Professional Documents
Culture Documents
Labor Law Reviewer (2015)
Labor Law Reviewer (2015)
Labor Law Reviewer (2015)
ii
iii
Table of Contents
A. COVERAGE ............................................................... 27
B. ESSENTIAL ELEMENTS OF
ILLEGAL RECRUITMENT .............................................. 13
E. ILLEGAL RECRUITMENT AS
ECONOMIC SABOTAGE ............................................... 18
G. LIABILITIES ............................................................... 19
I. PROBATIONARY .................................................... 92
E.1. COVERAGE......................................................... 48
F. LEAVES ......................................................................53
V. CASUAL................................................................. 98
A. DISCIPLINE ..............................................................126
O.2. LEARNERS........................................................ 82
A.3. BENEFITS...........................................................131
III. RETIREMENT BENEFITS [SEC. 12-B] .................. 131 VII. LABOR RELATIONS ................................................. 141
IV. PERMANENT DISABILITY BENEFITS [SEC. 13-A]132
V. DEATH BENEFITS [SEC. 13] ................................ 132
II. DURATION OF
COLLECTIVE BARGAINING AGREEMENT .............. 167
V. SURFACE BARGAINING.......................................171
B.5 UNFAIR LABOR PRACTICE (ULP) .....................171
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I. Fundamental
Principle and Policies
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A. CONSTITUTIONAL PROVISIONS
A.1 ARTICLE II, SECS 9,10,11,13,14,18,20
[Article II, Section 9.] The State shall promote a
just and dynamic social order that will ensure
the prosperity and independence of the nation
and free the people from poverty through
policies that provide adequate social services,
promote full employment, a rising standard of
living, and an improved quality of life for all.
Welfare State
The welfare state concept is found in the
constitutional clause on the promotion of
social justice to ensure the well-being and
economic security of all the people, and in the
pledge of protection to labor with specific
authority to regulate the relations between
landowners and tenants and between labor
and capital. [Alalayan vs. National Power
Corporation (1968)]
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Due Process
Due process requirements are two-fold
substantive (dismissal should be for a valid
and authorized cause as provided by law) and
procedural (due notice and hearing). [Salaw vs.
NLRC (1991)]
To
constitute
valid
dismissal
from
employment, two requisites must concur: (1)
the dismissal must be for a just or authorized
cause and (2) the employee must be afforded
an opportunity to be heard and to defend
himself. [Jeffrey Nacague vs. Sulpicio Lines, Inc.
(2010)]
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Non-impairment of Contracts
A law which changes the terms of a legal
contract between parties, either in the time or
mode or performance, or imposes new
conditions, or dispenses with those expressed,
or authorizes for its satisfaction something
different from that provided in its terms, is a
law which impairs the obligation of a contract
and is null and void. [Clemens vs. Nolting
(1922)]
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Management
and
the
Constitution:
Management Function/Prerogative
The law in protecting the rights of the
employees authorizes neither oppression nor
self-destruction of the employer. It should be
made clear that when the law tilts the scale of
justice in favor of labor, it is but a recognition
of the inherent economic inequality between
labor and management. Never should the
scale be so tilted if the result is an injustice to
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B. CIVIL CODE
B.1 ARTICLE 19
[Article 19.] Every person must, in the exercise
of his rights and in the performance of his
duties, act with justice, give everyone his due,
and observe honesty and good faith.
Liberal Construction
While the terms and conditions of a CBA
constitute the law between the parties, it is not
however, an ordinary contract to which is
applied the principles of law governing
ordinary contracts. A CBA, as a labor contract
within the contemplation of Article 1700 of the
Civil Code of the Philippines which governs the
relations between labor and capital, is not
merely contractual in nature but impressed
with public interest, thus, it must yield to the
common good. As such, it must be construed
liberally rather than narrowly and technically,
and the courts must place a practical and
realistic construction upon it, giving due
consideration to the context in which it is
negotiated and purpose which it is intended to
serve. [Cirtek Employees Labor Union-FFW v
Cirtek Electronics, 2010]
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Fair treatment
The right of an employer to dismiss an
employee differs from and should not be
confused with the manner in which such right
is exercised. It must not be oppressive and
abusive since it affects one's person and
property. [General Bank and Trust Co. vs. CA
(1985)]
LABOR LAW
C. LABOR CODE
7
C.1 ARTICLE 3
LC, Art. 3. Declaration of basic policy. The
State shall afford protection to labor,
promote full employment, ensure equal work
opportunities regardless of sex, race or creed
and regulate the relations between workers
and employers. The State shall assure the
rights of workers to self-organization,
collective bargaining, security of tenure, and
just and humane conditions of work.
Mutual obligation
The employer's obligation to give his workers
just compensation and treatment carries with
it the corollary right to expect from the workers
adequate work, diligence and good conduct.
[Firestone Tire and Rubber Co. vs. Lariosa
(1987)]
C.2 ARTICLE 4
[LC, Art. 4.] Construction in favor of labor. All
doubts
in
the
implementation
and
interpretation of the provisions of this Code,
including its implementing rules and
regulations, shall be resolved in favor of labor
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License
Authority
Authorize an entity to
operate as a private
employment agency
When a license is
given, one is also
authorized to collect
fees
Authorize an entity to
operate as a private
recruitment entity
Does not entitle a
private recruitment
entity to collect fees.
Type
Definition
Private
Any person or
employment entity engaged in
agency
recruitment and
placement of
workers for a fee
Any person or
Private
recruitment association
engaged in the
entity
recruitment and
placement of
workers, locally or
overseas, without
charging, directly or
indirectly, any fee
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Requires
License
Authority
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B.
ESSENTIAL
ELEMENTS
ILLEGAL RECRUITMENT
OF
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Promising employment
Promising employment as factory workers and
receiving money allegedly for processing
papers without authorization or license is
engaging into unlawful recruitment and
placement activities. The absence of the
necessary license or authority renders all of
accused-appellants recruitment activities
criminal. [People vs. Saulo (2000)]
Acts of referral
The act of referral, which is included in
recruitment, is "the act of passing along or
forwarding of an applicant for employment
after an initial interview of a selected applicant
for employment to a selected employer,
placement officer or bureau." [Rodolfo vs.
People (2006)]
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Prohibited practices
It shall be unlawful for any individual, entity,
licensee, or holder of authority:
(a) To charge or accept, directly or indirectly,
any amount greater than that specified in
the schedule of allowable fees prescribed
by the Secretary of Labor, or to make a
worker pay any amount greater than that
actually received by him as a loan or
advance;
(b) To furnish or publish any false notice or
information or document in relation to
recruitment or employment;
(c) To give any false notice, testimony,
information or document or commit any
act of misrepresentation for the purpose of
securing a license or authority under this
Code.
(d) To induce or attempt to induce a worker
already employed to quit his employment
in order to offer him to another unless the
transfer is designed to liberate the worker
from oppressive terms and conditions of
employment;
(e) To influence or to attempt to influence any
person or entity not to employ any worker
who has not applied for employment
through his agency;
(f) To engage in the recruitment or placement
of workers in jobs harmful to public health
or morality or to the dignity of the Republic
of the Philippines;
FOR
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2nd type:
(1) Person charged commits any of the
enumerated acts under Sec. 6 of R.A.
8042, as amended by, R.A. 10022.
(2) It is immaterial whether he is a holder or
not of any license or authority
Illegal recruitment shall mean any act of
canvassing,
enlisting,
contracting,
transporting, utilizing, hiring, or procuring
workers and includes referring, contract
services, promising or advertising for
employment abroad, whether for profit or not,
when undertaken by non-licensee or nonholder of authority contemplated under Article
13(f) of Presidential Decree No. 442, as
amended, otherwise known as the Labor Code
of the Philippines
(d)
(e)
Provided,
That any such non-licensee or non-holder who,
in any manner, offers or promises for a fee
employment abroad to two or more persons
shall be deemed so engaged. [Sec. 6, RA 8042
as amended]
(f)
(g)
Other prohibited acts
It shall likewise include the following acts,
whether committed by any person, whether a
non-licensee, non-holder, licensee or holder of
authority:
(a) To charge or accept directly or indirectly
any amount greater than that specified in
the schedule of allowable fees prescribed
by the Secretary of Labor and Employment,
or to make a worker pay or acknowledge
any amount greater than that actually
received by him as a loan or advance;
(b) To furnish or publish any false notice or
information or document in relation to
recruitment or employment;
(c) To give any false notice, testimony,
information or document or commit any
act of misrepresentation for the purpose of
securing a license or authority under the
(h)
(i)
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(4)
(5)
(6)
(7)
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Law
Labor
Code
Applicabili
ty
Local
Workers
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Acts
Punishabl
e
Art. 13(b)
Art. 34
RA
Migrant
8042
Workers
as
amend
ed by
RA
10022
Art. 13(b)
Labor
Code
Enumerat
ed
prohibite
d acts in
Section 6
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Who can be
punished
Nonlicensee
Nonlicensee
Nonlicensee
Licensee/
Nonlicensee
E. ILLEGAL RECRUITMENT AS
ECONOMIC SABOTAGE
E.1 OFFENSE INVOLVING ECONOMIC
SABOTAGE (LARGE-SCALE OR BY A
SYNDICATE)
Illegal recruitment is considered economic
sabotage when the commission thereof is
attended by the ff. qualifying circumstances:
(1) By a syndicate - if carried out by a group of
3 or more persons conspiring and
confederating with one another;
In large scale - if committed against 3 or more
persons individually or as a group. [Art. 38(b),
LC]
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F. ILLEGAL
ESTAFA
RECRUITMENT
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G. LIABILITIES
VS.
Penalty
Life imprisonment
AND
Fine: P100,000.00
2 years
Imprisonment 5
years OR
P10,000 Fine
P50,000 OR both
4 years
Imprisonment 8
years OR
P20,000 Fine
P100,000 OR both
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Act
Illegal
recruitment
Illegal
recruitment
constituting
economic
sabotage
Prohibited
Act/s
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Penalty
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Solidary Liability
Solidary Liability of Agent and Principal
The written application for a license to operate
a private employment or manning agency shall
be submitted with, among others, a VERIFIED
UNDERTAKING stating that the applicant:
Foreign Employer
Foreign employer shall assume joint and solidary
liability with the employer for all claims and
liabilities which may arise in connection with
the implementation of the contract, including
but not limited to payment of wages, death
and disability compensation and repatriation
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A. DIRECT HIRING
General Rule: No employer may hire a Filipino
worker for overseas employment except
through the Boards and entities authorized by
the Secretary of Labor. (Art. 18, LC)
Exceptions:
(1) Members of the diplomatic corps;
(2) International organizations;
(3) Such other employees as may be allowed
by the Sec. of Labor;
(4) Name hirees those individuals who are
able to secure contracts for overseas
employment on their own efforts and
representation without the assistance or
participation of any agency. Their hiring,
nonetheless, has to be processed through
the POEA. (Part III, Rule III of the POEA
Rules Governing Overseas Employment as
amended in 2002)
B. REGULATIONS AND
ENFORCEMENT
B.1. SUSPENSION OR CANCELLATION OF
LICENSE OR AUTHORITY
The Secretary of Labor shall have the power to
suspend or cancel any license or authority to
recruit employees for overseas employment for
violation of rules and regulations issued by
the Department of Labor, the Overseas
Employment Development Board, and the
National Seamen Board
violation of the provisions of this and other
applicable laws, General Orders and Letters
of Instructions. (Article 35, LC)
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B.3.
REMITTANCE
OF
EXCHANGE EARNINGS
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FOREIGN
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(e)
(f)
(g)
Other prohibited acts
It shall likewise include the following acts,
whether committed by any person, whether a
non-licensee, non-holder, licensee or holder of
authority:
(a) To charge or accept directly or indirectly
any amount greater than that specified in
the schedule of allowable fees prescribed
by the Secretary of Labor and Employment,
or to make a worker pay or acknowledge
any amount greater than that actually
received by him as a loan or advance;
(b) To furnish or publish any false notice or
information or document in relation to
recruitment or employment;
(c) To give any false notice, testimony,
information or document or commit any
act of misrepresentation for the purpose of
securing a license or authority under the
Labor Code, or for the purpose of
documenting hired workers with the POEA,
which include the act of reprocessing
workers through a job order that pertains
to nonexistent work, work different from
the actual overseas work, or work with a
different employer whether registered or
not with the POEA;
(d) To include or attempt to induce a worker
already employed to quit his employment
(h)
(i)
(j)
(k)
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A. COVERAGE
[Art. 82, Labor Code]
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Non-agricultural employees:
(1) Who regularly perform their duties away
from the principal place of business or
branch office of the employer AND
(2) Whose actual hours of work in the field
cannot be determined with reasonable
certainty. (Art. 82, LC)
Legal Test: Control and Supervision of ER
Although the fishermen perform nonagricultural work away from petitioners
business offices, the fact remains that
throughout the duration of their work they are
under the effective control and supervision of
petitioner through the vessels patron or
master. Hence, the fishermen are not field
personnel. [Mercidar Fishing Corporation v.
NLRC (1998)]
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B. HOURS OF WORK
B.1. COVERAGE/EXCLUSIONS
See previous section (A. Coverage) which deals
with the general rules of coverage and
exclusions for the applicability of the
Conditions of Employment provisions in Book
III of the Labor Code.
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On call
An employee who is:
(1) Required to remain on call in the
employers premises or so close thereto
(2) That he cannot use the time effectively
and gainfully for his own purpose shall
be considered as working while on call.
Book III, Rule 1, Sec. 5(b), IRR. 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.
Note:
(1) Attendance in lectures, meetings, and
training periods sanctioned by the
employer are considered hours worked.
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Idle time
The idle time that an employee may spend for
resting and dining which he may leave the spot
or place of work though not the premises of his
employer, is not counted as working time only
where the work is broken or is not continuous.
[National Development Co. v. CIR (1962)]
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Forced Leave
Employees are required to go on leave for
several days or weeks utilizing their leave
credits of there are any.
Broken-time Schedule
The works schedule is not continuous but the
work hours within the day or week remain.
Flexi-holidays
The employees agree to avail the holidays at
some other days provided there is no
diminution of existing benefits as a result of
such arrangement.
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Effects of CWW
(1) Unless there is a more favorable practice
existing in the firm, work beyond eight
hours will not be compensable by overtime
premium provided the total number of
hours worked per day shall not exceed
twelve (12) hours. In any case, any work
performed beyond 12 hours a day or 48
hours a week shall be subject to overtime
premium.
