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Chan Labor 2017 PDF
Chan Labor 2017 PDF
ON
LABOR LAW
Annotation
Based on the Topics in the Latest Supreme-
Court-Prescribed Syllabus for Labor Law
By
Managing Partner
Chan Robles Law Firm
www.chanrobles.com
ChanRobles Internet Bar Review
www.chanroblesbar.com
i CHAPTER I
ii BAR REVIEWER ON lABOR lAW
~- FUNDAMENTAL PRINCIPLES AND CONCEPTS
iii
FOREWORD
Third Revised Edition,
2017 ,,.. To the 3rd
Revised Edition
2017
© Philippine Copyright i
2012, 2014 & 2017
The issuance of this latest edition of this book becomes imperative
in the light of recent laws, labor issuances and rulings of the Supreme
by
Court affecting some of the topics prescribed in the Syllabus for labor law
which, earlier this year, was revised by the Supreme Court Bar
PROF. JOSELITO GUIANAN CHAN
Examination Committee for the forthcoming 2017 bar examinations.
bar reviewees who have used this book in preparing for the bar
ISBN 978-621-8079-00-7
examination in labor law and from undergraduate law students who used
this book as supplement to their curriculum-prescribed labor law
..
... subjects.
remain focused on the topics and sub-topics prescribed in the labor law
syllabus. This, the author believes, is what makes this book unique and
helpful to bar. reviewees and law students who are constantly faced with
,.
,..~
author on the Labor Code, would greatly enhance the chances of its
Authorized Signature
readers in hurdling the labor law examinations.
Serial No. _ __
~
Printed by:
.J.
...
FOREWORD
t
CHAPTER I
few decisions of the Supreme Court have cited the new renumbering
·v
promptly replied that the DOLE will look into this matter. However,
Structurally, the eight (8) major topical classifications in the 2011
almost a year had passed from that letter, and almost three (3) years
and 2012 syllabi remain unperturbed. However, some topics and sub-
from the enactment of R.A. No. 10151, but no such issuance has been
topics were either expanded or pruned down or merely re-arranged or
made by the DOLE - the government agency primordially tasked to
relocated.
implement and enforce the Labor Code. Hopefully, an Explanatory
Managing Partner
Notably, this book appears to be thus far the first and only attempt
Chan Robles Law Firm
at annotating and commenting on the Supreme Court-prescribed
22/F, Philippine Stock Exchange Centre
syllabus for a bar subject. Examinees for the 2012 and 2013 bar exams
Tektite East Tower, Exchange Road, Ortiga5 Center
who had used this book had given it their stamp of approval as a worthy
Pasig City, Metro Manila, Philippines
reference material for Labor Law. To this, the author expresses his
utmost thanks and sincere appreciation.
June15,2014
1 EntiUed 'An Act Allowing the Employment of N~ht Wori<ers, Thereby Repealing
Articles 130 and 131 of
Presidential Decree Number Four Hundred Forty-Two, As Amended, Otherwise Known as
the Labor Code of
the Philippines.' This was approved on June 21, 2011.
li.o•
FOREWORD
To the 1st Edition
,,..
The dramatic and substantial revision of the format of the 2011 bar
!
examinations by the Supreme Court triggered the publication of this
book. From the previous open-ended format, the Supreme Court has laid
down a syllabus for every bar subject in the 2011 bar examinations and in
Citing the Renumbered Provisions
the forthcoming examinations this 2012. With the syllabus prescribing
of the Labor Code
specific major topics and sub-topics for every point of law, preparation
for the bar exams becomes systematic, precise, clear-cut and well-
defined.
In the light of the renumbering of certain
This book seeks to discuss in a simple and concise manner, each
provisions of the Labor Code, as mandated under
topic and sub-topic mentioned in the syllabus for labor law. Pertinent
~A. No. 101511 and DOLE Department
provisions of law, rules and regulations and other issuances, as well as
Advisory No. 01, Series of 2015/ both the
the applicable jurisprudential precepts, are cited in the discussion of each
renumbered and old provisions of the affected
and every major topic and sub-topic. This manner of presenting the
Labor Code provisions are cited in this book
'.J\'JA;
discussions would, in the humble view of the author, assure the bar
I
relevant commentaries of the author in his two (2) volumes on the Labor
~-
Code of the Philippines are likewise cited in this book. For a more
where "130" is the new renumbering while
extended and authoritative discussion on the topics prescribed in the
"[132]" is its counterpart old number.
syllabus, his commentaries in these 2 volumes would certainly prove
helpful.
By so presenting together both the new and the old
In the light of the introduction of multiple choice questions
numbers, the reader would be well guided on the proper
(MCQs) in the 2011 bar examinations and in subsequent ones, sample
provision to cite.
MCQs for each topic are presented at the end of this book. These MCQs
could well be used by the bar reviewees in honing their skill at answering
this type of questions.
It is hoped that this book would serve as a useful tool of bar
reviewees in hurdling the bar examination in labor law in the
forthcoming bar examinations in 2012 and beyond.
JOSELITO GUIANAN CHAN
Managing Partner
Chan Robles Law
Firm ,~ ..
22/F, Philippine Stock Exchange Centre
Tektite East Tower, Exchange Road, Ortigas Center
t This liM was enaded on June 21, 2011. tt is entilled 'AN ACT ALLOWING THE
EMPLOYMENT OF NIGIIT WORKERS,
Pasig City, Metro Manila, Philippines
THEREBY REPEALING ARTICLES 130 AND 131 OF PRESIDENTIAL DECREE NUMBER FOUR HUNDRED
FORTY-
.,., 2
3 This arlk:le is enlilled 'Faclilies !or Women.' This is lhe fusl arti:le
affected bylhe renumbering underRA. No.10151.
..I CHAPTER!
TABLE OF CONTENTS
b. THEORY OF IMPUTED
KNOWLEDGE ..................................................... 65
7. DIRECT-
HIRING ............................................................................
..........83
CHAPTER ONE
B. REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES ................... 85
FUNDAMENTAL PRINCIPLES AND
CONCEPTS ..................................................1
C. EMPLOYMENT OF NON-RESIDENT
ALIENS ................................................. 89
A. LEGAL BASIS
D. TRAINING AND EMPLOYMENT OF SPECIAL WORKERS ............................... 95
1. APPRENTICES AND
LEARNERS .............................................................. 95
1. 1987
CONSTITUTION............... .......................................................
..............1 2. DISABLED WORKERS (PERSONS WITH DISABILITY)
.................................. 98
(State Policies, Bill of Rights &Socia/ Justice)
a. EQUAL
OPPORTUNITY ......................................................................
100
I. STATE
POL/C/ES ..........................................................................
........1 b. DISCRIMINATION ON
EMPLOYMENT ................................................... 101
(Artie/ell of the Constitution)
II. BILL OF
RIGHTS........................................................................ :...
....... 5 :>!'.:._. CHAPTER THREE
(Article Ill of the Constitution)
LABOR STANDARDS ................................ .
103
Ill. SOCIAL
JUSTICE... ........................................................................
.....16
A. CONDITIONS OF
EMPLOYMENT ...............................................................104
(Article XIII of the Constitution)
IV. EXAMPLE OF ALAW WHICH VIOLATES
1.
SCOPE .............................................................................
................... 104
2. HOURS OF
WORK ..............................................................................
.. 105
SEVERAL CONSTITUTIONAL
PRINCIPLES ..............................................21
V. CONSTITUTIONAL PROVISIONS NOT APPLICABLE
;._-.,...,
b. NORMAL HOURS OF
WORK ............................................................... 106
· TO COMPANY-LEVEL ADMINISTRATIVE CASES......................................
24
d. WAITING
TIME ..............................................................................
.... 115
C. SOCIAL
JUSTICE ...........................................................................
...........39
e.
OVERTIME ..-; .....................................................................
...............118
f. NIGHT SHIFT
DIFFERENTIAL .............................................................. 122
CHAPTER TWO
g. REST
PERIODS ......................................................................, ...
...... 123
RECRUITMENT AND
PLACEMENT ..................................................................40
1. WEEKLY REST
DAY ....................................................................... 123
A. ILLEGAL
RECRUITMENT .......................................................................
.....40 2. EMERGENCY REST DAY
WORK ...................................................... 124
1. WAGE VERSUS
SALARY .......................................................................139
AND FOREIGN
EMPLOYER ......................................................................63
2. PAYMENT OF
WAGES ...........................................................................14
0
a. SOLIDARY
LIABILITY .........................................................................
... 63 Ill-•
J.
l CHAPTER I
,_ 4. LABOR-ONLY
CONTRACTING ............................................................251
V.
FRAUD .............................................................................
.......302
CHAPTER l
1.
REINSTATEMENT .....................................................................
348 CHAPTER SEVEN
2. SEPARATION PAY IN LIEU OF
REINSTATEMENT .......................... 349 ,._
LABOR
RELATIONS..........................................................................
...........476
3.
BACKWAGES .........................................................................
.. 355 A. RIGHT TO SELF-
ORGANIZATION .............................................................. .477
e. PREVENTIVE
SUSPENSION ......................................................... .363
1. WHO MAY EXERCISE THE
RIGHT... ........................................................ 478
C.
RETIREMENT ........................................................................
.................. 365 2. WHO CANNOT FORM, JOIN OR ASSIST
1. AMOUNT OF RETIREMENT
PAY .............................................................375 ·
LABOR
ORGANIZATIONS......................................................................
.482
2. RETIREMENT BENEFITS OF WORKERS PAID BY RESULTS ...................... 379
3. DOCTRINE OF NECESSARY IMPLICATION ..............................................
.483
3. RETIREMENT BENEFITS OF PART-TIME WORKERS .................................
380 4. COMMINGLING/MIXTURE OF
MEMBERSHIP............................................ .487
A. NATURE OF
RELATIONSHIP ..............................................................489
CHAPTER FIVE
i. MEMBER-LABOR
UNION ................................................................489
MANAGEMENT
PREROGATIVES ...................................................................381
- 3 SUBSTITUTIONARY
DOCTRINE .................................................. .497
B. BARGAINING
UNIT...............................................................................
....501
C. BARGAINING
REPRESENTATIVE ..............................................................505
F. MARRIAGE BETWEEN EMPLOYEES
OF COMPETITOR-
EMPLOYERS ............................................................. 397
1. DETERMINATION OF REPRESENTATION STATUS ................................... 505
G. POST-EMPLOYMENT
BAN .................................................................... 399
a. REQUEST FOR SEBA CERTIFICATION .
I. NON-COMPETE
CLAUSE ................................................................... 399
(WHICH REPEALED AND REPLACED
II. OTHER POST-EMPLOYMENT
PROHIBITIONS ...................................... .404
,-.. "VOLUNTARY
RECOGNITION") ...........................................................508
b. CERTIFICATION
ELECTION ................................................................513
D. RIGHTS OF LABOR
ORGANIZATIONS........................................................540
D. EMPLOYEE'S COMPENSATION
·COVERAGE AND WHEN
COMPENSABLE.................................................449
1. CHECK-OFF, ASSESSMENT, AGENCY FEES ...........................................
540
.... CHAPTER I.
XV
i. CHECK-
OFF ...............................................................................
..... 540
ii. DUES AND
ASSESSMENTS ............................................................... 542
IN ULP CASES UNDER ARTICLE 260 [249] ...... ....................................
601
iii. AGENCY
FEES ..............................................................................
...545 VIII. CRIMINAL AND CIVIL LIABILITY
2. COLLECTIVE
BARGAINING .................................................................... 548
FOR ULPs OF LABOR ORGANIZATION ............................................. 602
a. DUTY TO BARGAIN COLLECT/VEL
Y.................................................... 548
F. PEACEFUL CONCERTED
ACTIVITIES .........................................................602
i. DUTY TO BARGAIN COLLECT/VEL Y
WHEN THERE IS NO CBA
YET ......................................................... 549
1. BY LABOR
ORGANIZATION ...................................................................602
ii. DUTY TO BARGAIN COLLECT/VEL Y
a.
STRIKE ............................................................................
................602
WHEN THERE IS
ACBA ..................................................................550
i. VALID VERSUS ILLEGAL STRIKES ...................................................
607
3. COLLECTIVE BARGAINING AGREEMENT (CBA) .......................................
552 i-a. PROCEDURAL BUT MANDATORY
REQUISITES
1. MANDA TORY PROVISIONS OF
CBA ....................................................555
FOR A VALID AND LEGAL STRIKE OR LOCKOUT .......................... 607
i. GRIEVANCE
PROCEDURE ...........................................................556
i-b. REASONS FOR DECLARING ASTRIKE ILLEGAL ........................... 613
ii. VOLUNTARY
ARBITRATION ........................................................... 557
i-c. LIABILITY OF UNION OFFICERS
iii. "NO STRIKE, NO LOCKOUT"
CLAUSE ..............................................557
AND ORDINARY MEMBERS ....................................................... 617
iv. LABOR-MANAGEMENT
COUNCIL .................................................... 558
b.
PICKET ...... .....................................................................
.................622
2. BY
EMPLOYER ..........................................................................
..........626
E. UNFAIR LABOR
PRACTICE ......................................................................562
1. NATURE,
ASPECTS ...........................................................................
... 562
2. ULP BY
EMPLOYERS .........................................................................
... 564
- a.
LOCKOUT ...........................................................................
.............626
3. ASSUMPTION OF
JURISDICTION ........................................................... 628
a.
NATURE ............................................................................
..............628
I. INTeRFERENCE WITH, RESTRAINT OR
b. EFFECTS OF ASSUMPTION OF JURISDICTION ....................................636
COERCION OF EMPLOYEES IN THE EXERCISE OF THEIR
RIGHT TO SELF-ORGANIZA T!
ON .......................................................566
CHAPTER EIGHT
II. YELLOW DOG
CONTRACT ...... .......................................................... 576
JURISDICTION AND
REMEDIES.....................................................................642
Ill. CONTRACTING OUT OF SERVICE$ AND FUNCTIONS ..........................
576 '"'
IV. COMPANY
UNION ............................................................................
580 PRELIMINARY CONSIDERATIONS
V.
DISCRIMINATION ....................................................................
..........582 ON JURISDICTION AND
REMEDIES ........................................................... 643
VI. FILING OF CHARGES OR GIVING OF TESTIMONY ...............................
586 A. LABOR
ARBITER ...........................................................................
