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UP Bar Reviewer 2013 Labor Law PDF
UP Bar Reviewer 2013 Labor Law PDF
UP Bar Reviewer 2013 Labor Law PDF
ETC. ........................................................................... 25
LEAVES .................................................................... 26
SERVICE INCENTIVE LEAVE PAY .......................................... 26
MATERNITY LEAVE .......................................................... 26
PATERNITY LEAVE .......................................................... 27
PARENTAL LEAVE .......................................................... 27
LEAVES FOR VICTIMS OF VIOLENCE AGAINST WOMEN ............... 28
SERVICE CHARGES ................................................... 30
COVERAGE ................................................................... 30
EXCEPTIONS ................................................................. 30
DISTRIBUTION ............................................................... 30
INTEGRATION................................................................ 30
THIRTEENTH (13TH) MONTH PAY AND OTHER
BONUSES ................................................................. 30
RATIONALE .................................................................. 30
COVERAGE ................................................................... 30
EXCLUSIONS/EXEMPTIONS FROM COVERAGE ......................... 30
NATURE OF THE 13TH MONTH PAY ....................................... 31
13THE MONTH PAY IN SPECIAL CASES ................................... 31
SEPARATION PAY ..................................................... 32
DEFINITION .................................................................. 32
GENERAL RULE .............................................................. 32
EXCEPTION ................................................................... 32
AMOUNT ...................................................................... 32
NOTICE OF TERMINATION ................................................. 32
BASIS OF SEPARATION PAY ............................................... 32
INCLUSION OF REGULAR ALLOWANCE IN THE COMPUTATION ...... 32
RETIREMENT PAY ..................................................... 32
RATIONALE .................................................................. 32
ELIGIBILITY ................................................................... 32
AMOUNT OF RETIREMENT PAY ........................................... 33
RETIREMENT BENEFITS OF WORKERS WHO ARE PAID BY RESULTS 33
RETIREMENT BENEFIT OF PART-TIME WORKERS ..................... 33
TAXABILITY................................................................... 33
WOMEN WORKERS ................................................... 34
PROVISIONS AGAINST DISCRIMINATION ................................ 34
STIPULATION AGAINST MARRIAGE ...................................... 34
PROHIBITED ACTS .......................................................... 34
ANTI-SEXUAL HARASSMENT ACT ........................................ 34
MINOR WORKERS .................................................... 35
CONSTITUTIONAL BASIS ................................................... 35
EMPLOYMENT OF CHILDREN FROM 15 TO 18 .......................... 36
REGULATION OF WORKING HOURS OF A CHILD ....................... 36
EMPLOYMENT OF HOUSEHELPERS .......................... 36
DEFINITION .................................................................. 36
BENEFITS ACCORDED HOUSEHELPERS.................................. 36
TERMINATION ............................................................... 37
EMPLOYMENT OF HOMEWORKERS .......................... 37
DEFINITION .................................................................. 37
RIGHTS AND BENEFITS ACCORDED HOMEWORKERS ................. 37
CONDITIONS FOR DEDUCTION FROM HOMEWORKERS EARNINGS 37
APPRENTICES AND LEARNERS ................................. 38
APPRENTICES................................................................ 38
LEARNERS ................................................................... 39
HANDICAPPED WORKERS DIFFERENTLY-ABLED
WORKERS ................................................................ 40
DEFINITIONS ................................................................. 40
Termination of
Employment......................................... 42
EMPLOYER-EMPLOYEE RELATIONSHIP .................... 42
FOUR-FOLD TEST ........................................................... 42
ECONOMIC DEPENDENCE TEST ........................................... 43
KINDS OF EMPLOYMENT ................................................... 43
JOB CONTRACTING ......................................................... 47
DISMISSAL FROM EMPLOYMENT...............................51
SECURITY OF TENURE .......................................................51
CONFLICT WITH MANAGEMENT PREROGATIVES ...................... 52
JUST CAUSES ................................................................ 52
AUTHORIZED CAUSES ...................................................... 53
DUE PROCESS ............................................................... 56
RELIEFS FOR ILLEGAL DISMISSAL ............................ 57
REINSTATEMENT............................................................ 57
BACKWAGES ................................................................. 59
PREVENTIVE SUSPENSION ....................................... 59
DEFINITION .................................................................. 59
CONSTRUCTIVE DISMISSAL ...................................... 59
Management Prerogative...... 59
DISCIPLINE ............................................................... 59
TRANSFER OF EMPLOYEES ...................................... 59
PRODUCTIVITY STANDARD ...................................... 59
GRANT OF BONUS .................................................... 60
CHANGE OF WORKING HOURS ................................. 60
RULES ON MARRIAGE BETWEEN EMPLOYEES OF
COMPETITOR-EMPLOYERS ....................................... 60
POST-EMPLOYMENT BAN ......................................... 60
................................................................................. 87
JURISDICTION
............................................................... 93
DOLE SECRETARY..................................................... 93
VISITORIAL AND ENFORCEMENT POWERS.............................. 93
POWER TO SUSPEND EFFECTS OF TERMINATION ..................... 93
ASSUMPTION OF JURISDICTION .......................................... 94
APPELLATE JURISDICTION ................................................ 94
VOLUNTARY ARBITRATION POWERS .................................... 94
GRIEVANCE MACHINERY AND VOLUNTARY
ARBITRATORS .......................................................... 94
SUBJECT MATTER OF GRIEVANCE ........................................ 94
VOLUNTARY ARBITRATOR................................................. 94
COURT OF APPEALS ................................................. 95
RULE 65, RULES OF COURT .............................................. 95
SUPREME COURT ..................................................... 95
RULE 45, RULES OF COURT .............................................. 95
PRESCRIPTION OF ACTIONS ..................................... 95
MONEY CLAIMS .............................................................. 95
ILLEGAL DISMISSAL......................................................... 96
UNFAIR LABOR PRACTICE ................................................. 96
OFFENSES PENALIZED BY THE LABOR CODE AND IRR ISSUED
PURSUANT THERETO....................................................... 96
PRESCRIPTIVE PERIOD OF ILLEGAL RECRUITMENT CASES .......... 96
ANNEX A................................................................... 97
ANNEX B: COMPARISON BETWEEN SSS AND GSIS ... 99
UP COLLEGE OF LAW
LABOR LAW
CONSTITUTIONAL PROVISIONS
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.
Article II, Section 10. The State shall promote social justice
in all phases of national development.
General definition
Social Justice is neither communism, nor despotism, nor
atomism, nor anarchy, but the humanization of laws and
the equalization of social and economic forces by the State
so that justice in its rational and objectively secular
conception may at least be approximated. [Calalang vs.
Williams, 1940]
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]
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]
Labor as Property Right
Ones employment is a property right, and the wrongful
interference therewith is an actionable wrong. [Sibal vs.
Notre Dame of Greater Manila, 1990]
Article II, Section 11. The State values the dignity of every
human person and guarantees full respect for human
rights.
Article II, Section 13. 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.
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Article II, Section 13. 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.
CIVIL CODE
ARTICLE 19
Art. 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.
ARTICLE 1700
Art. 1700. The relations between capital and labor are not
merely contractual. They are so impressed with public
interest that labor contracts must yield to the common
good. Therefore, such contracts are subject to the special
laws on labor unions, collective bargaining, strikes and
lockouts, closed shop, wages, working conditions, hours of
labor and similar subjects.
ARTICLE 1702
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]
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]
Compliance with law
It is also important to emphasize that the return-to-work
order not so much confers a right as it imposes a duty; and
while as a right it may be waived, it must be discharged as
a duty even against the worker's will. [Sarmiento vs. Tuico,
1988]
Employee's compliance and obedience to employer's orders
The lack of a written or formal designation should not be
an excuse to disclaim any responsibility for any damage
suffered by the employer due to his negligence. The
measure of the responsibility of an employee is that if he
performed his assigned task efficiently and according to
the usual standards, then he may not be held personally
liable for any damage arising therefrom. Failing in this, the
employee must suffer the consequences of his negligence
if not lack of due care in the performance of his duties.
[PCIB vs. Jacinto, 1991]
ARTICLE 212
LABOR CODE
ARTICLE 3
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.
ARTICLE 4
ARTICLE 166
Art. 166. Policy. The State shall promote and develop a taxexempt employees compensation program whereby
employees and their dependents, in the event of workconnected disability or death, may promptly secure
adequate income benefit and medical related benefits.
ARTICLE 211
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ARTICLE 277
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License
Authority
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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." Petitioners admission that
she brought private complainants to the agency whose
owner she knows and her acceptance of fees including
those for processing betrays her guilt. [Rodolfo vs. People,
2006]
Promising employment
The Court finds that accused-appellant was engaged in
unlawful recruitment and placement activities. The
prosecution established that accused-appellant promised
three complainants employment as factory workers and he
asked them for money in order to process their papers and
procure their passports. Relying completely upon such
representations, complainants entrusted hard-earned
money to accused-appellant in exchange for what they
would later discover to be a vain hope of obtaining
employment abroad. It is not disputed that accusedappellant is not authorized nor licensed by the DOLE to
Definition
Any person or entity
engaged in recruitment and
placement of workers for a
fee
Authority
Citizenship requirement
(1) Only Filipino citizens or
(2) Corporations, partnerships or entities at least seventyfive percent (75%) of the authorized and voting capital
stock of which is owned and controlled by Filipino
citizens shall be permitted to participate in the
recruitment and placement of workers, locally or
overseas. [Art. 27, LC]
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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
Definition
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: Provided, That any
such non-licensee or non-holder who, in any manner,
offers or promises for a fee employment abroad to two or
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RA 8042 as amended by RA
10022
Applicability
Local Workers
Migrant Workers
Acts Punishable
Art. 13(b)
Art. 34
Art.
13(b) Prohibited
Labor Code acts in Sec. 6
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Prescriptive Periods:
(1) Simple Illegal Recruitment 5 years
(2) Illegal Recruitment involving Economic Sabotage 20
years. [Sec. 12, R.A. 8042 (this part was not amended by
R.A, 10022)].
Pre-Termination of Contract of Migrant Worker
In case of termination of overseas employment without
just, valid or authorized cause as defined by law or
contract, or any unauthorized deductions from the migrant
worker's salary, the worker shall be entitled to the full
reimbursement of his placement fee and the deductions
made with interest at twelve percent (12%) per annum,
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Regulatory powers
The Secretary of Labor shall have the power to restrict and
regulate the recruitment and placement activities of all
agencies within the coverage of this Title and is hereby
authorized to issue orders and promulgate rules and
regulations to carry out the objectives and implement the
provisions of this Title. [Art. 36, LC]
Visitorial powers
The Secretary of Labor or his duly authorized
representatives may, at any time, inspect the premises,
books of accounts and records of any person or entity
covered by this Title, require it to submit reports regularly
on prescribed forms, and act on violations of any provisions
of this Title. [Art. 37, LC]
DIRECT HIRING
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]
REGULATION AND ENFORCEMENT
Note: See also 2002 POEA Rules Governing the Recruitment
and Employment of Land-based Overseas Workers
SUSPENSION OR CANCELLATION OF LICENSE OR AUTHORITY
PROHIBITED ACTIVITIES
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Definition
"Managerial Employees" Refer to those whose primary
duty consists of the management of the establishment in
which they are employed or of a department or subdivision
thereof, and to other officers or members of the
managerial staff. [Art. 82, LC]
Characteristics of managerial employees
(b) Managerial employees are covered [by the exemption]
if they have the following characteristics:
(1) Their primary duty consists of the management of
the establishment in which they are employed or of
a department or sub-division thereof.
(2) They customarily and regularly direct the work of
two or more employees therein.
(3) They have the authority to hire or fire employees of
lower rank; or
their suggestions
and
recommendations as to hiring and firing and as to
the promotion or any other change of status of
other employees, are given particular weight.
Requisites for managerial staff
to be covered under the exception
Officers or members of a managerial staff if they perform
the following duties and responsibilities:
(1) The primary duty consists of the performance of work
directly related to management policies of their
employer;
(2) Customarily and regularly exercise discretion and
independent judgment; and
(3) (a) Regularly and directly assist a proprietor or a
managerial employee whose primary duty
consists of the management of the establishment
in which he is employed or subdivision thereof; or
(b) execute under general supervision work along
specialized or technical lines requiring special
training, experience, or knowledge; or (c) execute,
under general supervision, special assignments
and tasks; and
(4) Who do not devote more than 20 percent of their hours
worked in a work week to activities which are not
directly and closely related to the performance of the
work described in paragraphs (1), (2) and (3) above.
