of action here is non-payment of wages or salaries.
(General Baptist Bible College vs. NLRC 219 SCRA 549).
TOPIC: OVERTIME PAY
An award for backwages is to compensate an employee who has been illegally dismissed,
for the wages, allowances and other benefits or their monetary equivalent, which said employee
did not receive from the time he was illegally dismissed up to the time of his actual reinstatement.
On the other hand, an award for unpaid wages is for an employee who has actually worked
but has not been paid the wages he is entitled to receive for such work done. (Arts. 279 and 97 (F),
Labor Code).
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SUMMARY OF THE RULE: Undertime work on any particular day shall not be offset by overtime
work on any other day.
Danilo 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 overtime
as he would have to drive for the companys executives even beyond the ordinary eight-hour
work day. He was provided with a contract of employment wherein he would be paid a monthly
rate equivalent to 35 times his daily wage, regular sick and vacation leaves, 5 day-leave with
pay every month and time off with pay when the companys executives using the cars do not
need Danilos service for more than eight hours a day, in lieu of overtime.
Are the above provisions of the contract of employment in conformity with, or violative of, the
law?
Except for the provision that Danilo shall have time off with pay when the companys
executives using the cars do not need Danilos service for more than eight hours a day, in lieu of
overtime, the provisions of the contract of employment of Danilo are not violative of any labor law
because the instead improve upon the present provisions of pertinent labor laws. Thus, the monthly
rate equivalent to 35 times the daily wage may be sufficient to include overtime pay.
There is no labor law requiring the payment of sick and vacation leaves except for a fiveday service incentive leave in the Labor Code.
The five-day leave with pay every month has no counterpart in Labor Law and is very
generous.
As for the provision in Danilos contract of employment that he shall receive time off with
pay in lieu of overtime, this violates the provision of the Labor Code which states that undertime
work on any particular day shall not be offset by overtime work on any other day. Permission given
to the employer to go on leave on some other day of the week shall not exempt the employer from
paying additional compensation required by the Labor Code.
Law
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ALTERNATIVE ANSWER:
The claim of Engineer A is not correct. The fact that he has been working for
Construction Group for a total of ten (10) years does not make him a regular employee when it is
very clear from the Contracts of Employment that he signed that he has always been engaged as a
project employee.
The tenure of project employee is co-terminus with the project in connection with which
his services were engaged. Thus, after the end of the project, the employer-employee relationship
ceases to exist. Such project employee has no legal rights to insist that the Construction Group for
a subsequent project of said Group should employ him.
TOPIC: HOURS WORKED
In all the five (5) successive contracts of employment of Engineer A the name of the
project, its duration, and the temporary project nature of the engagement of his services are
clearly stated; hence, Engineer A falls within the exemption of Art. 280.
The fact that the petitioners worked for several projects of private respondent company is
no basis to consider them as regular employees. By the very nature of their employees business,
they will always remain project employees regardless of the number of projects in which they have
worked (Manansag v. NLRC, 218 SCRA 722, 1993)
Project employees are not considered regular employees, their services, being needed only
when there are projects to be undertaken. The rationale for this rule is that if a project has
already been completed, it would be unjust to require the employer to maintain them in the
payroll while they are doing absolutely nothing except waiting for another project (De Ocampo v.
NLRC, 186 SCRA 361, 1990).
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SUMMARY OF RULE: An employee who is required to remain on call in the employers premises or
so close thereto that he cannot use the time effectively and gainfully for his own purpose shall be
considered as working while on call.
An employee who is not required to leave word at his home or with company officials where
he may be reached is not working while on call.
Lito Kulangkulang and Bong Urongsulong are employed as truck drivers of Line Movers, Inc.
Usually, Lito is required by the personnel manager to just stay at the head office after office
hours because he could be called to drive the trucks. While at the head office, Lito merely
waits in the managers reception room. On the other hand, Bong is allowed to go home after
office hours but is required to keep his cellular phone on so that he could be contacted
whenever his services as driver become necessary.
Would the hours that Lito and Bong are on call be considered compensable working hours?
The hours of Lito and Bong while on call can be considered compensable hours. The
applicable rule is: An employee who is required to remain on call in the employers premises or so
close thereto that he cannot use the time effectively and gainfully for his own purpose shall be
considered as working while on call. An employee who is not required to leave word at his home or
with company officials where he may be reached is not working while on call. Here Bong is
required to stay at the office after office hours so he could be called to drive the trucks of the
Company. As for Bong, he is required to keep his cellular phone so that he could be contacted
whenever his services as driver as needed. Thus, the waiting time of Lito and Bong should be
considered as compensable hours.
Note: It could be argued that in the case of Bong who is not required to stay in the
office but is allowed to go home, if he is not actually asked by cellular phone to report to the
office to drive a car, he can use his time effectively and gainfully to his own purpose, thus,
the time that he is at home may mean that they are not compensable hours.
Law
(a)
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The 1987 Constitution enunciates in Article II as one of the state policies that the State
shall promote comprehensive rural development and agrarian reform.
In Article XII of the Constitution, in dealing with the national economy and patrimony, it is
also stated that the State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform.
Then in Article XIII of the Constitution, in dealing with social justice and human rights,
there is this provision, among others: the state shall, by law, undertake an agrarian reform
program founded on the right of framers and regular farm workers, who are landless, to own
directly or workers, to receive a just share of the fruits thereof. To this end, the state shall
encourage and undertake the just distribution of all agricultural lands, subject to such priorities
and reasonable retention limits as the congress may prescribe, taking into account ecological,
developmental, or equity considerations, and subject to the payment of just compensation. In
determining the retention limits, the state shall respect the right of small landowners. The state
shall further provide incentives for voluntary landsharing.
Taken together, the above provisions could be considered as the foundation of the agrarian
reform program.
Under the Comprehensive Agrarian Reform Law, the lands covered by the CARP shall be
distributed as much as possible to landless residents of the same barangay, or in the absence
thereof, landless residents of the same municipality in the following order of priority:
1. agricultutral lessees and share tenants;
2. regular farmworkers;
3. seasonal farmworkers;
4. other farmworkers;
5. actual tillers or occupants of public lands;
6. collectives or cooperatives of the above beneficiaries; and
7. others directly working on the land.
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The children of landowners, who are qualified to be awardees of not more than three
hectares, shall be given preference in the distribution of the land of their parents. Actual tenant
tillers in the landholding shall not be ejected or removed therefrom.
Beneficiaries under PD 27 who have culpably sold, disposed of or abandoned their land are
disqualified to became beneficiaries under the CARP.
A basic qualification of a beneficiary shall be his willingness aptitude and ability to
cultivate and make the land as productive as possible. The DAR shall adopt a system of monitoring
the record or performance of each beneficiary, so that any beneficiary guilty of negligence or
misuse of the land or any support extended to him shall forfeit his right to continue as such
beneficiary. The DAR shall submit periodic reports on the performance of the beneficiaries to the
CARP.
If, due to the landowners retention rights or to the number o tenants, lessees, or workers
on the land, there is not enough land to accommodate any or some of them, they may be granted
ownership of other lands available for distribution under the CARL, at the option of the
beneficiaries.
Farmers already in place and those not accommodated in the distribution of privately
owned lands will be given preferential rights in the distributions of lands from the public domain.
Law
1.b. Distinguish just compensation under the CARL of 1988 form just compensation under the
Bill of rights? How it is determined under the former?
In the Bill of Rights it is provided that private property shall not be taken for public use
without just compensation.
In the provisions of the 1987 constitution on agrarian reform, it is provided that in the just
distribution of all agricultural lands, the same shall be subject, among others, to the payment of
just compensation.