(2) Consistent with Art. 85 of the LC,
employees under a CWW scheme are
entitled to meal periods of not less than 60
minutes. There shall be no impairment of
the right of the employees to rest days as
well as to holiday pay, rest day pay or
leaves in accordance with law or applicable
collective bargaining agreement or
company practice.
(3) Adoption of the CWW scheme shall in no
case result in diminution of existing
benefits. Reversion to the normal eighthour workday shall not constitute a
diminution of benefits.
Rationale
Although the right to overtime pay cannot be
waived as per Cruz v. Yee Sing (1959), D.O. No.
21 sanctions the waiver of overtime pay in
consideration of the benefits that the
employees will derive from the adoption of a
compressed workweek scheme, thus:
The compressed workweek scheme was
originally conceived for establishments wishing
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no substitute ready to take his
place. [Manila Railroad Co. v. CIR
(1952)]
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Transfer
Night workers who are certified as unfit for
night work, due to health reasons, shall be
transferred to a similar job for which they are
fit to work. If such is not practicable, they shall
be granted the same benefits as other workers
who are unable to work, or to secure
employment during such period. [Art. 157, RA
1015]
NIGHT
LABOR LAW
SHIFT
Night worker
Any employed person whose work requires
performance of a substantial number of hours
of night work which exceed a specified limit.
This limit shall be fixed by the Sec of Labor
after
consulting
the
workers
representatives/labor
organizations
and
employers. [Art. 154, RA 10151]
Health Assessment
At the workers request, they shall have the
right to undergo a health assessment without
charge and to receive advice on how to reduce
or avoid health problems associated with their
work. [Art. 155, RA 10151]
Mandatory Facilities
Suitable first-aid facilities shall be made
available for workers, including arrangements
where they, when necessary, can be taken
immediately to a place for appropriate
treatment. The employers are likewise required
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establishment.
Organization)
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(International
Labor
C. WAGES
Definition
(a) It is the remuneration or earnings,
however designated, capable of being
expressed in terms of money,
(b) Whether fixed or ascertained on a time,
task, piece, or commission basis, or other
method of calculating the same,
(c) Which is payable by an employer to an
employee
(d) Under a written or unwritten contract of
employment for work done or to be done,
or for services rendered or to be rendered
and
(e) Includes the fair and reasonable value, as
determined by the Secretary of Labor and
Employment, of board, lodging, or other
facilities customarily furnished by the
employer to the employee
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Salary
Not subject to
execution,
garnishment or
attachment except for
debts related to
necessities [Art. 1708]
Coverage/Exclusions
[Art. 98 and Book 3, Rule VII, Sec 3, IRR]
The Labor Code Title on wages shall not apply
to the following:
(1) Farm tenancy or leasehold;
(2) Household
or
domestic
helpers,
including family drivers and other
persons in the personal service of
another;
(3) Homeworkers engaged in needlework;
(4) Workers in registered cottage industries
who actually work at home;
(5) Workers in registered cooperatives when
so recommended by the Bureau of
Cooperative Development upon approval
of the Secretary of Labor;
Coverage
General Rule: The wage increases prescribed
under Wage Orders apply to all private sector
workers and employees receiving the daily
minimum wage rates or those receiving up to a
certain daily wage ceiling, where applicable,
regardless of their position, designation, or
status, and irrespective of the method by which
their wages are paid.
Exceptions:
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(1) Domestic
Helpers/kasambahay
are
covered by RA 10361
(2) Workers of registered barangay micro
business enterprise with Certificates of
Authority issued by the Office of the
Municipal or City Treasurer. [RA 9178]
(3) Learners [RA 602]
(4) Apprentices [RA 602]
(5) Handicapped Worker [RA 602]
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Basis
The basis of the minimum wage rates
prescribed by law shall be the normal working
hours of 8 hours a day. [Sec 7, IRR of RA 6727]
Freedom to bargain
Despite the minimum wage order, employees
are not prevented from bargaining for higher
wages with their employers.
Note: Daily minimum wage in NCR applicable
from Apr. 4, 2015 is now P481 [Wage Order
No. NCR-19]
Factors/Criteria in determining regional
minimum wages:
(1) Demand for living wages;
(2) Wage adjustment the consumer price
index;
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Note: Learners employed in piece or incentiverate jobs during the training period shall be
paid in full for the work done. [Art. 76, LC]
C.4. COMMISSIONS
Commissions have been defined as the
recompense, compensation or reward of an
agent, salesman, executor, trustee, receiver,
factor, broker or bailee, when the same is
calculated as a percentage on the amount of
his transactions or on the profit to the
principal. [Philippine Duplicators, Inc. v. NLRC
(1993)]
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remuneration
cannot
fall,
not
that
commissions are excluded from wages in
determining compliance with the minimum
wage law. [Iran v. NLRC (1998)]
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Without Employees
consent
Exceptions:
(1) In cases where the worker is insured with
his consent by the employer, and the
deduction is to recompense the employer
for the amount paid by him as premium on
the insurance;
(2) For union dues, in cases where the right of
the worker or his union to check-off has
been recognized by the employer or
authorized in writing by the individual
worker concerned; and
(3) In cases where the employer is authorized
by law or regulations issued by the
Secretary of Labor and Employment (Art.
113, LC), such as:
(a) Employee debt to employer is due and
demandable (Art. 1706, CC);
(b) Attachment or execution in cases of
debts incurred for necessities: food,
shelter, clothing, medical attendance
(Art. 1708, CC);
(c) Withholding tax;
(d) Deductions of a legally established
cooperative;
(e) Payment to 3rd parties upon written
authority by employee;
(f) Deductions for loss or damage;
(g) SSS, Medicare, Pag-IBIG premiums;
(h) Deduction for value meals and other
facilities.
Workers
insurance
acquired by the
employer
Union
dues,
where the right to
check-off
is
recognized by the
employer
(provided in the
CBA)
Debts of the
employee to the
employer
that
have become due
and demandable
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Requisites
If the following are met, then the employer
cannot remove or reduce benefits:
(1) Ripened company policy: Benefit is
founded on a policy which has ripened
into a practice over a long period
[Prubankers Assn. vs. Prudential Bank
and Co., 1999]
(2) Practice is consistent and deliberate
and
(3) Not due to error in the construction or
application of a doubtful or difficult
question of law. [Globe Mackay Cable
vs. NLRC, 1988]
(4) The diminution or discontinuance is
done unilaterally by the employer.
Comparison
Supplements
between
Facilities
Facilities
and
Supplements
What it is
Articles
services/items
expense
or Extra remuneration or
of special benefits /
articles or services /
tools of the trade
Who Benefits
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Facilities
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(d)
Supplements
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394.1 days/year
296 days
ordinary working
20 days
10 regular holidays x 200%
52 rest days x 130 %
67.60 days
7 special days x 130%
9.1 days
(2) For those who do not work and are not
considered paid on Sundays or rest days:
365 days/year
296 days
52 days
10 days
7 days
313 days/year
296 days
12 days
5 days
ordinary working
regular holidays
special days (if considered
paid; if actually worked, this is
equivalent to 6.5 days)
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D. REST DAY
D.1. WEEKLY REST DAY
It shall be the duty of every employer, whether
operating for profit or not, to provide each of
his employees a rest period of not less than
twenty-four (24) consecutive hours after every
six (6) consecutive normal work days. [Art. 91
(a)]
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E.1. COVERAGE
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Work
on
special Regular daily wage +
holiday not exceeding 30% thereof
8 hours
Work
on
holiday
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Computation
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Divisors
The divisor assumes an important role in
determining whether or not holiday pay is
already computed.
(1) Monthly paid employees are not entitled
to the holiday pay if their total annual
income is divided by 365 days resulting
in a wage which is beyond the minimum
wage per day because they are
considered paid everyday of the year
including holidays, rest days, and other
non-working days. The 365 days are as
follows:
(a)
(b)
(c)
(d)
LABOR LAW
Sundays
(1) When a holiday falls on a Sunday, the
following Monday will not be considered a
holiday unless a proclamation says so.
(2) Furthermore as stated in the Wellington
case (see below), a legal holiday falling on
a Sunday does not create a legal obligation
to pay extra, aside from the usual holiday
pay, to monthly-paid employees. [Azucena
citing Letter of Instruction No. 1087]
No provision of law requires any employer to
make adjustments in the monthly salary rate
set by him to take account of legal holidays
falling on Sundays in a given year, otherwise to
reckon a year at more than 365 days.
[Wellington Investment and Manufacturing
Corporation vs. Trajano (1995)]
Example:
If a holiday falls on Monday, and Sunday is a
non-working day in the establishment or is the
scheduled rest day of the employee, the
employee shall be entitled to holiday pay if he
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WORKERS,
WORKERS,
Note:
(1) If an employee is on leave of absence with
pay on the day immediately preceding a
regular holiday, he is entitled to holiday
pay.
(2) If an employee is on leave of absence
without pay on the day immediately
preceding a regular holiday, he is not
entitled to holiday pay unless he works on
such regular holiday.
In case of temporary cessation of work
(1) In cases of temporary or periodic shutdown
and temporary cessation of work of an
establishment, as when a yearly inventory
or when the repair or cleaning of
machineries and equipment is undertaken,
the regular holidays falling within the
periods shall be compensated in
accordance with this Rule.
(2) The regular holiday during the cessation of
operation of an enterprise due to business
reverses as authorized by the Secretary of
Labor may not be paid by the employer.
[Book III, Rule IV, Sec 7, IRR]
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(2)
(3)
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Premium Pay
Premium pay refers to the additional
compensation for work performed within 8
hours on non-work days, such as rest days and
special days.
Coverage [Book 3, Rule 3, Sec. 7, IRR]
General Rule: All employees
Exceptions:
(1) Those of the government and any of the
political
subdivision,
including
government-owned
and
controlled
corporations;
(2) Managerial employees as defined in
Book III;
(3) Househelpers and persons in the
personal service of another;
(4) Workers who are paid by results,
including those who are paid on piece
rate, takay, pakyaw, or task basis, and
other noontime work, if their output rates
are in accordance with the standards
prescribed in the regulations, or where
such rates have been fixed by the
Secretary of Labor and Employment;
(5) Field personnel, if they regularly perform
their duties away from the principal or
branch office or place of business of the
ER and whose actual hours of work in the
filed cannot be determined with
reasonable certainty.
Piece workers
Philosophy underlying the exclusion of piece
workers from the 8-hour law is that said
workers are paid depending upon the work
they do irrespective of the amount of time
employed in doing said work. [Red v. Coconut
Products Ltd., v. CIR (1966)]
Seafarers
Any hours of work or duty including hours of
watch-keeping performed by the seafarer on
designated rest days and holidays shall be
paid rest day or holiday pay. (Section 11.C,
Standard Terms and Conditions Governing the
Employment of Filipino Seafarers on Board
Ocean-Going Vessels)
Seasonal workers
Seasonal workers who do not work during offseason are not entitled to pay for the regular
holidays occurring during their off-season.
Workers assigned to skeleton crews that
work during the off-season have the right to be
paid on regular holidays falling in that
duration.
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F. LEAVES
F.1. SERVICE INCENTIVE LEAVE PAY
When Work
Performed
Premium Pay
Jurisprudence:
(1) Teachers of private school on contract
basis are entitled to service incentive leave.
[Cebu Institute of Technology v. Ople (1987)]
(2) In the case of Makati Haberdashery v.
NLRC the Court ruled that piece-rate
employees are not entitled to service
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Coverage
Every pregnant woman in the private sector,
whether married or unmarried, is entitled to
the maternity leave benefits.
Entitlement
[Art. 95 (c), LC.] The grant of benefit in excess
of that provided herein shall not be made a
subject of arbitration or any court or
administrative action.
The cause of action of an entitled employee to
claim his service incentive leave pay accrues
from the moment the employer refuses to
remunerate its monetary equivalent if the
employee did not make use of said leave
credits but instead chose to avail of its
commutation (into money). Accordingly, if the
employee wishes to accumulate his leave
credits and opts for its commutation upon his
resignation or separation from employment,
his cause of action to claim the whole amount
of his accumulated service incentive leave shall
arise when the employer fails to pay such
amount at the time of his resignation or
Benefit received
A daily maternity benefit equivalent to 100% of
her average daily salary credit for:
(1) 60 days for normal delivery
(2) 78 days for caesarean delivery
Note: This benefit shall NOT be included in the
computation of 13th month pay as it is granted
to an employee in lieu of wages which is the
basis for computing 13th month.
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Benefit
It shall apply to the first 4 deliveries of the
employees lawful wife with whom he is
cohabiting.
It shall be for 7 calendar days, with full pay,
consisting of basic salary and mandatory
allowances fixed by the Regional Wage Board,
if any, provided that his pay shall not be less
than the mandated minimum wage. [Sec. 2, RA
8187]
Other conditions
(1) Employer shall advance the payment
subject to reimbursement by the SSS
within 30 days from filing of leave
application.
(2) Availment shall be a bar to the recovery of
sickness benefits provided by this Act for
the same period for which daily maternity
benefits have been received.
(3) Employee may only avail of benefit for the
first four (4) deliveries or miscarriages.
(4) Sanction: That if an employee should give
birth or suffer miscarriage
(a) Without the required contributions
having been remitted for her by her ER
to the SSS, or
(b) Without the latter having been
previously notified by the ER of time of
the pregnancy, then the employer shall
pay to the SSS damages equivalent to
the benefits which said employee
member would otherwise have been
entitled to.
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Coverage
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Availment
The parental leave is in addition to leave
privileges under existing laws with full pay,
consisting of basic salary and mandatory
allowances. It shall not be more than seven (7)
working days every year. [Sec. 8, RA 8972]
Definition of Terms
Violence against women and their children
refers to any act or a series of acts committed
by any person against a woman who is his wife,
former wife, or against a woman with whom
the person has or had a sexual or dating
relationship, or with whom he has a common
child, or against her child whether legitimate
or illegitimate, within or without the family
abode, which result in or is likely to result in
physical, sexual, psychological harm or
suffering, or economic abuse including threats
of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty.
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Competent physician
A medical doctor preferably specializing in
gynecological disorders or is in the position to
determine the period of recuperation of the
woman employee. [Sec. 1, DO 112, as amended]
Employment service
Includes absences with pay such as use of
other mandated leaves, company-granted
leaves and maternity leaves
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Period of entitlement
The 2 months special leave is the maximum
period of leave with pay that a woman
employee may avail of under RA 9710.