......646
VII. CBAcRELATED
ULPs ........................................................................ 587
1.
JURISDICTION ......................................................................
...........646
VIl-A. PAYMENT OF NEGOTIATION AND ATTORNEY'S FEES ............... 587
I. JURISDICTION OVER UNFAIR LABOR PRACTICE CASES .................... 649
V/1"8. VIOLATION OF THE
CBA .........................................................589
II. JURISDICTION OVER ILLEGAL DISMISSAL CASES ............................ 650
VIII. BURDEN OF PROOF IN ULP CASES UNDER ARTICLE 259 [248] ...........590
Ill. JURISDICTION OVER MONEY CLAIMS CASES .................................652
IX. PERSONS CRIMINALLY LIABLE
a. JURISDICTION OF LABOR ARBITER
FOR ULPs OF
EMPLOYER ............................................................... 590
VERSUS REGIONAL DIRECTOR ................................................. 654
3. ULP BY LABOR
ORGANIZATIONS ...........................................................591
IV. JURISDICTION OVER CLAIMS FOR DAMAGES ................................. 658
I. RESTRAINT AND COERCION OF EMPLOYEES
V. JURISDICTION OVER
IN THE EXERCISE OF THEIR RIGHTTO SELF-ORGANIZATION .............. 592
LEGALITY OF STRIKES AND LOCKOUTS ........................................ 659
II.
DISCRIMINATION ....................................................................
.........593 V-A. JURISDICTIONAL INTERPLAY
Ill. DUTY OF UNION TO BARGAIN COLLECTIVELY .....
~ .............................. 594
IN STRIKE OR LOCKOUT CASES ............................................. 660
IV. FEATHERBEDDING
LAW ..................................................................596
VI. JURISDICTION OVER CASES INVOLVING
V. DEMAND OR ACCEPTANCE
LEGISLATED WAGE INCREASES AND WAGE DISTORTION ............... 662
OF NEGOTIATION FEES OR ATTORNEY'S
FEES .................................600 VII.
JURISDICTION OVER ENFORCEMENT OR ANNULMENT
VI. VIOLATION OF THE
CBA ..................................................................601
OF COMPROMISE AGREEMENTS .................................................. 663
VII. BURDEN OF PROOF
VIII. JURISDICTION OVER EXECUTION AND ENFORCEMENT
CHAPTER!
xvi
BAR REVIEWER ON lABOR lAW
' FUNDAMENTAl PRINCIPlES AND CONCEPTS
xvii
H. COURT OF
APPEALS............................................................................
...703
OF GOVERNMENT-OWNED AND/OR
CONTROLLED
CORPORATIONS ............................ 667
1. APPEAL VIA RULE 65, RULES OF
COURT ................................................ 703
X-B. JURISDICTION OVER DISPUTES
2. JUDICIAL REVIEW BY CA OF DECISIONS
INVOLVING ALIEN PARTIES
................ 667 OF VOLUNTARY
ARBITRATORS ............................................................711
X-C. JURISDICTION OVER LABOR CASES
D. SUPREME
COURT .............................................................................
........713
INVOLVING PRIESTS AND MINISTERS
....... 668
1. RULE 45, RULES OF
COURT ..................................................................713
X-D. JURISDICTION OVER CASES OF
DOMESTIC WORKERS OR
KASAMBAHAY .................................669
E. BUREAU OF LABOR
RELATIONS .........................
717
X-E. JUR!SDICTION OVER CASES OF
I. LABOR OFFICIALS HAVING JURISDICTION
EMPLOYEES OF COOPERATIVES ..
..................... 670 OVER ARTICLE 232 [226]
CASES ............................................................717
X-F. JURISDiCTION OVER COUNTER-CLAIMS
II. CASES PROVIDED UNDER ARTICLE 232
[226] ...................................... .719
OF
EMPLOYERS ....................................................................671
11-A. INTER-UN/ON AND INTRA-UN/ON DISPUTES .................................... 720
XI. ISSUES AND CASES OVER WHICH
!1-B. OTHER RELATED LABOR RELATIONS DISPUTES .............. ;............. .723
LABOR ARBITERS HAVE NO JURISDICTION
.............. 571 Ill. ORIGINAL AND EXCLUSIVE JURISDICTION
XI-A. CLAIMS FOR DAMAGES ARISING
OF MED-ARBITERS, DOLE DIRECTORS AND BLR DIRECTOR ................... 726
FROM BREACH OF NON-COMPETE CLAUSE
IV. APPELLATE JUF~ISD/CTION OF THE BLR DIRECTOR
AND OTHER POST-EMPLOYMENT
PROHIBITIONS ............ ........ 672 <-'
AS DISTINGUISHED FROM THAT OF THE DOLE SECRETARY .................. 733
XI-B. EMPLOYER'S CLAIMS FOR CASH ADVANCES,
V. REMEDIES FROM DECISIONS OF
CAR, APPLIANCE AND OTHER PERSONAL
BLR DIRECTOR AND DOLE SECRETARY
LOANS OF
EMPLOYEES ......................................................... 672
RENDERED IN THEIR APPELLATE JURISDICTION ................................... 739
XI-C. DISMISSAL OF DIRECTORS AND CORPORATE OFFICERS ........ 673
VI. ADMINISTRATIVE FUNCTIONS OF THE BLR AND LRDs .......................... .739
XI-D. LABOR CASES INVOLVING ENTITIES IMMUNE FROM SUIT ........
677 F. NATIONAL CONCILIATION AND MEDIATION
BOARD ...................................740
XI-E. DOCTRINE OF FORUM NON
CONVENIENS ............................... 679
1. NATURE OF
PROCEEDINGS .................................................................,740
XI-F. QUASI-DELICT OR TORT
CASES .............................................681
2. CONCILIATION VS.
MEDIATION .............................................................741
XI-G. CRIMINAL AND CIVIL ACTIONS ARISING FROM
3. PREVENTIVE
MEDIATION .....................................................................743
VIOLATIONS OF THE PENAL PROVISIONS OF
THE LABOR
CODE ................................................................682
G. DOLE REGIONAL
DIRECTORS .................................................................747
XI-H. CONSTITUTIONALITY OF LABOR CONTRACT
1. JURISDICTION
STIPULATIONS .....................................................................6
83 (Recovery/Adjudicatory
Power) ................................................................747
2. REQUIREMENTS TO PERFECT APPEAL TO
NLRC .......................................684
I. LABOR STANDARDS ENFORCEMENT CASES ...................................... 750
/. APPEAL IN
GENERAL ...........................................................................
684 II. SMALL MONEY CLAIMS
CASES ........................................................ .753
II. PERFECTION OF
APPEAL .....................................:.............................. 685
Ill. OCCUPATIONAL SAFETY AND HEALTH VIOLATIONS ........................... 757
Ill. REGLEMENTARY
PERIOD ....................................................................686
IV. COMPLAINTS AGAINST PRIVATE RECRUITMENT
IV. APPEAL FEE AND LEGAL RESEARCH
FEE .............................................689
AND PLACEMENT AGENCIES (PRPAs)
V. MEMORANDUM OF
APPEAL ..................................................................690
FOR LOCAL EMPLOYMENT ..............................................................
758
VI. PROOF OF SERVICE TO ADVERSE
PARTY ............................................691
V. CASES SUBMITTED TO REGIONAL DIRECTORS
VII. POSTING OF
BOND ............................................................................
692 AND ASSISTANT REGIONAL DIRECTORS FOR
V/1-A. MOTION TO REDUCE APPEAL
BOND ...........................................695
-
AS EX-OFFICIO VOLUNTARY ARBITRATORS
(EVAs) ............................ .758
CHAPTER ONE
H. DOLE
SECRETARY..........................................................................
.........760 ""='
FUNDAMENTAL PRINCIPLES
1. VISITORIAL AND ENFORCEMENT
POWERS ............................................ 760
2. POWER TO SUSPEND EFFECTS OF
TERMINATION ................................ .764
AND CONCEPTS
3.
REMEDIES ..........................................................................
................767
i.
JURISDICTION ......................................................................
.............767 TOPICS PER SYLLABUS
i-1. ORIGINAL
JURISDICTION ............................................................. .767
i-1-A. ADMINISTRATIVE INTERVENTION
FOR DISPUTE AVOIDANCE
{AIDA) ......................................... .768
I.
i-1-B. VOLUNTARY ARBITRATION BY DOLE SECRETARY ..................
770 FUNDAMENTAL PRINCIPLES AND
POLICIES
i-2. APPELLATE JURISDICTION OF THE DOLE
SECRETARY ................... .772 A.
Legal basis
i-2-A. APPEALS FROM DOLE REGIONAL
DIRECTORS ......................... 774
...,
....
I. JURISDICTION OVER UNRESOLVED GRIEVANCES ................................
782
II. JURISDICTION OVER VIOLATION OF
CBA ........................................... 785
A.
Ill. JURISDICTION OVER OTHER LABOR
DISPUTES .................................. 786 ~
LEGAL BASIS
IV. JURISDICTION OVER NATIONAL INTEREST
CASES .............................. .786
V. JURISDICTION OVER WAGE DISTORTION CASES .................................
787
1.
VI. JURISDICTION OVER DISPUTES INVOLVING
THE PRODUCTIVITY INCENTIVES
PROGRAM ......................................787
1987 CONSTITUTION
2.
REMEDIES ..........................................................................
...........................788 (State Policies, Bill of Rights
& Social Justice)
2-A.
PROCEDURE .........................................................................
........,793
In contrast to the past Syllabi in Labor Law, from the inception of the
J. PRESCRIPTION OF
ACTIONS ....................................................................795
Syllabus-type of bar examinations in 2011 untl2016, the 2017 Syllabus does not
1. MONEY
CLAIMS ............................................................................
.......795 mention the relevant specific provisions of the
1987 Constitution but merely
2.1LLEGAL
DISMISSAL .........................................................................
....796 mentions the same three (3) topics of State
Policies, Bill of Rights and Social
3. UNFAIR LABOR
PRACTICE ....................................................................796
Justice. In the discussion below, the specific sections and articles of the
4. OFFENSES UNDER THE LABOR
CODE ...................................................797
Constitution pertaining to these topics are expounded more comprehensively.
5./LLEGAL
RECRUITMENT .......................................................................
798
I.
STATE POLICIES
CHAPTER I
The provisions on State Policies fall under the second part of the 2-part
2. STATE POLICIES ARE NOT SELF-EXECUTING PROVISIONS.
Article II of the 1987 Constitution, namely: (a) Principles,' and (b) State 3
Policies.2 Seven (7) sections under State Policies are relevant to Labor Law and
they are Sections 9, 10, 11, 13, 14, 18 and 20 whose specific provisions are as
executing tenets ready for enforcement through the courts. 1 They are used by the
follows:
judiciary as aids or as guides in the exercise of its power of judicial review, and
ARTICLE II
by the legislature, in its enactment of laws. The disregard of these provisions
DECLARATION OF PRINCIPLES AND STATE POLICIES
cannot give rise to a cause of action in the courts. The reason is that they do not
2
STATE POLICIES
legislation. These broad constitutional principles need legislative enactments to
implement them. 3 The reasons for denying a cause of action based on alleged
Section 9. The State shall promote a just and dynamic
infringement of broad constitutional ·principles are sourced from basic
social order that will ensure the prosperity and independence
considerations of due process and the lack of judicial authority to wade "into the
of the nation and free the people from poverty through policies
uncharted ocean of social and economic policy-making."4
that provide adequ::te social services, promote full
......
quality of life for all.
Since most of the provisions under this topic are self-explanatory, only
-r-- bold attention and action in the Constitution. The Preamble proclaims
Section 13. The State recognizes the vital role of the youth
"equality" as an ideal precisely in protest against crushing inequities in
in nation-buildin2 and shan promote and protect their
Philippine society. The command to promote social justice in Article II, Section
physical, moral, spiritual, intellectual, and social well-being. It
10, in "all phases ofnational development," further expounded in Article XIII,6
shall inculcate in the youth patriotism and nationalism, and
are clear commands to the State to take affirmative action in the direction of
encourage their involvement in public and civic affairs.
greater equality. There is thus in the Philippine Constitution no lack of doctrinal
support for a more vigorous state effort towards achieving a reasonable measure
Section 14. The State recognizes the role of women in
of equality.
nation-buildinJ!, and shall ensure the fundamental equality
before the law of women and men.
Our present Constitution has gone further in guaranteeing vital social
was held that 'A provision wlidllays down a general prilciple, such as those bJnd
in Art II of the 1987
2 f.s held ii the leading case Kilsbayill, incoqxJated vs. M:lrakl, G.R No. 118910,
July 17, 1995 246 SCRA 540, 564.
3 Bascovs. Pagcor, G.R No. 91649, May 14, 1991, 197 SCRA52, 68.
4 Tmma v. Angara, supra; See also Oposa vs. Fac!ooln, Jr., G.R No. 101083, July 30,
1993, 224 SCRA 792, 817.
,.,..i CHAffiRl
the policy of social justice, the law bends over backward to accommodate the
employment opportunities, self-organization, collective bargaining and
interests of the working class on the humane justification that those with less
negotiations, strike and other peaceful concerted activities, security of tenure,
privilege in life should have more in law. And the obligation to afford protection
-.. humane conditions of work, and a living wage, including the right to
participate
!
to labor is incumbent not only on the legislative and executive branches but also
in policy and decision-making processes affecting their rights and benefits as
on the judiciary to translate this pledge into a living reality. Social justice
calls may be provided by law. 1
for 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,
· c. Section
18, not meant to oppress employers.
may at least be approximated!
The constitutional policy to provide full protection to labor is not
the cause of labor does not prevent it from sustaining the employer when it is
Among the provisions afore-quoted, it is Section 18 which is often
in the right. Certainly, an employer should not be compelled to pay employees
cited in labor cases. Along with Section 3 of Article XIII, infra, it is often
for work not actually performed and in fact abandoned. 2 The employer should
referred to as the protectio11-to-labor clause in the Constitution. It is often
not be compelled to continue employing a person who is admittedly guilty of
invoked in resolving doubts or ambiguities in the interpretation of the law,
misfeasance or malfeasance and whose continued employment is patently
employment contracts, collective bargaining agreements and appreciation of
inimical to the employer. The law, in protecting the rights of the laborer,
evidence. The constitutional tenet embodied in this provision is the basis for the
authorizes neither oppression nor self-destruction of the employer. 3
1"'
following provisions in the law:
i
! II.