The concepts of just compensation in the Bill of Rights and in agrarian reform are similar in
the sense that in both situations, the person who is deprived of his property should be given the fir
and full equivalent value of the property that is taken from him. In both situations, ultimately, it is
the courts, which may determine ultimately just compensation.
Under the CARL, however, the Land Bank of the Philippines shall compensate the
landowner in such amount as may agreed upon by the landowner and the Department of Agrarian
Reform and the Land Bank of the Philippines.
Also, under the CARL, compensation could be in cash and in government financial instruments
like Land Bank of the Philippines bonds. At the option of the landowner, the compensation may be
in shares of stock in government owned and controlled corporations, or in tax credits. The CARL
provides that in determining just compensation, the cost of acquisition of the land the current
value of like properties, its nature, actual use of income, the sworn valuation by the owner, the tax
declarations, and the assessment made by the government assessors shall be considered. The social
and economic benefits contributed by the farmers and the farm-owners and by the government to
the property as well as the non-payment of taxes or loans secured from any government financing
institution on the said land shall be considered as additional factors to determine its valuation.
TOPIC: LABOR STANDARDS; CONDITIONS OF EMPLOYMENT. LABOR RELATIONS; ILLEGAL
DISMISSAL.
SUMMARY OF THE RULE: Any woman who is permitted or suffered to work, with or without
compensation in any nightclub, cocktail lounge, massage clinic, bar or other similar establishment,
under the effective control and supervision of the employer for a substantial period of time as
determined by the Secretary of Labor shall be considered as an employee of such establishment for
purposes of labor and social legislation.
Pregnancy is not a valid cause for dismissal because, as provided under the Code, it shall be
unlawful for an employer to discharge a woman employee on account of her pregnancy.
Club Paris is an entertainment entity that operates a night club along Roxas Boulevard. The
club provides food and drinks which are served by women who are dressed like Playboy
Bunnies. In the employment contract of each woman, the ff. provisions appear:
Compensation -- All tips, commissions and other forms of payment received from
customers minus 10%
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2. LABOR RELATIONS
TOPIC: ASSUMPTION ORDER
In a labor dispute, the Secretary of Labor issued an Assumption Order. Give the legal
implications of such an order.
Under Art. 263(g) of the Labor Code, such assumption shall have the effect of automatically
enjoining the intended or impending strike or lockout as specified in the assumption order. If one
had already taken place at the time of assumption, all striking or lockout employees shall
immediately return to work and the employer shall immediately resume operations and re-admit all
workers under the same terms and conditions prevailing before the strike or lockout. The Secretary
of Labor and Employment may seek the assistance of law enforcement agencies to ensure
compliance with this provision as well as he may issue to enforce the same. The mere issuance of
an assumption order by the Secretary of Labor automatically carries with it a return to work order,
even if the directive to return to work is not expressly stated in the assumption order. Those who
violate the foregoing shall be subject to disciplinary action or even criminal prosecution.
Under Art. 264 of the Labor Code, no strike or lockout shall be declared after the
assumption of jurisdiction by the Secretary.
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In the meantime, a power-struggle occurred within the national union PAFLU between its
National President, Manny Pakyao, and its National Secretary General, Gabriel Miro. The
representation issue within PAFLU is pending resolution before the Office of the Secretary of
Labor.
By reason of this intra-union dispute within PAFLU, J&J obstinately and consistently refused to
offer any counter-proposal and to bargain collectively with JEU-PAFLU until the representation
issue within PAFLU shall have been resolved with finality. JEU-PAFLU filed a Notice of Strike.
The Secretary of Labor subsequently assumed jurisdiction over the labor dispute.
Can the Secretary of Labor decide the labor dispute by awarding the JEU CBA Proposals as the
Collective Bargaining Agreement of the parties? Explain briefly.
Yes. The Secretary of Labor can decide the labor dispute by awarding the JEU CBA proposals as the
Collective Bargaining Agreement of the parties because when the Secretary of Labor (Article 263
[g]) assumes jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an
industry indispensable to the national interest, the Secretary of Labor exercises the power of
compulsory arbitration over the labor dispute, meaning, that as an exception to the general rule,
the Secretary of Labor now has the power to set or fix wages, rates of pay, hours of work or terms
and conditions of employment by determining what should be the CBA of the parties (Divine Word
University vs. Secretary of Labor, 213 SCRA 759).
Law
ALTERNATIVE ANSWER:
No. What is involved in the case in question is a corporation engaged in the
manufacturing of consumer products. If the consumer products that are being manufactured
are not such that a strike against the company cannot be considered a strike in an industry
indispensable for the national interest, then the assumption of jurisdiction by the Secretary of
Labor is not proper. Therefore, he cannot legally exercise the powers of compulsory arbitration
in the labor dispute.
TOPIC: PROBATIONARY EMPLOYEES; CERTIFICATION ELECTION
SUMMARY OF THE RULE: All rank-and-file employees, probationary or permanent, have substantial
interest in the selection of the bargaining representative. The Code makes no distinction as to their
employment status as bases for eligibility to vote in the petition for certification election. (Airtime
Specialists, Inc. vs. Ferrer-Calleja, 180 SCRA 749).
Are probationary employees entitled to vote in a certification election? Why?
In a certification election, all rank-and-file employees in the appropriate bargaining unit
are entitled to vote. This principle is clearly stated in Article 255 of the Labor Code which states
that the labor organization designated or selected by the majority of the employees in such unit
shall be the exclusive representative of the employees in such unit for the purpose of collective
bargaining. Collective bargaining covers all aspects of the employment relation and the resultant
CBA negotiated by the certified union binds all employees in the bargaining unit. Hence, all rankand-file employees, probationary or permanent, have substantial interest in the selection of the
bargaining representative. The Code makes no distinction as to their employment status as bases
for eligibility to vote in the petition for certification election. The law refers to all the
employees in the bargaining unit. All they need to be eligible to vote is to belong to the bargaining
unit. (Airtime Specialists, Inc. vs. Ferrer-Calleja, 180 SCRA 749).
ALTERNATIVE ANSWER:
Probationary employees may not be entitled to vote in a certification election where only
regular employees belong to a bargaining unit and probationary employees do not belong to such
bargaining unit. It is the belonging to a bargaining unit that entitles an employee to vote in a
certification election.
ANOTHER ALTERNATIVE ANSWER:
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He wants your opinion on what the union may lawfully do to compel management to come to
the bargaining table at that point. What will your advice be?
The union president tells you that they prefer to go on strike. He wants to know the legal
requirements that the union must comply with so the strike will be legal. What advice will you
give?
Porfirio, Estela, Crisostomo, Marita, and Jose Ramirez were brothers and sisters. All were
stockholders, directors and officers of the Pagaspas Marketing Co., Inc. (PMCI). PMCI sold office
machines and supplies. It employed 20 sales persons, 10 delivery men, 20 service personnel,
and 10 administrative employees. On December 10, 1987, 45 rank and file workers of the
company formed and registered a labor union. They sent a letter to Pagaspas demanding
recognition as bargaining agent of all workers, enclosing check-off authorization forms of the
union members, and a set of economic demands. PMCI refused to recognize the union. The
union president went to you, as labor adviser of the federation which they were planning to
affiliate with.
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I will advice the union president to file a petition for certification so that after being
certified as the collective bargaining representative, the union could go back to PMCI and ask it to
bargain collectively with the Union. If PMCI persists in its refusal to bargain collectively, I will
advice the Union to file a case of unfair labor practice against PMCI since a refusal to bargain
collectively is a ULP.
I will tell the union president that these are the requisites that should be complied with if a
strike is to be legal: The union should file a notice of strike with the Bureau of Labor Relations
(assuming PMCI is in Metro Manila). A copy of the notice should also be served upon PMCI. The union
should not actually go on strike until after 30 days (if the strike is because of the ULP committed by
PMCI, i.e., its refusal to bargain collectively) after filing a notice of strike.