[IRR, Bk III, Rule 1, Sec. 2 (b) & (c): Exemption]
Labor Standards
COVERAGE
General rule: Shall apply to employees in all
establishments and undertakings whether for profit or not.
[Art. 82, LC]
GOVERNMENT EMPLOYEES
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HOURS OF WORK
COVERAGE/EXCLUSIONS
Note: Please see previous section (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.
DOMESTIC HELPERS
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On call
An employee who is required to remain on call in the
employers premises or so close thereto that he cannot use
the time effectively and gainfully for his own purpose shall
be considered as working while on call.
Continuous work
The provision of section 1 of Commonwealth Act No. 444,
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the very nature of their duties, and it is for this reason that,
in addition to their regular compensation, they are given
free living quarters to be on board. It could not have been
the purpose of the law to require their employers to pay
them overtime pay even when they are not actually
working. The correct criterion in determining whether or
not sailors are entitled to overtime pay is not, therefore,
whether they are on board and cannot leave ship beyond
the regular eight working number of hours, but whether
they actually rendered service in excess of said number of
hours. [Cagampan, et. al. v. NLRC, G.R. Nos. 85122-24,
March 2, 1991].
Note:
(1) Attendance in lectures, meetings, and training periods
sanctioned by the employer are considered hours
worked.
(2) Attendance in CBA negotiations or grievance meeting
is compensable hours worked.
(3) Attendance in hearings in cases filed by the employee
is NOT compensable hours worked.
(4) Participation in strikes is NOT compensable working
time.
Idle time
The idle time that an employee may spend for resting &
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]
Travel time
(1) Travel from home to work An employee who travels
from home before his regular workday and returns to
his home at the end of the workday is engaged in
ordinary home-to-work travel which is NOT worktime
except:
(a) When called to travel during emergency;
(b) When travel is done through a conveyance
furnished by the employer;
(c) Travel is done under vexing and dangerous
circumstances;
(d) Travel is done under the supervision and control of
the employer.
(2) Travel that is all in the days work Time spent by an
employee in travel from jobsite to jobsite during the
workday, must be counted as hours worked. Where an
employee is required to report at a meeting place to
receive instructions or to perform other work there, the
travel from the designated place to the workplace is
part of the days work.
(3) Travel away from home Travel that keeps an
employee away from home overnight is travel away
from home. Travel away from home is worktime when it
cuts across the employees workday. The time is hours
worked not only on regular working hours but also
during the corresponding hours on non-working days.
[Department of Labor Manual].
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
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Rationale
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 to save on energy
costs, promote greater work efficiency and lower the rate
of employee absenteeism, among others. Workers favor
the scheme considering that it would mean savings on the
increasing cost of transportation fares for at least one (1)
day a week; savings on meal and snack expenses; longer
weekends, or an additional 52 off-days a year, that can be
devoted to rest, leisure, family responsibilities, studies and
other personal matters, and that it will spare them for at
least another day in a week from certain inconveniences
that are the normal incidents of employment, such as
commuting to and from the workplace, travel time spent,
exposure to dust and motor vehicle fumes, dressing up for
work, etc. Thus, under this scheme, the generally observed
workweek of six (6) days is shortened to five (5) days but
prolonging the working hours from Monday to Friday
without the employer being obliged for pay overtime
premium compensation for work performed in excess of
eight (8) hours on weekdays, in exchange for the benefits
abovecited that will accrue to the employees. [Bisig
Manggagawa sa Tryco v. NLRC, et al., 2008]
MEAL BREAK
Regular meal
Subject to such regulations as the Secretary of Labor may
prescribe, it shall be the duty of every employer to give his
employees not less than sixty (60) minutes time-off for
their regular meals. [Art. 85, LC]
Every employer shall give his employees, regardless of sex,
not less than one (1) hour time-off for regular meals. [IRR,
Book III, Rule 1, Sec. 7]
Shorter meal period when allowed (less than 1 hour, but not
less than 20 min)
A meal period of not less than twenty (20) minutes may be
given by the employer provided that such shorter meal
period is credited as compensable hours worked of the
employee:
(1) Where the work is non-manual work in nature or does
not involve strenuous physical exertion;
(2) Where the establishment regularly operates not less
than sixteen (16) hours a day;
(3) In case of actual or impending emergencies or there is
urgent work to be performed on machineries,
equipment or installations to avoid serious loss which
the employer would otherwise suffer; and
(4) Where the work is necessary to prevent serious loss of
perishable goods. [IRR, Book III, Rule 1, Sec. 7]
Jurisprudence:
(1) During meal period where the laborers are required to
stand by for emergency work, or where said meal hour
is not one of complete rest, such period is considered
overtime. [Pan-American Airways v. Pan-American
Employees Association, 1961]
(2) The eight-hour work period does not include the meal
break. Employees are not prohibited from going out of
the premises as long as they return to their posts on
time. [Phil. Airlines, Inc. v. NLRC, 1999]
WAITING TIME
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Rationale
There can be no other reason than that he is made to work
longer than what is commensurate with his agreed
compensation for the statutorily fixed or voluntary agreed
hours of labor he is supposed to do. [PNB v. PEMA, 1982].
Synthesis of Rules
(1) Demandable only if the employer had knowledge and
consented to the overtime work rendered by the
employee.
Note: However, the Court has also ruled that a claim for
overtime pay is NOT justified in the absence of a written
authority to render overtime after office hours during
Sundays and holidays. [Global Incorporated v. Atienza]
Emergency or overtime
Any employee may be required by the employer to perform
overtime work in any of the following cases:
(1) When the country is at war or when any other national
or local emergency has been declared by the National
Assembly or the Chief Executive;
(2) When it is necessary to prevent loss of life or property
or in case of imminent danger to public safety due to
an actual or impending emergency in the locality
caused by serious accidents, fire, flood, typhoon,
earthquake, epidemic, or other disaster or calamity;
(3) When there is urgent work to be performed on
machines, installations, or equipment, in order to avoid
serious loss or damage to the employer or some other
cause of similar nature;
(4) When the work is necessary to prevent loss or damage
to perishable goods; and
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PART-TIME WORK
Definition
A single, regular or voluntary form of employment with
hours of work substantially shorter than those considered
as normal in the establishment. [International Labor
Organization]
WAGES
GENERAL CONCEPT
Definition
(1) It is the remuneration or earnings, however designated,
capable of being expressed in terms of money,
(2) whether fixed or ascertained on a time, task, piece, or
commission basis, or other method of calculating the
same,
(3) which is payable by an employer to an employee
(4) under a written or unwritten contract of employment
for work done or to be done, or for services rendered or
to be rendered and
(5) 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
(6) Fair and reasonable value - shall not include any profit
to the employer, or to any person affiliated with the
employer. [Art. 97(f)]
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Coverage/Exclusions (FHN-CCB)
The Labor Code Title on wages shall not apply to the
following: [Art. 98 and BOOK 3, RULE VII, Sec 3 of the IRR]
(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;
(6) Workers in registered barangay micro business
enterprise [RA 9178].
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.
Salary
MINIMUM WAGE
Definition
Statutory minimum wage is the lowest wage rate fixed by
law that an ER can pay his workers. [IRR, RA 6727, (o)]
Coverage
General Rule: The wage increases prescribed under Wage
Orders apply to all private sector workers and EEs
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.
Exception:
(1) Househelpers, including family drivers and workers in
the personal service of another whose conditions of
work are prescribed in RA No. 7655;
(2) Workers of registered barangay micro business
enterprise with Certificates of Authority issued by the
Office of the Municipal or City Treasurer.
Exemptions
Upon application with and as determined by the Regional
Tripartite Wages and Productivity Board, based on
documentation and other requirements in accordance with
applicable rules and regulations issued by the NWPC, the
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Note:
Learners employed in piece or incentive-rate jobs during
the training period shall be paid in full for the work done.
[Art. 76, LC]
Exceptions:
(1) Employee 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, such as:
(a) Employee debt to employer is due and
demandable [CC 1706];
(b) Attachment or execution in cases of debts incurred
for necessities: food, shelter, clothing, medical
attendance [CC 1708];
(c) Withholding tax;
(d) Deductions of a legally established cooperative;
rd
(e) Payment to 3 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.
COMMISSIONS
Definition
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]
Commissions as part of minimum wage
The Court held that the definition of wage under Art. 97
(f) of the LC explicitly includes commissions as part of
UP COLLEGE OF LAW
LABOR LAW
Purpose
For the benefit of the For
the
benefit
or
employee and his family; for convenience of the employer
their
existence
and
subsistence
NON-DIMINUTION OF BENEFITS
How Treated
Part of wage
deductible
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.
it
Definition
A situation where an increase in prescribed wage rates
results in the elimination or severe contraction of
intentional quantitative differences in wage or salary rates
between and among employee groups in an establishment
as to effectively obliterate the distinctions embodied in
such wage structure based on skills, length of service, or
other logical bases of differentiation
4 Elements of wage distortion (ESES)
(1) Existing hierarchy of positions with corresponding
salary rates;
(2) A significant change in the salary rate of a lower pay
class without a concomitant increase in the salary rate
of a higher one;
(3) The elimination of the distinction between the two
levels; and
(4) The existence of the distortion in the same region of the
country. [Prubankers Assn. v. Prudential Bank and Co.,
1999]
Unorganized Establishment
(1) ERs and Employees shall endeavor to correct such
distortions.
(2) Disputes shall be settled through the National
Conciliation and Mediation Board.
(3) If still unresolved after 10 calendar days of conciliation,
it shall be referred to the appropriate branch of the
NLRC compulsory arbitration
so
Supplements
What it is
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LABOR LAW
Where 278
days =
REST DAY
Note: See IRR of Labor Code Book III, Rule III
Every employee regardless of the nature of his work is
entitled to at least one whole day every week as his rest
day. The rest day or day off shall be determined by the
employer. However, in cases where the employee is
required by his religious belief to rest on certain days, such
belief shall be respected by the employer.
365 days/year
ordinary working days
rest days
regular holidays
special days
394.1 days/year
Where 394.10
days =
296 days
24 days
67.60 days
6.50 days
(b) For those who do not work and are not considered paid
on Sundays or rest days:
313 days/year
Where 313
days =
296 days
12 days
5 days -
296 days
52 days
12 days 5 days -
261 days
12 days
5 days -
Where
365
days/year =
(c) For those who do not work and are not considered paid
on Saturdays and Sundays or rest days:
278 days/year
PAGE 22
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LABOR LAW
(1) Amun Jadid (New Year) which falls on the first (1st) day
of the lunar month of Muharram;
(2) Mauli-un-Nabi (Birthday of the Prophet Muhammad)
which falls on the twelfth (12th) day of the third (3rd)
lunar month of Rabi-ul-Awwal;
(3) Lailatul Isra Wal Mi Rai (Nocturnal Journey and
Ascencion of the Prophet Muhammand) which falls on
the twenty-seventh [27th] day of the seventh (7th)
lunar month of Rajab;
(4) Id-ul-Fitr (Hari Raja Pausa) which falls on the first (1st)
day of the tenth (10th) lunar month of Shawwal
commemorating the end of the fasting season; and
(5) Id-ul-Adha (Hari Raha Haji) which falls on the tenth
(10th) of the twelfth (12th) lunar month of Dhul-Hijja.
COVERAGE
Note:
Id-ul-Fitr (Eidl Fitr) and Id-ul-Adha (Eidl Adha) have been
added to the list of national legal holidays.
There should be no distinction between Muslims & nonMuslims as regards to the payment of benefits for Muslim
holidays. Wages & other emoluments granted by law to the
working man are determined on the basis of the criteria
laid down by laws & not on workers faith. Art. 3(3), PD
1083 states that nothing herein shall be construed to
operate to the prejudice of a non-Muslim. [San Miguel Corp
vs. CA, 2002]
REGULAR HOLIDAYS
Regular Holidays
(1) New years Day - January 1 (Tuesday)
(2) Maundy Thursday March 28
(3) Good Friday March 29
(4) Araw ng Kagitingan April 9 (Tuesday)
(5) Labor Day May 1 (Wednesday)
(6) Independence Day June 12 (Wednesday)
(7) National Heroes Day August 26 (Last Monday of
August)
(8) Bonifacio Day November 30 (Saturday)
(9) Christmas Day - December 25
(10) Rizal Day - December 30 (Monday)
(11) Eidl Fitr date to be determined later
(12) Eidl Adha date to be determined later
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LABOR LAW
Note:
(1) According to DOLE Memo Circular 1-04, a special
holiday/special day includes the National Special
Days, and declared special days such as Special Nonworking Holiday, Special Public Holiday and Special
National Holiday. Such days are entitled to the rates
prescribed above. These days are not the same as a
special working holiday.