(I) Article 1702 of the Civil Code which provides that all labor
BILL OF RIGHTS
legislation and labor contracts should be construed in favor
of the
safety and decent living for the laborer; artd
-...
implementation and interpretation of its provisions, including
its Out of the total of 22
Sections of the Bill of Rights (Article Ill), only
implementing rules and regulations, shall be resolved in favor
of seven (7) are relevant to Labor
Law, to wit: Sections 1, 4, 7, 8, 10, 16 and 18(2),
labor. 2
whose provisions are as follows:
Thus, when conflicting interests of labor and capital are to be
weighed
on the scales of social justice, the heavier influence of the latter should be
ARTICLE III
counter-balanced by sympathy and compassion the law must accord the
BILL OF RIGHTS
underprivileged worker. 3 In interpreting the protection to labor and social
justice Section I.
No person shall be deprived of life, liberty, or
provisions of the Constitution and the labor Jaws or rules and regulations
property without due process of law, nor shall any person be
implementing the constitutional mandates, the liberal approach, which favors
the denied the
equal protection of the laws.
4
exercise oflabor rights, should always be adopted.
of grievances.
caa1ang vs. Wil'iams, G.R No. 47800, Dec. 2, 1940,70 Phil 726.
1 See Section 3, Article XIII of lhe Constilulion and Article 3of lhe Labor Code.
See also Phii~Jpi'le National Bank v. Padao,
r
1
We9e/OO UnMlfsily-Ptlii~Jpiles v. Wesleyan UnWelsily·Philippines Faculty and
Stall Associalioo, GR. No. 181806, Marth G.R. Nos. 180849 and
187143, Nov. 16, 2011; Spic N' Spa1 Secvices Colporalion v. Paje, G.R. No. 174084,
Aug. 25,
12, 2014; Hdf Cross of Davao College, Inc. v. Hdf Cross of Davao Faculty \
Mlm- KfiMIIPI, G.R. No. 156098, JiJle 27, 2010, 629 SCRA 261,
26~270; Bank of lhe Philippine islaids v. BPI Employees Uflion.Oavao Chapter-
Federation of
2005; Plastic TaMl Center Corporation v. NLRC, GR. No. 81176, Aprn 19, 1989.
Unions i1 BPIUnibank, G.R. No. 164301, Aug. 10, 2010; GSISv. CA. G.R. No. 132648,
Mcrch4, 1999.
3 flmopper MnilJ Corpolalion v. NLRC, G.R. No. 103525, Marth 29, 1996; Zoo, Sr.
v. NLRC, G.R. No. 103679, Dec.
17, 1993,228SCRA556;Hoiday Inn Manlav. NLRC, G.R. No.109114,Sept 14, 1993;226
SCRA417.
• Adamson &Adansoo, Inc. v. CIR, G.R. No.L-35120, Jan. 31, 1984, 127 SCRA 268.
I 2
Agabon v. NLRC, GR No. 158693, Nov. 17, 2004, dling Capi v. NLRC, G.R No. 117378,
Marth 26, 1997,270 SCRA
488,495.
ld., citing Fiipro,lnc. v. NLRC, G.R. No. L-70546, Oct. 16, 1986, 145 SCRA 123.
I
7
6 BAR REviEWER. ON lABOR lAW
~
guaranteed under the law "to engage in concerted activities for purposes of
Section 8. The right of the people, including those
collective bargaining for their mutual benefit and protection" but it is
employed in the public and private sectors, to form unions,
principally guaranteed under · the freedom of speech principle in the
associations, or societies for purposes not contrary to law shall
Constitution. 3
not be abridged.
picketing does not extend to blocking ingress to (entrance) and egress from
Law)
(exit) the company premises. That the picket was moving, was peaceful and
The constitutional due process and equal protection provision in
was not attended by actual violence may not free it from taints of illegality if
the
Section 1 of Article III has been declared not proper to be invoked in company-
picket effectively blocked entry to and exit from the company premises.
level administrative cases leading to the imposition of certain sanctions, such as
3 De Leon v. Nama Labor Urian, G.R No. L·7586, Jan. 30, 1957, 100 Phi. 789; The
llslD' l1e AssulalCe Co, Ltd.
1
The Freedool ci Information (FOQ Bill 1\!th sooght to proiTK)Ie and implement
this ConstiWtional ~h~ has yet 1D be passed Enipklyees AssodaOOn • NATU
v. The Insula' life Assurance Co., Ltd., G.R No.l-25291, J<r~. 30, 1971, 37 SCRA
244.
intllaw.Hs YefSion 11 the Senate, Senate Bill No. 1733, olherMse knO\\n as the
'People's Freedom a lnfonnatioo (FOI) Ad 4 G.R. No. 170830, Aug. 11,
2010.
ci2013,' wac; passed Mil 21 a1!irmaWe votes from all sena1ors present on
Mard110, 2014.11s counteqlartversion in the 5 See Execu!Ne Older No.
180, Series of 1987 v.llidl proWles 11e guideines fa' the exen:ise of the l'ght ID
cxganize d
House ci RepresenfaWes, House Bill No. 3237, otheMise knolll1 as ".Ali Ad to
Strengthen the RiJht ci Ciizens to 90'.-emmenl e!T'(lloyees.
lnfoonation held by the G<Mlmmenf has yet to be approved as of this Yoliting
(May03, 2014).
a change into the express tenns of the union security clause; the company was
implementation cannot successfully be resisted by force of the non-impairment
guarantee. There is, in that instance, no impingement of the non-impairment
... partly absolved by law from the contractual obligation it had with the
union of
which are not merely ordinary but impressed with public interest and therefore
,.
7 Gdderr.vdy Merdlandisilg Corporation v. Equilable PCI Bcrlk, supta; Siska
Develqlment Caporalioo v. Office of the G.R No. L-26097,
N<w. 29, 1977.
Presklentol the Phiippiles, dti1Q Clemons v. Nolting, G.R No. 17959. Jan. 24,
1922, 42 Phi 702, 717. See also Phiippi'le ~on June 18, 1961,
anendi1g SecOOn 4(a), paragraph 4of RA No. 875, flus: '(4} Plwided, That nothing
illhis />C.
AloosementlKld Gaming~~ (PAGCOR)v. Thelllleauoflolemal Revenue, G.R No.\72087,
Mardl15, 2011. oc i1 ?Irf Ad or s1alule
of 1he Reptillic of the Phlippiles shall preclude ill~ fran making an I)Jreement
lli1h a labor
a Barcflgay Assodatioo lor Na1iooal Advancement and TranspaalC)' (SANAT) Pcrly-
tist v. Camissi:ln on Elections, G.R. OfQMizalioo kli8:Jilie
as acondi!i:Jn of err¢'tment membership llereil, if such lim' Ofgallizafion is the
represeotatr.re of
No.\77508, Aug. 7, 2009, cif.i'IJ Senanov. GaRmtMaliline SeM:es, Inc., G.R. No.
167614, Marth 24,2009. the el11lklYees as proWled
il Section twelve, but such &;Jreement shal not cover rnenters of aey rel'gioos
sedS 'Mlich
9 Haciendal.uisila, Inc. v. PARC, G.R. No. 171101, JulyS, 2011.
P!Ohilitaflirm alheirmembels i1 mt such labor 01ganiza!ion.'
CHAPTER I
11
gainsaid that said purpose is legitimate. It may not be amiss to point out here
I is aligned with the general principle that laws newly enacted
have only a
that the free exercise of religious profession or belief is superior to contract
rights. In case of conflict, the latter must, therefore, yield to the former.
4- prospective operation, 1 and cannot affect acts or contracts
already
is limited by the exercise of the police power of the State, in the interest of
obvious - the protection of the workers whose employment is terminated
because of the closure of establishment and reduction of personnel. Without said
law, employees like private respondents in the case at bar will lose the benefits
Thus, in the same en bane case of Serrano, 8 it was further held that
to which they are entitled - for the thirty-three years of service in the case of
even if the Court were to disregard the timeline when the law was enacted vis-a-
Dionele and fourteen years in the case of Quitco. Although they were absorbed
vis the contract, the subject clause may not be declared unconstitutional on the
by the new management of the hacienda, in the absence of any showing that the
ground that it impinges on the impairment clause, for the law was enacted in the
latter has assumed the responsibilities of the former employer, they will be
exercise of the police power of the State to regulate a business, profession or
considered as new employees and the years of service behind them would
calling, particularly the recruitment and deployment of OFWs, with the noble
amount to nothing. Moreover, to come under the constitutional prohibition, the
law must effect a change in the rights of the parties with reference to each
other 1 OltiJao; &Co., Ul. v. CA, G.R No. 126102, De.c4, 2000, 346 SCRA
748.
and not with reference to non-parties. As correctly observed by the Solicitor
2 1b:41 ResoorteS, Inc. v. Base t1eta1s ~ Reswtes Colpaatm, G.R No. 163509, Dec.
6, 2006,510 SCRA400.
3 W...er v. Wilehead, 63 U.S. 314 (1873); Wood v. Lcvet!, 313 U.S. 362, 370
(1941); lnfrala.AssullllOO Caporalioo v.
General, Article 298 [283] as amended refers to employment benefits to farm
Reptji; d toe Pli!ppines, G.R No. 156571, Julf 9, 2008; Sm!rt Coomri:aOOns, Inc. v.
Ciy of Darclo, G.R No. 155491,
hands who were not parties to petitioner's lease contract with the owner of the
Sept 16, 2008.
hacienda. That contract cannot have the effect of annulling subsequent
4 lJndefsaxi1g supplied.
.
legislation designed to protect the interest of the working class.
5 The SliJjecl clause is toe last clause illle Sf' paragraph of Sec6on 10 of RA
No. 8042, b:> wit 'Sec. 10. Mx1ey Clains.-
xxx In ra;e d lem1i1aOOn d oveseas ~ Mthout jJst, valkl oc auG1olized cause ao;
dEfued by law oc CMtract. lhe
As held in the 2009 en bane case of Serrano v. Gallant Maritime
'Mlkelsshal be entitled b:> toe till rei"rWsernentofhis placement lee 'M1h illerest
of twet.<e pen:eill (12%) per annum, pluS
Services, lnc.: 3
,. his sal!lies b" lhe unexpired portioo of his~ oontract or tJr ttree (3)
roonths tJr every yea- of the tmexpied term,
'Midlewr is ess. xxx (8nphasis aid l.l1derscoli1g sup~ied illhe OOjilal text of the
decision). This clause was declared
Philip!ile National Bank v. Remgk>, G.R No. 78508, 21 Mirch 1994, 231 SCRA 362;
MQkrFil Tra:flllQ
, G.R No. 71813, Ju~ 20, 1987.
ColporU v. Lazaro, G.R No. L·54958, Sept 2, 1983,209 Phi. 400 (1983); Ortgas &Co.,
Ltd. Pamership v. Feati Bank
2 Mucensionv. National Labor Union, G.R No. L-26097, Nov. 29,1977.
and Trust Co., G.R No. L-24670, Dec.14, 1979., 183 Phil. 1761979.
3 Senanov. Gallant Maritime Selvk:es, h:., G.R. No. 167614, Mirch 24, 2009.
~ Se!Tanov. Galla1t Maritime SeM::es, klc., GR No. 167614, Mcrch 24, 2009.
CHAPTER!
TI
L.)
power of the State, they cannot be struck down on the ground that they
r
to promote the health, morals, peace, education, good order, safety, and
general
3
against impairing contractual obligations is not absolute and is not to be read
Services, Inc. - The agreement or contract between the parties is the fonnal
with litem! exactness. It is restricted to contracts with respect to property or
expression of the parties' rights, duties and obligations. It is the best evidence
of
some object of value and which confer rights that may be asserted in a court of
the intention of the parties. Thus, when the terms of an agreement have been
justice; it has no application to statutes relating to public subjects within the
reduced in writing, it is considered as containing all the terms agreed upon and
domain of the general legislative powers of th~ State and involving the public
there can be no evidence of such tenns other than the ccntents of the written
rights and public welfare of the entire community affected by it. It does not
agreement between the parties and their successors-in-interest. Time and again,
prevent the proper exercise by the State of its police power by enacting
regulations reasonably necessary to secure the health, safety, morals, comfort, or
general welfare of the community, even though contracts may thereby be
affected, for such matters cannot be placed by contract beyond the power of the
r the rule has been stressed that a contract is the law between the
parties, and
courts have no choice but to enforce such contract so long as it is not contrary to
interfering with the freedom of contr:Jct of the parties. Simply put, courts
State to regulate and control. Thus:
j_ cannot stipul"'te for the parties or amend the latter's agreement, for
to do so
would be to alter the real intention of the contracting parties when the primary
"Verily, the freedom to contract is not absolute; all contracts and all
rights
are subject to the police power of the State and not only may regulations
function of courts is to give force and effect to the intention of the parties. 4
which affect them be established by the State, but all such regulations
must e.
Section 16 {Speedy Labor Justice).
be subject to change from time to time, as the general well-being of the
community may require, or as the circumstances may change, or as
"Speedy disposition of cases" or "speedy labor justice" is a relative term
experience may demonstrate the necessity. And under the Civil Code,5
and a flexible concept It is consistent with delays and depends upon the
contracts of labor are explicitly subject to the police power of the State
circumstances of each case. What the Constitution prohibits are unreasonable,
because they are not ordinary contracts but are impressed with public
arbitrary and oppressive delays which render rights nugatory. 5
interest. The challenged resolution and memorandum circular being valid
"{i) To ensure speedy labor justice, the periods provided in this Code
1 See Executive Soo"e!ay v. CA., G.R. No. 131719, May 25, 2004, 429 SCRA 81,
dtirVj JM\l Promo00n an:! Mana;Jement,
within which decisions or resolutions of labor relations cases or matters
Inc. v. CA, G.R No. 120095, Aug. 5, 1996, 260 SCRA319.
should be rendered shall be mandatory. For this purpose, a case or matter
2 OrtiJas&Co.,UI.v.CA,GR No.126102,Dec.4,2000, 346SCRA748.
3 G.R. No.114714,Apm21, 1995.
shall be deemed submitted for decision or resolution upon the filing of the
4 POfA Govemhg 8uatd Resolution No. 01, Series o11994, Issued oo 14 J111. 1994
Clld POEA MemorandtJn CiraJiar No.