There should be a strike vote, either at a meeting or through a referendum. A majority of the union
members on the bargaining unit should approve the declaration of strike. The union should furnish
the Bureau of Labor Relations of the Notice of meeting where a strike vote will be taken. The union
should also inform the Bureau about the result of the voting at least seven (7) days before the
intended strike.
TOPIC: CONDITIONS FOR A VALID RETRENCHMENT
Law
What conditions must prevail and what requirements, if any, must an employer comply with to
justify / effect a valid retrenchment program?
In the case of Asian Alcohol Corporation vs. NLRC, G.R. No. 131108, March 25, 1999, The SC
stated that the requirements for a valid retrenchment must be proved by clear and convincing
evidence:
(1) that the retrenchment is reasonably necessary and likely to prevent business losses which,
if already incurred, are not merely de minimis, but substantial, serious, actual and real or if only
expected, re reasonably imminent as perceived by objectively and in good faith by the employer;
(2) that the employer served written notice both to the employees and to the Department of
Labor and Employment at least one month prior to the intended date of retrenchment;
(3) that the employer pays the retrenched employees separation pay equivalent to one month
pay or at least one month pay for every year of service, whichever is higher;
(4) that the employer exercises his prerogative to retrench employees in good faith for the
advancement of its interest and not to defeat or circumvent the employees right of security of
tenure; and
(5) that the employer used fair and reasonable criteria in ascertaining who would be dismissed
and who would be retained among the employees, such as status (i.e., whether they are
temporary, casual, regular, or managerial employees), efficiency, seniority, physical fitness, age,
and financial hardship for certain workers.
TOPIC: ILLEGAL DISMISSAL; DUE PROCESS REQUIREMENTS.
SUMMARY OF THE RULE: To meet the requirements of due process, the law requires that an
employer must furnish the workers sought to be dismissed with two written notices before
termination of employment can be legally effected, that is, (1) a notice which apprises the
employee of the particular acts or omissions for which his dismissal is sought; and (2) subsequent
notice, after due hearing, which informs the employee of the employers decision to dismiss him.
Assuming the existence of valid grounds for dismissal, what are the requirements before an
employer can terminate the services of an employee?
The employer should give the employee being terminated due process. For termination of
employment based on any of the just causes for termination, the requirement of due process that
the employer must comply with are:
(1) A written notice should be served on the employer specifying the ground or grounds for
termination and giving to say employee reasonable opportunity within which to explain his
side.
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The Motion to Dismiss should be denied. It is a regular court and not a Labor Arbiter that
has jurisdiction on the suit for damages. The damages did not arise from the employer-employee
relations which would not have placed the suit under the jurisdiction of a Labor Arbiter. The suit
arises from the fact that the President of the company shouted invectives at Mariet Demetrio in the
presence of employees and visitors. Her complaint for damages is against an officer of the Company
based on slanderous language alleged made by the latter. This falls under the jurisdiction of the
ordinary courts. There is here a simple action for damages for tortious acts allegedly committed by
the defendant. Such being the case, the governing statue is the Civil Code and not the Labor Code.
(Medina vs. Castro-Bartolome, 116 SCRA 597)
However, with respect to the civil suit for damages, the company lawyer filed a Motion to
Dismiss for lack of jurisdiction considering the existence of an employer-employee relationship
and therefore, it is claimed that the case should have been filed before the Labor Arbiter.
Rule on the Motion to Dismiss. Should it be granted or denied. Explain briefly.
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ALTERNATIVE ANSWER:
The Motion to dismiss should be granted. According to the Labor Code (Article 217 (a)4),
the Labor Arbiter has original and exclusive jurisdiction to hear and decide, among others, claims
for actual, moral and exemplary and other forms of damages arising from the employer-employee
relations. The claim for damages in the case in question arose from the fact that the President of
the Company shouted invectives at Mariet Demetrio in the presence of employees and visitors for a
minor infraction she committed. If the infraction has something to do with her work, then, the
claim for damages could be considered as arising from employer-employee relations. Thus, the
claim is under the exclusive jurisdiction of the Labor Arbiter.
TOPIC: JURISDICTION
SUMMARY OF THE RULE: Article 223 of the Labor Code provides that: Decisions, awards, or
orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or
both parties within 10 calendar days from the receipt of such decisions, awards, or orders.
The affected members of the rank-and-file employees elevated the Labor Arbiters decision to
the NLRC via a petition for review filed after the lapse of the 10-day reglementary period for
perfecting an appeal. Should the NLRC dismiss the petition outright or may the NLRC take
cognizance thereof?
The NLRC should dismiss the appeal outright because the same was filed beyond the
reglementary period of appeal. Article 223 of the Labor Code reads: Decisions, awards, or orders
of the Labor Arbiter are final and executory unless appealed to the Commission by any or both
parties within 10 calendar days from the receipt of such decisions, awards, or orders.
ALTERNATIVE ANSWER:
The NLRC could dismiss outright the appeal for being filed out of time. But if there are
good reasons that may justifiably explain why there was a delay in the filing of the appeal,
substantial justice may be the basis for the NLRC to take cognizance of the appeal.
Law
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On the first issue, RS can be considered as terminated because he has been placed on off
detail or floating status for a period which is more than 6 months.
On the second issue, it is true that disease is a ground for termination. But the neuropsychiatric evaluation test by Mahusay Medical Center is not the certification required for disease
to be a ground for termination. The Rules and Regulations implementing the Labor Code require a
certification by a public health authority that the disease is of such nature or at such a stage that it
cannot be cured within a period of 6 months even with proper medical treatment.
ANOTHER SUGGESTED ANSWER:
The issues involved are as follows:
1. Is there constructive dismissal?
2. Is there a valid exercise of management prerogative?
On the first issue, there is constructive dismissal. RS cannot be placed on off detail or
floating status indefinitely. If it lasts for more than 6 months, RS shall be deemed to have been
constructively dismissed thus entitling him to separation benefits. (Superstar Security Agency vs.
NLRC, 184 SCRA 74)
On the second issue, there is no valid exercise of management prerogative. Stars claim of
management prerogative in assigning its guards cannot be exercised to defeat or circumvent RS
right to security of tenure.
B. A spinster school teacher took pity on one of her pupils, a robust and precocious 12-year old
boy whose poor family could barely afford the cost of his schooling. She lives alone at her
house near the school after her housemaid left. In the afternoon, she lets the boy do various
chores as cleaning, fetching water and all kinds of errands after school hours. She gives him
rice and P30.00 before the boy goes home at 7:00 every night. The school principal learned
about it and charged her with violating the law which prohibits the employment of children
below 15 years of age. In her defense, the teacher stated that the work performed by her
pupil is not hazardous, and she invoked the exception provided in the D.O. of DOLE for the
engagement of persons in domestic and household service.
Is her defense tenable? Reason.
SUGGESTED ANSWER:
No. Her defense is not tenable. Under Art. 19 of the Labor Code on minimum employable
age, no child below 15 years of age shall be employed except when he works directly under the
sole responsibility of his parents or guardian, the provisions of the alleged D. O. of DOLE to the
contrary notwithstanding. A mere Department Order cannot prevail over the express prohibitory
provisions of the Labor Code.
C. Which of the following may be considered among industries most vital to national interest as
to be subject of immediate assumption of jurisdiction by the Secretary of Labor or certification
for compulsory arbitration in case of strike or work stoppage arising from a labor dispute?
1.
2.
3.
4.
5.