For purposes of determining the period of
leave with pay that will be allowed to a female
employee, the certification of a competent
physician as to the required period of
recuperation shall be controlling. [Sec. 4, DO
112, as amended]
Availment
The special leave shall be granted to the
qualified employee after she has undergone
surgery. [Sec. 5, DO 112, as amended]
Frequency of availment
A woman employee can avail of the SLB for
every instance of surgery due to gynecological
disorder for a maximum total period of 2
months per year. [Sec. 6, DO 112, as amended]
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Mode of payment
The SLB is a leave privilege. The woman
employee shall not report for work for the
duration of the leave but she will still receive
her salary covering said period. The employer,
in its discretion, may allow said employee to
receive her pay for the period covered by the
approved leave before or during the surgery.
The computation of her pay shall be based
on her prevailing salary at the time of the
surgery. [Sec. 11, DO 112, as amended]
LABOR LAW
G. SERVICE CHARGES
Coverage
Employers (Sec 1, Rule VI, Book 3, IRR)
This rule shall apply only to establishments
which collect service charges such as:
(1) Hotels, restaurants, lodging houses, night
clubs, cocktail lounge, massage clinics,
bars, casinos and gambling houses and
similar enterprises
(2) Including those entities operating primarily
as private subsidiaries of the Government
Employees
Shall apply to ALL employees of covered
employers
(1) Regardless of their positions, designations,
or employment status,
(2) Irrespective of the method by which their
wages are paid.
Exceptions
Managerial employees or one who is vested
with powers or prerogatives to lay down and
execute managerial policies and/or hire,
transfer, suspend, layoff, recall, discharge,
assign or discipline employees or to effectively
recommend such managerial actions. All
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Note:
Equivalent includes:
(1) Christmas bonus, mid-year bonus, cash
bonuses
(2) and other payments amounting to not
less than 1/12 of the basic salary
(3) but shall NOT INCLUDE cash and stock
dividends, cost of living allowances and
all other allowances regularly enjoyed
by the employee as well a nonmonetary benefits.
Coverage
General Rule: ALL EMPLOYERS are hereby
required to pay all their rank and file
employees a 13th month pay not later than Dec
24 of every year, Provided that they have
worked for at least one (1) month during a
calendar year.
Exempted Employers:
(1) Government, its political subdivisions,
including GOCCs except those operating
essentially as private subsidiaries of the
Government;
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Time of payment
General Rule: paid not later than Dec 24 of
each year.
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Additional Rules:
(1) Commissions: If the commissions may be
properly considered part of the basic
salary, then they should be INCLUDED. If
they are not an integral part of the basic
salary, then they should be EXCLUDED.
[Phil. Duplicators Inc. vs NLRC (1995)]
(2) Substitute Payment not allowed: Benefits
in the form of food or free electricity,
assuming they were given, were not a
proper substitute for the 13th month pay
required by law. Neither may year-end
rewards for loyalty and service be
considered in lieu of 13th month pay.
[Framanlis Farms, Inc. vs MOLE (1989)]
(3) 14th Month Pay is not mandated: Employers
already paying their employees a 13th
month pay or its equivalent are not covered
by this Decree.[Kamaya Point Hotel vs
NLRC (1989)]
LABOR LAW
I. SEPARATION PAY
[(Art. 283 & 284, LC, DOLE Handbook on
Workers Statutory Monetary Benefits, 2014)
Separation pay is defined as the amount that
an employee receives at the time of his
severance from the service and is designed to
provide the employee with the wherewithal
during the period that he is looking for
another employment. [A Prime Security
Services vs NLRC (1993)]
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Notice of Termination
The employer may terminate the employment
of any employee due to the above-mentioned
authorized causes by serving a written notice
on the employee and the DOLE through its
regional office having jurisdiction over the
place of business at least 1 month before the
intended date thereof.
Basis of Separation Pay
The computation of separation pay of an
employee shall be based on his/her latest
salary rate. [DOLE Handbook on Workers
Statutory Monetary Benefits, 2014 ed.]
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J. RETIREMENT PAY
[RA 7641 - The Retirement Pay Law]
J.1. ELIGIBILITY
General Rule: All employees in the private
sector, regardless of their position,
designation, or status, and irrespective of the
method by which their wages are paid [Sec. 1,
IRR, RA 7641]
Rationale
RA 7641 is undoubtedly a social legislation.
The law has been enacted as a labor protection
measure and as a curative statute that absent
a retirement plan devised by, an agreement
with, or a voluntary grant from, an employer
can respond, in part at least, to the financial
well-being of workers during their twilight
years soon following their life of labor. There
should be little doubt about the fact that the
law can apply to labor contracts still existing at
the time the statute has taken effect, and that
its benefits can be reckoned not only from the
date of the law's enactment but retroactively to
the time said employment contracts have
started. [Enriquez Security Services, Inc. v.
Cabotaje, 2006]
Pursuant thereto, this Court imposed two (2)
essential requisites in order that R.A. 7641 may
be given retroactive effect:
(1) the claimant for retirement benefits was
still in the employ of the employer at the
time the statute took effect; and
(2) the claimant had complied with the
requirements for eligibility for such
retirement benefits under the statute.
[Universal Robina Sugar Milling Corp. vs
Caballeda, 2008]
Exceptions:
(1) employees covered by the Civil Service
Law;
(2) domestic helpers and persons in the
personal service of another, and
(3) employees in retail, service and
agricultural establishments or operations
regularly employing not more than ten
employees [Sec. 2, IRR, RA 7641]
Exclusions from coverage
R.A. No. 7641, otherwise known as "The
Retirement Pay Law," only applies in a
situation where:
(1) there is no collective bargaining
agreement
or
other
applicable
employment contract providing for
retirement benefits for an employee; OR
(2) there is a collective bargaining agreement
or other applicable employment contract
providing for retirement benefits for an
employee, but it is below the requirements
set for by law.
The reason for the first situation is to prevent
the absurd situation where an employee, who
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Age of retirement
In the absence of a retirement plan or
agreement providing for retirement benefits of
employees in the establishment, an employee
upon reaching the age of sixty (60) years or
more, but not beyond sixty-five (65) years
which is hereby declared the compulsory
retirement age (and have served the
establishment for at least 5 years). [Sec. 1, IRR,
RA 7641]
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J.5. TAXABILITY
Any
provision of law to the contrary
notwithstanding, the retirement benefits
received by officials and employees of private
firms, whether individual or corporate , in
accordance with a reasonable private benefit
plan maintained by the employer shall be
exempt from all taxes and shall not be liable to
attachment, garnishment, levy or seizure by or
under any legal or equitable process
whatsoever except to pay a debt of the official
or employee concerned to the private benefit
plan or that arising from liability imposed in a
criminal action: Provided, That the retiring
official or employee has been in the service for
at least ten (10) years and is not less than fifty
years of age at the time of his retirement:
Provided, further, That the benefits granted
under this Act shall be availed of by an official
or employee only once; Provided, finally, That
in case of separation of an official or employee
from the service of the employer due to death,
sickness, or other physical disability or for any
cause beyond the control of the said official or
employee, any amount received by him or by
his heirs from the employer as a consequence
of such separation shall likewise be exempt as
hereinabove provided.
J.3.
RETIREMENT
BENEFITS
OF
WORKERS WHO ARE PAID BY RESULTS
For covered workers who are paid by result and
do not have a fixed monthly salary rate, the
basis for the determination of the salary for 15
days shall be their average daily salary (ADS).
The ADS is derived by dividing the total salary
or earning for the last 12 months reckoned
from the date of retirement by the number of
actual working days in that particular period,
provided that the determination of rates of
payment by results are in accordance with
established regulations.
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K. WOMEN WORKERS
The State recognizes the role of women in
nation-building, and shall ensure the
fundamental equality before the law of women
and men.[Consti Art II Sec 14]
Exception
Except to pay a debt of the official or employee
concerned to the private benefit plan or that
arising from liability imposed in a criminal
action:
Additional conditions
(a) That the retiring official or employee has
been in the service of the same employer
for at least ten (10) years and is not less
than fifty years of age at the time of his
retirement;
(b) That the retirement benefits shall be
availed of by an official or employee only
once; and,
(c) That in case of separation of an official or
employee from the service of the employer
due to death, sickness or other physical
disability or for any cause beyond the
control of the said official or employee, any
amount received by him or by his heirs
from the employer as a consequence of
such separation shall likewise be exempt
as hereinabove provided.
K.1.
PROVISIONS
DISCRIMINATION
AGAINST
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[Art. 135]
Note: Nightwork/ Exception (Art 130-131) No
more nightwork prohibition under R.A. 10151
(An Act Allowing the Employment of Night
Workers, thereby Repealing Articles 130 and
131 of PD 442, as amended, otherwise known
as the Labor Code of the Philippines)
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Termination
As a managerial employee, petitioner is bound
by more exacting work ethics. When such
moral perversity is perpetuated against his
subordinate, he provides a justifiable ground
for his dismissal for lack of trust and
confidence. It is the right, nay the duty of every
employer to protect its employees from
oversexed superiors. [Sec. 7, RA 7877] [Libres vs
NLRC, 1999]
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L. MINOR WORKERS
Relevant Laws: RA 7610 (Special Protection of
Children Against Abuse, Exploitation and
Discrimination Act), RA 9231 (Special
Protection of Children Against Child Abuse,
Exploitation and Discrimination Act), Art.
137(a)
Constitutional basis: The State recognizes the
vital role of the youth in nation-building and
shall promote and protect their physical,
moral, spiritual, intellectual, and social wellbeing. It shall inculcate in the youth patriotism
and nationalism, and encourage their
involvement in public and civic affairs.[Art II,
Sec. 13 of the 1987 Constitution]
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prescribed primary and/or secondary
education; [Sec. 12 of RA 7610 as
amended by RA 7658]
Exceptions
(1) Child works directly under the sole
responsibility of his parents or legal
guardian and where only members of the
ERs family are employed, provided:
(a) his employment does NOT endanger
his life, safety, health and morals,
(b) nor impairs his normal development,
and
(c) the parent or legal guardian shall
provide the said minor child with the
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M. EMPLOYMENT OF
HOUSEHELPERS
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and
(7) Five hundred fifty pesos (P550.00) a
month
for
those
in
other
municipalities; Provided, that the
employees
shall
review
the
employment contracts of their
househelpers every three (3) years
with the end in view of improving the
terms and conditions thereof.
Provided, further, that those
househelpers who are receiving at
least
One
thousand
pesos
(P1,000.00) shall be covered by the
Social Security System (SSS) and be
entitled to all the benefits provided
thereunder."
Pre-Employment Requirement
Prior to the execution of the employment
contract, the employer may require the
following from the domestic worker:
(1) Medical certificate or a health certificate
issued by a local government health
officer;
(2) Barangay and police clearance;
(3) National Bureau of Investigation (NBI)
clearance; and
(4) Duly authenticated birth certificate or if not
available, any other document showing the
age of the domestic worker such as voters
identification card, baptismal record or
passport.
However, Section 12(a), (b), (c) and (d) shall be
standard requirements when the employment
of the domestic worker is facilitated through
the PEA.
(d) Privacy
Respect for the privacy of the domestic worker
shall be guaranteed at all times and shall
extend to all forms of communication and
personal effects [Sec. 7, RA 10361]
(e) Access to Outside Communication
The employer shall grant the domestic worker
access to outside communication during free
time: Provided, That in case of emergency,
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(c)
(d)
(e)
(f)
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employer or any member of the
household;
Commission of a crime or offense
against the domestic worker by the
employer or any member of the
household;
Violation by the employer of the terms
and conditions of the employment
contract and other standards set forth
under this law;
Any disease prejudicial to the health of
the domestic worker, the employer, or
member/s of the household; and
Other causes analogous to the
foregoing. [Sec. 33, RA 10361]
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Unjust dismissal
Neither the domestic worker nor the employer
may terminate the contract before the
expiration of the term except for grounds
provided in Sec. 33 and 34 of RA 10361.
premium
contributions shall be deducted from their
pay and shall be remitted by
ER/contractor/subcontractor to the SSS
N. EMPLOYMENT OF
HOMEWORKERS
Liability of Employer
(1) ER may require homeworker to redo work
improperly executed without additional
pay [Sec 9a, Rule XIV, Book III, IRR]
(2) ER need not pay homeworker for any work
done on goods or articles not returned due
to homeworkers fault [Sec 9b, Rule XIV,
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IRR]
(4) ER shall assist the homeworkers in the
maintenance of basic safe and healthful
working conditions at the
(5) homeworkers place of work. [Sec 11, Rule
7796]
LC]
O.1. APPRENTICES
Prohibited Homework
Homework is prohibited in the ff:
(1) explosives, fireworks and articles of like
character;
(2) drugs and poisons; and
(3) other articles, the processing of which
requires exposure to toxic substances. [Sec
(k), RA 7796]
(l) "Apprenticeship Agreement" is a contract
wherein a prospective employer binds
himself to train the apprentice who in turn
accepts the terms of training for a
recognized apprenticeable occupation
emphasizing the rights, duties and
responsibilities of each party.
(m) Apprenticeable Occupation is an
occupation officially endorsed by a
tripartite body and approved to be
apprenticeable by the authority. [Sec. 4,
RA 7796]
The act of filing the proposed apprenticeship
program with the DOLE is a preliminary step
towards its final approval, and does not
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RA 7658, Sec. 1]
Qualifications of apprentice
(a) Be at least 14 years of age;
(b) Possess vocational aptitude and capacity
for appropriate tests; and
(c) Possess the ability to comprehend and
follow oral and written instructions.
Trade and industry associations may
recommend to the Secretary of Labor
appropriate educational requirements for
different occupations. [Art. 59, LC]
Integrating
both
the
abovementioned
provisions then the qualifications of an
apprentice are as follows:
(1) At least 15 years of age [as amended by
R.A. 7610], provided that if he is below 18
years, he shall not be eligible for
hazardous occupation;
(2) Possess vocational aptitude and capacity
for appropriate tests;
(3) Possess the ability to comprehend and
follow oral and written instructions. [Art.
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Employment of Apprentices
When applicable:
(1) Only employers in highly technical
industries may employ apprentices; and
(2) Only in apprenticeable occupations
approved by the Secretary of Labor. [Art.
LABOR LAW
Enforcement
Investigation of violation of apprenticeship
agreement. - Upon complaint of any interested
person or upon its own initiative, the
appropriate agency of the Department of
Labor and Employment or its authorized
representative shall investigate any violation of
an apprenticeship agreement pursuant to such
rules and regulations as may be prescribed by
the Secretary of Labor and Employment. [Art.