05, Sefies r! 1994, issood oo 19 Jan.19941111ich ~ lhe rates o1 compensation Md
other benefits i1 Part II, SectkY1 C.
IJOO'J~ 1; Sectioo L, ~caphs 1!r1d 2; llld Appendix 1·A of U1e POEA S!
rodali8nployment Cootracfs for Seafa"ers,
. 1
EnliUOO 'ReorgCYiizing Ule J.il6ty d Labor and ~ CreaOOg lt1e Pli!ppile Ovetseas
En"4lloyment Administration,
lll1idl oojustmeo5 tool: effedoo 20 Marth 1994.
and ((lr Oti1er Purposes.'
2
5 Article 1700 lh!reof expresstt pl"ll'Mes: 'M 1700. The relaticrJs belween
capftalllld-labor are not merely coofrnctJaJ. They Article
1300, CMI Code.
No001 Resoorces and ~Corporation v. ,AJI Asia lllllk Colpolalkxt, G.R. No. 162523,
Nov. 25, 2009, 605 SCRA
4
subject klltle speca laws oo labor Wlioos, cd!ecWe bargOOilg, sH<es and
k:ckout!, closed shop, wages, ~
cooditions, hrus of labtT and srniar subjeds..
370,380.
Cadain v. POf:A, NLRC, G.R. Nas.104776, 104911-14 and 105029-32, Dec. 05, 1994.
I
14 BAR REVIEWER ON LABOR LAW
CHAPTER I 15
...... postulation. In legal parlance, human beings are never embraced in the
tenn
Article 301 [286]1 of the Labor Code which provides for compulsory
Bank of the Philippine islands v. BPI Employees Union-Davao
fulfillment of military or civic duty, may well be considered as the exception to
Chapter-Federation of Unions in BPI Unibank,7 involves the merger of BPI
this constitutional proscription. This is so because the constitutional prohibition
with FEBTC, where the Voluntary Arbitrator ruled that, in accordance with
should be subordinated to the right of the government to call upon its citizens to
Section 80 of the Corporation Code, the emp){)yees of FEBTC form part of the
protect their State as provided under Section 4, Article II of the Constitution.
The survival of the State is the paramount justification for such involuntary
Cabalerov. A!ronso, Jr., 153 SCRA 153 [1987; Goozalesv. ~Cilbaycvl. 199SCRA
298. servitude.
Habanav. NLRC, G.RNo. 129418, Sept 10,1999.
3 Rubi v. Provilcial Board oiMndcro, G.R. No. L-14078. Mard17, 1919, 391'tlft.
660.
4
5
Section 18 [2], Article Ill [Bil of Rights], 1987 Consti1ulioo.
Enlilled 'Temmioo by Employee." This is CO!l'lll"Ol~ knO'M1 as
'resignalion."l>.s rerurilered pursuant to Section 5, R.A.
.
No. 10151, June 21, 2011 illd DOLE Depa!bnent Advisoly No. 01, Se!ies ol2015
(Rerlmileli1g of the labor Code of the
Philippines, as .Aroended), issued on Ju~ 21, 2015.
6 Such as v.i1en oo en1Jioyee resgns tt tenninales v.itilOOI~cause the~ rela\
ionSil~ by~ allliltro
nOO::e on the empbyer at least one (1) monlh il advaoce (See Mide 300 [285].
Laxr Code). 1 En1med 'When ~Not
Deemed Temlina!ed.' Under lhis ri:le, elf4lloyees may be caled to !ulfiH
cerfatt1111!1itary or
7 G.R. No. 164301. Alg. 10, 2010.
cMc duly but sud! shall not lenni1a1e employment
m.
-
CHAPTER I
17
SOCIAL JUSTICE
(Article XIll of the. Constitution)
employers, recognizing the right of labor to its just share in the
..
..__ fruits of production and the right of enterprises to
reasonable
1. FIVE (5) RELEVANT SECTIONS OF ARTICLE XIII.
returns to investments, and to expansion and growth.
Article XIII embodies 19 Sections but only five (5) are relevant to Labor
II WOMEN
Law, viz.: Sections 1, 2, 3,13 and 14. Their provisions are as follows:
enacting laws that "enhanl:e the right of all people to human dignity, reduce
Section 2. The promotion of social justice shall include the
commitment to create economic opportunities based on
I
social, economic, and political inequalities.''
illuminates on this principle. The Supreme Court declared In this case that the
duties, [to] act with justice, give everyone his due, and observe honesty and
The State shall promote the principle of shared
good faith."
responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes, •
b. Section 3 (Protection-to-Labor Clause).
including conciliation, and shall enforce their mutual
The most important provision among the 5 sections above is Section 3
compliance therewith to foster industrial peace.
of Article XIII which, along with Section 18 of Article II, is the principal
- CHAPTER I
19
worthy to be taken note of considering that they reflect the rights and principles
of direct enforceable rights, for the violation of which the questioned clause
that encompass almost all of the provisions of the Labor Code and other related
laws.
the Labor Code. Article 133 [135], for example, prohibits and penalizes7 the
at least the aims of the Constitution.
1 Semulo v. Galoot Miriine SeMces, Inc., G.R. No.167614, Malth 24, 2009.
I Serranov. Gallant Marmme SeMces, Inc, G.R No. 167614, M3rch 24,2009, citing
Mlli\a Piince Hotel v. GSIS, G.R. No.
122156, Feb. 3,1997, '}fj7 SCRA408.
.. 2
ld.
ld.
2 ld., tiling Bascov. Pll~ippine Amusementand{3aming Qxporatioo, G.R No. 91649,
May 14, 1991, 197 SCRA 52. In A1X:Ie 3thereof.
3 G.R. No.158693, NcN.17,2004, 442 SCRA 573. This quotation wa<l lifted from
the SepaJate Opklooof JusticeDMte T1119a 6 lntemafiona' Scllod A1iance
of Educal!xs PSAE.l v. Quisul!'bing, suprcl; E.g., Miele 133 [135] of !heLm Code
dedares it
i1 kjaboo v. NI..RC.
unlavriul for 11e erT1IIoYer 1o require, nOt on~ as acondition of empbymeo~ but
also as acond"rtion for lhe axltinualion of
4 Empha'iis added illhe Oliginal dedsioo il Senano v. Gam\ ~ SeMces, Inc. IW!
ich quoled !his pOf1ion of the empioymenl1hat aWllll"IOO
shall not get mallied.
7 In relalion Ill Arlicles 303 (288] and 304 [289] of the same Code.
Separate Opft101 of Jm Dante TIV,la i1 ,6{laboo v. NLRC, sup!ll.
"'
whichever is less."
b. Section l4(Protection ofWoroen).
The provision of Section 14 of Article XIII which mandates that the
·- Petitioner worked as Second Officer for respondent recruitment
agency
and its foreign principa~ Marlow Navigation Co., Ltd. (herein respondents),
State should accord recognition to the protection of working women, is also non
self-executory like' the other provisions in the Constitution as pronounced in a
under a POEA-approved Contract of Employment with a fixed term of 12
number of cases. 4 It is a mere statement of principles and policies. As such, it
is months. At the time of
his repatriation, he had served oth.y two (2) months and
a mere directive addressed to the executive and the legislative departments. If
seven (7) days of his contract, leaving an unexpired portion of nine (9) months
unheeded, the remedy will not lie with the courts; but rather, the electorate's
and twenty-three (23) days. Petitioner's dismissal was declared illegal and he
displeasure may be manifested in their votes. 5
was awarded, under the rule then prevailing, US$8,770.00, ·representing his
salary for three (3) months of the unexpired portion of the aforesaid contract of
employment, his contract being for one year, in accordance with the afore-
quoted provision ofR.A. No. 8042. Petitioner claims that he is entitled to all his
salaries for the unexpired portion of his contract and not just to 3 months of the
_L__
iO
- (2) The Court concludes that the subject clause contains a suspect
disadvantage.
In upholding petitioner, the Supreme Court cited the following
ratiocinations:
There being a suspect classification involving a vulnerable sector
protected by the Constitution, the Court, after subjecting the
(l) The subject clause has a discriminatory intent against, and an invidious
classification to a strict judicial scrutiny, has determined that there is no
impact on, OFWs at three levels: First, OFWs with employment
compelling state interese that the subject clause may possibly serve. In
contracts of less than one year vi:;-a-vis OFWs with employment
contracts of one year or rnore; Second, among OFWs with employment
,. fine, the Government has failed to discharge its burden of
proving the
Wnat coostiwtes canpellilg stale interest is meamd by Ule scale .(i "Jilt; and
Jl(l'tWIS arrayed i1 V1e Coosti1ution and
unexpired portion of one year or more in their employment contract
caib!ated by history. It is akin 1o V1e ~ ilterest ci \he state b' v.llich some
indMdual Uberties must gM! wey, such
"'
v.
Then that is the time we speak ofnotice and hearing as the essence
CONSTITUTIONAL PROVISIONS NOT APPLICABLE
of procedural due process. Thus, compliance by the employer with
TO COMPANY-LEVEL ADMINISTRATIVE CASES
1. INAPPLICABILITY PER JURISPRUDENCE.
dismissal.
Certain constitutional rights and precepts may NOT be invoked in
3. The notice requirement under Articles 297 [282] and 298 [283] of
labor cases, particularly in company-level administrative investigations leading
the Labor Code cannot be considered a requirement of the Due
to the termination of employment because they can only be asserted against the
Process Clause since the employer cannot really be expected to be
government or the state but not against a private party like an employer. More
entirely an impartial judge ofhis own cause.
particularly, the following rights, per well-entrenched jurisprudence, generally
the Supreme Court further expounded on the doctrine laid down in Serrano by
(a) Right to due process;
making a distinction between constitutional due process and statutory due
(b) Right to equal protection of the laws;
process. Thus:
(c)
(d)
(e)
Right against seif-incrimination;
Right to counsel und to remain silent; and
Right against unreasonable searches and seizures and to privacy
of
.• "Constitutional due process protects the individual
from
Resultantly, where there is just cause for dismissal but due process has
a. The Se"ano case.
In the en bane decision in Serrano v. NLRC,' the Supreme Court
distinguished denial of due process by the State and denial of due process by the
(Article 292(b) [277(b)] of the Labor Code) in terminating the services of the
employer. It thus .concluded that the violation by the employer of the notice
requirement cannot be considered a denial of due process as would result in the
employee, the employer must be deemed to have opted or, in any case, should
nullity of the employee's dismissal or layoff. The following reasons were cited:
be made liable, for the payment of•separation pay. It might be pointed out that
the notice to be given and the hearing to be conducted generally constitute the
I. The Due Process Clause of the Constitution is a· limitation on
two-part due process requirement of law to be accorded to the employee by the
governmental powers. It does not apply to the exercise of private
employer. Nevertheless, peculiar circumstances might obtain in certain
power, such as the termination of employment under the Labor
situations where to undertake the above steps would be no more than a .useless
Code.
formality and where, accordingly, it would not be imprudent to apply the res
2. The notice and hearing required under the Due Process Clause
ipsa loquitur rule and award, in lieu .of separation pay, nominal damages to the
applies before the powers of organized society are brought to bear
employee.
upon the individual. This is obviously not the case of tennination
of
employment under Articles 297 (282] and 298 [283] of the Labor
c. The Abbott Laboratories case.
Code because the employee is not faced with an aspect of the
A new doctrine on contractual due process, as distinguished from
adversary system. The purpose for the requirement of notice and
statutory due process, has been enunciated in the 2013 en bane decision in
hearing is not to comply with the Due Process Clause of the
Abbott Laboratories, Philippines v. Pearlie Ann F. Alcaraz. 2 Thus, in a
Constitution. The time for notice and hearing is at the trial
stage.
1 G.R. No. 158693, Nov.17, 2004.
CHAPTER! 27
26 BAR REVIEWER ON lABOR lAW
110 FUNDAMENTAL PRINCIPLES AND CONCEPTS
employee is dismissed sans due process, the legal notion that labor or
probationary managerial employee, was afforded both substantive and statutory
and respected. 2 A worker cannot be deprived of his job, a property right, without
regular employee. Nonetheless, despite the existence of a sufficient ground to
person shall be deprived of life, liberty or property without due process of law. 3
termination procedure, it was found that petitioner Abbott breached its
contractual obligation to Alcaraz when it faiied to abide by its own procedure
e. Constitutional due process, when neces8ary.
prescribed in its company rules in evaluating the performance of a probationa.-y
'"'
authority. The equal protection clause erects no shield against merely private
, As JlfrM:Ied i1 Miele 292(b) !277(b)J d lie t.m cooe ll1d as
i1terpleled illle case rJ Kilg d Kilgs Transport, klc. v. conduct,
however, discriminatory or wrongful it may have been.5
Mcmac, GR No. 166208, Jll1e 29, 'JJYJ7.
2 RespcC1denl Ak:aaz was hied as Medk:al iiXl RegUaby Aflais t~a:JaJer (RegUatay
Afl<irs. Manage!) d petitmer,
suqea b a 6-m:xltl piOOali:my ~ Upon bei'Q len'ni1aled, she fled a ~ !or ilegal
disntsal Md
dana;les dai1ivJ l1at she sl1ol*l hcNe aeacly been allSklered as a regulcr Md
oot a probalionay ~ gPien 1 Sectix11, Altide 111
of lhe Bil ct Rig his pa1ly prcNk1es: 'til peiSOO shal be de¢ied of lfe, lilelty or
plqlel!y wi1hoot due
PJJ!xts JaiMe b i1txm her d lhe leaSOOCille sli.l1dads b' her regularizatioo
t.,oo her ergagement as reqlied under process of law
xxx"; See S<ijales v. ~·s Coorneldal Colp., G.R No. 166554, N111. 27, m. cling
Phif~ MMe
Miele 296 [281] dthe LlixlrCode.ln 1his relation, she ax1lended tha!IW!ie her~
contract stated that she was to Pictures Wcxke!S
Association v. Premiere Productions, Inc., G.R No.l-5621, ~ 25, 1953, 92flhl. 843;
RMce v. NI.RC,
be ergaged 011 a prOOalionay status, lhe same d'MI oot illf1Ca!21he sfaldards
011 Mttl her regulaizati:ln Wlltl be based. G.R No.l~147, June
30, 1988, 163 SCRA 279; Asia WOO:! Recnitmenl.lnc. v. Nl.RC, G.R. No. 113363, Aug.