[N.B. Sec. 3, RA 9231 allows a child below 15 years of age to work for not more than 20
hours a week; provided that the work shall not be more than 4 hours at any given day; provided
further, that he does not work between 8PM and 6AM of the following day; and provided, finally,
that the work is not hazardous or deleterious to his health or morals. This is a law approved only
on July 28, 2003, which is beyond the cut-off period of the then 2004 Bar Examinations.]
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SUGGESTED ANSWER:
Law
Yes, the Secreatry can assume jurisdiction over the dispute because ABC could be
considered as an industry indispensable to the national interest since it produces the countrys
supply of chlorine for water treatment.
The assumption of jurisdiction by the Secretary has the effect of ending the strike. The
strikers will be subject to Return to Work Order by the Secretary upon his assumption of
jurisdiction.
E. Because of alleged unfair labor practices by the management of GFI system, a
government-owned and controlled financial corporation, its employees walked out from their
jobs and refused to return to work until the management would grant their union official
recognition and start negotiations with them.
The leaders of the walk-out were dismissed, and the other participants were suspended
for 6o days. In arguing their case before the Civil Service Commission, they cited the principle
of social justice of workers and the right to self-organization and collective action, including
the right to strike. They claimed that the Constitution shielded them from any penalty because
their walk-out was a concerted action pursuant to their rights guaranteed by basic law.
Is the position taken by the walk-out leaders and participants legally correct? Reason
briefly.
SUGGESTED ANSWER:
No. They are government employees, and as such, they do not have the right to strike.
Sec 3 of Art XIII of the Constitution states, The State shall guarantee the rights of all workers to
self-organization, collective bargaining and negotiations, and peaceful concerted activities
including the right to strike in accordance with law.
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CASE DOCTRINES
BOOK ONE
POEA; POWERS AND FUNCTIONS.
APPROVAL OF OVERSEAS CONTRACTS
An agreement that changes the employees pay and benefits to make them lesser than
those contained in a POEA-approved contract is void, unless such subsequent agreement is
approved by the POEA (Chavez vs. Bonto-Perez).
REIMBURSEMENT OF OVERPAID FEES
POEA has the power to order refund or reimbursement of fees fraudulently or illegally
collected, or in excess of what is legally allowed. (Eastern Assurance & Surety Corporation vs.
Secretary of Labor).
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A person convicted for illegal recruitment under the Labor Code can be convicted for
violation of the Revised Penal Code provisions on estafa provided the elements of the crime are
present (People vs. Calonzo).
BOOK TWO
APPRENTICESHIP AGREEMENTS: CONCEPT.
CONCEPT
An apprenticeship program needs prior approval by the Department of Labor and
Employment. If employed without a pre-approved apprenticeship program, the apprentice is not an
apprentice but a regular employee (Nitto Enterprises v. NLRC).
APPRENTICESHIP vis--vis EMPLOYER-EMPLOYEE RELATIONSHIP
There is no employer-employee relationship between students on one hand, and schools,
colleges or universities, on the other, where there is written agreement between them under which
the former agree to work for the latter in exchange for the privilege to study free of charge,
provided, the students are given real opportunities, including such facilities as may be reasonable
and necessary to finish their chosen courses under such agreement." (Implementing Rules of Book
III, Rule X, Sec. 14)
If the student referred to in Art. 72 of the Labor Code, in the course of doing a task in
behalf of the school, causes injury to a third person, the school can be held liable. The
Implementing Rules provision that there is no employer-employee relation between the school and
the student pertains to observance of labor regulations, such as payrolls to be kept, working
conditions or rest periods. It is not the decisive law in a civil suit for damages instituted by an
injured third person. The applicable law is Article 2180 of the Civil Code (Filamer Christian
Institute v. CA).
BOOK THREE
Law
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Where work is continuous for several shifts, the mealtime breaks should be counted as
working time for purposes of overtime compensation (National Devt Company vs. CIR and the
National Textile Workers Union).
WORKING WHILE SLEEPING
Sleeping time may be considered working time if it subject to serious interruption or takes
place under conditions substantially less desirable than would be likely to exist at the employees
home (Skidmore vs. Swift and Co.).
Meal time is NOT working time if the employee is completely freed from duties during his
meal period even though he remains in the workplace (Pan American World Airways System [Phil.]
vs. Pan American Employment Association).
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ON CALL
Law
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Although the law allows, under certain circumstances, non-lawyers to appear before the
National Labor Relations Commission or any Labor Arbiter, however, this does not mean that they
are entitled to attorneys fees. Their act of representing, appearing or defending a party litigant in
a labor case does not, by itself, confer upon them legal right to claim for attorneys fees.
Entitlement to attorneys fees presupposes the existence of attorney-client relationship. This
relationship cannot exist unless the clients representative is a lawyer (Five J Taxi, et al. vs.
NLRC).
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worker concerned; and (c) in cases where the employer is authorized by law or regulations issued
by the Secretary of Labor (Apodaca vs. NLRC, et a.).
WAGE DISTORTION
The Court summarizes the principles relating to wage distortion, namely:
(a) The concept of wage distortion assumes an existing grouping or classification of
employees which establishes distinctions among such employees on some relevant or legitimate
basis. This classification is reflected in a differing wage rate for each of the existing classes of
employees.
(b) Wage distortions have often been the result of government-decreed increases in
minimum wages. There are, however, other causes of wage distortions, like the merger of two
companies (with differing classifications of employees and different wage rates) where the
surviving company absorbs all the employees of the dissolved corporation.
(c) Should a wage distortion exist, there is no legal requirement that, in the rectification
of that distortion by readjustment of the wage rates of the differing classes of employees, the gap
which had previously or historically existed be restored in precisely the same amount. In other
words, correction of a wage distortion may be done by reestablishing a substantial or significant
gap (as distinguished from the historical gap) between the wage rates of the differing classes of
employees.
(d) The reestablishment of a significant difference in wage rates may be the result of
resort to grievance procedures or collective negotiations (National Federation of Labor vs. NLRC).
WORKING CONDITIONS; SPECIAL GROUP OF EMPLOYEES
STIPULATION AGAINST MARRIAGE (Article 136)
Article 136 is not intended to apply only to women employed in ordinary occupations, or it
should have categorically expressed so. The sweeping intendment of the law, be it on special or
ordinary occupations, is reflected in the whole text and supported by Article 135 that speaks of
nondiscrimination on the employment of women (Claudine de Castro Zialcita, et al. vs. PAL).
HOUSEHELPER
The criterion is the personal comfort and enjoyment of the family of the employer in the
home of said employer. While the nature of work of a househelper, domestic servant or laundry
woman in a home or in a company staff house may be similar in nature, the difference in their
circumstances is that in the former instance they are actually serving the family while in the latter
case, whether it is a corporation or a single proprietorship engaged in business or industry or any
other agricultural or similar pursuit, service is being rendered in the staff houses or within the
premises of the business of the employer. In such instances, they are employees of the company or
employer in the business concerned entitled to the privileges of a regular employee (Apex Mining
Co., Inc. vs. NLRC).
BOOK FIVE
POWERS AND DUTIES; JURISDICTION OF THE LABOR ARBITERS AND THE COMMISSION
Law
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Art. 222 of the Labor Code prohibits the payment of attorneys fees only when it is effected
through forced contributions from the workers from their own funds as distinguished from the union
funds. The purpose of the provision is to prevent imposition on the workers of the duty to
individually contribute their respective shares in the fee to be paid the attorney for his services on
behalf of the union in its negotiations with the management. The obligation to pay the attorneys
fees belongs to the union and cannot be shunted to the workers as their responsibility (Bank of the
Philippine Islands vs. NLRC, et al.).