(2) A special working holiday is considered an ordinary
working day, so there is no premium pay.
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 worked on Saturday (which is the day immediately
preceding Sunday, the non-working day or rest day).
In case of absences
All covered employees shall be entitled to the benefit
provided herein when they are on leave of absence with
pay.
Employees who are on leave of absence without pay on the
day immediately preceding a regular holiday may not be
paid the required holiday pay if he has not worked on such
regular holiday. [IRR, Book III, Rule IV, Sec 6(a)]
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
(a) 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.
Sundays
Letter of Instruction No. 1087:
(1) When a holiday falls on a Sunday, the following
Monday will not be considered a holiday unless a
proclamation says so.
PAGE 24
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LABOR LAW
Premium Pay
Definition
Premium pay refers to the additional compensation for
work performed within 8 hours on nonwork days, such as
rest days and special days.
The employer may not pay his employees for the regular
holidays during the suspension of work if: the cessation of
operation is due to business reverses, and is authorized by
the Secretary of Labor.
TEACHERS, PIECE WORKERS, SEAFARERS, SEASONAL WORKERS,
ETC.
Coverage
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.
Premium Pay
30% of regular wage
IF 30% of regular wage
30% of regular wage for
work
performed
on
Sundays and holidays
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 watchkeeping performed by the seafarer on designated rest days
and holidays shall be paid rest day or holiday pay. [Section
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Entitlement
The grant of benefit in excess of that provided herein shall
not be made a subject of arbitration or any court or
administrative action. [Art. 95 (c), LC]
LEAVES
SERVICE INCENTIVE LEAVE PAY
Jurisprudence:
(1) Teachers of private school on contract basis are
entitled to service incentive leave. [Cebu Institute of
Technology v. Ople, 156 SCRA 531].
(2) Piece Rate Workers In the case of Makati
Haberdashery v. NLRC [G.R. No. 83380-81, Nov. 15,
1989] the Court ruled that piece-rate employees are
not entitled to service incentive leave. However, in the
case of Labor Congress of the Philippines v. NLRC [G.R.
No. 123938, May 21, 1998], the Court held that
petitioners are entitled to service incentive leave. The
Court looked at several factors which led them to
conclude that petitioners, although compensated on a
per piece basis, were regular employees of private
respondents.
MATERNITY LEAVE
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
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Availment
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.
PATERNITY LEAVE
PARENTAL LEAVE
Benefit
It shall apply to the first 4 deliveries of the employees
lawful wife with whom he is cohabiting.
Coverage
Any solo parent or individual who is left alone with the
responsibility of parenthood due to:
(1) Giving birth as a result of rape or, as used by the law,
other crimes against chastity;
(2) Death of spouse;
(3) Spouse is detained or is serving sentence for a criminal
conviction for at least one (1) year;
(4) Physical and/or mental incapacity of spouse as
certified by a public medical practitioner;
(5) Legal separation or de facto separation from spouse
for at least one (1) year: Provided that he/she is
entrusted with the custody of the children;
(6) Declaration of nullity or annulment of marriage as
decreed by a court or by a church: Provided, that
he/she is entrusted with the custody of the children;
(7) Abandonment of spouse for at least one (1) year;
(8) Unmarried father/mother who has preferred to keep
and rear his/her child/children, instead of having
others care for them or give them up to a welfare
institution;
(9) Any other person who solely provides parental care and
support to a child or children: Provided, that he/she is
duly licensed as a foster parent by the Department of
Social Welfare and Development (DSWD) or duly
appointed legal guardian by the court; and
(10)Any family member who assumes the responsibility of
head of family as a result of the death, abandonment,
disappearance, or prolonged absence of the parents or
solo parent: Provided, that such abandonment,
disappearance, or prolonged absence lasts for at least
one (1) year.
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LABOR LAW
Availment
The parental leave is an additional benefit which shall be
for seven (7) working days every year, with full pay,
consisting of basic salary and mandatory allowances.
Grant of flexible work schedule
The employer shall provide for a flexible working schedule
for solo parents: Provided, That the same shall not affect
individual and company productivity: Provided, further,
That any employer may request exemption from the above
requirements from the DOLE on certain meritorious
grounds. [Section 6]
[RA 9262]
Coverage and purpose
VAWC leave is granted to women employees who are
victims of violence, as defined in RA 9262. The leave
benefit covers the days that the women employee has to
attend to medical or legal concerns.
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.
Benefit
In addition to other paid leaves under existing labor laws,
company policies, and/or CBA, the qualified victimemployee shall be entitled to a leave of up to 10 days with
full pay, consisting of basic salary and mandatory
allowances fixed by the Regional Wage Board, if any.
Usage of the benefit
The usage of the 10-day leave shall be at the option of the
woman employee. In the event that the leave benefit is not
availed of, it shall not be convertible into cash and shall
not be cumulative.
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LABOR LAW
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.
Definitions
Special leave benefit for women means a female employees
leave entitlement of two (2) months with full pay from her
employer based on her gross monthly compensation
following surgery caused by gynecological disorders,
provided that she has rendered continuous aggregate
employment service of at least six (6) months for the last
12 months.
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.
Availment
The special leave shall be granted to the qualified
employee after she has undergone surgery.
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LABOR LAW
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.
Non-commutation of the benefit
The SLB shall be non-cumulative and non-convertible to
cash unless otherwise provided by a CBA
SERVICE CHARGES
COVERAGE
TH
Employers
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 [Sec 1, Rule VI, Book 3]
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. [Sec 2, Rule VI, Book 3]
COVERAGE
EXCEPTIONS
Exempted Employers:
(1) Government, its political subdivisions, including GOCCs
except those operating essentially as private
subsidiaries of the Government;
(2) Employers already paying their employees a 13th
month pay or more in a calendar year or its equivalent
at the time of this issuance;
(3) Employers of household helpers and persons in the
personal service of another relation to such workers;
and
(4) Employers of those who are paid on purely
commission, boundary or task basis and those who are
paid a fixed amount for performing specific work,
irrespective of the time consumed in the performance
thereof (except those workers who are paid on piecerate basis, in which case their employer shall grant
th
them 13 month pay).
DISTRIBUTION
Note:
Equivalent includes:
(a) Christmas bonus, mid-year bonus, cash bonuses
(b) and other payments amounting to not less than 1/12 of
INTEGRATION
UP COLLEGE OF LAW
LABOR LAW
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. v. MOLE, 1989]
th
(3) 14 Month Pay is not mandated: Employers already
paying their employees a 13th month pay or its
equivalent are not covered by this Decree. [Kamaya
Port Hotel v. NLRC, 1989]
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NOTICE OF TERMINATION
DEFINITION
GENERAL RULE
RETIREMENT PAY
RATIONALE
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(3) employees
Age of retirement
EEs shall be retired upon reaching the age of 60 years or
more but not beyond 65 years old (and have served the
establishment for at least 5 years).
Optional retirement in the absence of a retirement plan or
other applicable agreement providing for retirement
benefits of EEs in an establishment, an EE may retire upon
reaching the age of 60 or more if he has served for at least
5 years in said establishment.
The minimum retirement pay shall be equivalent to onehalf (1/2) month salary for every year of service, a fraction
of at least six (6) months being considered as one whole
year.
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
(1) 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;
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WOMEN WORKERS
PROVISIONS AGAINST DISCRIMINATION
PAGE 34
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Not many women are made of the stuff that can endure
the agony and trauma of a public, even corporate, scandal.
If petitioner corporation had not issued the third
memorandum that terminated the services of private
respondent, we could only speculate how much longer she
would keep her silence. Perhaps, to private respondent's
mind, for as long as she could outwit her employer's ploys
she would continue on her job and consider them as mere
occupational hazards. [Phil. Aelous Automotive United
Corp. v. NLRC, 2000]
MINOR WORKERS [RA 7610, RA 9231]
CONSTITUTIONAL BASIS
Sanctions
(1) Criminal: imprisonment of 1 month to mos. Or fine of
P10k to P20k or both
Prescription of such action is in 3 years.
(2) 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. [Libres
v. NLRC, 1999]
Cortezs plant manager manifested a special liking for her,
so much so that she was receiving special treatment from
him who would oftentimes invite her "for a date," which
she would as often refuse.
On many occasions, he would make sexual advances touching her hands, putting his arms around her
shoulders, running his fingers on her arms and telling her
she looked beautiful. The special treatment and sexual
advances continued during her employment for four (4)
years but eventually, he made her understand that if she
would not give in to his sexual advances he would cause
her termination from the service; and he made good his
threat when he started harassing her.
Public respondent appears baffled why it took private
respondent more than four years to expose William Chua's
alleged sexual harassment. The gravamen of the offense in
sexual harassment is not the violation of the employee's
sexuality but the abuse of power by the employer. Any
15 TO 18 - allowed but
restricted to non-hazardous undertakings.
EMPLOYMENT OF CHILDREN FROM
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Quantity
Age Bracket
Daily Max
Weekly Max
Below 15 y
4 hours
20 hours
15 to below 18
8 hours
40 hours
Prohibited Hours
Below 15 y
8 pm to 6 am (10 hrs)
15 to below 18
10 pm to 6 am (8 hrs)
EMPLOYMENT OF HOUSEHELPERS
DEFINITION
Compensation
Minimum wage rates shall be equivalent to the basic cash
wages plus lodging, food and medical attendance. [Art.
143-144; Civil Code Art. 1689]
Minimum wage [Art. 143, as amended by RA 7655]
Househelpers shall be paid the following minimum wage
rates:
(1) Eight hundred pesos (P800.00) a month for
househelpers in Manila, Quezon, Pasay, and Caloocan
Employment Certification
ER shall give the househelper a written statement of the
nature and duration of the service and his or her efficiency
and conduct as househelper upon severance. [Art 151; NCC
1699]
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Employment Records
The employer may keep such records as he may deem
necessary to reflect the actual terms and conditions of
employment of his househelper, which the latter shall
authenticate by signature or thumbmark upon request of
the employer. [Art 152]
TERMINATION
In case of termination
Fixed - Security of tenure
Termination prior to contract expiry must be for just cause,
if the duration of the household service is NOT determined
either by stipulation or by the nature of the service, the ER
or the househelper may give notice to put an end to the
relationship five days before the intended termination of the
service. [Art 149; NCC 1697]
If the period for household service is fixed, the house
helper has a right against termination before the
expiration of the term, except for a just cause.
Not fixed- Indemnity for unjust termination of service [Art
150; NCC 1698]
If the duration of the household service is not fixed either
by stipulation or by the nature of the service, the employer
or the house helper may give notice to end, the
relationship five days before the intended termination.
[Rule XII, Book III Sec. 10-17 IRR]
Reliefs for unjust termination
If unjustly dismissed, the house helper is entitled to be
paid the compensation already earned plus that for 15
days by way of indemnity.
EMPLOYMENT OF HOMEWORKERS
Note: DO 5, DOLE (February 4, 1992), is now Rule XIV, Book
III of the IRR.
DEFINITION
Definition
Note: Art. 58 has been superseded by Section 4 (j), (k), (l),
(m) of RA 7796 quoted below:
(j) "Apprenticeship" training within employment with
compulsory related theoretical instruction involving a
contract between an apprentice and an employer on an
approved apprenticeable occupation.
(k) Apprentice" is a person undergoing training for an
approved apprenticeable occupation during an
apprenticeship agreement.
(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. [RA
7796, Sec. 4]
Definition of employer
The employer means any person who
(1) Acts as a contractor delivers or causes to be delivered
any goods, articles, or materials to be processed or
fabricated in or about a home and thereafter to be
returned or to be disposed of or distributed in
accordance with ERs direction; or
(2) Sells any goods, articles, or materials to be processed
or fabricated in or about a home and then rebuys them
after. [Art. 155, LC]
Note: Sec 2(d), Rule XIV, Book III is substantially similar to
the above.