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Summary of Rules:
(1) The apprentice must be paid not less than
75% of the prescribed minimum salary
[Art. 61, Labor Code];
HOWEVER, the employer MAY NOT pay
any wage if the apprenticeship training is:
a. part of the school curriculum,
b. a requirement for graduation, or
c. a requirement for board examination
[Art. 72]
Code]
O.2. LEARNERS
Learners - persons hired as trainees in semiskilled and other industrial occupations which
are non-apprenticeable and which may be
learned through practical training on the job in
a relatively short period of time which shall not
exceed three (3) months [Art 73, Labor Code,
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Summary of Rules
(1) The duration of learnership shall not
exceed 3 months [Art. 73, LC];
(2) If the learnership of 3 months is
completed, the employer may be
compelled to continue with the services of
the learner as a regular employee;
(3) There is a commitment from the employer
to employ the learners if they so desire, as
regular employees upon completion of the
learnership;
(4) If the learner is dismissed from service
without just and valid cause and without
due process after 2 months of service, he
will be deemed as regular employee; and
[Art. 75(d)]
(5) The wages or salary rates of the learners
which shall begin at not less than 75% of
the applicable minimum wage. [Art. 75(c)]
Distinctions
between
Apprenticeship
Apprenticeship
Highly
industries
technical
Practical
training
supplemented
by
related
theoretical
instruction
Apprenticeable
occupations approved
by the SOLE
Written
apprentice
agreement ratified by
the
appropriate
committees
More than 3 months,
shall not exceed 6
months
1. The person is at
least 15 years of age,
provided those who
Learnership
and
Learnership
Semi-skilled
industrial
occupations
Practical
training
whether or not such
practical training is
supplemented
by
theoretical
instructions
available;
2. The employment of
learners
is
necessary
to
prevent
curtailment
of
employment
opportunities; and
3. The employment
does not create
unfair competition
in terms of labor
costs or impair or
lower
working
standards.
No compensation if
Learners in piecework
SOLE authorizes, as
shall be paid in full
OJT is required by the
for the work done
school
A commitment to
employ the learners if
they so desire, as
regular
employees
upon completion of
the learnership.
Non-apprenticeable
occupations
Learnership
agreement
Shall not exceed 3
months
1. When
experienced
workers
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no
are
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deemed
regular
employees if training
is terminated by the
employer before the
end of the stipulated
period through no
fault of the learners.
such
an
Deductibility of of
training
costs
incurred, provided:
Program is duly
recognized by DOLE
Deduction shall not
exceed 10% of direct
labor wage
Payment
of
minimum wage to
apprenticeship
P. HANDICAPPED WORKERS
DIFFERENTLY-ABLED WORKERS
[RA 7277 - Magna Carta for Disabled Persons,
as amended by RA 9442]
Disabled Persons are those suffering from
restriction or different abilities, as a result of a
mental, physical or sensory impairment, to
perform an activity in the manner or within the
range considered normal for a human being
[Sec. 4 (a), RA 7277]
Impairment is any loss, diminution or
aberration of psychological, physiological, or
anatomical structure or function [Sec. 4(b), RA
7277]
Disability shall mean:
(a) physical or mental impairment that
substantially limits one or more
psychological, physiological or anatomical
function of an individual or activities of
such individual; OR
(b) a record of such an impairment; OR
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government agencies
(d) The State also recognizes the role of the
private sector in promoting the welfare of
disabled persons and shall encourage
partnership in programs that address their
needs and concerns
(e) To facilitate integration of disabled
persons into the mainstream of society, the
State shall advocate for and encourage
respect for disabled persons. The State
shall exert all efforts to remove all social,
cultural, economic, environmental and
attitudinal barriers that are prejudicial to
disabled persons.
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[Sec 2, RA 7277]
In the placement of disabled persons in
sheltered employment, it shall accord due
regard to the individual qualities, vocational
goals and inclinations to ensure a good
working atmosphere and efficient production.
[Sec 6, RA 7277]
Apprenticeship Opportunities.
Disabled
persons shall be eligible as apprentices or
learners: Provided, that their handicap is NOT
as much as to effectively impede the
performance of job operations in the particular
occupation for which they are hired; provided,
further, That after the lapse of the period of
apprenticeship, if found satisfactory in the job
performance, they shall be eligible for
employment. [Art. 81 Labor Code; Sec. 7, RA
RA 7277]
RA 7277]
NCR-19]
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1999)
Discounts and other privileges
Persons with disability shall be entitled to the
following:
(a) At least 20% discount from all
establishments relative to the utilization of
all services in hotels and similar lodging
establishments; restaurants and recreation
centers for the exclusive use or enjoyment
of persons with disability;
(b) A minimum of 20% discount on admission
fees charged by theaters, cinema houses,
concert halls, circuses, carnivals and other
places of culture, leisure and amusement
for the exclusive use or enjoyment of
persons with disability;
(c) At least 20% discount for the purchase of
medicines in all drugstores for the
exclusive use or enjoyment of persons with
disability;
(d) At least 20% discount on medical and
dental services including diagnostic and
laboratory fees such as, but not limited to,
x-rays, computerized tomography scans
and blood tests, in all government
facilities, subject to guidelines to be issued
by the DOH in coordination with the
PHILHEALTH.
(e) At least 20% discount on medical and
dental services including diagnostic and
laboratory fees and professional fees of
attending doctors in all private hospitals
and medical facilities, in accordance with
the rules and regulations to be issued by
the
DOH,
in
coordination
with
PHILHEALTH;
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Enforcement
Enforcement by the Secretary of Justice
(a) Denial of Right
Duty to Investigate. The Secretary of Justice
shall investigate alleged violations of this
Act, and shall undertake periodic reviews
of compliance of covered entities under
this Act.
(b) Potential Violations
The Secretary of Justice may commence a
legal action in any appropriate court if the
Secretary has reasonable cause to believe
that
(1) any person or group of persons is
engaged in a pattern of practice of
discrimination under this Act; or
(2) any person or group of persons has
been discriminated against under
this Act and such discrimination
raises and issue of general public
importance. [Sec 44, RA 7277]
Authority of Court. The court may grant any
equitable relief that such court considers to be
appropriate, including, to the extent required
by this Act:
(a) granting temporary, preliminary or
permanent relief;
(b) providing an auxiliary aid or service,
modification of policy, practice or
procedure, or alternative method; and
7277]
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IV. Termination of
Employment
A. EMPLOYER-EMPLOYEE
RELATIONSHIP
any
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individual
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TEST OF EMPLOYER-EMPLOYEE
RELATIONSHIP
(a) Selection and engagement of the
employee;
(b) Payment of wages;
(c) Power of dismissal; and
(d) Employers power to control the
employees conduct with respect to the
means and methods by which the work is
to be accomplished (Brotherhood Labor
Two-tiered approach.
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Exceptions:
(1) When it is covered by an apprenticeship
agreement stipulating a longer period (Art.
287, LC);
(2) When the parties to an agreement contract
otherwise, such as when established by
company policy or required by the nature
of the work performed by the employee
Definition
A probationary employee is one who is on trial
by an employer during which the employer
determines whether or not he is qualified for
permanent employment (Robinsons Galleria
1984)
Duration
General Rule: Probationary employment shall
not exceed six (6) months from the date the
employee started working.
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(b) The
employer
must
make
such
communication at the time of the
probationary employees engagement.
Double probation
There is no basis for subjecting an employee to
a new probationary or temporary employment
where he had already become a regular
employee when he was absorbed by a sister
company. (A Prime Security Services, Inc. v.
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Limits to termination
(1) It must be exercised in accordance with the
specific requirements of the contract
(2) If a particular time is prescribed, the
termination must be within such time and
if formal notice is required, then that form
must be used;
(3) The employers dissatisfaction must be real
and in good faith, not feigned so as to
circumvent the contract or the law;
(4) There must be no unlawful discrimination
in the dismissal. (Manila Hotel Corporation
II. REGULAR
Art. 286, LC: The provisions of written
agreement to the contrary notwithstanding
and regardless of the oral agreement of the
parties, an employment shall be deemed to be
regular where the employee has been engaged
to perform activities which are
usually necessary or desirable in the usual
business or trade of the employer, except
where the employment has been fixed for a
specific project or undertaking the completion
or termination of which has been determined
at the time of the engagement of the employee
can
only
be
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IV. SEASONAL
V. CASUAL
Art. 286, 2nd par. LC: An employment shall be
deemed to be casual if it is not covered by the
preceding paragraph: Provided, That any
employee who has rendered at least one year
of service, whether such service is continuous
or broken, shall be considered a regular
employee with respect to the activity in which
he is employed and his employment shall
continue while such activity exists.
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VI. FIXED-TERM
Project
employment
and
Fixed-term
employment distinguished
A project employee is assigned to carry out a
specific project or undertaking, the duration
and scope of which were specified at the time
the employee is engaged for the project
California Marketing Co., Inc., G.R. No. L80680, Jan. 26, 1989).
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II.
D.O.
NO.
18-A-11:
RULES
IMPLEMENTING ARTICLES 106 TO 109
OF THE LC, AS AMENDED
Coverage
This shall apply to:
(1) all
parties
of
contracting
and
subcontracting arrangements where EREE relationships exist
(2) cooperatives engaging in contracting or
subcontracting arrangements
Contractors and subcontractors referred to in
these rules are prohibited from engaging in
recruitment and placement activities as
defined in Art. 13(b) of the LC whether for local
or overseas employment.
Contracting or subcontracting refers to an
arrangement whereby a principal agrees to put
out or farm out with a contractor the
performance or completion of a specific job,
work or service within a definite or
predetermined period, regardless of whether
such job, work or service is to be performed or
completed within or outside the premises of
the principal.
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Effect
Prior
to
the Governed by Art. 284 292
expiration of the of LC
Service
Agreement
Prior to expiration
of the Service
Agreement and
not
due
to
authorized
causes
Due to expiration
of
Service
Agreement,
or
from
the
completion of the
phase of the job,
work or service
for which the
employee
is
engaged
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Other prohibitions
(1) Contracting out of jobs, works or services
when not done in good faith and not
justified by the exigencies of the business
such as the following:
(a) Contracting out of jobs, works or
services when the same results in the
termination or reduction of regular EEs
and reduction of work hours or
reduction or splitting of the bargaining
unit.
(b) Contracting out of work with a Cabo
(c) Taking undue advantage of the
economic situation or lack of
bargaining strength of the contractors
EEs, or undermining their security of
tenure or basic rights, or circumventing
the provisions of regular employment
in any of the following instances:
(i) Requiring them to perform
functions which are currently being
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(d)
(e)
(f)
(g)
(h)
(i)
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performed
by
the
regular
employees of the principal; and
(ii) requiring them to sign, as a
precondition to employment or
continued
employment,
an
antedated resignation letter; a
blank payroll; a waiver of labor
standards including minimum
wages and social or welfare
benefits; or a quitclaim releasing
the principal, contractor or from
any liability as to payment of future
claims.
Contracting out of a job, work or
service through an in-house agency.
Contracting out of a job, work or
service that is necessary or desirable or
directly related to the business or
operation of the principal by reason of
a strike or lockout whether actual or
imminent.
Contracting out of a job, work or
service being performed by union
members when such will interfere with,
restrain or coerce employees in the
exercise of their rights to selforganization as provided in Art. 248(c)
of the LC, as amended.
Repeated hiring of EEs under an
employment contract of short duration
or under a Service Agreement of short
duration with the same or different
contractors, which circumvents the LC
provisions on Security of Tenure.
Requiring EEs under a subcontracting
arrangement to sign a contract fixing
the period of employment to a term
shorter than the term of the Service
Agreement, unless the contract is
divisible into phases for which
substantially different skills are
required and this is made known to the
EE at the time of the engagements.
Refusal to provide a copy of the Service
Agreement and the employment
LABOR LAW
A-11)
Mandatory registration
It shall be mandatory for all persons or entities,
including cooperative, acting as contractors, to
register with the Regional Office of the DOLE
where it principally operates.
Failure to register shall give rise to the
presumption that the contractor is engaged in
labor-only contracting.
Accordingly, the registration system
governing contracting arrangements and
implemented by the Regional Offices of the
DOLE is hereby established, with the Bureau of
Working Conditions (BWC) as the central
registry. (Sec. 14, D.O. 18-A-11)
Solidary Liability of Indirect/Direct Employer
There exists a solidary liability on the part of
the principal and the contractor for purposes of
enforcing the provisions of the LC and other
social legislation to the extent of the work
performed under employment contract.
The principal shall be deemed a direct
employer of the contractors employee in cases
where there is a finding by a competent
authority of labor-only contracting, or
commission of prohibited activities provided in
Section 7 or a violation of either Sections 8 or
9.
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IV.
EFFECTS
CONTRACTING
LABOR LAW
OF
LABOR-ONLY
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Principal
Contractor
er-ee
Coverage:
General rule: All establishments (Art. 284, LC)
Exception: Government, and its political
subdivisions, including GOCCs without original
charter. (Book VI, Rule 1, Sec. 1. IRR)
Contractor's
Employee
Security of Tenure
Security of Tenure
Right not be removed from ones job without
valid cause and valid procedure. (Kiamco v.
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Probationary Employees
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Nature
It is a constitutionally protected right (Art. XIII
Sec. 3, 1987 Constitution); it cannot be blotted
out by an employment contract.
Managerial Employees
Entitled to security of tenure; They may be
dismissed upon loss of confidence (Maglutac v.
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Measure of Penalty
While an employer enjoys a wide latitude of
discretion in the promulgation of policies, rules
and regulations on work-related activities of
the employees, those directives, however, must
always be fair and reasonable, and the
corresponding penalties, when prescribed,
must be commensurate to the offense involved
and to the degree of the infraction. (Moreno v.
Resignation
Art. 291, LC: Termination by Employee. (a) An
employee may terminate without just cause
the employer-employee relationship by serving
a written notice on the employer at least one
(1) month in advance. The employer upon
whom no such notice was served may hold the
employee liable for damages
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Serious Misconduct
ELEMENTS OF SERIOUS MISCONDUCT:
a) There must be misconduct;
b) The misconduct must be of such grave
and aggravated character;
c) It must relate to the performance of
the employees duties; and
d) There must be showing that the
employee becomes unfit to continue
working for the employer.