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collection of the special assessment partly for the payment services rendered by union officers,
consultants and other may not be in the category of attorneys fees or negotiations fees. But
there is no question that it is an exaction which falls within the category of a similar charge and
therefore, within the coverage of the prohibition in the aforementioned article (Palacol vs. FerrerCalleja)
APPEAL; EXECUTION OF DECISIONS, ORDERS AND AWARDS
FAILURE TO COMPLY WITH A WRIT OF EXECUTION
If the employer fails or is unable to comply with a final and executory judgment for the
reinstatement of an employee, the plain and obvious remedy is simply the compulsion of the
employer by writ of execution to effect the mandated reinstatement and pay the amounts decreed
in the judgment, and disregard or overrule the employers claim of inability to reinstate the
employee. If there be valid and unsuperable cause for such inability to reinstate, this factor must
be taken into account in the process of directing and effectuating the award of relief to the
employee consistent with the judgment. The remedy is certainly not the institution of a separate
action, whether in the regular courts or the labor arbiters branch. Such recourse would violate the
well-settled principle of res judicata. It would give rise to multiplicity of actions which the law
abhors and exerts every effort to eschew (MAI Philippines Inc. vs. NLRC et al.).
The remedy for refusal of the employer to reinstate employee despite several writs of
execution is not the grant of additional backwages to serve as damages but to cite the employer in
contempt (Christian Literature Crusade v. NLRC).
EXECUTION OVER PROPERTY OWNED ONLY BY THE JUDGMENT DEBTOR
If the property under levy does not belong to the judgment debtor in the NLRC case, it
could not be validly levied upon by the sheriff for the satisfaction of the judgment therein. Even
upon a prima facie showing of the ownership by the third-party claimant, if the third-party claim
does not involve nor grows out of, a labor dispute, a separate action for injunctive relief against
such levy may be maintained in court (Penalosa v. Villanueva).
Law
NOTIFICATION
In labor cases, both the party and its counsel must be duly served their separate copies of
the order, decision, or resolution, unlike in ordinary judicial proceeding where notice to counsel is
deemed notice to the party (PNOC Dockyard and Engineering Corp. vs. NLRC).
BUREAU OF LABOR RELATIONS; JURISDICTION
KATARUNGANG PAMBARANGAY AND THE LABOR CODE
Art 226 of the Labor Code grants original and exclusive jurisdiction over the conciliation
and mediation of disputes, grievances or problems in the regional offices of the Department of
Labor and Employment. It is the aid bureau and its divisions and not the barangay lupong
tagapayapa which are vested by law with original and exclusive authority to conduct conciliation
and mediation proceedings on labor controversies before their endorsement to the appropriate
labor arbiter adjudication (Montoya vs. Escayo).
BUREAU OF LABOR RELATIONS; COMPROMISE AGREEMENTS
OPTIONS WHEN COMPROMISE AGREEMENT IS VIOLATED
Under article 2041 of the civil code, should the party fail or refuse to comply with the
terms of a compromise agreement or amicable settlement, the other party could either: (1)
enforce the compromise by a writ of execution, or (2) regard it as rescinded and so insist upon his
original demand (Morales et al. vs. NLRC).
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It is the fact of ownership of the cooperative, and not the involvement in the management
thereof, which disqualifies a member from joining any labor organization within the cooperative.
Thus, irrespective of the degree of their participation I the actual management of the cooperative,
all members thereof cannot form, assist or join a labor organization for the purpose of collective
bargaining (Benguet Electric Cooperative vs. Ferrer-Calleja).
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The forced vacation leave without pay in view of the economic crisis, being neither
malicious, oppressive or vindictive, does not constitute ULP (Philippine Graphic Arts, Inc. vs.
NLRB).
ULP EVEN BEFORE UNION ID REGISTERED
Under Art. 248 of the Labor code of the Philippines, to interfere with, restrain, or coerce
employees in their exercise of the right to self-organization is an unfair labor practice on the part
of the employer. Paragraph d of said article also considers it an unfair labor practice for an
employer to initiate, dominant, assist or otherwise interfere with the formation or administration
of any labor organization, including the giving of financial or other support to it. (Judric Canning
Corporation vs. Inciong)
ULP THROUGH VIOLENCE AND INTIMIDATION
An employer unlawfully coerced employers by directing two individuals to his office at gun
point on the day of representation election after the individuals had informed the employer that
they were on the premises to vote in the election and they did in fact vote (Holly Hill Lumber vs.
NLRB).
ULP THROUGH SURVEILLANCE
When an employer engages in surveillance or takes steps leading his employees to believe it
is going on, a violation results because the employees come under threat of economic coercion or
retaliation for their union activities (Henriz Mfg. Co vs. NLRB).
ULP THROUGH ECONOMIC INDUCEMENTS
A violation results from an employers announcement of benefits prior to a representation
election, where it is intended to induce the employees to vote against the union (Re: Hancock
Fabric Outlet).
Law
a. Initiation of the company union idea. This may further occur in three styles: (1)
outright formation by the employer or his representatives; (2) employee formation on outright
demand or influence by employer; and (3) managerially motivated formation by employees.
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When a labor union accuses an employer of acts of unfair labor practice allegedly
committed during a given period of time, the charges should include all acts of unfair labor
practice committed against any and all members of the union during that period. The union should
not, upon the dismissal of the charges first preferred, be allowed to split its cause of action and
harass the employer with subsequent charges, and based upon acts committed during the same
period of time (Dionela vs. Court of Industrial Relations).
COLLECTIVE BARGAINING AGREEMENT; CONCEPT
CBA DEFINED
A collective bargaining agreement (CBA), as used n Art 252 of the labor code, refers to a
contract executed upon request of either the employer or the exclusive bargaining representative
of the employees incorporating the agreement reached after negotiations with respect to wages,
hours of work and all other terms and conditions of employment, including proposals for adjusting
any grievances or questions under such agreement (Davao Integrated Port Stevedoring Services vs.
Abarquez).
PARTIES TO COLLECTIVE BARGAINING
The duty to bargain collectively arises only between the employer and its employees.
Where nether party is an employer or employee of the other no such duty would exist. Needless to
add, where there is no duty to bargain collectively, the refusal to bargain violates no rights (Allied
Free Workers Union vs. Compania Maritima).
JURISDICTIONAL PRECONDITIONS OF COLLECTIVE BARGAINING
Although bargaining is a mutual obligation of the parties, the employer is not under any
legal duty to initiate contract negotiation. The mechanics of collective bargaining is set n motion
only when the following jurisdictional preconditions namely: (1) possession of the status of majority
representation of the employees representative in accordance with any of the means of selection
or designation provided for by the labor code; (2) proof of majority representation; and (3) a
demand to bargain under Art. 250, par. (a) of the Labor Code (Loy vs. NLRC).
Law
WORK RULES
Company rules relating to safety and work practices come within the meaning of the phrase
other terms and conditions of employment as used in the Act and, therefore, constitute a
mandatory subject of collective bargaining (NLRB vs. Gulf Power Co.).
BARGAINING TO POINT OF IMPASSE
The question as to what are mandatory and what are merely permissive subjects of
collective bargaining is of significance on the right of a party to insist on his position to the point of
stalemate. A party may refuse to enter into a collective bargaining contract unless it includes a
desired provision as to a matter which is a mandatory subject of collective bargaining; but a refusal
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In the absence of a new CBA, the parties must maintain status quo and must continue in
full force and effect the terms and conditions of the existing agreement until a new agreement is
reached. In this manner, the law prevents the existence of a gap in the relationship between the
collective bargaining parties. Another legal principle that should apply is that in the absence of an
agreement between the parties, then, an arbitrated CBA takes on the nature of any judicial or
quasi-judicial award; it operates and may be executed only prospectively unless there are legal
justifications for its retroactive application (Manila Electric Company vs. Quisumbing and MEWA).