24, 1999,
She fll1ler avened that lie iidMdua petiOOne!s mcililusly coonived to ilegaly !
ismiss her v.tlen: (a) trey ttm!ned her 313 SCRA 1;
Phiippine-Si'gapore Tmnsport SeMces, Inc. v. NtRC, G.R No. 95449, Aug. 18, 1997,
277 SCRA 506;
Yli1h tenrilaOOn; (b) she was Oldeled ootID enter~ prenises e\11!11 Jshe was
stil an ~ lhereof; iiXl (c) they Tolentroo v. NlRC,
G.R No.l-75380, Juo/ 31, 1987, 152 SCRA 717; See alsoOpinakio v. Ra'li1a, GR No.
196573, Oct
pubtly MI100!lCed flat she ~ resgned il ader b hurriale her. On the conbay,
petili:xlels maillailed l1at Alcaraz 16, 2013;
Polsotiw. De Guia Enterplises,lnc., G.R No. 172624, Dec. 5, 2011.
was Vl!id~ lenrinated frcxn her probationary en1jiJyment gNe!l her failure to
salisfy lhe presai>ed sta1dcrds !or her 2 S<ijales v.
Rllsfan's Con1neltial Corp., supra, citing Slaugha Hoose Cases, 16 Wal. (83 US) 36,
127.
regularization 1\!li:tl v.m nafe krlaMllo her at the lined her engagement
3 Polsolin v. De Guia Enleipfises.lnc., G.R No. 172624, Dec. 5, 2011; Opinaldo v.
Ravina, G.R No. 196573, Oct 16,2013,
3
As the recads show, Alcarais d'ISilissal was ekted tlrough a letter dated May
19, 2005 v.tlich she received oo May 23,
2005 and agaiiOII May 27' 2005. Slated therein v.m the reasoos for her
temi1ation, i.e., that after piqlel' Mluation, 4
CHAPTER l 29
Companies/ where the Supreme Court pronounced that: "The right to counsel
proceeding. 4
under the Constitution may be invoked by an employee against his employer has
1 Sectioo 17, Mal Ill [811 of Ri;lhfs), 1987 Coostihrtion. This was si11b1y p!
fMlOO i1 Section 20 oflhe 1973 Consti1ulion and
Sectioo 18, Arti::le Ill ofl1e 1935 Constitution. This is siniar tl flat
IICOllded by lhe Fllh Amel1dment oflhe AmeOCan People of the
Phiippk1es v. Hon. Ruben Aysoo, supra
Constitution. (See Tcmda &Femcmo, Constitution oflhe Phi., An noW, 2d ed., pp.
378-379). GR No.191008,.A
¢111,2011,647 SCRA568.
2 P• oflhe Phiippines v. Hon. RJJben Aysoo, G.R No. 85215, July 7, 1989. This
case was deci:led lJ1der lhe re;~ime r1. En1>flasis suppied.
lhe 1973 Coosliutioo v.ttere lle ~htagailstseiHlainilatioo was pro'liJed
lltderlhefifstsenlenee r1. Sectioo 20, Arti::le rv 4 Seclion2 d ArtX:Ie
Ill (BilofRighis)o!tle 1987 Ca1stitJtia1 proiides: "SecOOn 2. The ~tt<tllle people
to beseo.ue in their
lhen!ol. See also Bermldez v. Castilkl, 64 Phil. 483; Gonzales v. Secretay of
Lalor, 94 Phi. 325; Suarez v. Tengco, 2 persons, houses, papers,
llld etfecls against uoreasonable seMChes and seizues rl. M1aleYer nalu~ and for
<rtf pu!pOSe
SCRA 71; Pascual, Jr. v. Board of Medk:al Exanilels, G.R No. L-25018, t&y26,
1969,28 SCRA344; 138 Phi. 361; Cabal ~
shall be inviolable, !lld no searth warr..nt or wamrnt of arrest shall issue except
upoo proballe cause to be detennined
v. Hon. Kapunan, Jr., G.R No. L-19052, Dec. 29,1962, 116 Phi. 1361.
personaltf by lhe jJG,Je after exanilation under oalh or affilll13tion of lhe
COII'qliaMlt and lhe l'<itnesses he may produce,
3 Rosetev. Lin, G.R No.136051,June 8, 2006. This isacMicase.
il1d partio.Jiaf1y desatirg lhe place to be searthed llld !he per.;oos or lhi"gs to
be seized.'
4 Cililg cabal v. Hon. Kapunan, Jr., supra, 116 Phi. 1361, 1367·1368; Pascua,
Jr. v. Board of Medical Exanilers, supm 28 5 Section 3 of ArtX:Ie
111 (Bill a Ri;lhfs) of lhe 1987 Coosti1ulion prcMdes: "SecOOn 3. (1) The p!Mq of
communication and
SCRA 344; 138 Phi. 361, 363.
oonespondence shaR be iMllable except upon lawful order oflhe court, or v.t1en
public saety or Older requires olhe!wise,
5
See fist sentence of Section 20, Article rv alhe 1973 Constitution llld now
SediJn 17, Article 111 oflhe 1987 CoostibJtion. as presaibed by law.
(2) PJrf evidence oblained in violation of this or lhe precediY,J sectioo shaH be
i1admissible ltv ~
6 See Cruz, ~ali A., Consti1utional Law, 1987 ed., p. 275.
purpose in !lly proceeding.'
~·
CHAI'TER I 31
violation of the Bill of Rights should also be construed as an act of the State
overprice which was covered by the check, she was asked to explain her side
individual effected through private seizure equally applies, in pari passu, to the
to her. She further explained, through her counsel, that the check she received
~
The Labor Arbiter declared her dismissal and preventive suspension
2.
illegal because petitioners failed to "prove what [they] alleged as complainant's
ARTICLES 1700 AND 1702, CML CODE
dishonesty," and to show that any investigation was conducted. On appeal, the
NLRC affrrmed the fmdings of the Labor Arbiter on the ground that petitioners
1. ON ARTICLE 1700.
were not able to prove a just cause for Catolico's dismissal. It found that
Article 1700 of the Civil Code provides:
petitioners' evidence consisted only of the check for P640.00 drawn by YSP in
"Art. 1700. The relations between capital and labor are not merely
favor of private respondent, which Saldana, her co-employee, saw when the
~'~
contractual. They are so impressed with public interest that labor contracts
latter opened the envelope. But, it declared that the check was inadmissible in
evidence Jlursuant to Sections 22 and 33 of Article III of the Constitution. The
NLRC thus concluded: "With the smoking gun evidence of respondents 4 being
I l~
mu~ yield to the common good. Therefore, such contracts are subject to
similar subjects."3
complainant,5 respondents' case falls apart as it is bereft of evidence which
'~;"'
Although provided in the Civil Code, the foregoing civil law principle
cannot be used as a legal basis for complainant's dismissal."
~":
§
Catolico's dismissal was illegal, it disagreed with the NLRC's reason for
upholding the Labor Arbiter's decision, viz., that the evidence against private
I II
respondent was inadmissible for having been obtained in violation of her
m
constitutional rights of privacy of communication and against unreasonable
i ii!
illd Export FO!Waldels" b.r (4) gift Ytft!PilEld ~to a ftiend il Zlri:h, SMzerlood.
Alita Reyes, the prqnietress of lhe
searches and seizures. It reasoned: "As regards the constitutional violation upon
~ aJI11lillY, asked 11e ~ Wshe coukf exanine and ilspect the pactages. ~~
however, refused, assumg her
which the NLRC anchored its decision, we find no reason to revise the doctrine
~ l1at lhe packages siJW contailed books, cigars, Cl1d gloves and were
gifts ID tis ftiend hi ZlJiich. Before def!Ve!Y of
~ appeaoors box 1o 111e !mal o1 Cusloms Md/or ball of Posts, M"..100 Re,.es
(prqlrieb) and OOsband or Anila (Reyes),
fdk1Mng standard ~ procedure, opened lhe boxes for final ilspeclioo and bind
fM1uana therein. He repor1ed ~ kl
lhe NBI and requested alallolaby emmion !hereof. Fortwith, Job Reyes Clld flree (3)
NBl agenls, aJd a phobgrapher,
G.RNo.113271,0ct.16, 1997,280SCRA735.
went to lhe Reyes' aoce at Ennila, Mania and upon ilspedion of lhe box, foond dried
marijuana leaves contained inskie lhe
See Seclkxl2 of Article Ill (8il oiRiJhls) orlhe 1987 Constib.rtioo, suprc1.
cellophooe wrappers. The NBI agents made an iwenll:xy and ll:d charge ollhe box and
ollhe contents lhereof, after
See SectiJn 3of Article Ill (8il oiRiJhls) ollhe 1987 Constib.Jtioo, SUpla.
siJning a'Receipr ~OJ cus100y of !he said effecls.
PeliOOners illlis case.
Pari passu is aLatin ptvase 1hat literally means 'v,;ih equal pace or progress;
side by side' or '¥.ithout partiality, equably or
s P!tia!e respondent illhis case.
fairty.· See dictioo31y.can athllp1/dictionaly.reference.comlo~-tpaSSU. Last
accessed: May 06, 2014.
Section 2.- Contract of Labor, Chapter Ill (Work and Labor),TIIe VIII, Book IV
(Obi;lations or Conlracls), Civil Code.
,L..,.
common good. 5
• ld., Mcle 1702.
5 GR No. 162839, Oct 12, 2006.
2. ON ARTICLE 1702 OF THE CML CODE,
6 The coOOads d ~ il VIis case provide for w.o perilds. Asile ioollle fixed cre-
ye~r em set il PM~Qraph 1, IN RELATION TO ARTICLE 4 OF
THE LABOR CODE.
pn;Jraph 7.4 prMies for alfvee.lroolh peOOd dutb;l v.tlch petibler has lhe 191t
t> prHJnnlna1e lhe ~for lhe
'lailre c1 t.e el1lJioyees t> meet em pass lhe ~ em str1datls set by lhe ~ 5ld
made ~<na.m t> 11e (NOTE: See
discussion below on these two (2) kindred articles).
~prier to' llei' ~ TM, allhough cooched 11 i!ITtliJuous ~uage. ~ 7.4 nm 11
really Ill a
probi6Jnay peOOd. Cleirtt. to II'IOi! regldarization, peliixler has !WJail
sooght tl resat lilmaWely to probationcry
~ Md Efl1llctfmert for afixed em. Fnatj, 1ism nr:OY:Jilat after is pas1 ~ ma::ts
1100 been
decli.ml Vlli:! by lhe Supfene Coot petitioner was expeded b enSlll! llallhe
~ma:ts woofd a1reaat oornptj
v.ilh lhe str1datls set by ~a>~ em by llis Court. Regretlal!f, petitioner failed
to do so.
1 k1nodafa f'liwi1es, he. v. ~ G.R No. 162839, Oct 12. 21Xl6, d1i1g Pcidsla1 M1es
Cctporalioo v. Ople, An ~shall be deemed 1D be
casua II is not oovered by l1e preced'rg paragraph: Provided, That any emplOyee
G.R No. 61594, Sept 28, 1990, 190 SCRA 90, 99; See also t,1aJsarn v. Natiooal
Olgaizatioo ofWorkiYJ Men, G. R No. who has rendered at least cne
yecr of service, vt.et.er &JCh service is coolilJoos or broken, shal be oonsileled
aregula'
148492, ~9. 2003,451 PIW.254; Benwdov. NLRC,GR No. 122917,July 12,
1999,369Phl.443. eJI1lklyee will1
respect to lhe aciMty 11 'llilk:h he is empk7fed em his~ sha'l oonlilue vt1e sud1
ac:tivcy exists.
See Ph~ile FedEia!ioo d Cre<it CooperaWes, he. v. NLRC, G.R No. 121071, Dec. 11,
1998, 360 Phil. 254, 261. (As rentMrilered ptJISUMIID
Section 5, RA No.10151, June 21,2011 em DOLE Depa1mertMvisory No. 01, Series of
s G.R No. 170351, Marth 30,2011.
2015 {ReniJIT'berirrJ of the LalxrCodeofthePh~. ~Amended), issuedooJuly21, 2015).
10 Miele 295 [280J. Regula' and Casual ~ - The proo.isioos of 'Millen WJreemenl kl
the oonllal'f nolwi1hsllming 1
B.
influence of the latter should be counter-balanced by sympathy and compassion
CONSTRUCTION IN FAVOR OF LABOR
the law must accord the underprivileged worker. 1
1. ARTICLE 1702 VS. ARTICLE 4.
Compared to the provision of Article 4 of the Labor Code, it appears
Both Article 1702 of the Civil Code and Article 4 of the Labor Code
that Article 1702 is broader in scope in that it pertains to "all labor legislation
speak of the rule on interpretation and construction provisions of law and labor
and all labor contracts" and not merely to the "implementation and
contracts. Because of their close interrelation, these two important provisions
interpretation of the provisions of the Labor Code, including its implementing
will be discussed herein jointly.
rules and regulations," as enunciated in Article 4. Moreover, the Civil Code
provisions of the Civil Code and the Labor Code do not really differ in essence
Congruently, Article 4 of the Labor Code states:
since the policy of the law is clear- any doubt should always be interpreted or
"Article 4. Construction in Favoi' of Labor. - All doubts in the
construed in favor of labor - which means, in more specific terms, the safety and
implementation and interpretation of the provisions of this Code,
including decent living for the laborer.