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Willful Disobedience
ELEMENTS OF WILLFUL DISOBEDIENCE:
a) There must be disobedience or
insubordination;
b) The disobedience or insubordination
must be willful or intentional
characterized by a wrongful and
perverse attitude;
c) The order violated must be reasonable,
lawful, and made known to the
employee (Mirant Philippines Corp v.
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Managerial
Mere existence of a
basis for the belief of
employees guilt
Fiduciary rank-and-file
Proof of involvement in
the alleged events in
question required;
(Grand Asian Shipping mere uncorroborated
Lines, Inc. v. Galvez,
assertions and
G.R. No. 178184,
accusations
January 29, 2014)
are not enough
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(Etcuban, Jr. v.
Sulpicio Lines, Inc.,
G.R. No. 148410,
January 17, 2005)
Employment for a long
time is counted
against the employee
(Salvador v. Philippine
Mining Service Corp.,
G.R. No. 148766,
January 22, 2003)
LC)
Other Causes
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
Abandonment
Courtesy Resignation
Change of Ownership
Habitual Absenteeism/Tardiness
Past Offenses
Habitual Infractions
Immorality
Conviction/Commission of a Crime
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Abandonment
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Past Offenses
Previous offense may be used as valid
justification for dismissal from work only if the
infractions are related to the subsequent
offense upon which the basis of termination is
decreed. (Century Canning Corporation v.
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Habitual Infractions
Conviction/Commission of a Crime
Immorality
DECS Order No. 92 provides that disgraceful or
immoral conduct can be used as a basis for
termination of employment (Santos, Jr. v.
due
to
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2004)
Retrenchment
ELEMENTS OF RETRENCHMENT:
(a) That 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, are
reasonably imminent as perceived
objectively and in good faith by the
employer;
(b) 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;
(c) The employer pays the retrenched
employees separation pay equivalent to
one (1) month pay or at least one-half (1/2)
month pay for every year of service,
whichever is higher;
(d) That the employer exercises its prerogative
to retrench employees in good faith for the
advancement of its interest and not to
defeat or circumvent the employees' right
to security of tenure; and,
(e) That the employer uses fair and reasonable
criteria in ascertaining who would be
dismissed and who would be retained
among the employees, such as status,
efficiency, seniority, physical fitness, age,
and financial hardship for certain workers.
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Closure of Business
Guidelines in Closure
(1) Closure or cessation of operations of
establishment or undertaking may either
be partial or total
(2) Closure or cessation of operations of
establishment or undertaking may or may
not be due to serious business losses or
financial servicereverses. However, in both
instances, proof must be shown that:
(a) it was done in good faith to
advance the employer's interest
and not for the purpose of
defeating or circumventing the
rights of employees under the law
or a valid agreement; and
(b) Written notice on the affected
employees and the DOLE is served
at least one month before the
intended date of termination of
employment.
(3) The employer can lawfully close shop even
if not due to serious business losses or
financial reverses but separation pay,
which is equivalent to at least one month
pay as provided for by Article 289 of the
Labor Code, as amended, must be given to
all the affected employees.
(4) If the closure or cessation of operations of
establishment or undertaking is due to
serious business losses or financial
reverses, the employer must prove such
Corporate acquisitions
Asset Sales
Stock Sales
Sale
Obligation of Seller
Seller in good faith is
authorized to dismiss
the affected
employees, but is
liable for the payment
of separation pay
under the law.
A shift in the
composition of its
shareholders will not
affect its existence and
continuity.
Notwithstanding the
stock sale, the
corporation continues
to be the employer of
its people and
continues to be liable
for the payment of
their just claims.
Obligation of Buyer
The buyer in good
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Asset Sales
faith, on the other
hand, is not obliged to
absorb the employees
affected by the sale,
nor is it liable for the
payment of their
claims. The most that
it may do, for reasons
of public policy and
social justice, is to give
preference to the
qualified separated
personnel of the
selling firm.
Stock Sales
new majority
shareholders are not
entitled to lawfully
dismiss corporate
employees absent a
just or authorized
cause.
Reduction of
personnel
usually due to
poor financial
returns so as to
cut down on
costs of
The service
of an
Employee is
in excess of
what is
required by
an enterprise
operations in
terms of
salaries and
wages
operations
and/or actual
locking-up of
the doors of the
establishment,
usually due to
financial losses
Resorted to
To save
primarily to
production
avoid or
costs
minimize
business losses
Aims to prevent
further financial
drain upon the
Employer
Employee is
entitled to
separation pay
of 1 month pay
or 1/2 month
pay per year of
service,
whichever is
higher
In case of
closure of
business not
due to serious
business losses,
the employer
pays the
employees
terminated
separation pay
of 1 month pay
or 1/2 month
pay per year of
service,
whichever is
higher
Employee is
entitled to
separation
pay of 1
month pay or
1/2 month
pay per year
of service,
whichever is
higher
LABOR LAW
Closure
The reversal of
the fortune of
the employer
whereby there is
a complete
cessation of
business
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Requisites
(1) The employee must be suffering from a
disease which cannot be cured within six
months;
(2) His continued employment is prohibited by
law or prejudicial to his health or to the
health of his co-employees; and
(3) A certification to that effect must be issued
by
a
competent
public
health
authority. [Crayons Processing, Inc. v. Pula,
G.R. No. 167727, July 30, 2007]
I. DISEASE
Art. 290, LC: Disease as Ground for
Termination: An employer may terminate the
services of an employee who has been found to
be suffering from any disease and whose
continued employment is prohibited by law or
is prejudicial to his health as well as to the
health of his co-employees: Provided, That he
is paid separation pay equivalent to at least
one (1) month salary or to one-half (1/2) month
salary for every year of service, whichever is
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Burden of Proof
In illegal dismissal cases, the onus of proving
that the employee was not dismissed or, if
dismissed, that the dismissal was not illegal,
rests on the employer, failure to discharge
which would mean that the dismissal is not
justified and, therefore, illegal. [Macasero v.
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Second
Notice
LABOR LAW
employees. [United
Tourist
Promotions v. Kemplin, G.R. No.
205453, February 5, 2014]
(1) Indicate
all
circumstances
involving the charge against the
employees considered; and
(2) Indicate grounds established to
justify the severance of their
employment (United Tourist
Promotions v. Kemplin, G.R. No.
205453, February 5, 2014])
I. TWIN-NOTICE REQUIREMENT
The employer has the burden of proving that a
dismissed worker has been served two notices:
(1) The first to inform the employee of the
particular acts or omissions for which the
employer seeks his dismissal, and
(2) The second to inform the employee of his
employer's decision to terminate him.
First
Notice
II.
HEARING;
MEANING
OPPORTUNITY TO BE HEARD
OF
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PROCEDURE TO BE
TERMINATION CASES
JUST CAUSE
OBSERVED IN
AUTHORIZED CAUSE
Notice to:
(1) Employee, and
(2) DOLE at least 1 month prior to the
effectivity of the separation
Requisites
(1) Notice not needed when Employee
consented to the retrenchment or
voluntarily applied for one. [International
Hardware, Inc. v. NLRC, G.R. No. 80770,
August 10, 1989]
(2) Notice must be individual, not collective
[Shoppers Gain Supermart v. NLRC, G.R.
No. 110731, July 26, 1996]
(3) Voluntary arbitration satisfies notice
requirement for authorized causes
[Revidad v. NLRC, G.R. No. 111105, June 27,
1995]
Validity of
Dismissal
Liability of ER
Valid
No liability.
Separation pay only in authorized cause
Invalid
Invalid
Valid
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Prescription Period
An action for reinstatement by reason of
illegal dismissal is one based on an injury
which may be brought within 4 years from the
time of dismissal. [Art. 1146, CC]
C.1. REINSTATEMENT
Reinstatement means restoration to a state or
condition from which one had been removed
or separated. The person reinstated assumes
the position he had occupied prior to his
dismissal [Asian Terminals, Inc. v. Villanueva,
G.R. No. 143219, November 28, 2006]
General Rule: Reinstatement
Exceptions:
(1) Separation pay
(2) Closure of business (Retuya v. Hon.
Dumarpa, G.R. No. 148848, Aug. 5, 2003)
(3) Economic business conditions (Union of
Supervisors v. Secretary of Labor, G.R. No.
L-39889, November 12, 1981)
(4) Employees unsuitability (Divine Word High
School v. NLRC, G.R. No. 72207, August 6,
1986)
(5) Employees retirement/ overage (New
Philippine Skylanders, Inc. v. Dakila, G.R.
No. 199547, September 24, 2012)
(6) Antipathy and antagonism (Wensha Spa
Center v. Yung, G.R. No. 185122, Aug. 16,
2010)
(7) Job with a totally different nature (DUP
Sound Phils. v. CA, G.R. No. 168317m Nov.
21, 2011)
(8) Long passage of time
(9) Inimical to the employer's interest
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No refund doctrine
An employee cannot be compelled to
reimburse the salaries and wages he received
during the pendency of his appeal,
notwithstanding the reversal by the NLRC of
the LA's order of reinstatement. [College of the
Immaculate Conception v. NLRC, G.R. No.
167563, March 22, 2010]
II. SEPARATION
REINSTATEMENT
PAY
IN
LIEU
LABOR LAW
OF
Computation
SP as a statutory requirement is computed by
integrating the basic salary with regular
allowances employee has been receiving
[Planters Products, Inc. v. NLRC, G.R. No.
78524, 78739, January 20, 1989]; allowances
include transportation and emergency living
allowances [Santos v. NLRC, G.R. No. 76721,
September 21, 1987]
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I. COMPUTATION OF BACKWAGES
Full
backwages
means
exactly
that, i.e., without deducting from backwages
the earnings derived elsewhere by the
concerned employee during the period of his
illegal dismissal. [Bustamante v. NLRC, G.R.
No. 111651, November 28, 1996]
C.2. BACKWAGES
Backwages are earnings lost by a worker due
to his illegal dismissal; a form of relief that
restores the income lost by reason of such
unlawful dismissal; it is not private
compensation or damages; nor is it a redress
of a private right but, rather, in the nature of a
command to the employer to make a public
reparation for illegally dismissing an
employee. [St. Theresa's School of Novaliches
Foundation v. NLRC, G.R. No. 122955, April 15,
1998]
Rationale
Feati University Club vs. Feati University (1974)
adopted a consensus policy of pegging the
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Doctrine in
effect
Validity of
Dismissal
Liability of ER
Prior 1989
Pre-Wenphil
Illegal
Reinstatement + Backwages
Wenphil
Valid
Ineffectual
Nov.
2004
present
Valid
Nominal damages
Agabon
during
the
time
of
preventive
suspension. [Gatbonton v. NLRC, G.R. No.
146779, January 23, 2006]
D. PREVENTIVE SUSPENSION
Preventive suspension is a disciplinary
measure for the protection of the company's
property pending investigation of any alleged
malfeasance or misfeasance committed by the
employee. The employer may place the worker
concerned under preventive suspension if his
continued employment poses a serious and
imminent threat to the life or property of the
employer or of his co-workers. However, when
it is determined that there is no sufficient basis
to justify an employee's preventive suspension,
the latter is entitled to the payment of salaries
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LABOR LAW
E. CONSTRUCTIVE DISMISSAL
Constructive dismissal is cessation of work
because continued employment is rendered
impossible, unreasonable or unlikely; when
there is a demotion in rank or diminution in
pay or both; or when a clear discrimination,
insensibility, or disdain by an employer
becomes unbearable to the employee.
A. DISCIPLINE
V. Management
Prerogative
This Court held that the employers right to
conduct the affairs of his business, according
to its own discretion and judgment, is wellrecognized. An employer has a free reign and
enjoys wide latitude of discretion to regulate
all aspects of employment. This is a
management prerogative, where the free will
of management to conduct its own affairs to
achieve its purpose takes form. [Torreda vs.
Toshiba, 2007]
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B. TRANSFER OF EMPLOYEES
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D. GRANT OF BONUS
A bonus is "a gratuity or act of liberality of the
giver which the recipient has no right to
demand as a matter of right" [Aragon vs. Cebu
Portland Cement Co., 61 O.G. 4597]. "It is
something given in addition to what is
ordinarily received by or strictly due the
recipient." The granting of a bonus is basically
a management prerogative which cannot be
forced upon the employer "who may not be
obliged to assume the onerous burden of
granting bonuses or other benefits aside from
the employee's basic salaries or wages" xxx
[Kamaya Point Hotel vs. National Labor
Relations Commission, Federation of Free
Workers and Nemia Quiambao, G.R. No. 75289,
August 31, 1989]. [Traders Royal Bank vs.
NLRC, 1990]
C. PRODUCTIVITY STANDARD
The employer has the right to demote and
transfer an employee who has failed to
observe proper diligence in his work and
incurred habitual tardiness and absences and
indolence in his assigned work. [Petrophil
Corporation vs. NLRC, 1986]
In the consolidated cases of Leonardo vs. NLRC
[G. R. No. 125303, June 16, 2000] and Fuerte vs.
Aquino [G. R. No. 126937, June 16, 2000], the
employer claimed that the employee was
demoted pursuant to a company policy
intended to foster competition among its
employees. Under this scheme, its employees
are required to comply with a monthly sales
quota. Should a supervisor such as the
employee fail to meet his quota for several
consecutive months, he will be demoted,
whereupon his supervisors allowance will be
withdrawn and be given to the individual who
takes his place. When the employee concerned
succeeds in meeting the quota again, he is reappointed supervisor and his allowance is
restored. The Supreme Court held that this
arrangement is an allowable exercise of
company rights since an employer is entitled
to impose productivity standards for its
workers. In fact, non-compliance may be
visited with a penalty even more severe than
demotion.
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LABOR STANDARDS
G. POST-EMPLOYMENT BAN
In cases where an employee assails a contract
containing a provision prohibiting him or her
from accepting competitive employment as
against public policy, the employer has to
adduce evidence to prove that the restriction is
reasonable and not greater than necessary to
protect the employers legitimate business
interests. The restraint may not be unduly
harsh or oppressive in curtailing the
employees legitimate efforts to earn a
livelihood and must be reasonable in light of
sound public policy. [Rivera v Solidbank, 2006]
129
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A.1. COVERAGE
I. COMPULSORY [SEC. 9 [A]; SEC. 9-A]
(1) Employees not over 60 years including
domestic helpers with at least P1,000
monthly pay; and
(2) Self-employed as may be determined by
the Commission, but not limited to:
I.
Self-employed professionals
II.
Partners and single proprietors of
businesses
III.
Actors and actresses, directors,
scriptwriters,
and
news
correspondents who do not fall
within the definition of the term
employee under Section 8 [d]
IV.