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Law
The usual exception, of course, is where the employer unit has to give way to the other
units like the craft unit, plant unit, or a subdivision thereof; the recognition of these exceptions
takes into account the policy to assure employees of the fullest freedom in exercising their rights.
Otherwise stated, the one company-one union policy must yield to the right of the employees to
form unions or associations for purposes not contrary to law, to self-organization and to enter into
collective bargaining negotiations, among others which the Commission guarantees (Barbizon Phil.
Vs. Nagkakaisang Supervisor ng Barbizon, et.al.).
TWO COMPANIES WITH RELATED BUSINESS
Two corporations cannot be treated as single bargaining unit even if their businesses are
related (Indophil Textile Mill Workers Union-PTGWO vs. Voluntary Arbitrator Calica and IndoPhil
Textile Mills, Inc.).
SUBSIDIARIES AND SPUN-OFF CORPORATIONS
In determining an appropriate bargaining unit, the test of grouping is mutuality or commonality
of interests. The employees sought to be represented by the collective bargaining agent must have
substantial mutual interests in terms of employment and working conditions as evinced by the type
of work they performed. Considering the spin-offs, the companies would consequently have their
respective and distinctive concerns in terms of the nature of work, wages, hours of work and other
conditions of employment. Interests of employees in the different perforce differ. The employees
of different companies see the need to group themselves together and organize themselves into
distinctive and different groups. It would then be best to have separate bargaining units for the
different companies where the employees can bargain separately according to their needs and
according to their own working condition (San Miguel Corp. Employees Union-PTGWO, etc vs.
Confesor, San Miguel Corp., Magnolia Corp., and San Miguel Foods, Inc.).
COLLECTIVE BARGAINING AGREEMENT: CERTIFICATION ELECTION
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LABOR LAW
The freedom period under Arts 253-A and 256 is different from and ought not to be
mistaken for the other 60-day period mentioned in art. 253. The latter speaks of the right of the
parties to propose modifications in the existing CBA, as an exception of the rule that the CBA
cannot be modified during its lifetime. This 60-day period under Art. 253 does not and cannot refer
to the representative status of the incumbent union since the acquisition or loss of representative
status of a union is to be resolved through a certification election, and not through CBA negotiation
with the employer. Therefore, the 60-day period under 253 refers to modifying or renegotiating the
CBA provisions other than the representational. Those stipulations, in practice, are called
economic or non-political. To clarify terms, the 60-days in 253 may be called renegotiation
proposal period or simply proposal period, while under Arts 253-A and 256 is, as already
established, the freedom period. The proposal period is the last 60 days of the last year of the
nonrepresentational provisions; the freedom period is the last 60 days of the CBAs fifth year (San
Miguel Corporation vs. Trajano).
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A collective bargaining agreement which was prematurely renewed is not a bar to the
holding of a certification election. Such indecent haste in renewing the CBA despite an order
enjoining them from doing so is designed to frustrate the constitutional right of the employees to
self-organization (Associated Labor Unions vs. Calleja).
VALIDITY OF CBA SIGNED DURING REPRESENTATION DISPUTE
When a collective bargaining agreement is entered into at the time when the petition for
certification election had already been filed by a union and was then pending resolution, the said
collective bargaining agreement cannot be deemed permanent, precluding the commencement of
negotiations by another union with the management. In the meantime, however, so as not to
deprive the workers of the benefits of the said agreement, it shall be recognized and given effect
on a temporary basis, subject to the results of the certification election. The agreement may be
continued in force if the union that negotiated it is certified as the exclusive bargaining
representative of the workers or may be rejected and replaced in the event the rival union emerges
as the winner (Associated Trade Unions vs. Trajano).
CBA WHICH IS NOT AUTOMATICALLY RENEWED
A bargaining contract which provides for automatic renewal in the absence of notice by one
of the contracting parties to alter, modify or terminate it prior to a specified period preceding the
terminating date, will usually operate as a bar to a certification election. However, this rule does
not apply where the employer filed, with the Court of Industrial Relations, reasonably prior to
specified date for automatic renewal, a petition or manifestation of its intention to terminate such
contract if and when it is found that the collective bargaining agency with whom the employer had
the contract no longer represented the majority of the employers workers (PLDT Employees Union
vs. PLDT Company and Free Telephone Workers Union).
Law
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Basic to the contract bar rule is the proposition that the delay of the right to select
representatives can be justified only where stability is deemed paramount. Excepted from the
contract-bar rule are certain types of contracts which do not foster industrial stability, such as
contracts where the identity of the representatives is in doubt. Any stability derived from such
contracts must be subordinated to the employees freedom of choice because it does not establish
the type of industrial peace contemplated by the law (Philippine Association of Free Labor Unions
vs. Estrella).
EFFECT OF WITHDRAWAL OF SIGNATORIES
It appearing indisputably that the 321 union members had withdrawn their support to the
petition. It would be otherwise if the withdrawal was made after the filing of the petition for it
would then be presumed that the withdrawal was not free and voluntary. The presumption would
arise that the withdrawal was procured through duress, coercion or for valuable consideration. In
other words, the distinction must be that withdrawals made before the filing of the petition are
presumed voluntary unless there is convincing proof to the contrary, whereas withdrawals made
after the filing of the petition are deemed involuntary.
The reason for such distinction is that if the withdrawal or retraction is made before the
filing of the petition, the names of employees supporting the petition are supposed to be held
secret to the opposite party. Logically, any such withdrawal or retraction shows voluntariness in
the absence of proof to the contrary. Moreover, it becomes apparent that such employees had not
given consent to the filing of the petition; hence the subscription requirement has not been met.
When the withdrawal or retraction is made after the petition is filed, the employees who
are supporting the petition become known to the opposite party since their names are attached to
the petition at the time of filing. Therefore, it would not be unexpected that the opposite party
would use foul means for the subject employees to withdraw their support (La Suerte Cigar and
Cigarete Factory vs. Trajano).
LABOR LAW
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TO GRANT DEMANDS
The demands that gave rise to the strike may not properly be granted under the
circumstances of this case, but the fact should not make said demands and the consequent strike
illegal. The ability of the Company to grant said demands is one thing, and the right of the laborers
to make said demands is another thing. The latter should be kept inviolate. There are adequate
instrumentalities which may be resorted to in case of excesses (Central Vegetable Oil
Manufacturing vs. Philippine Oil Industry Workers Union).
STRIKE AGAINST EMPLOYEES UNFAIR LABOR PRACTICES
Union busting, or interference with the formation of a union, constitutes an unfair labor
practice act, hence a valid ground for the declaration of strike (Zamboanga Wood Products, Inc.,
vs. NLRC).
TESTS IN DETERMINING THE EXISTENCE OF AN UNFAIR LABOR PRACTICE STRIKE
There are two tests in determining the existence of an unfair labor practice strike:
1.
Objectively, when the strike is declared in protest of unfair labor practice which is
found to have been actually committed; and
2. Subjectively, when a strike is declared in protest of what the union believed to be
unfair labor practices committed by management, and the circumstances warranted such belief in
good faith, although found subsequently as not committed (Norton and Harrison Co. Labor Union v.
Norton and Harrison Co.).
Law
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and inconsequential in character, the bona fide nature of the retrenchment would appear to be
seriously in question.
Secondly, the substantial loss apprehended must be reasonably imminent, as such
imminence can be perceived objectively and n good faith by the employer. There should, in other
words, be certain degree of urgency for the retrenchment, which is, after all, a drastic recourse
with serious consequences for the livelihood of the employees retired or otherwise laid-off.
Thirdly, there must be reasonably necessary and likely to effectively prevent the expected
losses. The employer should have taken other measures prior or parallel to retrenchment to
forestall losses, i.e., cut other costs than labor costs.