2
its implementing rules and regulations, shall be resolved in favor of
This is, of course, not a harsh rule. The framers of the law (Labor Code
labor."
and the Civil Code) had fully taken cogr.izance of the disparity in terms of
Article 4 of the Labor Code enunciates the time-hcnored principle that
resources and standing between labor and capital. In any legal controversy
all doubts in the implementation and interpretation of its provisions should be
between them, the former always suffers the most. Hence, the common adage
resolved in favor of labor. 1 This rule applies not only in the interpretation of
the that those who have less in life
should have more in law is best exemplified and
provisions of the Labor Code but also of its Implementing Rules. 3 It applies to
made real in Articles 4 and 1702 of the Labor Code and Civil Code,
all workers - whether in the government or in the private sector- in order to give
respectively. The worker must look up to the law for his protection. The law
flesh and vigor to the pro-poor and pro-labor provisions of the Constitution. 4
regards him with tenderness and even favor and always with faith and hope in
It is in ·keeping with the constitutional. mandate of promoting social
his capacity to help in shaping the nation's future. He must not be taken for
justice and affording protection to labor. 5 Thus, when conflicting interests of
granted.3
labor and capital are to be weighed on the scales of social justice, the heavier
~
;!i"
footing than the employee. The law must protect labor to the extent, at least, of
~
1 RlWle NatKx1al Ccoslrtsdbl Colpcxalion v. NLRC, GR No. 101535, Jal. 22, 1W3,
217 SCRA 455; Ph~ Airiles ~
does not mean that capital should, at all times, be at the losing end of a
~ AssOOaOOn v. ~i'le Aitiles, R:. Md Ph~ Anles, klc. v.
Phiippile M1es ~Association, li
GR Nos. L-31341 Cl1d 31343, March 31, 1976.
~
controversy. The law does not say so. For while the Constitution and the law
2 kB1 TltllSillission Caporatkxw. CA, G.R No. 144664, IJath 15, 2004; Aquino v.
Nl.RC, G.R No. 87653, Feb. 11, 1992, ~ tend to favor the working man,
protection to the employer is also assured.
~
200 SCRA 118; kltematiooall'hcrma:eu1ical, Inc. v. Secreay of Lm, GR Nos.
92981-83, Jill. 9, 1992, 205 SCRA 59; ~ Protection of the rights of
the laborer authorizes neither the oppression nor self-
Abella v. NLRC, G.R No. 71812, July 20, 1987, 152 SrnA 140, 146; Perezv. NLRC,
G.R No. 71813, .kl~ 20, 1987,152
SCRA140.
destruction of the employer. While the Constitution is' committed to the policy
3 Mk:le 4, tm Code; Section 3. Preiminaly l'ro'lisklns, IU!s t> ~ 1t1e t.axr
Code; Insula' BCI1k a ASa Cl1d
AmeOCa Employees Union PBAAEU] v. lnciong, G.R No. L-52415, Oct 23, 1984.
~ LMd IJld Housi1g DeYelopment Colp. v. Esquillo, G.R No. 152012, Sept 30, 2005
citg PPA Employees Hied Afilr Ju~ 1 Martopper t.i1ilg Corporation
v. tolRC, G.R No. 103525, March 29, 1996; Zllbcrlo, Sr. v. NLRC, G.R No. 103679,
Dec.
1, 1989v. CoomssiononAud'rt, G.R. No.160396, Sept 6, 2005.
17, 1993, 228 SCRA 556; Holiday mMcllia v. NLRC, G.R No. 109114, Sept 14, 1993, 226
SCRA 417.
5 See Section 18, AIOCie II of the Conslitution. Manila Eledric ConlJCI1Y v.
NLRC, {3.R. No. 78763, Jufj 12, 1989; Em! 2 Philippile National
Coostruction Colpaa1ion v. NLRC, G.R No. 101535, Jal. 22, 1993, 217 SCRA 455;
Plastic Ta.m
~Liles, Inc. v. POEA, G.R. No. L-76633, Oct 18, 1988, 100 SCRA 533;fu'o.tilea,
Phis., Inc. v. NLRC, G.R No.
L __
CHAPTER I 37
l~·
than not towards the worker and upheld his cause with his conflicts with the
a CBA must be construed liberally rather than narrowly and technically, and the
~
employer. Such favoritism, however, has not blinded the Court to rule that
courts must place a practical and realistic construction upon it, giving due
justice is, in every case, for the deserving, to be dispensed in the light of the
consideration to the context in which it is negotiated and the purpose for which
established facts and applicable law and doctrine.'
it is intended to serve.'
The Philippine Constitution, while inexorably committed towards the
Insofar as overseas employment is concerned, the POEA Standard
protection of the working class from exploitation and unfair treatment,
Employment Contract (POEA-SEC) which is required to be signed by every
nevertheless mandates the policy of social justice so as to strike a balance
OFW deployed abroad, should be construed liberally in favor of the OFW. A
between an avowed predilection for labor, on the one hand, and the maintenance
strict and literal construction of the 2010 POEA-SEC, 2 especially when the same
of the legal rights of capital, the proverbial hen that lays the golden egg, on the
would result into inequitable consequences against labor, is not subscribed to in
other. The Supreme Court, in Philippine Long Distance Telephor.e Co. v.
this jurisdiction. Concordant with the State's avowed policy to give maximum
NLRC/ underscored that although it is bound by the social justice mandate of
aid and full protection to labor a:; enshrin~d in Article XIII of the 1987
the Constitution and the laws, such policy of social justice is not intended to
Philippine Constitution, contracts of labor, such as the 2010 POEA-SEC, arc
countenance wrongdoing.
deemed to be so impressed with public interest that the more beneficial
2. DOUBT OR AMBIGUITY IN LABOR CONTRACTS.
conditions must be endeavored in favor of the laborer. The rule ther~fore is one
In case of doubt or ambiguity, labor contracts should be interpreted
of liberal construction. As enunciated in the case of Philippine Transmarine
liberally in favor of the worker. 3 Article 1702 of the Civil Code and Article 4
of Carriers, Inc. v. JVLRC)
the Labor Code should be applied in resolving such. doubt or ambiguity in
"The POEA Standard Employment Contract for Seamen is designed
contracts between management and the union. 4 Contracts which are not
primarily for the protection and benefit of Filipino seamen in the
ambiguous are to be interpreted according to their literal meaning and not
pursuit of their employment on board ocean-going ves5els. Its
beyond their obvious intendment.5 In Colegio de San Juan de Letran -
provisions must [therefore] be construed and applied fairly,
Calarnba v. Villas/ the Supreme Court re-affrrmed the rule that the ambiguity
reasonably and liberally in their favor (as it is only) then can its
4
in labor contracts should be strictly construed against whoever is the author
beneficent provisions be fully carried into effect."
thereof.'
3
Ci1i1g Article 1377, CMI Code.
G.R.No.123891.Feb.28,2001,405Phn.487.
! 4 ~suppled.
CHAPTER! 39
38 BAR REviEWER ON lABOR lAW
fUNDAMENTAL PRINCIPLES AND CONCEPTS
1
prejudice to the laborer and his heirs may be obviated and the State policy on
to the social justice policy of labor laws and the Constitution."
labor protection be championed. For if the laborer's death was brought abouf
t
•f
~:;:
dismissed. 2
was the cause for his medical repatriation, and (c) it was later determined
c.
that the injury or illness for which he was medically repatriated was the
SOCIAL JUSTICE
proximate cause of his actual death although the same occurred after the
The following are the social justice provisions in the Constitution
term of his employment, the above-mentioned rule should squarely apply.
which were already cited and/or discussed above:
3. DOUBT OR AMBIGUITY IN EVIDENCE.
(1) Section 10, Article II; and
The rule emmciated in Article 4 of the Labor Code likewise applies in
(2) Section 2, Article XIII.
the appreciation of evidence in labor proceedings. Consequently, when there is a
doubt between the evidence presented by the employer and the employee, such
doubt should be resolved in favor of the latter. 1 Time and again, the Supreme
----oOo------
Court has pronounced that "if doubt exists between the evidence presented by
the employer and the employee, the scales of justice must be tilted in favor of
the latter." 2 The policy is to extend the doctrine to a greater number of
employees who can avail themselves of the benefits under the law, which is in
consonance with the avowed policy of the State to give maximum aid and
protection to labor.
3
I
In illegal dismissal cases, the consistent rule is that the employer must
I1
affrrmatively show rationally adequate evidence that the dismissal was for a
justifiable cause, failing in which makes the termination illegal. 4 As aptly
stated ;l;
in Century Canning Corporation v. Ramil: 5
:f.
:1
:;;
~~
\_~
:!i··~
1 South East klll!maliooaiRatlal, lnc:.v. JesusJ. Cooi"g, G.R No. 186621, M:lfch
12, 2014; Masilg 1l1d SmiDeYelopment
Caporalion v. flDJEil, GR No. 161787, Jut)' 27, 2011, 654 SCRA 490, 502;
Dealoo Flll11S, h:. v. NLRC, G.R No.
153192, Ja1. 30, 2009, 577 SCRA 280, 295;.Ptillflile En1Jk7/ SeNicesand
Resooroes, Inc. v. Plmlb, G.R No. 144786, "
!&
-.~
April15, 2004 ci!i1g Asunciln v. NL.RC, G.R No. 129329, July 31, 2001, 362
SCRA 56; See aso ())casta v.l.ilerty
BroadcasliVJ Nelv«rt. klc., G.R No.165153,Aug.25, 2010.
'
i
IA'ecmand Ho1e1 Rescxt v. Johnsoo, G.R No. 191455, Mard112, 2014; SHS flerfom\
ed Matelials, Inc. v. [Mz, G.R No.
2
185814, Oct 13, 2010, 633 SCRA 258, 275; Dalsart Security Folte &Ali!d
SetW:esCo. v. -Balpf, -G.R No.168495, Julf !
2, 2010; Lina l..ood, k1c. v. CUevas, G.R No. 169523, June 16, 2010; 1m;,
Heavy lndusl!ies and Consboctioo Co, L.kl. v.
llmez, GR No.170181, June 26, 2008; Bele Clxp. v. Macasusi, G.R. No.168116,
April22, 2008; MwTv.HilOOJ, Inc. v.
NL.RC, G.R No. 169600, June 26, 2007, 525 SCRA 708, 731; G & Mf'hiiWines, Inc.
v. OJanilot, G.R No.
162308, Nov. 22, 2006,507 SCRA 552, 569-570.
3 Webopo1i1an 1mk 31d Trust Corr!Jany v. Nl.RC, G.R no. 152928, June 18, 2009;
l.epan!o Consoidaled Mllilg Co. v.
I:Mnapis, G.R No. 163210, Aug. 13, 2008; Travelai"e &Tours Corp. v. NLRC, G.R
No. 131523, Aug. 20, 1998, 294 SCRA 1 See also DJty Free
f'hiWileS Se!vieeS, Inc., v. Tlia, G.R No. 174809, June 27, 2012; CeniJJiy CaYling
Coqxxation v.
505, 511;VIOietav.Nl.RC, G.R No.119523,0ct. 10,1997,280 SCRA520, 531; LT.
DaiJJ and Co., lnc.v.NLRC, G.R No. Rani!, G.R No.
171630, Aug. 8, 2010, 627 SCRA 192, 202; t.andlex lndus1ries v. CA, G.R No. 150278,
Aug. 9, 2007;
113162, Feb. 9, 1996, 253 SCRA 440, 44S.
Skippers Pacific, Inc. v. Mra, GR No. 144314, Nov. 21,2002.
HantexTil!di'I:J Co., Inc. v. CA. G.R No.148241, Sept 27,2002.
Ncrarjo v. Biomedica Heallh care, h:., G.R No 193789, Sept 19, 2012.
G.R. No. 171630, Aug. 8, 2010,627 SCRA 192, 202.
i
40
f\i
CHAPTER II
41
i
CHAPTER Two
I. employment is concerned, the sole basis thereof is Article 38 and nothing
more,
unlike recruitment for overseas employment where new laws' have been enacted to
RECRillTMENTANDPLACEMENT
govern and regulate it, if not to supersede it. Under these new laws2 as well as
their
~~~ been broadened.4 Thus, while under the original rendering of the Labor Code,
the
TOPICS PER SYLLABUS
., prohibited activities enumerated in Article 34 constitute illegal recruitment
only
II.
',,
:~
-~;
when the same are committed by "any person, whether a non-licensee, non-holder,
A. Illegal recruitment
:~ (a) canvassing,
2. Disabled Workers
s
~ (b) enlisting,
a. Equal Opportunity
·.~
(c) contracting,
b. Discrimination on Employment
-----------· ----------------
J
_;~
,.:~
(d) transporting,
(e) utilizing, or
:!
(NOTE: The presentation of the topics In this portion of the Syllabus
1 4 1 Suchaslle 1995lal¥, RA No.8042, and itamendabylaw, RA. No.
10022, Yttthwas passedi12010.
ld.
1 2
has been altered to provide for amore comprehensive and orderly
discussion). dj 3 Such as 11e Orrius rues and Regurams ~ 11e !
Ji:l1311 Wtrtas and Ovelseas Fqli1os M. d 1995, as
Amended by RA No. 10022, issued on July 8, 2010; Revised POEA ~les and Regulations
GovmJi1g lt1e Reauibnent
1. APPLICATION OF ARTICLE 38 TO BOrn LOCAL AND OVERSEAS
~ and ~ dla1dilased Overseas Fipilo Woltlers d 2016; 2016 ReVIsed
POEA Rules and Regulalions GovemirYJ
EMPLOYMENT.
l1e Reauitrnentcnl ~to! Sealarers issued on Febnay 26, 2016.
The S14Jreme ewt has declcred that R. A. No. 8042 has broadened 11e cm:ept ct ikiga
reaUtment undEr 1t1e t.a1xr
The concept of "illegal recruitmel?!." under Article 38 applies to
Code. (Poople Y. Tolentil:J, G.R No. 208686, Julf 01, 2015; People v. Daud, G.R No.
197539, June 02. 2014; People v.
recruitment and placement for both local ~~:>overseas employment But a
Oalen, G.R No. 173198, June 1, 2011; People v. Trilml, GR No. 181244, Aug. 09,
2010; People v. Nqjla, G.R No.
distinction must be pointed out at the very outset :i:hat as far as recruitment for
local 170834, Aug. 29, 2008).
it 5 People v. Ccilacq, G.R No. 113917, Ju1y 17, 1995, 246 SCRA 530.
Revised~ cnl RegufaOOos Govemilg Recruitnent and Pfacemenlfur Local ~ ~ O!der No.
141-
.\:
Retermg to 1t1e 2017 Syllabus.