Professional athletes, coaches,
trainers and jockeys
V.
Individual farmers and fishermen
Note
Foreign
governments,
international
organizations or their wholly owned
instrumentality employing workers in the
Philippines may enter into an agreement with
the Philippine government to include their
employees in the SSS except those already
covered by their civil service retirement
system.
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Eligibility requirements
(1) 120 monthly contributions;
(2) Age
I.
65 years old; or
II.
a member who has reached 60
years may also avail if he is already
separated from employment or
has ceased to be self-employed.
A.3. BENEFITS
I. MONTHLY PENSION [SEC.12]
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Eligibility requirement
36 monthly contributions prior to the
semester of disability; same as death
benefit; the only difference is that the
pension is paid directly to the member.
In case the permanently disabled member
dies, it would be given the same treatment
as a retiree dying.
For permanent partial disability, the
pension is not lifetime. [e.g. loss of thumb
entitles member to only 10 months of
pension, while loss of arm 50 months]. It
shall be paid in lump sum if the period is
less than 12 months.
For multiple partial disabilities, they shall
be additive when related or deteriorating
the percentage shall be equal to the
number of months the partial disability is
entitled to, divided by 75 months. [e.g. loss
of sight in one eye 25/75; loss of arm
50/75; if both occur due to same cause,
then 25/75 + 50/75 = 100% so treated as
if it were permanent total disability]
VII. LOAN
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Process
The full payment shall be advanced by the
employer within thirty [30] days from the filing
of the maternity leave application;
Coverage
The maternity benefits provided under this
section shall be paid only for the first four [4]
deliveries or miscarriages;
Employers Reimbursement
That the SSS shall immediately reimburse the
employer of one hundred percent [100%] of
the amount of maternity benefits advanced to
the employee by the employer upon receipt of
satisfactory proof of such payment and legality
thereof. Note: All of these benefits are tax-exempt.
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A.4. BENEFICIARIES
1. PRIMARY
LABOR LAW
B.3. BENEFITS
Computation of Service
From date of original appointment/election,
including periods of service at different times
under one or more employers, those
performed overseas under the authority of the
Republic of the Philippines, and those that
may be prescribed by the GSIS in coordination
with the Civil Service Commission.
2. SECONDARY
Shall only receive when the primary
beneficiaries are absent
Dependent parents
134
from
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Partial Disability
Paid according to GSIS prescribed schedule
[this is similar to the scheme used by SSS;
refer to section II subsection D-3 above];
member availing of permanent partial
disability must satisfy condition E.1.a. above
regarding the disability not being due to his
own fault and either E.1.b.i. or E.1.b.ii.
regarding employment status and services
rendered.
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Eligibility requirements
(1) 60 years of age, or separation from service
with at least 3 years but not over 15 years
served
(2) Below 60 years of age, but at least 15
years of service rendered.
Benefit
(1) For 60 years of age or separated from
service with 3 to 15 years of service: cash
payment of 100% of ave. monthly
compensation for each year of service [so
essentially, the total amount of all
contributions paid] or P12,000 whichever
is higher.
(2) Below 60 years of age and at least 15 years
of service: cash payment equivalent to 18 x
[monthly pension] at the time of
resignation or separation plus an old-age
pension benefit equal to basic monthly
pension.
VI. LOAN
GSIS website provides for this
Benefit
Monthly cash payments of 50% of average
monthly compensation for a duration which is
proportional to years rendered, ranging from 2
months to 6 months.
X. SURVIVORSHIP BENEFITS
Beneficiaries are entitled to the following:
(1) Basic survivorship pension which is 50% of
basic monthly pension; and
(2) Dependent childrens pension not
exceeding 50% of the basic monthly
pension.
Benefit
75% of the current daily compensation for
every day or fraction thereof of disability or
P70 whichever is higher.
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distinguish share of
illegitimate children.
Note:
Judiciary
and
Constitutional
Commissions are entitled to life insurance
only.
and
Definition of
Terms
legitimate
II. SECONDARY
B.4. BENEFICIARIES
I. PRIMARY
Enabling law
LABOR LAW
SSS
RA 1161 as amended by RA 8282:
Social Security Act of 1997
Employer any person, natural or juridical,
domestic or foreign, who carries on in the
Philippines any trade business, industry,
undertaking, and uses the services of
another person who is under his orders as
regards the employment, except those
considered as employer under the GSIS. A
self-employed person shall be both
employer and employee at the same time.
Employee any person who performs
services for an employer in which either or
both mental and physical efforts are used
and who receives compensation for such
services, where there is an employer
employee relationship; also, a selfemployed person who is both employee and
employer at the same time
Self-employed any person whose income
is not derived from employment, including,
but not limited to:
self-employed professionals;
partners and single proprietors of
businesses;
actors, directors, scriptwriters, news
correspondents not considered as
employees under the above definition;
athletes, coaches, trainers, jockeys;
and
individual farmers and fishers.
137
GSIS
RA 8291 amending PD 1146
Employer National government, its
political
subdivisions,
branches,
agencies
or
instrumentalities,
including
government-owned
or
controlled corporations and financial
institutions with original charters
[GOCCs]; constitutional commissions;
and judiciary
Employee any person receiving
compensation while in service of an
employer whether by election or
appointment, irrespective of status of
appointment; baranggay officials; and
sangguniang officials
Note: No
employed.
counterpart
for
self-
UP LAW BOC
Coverage
LABOR LAW
Exceptions:
(1) AFP and PNP;
(2) Members of the Judiciary and
Constitutional Commissions who
are covered only by life insurance
Voluntary
as they have separate retirement
Spouses who devote full time to
schemes;
managing household and family
(3) Contractual employees with no
affairs;
employee-employer relationship
OFWs recruited by foreign-based
with the agency they serve.
employers;
Employees already separated from
138
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Effective Date
of Coverage
Summary of
Benefits
Effects of
separation
from
employment
Dispute
Settlement
Prescriptive
Period
139
(1)
(2)
(3)
(4)
(5)
(6)
Monthly pension
Retirement benefits
Permanent disability benefits
Death Benefits
Funeral benefits
Loan GSIS website provides for
this
(7) Temporary
disability
benefits
[similar to sickness]
(8) Separation benefits
(9) Unemployment benefits Sec 11
(10) Survivorship benefits
(11) Life insurance benefits
Note: Judiciary and Constitutional
Commissions are entitled to life
insurance only.
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C.2. PROCESS
The covered worker shall have his credible
services or contributions in both Systems
credited to his service or contribution record in
each of the Systems and shall be totalized for
purposes of old-age, disability, survivorship
and other benefits in case the covered member
does not qualify for such benefits in either or
both systems without totalization: Provided,
however, That overlapping periods of
membership shall be credited only once for
purposes of totalization [Sec. 3]
D.2. EFFECTIVITY
Coverage of employees shall take effect on the
first day of employment. [Sec. 6]
D. EMPLOYEES COMPENSATION
COVERAGE
AND
WHEN
COMPENSABLE
D.1 COVERAGE
(1) Every employer shall be covered.
(2) Every employee not over sixty [60] years of
age shall be covered.
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A. RIGHT TO SELF-ORGANIZATION
Basis of Right
(1) 1987 Constitution
Art. III Sec. 8. The right of the people, including
those employed in the public and private
sectors, to form unions, associations, or
societies for purposes not contrary to law shall
not be abridged.
UP LAW BOC
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Rationale
Supervisory employees, while in the
performance of supervisory functions, become
the alter ego of the management in the
making and the implementing of key decisions.
It would be difficult to find unity or mutuality of
interests in a bargaining unit consisting of a
mixture of rank-and-file and supervisory
employees. (Toyota Motor Phil. Corp. v Toyota
Motor Phil. Corp. Labor Union, 1997)
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LABOR LAW
(4) Aliens
General rule: All aliens [] are strictly
prohibited from engaging directly or indirectly
in all forms of trade union activities. (Art. 275)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Managerial employees
Confidential employees
Non-employees
Member-employee of a cooperative
Employees of international organizations
High-level government employees
Members of the AFP, police officers,
policemen, firemen and jail guards
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LABOR LAW
(3) Non-Employees
Persons who are not employees of a Company
are not entitled to the constitutional right to
join or form a labor organization for purposes
of collective bargaining. The question of
whether employer-employee relationship
exists is a primordial consideration before
extending labor benefits under the workmen's
compensation, social security, medicare,
termination pay and labor relations law.[]
(Singer Sewing Machine Co. v. Drilon, 1993)
UP LAW BOC
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LABOR LAW
Exception
However, an individual employee or group of
employees shall have the right at any time to
present grievances to their employer. Any
provision
of
law
to
the
contrary
notwithstanding, workers shall have the right,
to participate in the policy and decisionmaking processes of the establishment where
they are employed insofar as said processes
will directly affect their rights, benefits and
welfare. For this purpose, workers and
employers may form labor-management
councils: Provided, that the representatives of
the workers in such labor-management
councils shall be elected by at least the
majority of all employees in said
establishment. (Art. 261)
CBA Coverage
When there has been a factual determination
by the Labor Arbiter that the petitioners were
regular employees, said employees shall fall
within the coverage of the bargaining unit and
are therefore entitled to CBA benefits as a
matter of law and contract. (Farley Fulache, et
al. v ABS-CBN, 2010)
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Rationale
It is a curtailment of the right to selforganization. During the freedom period, the
parties may not only renew the existing
collective bargaining agreement but may also
propose and discuss modifications or
amendments thereto. (DLSU v. DLSUEA, 2000)
LABOR LAW
Corporate Entities
Two companies having separate juridical
personalities shall NOT be treated as a single
bargaining unit.
Exception: Pervasive Unitary Aspect of
Management Doctrine
The cross-linking of the agencies command,
control, and communication systems indicate
their unitary corporate personality. (Philippine
Scouts Veterans v. Torres)
I.
TEST
TO
DETERMINE
THE
CONSTITUENCY OF AN APPROPRIATE
BARGAINING UNIT
4 Factors:
(1) Will of the Employees (Globe Doctrine)
(2) Affinity and unity of employees interest
(3) Prior collective bargaining history
(4) Employment status (UP v. Ferrer-Calleja,
1992)
Note: Of these 4 factors, the court has
identified that it is the 2nd factor which has
emerged as the standard in determining the
proper constituency of a collective bargaining
unit.
Other factors:
(5) Geography and Location
(6) Policy of avoiding fragmentation of the
bargaining unit
(1) Globe Doctrine: Concept
A practice designated as the "Globe doctrine,"
sanctions the holding of a series of elections,
not for the purpose of allowing the group
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Rationale
Highly skilled or specialized technical workers
may choose to form their own bargaining unit
because they may be in better position to
bargain with the employer considering the
market value of their skills.
(2) Community or Mutuality of Interests
The basic test of an asserted bargaining units
ACCEPTABILITY is whether or not it is
fundamentally the combination which will best
assure to all employees the exercise of their
collective bargaining rights. This is related to
the policy of the law in ensuring the right to
collective bargain. (UP v. Ferrer-Calleja, 1992)
Rationale
There are greater chances of success for the
collective bargaining process. The bargaining
unit is designed to maintain the mutuality of
interest among the employees in such unit.
When the interest between groups has
changed over time, there is reason to dissolve,
change or expand a certain bargaining unit.
(3) Prior Collective Bargaining History
The existence of prior collective bargaining
history is neither decisive nor conclusive in the
determination of what constitutes an
appropriate bargaining unit. (San Miguel Corp.
v. Laguesma, 1994)
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Procedural Requirements
The notice of voluntary recognition shall be
accompanied by the original copy and two (2)
duplicate copies of the following documents:
(1) A joint statement under oath of voluntary
recognition attesting to the fact of
voluntary recognition
(2) Certificate of posting of the joint statement
of voluntary recognition for fifteen (15)
consecutive days in at least two (2)
UP LAW BOC
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LABOR LAW
Union Election
To elect union
officers
Only union
members may
vote.
Purpose
The purpose of a certification election is
precisely the ascertainment of the wishes of
the majority of the employees in the
appropriate bargaining unit: to be or not to be
represented by a labor organization, and in the
affirmative case, by which particular labor
organization. (Reyes v Trajano, 1992)
Implications
Thus it should not be circumvented. There
should be no obstacle in conducting the
Certification election. (George & Peter Lines,
Inc. v. Associated Labor Union, 1985)
Technical rules and objections should not
hamper the correct ascertainment of the labor
union that has the support and confidence of
the majority of the workers and is thus entitled
to represent them in bargaining for the terms
and conditions of their employment. (Port
Workers Union v. DOLE, 1992)
Nature of proceeding
It is not litigation, but a mere investigation of a
non-adversary character. The object of the
proceedings is merely the determination of
proper bargaining units and the ascertainment
of the will and choice of the employees in
respect of the selection of the bargaining
representative. The determination of the
proceeding does not entail the entry of
remedial orders or redress of rights, but
culmination solely in an official designation of
bargaining units and an affirmation of the
employees expressed choice of bargaining
agent. (Young Men Labor Union Stevedores v
CIR, 1965)
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(4) Employer
When requested to bargain collectively, an
employer may petition the Bureau for an
election. (Art. 264)
CERTIFICATION ELECTION IN AN
UNORGANIZED ESTABLISHMENT
Procedure
(1) A petition for certification election shall be
filed by a legitimate labor organization.
(2) Upon filing of the petition, the Med- Arbiter
shall automatically conduct a certification
election.
Bystander rule
The employer shall not be considered a party
in the petition with a concomitant right to
oppose a petition for certification election. The
employers participation shall be limited to:
(1) being notified or informed of petitions of
such nature
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LABOR LAW
Venue
BLR Regional Office which issued the
petitioning unions certificate of registration or
certificate of creation of chartered local.
Discretionary rule
If the petition does not comply with the
substantial support requirement, the BLR may
exercise its discretion in determining whether
or not a certification election must be
conducted. (Scout Albano Memorial College v.
Noriel, 1978)
CERTIFICATION ELECTION IN
AN ORGANIZED ESTABLISHMENT
Procedure
(1) A verified petition questioning the majority
status shall be filed by a legitimate labor
organization
(2) It must be filed within the 60-day period
before expiration of CBA (freedom period)
(3) Supported by written consent of at least
25% of ALL employees in the bargaining
unit (substantial support)
Forced Intervenor
The incumbent bargaining agent shall
automatically be one of the choices in the
certification election as forced intervenor.