Lastly, but certainly not the least important, alleged losses if already realized, and the
expected imminent losses sought to be forestalled, must be proven by sufficient and convincing
evidence. The reason for requiring this quantum of proof is readily apparent: any less exacting
standard of proof would render too easy the abuse of this ground for termination of services of
employees (Lopez Sugar Corporation vs. Federation of Free Workers, et al.)
REDUNDANCY DISTINGUISHED FROM RETRENCHMENT
Redundancy exists where the services of an employee are in the excess of what is
reasonably demanded by the actual requirements of the enterprise. A position is redundant where
it is superfluous, a 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 manufactured or undertaken by the enterprise.
Retrenchment, on the other hand, is used interchangeably with the term lay-off. It is the
termination of employment initiated by the employer through no fault of the employees and
without prejudice to the latter resorted to by management during periods of business recession,
industrial depression, or seasonal fluctuations, or during lulls occasioned by lack of orders, shortage
of materials, conversion of the plant machinery, or of automation. Simply put, it is an act of the
employer of dismissing employees because of losses in the operation of a business, lack of work,
and considerable reduction on the volume of his business a right consistently recognized and
affirmed by this court (Sebuguero, et al. vs. NLRC).
Law
CLOSURE OF BUSINESS
Under Article 284 of the Labor Code, three requirements may be seen to be established in
respect of cessation of business operations of an employer company not due to business reverses,
namely: a) service of written notice to the employees and to the MOLE at east one month before
the intended date thereof; b) the cessation of or withdrawal from business operations must be bona
fide in character; and c) payment to the employees of termination pay amounting to at east onehalf month pay for each year of service, or one month pay, whichever is higher (Mobil Employees
Association and Inter-Island Labor Organization).
TEMPORARY SHUTDOWN
Temporary shutdown of one of the furnaces of a glass plant is not a good reason to
terminate employees where operations continued after such repairs, and it is apparent that the
closure of the companys warehouse was merely a ploy to get rid of the employees who were then
agitating the company for benefits, reforms and collective bargaining as a union. There is no
showing that petitioners had been remiss in their obligations and inefficient in their jobs to warrant
their separation (Brotherhood Labor Unity Movement of the Philippines, et al. vs. Zamora).
MERGER
By the fact of merger, succession of employment rights and obligations occurs between the
absorbing corporation and the employees of the absorbed corporation. Not only must the absorbing
corporation retain the employees, it should likewise recognize the length of service in the previous
employer. In merger, like in sale in bad faith, the successor employer principle applies (Filipinas
Port Services, Inc. vs. NLRC).
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The rule is that strained relations may be invoked only against employees whose positions
demand trust and confidence, or whose differences with their employer are of such nature or
degree as to preclude reinstatement (Maranaw Hotels vs. CA).
REINSTATEMENT SHOULD HAVE BEEN ORDERED BY LABOR ARBITER
If the labor arbiter has not ordered reinstatement of the employee, the NLRC cannot award
backwages for the period when the appeal was pending at the NLRC. An order for reinstatement
must be specifically declared and cannot be presumed; like backwages, it is separate and distinct
relief given to an illegally dismissed employee. There being no specific order of reinstatement and
the order being for complainants separation, there can be no basis for the award of salaries/
backwages during the pendency of appeal (Filflex Industrial and MFG. Corp vs. NLRC).
DAMAGES
If the evidence adduced by the employee before the Labor Arbiter should establish that the
employer did indeed terminate the employees services without just cause or without according
him due process, the Labor Arbiters judgment shall be for the employer to reinstate the employee
and him backwages, or exceptionally, for the employee simply to receive separation pay. These are
reliefs explicitly prescribed by the labor code. But any award of moral damages by the Labor
Arbiter obviously cannot be based on the labor code but would be grounded on the Civil Code. Such
an award cannot be justified solely upon the premise (otherwise sufficient for redress under the
Labor Code) that the employer fired his employee without just cause or due process (Suario vs.
Bank of the Philippine Islands).
MORAL DAMAGES
Moral damages may be awarded to compensate one for diverse injuries such as mental
anguish, besmirched reputation, wounded feelings and social humiliation. It is however, not enough
that such injuries have arisen. It is essential that they have sprung from a wrongful act or omission
of the defendant which was the proximate cause thereof (Suario vs. BPI).
TERMINATION OF EMPLOYMENT: BY EMPLOYEE
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Resignation is the voluntary act of an employee who finds himself is a situation where he
believes that personal reason cannot be sacrificed in favor of the exigency of the service, then he
has no other choice but to disassociate himself from his employment The employer has no control
over resignations and so the notification requirement was devised in order to insure that no
disruption of work would be involved by reason of the resignation. Resignation, once accepted and
being the sole act of the employee may not be withdrawn without the consent of the employer
(Intertrod Maritime, Inc. vs. NLRC).
RESIGNATION PAY
The general rule is that an employee who voluntarily resigns from employment is not
entitled to separation pay, unless there is a stipulation for payment in the employment contract or
Collective Bargaining Agreement, or payment of the amount is sanctioned by established employer
practice or policy (Travelaire & Tours Corp. vs. N. Medelyn).
LABOR LAW
BAR-TYPE QUESTIONS
1. Does the penal provisions of RA 8042 violate the equal protection clause of the Constitution?
2. Is every controversy or money claim by an employee against the employer or vice versa
within the exclusive jurisdiction of the labor arbiter?
No. Not every controversy or money claim by an employee against the meployer or vice
versa is within the exclusive jurisdiction of the labor arbiter. A money claim by a worker against
the employer or vice versa is within the exclusive jurisdiction of the labor arbiter only if there is a
reasonable causal connection between the claim asserted and the employer-employee relation.
The equal protection clause is directed principally against undue favor and individual or
class privilege. It is not to prohibit legislation which is limited to the object to which it is directed
and by the territory in which it is to operate. It does not require absolute equality, but merely all
persons be treated under like conditions both as to privileges conferred and liabilities imposed.
(EXEC. SECRETARY VS. CA, May 25, 2004)
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Absent such link, the complaint will be cognizable by the regular courts of justice. (EVIOTA VS. CA,
July 29, 2003)
3. Natividad works with TCM College as a liaison officer with a rank of Assistant Registrar. He
was arrested by police authorities for violation of he Dangerous Drugs Act without warrant, and
a criminal complaint was filed against him. TCM College sent a Memorandum to Natividad
informing him that his employment is already terminated. The criminal case was dismissed for
lack of merit. Natividad did not, however, file any complaint to the NLRC against the college
on account of his dismissal.
Natividad was arrested anew for violation of the same Act. This time, he filed with the
NLRC a complaint for illegal dismissal. The Labor Arbiter and the NLRC denied Natividad but on
certiorari, the CA affirmed, with modification, holding that although there was a valid cause for
private respondents dismissal, the petitioner did not follow the procedure for the termination
of his employment. Was Natividad illegally dismissed so as to entitle him to backwages?
The normal consequences of finding that an employee is illegally dismissed are, firstly, the
employee becomes entitled to reinstatement without loss of seniority rights and second, payment
of backwages to the period from his illegal dismissal up to actual reinstatement. The award of
backwages is not conditioned on the employers ability or inability to pay. While it may be true
that Natividad was detained, he was not convicted by final judgement in the Criminal Case.