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Apprenticeable occupation
Apprenticeable Occupation is an occupation officially
endorsed by a tripartite body and approved to be
apprenticeable by the authority. [RA 7796, Sec. 4 (m)]
Allowed employment
See: RA 7769, Sec. 4 (m) above
Summary of Rules:
(1) The apprentice must be paid not less than 75% of the
prescribed minimum salary [Art. 61];
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Summary of Rules
(1) The duration of learnership shall not exceed 3 months
[Art. 73];
(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 [Art.
75(d)];
(3) There is a commitment from the employer to employ
the learners if they so desire, as regular employees
upon completion of the learnership [Art. 75(d)];
(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
(5) The wages or salary rates of the learners which shall
begin at not less than 75% of the applicable minimum
wage.
Definition
"Learners" refers to persons hired as trainees in semiskilled and other industrial occupations which are nonapprenticeable. Learnership programs must be approved
by the authority. [RA 7796, Sec. 4]
Semi-skilled
occupations
industrial
Practical
training Practical training whether or
supplemented by related not such practical training is
theoretical instruction
supplemented by theoretical
instructions
Allowed employment
Learners may be employed when no experienced workers
are available, the employment of learners is necessary to
prevent curtailment of employment opportunities, and the
employment does not create unfair competition in terms of
labor costs or impair or lower working standards. [Art. 74,
LC]
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Deductibility of of training
costs incurred, provided:
(a) Program is duly
recognized by DOLE
(b) Deduction shall not
exceed 10% of direct
labor wage
(c) Payment of minimum
wage to apprentices
DEFINITIONS
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Discrimination of Employment
No entity, whether public or private shall discriminate
against a qualified disabled person by reason of disability
in regard to job application procedures, the hiring,
promotion, or discharge of employees compensation, job
training and other terms, conditions and privileges of
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Termination of Employment
Prohibition
No individual, group or community shall execute any of
these acts of ridicule against persons with disability in any
time and place which could intimidate or result in loss of
self-esteem of the latter.
EMPLOYER-EMPLOYEE RELATIONSHIP
The existence or absence of ER-EE relationship is a
question of law and a question of fact, each in its defined
sense.
Vilification includes:
(a) The utterance of slanderous and abusive statements
against a person with disability; and/or,
(b) An activity in public which incites hatred towards,
serious contempt for, or severe ridicule of persons with
disability. [Sec. 41, RA 7277, as amended]
Prohibition
Any individual, group or community is hereby prohibited
from vilifying any person with disability which could result
into loss of self-esteem of the latter.
Two-tiered approach.
(1) First Tier: Control Test (refer to the Four-Fold Test)
(2) Second Tier: The underlying economic realities of the
activity or relationship. [Sevilla v. Court of Appeals].
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Probationary Employment
Legal basis
Probationary employment shall not exceed 6 months from
the date the employee started working, unless it is covered
by an apprenticeship agreement stipulating a longer
period. The services of an employee who has been
engaged on a probationary basis may be terminated for a
just cause or when he fails to qualify as a regular employee
in accordance with reasonable standards made known by
the employer to the employee at the time of his
engagement. An employee who is allowed to work after a
probationary period shall be considered a regular
employee. [Art. 281, LC]
Duration
Generally, the probationary period of employment is
limited to six (6) months. The exception to this general rule
is when the parties to an employment contract may agree
otherwise, such as when the same is established by
company policy or when the same is required by the nature
of work to be performed by the employee. In the latter
case, there is recognition of the exercise of managerial
prerogatives in requiring a longer period of probationary
employment, such as in the present case where the
probationary period was set for eighteen (18) months, i.e.
from May, 1980 to October, 1981 inclusive, especially where
the employee must learn a particular kind of work such as
selling, or when the job requires certain qualifications,
skills, experience or training. [Busier vs. Leogardo, 1984]
Honasan was certainly under observation during her threeweek on-the-job training. If her services proved
unsatisfactory then, she could have been dropped as early
as during that period. But she was not. On the contrary,
her services were continued, presumably because they
were acceptable, although she was formally placed this
time on probation.
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
[International Catholic Migration Comm. vs. NLRC, 1989]
Termination - Can only be terminated for:
(1) Just causes; or
(2) Failure to qualify as a regular employee in accordance
with reasonable standards made known by the
employer to the employee at the time of engagement.
Purposes
(1) Observance Period for employer to determine if
employee is qualified and for employee to demonstrate
to the ER his skills
(2) Restrictive- As long as the termination was made
before the expiration of the six-month probationary
period, the employer has a right to sever the employeremployee relationship
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Exceptions:
(1) When the parties to an agreement contract otherwise:
(2) When the same is established by company policy;
(3) When the s ame is required by the nature of the work
performed by the employee; and
(4) When it is covered by an apprenticeship agreement
stipulating a longer period
Regular employment
Definition
Regular employment is not synonymous with permanent
employment, because there is no such thing as a
permanent employment. Any employee may be
terminated for just cause.
Absorbed employees
The private respondents could not be considered
probationary employees because they were already welltrained in their respective functions. As stressed by the
Solicitor General, while private respondents were still with
the CCAS they were already clerks. Respondent Gelig had
been a clerk for CCAS for more than ten (10) years, while
respondent Quijano had slightly less than ten (10) years of
service. They were, therefore, not novices in their jobs but
experienced workers. [Cebu Stevedoring Co., Inc. vs.
Regional Director, 1988]
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. vs. NLRC, 2000]
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Project employment
Employment fixed on a specific project or undertaking,
completion or termination of which is determined at the
time of engagement of the employee.
Whether or not the project has a direct relation to the
business of the ER is not important, BUT:
(a) EE must be informed of the nature and duration of
project
(b) project and principal business of ER are two separate
things
(c) no attempt to deny security of tenure to the worker
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Continuous rehiring
Despite the insistence of petitioner that they were project
employees, the facts show that as masons, carpenters and
fine graders in petitioners various construction projects,
they performed work which was usually necessary and
desirable to petitioners business which involves
construction of roads and bridges. It is not enough that an
employee is hired for a specific project or phase of work.
There must also be a determination of, or a clear
agreement on, the completion or termination of the project
at the time the employee was engaged. This second
requirement was not met in this case. [Chua vs. Court of
Appeals, 2004]
The fact that the workers have been employed with the
company for several years on various projects, the longest
being nine (9) years, did not automatically make them
regular employees considering that the definition of
regular employment in Article 280 of the Labor Code,
makes specific exception with respect to project
employment. The re-hiring of petitioners on a project-toproject basis did not confer upon them regular
employment status. The practice was dictated by the
practical consideration that experienced construction
workers are more preferred. It did not change their status
as project employees. [C.E. Construction Corp vs. Cioco,
2004]
Seasonal employment
Work or services to be performed are seasonal in nature,
employment is for the duration of the season.
No continuing need for the worker.
Specified period
The Court has upheld the legality of fixed-term
employment. It ruled that the decisive determinant in term
employment should not be the activities that the employee
is called upon to perform but the day certain agreed upon
by the parties for the commencement and termination of
their employment relationship. But, this Court went on to
say that where from the circumstances it is apparent that
the periods have been imposed to preclude acquisition of
tenurial security by the employee, they should be struck
down or disregarded as contrary to public policy and
morals. [Purefoods Corp. vs. NLRC, 1987]
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LABOR LAW
Casual employment
When not regular, project or seasonal employee.
Requirements to become Regular employee:
(1) one (1) year service, continuous or broken
(2) with respect to activity employed
(3) employment shall continue while such activity exists
Nature of work
What determines regularity or casualness is not the
employment contract, written or otherwise, but the nature
of the job. If the job is usually necessary or desirable to the
main business of the employer, then employment is
regular. [A. M. Oreta and Co., Inc. vs. NLRC, 1989]
JOB CONTRACTING
One-year service
The fact that the petitioners have been hired on a
"temporary or seasonal" basis merely is
no argument
either.
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condition that the bond will answer for the wages due the
employees should the contractor or subcontractor, as the
case may be, fail to pay the same.
Examples
Aboitiz Haulers vs. Dimapatoi (2006):
The allegation of petitioner that Grigio is an independent
job contractor is without basis. The respondents, as
checkers, were employed to check and inspect cargo, a task
which is clearly necessary for the petitioners business of
forwarding and distributing cargo. Grigio did not
undertake the performance of its service contract
according to its own manner and method, free from the
control and supervision of its principal.
Definition of terms
Cabo a persons or group of persons or a labor groups
which, in the guise of a labor organization, cooperative or
any entity, supplies workers to an employer, with or
without any monetary or other consideration, whether in
the capacity of an agent of the employer or as an
ostensible independent contractor.
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LABOR LAW
Formula:
NFCC = (current assets - current liabilities) x (K value of
all outstanding or ongoing projects including contracts to
be started)
Other prohibitions
(A) 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:
(1) 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.
(2) Contracting out of work with a Cabo
(3) 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:
(a) Requiring them to perform functions which are
currently being performed by the regular EEs of
the principal; and,
(b) 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.
(4) Contracting out of a job, work or service through an
in-house agency.
(5) Contracting out of a job, work or service that is
necessary or desirable or directly related to the
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LABOR LAW
UP COLLEGE OF LAW
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SECURITY OF TENURE
Definition
Right not be removed from ones job without valid cause
and valid procedure. [Kiamco v. NLRC, 1999]
Nature
It is a constitutionally protected right [Art. XIII Sec. 3, 1987
Constitution]; it cannot be blotted out by an employment
contract.
It does not give the Employee an absolute right to his
position; when a transfer is not unreasonable, nor
inconvenient, nor prejudicial to an employee; and it does
not involve a demotion in rank or diminution of his pay,
benefits, and other privileges, the employee may not
complain that it amounts to constructive dismissal.
[Lanzadares vs. Amethyst Security, 2003]
Coverage
(1) 1987 Constitution: all workers [Art. XIII Sec. 3]
(2) Labor Code: regular employees [Art. 279] in all
establishments or undertakings, whether for profit or
not [Art. 278], except government and its political
subdivisions including government owned or controlled
corporations or GOCCs [IRR Book VI Rule I Sec. 1]
(3) Security of tenure extends to non regular Employees
[Kiamco vs. NLRC, 1999]
(4) Contract Employees limited extent; secured during
the period their respective contracts of employment
remain in effect. [Labajo vs. Alejandro, 1988]
(5) Probationary Employees limited extent; additional
limitations on power of Employer to terminate:
(a) must be exercised in accordance with the specific
requirements of the contract;
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(6)
(7)
(8)
(9)
LABOR LAW
Management prerogatives
(1) Discipline [San Miguel v. NLRC, 1980]
(2) Right to dismiss or otherwise impose disciplinary
sanctions upon an employee for just and valid cause,
pertains in the first place to the employer, as well as
the authority to determine the existence of said cause
in accordance with the norms of due process. [Makati
Haberdashery, Inc. v. NLRC, 1989]
(3) To Demote [Petrophil vs. NLRC, 1986]
(4) To Dismiss it is a measure of self protection [Reyes vs.
Ministry of Labor, 1989]
Managerial
Rank-and-file
Substantial
evidence
Requisites
(1) Serious to be serious, misconduct must be:
(a) of such grave and aggravated character
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AUTHORIZED CAUSES
Recognized right
The law recognizes the right of every business entity to
reduce its workforce if the same is made necessary by
compelling economic factors which would endanger its
existence or stability.
The fundamental law itself guarantees, even during the
process of tilting the scales of social justice towards
workers and employees, the right of enterprises to
reasonable returns of investment and to expansion and
growth. [Uichico v. NLRC, 1997]
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The service of an
Employee is in
excess of what is
required by an
enterprise
Resorted
to To save production Aims to prevent
primarily to avoid or costs
further
financial
minimize business
drain upon the
losses
Employer
Disease or illness
Separation pay entitlement
Employee is entitled to separation pay of 1 month pay or
month pay per year of service, whichever is higher
Requisites
(1) Employee has been found to be suffering from any
disease;
(2) His continued employment is prohibited by law or is
prejudicial to his health as well as to the health of his
co-employees;
(3) Payment of separation pay;
(4) A medical certification by a competent public health
authority that the disease cannot be cured w/in 6
months even with proper medical treatment [IRR Book
VI. Rule I. Sec. 8]
(a) Medical certification cannot be dispensed with
[Manlyl Express, Inc. v. Payong, 2005]
(b) It must be issued by a competent public health
authority and not the company physician [Cebu
Royal Plant v. Deputy Minister of Labor, 1987]
Just Causes
Requisites
PAGE 54
Loss of Confidence
(a) Committed against the Employer or
his representative [direct];
UP COLLEGE OF LAW
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Additional Guidelines
(a) NOT simulated;
(b) NOT used as a subterfuge;
(c) NOT arbitrarily asserted; and
(d) genuine, NOT a mere afterthought
[Vitarich v. NLRC, 1999; Coca-Cola
Bottlers, Phils., Inc. v. Kapisanan ng
Malayang Manggagawa sa CocaCola, 2005]
Commission of a
crime or offense
against Employer
Analogous causes
Authorized Causes
Closure or
Cessation of
Operations
Disease
Requisites
Installation of
Labor Saving
Devices
Redundancy
Retrenchment
DUE PROCESS
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Twin-notice requirement
First notice notice specifying the grounds for which
dismissal is sought
Authorized Cause
Arts. 283 & 284
Notice to:
(1) Employee, and
(2) DOLE
at least 1 month prior to the
effectivity of the separation
Requisites
(a) Notice not needed when Employee consented to the
retrenchment or voluntarily applied for one.