(Book V Rule VIII Sec. 7)
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Freedom Period
Substantial support
rule
None
No need to be verified
Not applicable.
No freedom period.
Can file petition anytime.
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Freedom Period
The last 60 days in a Collective Bargaining
Agreement (CBA) is referred to as the
freedom
period
when
rival
union
representation can be entertained during the
existence of a CBA. It is during this particular
period when the majority status of the
incumbent bargaining agent can be
challenged. (Tanduay Distillery Labor Union v.
NLRC, 1987)
UP LAW BOC
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LABOR LAW
NOTICE REQUIREMENT
Posting of Notice
Who: Election Officer shall cause the
posting
What: Notice of election
Where: 2 conspicuous places in company
premises
When: At least 10 days before actual
election
SUSPENSION OF ELECTION
Prejudicial Question Rule
A formal charge of Unfair Labor Practice
against the employer for establishing a
company union triggers suspension. (B.F.
Goodrich Phils. Marikina v. B.F. Goodrich
Confidential and Salaried Employees Union)
Contents of Notice
(1) Date and Time of election;
(2) Names of all contending unions;
(3) Description of the bargaining unit
(4) List of eligible and challenged Voters.
Rationale
If there is a union dominated by the company,
to which some of the workers belong, an
election among workers and employees of the
company would not reflect the true sentiment
and wishes of the said workers and employees
because the votes of the members of the
dominated union would not be free. Such
charge of company domination is a prejudicial
question that until decided, shall suspend or
bar proceedings for certification election.
If it were a labor organization objecting
to the participation in a certification election of
a company-dominated union, as a result of
which a complaint for an unfair labor practice
case against the employer was filed, and when
the court finds that said union is employerdominated in the unfair labor practice case,
the union selected would be decertified and
the whole election proceedings would be
rendered useless and nugatory.' There would
be an impairment of the integrity of the
collective bargaining process if a companydominated union were allowed to participate
in a certification election. (United CMC Textile
Workers Union v. BLR, 1984)
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Challenge Voter
An employer has no standing to question a
certification election since this is the sole
concern of the workers but may question the
inclusion of any disqualified employee in the
certification election during the exclusioninclusion
proceedings
before
the
representation officer. (Phil. Telephone &
Telegraph Co. v Laguesma, 1993)
Requirements
(1) majority of the bargaining unit voted (first
majority of the double majority rule)
(2) three or more choices are available (note:
no union is a choice)
(3) not one of the choices receives a majority of
the valid votes cast
(4) total number of votes for all contending
unions is at least 50% of the total number
of votes cast (this means that at least 50%
of the bargaining unit wants to have a
union)
(5) the run-off election shall be conducted
between the labor unions receiving the two
highest number of votes
Voting Day
The election shall be set on a regular business
day. (IRR, Book V Rule IX Sec. 2)
Validity
Double majority requirement: (voters, valid votes)
To have a valid election, at least a majority of
all eligible voters in the unit must have cast
their votes. The labor union receiving the
majority of the valid votes cast shall be
certified as the exclusive bargaining agent of
all the workers in the unit. (Art. 262)
Illustration
The CBU has 100 members and eighty of which
voted. Union A= 30; Union B= 15; Union
C=15 and No Union= 20. There were no
invalid votes. Since none got the majority of
the 80 valid votes and the contending unions
obtained 60 votes (which exceeds of the
total), a run-off election is proper. The run-off
will be between the labor unions receiving the
two highest number of votes. The run-off is
NOT between two unions but between two
highest votes. Thus, the run-off will be among
Union A, B and C. (Azucena)
UP LAW BOC
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LABOR LAW
V. RE-RUN ELECTION
Purpose
Conduct
Certification election
Aimed at determining the sole and
exclusive bargaining agent of all
employees in an appropriate bargaining
unit for the purpose of collective
bargaining
Consent Election
Merely to determine the issue of
majority representation of all the
workers in the appropriate
collective bargaining unit
Independent Union
A labor organization operating at the
enterprise level that required legal personality
through independent registration under
Art.234 of the Labor Code and Rule III Sec. 2-A
of the IRR.(Book V Rule 1 Sec. 1 [w])
Definitions
Affiliate
An affiliate is an independent union affiliated
with a federated, national union or a chartered
local which was subsequently granted
independent registration but did not
disaffiliate from its federation, reported to the
Regional Office and the Bureau in accordance
with Rule III Secs. 6 and 7 of the IRR. (Book V
Rule 1 Sec. 1 [a])
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LABOR LAW
Disaffiliation
General rule: Local unions may disaffiliate from
the mother union.
Disaffiliation must be by a majority decision
The members shall determine by secret ballot,
after due deliberation, any question of major
policy affecting the entire membership of the
organization, unless the nature of the
organization or force majeure renders such
secret ballot impractical, in which case, the
board of directors of the organization may
make the decision. (Art. 247 (d))
Purpose of affiliation
To foster the free and voluntary organization of
a strong and united labor movement (Art. 211)
Effect of Affiliation
Inclusion of [the federation] in the registration
is merely to stress that they are its affiliates at
the time of registration. It does not mean that
said local unions cannot stand on their own.
Affiliation does not mean they lost their own
legal personality. (Adamson v CIR, 1984)
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AND
SPECIAL
Union dues
Union dues are payments to meet the unions
general and current obligations. The payment
must be regular, periodic, and uniform.
(Azucena)
Every payment of fees, dues or other
contributions by a member shall be evidenced
by a receipt signed by the officer or agent
making the collection and entered into the
record of the organization to be kept and
maintained for the purpose. (Art. 247 (h))
Effect of disaffiliation
A registered independent union retains its
legal personality while a chartered local loses
its legal personality unless it registers itself.
Special assessments
Special assessments are payments for a
special purpose, especially if required only for
a limited time. (Azucena)
SUBSTITUTIONARY DOCTRINE
The substitutionary doctrine provides that
the employees cannot revoke the validly
executed collective bargaining contract with
their employer by the simple expedient of
changing their bargaining agent. And it is in
the light of this that the phrase said new
agent would have to respect said contract
must be understood. It only means that the
employees, thru their new bargaining agent,
cannot renege on their collective bargaining
contract, except of course to negotiate with
management for the shortening thereof.
(Benguet Consolidated v. BCI Employees and
Workers Union-PAFLU, 1998)
Conditions:
(1) change of bargaining agent (through
affiliation, disaffiliation, or other means)
(2) existing CBA with the previous bargaining
agent
Effects:
(1) new bargaining agent cannot revoke and
must respect the existing CBA
(2) it may negotiate with management to
shorten the existing CBAs lifetime
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Requirements:
(1) Non-member of SEBA
(2) Member of Collective Bargaining Unit
(3) Reasonable fee equivalent to the dues and
other fees paid by member
B.
RIGHT
BARGAINING
TO
COLLECTIVE
Statutory Policies
(1) To promote and emphasize the primacy of
free
collective
bargaining
and
negotiations,
including
voluntary
arbitration, mediation and conciliation, as
modes of setting labor or industrial
disputes. [Art. 217 (a)]
(2) It is the policy of the State to promote and
emphasize the primacy of free and
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B.2
COLLECTIVE
AGREEMENT (CBA)
BARGAINING
Exception
In organized establishments, when a verified
petition questioning the majority status of the
incumbent bargaining agent is filed before the
Department of Labor and Employment within
the sixty-day period before the expiration of
the collective bargaining agreement, the MedArbiter shall automatically order an election by
secret ballot when the verified petition is
supported by the written consent of at least
twenty-five percent (25%) of all the employees
in the bargaining unit to ascertain the will of
the employees in the appropriate bargaining
unit.
Substandard CBA
A CBA that falls below the minimum standards
required by law is prohibited. Nonetheless, RA
9481 removed substandard CBAs as a ground
for the cancellation of registration of union
registration. Note: A substandard CBA cannot
bar a petition for certification election under
the contract-bar rule.
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Contract Interpretation
Interpretation Tools
A CBA, just like any other contract, is respected
as the law between the contracting parties and
compliance in good faith is mandated.
Similarly, the rules embodied in the Civil Code
(Art. 1700) on the proper interpretation of
contracts can very well govern.
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v.
vi.
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Rationale
i.
a person is entitled to buy his or her
peace without danger of being
prejudiced in case his or her efforts fail
ii.
offers for compromise are irrelevant
because they are not intended as
admissions by the parties making them
[Pentagon Steel v. CA, 2009]
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Permissive Issues:
Unilateral benefits extended by the employer
[cf., Union of Filipino Employees-Drug v. Nestle,
2008]
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Voluntary Arbitration
Constitutional Basis
The State shall promote the principle of shared
responsibility between workers and employers
and the preferential use of voluntary modes in
settling disputes, including conciliation, and
shall enforce their mutual compliance
therewith to foster industrial peace. [CONST.
Art. XIII Section 3]
Automatic Referral If Grievance Machinery Fails
All grievances submitted to the grievance
machinery which are not settled within 7
calendar days from the date of its submission
shall automatically be referred to voluntary
arbitration prescribed in the CBA. [Art. 266]
Arbitrable Issues
1. interpretation or implementation of the
CBA [Art. 261]
2. interpretation or enforcement of
company personnel policies [Art. 261]
3. gross violations of CBA provision
(flagrant/malicious refusal to comply
with the economic provisions of the
CBA [Art. 261]
4. all other labor disputes including ULP
and bargaining deadlock, if the parties
agree [Art. 262]
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Appeal
While there is an express mode of appeal from
the decision of a labor arbiter, Republic Act
No. 6715 is silent with respect to an appeal
from the decision of a voluntary arbitrator.
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II.
DURATION
OF
COLLECTIVE
BARGAINING AGREEMENT
Any Collective Bargaining Agreement that the
parties may enter into shall, insofar as the
representation aspect is concerned, be for a
term of five (5) years. No petition questioning
the majority status of the incumbent
bargaining agent shall be entertained and no
certification election shall be conducted by the
Department of Labor and Employment outside
of the sixty-day period immediately before the
date of expiry of such five-year term of the
Collective Bargaining Agreement. All other
provisions of the Collective Bargaining
Agreement shall be renegotiated not later
than three (3) years after its execution. Any
agreement on such other provisions of the
Collective Bargaining Agreement entered into
within six (6) months from the date of expiry of
the term of such other. [Art. 259-A]
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Arbitrated CBA
In the absence of an agreement between the
parties, 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, 1999]
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Purpose
To safeguard and ensure the existence of the
union and thus, promote unionism in general
as a state policy.
Construction
The closed shop provision is the most prized
achievement of unionism. However it can also
be a potent weapon wielded by the union
against the workers whom the union is
supposed to protect in the first place. Hence,
any doubt as to the existence of a closed shop
provision in the CBA will be resolved in favor of
the nonexistence of the closed shop provision.
Limitation
Employees who are already members of
another union at the time of the signing of the
collective bargaining agreement may not be
compelled by any union security clause to join
any union. [Art. 254 (e)]
Types
(1)
(2)
(3)
(4)
(5)
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Closed shop
Maintenance of membership shop
Union shop
Modified union shop
Agency shop
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Union Shop
There is union shop when all new regular
employees are required to join the union within
a certain period as a condition for their
continued employment. [GMC v. Casio, 2010]
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Agency Shop
An agreement whereby employees must either
join the union or pay to the union as exclusive
bargaining agent a sum equal to that paid by
the members. [Azucena]
IN
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V. SURFACE BARGAINING
Surface bargaining is defined as "going
through the motions of negotiating," without
any real intent to reach an agreement. It
violates the Act's requirement that parties
negotiate in "good faith." It is prohibited
because, as one commentator explained: The
bargaining status of a union can be destroyed
by going through the motions of negotiating
almost as easily as by bluntly withholding
recognition [] As long as there are unions
weak enough to be talked to death, there will
be employers who are tempted to engage in
the forms of collective bargaining without the
substance. [K-MART Corporation v NLRB, 1980
626 F.2d 704]
257]
Implied refusal
The school is guilty of unfair labor practice
when it failed to make a timely reply to the
proposals of the union more than one month
after the same were submitted by the union. In
explaining its failure to reply, the school merely
offered a feeble excuse that its Board of
Trustees had not yet convened to discuss the
matter. Clearly, its actuation showed a lack of
sincere desire to negotiate. [Colegio de San
Juan de Letran v. Association, 2000]
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I. NATURE OF ULP
Statutory Construction
The Labor Code does not undertake the
impossible task of specifying in precise and
unmistakable language each incident which
constitutes an unfair labor practice. Rather, it
leaves to the court the work of applying the
law's general prohibitory language in light of
infinite combinations of events which may be
charged as violative of its terms. [HSBC
Employee Union V. NLRC, 1997]
Interrogation
Exception
Yellow Dog condition: to require as a
condition of employment that a person or an
employee shall not join a labor organization or
shall withdraw from one to which he belongs.
[Art 248 (b)]
Speech
The acts of a company which subjects a union
to vilification and its participation in soliciting
membership for a competing union are also
acts constituting a ULP. [Phil. Steam
Navigation Co. v. Phil. Marine Officers Guild,
1965]
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4) Company Union
"Company
union" means
any
labor
organization whose formation, function or
administration has been assisted by any act
defined as unfair labor practice by this Code.
[Art. 212(i)]
Espionage
Espionage and/or surveillance by the employer
of union activities are instances of interference,
restraint or coercion of employees in
connection with their right to organize, form
and join unions as to constitute unfair labor
practice. [] The information obtained by
means of espionage is invaluable to the
employer and can be used in a variety of cases
to break a union. [Insular Life Assurance Co.
Employees Assn. v. Insular Life Assurance Co.
Ltd, 1971]
3) Contracting Out
General rule: contracting out is not a ULP
Exception:
a. contracted-out services or functions
are performed by union members AND
b. contracting out will interfere with,
restrain, or coerce employees in the
exercise of their right to selforganization. [Art. 248 (c)]
6) Testimony
It is an act of ULP by an employer to dismiss,
discharge or otherwise prejudice or
discriminate against an employee for having
given or being about to give testimony under
this Code. [Art. 254 (f)]
7) Violate duty to bargain collectively
Duty to bargain collectively is a continuous
process, non-compliance constitutes ULP.
Collective bargaining does not end with the
execution of an agreement, being a continuous
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2)
Discrimination:
Encourage/Discourage
Unionism [Art. 255 (b)]
General rule: it is a ULP for a labor
organization to cause an employer to
discriminate against an employee.
Exception: provisions of a valid union security
clause and other company policies applicable
to all employees.
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Definition
A concerted activity is one undertaken by two
or more employees to improve their terms and
conditions of work.