14, SeOOs of2014[Noverrber20, 20141
1
j 8
~•
CHAPTER II
43
It also includes:
People v. Panis/ the issue of whether there is recruitment and placement was raised
(a) referrals,
(b) contract services,
(c) promising, or
(d) advertising for employmen~ locally or abroad, whether for profit or
'
'·
considering that the four (4) separate criminal informations filed against the
accused
so, merely mentioned one person in each of the information as having been recruited
by him. The accused contends that under Article 13(b) of the Labor Code, there
not.
could only be illegal recruitment when two or more persons in any manner were
b. No change in meaning as these terms are defined in special laws and
promised or offered any employment for a fee.
rules.
The Supreme Court declared that the above-quoted proviso in Article 13(b)
Both the applicable laws for recruitment and placement for local
was intended neither to impose a condition on the basic rule nor to provide an
employment1 and~ employmenf have retained the above definition and
exception thereto but merely to create a presumption. The presumption is that the
concept of recruitment and placement as originally rendered in Article 13(b) of the
individual or entity is engaged in recruitment and placement whenever he or it is
Labor Code.3
dealing with two or more persons to whom, in consideration of a fee, an offer or
The number of persons dealt with is not an essential ingredient of the act of
or entity which, in any manner, offers or promises for a fee, employment to two
recruitment and placement of workers. Any of the acts mentioned in the basic rule
in
or more persons shall ~deemed engaged in recruitment and placement."
Article 13 [b] will constitute recruitment and placement even if only one
prospective
The bottcmline element is such recruitment and placement activities are
worker is involved. The proviso merely lays down a rule of evidence that where fee
generally legal and valid when undertaken by licensees or holders ofauthority. Only
is collected in consideration of a promise or offer of employment to two or more
when the same are under+.aken by non-licensees or non-holders of authority when
prospective workers, the i..'ldividual or entity dealing with them shall be deemed
to
they· become acts cf illegal recruitment. Thus, the above-quoted proviso simply
be engaged ilL the act of recruitment and placement The words "shall be deemed"
makes a presumption, as far as non-licensees or non-holders of authority are
should, by the same token, be given the force of a disputable presumption or of a
concerned, that they are engaged in recruitment and placement activity for local or
prima facie evidence of engaging in recruitment and placement
overseas employment when, in any manner, they offer or promise for a fee
employment to two (2) or more persons. Evidence should be presented by them to
1.
debunk such legal presumption. 4
aLEGALRECR~NT
It bears to stress that the number of persons so offered or promised
IN LOCAL EMPLOYMENT
employment is not an essential element of the act of recruitment and
situations, to wit:
~~ non-holder o[authorl!v:
I SedOO 42, 1ist~,ld.; SedOO 1, Rule IV, OrmixJs Rlresilld RegUalklns ~the
Mgr.rrtWorkersand
CNelseas Aipi1os lv:i. ct 1995, as M1ended by RA No. 10022. issued oo Jutt 8,
2010; See aso Sectial 76, Rule x. • · Any act of
canvassing, enlisting, contracting, utilizing, hiring or
Revised POEA Rules il1d RegulaliJns GoYemilg Die Reauitment Clld Empkr,ment ct
Land-Based Ovelseas Fd~ ~~ procuring
workers, and includes referrals, contract senices,
WOOrels of 2016; Sectial 72, Rule X. 2016 ReJised POEA Rlres Md Regulatioos
GovemiBJ the Recruitment and
~or Seafarels issued oo Februaly 26, 2016.
promising or advertising for local employment, whether for profit
2 SedOO 6ofRA No.8042, as amended by Section 5ofRA No.10022.
ornot.1
3 ~. i1 the definition i1 lhe 2014 Rules kr klcal ~ of -Mlat oonstitiJtes
illegal recruilment. the \\\lid
'transpor&lg' is missilg. (See Seciion 42, Re'lised Rules and Regulalions
GovemW1g Recruibneot and Aacerneot for Local
Employment. Department Order No. 141·14, Series ci 2014 [N.7<errber 20, 2014D.
4
Seclioo 6ci RA No. 8042, as oo1ellded by SectiJn 5d R.A. No. 10022; See also
Section 1, Rule IV, Omnibus Rules em
Regulation!; kropiemeotir1J lhe Mgrant':'.'oi'~ers and Ove!seas Fipilos M ci
1995, as Amended by RA. No. 10022, issued
oo Jilif 8, 2010. See also Seclioo 76, Rule X. Revised POEA Rules and
RegulaOOns Governing the Recrui1ment and 1
L
Reg~ Govemrg lhe Reauib'nent and Employment aSeafarers issued onfebrual}'
26,2016. Order No. 141-14, Se!
ies or 2014 [NoYerrber 20. 2014].
,q
~
44 BAR REviEWER ON lABOR lAW
CHAI'TERll
45
(2) When any of the following acts which have been declared by law as
~ The acts enumerated in No. 2 above, being
unlawful, well constitute illegal
prohibited are committed by any person, whether or not a holder o(a license or
recruitment when the same are committed by anyofthe following: (a) Any person;
authority:
~ (b) A licensee; (c) A holder of authority; (d) A non-
licensee; or (e) A non-holder of
a) To charge or accept directly or indirectly any amount or to make
a J
~•:, authority.
worker pay the agency or its representatives any amount greater than
The word "person" in letter (a) above may refer to an "individual" or
that actually loaned or advanced to him;
"entity" per Article 34 of the Labor Code. 1
b) To furnish or publish any false notice or information in relation to
2.
recruitment or employment;
ILLEGAL RECRUITMENT
c) To give any false notice, testimony, information or document or
IN OVERSEAS EMPLOYMENT
commit any act of misrepresentation for the purpose of securing a
license or authority;
1. ACTS CONSTITUTING ILLEGAL RECRUITMENT.
d) To induce or attempt to induce a worker already employed to quit his
RA. No. 8042, as amended by RA. No. 10022, 2 classifies the acts
employment in order to offer him another unless the transfer is
constituting illegal recruitment in accordance with the offender, viz.:
designed to liberate a worker from oppressive terms and conditions of
(1) When any of the following acts are undertaken by a non-licensee or
employment;
non-holder o(authoritv:3
e) To influence or attempt to influence any person or entity not to
employ
• Any act of canvassing, enlisting, contracting, transporting, utilizing,
any worker who has not applied for employment through his agency;
hiring, or procuring workers, and includes reft!rring, contract
f) To engage in the recruitment or placement of workers in jobs harmful
services, promising or advertising for employment abroad, whether
to public health or morality or to the dignity of the Republic of the
for profit or not. 4
Philippines;
(2) When ar.y of the following acts which have been declared
g) To obstruct or attempt to obstruct inspection by the DOLE Secretary or
prohibited by law,5 are committed by anv person, whether a non-licensee, non-
by his/her duly authorized representatives;
i holder, licensee or holder ofauthoritv:
h) To substitute or alter to the prejudice of the worker, employment
I (a) To charge or accept directly or indirectly any
amount greater than that
contract prescribed by the DOLE from the time of actual signing
SPecified in the schedule of allowable fees prescnbed by the Secretary
thereof by the parties up to and including the period of the
expiration of
of Labor and Employment, or to make a worker pay or acknowledge
the same without the approval of the DOLE.' .
any amount greater than that actually received by him as a loan or
All the foregoing acts are embodied in Article 34 of the Labor Code, with
advance;
the exception of certain acts which apply exclusively to overseas employment 2
2. DISTINCTION BETWEEN THE TWO (2) SETS OF ACfS.
The acts described in No. 1 above are, as a general rule, lawful and
valid 1 The
openrg paagraph d Article 34 (11001li!ed Pradices) stares: 't shal be ooi<MU for
atl'f ilcividual, El1tily, li:ensee, or
acts of recruitment and placement of workers for local employment when
holderd dlorilyl.r
2 Sediln6dRA.No.8042,asanendedlrfSeclion5dRANo.10022.
undertaken by licensees or holders of authority to recruit. What makes it unlawful
3
The tern 'aJhriy' is defiled it Artie 13(1) of 11e Latxr Code v.ti:h relefs1D a!
bunent issued by ltle llepiltment d
and therefore constitutive of illegal recmitment is when the same acts are
undertaken
Labor a:toizilg aperson or association merY:Jage it recruilmoot ir1d
placementadivities as apMie recruitment entity.
1
2
by any of the following: (a) A non-licensee; or (b) A non-holder ofauthority.
ld.
Such as the~ ac1s:
aso
Sedion 1, Rule IV, Ormllus ~les and
Regulam ~ting the M,jran!Worke!S and <Ne'seas ~Pdd1995, as Amended byRA tb.10022,
issued
on Jlif a, 2010. See also Section 76, Rule x, RevisEd POEA Rules ir1d P.egwms
Govemi1g the Reauirrent and
Regulations Governing Ule Reallirnenl and Empbymeot of Se<mrs issued on Fexuay 26,
2016.
As e1Ull'l1e!lEd under Article 34 of ltle t.m Code Wid now pll'Jided IJ1der Seclion
6 of RA No. 8042, as amended by
'(h) To fail to file reports on the status of~ placaneot vacancies,
remillllnre cl ~n exchange eamilgs,
~!rom )lls, depa1ures ir1d such olher matters a mrrnaoon as may be requred lrf
the Sel:relal)' of lalxJ.
'fj) To become M officer a member of the ~load of trrt caporation engaged
i'llravel ~ oc mbe engaged direclly or
i~'
Section 5 d RA. No. 10022: See also Section 1, Rule IV, Otmbls Rules Wid
Regulations hnplementilg the M;Jrant
WOOie!S and Overseas Alpines Act ol1995, as Amended lrf RA No. 10022, issued on Ju~
8, 2010. See also Section 76,
-.,~
ildirectly illtle ~of atravel agency; and
Rule X. RMed POEA Rules and RegOOlions Governing lhe Recruilment and ~ cll..ald-
llased Overseas
·~)To v.ithhold or deny travel doo.Jmenls from appicanl Y«llKees before
depmefor nmeay or finMcial cooside!ations
Aipino Wcxkers of 2016: Section 72, Rule X, 2.016 Re\ted POEA Rli!s and
Regllati:lns Govemrg llie Reauiment and
other 11an !lose auttlorizg;f under lh5 Code and its~ rules and regulalions."
~of Seafarels issued on February 26, 2.016.
I
~ CHAI'TERII
ri
~
(c) To give any false notice, testimony, information or document or
with his docwnentation and processing for purposes of deployment, in
cases where the deployment does not actually take place without the
'
commit any act of misrepresentation for the purpose of securing a
license or authority under the Labor Code, or for the purpose of
worker's fault;; and
i
documenting hired workers with the POEA, which include the act of
(n) To allow a non-Filipino citizen to head or manage a licensed
l
reprocessing workers through a job order that pertains to non-eXistent
recruitment/manning agency. 1
work, work different from the actual overseas work, or work with a
2. DISTINCTION BETWEEN THE TWO (2) SETS OF ACTS.
different employer, whether registered or not with the POEA;
The distinction applicable to illegal recruitment for local employment
(d) To induce or attempt to induce a worker already employed to quit his
earlier cited equally applies to the above two (2) sets of acts constituting
illegal
employment in order to offer him another unless the transfer is
'
designed to liberate a worker from oppressive tenus and coi1ditions of
above constitute illegal recruitment only when they are undertaken by any of the
employment;
following: (a) a non-licensee; or (b) a non-holder of authority; and the acts
(e) To influence or attempt to influence any person or entity not to
enumerated in No. 2 above, being prohibited, are considered illegal recruitment
employ any worker who has not applied for employment through his
when they are committed by any of the following: (a) any person/ regardless of
agency or who has formed, joined or supported, or has cuntacted or is
whether: (b) a licensee; (c) a holder of authority; (d) a non-licensee; or (e) a
non-
supported by any union or workers' organization;
holder of auihority.
(t) To engage in the recruitment or placement of workers in jobs harmful
3. PROHIBITED ACTIVITIES.
to public health or morality or to the dignity of the Repubiic of the
To the above enumeration of acts constituting illegal recruitment, the
Philippines;
following prohibited acts wem added by R.A. No. 10022: 3
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor
(1) Grant a loan to an overseas Filipino worker with interest exceeding
and Employment or by his duly authorized representative;
eight percent (8%) per annum, which will be used for payment of
(h) To fail to submit reports on the status of employment, placement
I legal and allowable placement fees and make the
migrant worker
vacancies, remittance of foreign exchange earnings, 5eparation from
i issue, either personally or through a guarantor or
accommodation
· jobs, departures and such other matters or information as may be
i party, post-dated checks in relation to the said
loan;
required by the Secretary of Labor and Employment;
(i) To substitute or alter to the prejudice of the worker, employment
! (2) Impose a compulsory and exclusive arrangemellt whereby
an
i
contracts approved and verified by the Department of Labor and
.Employment from the time of actual signing thereof by the parties up
(3) Refuse to condone or renegotiate a loan incurred by an overseas
to and including the period of the expiration of the same without the
Filipino worker after the latter's employment conttact has been
approval of the Department of Labor and Employment;
G) For an officer or agent of a recruitment or placement agency to
become an officer or member of the Board of any corporation engaged
t ld.;kl.;ld.;ld.;ld.
departure for monetary or financial considerations, or for any other
2
The w.xd 'person' may ref;!r to eiU1er "' 'ildMduar or 'entity' per Ali:le 34 d !he
11tor Code. This is so be:ause lhe
reasons, other than those authorized under the Labor Code and its
opening paa;Jraph of this aJ1ide (ProhiJited Practices) slates: 'K shal be unlawful
for artf ~ enliy, l.icensee, or
( holder d authorily[.r
inlplementing rules and regulations;
-e: 3
Sec00n 6 of RA No. 8042, as amended by Section 5 d RA No. 10022; See also Se<fu11,
RUe IV, Qml)us Rules illd
(1) Failure to actually deploy a contracted worker without valid reason as
RegutaOOns lmplemeoting lhe Mgrant Wake!S il1d OvefSeas Fipinos M. of 1995, as
Amended by RA No. 10022, issued
determined by the Department of Labor and Employment;
on Ju~ 8, 2010. See also Section 76, Rule X. Revised POEA Rules Mel Regulations ~
l1e Reauiboont and
L.
CHAI'TER II
49
However, the Supreme Court ruled that Section 6 is constitutional and thus
ratiocinated:
I I
or not they commit the wrongful acts enumerated in that section. On the
are gJilty of illegal recruitment only if they commit any of the wrongful
applications; and
acts enumerated in Section 6."