[International Hardware Inc. vs. NLRC, 1989]
(b) Notice must be individual, not collective. [Shoppers
Gain Supermart vs. NLRC, 1996];
(c) Voluntary arbitration satisfies notice requirement for
authorized causes [Revidad vs. NLRC, 1995]
Consequences for non-compliance.
Situation
Effect
Liability of ER
No liability
* separation pay if
for authorized
cause
No Just or
Dismissal invalid
Authorized Cause
+ Due Process
Reinstatement +
Full Backwages
* if reinstatement
NOT possible =
separation pay
No Just or
Dismissal invalid
Authorized Cause
+ No Due Process
Reinstatement +
Full Backwages
* if reinstatement
NOT possible =
separation pay
Liable for
damages due to
non-compliance
with procedural
req'ts
*separation pay if
for authorized
cause
UP COLLEGE OF LAW
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21
Burden of Proof.
Upon the employer. Employer must comply with due
process requirements before any termination is done.
[Gothong Lines, Inc. v. NLRC, 1999]
(a) Unsubstantiated suspicions and baseless conclusions
by employers are not legal justification for dismissing
employees. [Maranaw Hotel and Resort Corp. v. NLRC,
1999]
Degree of Proof.
Substantial evidence; proof beyond reasonable doubt not
required. [Manila Electric Co., Inc. v. NLRC, 1991]
Agabon doctrine.
Prior to 1989
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 of the Civil Code]
Reinstatement pending appeal
Art. 223 is clear that an award for reinstatement shall be
immediately executory even pending appeal and the
posting of a bond by the employer shall not stay the
execution for reinstatement.
Illegal dismissal
Dismissal is valid.
EE is entitled to the payment of
full backwages - Computed from
the time of dismissal until the
Court finds the dismissal to be for
just cause.
Kinds
(1) SP as a statutory requirement for authorized causes
(2) SP as financial assistance found in the next section
(3) SP in lieu of reinstatement where reinstatement is not
feasible; and
(4) SP as a benefit in the CBA or company policy
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, 1989];
allowances include transportation and emergency living
allowances [Santos v. NLRC, 1987]
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LABOR LAW
BACKWAGES
Definition
(1) According to St. Theresas School of Novaliches
Foundation v. NLRC (1998): 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;
(2) it is not private compensation or damages; nor is it a
redress of a private right;
(3) but, rather, in the nature of a command to the
employer to make a public reparation for illegally
dismissing an employee.
Rationale
Feati University Club vs. Feati University (1974) adopted a
consensus policy of pegging the amount of backwages to
their total equivalent for three years (depending on the
circumstances) without deduction or qualification.
The rationale for the policy was stated in the following
words:
As has been noted, this formula of awarding
reasonable net backwages without deduction or
qualification relieves the employees from proving or
disproving their earnings during their lay-off and the
employers from submitting counterproofs, and
obviates the twin evils of Idleness on the part of the
employee who would "with folded arms, remain
inactive in the expectation that a windfall would come
to him" [Itogon Suyoc Mines, Inc. vs. Sangilo-Itogon
Workers Union (1968), as cited in Diwa ng Pagkakaisa
vs. Filtex International Corp. (1972)] and attrition and
protracted delay in satisfying such award on the part
of unscrupulous employers who have seized upon the
further proceedings to determine the actual earnings
of the wrongfully dismissed or laid-off employees to
hold unduly extended hearings for each and every
employee awarded backwages and thereby render
practically nugatory such award and compel the
employees to agree to unconscionable settlements of
their backwages award in order to satisfy their dire
need. [See La Campana Food Products, Inc. vs. CIR,
(1969) and Kaisahan ng Mga Manggagawa vs. La
Campana Food Products, Inc., (1970)].
Limited backwages
General rule: An illegally dismissed employee is entitled to
full backwages.
Exceptions
(1) The Court awarded limited backwages where the
employee was illegally dismissed but the employer was
found to be in good faith.
Jurisprudence
San Miguel Corporation v. Javate, Jr. (1992)
The Court affirmed the consistent findings and conclusions
of the Labor Arbiter, (NLRC), and CA that the employee
was illegally dismissed since he was still fit to resume his
work; but the employers liability was mitigated by its
evident good faith in terminating the employees services
based on the terms of its Health, Welfare and Retirement
Plan. Hence, the employee was ordered reinstated to his
former position without loss of seniority and other
privileges appertaining to him prior to his dismissal, but
the award of backwages was limited to only one year
considering the mitigating circumstance of good faith
attributed to the employer.
PREVENTIVE SUSPENSION
DEFINITION
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LABOR LAW
TRANSFER OF EMPLOYEES
Westin Phil. Plaza Hotel v. NLRC (1999):
(1) An Employees right to security of tenure does not give
him such a vested right in his position as would deprive
the company of its prerogative to change his
assignment or transfer him where he will be most
useful.
(2) The Employer has the right to transfer or assign
Employees from one area of operation to another, or
one office to another or in pursuit of its legitimate
business interest,
(3) provided there is no demotion in rank or diminution of
salary, benefits and other privileges and not motivated
by discrimination or made in bad faith, or effected as a
form of punishment or demotion without sufficient
cause.
Management Prerogative
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]
DISCIPLINE
The employers right to conduct the affairs of his business,
according to its own discretion and judgment, includes the
prerogative to instill discipline in its employees and to
impose penalties, including dismissal, upon erring
employees. This is a management prerogative where the
free will of management to conduct its own affairs to
achieve its purpose takes form. The only criterion to guide
the exercise of its management prerogative is that the
policies, rules and regulations on work-related activities of
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productivity standards for its workers. In fact, noncompliance may be visited with a penalty even more severe
than demotion.
In Tiu v. Platinum Plan Phils., Inc., 517 SCRA 101 (2007), the
Supreme Court decided a case involving a restrictive
covenant contained in an employment agreement
prohibiting the employee from working for a competitor to
protect its interest. The Court ruled in favor of the
employer, saying that the non-compete or noninvolvement clause has a time limit: two years from the
time the employees employment with the company
ended. The restriction was also limited since it only
prohibits the employee from engaging in any pre-need
business akin to the employers.
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" [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]
With regard to the private respondents claim for the midyear bonus, it is settled doctrine that a grant of a bonus is a
prerogative, not an obligation of the employer. The matter
of giving a bonus over and above the workers lawful
salaries and allowances is entirely dependent on the
financial capability of the employer to give it. [KimberlyClark Philippines, Inc. vs. Dimayuga, 2009]
COVERAGE
Compulsory
(1) Employers as defined above;
(2) Employees not over 60 years including domestic
helpers with at least P1,000 monthly pay; and
(3) Self-employed as may be determined by the
Commission, but not limited to:
(a) Self-employed professionals
(b) Partners and single proprietors of businesses
(c) Actors and actresses, directors, scriptwriters, and
news correspondents who do not fall within the
definition of the term employee under Section 8
(d)
(d) Professional athletes, coaches, trainers and jockeys
(e) Individual farmers and fishermen
Voluntary
(1) Spouses who devote full time to managing household
and family affairs, unless they are also engaged in
other vocation or employment (which is subject of
compulsory coverage);
(2) OFWs recruited by foreign-based employers;
(3) Employees (previously under compulsory coverage)
already separated from employment or those selfemployed (also under compulsory coverage) with no
realized income for a given month, who chose to
continue with contributions to maintain right to full
benefit.
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]
UP COLLEGE OF LAW
LABOR LAW
BENEFITS
Monthly pension
Computation of monthly pension: the monthly pension
shall be the highest of the following amounts:
(1) P300 + [20% x (ave. monthly credit)] + [2% x (ave.
monthy credit) x (# of cash credited years of service in
excess of 10 years)]; or
(2) 40% x [ave. monthly credit]; or
(3) P1,000; provided, that the monthly pension shall in no
case be paid for an aggregate amount of less than 60
months.
(4) Notwithstanding the abovementioned, minimum
pension is P1,200 for members with at least 10 years
credit service, P2,400 for those with 20 years.
Dependents pension
(a) Paid when member dies, retires or with permanent
total disability;
(b) Paid to each child conceived on or prior to contingency,
but not exceeding 5, beginning with the youngest and
preferring the legitimate;
(c) Amount is either P250 or 10% of the monthly pension
as computed above, whichever is higher.
Sickness benefits
Eligibility requirements and other conditions
(1) Inability to work due to sickness or injury
(2) Confined for at least 4 days either in a hospital or
elsewhere with SSS approval;
(3) At least 3 months of contributions in the 12 month
period immediately before the semester of sickness or
injury has been paid;
(4) All company sick leaves with pay for the current year
has been used up;
(5) Maximum of 120 days per 1 calendar year [so maximum
permissible for the same sickness and confinement is
240 days for 2 consecutive years];
(6) The employer has been notified, or, if a separated,
voluntary or self-employed member, the SSS directly
notified within 5 days of confinement;
(7) Notice to employer or SSS not needed when
confinement is in a hospital; notice to employer not
required as well when Employee became sick or injured
while working or within premises of the employer.
Retirement benefits
Eligibility requirements
(1) 120 monthly contributions;
(2) Age
(a) 65 years old; or
(b) a member who has reached 60 years may also avail
if he is already separated from employ-ment or has
ceased to be self-employed.
Benefit entitlement to monthly pension from retirement
until death.
Lump Sum Alternative
Member may opt to receive his first 18 monthly pensions in
lump sum but such is discounted at a preferential rate of
interest.
To those ineligible to the 60 year old with less than 120
monthly contributions who is no longer employed or selfemployed, and who is not continuing contributions
independently, he is entitled to a lump sum equal to his
total contributions paid.
Primary
(a) Dependent spouse until remarriage (see above);
(b) Dependent children (legitimate, legitimated, legally
adopted, and illegitimate) (see above); illegitimate
children are entitled only to 50% of the share of
legitimate children unless there are no legitimate
children, in which case, they get 100%.
Secondary shall only receive when the primary
beneficiaries are absent
(a) Dependent parents
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To the ineligible
If member has rendered at least 3 years of service, then he
shall receive cash payment equal to 100% of ave. monthly
compensation for each year of service (essentially total
amount of contributions made) or P12,000 whichever is
higher.
BENEFITS
Partial Disability
Injuries deemed as Permanent Partial Disability
Complete and permanent loss of the use of: any one finger,
any toe, one arm, one hand, one foot, one leg, one or both
ears, sight of one eye or such other cases as may be
determined by the GSIS
Monthly pension
The amount shall be:
(a) 37.5% x (revalued ave. monthly compensation)
(b) Plus 2.5 x (revalued ave. monthly compensation) x
[years in service in excess of 15 years].
(1) The monthly pension shall not exceed 90% of the
average monthly compensation.
(2) It shall not be less than P2,400 for those with 20 years
of service and not less than P1,300 for everyone else.
Computation of benefits
(1) If member is in the service, benefit is:
Cash payment (CP) = Basic Monthly Pension (BMP) X nos.
of Permanent Partial Disability (PPD) months as
recommended by the GSIS medical evaluator
Retirement benefits
Eligibility requirements
(1) 15 years service;
(2) 60 years of age; and
(3) Not receiving pension benefit from permanent total
disability.
Funeral benefits
Fixed by GSIS rules and regulations (currently at P20,000)
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BENEFICIARIES
Primary
(a) Dependent spouse until remarriage;
(b) Dependent children (legitimate, legitimated, legally
adopted, and illegitimate) but RA 8291 does not
distinguish share of legitimate and illegitimate
children.