(a) Strike
A strike is any temporary stoppage of work by
the concerted action of employees as a result
of an industrial or labor dispute. [Art. 218(o)]
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No
severance
of
employer-employee
relationship during lawful strike
Although during a strike the worker renders no
work or service and receives no compensation,
[] his relationship as an employee with his
employer is not severed or dissolved. [Elizalde
Rope Factory, Inc. v. SSS, 1972]
LABOR LAW
employer which he is not required by
law to grant [Consolidated Labor
As to how committed
I. Slowdown strike one by which workers,
without a complete stoppage of work,
retard production or their performance of
duties
and
functions to
compel
management to grant their demands.
Forms of Strikes
As to legality
(1) Legal strike one called for a valid
purpose and conducted through
means allowed by law.
(2) Illegal strike one staged for a purpose
not recognized by law, or if for a valid
purpose, conducted through means
not sanctioned by law.
As to grounds
Economic strike one staged by
workers to force wage or other
economic concessions from the
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(b) Picketing
The right of legitimate labor organizations to
strike and picket and of employers to lockout,
consistent with the national interest, shall
continue to be recognized and respected. [Art.
269 (b)]
(c) Lockout
Lockout is the temporary refusal of an
employer to furnish work as a result of an
industrial or labor dispute. [Art. 218 (p)]
Procedural requirements
1) Effort to bargain
2) Filing and service of notice of strike
3) Observance of cooling-off period
4) Strike vote
5) Strike vote report
6) Observance of the waiting period
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In cases of ULP:
1. Statement of Acts complained of
2. Efforts taken to resolve the dispute
amicably.
Action on Notice
1. Upon receipt of a valid notice of strike
or lockout, the NCMB, through its
Conciliator-Mediators, shall call the
parties to a conference the soonest
possible time in order to actively assist
them to explore all possibilities for
amicable settlement.
2. The
Conciliator-Mediator
may
suggest/offer
proposals
as
an
alternative avenue for the resolution of
their disagreement/conflict which may
not necessarily bind the parties.
3. If conciliation/mediation fails, the
parties shall be encouraged to submit
their dispute for voluntary arbitration.
Additional Requirements
In case of Bargaining Deadlocks:
1. Statement of Unresolved issues in the
bargaining negotiations
2. Written Proposals of the union
3. Counterproposals of the employer
4. Proof of a request for conference to
settle the differences.
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C.4 REQUISITES
LOCKOUT
FOR
VALID
Limitations
[N]o employer may declare a lockout on
grounds involving inter-union and intra-union
disputes. [Art. 269 (b)]
Grounds
Similar to a strike, the proper grounds for a
lockout are
1. bargaining deadlock
2. ULP by labor organizations
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Requisites
1. Effort to bargain
2. Filing and service of notice of lockout
3. Observance of cooling-off period
4. Lockout vote
5. Report of lockout vote
6. Observance of the waiting period
In cases of ULP
1. Statement of acts complained of
2. Efforts taken to resolve the dispute
amicably.
Action on notice
1. Upon receipt of a valid notice of strike or
lockout, the NCMB, through its ConciliatorMediators, shall call the parties to a
conference the soonest possible time in
order to actively assist them to explore all
possibilities for amicable settlement.
2. The
Conciliator-Mediator
may
suggest/offer proposals as an alternative
avenue for the resolution of their
disagreement/conflict which may not
necessarily bind the parties.
3. If conciliation/mediation fails, the parties
shall be encouraged to submit their
dispute for voluntary arbitration. [Book V
Rule XXII Sec. 9]
Additional Requirements
In cases of bargaining deadlocks
1. Statement of unresolved issues in the
bargaining negotiations
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Picketing
as
Part
of
Freedom
of
Speech/Expression
General rule: picketing enjoys constitutional
protection as part of freedom of speech and/or
expression.
Exceptions/limitations:
1. When picketing is coercive rather than
persuasive [Security Bank Employees
Union v. Security Bank]
2. When picketing is achieved through
illegal means [Mortera v. CIR]
3. Courts
may
confine
the
communication/demonstration to the
parties to the labor dispute [PCIB v.
Philnabank Employees Association]
4. Innocent bystander rule. Courts may
insulate establishments or persons
with no industrial connection or having
interest totally foreign to the context of
the dispute [PCIB v. Philnabank
Employees Association]
C.5 REQUISITES
PICKETING
FOR
LABOR LAW
LAWFUL
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C.8 EFFECT OF
ASSUMPTION OR
ORDERS
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DEFIANCE OF
CERTIFICATION
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(3)
Noncompliance
with
procedural
requirements
See notes under procedural requirements of a
valid strike.
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C.10 INJUNCTIONS
No temporary or permanent injunction or
restraining order in any case involving or
growing out of labor disputes shall be issued
by any court or other entity, except as
otherwise provided in Articles 218 and 264 of
this Code. [Art. 260]
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Prohibited Activities
[Art. 270]
(a) No labor organization or employer shall
declare a strike or lockout without first
having
bargained
collectively
in
accordance with Title VII of this Book or
without first having filed the notice
required in the preceding Article or without
the necessary strike or lockout vote first
having been obtained and reported to the
Ministry.
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A. LABOR ARBITER
A.1 JURISDICTION
Except as otherwise provided under the Code
the Labor Arbiters shall have original and
exclusive jurisdiction to hear and decide:
(1) Unfair labor practices cases;
(2) Termination disputes;
(3) If accompanied with a claim for
reinstatement, those cases that
workers may file involving wages, rates
of pay, hours of work and other terms
and conditions of employment;
(4) Claims for actual, moral, exemplary
and other forms of damages arising
from the employer-employee relations;
(5) Cases arising from any violation of Art.
264 of this Code, including questions
involving the legality of strikes and
lockouts;
(6) Except
claims
for
Employees
Compensation,
Social
Security,
Medicare and maternity benefits, all
other claims, arising from employeremployee relations, including those of
persons in domestic or household
service, involving an amount exceeding
five
thousand
pesos
(P5,000)
regardless of whether accompanied
with a claim for reinstatement. [Art.
217]
(7) Money claims arising out of employeremployee relationship or by virtue of
any law or contract, involving claims
for actual, moral, exemplary an other
forms of damages, as well as
employment termination of OFWs;
(8) Wage
distortion
disputes
in
unorganized
establishments
not
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RAB having jurisdiction over the place
where the complainant resides or
where the principal office of any of the
respondents is situated.
A.3 REQUIREMENTS
APPEAL TO NLRC
TO
PERFECT
B.1 JURISDICTION
NLRC divisions
(1) Original Jurisdiction: Over petitions for
injunction or temporary restraining
order under Art. 218 (e).
(2) Exclusive Appellate Jurisdiction: over all
cases decided by labor arbiters (Art
217[b]) and the DOLE regional
directors under Art 129.
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Period of Appeal
1. Labor Arbiter to NLRC: Decisions and
Resolutions of the LA shall be final and
executory unless appealed to the NLRC
by any or both parties within 10
calendar days from receipt thereof.
[2005 NLRC Rules of Procedure]
2. Regional director to NLRC: Decisions of
the Regional director shall be final and
executory unless appealed within 5
days from receipt thereof. [Art. 129]
LABOR LAW
B.3 REMEDIES
Requisites for Perfection of Appeal to the Court
of Appeals
[Rule 43]
(1) The appeal shall be:
Filed within the reglementary period;
Verified by the appellant himself in
accordance with 4, Rule 7 of the
Rules of Court;
In the form of a memorandum of
appeal which shall state the grounds
relied upon and the arguments in
support thereof, the relief prayed for,
and with a statement of the date the
appellant received the appealed
decision, resolution or order;
In three (3) legibly typewritten or
printed copies; and
Accompanied by (a) proof of
payment of the required appeal fee;
(b) posting of a cash or surety bond
as provided in Section 6 of the 2005
NLRC Rules, (c) a certificate of nonforum shopping; and (d) proof of
service upon the other parties.
(2) A mere notice of appeal without complying
with the other requisites aforestated shall
not stop the running of the period for
perfecting an appeal.
(3) The appellee may file with the Regional
Arbitration Branch or Regional Office
Grounds of Appeal
1. If there is prima facie evidence of abuse
of discretion on the part of the Labor
Arbiter or Regional Director;
2. If the decision, resolution or order was
secured through fraud or coercion,
including graft and corruption;
3. If made purely on questions of law;
and/or
4. If serious errors in the findings of fact
are raised which, if not corrected,
would cause grave or irreparable injury
to the appellant
It is clear from the NLRC Rules of Procedure
that appeals must be verified and certified
against forum-shopping by the parties-ininterest themselves. The purpose of verification
is to secure an assurance that the allegations
in the pleading are true and correct and have
been filed in good faith. [Antonio B. Salenga, et
al. v. CA, 2012]
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Effects of Defiance
Non-compliance with the certification order of
the SOLE shall be considered as an illegal act
committed in the course of the strike or lockout
and shall authorize the Commission to enforce
the same under pain of immediate disciplinary
action, including dismissal or loss of
employment status or payment by the lockingout employer of backwages, damages and/or
other affirmative relief, even criminal
prosecution against the liable parties.
Execution of Judgment
Upon issuance of the entry of judgment, the
Commission motu propio or upon motion by
the proper party, may cause the execution of
the judgment in the certified case. [Sec. 6, 2011
NLRC Rules and Procedures]
C.1 JURISDICTION
APPELLATE)
(ORIGINAL
AND
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Mediation
A mild intervention by a neutral third party, the
Conciliator-Mediator, wherein the CM advises
the parties or offers solutions or alternatives to
the problems with the end in view of assisting
them towards voluntarily reaching their own
mutually acceptable settlement of the dispute.
Appellate Jurisdiction
1) BLR has the power to review the
decisions of the Regional Director
2) Decisions rendered through its
appellate power are final and
executory. Hence, the remedy of the
aggrieved party is to seasonably avail
of the special civil action of certiorari
under Rule 65 of the Rules of Court.
Conciliation
C-M
facilitates
disputants to keep
things calm, delivers
messages back and
forth between the
parties.
Mediation
C-M assists parties to
voluntarily
reach
mutually acceptable
settlement.
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F. DOLE SECRETARY
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Grievance Machinery
It refers to the mechanism for the adjustment
and resolution of grievances. It is part of the
continuing process of collective bargaining.
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II. PROCEDURE
[IRR, Book V, Rule XI]
Hearing
All parties to the dispute shall be entitled to
attend the arbitration proceedings. The
attendance of any third party or the exclusion
of any witness from the proceedings shall be
determined by the VA or panel of Vas. Hearing
may be adjourned for cause or upon
agreement by the parties.
Form of award/decision
The award or decision of the VA or panel of
VAs must state in clear, concise and definite
terms the facts, the law and/contract upon
which it is based.
Finality
It shall be final and executory after 10 calendar
days from the receipt of the copy of the award
or decision by the parties.
Execution of award/decision
Upon motion of any interested party, the
Voluntary Arbitrator or panel of Voluntary
Arbitrators or the Labor Arbiter in the region
where the movant resides, in case of the
absence or incapacity of the Voluntary
Arbitrator or panel of Voluntary Arbitrators, for
any reason, may issue a writ of execution
requiring either the sheriff of the Commission
or regular courts or any public official whom
the parties may designate in the submission
agreement to execute the final decision, order
or award. [Art. 262-A]
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III. REMEDIES
LABOR LAW
H. COURT OF APPEALS
I. SUPREME COURT
[A]ll references in the amended Section 9 of
B.P. No. 129 to supposed appeals from the
NLRC to the Supreme Court are interpreted
and hereby declared to mean and refer to
petitions for certiorari under Rule 65.
Consequently, all such petitions should hence
forth be initially filed in the Court of Appeals in
strict observance of the doctrine on the
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J. PRESCRIPTION OF ACTIONS
No claim for compensation shall be given due
course unless said claim is filed with the
System within three (3) years from the time the
cause of action accrued. [Art. 201, as amended
by Section 5, Presidential Decree No. 1921]
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SUPREME COURT
Rule 45, Rules of Court
COURT OF APPEALS
Rule 43
Rule 65
NATIONAL LABOR
RELATIONS COMMISSION
VOLUNTARY
ARBITRATOR OR
PANEL OF
VOLUNTARY
ARBITRATORS
LABOR ARBITERS
Original and Exclusive
Jurisdiction to decide
cases of:
1. Unfair
Labor
Practices
2. Termination disputes
3. Those
involving
wages, rates of pay,
hours of work and
other terms and
conditions
of
employment
IF
accompanied with a
claim
for
reinstatement
4. Claims for actual,
moral,
exemplary
and other forms
arising from ER-EE
relations.
5. Any violation the
Labor
Code
provisions
on
Prohibited Activities
including questions
on the legality of
strikes and lockouts.
6. All claims arising
from ER-EE relations
involving an amount
exceeding P5,000,
except claims for
Employee
Compensation, SSS,
Medicare
and
maternity benefits.
1.
2.
3.
4.
Rule 65
BUREAU OF LABOR
RELATIONS
Original and exclusive
authority to act on:
1. All inter-union and
intra-union conflicts
2. Disputes, grievances,
problems arising from
or affecting labormanagements
relations
in
all
workplaces.
Except: those from
implementation or
interpretation of
CBAs.
Cases decided by the BLR
on appeal are final and
executory. Those decided
through original
jurisdiction can be
appealed to the DOLE
Secretary.
Labor Relations
Division in the
Regional Offices of
the DOLE
Department of Labor
and Employment
Regional Director
Money claims and benefits
arising from ER-EE
relations not accompanied
by claim for reinstatement
and not exceeding
P5,000.
1.
2.
3.
Inter-union
and
intra-union disputes
Applications
for
registration of unions
Certification election
and representation
cases
Rule 65
DEPARTMENT OF
LABOR AND
EMPLOYMENT
SECRETARY
Assumption of
jurisdiction over
disputes, in his
opinion, causing or
likely to cause a
strike/lockout in an
industry indispensable
to the national
interest.
National
Conciliation and
Mediation Board
1.
2.
3.
Petition
for
Assumption
of
jurisdiction
or
certification
of
jurisdiction
or
certification
to
NLRC
of
strike/lockout
disputes.
Notice
of
strike/lockout
Any
other
disputes
submitted by the
parties
for
preventive
mediation
proceedings.
Note:
The BLR has jurisdiction over cases involving Federations and National Unions
201involving independently registered unions and chartered
The LRD has jurisdiction over cases
locals.