Indeed, he is presumed innocent until his guilt is proved beyond reasonable doubt. (TOMAS
CLAUDIO MEMORIAL COLLEGE, INC. VS. CA, February 16, 2004)
4. Is an order of execution of a final and executory judgement in a labor case still appealable?
No. Settled is the rule that after a judgemnt has become final, no additions can be made
thereto, and nothing can be done therewith except execution; otherwise, there would be no end to
litigations, thus settling at naught the main role of courts of justice, which is to assist in the
enforcement of the rule of law and the maintenance of peace and order, by setting justiceable
controversies with finality. (KING INTEGRATED SECURITY SERVICES, INC. VS. GALO S. GATAN, July
7, 2003)
Law
5. What evidence is needed to show that employer committed ULP under the Labor Code?
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Substantial evidence is required to support the claim. Substantial evidence has been
defined as such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. In the case at bar, the complaint was made only after a deadlock was declared by the
Union. It is clear that such ULP charge was merely an afterthought. (STANDARD CHARTERD BANK
EMPLOYEES UNION VS. CONFESOR, June 16, 2004)
LABOR LAW
8. Respondents applied for employment in Taiwan with petitioner, Phil. Employ Services and
Resources, Inc. (PSRI for brevity). The respondents were deployed in Taiwan. When they
encountered problems, they brought their attention to the manager who told them to forget
about it and refrain to air their complaints.
Respondent Navarra and another employee, Pio Gabito, were summoned by the
management and told that they were to be repatriated, without specifying the ground or cause
therefor. They pleaded that they be informed of the cause or causes for their repatriation, but
In this case, the respondent union filed its notice of strike with the DOLE on November 16,
1990 and on the same day, staged a picket on the premises of the hotel, in violation of the law.
The respondents cannot argue that since the notice of strike on November 16, 1990 were for the
same grounds as those contained in their notice of strike on September 27, 1990 which complied
with the requirements of the law on the cooling-off period, strike ban, strike vote and strike vote
report, the strike staged by them on November 16, 1990 was lawful. The matters contained in the
notice of strike of September 27, 1990 had already been taken cognizance of by the SOLE when he
issued on October 31, 1990 a status quo ante bellum order enjoining the respondent union from
intending or staging a strike. Despite the SOLE order, the respondent union nevertheless staged a
strike on November 16, 1990 simultaneously with its notice of strike, thus violating Art. 264(a) of
the Labor Code, as amended, which provides that x x x No strike or lockout shall be declared
after assumption of jurisdiction by the President or the Secretary or after certification or
submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases
involving the same grounds for the strike or lockout. (GRAND BOULEVARD HOTEL VS. GENUINE
LABOR ORGANIZATION OF WORKERS IN HOTEL, RESTAURANT AND ALLIED INDUSTRIES, July 8, 2003)
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their requests were rejected. The manager of their employer summoned the police, who
arrived and escorted them to the airport. Upon respondent Navarra's arrival in Manila, the
petitioner sought to settle his complaints. After the negotiations, the petitioner agreed to pay
P49,000 to the said respondent but, in consideration thereof, the latter executed a quitclaim
releasing the petitioner from any or all liabilities for his repatriation. Were petitioners illegally
dismissed when they repatriated by their Taiwan employers? Was Navarras execution of
quitclaim and receipt of P 49, 000 sufficient to conclude his waiver of right against illegal
dismissal?
Law
Yes. Respondents dismissal was not based on just, valid and legal grounds. As such, the
rule lex loci contractus (the law of the place where the contract is made) governs. Therefore, the
Labor Code, its implementing rules and regulations, and other laws affecting labor, apply in this
case. In order to effect a valid dismissal of an employee, the law requires that there be just and
valid cause as provided in Article 282 and that the employee was afforded an opportunity to be
heard and to defend himself. Dismissal may also be based on any of the authorized causes provided
for in Articles 283 and 284 of the Labor Code.
The petitioner failed to substantiate its claim that respondent Navarra's repatriation was
based on a valid, legal and just cause. We thus rule that the respondents were constructively
dismissed from their employment. There is constructive dismissal if an act of clear discrimination,
insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it
would foreclose any choice by him except to forego his continued employment. It exists where
there is cessation of work because "continued employment is rendered impossible, unreasonable or
unlikely, as an offer involving a demotion in rank and a diminution in pay."
We rule that the deed of release executed by respondent Navarra did not completely
release the petitioner from its liability on the latter's claim. As a rule, quitclaims, waivers or
releases are looked upon with disfavor and are commonly frowned upon as contrary to public policy
and ineffective to bar claims for the measure of a worker's legal rights. If (a) there is clear proof
that the waiver was wangled from an unsuspecting or gullible person; or (b) the terms of the
settlement are unconscionable, and on their face invalid, such quitclaims must be struck down as
invalid or illegal. (PHIL EMPLOY SERVICES VS. PARAMIO, ET AL, April 15, 2004)
9. The petitioner is a domestic corporation engaged in the business of providing telegraph and
communication services thru its branches all over the country. It employed various employees,
among whom were private respondents. The petitioner came up with a Relocation and
Restructuring Program. Private respondents received separate letters from the petitioner,
giving them the option to choose the branch to which they could be transferred. Thereafter,
the private respondents and other petitioner's employees were directed to "relocate" to their
new PT&T Branches.
The petitioner offered benefits/allowances to those employees who would agree to be
transferred under its new program. Moreover, the employees who would agree to the transfers
would be considered promoted. The private respondents rejected the petitioner's offer. Hence,
the petitioner sent letters to the private respondents requiring them to explain in writing why
no disciplinary action should be taken against them for their refusal to be
transferred/relocated. In their respective replies to the petitioner's letters, the private
respondents explained that the transfers imposed by the management would cause enormous
difficulties on the individual complainants. Dissatisfied with this explanation, the petitioner
considered the private respondents' refusal as insubordination and willful disobedience to a
lawful order; hence, the private respondents were dismissed from work. Subsequently, the
private respondents' bargaining agent, PT&T Workers Union-NAFLU-KMU, filed a complaint
against the petitioner for illegal dismissal and unfair labor practice for and in behalf of the
private respondents. Are the respective transfers of the private respondents considered
promotions? If so, is the denial of a promotion a just and authorized cause for dismissal?
Yes. With or without a corresponding increase in salary, the respective transfers of the
private respondents were in fact promotions, following the ruling enunciated in Homeowners
Savings and Loan Association, Inc. v. NLRC: Promotion, as we defined in Millares v. Subido, is the
advancement from one position to another with an increase in duties and responsibilities as
authorized by law, and usually accompanied by an increase in salary. Apparently, the
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We agree with the CA that the petitioner did not have a vested right to a formal hearing
simply and merely because LA Tumanong granted its motion and set the case for hearing. Pursuant
to Section 5, Rule V of the New Rules of Procedure of the NLRC, the labor arbiter has the authority
to determine whether or not there is a necessity to conduct formal hearings in cases brought before
him for adjudication. The holding of a formal hearing or trial is discretionary with the labor arbiter
and is something that the parties cannot demand as a matter of right. It is entirely within his
authority to decide a labor case before him, based on the position papers and supporting
documents of the parties, without a trial or formal hearing. The requirements of due process are
satisfied when the parties are given the opportunity to submit position papers wherein they are
supposed to attach all the documents that would prove their claim in case it be decided that no
hearing should be conducted or was necessary.
The private respondent was illegally dismissed. In order to effect a valid dismissal, the law
requires that (a) there be just and valid cause as provided under Article 282 of the Labor Code; and
(b) the employee be afforded an opportunity to be heard and to defend himself. As stated by the
CA, the petitioner had failed to show that it had complied with the two-notice requirement: (a) a
written notice containing a statement of the cause for the termination to afford the employee
ample opportunity to be heard and defend himself with the assistance of his representative, if he
so desires; (b) if the employer decides to terminate the services of the employee, the employer
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must notify him in writing of the decision to dismiss him, stating clearly the reason therefor.
(SHOPPES MANILA VS. NLRC, January 14, 2004)
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