[See Annex B for Comparison between the SSS law and the
GSIS Law]
LIMITED PORTABILITY LAW [RA 7699]
COVERAGE
Benefit
75% of the current daily compensation for every day or
fraction thereof of disability or P70 whichever is higher.
PROCESS
Separation benefits
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.
WHY?
Eligibility requirements
(a) Employee separated from service due to abolition of
his office or position; and
(b) Employee has been paying integrated contributions for
at least 1 year prior to separation.
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.
Survivorship benefits
Beneficiaries are entitled to the following:
(a) Basic survivorship pension which is 50% of basic
monthly pension; and
(b) Dependent childrens pension not exceeding 50% of
the basic monthly pension.
Life insurance benefits
Note: Judiciary and Constitutional Commissions are
entitled to life insurance only.
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EFFECTIVITY
Grounds:
(1) For the injury and the resulting disability or death to be
compensable, the injury must be the result of accident
arising out of and in the course of the employment.
(2) For the sickness and the resulting disability or death to
be compensable, the sickness must be the result of an
occupational disease listed under Annex A of these
Rules with the conditions set therein satisfied,
otherwise, proof must be shown that the risk of
contracting the disease is increased by the working
conditions.
WORKER QUALIFICATION
DEFINITIONS
Employee
Employee includes:
(3) Any person in the employ of an employer.
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Employer
"Employer" includes any person acting in the interest of an
employer, directly or indirectly. The term shall not include
any labor organization or any of its officers or agents
except when acting as employer. [Art 212 (e)]
Supervisory Employees
Supervisory employees are those who, in the interest of the
employer, effectively recommend such managerial actions
if the exercise of such authority is not merely routinary or
clerical in nature but requires the use of independent
judgment. [Art. 212 (m)]
Rank-and-file employees
Rank-and-File Employee refers to an employee whose
functions are neither managerial nor supervisory in nature.
[Book V Rule I Sec. 1 (nn)]
Supervisory Employees
Supervisory employees are those who, in the interest of the
employer, effectively recommend such managerial actions
if the exercise of such authority is not merely routinary or
clerical in nature but requires the use of independent
judgment. [Art. 212 (m)]
Managerial employees
A managerial employee is one who is vested with the
powers or prerogatives to lay down and execute
management policies and/or to hire, transfer, suspend,
lay-off, recall, discharge, assign or discipline employees.
[Art 212(m)]
Worker's association
A workers association means any group of workers,
including ambulant, intermittent, self-employed, rural
workers and those without definite employers, organized
for mutual aid and protection of its members or for any
legitimate purpose other than collective bargaining. [Art.
243]
Aliens
General rule: aliens are strictly prohibited from engaging
directly or indirectly in all forms of trade union activities.
Exception:
(1) they have valid working permits issued by the DOLE;
AND
(2) they are nationals of a country which grants the same
or similar rights to Filipino workers [principle of
reciprocity]. [Art 269]
Security Guards
The security guards and other personnel employed by the
security service contractor shall have the right:
(a) To form, join, or assist in the formation of a labor
organization of their own choosing for purposes of
collective bargaining and
(b) To engage in concerned activities which are not
contrary to law including the right to strike. [D.O. No. 14
Series of 2001 Guidelines Governing the Employment
and Working Conditions of Security Guards and Similar
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(1)
(2)
(3)
(4)
(5)
(6)
(7)
Non-Employees
Since the persons involved are not employees of the
company, they are not entitled to the constitutional right
to join or form a labor organization for purposes of collective
bargaining. [Republic Planters v Laguesma , 1996]
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
Managerial Employees
A managerial employee is one who is vested with the
powers or prerogatives to lay down and execute
management policies and/or to hire, transfer, suspend,
lay-off, recall, discharge, assign or discipline employees.
[Art 212(m)]
Managerial employees are not eligible to join, assist or
form any labor organization. [Art. 245]
Employee-Member of Cooperative
The right to collective bargaining is not available to an
employee of a cooperative who at the same time is a
member and co-owner thereof.
Confidential Employees
Confidential employees are those who:
(1) assist or act in a confidential capacity [integral part of
the job]
(2) to persons who formulate, determine, and effectuate
management policies in the field of labor relations.
(Nature of Access Test)
Exclusion: Rationale
They cannot invoke the right to collective bargaining for
"certainly an owner cannot bargain with himself or his coowners." [Benguet Electric Cooperative v. Ferrer-Calleja]
BUT
Employees who withdrew their membership from the
cooperative are entitled to form or join a labor union for
the negotiations of a CBA. [CENECO v DOLE, 1991]
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Managerial Functions
(1) Effectively recommend managerial actions;
(2) Formulate or execute management policies and
decisions; or
(3) Hire, transfer, suspend, lay-off, recall, dismiss, assign or
discipline employees.
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]
BARGAINING UNIT
Definitions
Bargaining Unit refers to a group of employees sharing
mutual interests within a given employer unit, comprised
of all or less than all of the entire body of employees in the
employer unit or any specific occupational or geographical
grouping within such employer unit. [Book V, Rule 1,
Sec1(d)]
Appropriate Bargaining Unit
A group of employees of a given employer comprised of all
or less than all of the entire body of employees, which the
collective interests of all the employees indicate to be best
suited to serve reciprocal rights and duties of the parties
consistent with equity to the employer. [Belyca Corp. vs
Calleja, 1988]
Other factors:
(1) Geography and location
(2) Policy of avoiding fragmentation of the bargaining unit
Unit Severance and Globe Doctrine
Globe Doctrine: Concept
(a) practice designated as the "Globe doctrine," which
sanctions the holding of a series of elections, not for the
purpose of allowing the group receiving an over all
majority of votes to represent all employees, but for the
specific purpose of permitting the employees in each of
the several categories to select the group which each
chooses as a bargaining unit. [Kapisanan ng mga
Manggagawa sa Manila Road Co. v. Yard Crew Union ,
1960]
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 a. v ABS-CBN,
2010]
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Geography Location
Geography and location only play a significant role if:
(1) The separation between the camps and the different
kinds of work in each all militate in favor of the system
of separate bargaining units;
(2) When the problems and interests of the workers are
peculiar in each camp or department;
(3) The system of having one collective bargaining unit in
each camp has operated satisfactorily in the past.
[Benguet Consolidated Inc. and Balatok Mining Co. v.
Bobok Lumberjack Assn.,1958]
VOLUNTARY RECOGNITION
Definition
Voluntary Recognition refers to the process by which a
legitimate labor union is recognized by the employer as
the exclusive bargaining representative or agent in a
bargaining unit, reported with the Regional office in
accordance to Rule VII, Sec 2 of these Rules. [Book V, Rule
1, Sec 1 [bbb]
Substantial Requirements
(1) Unorganized establishment;
(2) Only one union asking for recognition;
(3) The members of the bargaining unit did not object to
the projected recognition of the union.
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) conspicuous places in the establishment or
bargaining unit where the union seeks to operate;
(3) The approximate number of employees in the
bargaining unit, accompanied by the names of those
who support the voluntary recognition comprising at
least a majority of the members of the bargaining unit;
and
(4) A statement that the labor union is the only legitimate
labor organization operating within the bargaining
unit.
Corporate Entities
GENERAL RULE: 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]
Principles in determining whether to establish separate
bargaining units: [Indophil Textile Mills Workers Union v.
Calica, 1992; Diatagon Labor Federation v. Ople, 1980]
(1) The existence of a bonafide business relationship
between the 2 companies is not proof of being a single
corporate entity, especially when the services provided
by the other company are merely auxiliary.
(2) The fact that there are as many bargaining units as
there are companies in a conglomeration of companies
is a positive proof that a corporation is endowed with a
legal personality DISTINCTLY ITS OWN, independent
and separate from other corporations.
(3) Separate legitimate purposes militate against treating
one corporation as an adjunct or alter ego of the other.
(4) The fact that the businesses are related, that some of
the employees are the same persons working in the
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Implications
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]
CERTIFICATION ELECTION
Definition
Certification election is the process of determining,
through secret ballot, the sole and exclusive bargaining
agent of the employees in an appropriate bargaining unit,
for purposes of collective bargaining. [Book V Rule I Section
1 [x]]
The certification election is the best method of determining
the will of the workers on the crucial question of who shall
represent them in their negotiations with the management
for a collective bargaining agreement that will best protect
and promote their interests. It is essential that there be no
collusion against this objective between an unscrupulous
management and a union covertly supporting it while
professing its loyalty to labor, or at least that the hopes of
labor be not frustrated because of its representation by a
union that does not enjoy its approval and support. It is
therefore sound policy that any doubt regarding the real
representation of the workers be resolved in favor of the
holding of the certification election. This is preferable to
the suppression of the voice of the workers through the
prissy observance of technical rules that will exalt
procedure over substantial justice. [Port Workers Union of
the Philippines v Laguesma, 1992]
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]
Nature of proceeding
It is not litigation, but a mere investigation of a nonadversary 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]
National union/federation
A national union of federation filing a petition in behalf of
its local/chapter shall not be required to disclose the
names of the local/chapters officers and members, but
shall attach to the petition the charter certificate issued to
its local/chapter. [Art. 257]
Employer
The employer may file a petition for certification election
only when he is requested by a labor organization to
bargain. [Art 258 paragraph 1]
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Bargaining Agent
Existing, has one
None
Petition Filed
Has to be a VERIFIED
petition
No need to be verified
Freedom Period
Take
note
interpreted
WITHIN.
how
SC
the
term
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Notice
Note: The ONLY party who could ask for the suspension of
the CE is the labor union which filed a complaint for ULP
against the employer.
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Voting Day
The election shall be set on a regular business day. [IRR,
Book V Rule IX Sec. 2]
Run-off election. "Run-Off" refers to an election between
the labor unions receiving the two (2) higher number of
voters when a certification election which provides for
three (3) or more choices results in no choice receiving a
majority of the valid votes cast, where the total number of
votes for all contending unions is at least fifty percent
(50%) of the number of votes cast.
Requirements
(1) majority of the bargaining unit voted (first majority of
the double majority rule)
(2) three or more choices (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
Contents of Notice:
(a) Date and Time of election;
(b) Names of all contending unions;
(c) Description of the bargaining unit
(d) List of eligible and challenged Voters.
The posting of the notice of election, the information
required to be included therein and the duration of the
posting cannot be waived by the contending unions or the
employer. [Book V Rule IX Sec 6, IRR]
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 even exceed one-half (), a runoff election is proper. The run-off will be between the labor
unions receiving the two highest number of votes. The
rematch is NOT between two unions but between two
highest votes. Thus the run-off will be among Union A,
B and C. [Azucena]
Employees who have been improperly laid off but who have a
present, unabandoned right to or expectation of
reemployment, are eligible to vote in certification elections. If
the dismissal is under question, employees concerned
could still qualify to vote in the elections. [Philippine Fruits
v Torres, 1992]
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interests.
Admittedly, there are times when without
succor and support local unions may find it hard, unaided
by other support groups, to secure justice for themselves.
[Phil Skylanders v. NLRC, 2002]
Consent Election
Purpose
Aimed at determining the sole
and exclusive bargaining agent
of all employees in an
appropriate bargaining unit for
the purpose of collective
bargaining
Effect of Affiliation
Locals remain the basic units of association, free to serve
their own and the common interest of all. Inclusion of FFW
in the registration is merely to stress that they are its
affiliates at the time of registrations. 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]
Disaffiliation
General rule: Local unions may disaffiliate from the mother
union.
Purpose of affiliation
To foster the free and voluntary organization of a strong
and united labor movement [Art 211, LC]
Effect of disaffiliation
A registered independent union retains its legal
personality while a chartered local loses its legal
personality unless it registers itself.
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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, 1968]
Legal basis
Employees of an appropriate bargaining unit who are not
members of the recognized collective bargaining agent
may be assessed a reasonable fee equivalent to the dues
and other fees paid by members of the recognized
collective bargaining agent, if such non-union members
accept the benefits under the collective bargaining
agreement: Provided, that the individual authorization
required under Article 242, paragraph (o) of this Code shall
not apply to the non-members of the recognized collective
bargaining agent [Art. 248 (e)]
Legal Basis
The State shall guarantee the rights of workers to
collective bargaining and negotiations.
The State shall promote the principle of shared
responsibilities between workers and employers and the
preferential use of voluntary modes in settling disputes,
including conciliation, and shall enforce their mutual
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Definition
Collective bargaining, which is defined as negotiations
towards a collective agreement, is one of the democratic
frameworks under the New Labor Code, designed to
stabilize the relation between labor and management and
to create a climate of sound and stable industrial peace. It
is a mutual responsibility of the employer and the Union
and is characterized as a legal obligation.
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General Concepts
Collective bargaining Agreement (CBA)
A collective bargaining agreement refers to the negotiated
contract between a legitimate labor organization and the
employer concerning wages, hours of work and all other
terms and conditions of employment in a bargaining unit,
including mandatory provisions for grievances and
arbitration machineries. [Book V Rule I Section 1(j)]
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.
A substandard CBA cannot bar a petition for certification
election under the contract-bar rule.
Confidentiality of registered CBA or parts thereof
General rule: CBA is not confidential
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Exceptions:
(1) confidentiality authorized by Secretary of Labor
(2) when it is at issue in any judicial litigation
(3) public interest or national security requires [Art. 231]
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. [Art. XIII Section 3]
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Duration
Political Aspect [representation]: 5 years. This refers to the
identity and majority status of the collective bargaining
agent that negotiated the CBA.
Non-political aspect: 3 years. This refers to other provisions
in the CBA, economic or otherwise other than
representational or political.
CBA Effectivity.
(1) If it is the first ever CBA, the effectivity date is whatever
date the parties agree on.
(2) If it is renegotiated CBA, the effectivity date depends
upon the duration of conclusion.
(a) If it is concluded within 6 months from the expiry date,
the new CBA will retroact to the date following the
expiry date [Illustration: expiry date: December 13;
effectivity date: December 14].
(b) If the renegotiated CBA is concluded beyond 6 months
from the expiry date, the matter of retroaction and
effectivity is left with the parties.
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Closed shop
A closed shop, on the other hand, may be defined as an
enterprise in which, by agreement between the employer
and his employees or their representatives, no person may
be employed in any or certain agreed departments of the
enterprise unless he or she is, becomes, and, for the
duration of the agreement, remains a member in good
standing of a union entirely comprised of or of which the
employees in interest are a part. [GMC v. Casio, 2010]
Exception:
(1) when the liability therefore is assumed by the new
employer under the contract of sale, or
(2) when liability arises because of the new owner's
participation in thwarting or defeating the rights of the
employees.
The most that the transferee may do, for reasons of public
policy and social justice, is to give preference to the
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Refusal to bargain
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]
Individual bargaining
It is an unfair labor practice for an employer operating
under a CBA to negotiate with his employees individually.
That constitutes interference because the company is still
under obligation to bargain with the union as the
bargaining representative. [The Insular Life Assurance Co.
Ltd., Employees Assn. v. Insular Life Assurance Co. Ltd, 1971]
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]
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]
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]
Check-off, Union dues, Agency fees
Please see previous
UNFAIR LABOR PRACTICE IN COLLECTIVE BARGAINING
Definition
Unfair labor practice refers to acts that violate the workers
right to organize. The prohibited acts are related to the
workers right to self-organization and to the observance of
a CBA. Without that element, the acts, no matter how
unfair, are not unfair labor practices. The only exception is
Art. 248 (f) (i.e. to dismiss, discharge or otherwise prejudice
or discriminate against an employee for having given or
being about to give testimony under this Code). [Philcom
Employees Union v. Phil. Global, 2006]
Nature of ULP
(1) inimical to the legitimate interests of both labor and
management, including their right to bargain
collectively and otherwise deal with each other in an
atmosphere of freedom and mutual respect
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(e)
(f)
(g)
(h)
(i)
The
provisions
of
the
preceding
paragraph
notwithstanding, only the officers and agents of
corporations, associations or partnerships who have
actually participated in, authorized or ratified unfair labor
practices shall be held criminally liable. [Art. 248]
ULP of Employers
(1) Interference, restraint, and coercion
(2) Yellow-dog contracts
(3) Contracting out
(4) Company union
(5) Discrimination
(6) Testimony
(7) Violation of duty to bargain collectively
(8) Payment of negotiation or attorney's fees
(9) Violation of the CBA
Interrogation.
General rule: employer may interrogate its employees
regarding their union affiliation for legitimate purposes
and with the assurance that no reprisals would be taken
against the unionists.
Exception: when interrogation interferes with or restrains
employees' right to self-organization. [Phil. Steam
Navigation Co. v. Phil. Marine Officers Guild, 1965]
Speech. The subjection by the company of union to
vilification and its participation in soliciting membership
for a competing union is also ULP act. [Phil. Steam
Navigation Co. v. Phil. Marine Officers Guild, 1965]
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Examples.
(a) a representation by the employee that he is not a
member of a labor organization
(b) a promise by the employee that he will not join a union
(c) a promise by the employee that upon joining a labor
organization, he will quit his employment
Contracting out
General rule: contracting out is not ULP
Exception:
(1) contracted-out services or functions are performed by
union members AND
(2) contracting out will interfere with, restrain, or coerce
employees in the exercise of their right to selforganization. [Art. 248 (c)]
Legal basis
Unfair labor practices of labor organizations. - It shall be
unfair labor practice for a labor organization, its officers,
agents or representatives:
(a) To restrain or coerce employees in the exercise of their
right to self- organization. However, a labor
organization shall have the right to prescribe its own
rules with respect to the acquisition or retention of
membership;
(b) To cause or attempt to cause an employer to
discriminate against an employee, including
discrimination against an employee with respect to
whom membership in such organization has been
denied or to terminate an employee on any ground
other than the usual terms and conditions under which
membership or continuation of membership is made
available to other members;
(c) To violate the duty, or refuse to bargain collectively
with the employer, provided it is the representative of
the employees;
(d) To cause or attempt to cause an employer to pay or
deliver or agree to pay or deliver any money or other
things of value, in the nature of an exaction, for services
which are not performed or not to be performed,
including the demand for fee for union negotiations;
(e) To ask for or accept negotiation or attorneys fees from
employers as part of the settlement of any issue in
collective bargaining or any other dispute; or
(f) To violate a collective bargaining agreement.
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)]
The employer commits ULP if it initiates, dominates, or
otherwise interferes with the formation or administration of
any labor organization.
Example: giving out financial aid to any union's supporters
or organizers.
Discrimination Encourage/Discourage Unionism
General rule: it is ULP to discriminate in regard to wages,
hours of work and other terms and conditions of
employment in order to encourage or discourage
membership in any labor organization.
Exception [union security clause]: Nothing in this Code or
in any other law shall stop the parties from requiring
membership in a recognized collective bargaining agent as
a condition for employment.
Exception to exception: Those employees who are already
members of another union at the time of the signing of the
collective bargaining agreement. [Art. 248 (e)]
The
provisions
of
the
preceding
paragraph
notwithstanding, only the officers, members of governing
boards, representatives or agents or members of labor
associations or organizations who have actually
participated in, authorized or ratified unfair labor practices
shall be held criminally liable. [Art. 249]
Restraint, or coercion
Interfere is not included in Art. 249 simply because any
act of a labor organization amounts to interference to the
right of self-organization.
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(a) Strike
(b) Picketing
Exaction (Featherbedding)
Featherbedding or make-work by the union is the
practice of the union asking [exacting] for money or other
things of value from the employer in return for services
which are not performed or are not to be performed.
STATUTORY BASIS
Forms of strikes
As to legality
(a) Legal strike one called for a valid purpose and
conducted through means allowed by law.
(b) 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
(a) Economic strike one staged by workers to force wage
or other economic concessions from the employer
which he is not required by law to grant [Consolidated
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As to how committed
(a) 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 [Ilaw at Buklod ng
Manggagawa v. NLRC, 1991]
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
Effort to bargain
No labor organization or employer shall declare a strike or
lockout without first having bargained collectively in
accordance with Title VII of this Book. [Art. 264 (a)]
Filing and service of notice of strike
Bargaining deadlocks. The duly certified or recognized
bargaining agent may file a notice of strike or the employer
may file a notice of lockout with the Department at least
30 days before the intended date thereof. [Art. 263(c)]
Picketing
Picketing is the right of workers to peacefully march to and
fro before an establishment involved in a labor dispute
generally accompanied by the carrying and display of
signs, placards and banners intended to inform the public
about the dispute. [NCMB Manual, Sec. 1]
Legal basis
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 263 (b)]
WHO MAY DECLARE A STRIKE OR LOCKOUT
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Additional Requirements.
In cases 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.
In cases of ULP.
(1) Statement of Acts complained of
(2) Efforts taken to resolve the dispute amicably.
Action on notice [Book V Rule XXII Sec. 9]
(a) 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.
(b) 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.
(c) If conciliation/mediation fails, the parties shall be
encouraged to submit their dispute for voluntary
arbitration.
Grounds
Similar to a strike, the proper grounds for a lockout are
(1) bargaining deadlock
(2) ULP by labor organizations
Requisites
(a) Effort to bargain
(b) Filing and service of notice of lockout
(c) Observance of cooling-off period
(d) Lockout vote
(e) Report of lockout vote
(f) Observance of the waiting period
Effort to bargain
No labor organization or employer shall declare a strike or
lockout without first having bargained collectively in
accordance with Title VII of this Book. [Art. 264 (a)]
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Contents of notice.
(a) Names and addresses of the employer and the union
involved
(b) Nature of the industry to which the employer belongs
(c) Number of union members and of workers in the
bargaining unit
(d) Such other relevant data as may facilitate the
settlement of the dispute.
Additional Requirements.
In cases 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.
In cases of ULP
(1) Statement of acts complained of
(2) Efforts taken to resolve the dispute amicably.
Action on notice.
(a) 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.
(b) 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.
(c) If conciliation/mediation fails, the parties shall be
encouraged to submit their dispute for voluntary
arbitration. [Book V Rule XXII Sec. 9]
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]
Lockout vote
A decision to declare a lockout must be approved by a
majority of the board of directors of the corporation or
association or of the partners in a partnership, obtained by
secret ballot in a meeting called for that purpose. [Art.
263(f)]
Duration of the validity of the lockout vote.The decision
shall be valid for the duration of the dispute based on
substantially the same grounds considered when the strike
or lockout vote was taken. [Art. 263(f)]
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Immediately executory
The assumption and certification orders are executory in
character and must be strictly complied with by the
parties. [Allied Banking v. NLRC, 1996]
Rationale
Highest respect accorded to the right of patients to life and
health.
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ILLEGAL STRIKE
(1)
(2)
(3)
(4)
(5)
(6)
Prohibited by law
Improper grounds
Noncompliance with procedural requirements
Unlawful means and methods
Violation of injunction order
No strike/lockout provisions in the CBA
Prohibited by law
Government employees. While the Constitution guarantees
the right of government employees to organize, they are
otherwise not allowed to strike.
Improper grounds
A legal strike must be based on a bargaining deadlock
and/or a ULP act only.
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INJUNCTIONS
Liability of employer
Any worker whose employment has been terminated as a
consequence of any unlawful lockout shall be entitled to
reinstatement with full backwages.
Waiver of illegality of strike
When defense of illegality of strike is deemed waived.In this
case, the Company alleged that the strike was illegal as
the notice of intention to strike was not sent directly to it.
However, it reinstated its striking workers who expressed
their desire to return to work.
On the illegality of the strike, the Court declared:
xxx it is claimed that the strike was illegal. Admitting for
the sake of argument that the strike was illegal for being
premature, this defense was waived by the Bisaya Land
Transportation Company, when it voluntarily agreed to
reinstate the radio operators. [Bisaya Land Transportation
Co., Inc. v. CIR, 1957]
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LABOR LAW
Notes:
(1) The money claim must arise from law or contracts
other than CBA.
(2) Money arising from an implementation of the CBA
Voluntary Arbitrator or Panel of Voluntary Arbitrators
have jurisdiction
(3) Money claims which does not arise from ER-EE
relations Regular Courts have jurisdiction.
(4) Nature of Proceeding: Non-litigious. The Labor Arbiter
is not bound by the technical rules of procedure.
(5) The Labor Arbiter shall use every and all reasonable
means to ascertain the facts in each speedily and
objectively. [Art. 221]
(6) Employer-employee relationship is a jurisdictional
requisite, absent of which, the NLRC has no jurisdiction
to hear and decide the case. [Hawaiian-Philippine
Company v. Gulmatico]
(7) Venue: Regional Arbitration Branch (RAB) having
jurisdiction over the workplace of the complainant or
petitioner.
(8) Workplace place or locality where the employee is
regularly assigned at the time the cause of action
arose.
(9) In the case of field employees, ambulant or itinerant
workers, their workplace is (a) where they are regularly
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NLRC divisions
(a) Original Jurisdiction: Over petitions for injunction or
temporary restraining order under Art. 218 (e).
(b) Exclusive Appellate Jurisdiction: over all cases decided
by labor arbiters [Art 217(b)] and the DOLE regional
directors under Art 129.
Period of Appeal [2005 NLRC Rules of Procedure]
From Labor Arbiter to NLRC: Decisions and resolutions of
the Labor Arbiter shall be final and executory unless
appealed to the Commission by any or both parties within
(10) calendar days from receipt thereof
From Regional Director to NLRC pursuant to Art. 129:
Decisions and resolutions of the Regional Director shall be
final and executory unless appealed within 5 days from
receipt thereof.
CERTIFIED CASES
Definition
Certified labor disputes are cases certified to the
Commission for compulsory arbitration under Art. 263 (g)
of the Labor Code. [Sec. 2, The 2011 NLRC Rules and
Procedures]
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
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Effects of Certification
(1) Upon certification, the intended or impending strike or
lockout is automatically enjoined, notwithstanding the
filing of any motion for reconsideration of the
certification order nor the non-resolution of any such
motion which may have been duly submitted to the
Office of the Secretary of Labor and Employment.
(2) If a work stoppage has already taken place at the time
of the certification, all striking or locked out employees
shall immediately return to work and the employer
shall immediately resume operations and readmit all
workers under the same terms and conditions
prevailing before the strike or lockout.
(3) All cases between the same parties, except where the
certification order specifies otherwise the issues
submitted for arbitration which are already filed or may
be filed, and are relevant to or are proper incidents of
the certified case, shall be considered subsumed or
absorbed by the certified case, and shall be decided by
the appropriate Division of the Commission.
(4) The parties to a certified case, under pain of contempt,
shall inform their counsels and the Division concerned
of all cases pending with the Regional Arbitration
Branches and the Voluntary Arbitrators relative or
incident to the certified case before it.
(5) When a certified labor dispute involves a business
entity with several workplaces located in different
regions, the Division having territorial jurisdiction over
the principal office of the company shall acquire
jurisdiction to decide such labor dispute; unless the
certification order provides otherwise. [Section 3, 2011
NLRC Rules and Procedures]
Execution of judgment
Upon issuance of the entry of judgment, the Commission
motu proprio 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]
BUREAU OF LABOR RELATIONS (BLR) MED
ARBITERS
JURISDICTION (ORIGINAL AND APPELLATE)
The Bureau of Labor Relations and the Labor Relations
Divisions in the regional offices of the Department of Labor
and Employment shall have original and exclusive
authority to act, at their own initiative or upon request of
either or both parties, on all inter-union and intra-union
conflicts, and all disputes, grievances or problems arising
from or affecting labor-management relations in all
workplaces whether agricultural or non-agricultural,
except those arising from the implementation or
interpretation of collective bargaining agreements which
shall be the subject of grievance procedure and/or
voluntary arbitration. [Art. 226]
The Bureau shall have fifteen (15) calendar days to act on
labor cases before it, subject to extension by agreement of
the parties.
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 locking-out
employer of backwages, damages and/or other affirmative
relief, even criminal prosecution against the liable parties.
Appellate Jurisdiction
(1) BLR has the power to review the decision 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.
NATIONAL CONCILIATION AND MEDIATION BOARD
(NCMB)
NATURE OF PROCEEDINGS
Conciliation and mediation is non-litigious/nonadversarial, less expensive, and expeditious. Under this
informal set-up, the parties find it more expedient to fully
ventilate their respective positions without running around
with legal technicalities and, in the course thereof, afford
them wider latitude of possible approaches to the
problem.
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DOLE SECRETARY
Conciliation
A mild form of intervention by a neutral third party, the
Conciliator-Mediator, relying on his persuasive expertise,
takes an active role in assisting parties by trying to keep
disputants talking, facilitating other procedural niceties,
carrying messages back and forth between the parties, and
generally being a good fellow who tries to keep things
calm and forward-looking in a tense situation.
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.
Preventive Mediation
Preventive mediation case refers to the potential or
brewing labor dispute which is the subject of a formal or
informal request for conciliation and mediation assistance
sought by either or both parties in order to remedy, contain
or prevent its degeneration into a full blown dispute
through amicable settlement.
DOLE REGIONAL DIRECTORS
JURISDICTION
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LABOR LAW
APPELLATE JURISDICTION
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, LC]
Remedies
Rule 43, Rules of Court. The decision of a Voluntary
Arbitrator or panel of Voluntary Arbitrators is appealable
by ordinary appeal under Rule 43 of the Rules of Civil
Procedure directly to the Court of Appeals. [see Sec. 1, Rule
43, ROC]
Grievance machinery
It refers to the mechanism for the adjustment and
resolution of grievances. It is part of the continuing process
of collective bargaining.
VOLUNTARY ARBITRATOR
Jurisdiction
Exclusive and original jurisdiction over grievances
The VA or panel of VAs shall have original and exclusive
jurisdiction to hear and decide all unresolved grievances
(see definition).
Violations of a CBA, except those which are gross in
character, shall no longer be treated as ULP and shall be
resolved as grievances under the CBA.
Note: Gross violations of CBA shall mean flagrant and/or
malicious refusal to comply with the economic provisions of
such agreement.
The Commission, its Regional Offices and the Regional
Directors of the DOLE shall not entertain disputes,
grievances or matters under the exclusive and original
jurisdiction of the VA or panel of Vas and shall immediately
dispose and refer the same to the grievance machinery or
Voluntary Arbitration provided in the CBA. [Art. 261, LC]
Other labor disputes
The VA or panel of Vas, upon agreement of the parties,
shall also hear and decide all other labor disputes
including ULP and bargaining deadlocks. [Art. 262, LC]
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COURT OF APPEALS
RULE 65, RULES OF COURT
Section 1. Petition for certiorari. When any tribunal, board
or officer exercising judicial or quasi-judicial functions has
acted without or in excess its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying
that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting
such incidental reliefs as law and justice may require.
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. [Article
201, as amended by Section 5, Presidential Decree No. 1921]
MONEY CLAIMS
SUPREME COURT
Therefore, all 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
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ILLEGAL DISMISSAL
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ANNEX A
Cause
Terminable Examples
Serious Misconduct
Willful Disobedience
Teacher pressuring colleague to change a failing Borrowing Money: as a general rule, it is neither
grade to a passing one plus misrepresentation. dishonest, nor immoral, nor illegal, much less
[Padilla vs. NLRC, 1997]
criminal [Medical Doctors, Inc. [Makati Medical
Center] v. NLRC] except
Obscene, insulting or offensive words against (a) it becomes a serious misconduct when
superior. [Asian Design and Manufacturing vs. Hon.
reprehensible behavior such as the use of a
Deputy Minister of Labor, 1986]
trust relationship as a leverage for borrowing
money is involved. [Pearl S. Buck Foundation,
Sleeping in post, gross insubordination, dereliction
Inc. v. NLRC, 1990]
of duty, challenging a superior to a fight. [Luzon
Stevedoring vs. CIR, 1965]
Love: teacher falling in love with student without a
showing that the former took advantage of her
Immorality / Immoral Conduct: conduct which is so position to court her student. Yielding to this gentle
willful, flagrant or shameless as to show and universal emotion is not to be so casually
indifference to the opinion of good and respectable equated with immorality. The deviation of the
members of the community; such conduct must be circumstances of their marriage from the usual
grossly immoral so corrupt as to constitute a societal pattern cannot be considered as a defiance
crime or so unprincipled as to be reprehensible to a of contemporary social mores [Chua-Qua v. Clave,
high degree or committed under such scandalous 1990]
or revolting circumstances as to shock the common
decency. [Narag vs. Narag, 1998]; to be a valid
cause for dismissal, the immoral act must render
incapable performance of duties/services or
calculated at injuring employers business.
(a) When a teacher engages in extra-marital
relationship, especially when the parties are
both married. [Santos v. NLRC, 1998]
Violation of Company Rules: Company policies and
regulations, unless shown to be grossly oppressive
or contrary to law, are generally valid and binding
on the parties and must be complied with until
finally revised or amended, unilaterally or
preferably through negotiation, by competent
authority. [Aparente, Sr. v. NLRC, 2000]
Disobeying a Valid Order to Transfer
(1) Test of Validity:
(a) Not unreasonable
(b) Not inconvenient
(c) Not prejudicial
(d) No demotion in rank
(e) No diminution in salary, privileges or
benefits [Blue Dairy vs. NLRC, 1999]
(2) Mere inconvenience does not necessarily
invalidate a transfer order; unreasonable
inconvenience makes the order invalid.
[Homeowners Savings and Loan Assoc. vs. NLRC,
1996]
(3) Reasonableness pertains to the character of
orders and to the manner in which they are
made. [Escobin vs. NLRC, 1998]
Gross and
Neglect
Non-Terminable Examples
Habitual Habitual tardiness and absenteeism [Manila Electric Simple negligence [RDS Trucking v. NLRC, 1998] or
Co. v. NLRC, 1996]
unsatisfactory performance [Oreta vs. NLRC, 1989]
Abandonment the deliberate and unjustified
refusal of an Employee to resume his employment.
[Nueva Ecija Electric Cooperative v. NLRC, 2005]
(1) Requisites: failure to report to work or absence
w/o valid reason
(2) Clear intent to sever EmployeeER relationship
via overt acts. [Labor v NLRC, 1995; Floren Hotel
v. NLRC, 2005; Leonardo v. NLRC, 2000]
(a) CANNOT be lightly inferred, much less
legally presumed from certain equivocal
acts such as interim employment.
[Hacienda Dapdap v. NLRC, 1998]
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1999]
Bank Employee delivered newly approved credit (b) Going home to have dinner; employees do not
cards to a total stranger without verification
need to take their meals within the company
protocol.
premises. [PAL v. NLRC, 1999]
(c) Leaving his workplace to relieve himself
[Dimabayo v. NLRC, 1999]
Fraud or Willful Breach Dishonesty:
Employee is not in a position of trust and confidence.
of Trust
(a) Custodian of petty cash fund reimbursed
another employee for services the latter did not
render. [Naguit v. NLRC, 2003]
(b) Falsification of time cards. [San Miguel vs. NLRC,
1989]
(c) Theft of company property. [Firestone Tire and
Rubber Co. vs. Lariosa, 1987]
Commission of a crime Theft; the employee here was convicted after she
or
offense
against won her case for illegal dismissal. In view of the
Employer
employees conviction, the decision of the NLRC
which had already become final and executory
calling for her reinstatement and the payment of
back wages should not now be enforced.
Otherwise, she would in effect be undeservedly
rewarded when she should instead be punished for
her offense. [Sampaguita Garments Corp. v. NLRC,
1994]
Analogous Causes
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GSIS
Enabling Law
Definition of Terms
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.
Exceptions:
(a) AFP and PNP;
(b) Members of the Judiciary and Constitutional Commissions who
Voluntary
are covered only by life insurance as they have separate
(a) Spouses who devote full time to managing household and
retirement schemes;
family affairs;
(c) Contractual employees with no employee-employer relationship
(b) OFWs recruited by foreign-based employers;
with the agency they serve.
(c) Employees already separated from employment or those
self-employed with no realized income for a given month,
who chose to continue with contributions to maintain right
to full benefit.
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.
Effective Date of Coverage
st
Monthly pension
Dependents pension
Retirement benefits
Permanent disability benefits
Death benefits
Funeral benefits
Loan Social Security Commission Resolution No. 669.
Moreover, several SSS-issued circulars such as Circular No.
21-P and No. 52 pertain to the treatment of salary loans,
sometimes providing for more flexible payment terms or
condonation for delinquent payers; Santiago v. CA and
SSS, GR # L-39949 [1984] resolved an issue involving the
treatment of salary loan repayments; SSS website also
shows loans
(h) Sickness benefits
(i) Maternity leave benefits
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
Monthly pension
Retirement benefits
Permanent disability benefits
Death Benefits
Funeral benefits
Loan GSIS website provides for this
Temporary disability benefits [similar to sickness]
Separation benefits
Unemployment benefits Sec 11
Survivorship benefits
Life insurance benefits
4 years
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