(7) For a recruitment/manning agency or a foreign principaVemployer to
Earlier, the Supreme Court, in the case ofThe Executive Secretary v. The
pass on the overseas Filipino worker or deduct from his or her
salary Hon. CA, 1 has declared
that any issue of validity or constitutionality of the same
the payment of the cost of insurance fees, premium or other
Section 6 and Section 72 of R.A. No. 8042 has been rendered moot and academic
insurance related charges, as provided under the compulsory
worker's since the Court, from
R.A. No. 8042's effectivity on July 15, 1995, had, in a catena
insurance coverage. 1
of cases, applied the penal provisions· in Section 6 and imposed the penalties
An example of a case where the accused was convicted for com.-nitting the
provided in Section 7 thereof. By its rulings, the Court thereby affirmed the
validity
acts enumerated under the provisions of Section 6 (a), (l) and (m) above is Suliman
of the assailed penal and procedural provisions of R.A. No. 8042, including the
v. People/ when: (1) they separately charged the private complainants the amounts
imposable penalties therefor. 3
of Pi32,460.00, Pl20,000.00 and P21,400.00 as placement fees; (2) they failed to
3.
actually deploy the private complainants without valid reasons, and; (3) they
failed
to reimburse the said complainants after such failure to deploy.
~: TYPES OF ILLEGAL RECRUITMENT
4. CONSTITUTIONALITY OF "ILLEGAL RECRUITMENT" AS
i AND THEIR ELEMENTS
DEFINED IN SECTION 6 OF R.A. NO. 8042.
~
ii 1. TWO (2) TYPES OF ILLEGAL RECRUITMENT.
In Republic v. PASEI,l respondent PASEI filed on August 21, 1995, a
3-A.
J I. CONCEPT.
1 Jd.;ld.;ld.;ld.
Simple illegal recruitment or simply, illegal recruitment, covers any
2 Su1imir1 v. People, G.R No. 190970, Nov. 24, 2014.
recruitment and placement activity undertaken by a non-licensee or a non-holder of
Republic of 1l1e PllirqlPiles v. Phq>pile Assodation of Seivice Exporte!s,
Inc. (PASEI), G.R No. 167500, Nov. 13, 2012.
This is ooe of 1l1e cases consolidated -Mth olha' siniar cases in Hon. Slo.
Tomas v. Sal<¥:, GR Nos. 152642, 152710,
167500,18297S.79&184m.99, Nov.13,2012.
1 GRNo.131719,May25,2004.
4 NOOl: As deli1ed in People v. EfV. Diaz, 328 Phil. 794, 806 [1996J, a I'IOO-
I'mlsee or norHloldef of d10fity means any 2 Enlitled 'Penalties.'
peiSOI'I, caponmn or entity v.ilich has n<t been issued a valid lkense or
aJihority kl enQWJe In reauilment illd placement 3
For ilslance, 1l1e validity of Sedion 6 IX RA No. 8042 v.l1ich proWies llat
eJ1'4lloyees of reauilment CJJencies may be
by lhe Secrelay of l..lilor, or v.1lose license 01' authOOty has been
suspended, reo.ded or canceled by the POEA or lhe
51
The above enumeration of the elements curiously failed to consider that under the
broadened' concept of illegal recruitment under the 1995 2 law, RA. No. 8042,
licensee or holder ofauthority.
2. ELEMENTS PER JURISPRUDENCE.
Il which, it must be noted, has not been changed by the latest amendment
introduced
thereto in 2010 by RA. No. 10022, the term "illegal recruitment", unlike illegal
as ar.:J.ended, enumerates fourteen (14) acts or practices [(a) to (n)] plus seven
(7)
''recruitment and placement" defined under Article 13(b),5 or any
1
Peqllev. Bodozo, G.R No. 96621. O:t.21, 1992,215 SCRA33.
~ The Supreme Court has decBed llat R A. No. 8042 has broadened the
concept ci ilegal recruitment lllder the Labor
~
3 Deti1ed i1 Altide 13 (d) ci toe Llilcr COOe, as anended, as 'a doameot
issued by the IJepartnent ct labor authori2i1g a ~ COOe. (People
v. Abella, G.R ttl. 195666, Jan. 20, 2016; People v. Daud, G.R No. 197539, June 02,
2014; People v.
..
peson oc entity tl ~a Jlli'.'* af4ll7jment agency.' (See People v.
<:alacmg, G.R No. 113917, Jutj 17, 1995, 246 !i' Oalen,
G.RNo.173198,.111le1, 2011; ~v. Nogra, G.R No.110834,Aug. 29, 2008).
2 JIJle 7, 1995.
SCRA530).
~
;;. 3
4 Deti1ed i1 Altide 13 (f) ctthe laborCOOe, as amended, as 'a dooJmentissued
by the Depar1meot ci labor authori2i1g a Mirth 10, 2010.
peson oc association t> enga:~e i1 reauilment md pa:ement ~as a¢.'ate
recruilroont entity.' (See People v. ~ 4
5
~ ).
See e!1IM11efl!b1 under SecbJ 6 ci RA No. 8042, as amerded by Sec00n 5 of RA No.
10022; See also Section 1, Rule
5 Article 13(b) ci D1e labor Code deli1es 'iecrui1ment a1d placemenf as: lvrf
act of canvassi"g, ~. contacli'g, r-J, Ormibus Rules
Cl1d RegiAa&x1s ~ling V1e l.tJr.rt WOikers Md Ovelseas F~ hl of 1995, as Amended by
mpor&YJ, utilzilg, hii'g, (J ~ 'MX!Ie!S, a1d i1dudes refeq;, <Xlll1Iact
sel'lk:es, prorrisiY;! (J Mtsirg b' RA No. 10022,
issued oo .kif 8, 2010. See also Secli:ln 76, RUe X. Revised POEA Rules Cl1d
Reg(ja(joos GovemiYd the
• employment. b3ly oc abroad, Ytt1elher lor profit oc not Provi:led,llal2lrf
PefSOI1 or entity m, i12lrf manner, <A!ers or Reat.ifment Mel ~
ci l.il1d-Based Overseas ~ WOikers ci 2016; SecOOn 72, RUe X. 2016 Revised POEA
proo1ses b" afee efl'4llcyment 10 tv.o or more petSOOS shall be deemed
E".Ja:Jed il reauirnent ood placement
Rtk.s Mel Reguialioos ~ the Retrui!ment and ~of Seafarels issued on February 26,
2016.
6
See ern.meration IJ1der Article 34 ct l1e labor Code a1d oo.v pltM:led
ll1der Section 6 ci RA. No. 8042, as llnended by
Sedion6ofRA.No.8042,asanendedbySection5ofRA.No.10022: .
7
Sedion 5 ci RA No. 10022; See also Section 1, Rule IV, OrrniJus R!ils a1d
Regulations ~ the Mgrant People v.
Tolentino, SUjlfa
8
Wolkefs Md ~ Fiipilos Pd. of 1995, as Amended by RA No. 10022, issued oo
Ju~ 8, 2010. See also Section 76, SecOOn 6 of RA
No. 8042, as anended by Section 5of RA No. 10022.
Rule X. Revised POEA Rules in! Regulations GMmi1g the Recninent a1d ~ ct
l.ald-Based 0ie1seas 9 ld.
10
~ WOike!S It 2016; Section 72, IUl X. 2016 Revised POEA RUes Md RegulaOOns
~ U1e Ra:ruilment and Peoplev. Tolentino,
supra.
11 ld.
L
Employmeot ci Seafllel5 issued on Februaly 26, 2016.
II CHA~TER
II
53
'I
any of the acts enumerated under Section 6 ofRA. No. 8042, as amended. On the
No. 3 above is a significant element considering that in illegal recruitment
other hand, a licensee or holder of authority is also liable for illegal
recruitment for cases, the tota! number
of recruiters or the persons victimized is detenninative of the
overseas employment when he or she undertakes any of the prolubited acts or
nature of the crime. Thus, where illegal recruitment is committed against a lone
practices listed under Section 6 of RA 8042, as amended. 1 Consequently, if a
victim, the accused may be convicted of simple illegal recruitment only, which is
recruiter is charged with violation of any of the prohibited acts uuder Section 6,
as punishable with a lower penalty. 2
Corollarily, where the offense is committed by or
~
applies to recruitment for local employment where the 2014 Revised Rules explicitly
EMPLOYMENT.
states that the acts enumerated thereunder "shall be unlawful when committed by
Although the cases surveyed where the foregoing elements were asserted
any person, whether or not a holder of a license or authority.,J
by the High Court involve recruitment and placement activities for overseas
Moreover, since illegal recruitment becomes qualified if committed by
employment, the same concept and principles may well apply with t.i.e same force
three (3) or more recmiters (syndicated) or when there are three (3) 01 more
and effect to those conunitted for local employment.
recruitees (large-scale), as the case may be, the total number of recruiters and/or
rew1itees in order for a case to remain one for simple illegal recruitment should
not
3~.
it 1. ELEMENTS.
recruitment should now be re-stated as follows:
r,
~ The first two (2) elements for simple illegal recruitment as cited
ar..d
(l) That the offender has no valid license or authority required by law to
ii
A third element is added4 regarding the requirement that there be at least three
(2)
workers;
li recruitees, in the case of large-scale illegal recruitment, or at least three
(3)
~
(2) That the offender undertakes any activity within the meaning of
~ recruiters, in the case of syndicated illegal recruitment.
recruitment and placement defined under Article l3(b), or any
~ 2. WHEN CONSIDERED ECONOMIC SABOTAGE.
prohibited practices enumerated under the law, 4 irrespective of
whether ~
qualifying circumstances:
II
1
2
ld.
People v. Jimly Ari;J, GR No. 181245, Aug. 06, 2008; ~le v. tb;}1a, GR No.
170834, Aug. 29, 2008; People
Iw
Accolding kl People v. Sadiosa, G.R No. 107084, Miff 15, 1998: 'Wlen 1he peiSOIIS
recruited ae lllee or 100re, 1he aine
2 See People v. Or1iz-Mjake, G.R Nos. 11533S-39, Sept 16, 1997, 344 Phil. 598, ~.
tl ~ case, f1e proolision
2012,680 SCRA 575, 587, v.Me lhe same pronouncement was eiriermade.
CHA~TER II
54 BAR REviEWER ON LABOR LAW
55
should not have been qualified into illegal recruitment by a syndicate since there
was
by a group of three (3) or more persons conspiring or confederating with one
no proof that they acted in conspiracy with one another. However, the acts of
another. 2 The law, it must be emphasized, does not require that the syndicate
should accused-appellants
showed unity of purpose. Guevarra would visit each of the
recruit more than one (l) person in order to constitute this crime. Recruitment of
one complainants in their
houses for several times, convincing them to work abroad, and
giving them the impression that she had the capability of sending them abroad. She
(1) person would suffice to qualify the illegal recruitment act as having been
would accompany them to the house of the other accused, spouses Bea, who, in tum,
committed by a syndicate.
would collect the placement fees and process the passports and plane tickets. All
The core of this kind of illegal recruitment is the conspiracy among the
these acts of the appellants established a common criminal design mutually
perpetrators, without which, no syndicated illegal recruitment could be committed.
deliberated upon and accomplished through coorciinated moves.
Under Article 8 of the Revised Penal Code, there is conspiracy when two or· more
See also PEqlle v. Hema1dez, G.R Noo. 141221·36. !Joo:h 7, 2002 v.11ere llle 3 ~·
IXllM:tion was
aflimed becaJse l has been sulli::ienlly shcMn that U!ey ronspi'ed wi1h eadi ~ il
corwiic:i'g prM!Ie ~t; 1D
;wly for Cll overseas P> ood gNV'g them the gunty that 1hey v.OOd be hied as
tbneslk: ~ il t1att al1hough Uiey
1 M:le 38(b), l..lilor Code; See aso Sectioo 2. Rule rv. Oimibus Rules em
Regootions ~ ttte Mgla'lt WorKers
I were net l:ensed 1D do so. They were hekl iable lor legal reauilment
aJilll'iEd by a syrD:ate and were meled 1he
ald Overseas Ff~pinosActof1995, as Amended by RA No.10022, issued on Julf8,
2010.llms klpointoutthatlherei;
no sirlb' proviSion on illegal recMiment i'IvWirg econorric sabolage (large-scale
oc syndk:ated) i1 both 1he Revised POEA
I 2
penalty of lfe ir¢sarnent and afine of F'100,000.00 under Artk;le 39 ollhe t.axr
Code.
Peoplevs.GUev!rta;GRNo.120141,Ap!i121, 1999.
Rules em Regulations GoveiTt;;llle Reauilmert ald EfTllklyment of la1<Hlased
Oveseas ~ Wallers d 2016 ald
the 2016 Rellised POEA Rules axl ReglMtions Go'iemi'g the Recruibnent !lid ~ d
Seafcrers issued on
Februay 26, 2016. See Peqlle v. ND;jra, G.R No. 170834, Aug. 29, 2008; People v.
Sadilsa, G.R No. 107084, May 15,
I The three (3} ~ illhis case ere Lana B. Gueva'a, Josie Bea and flEOo Bea,
Jr.
Article 38(b}, t.axr Code; Sedkx16, RA No. 8042. as !lllellded by SecOOn 5, RA. th
10022 !Marth 8, 2010]; See aso
Sedkx12, Rule t~~, cmmus Rules Cl1d ReglMtions ~the lliJr.lltWcrters ax1
CNerseas ~Act 1995, a
II
1998; People v. Goce, GR No. 113161, Aug. 29, 1995, 247 SCRA 780; Peqlle v.
Avenda'lo, GR Noo. 96277-82, Dec. 2, as Nnended by RA
No. 10022, issued on Ju1i 8, 2010; Peoplev. Cagailgal, GR No. 198664, Nov. 23,
2016; Peqlle v.
1992,216 SCRA 187.
Bayl<er, GR No. 170192, Feb. 10, 2016; People v. Abela, G.R No. 195666, Jat 20,
2016; PeqJie v. Taemno, G.R No.
z M:1e 38(b}, l..lilor Code; Sectkr16, RA No. 8042, as anended by SecOOn 5, RA No.
10022 J.1irdi 8, 2010]; SecOOn 6, 208686,JII[01,2015;
Peoplev. Fenmdez, G.R No.199211,Jt~~e4,2014, 725SCRA 152, 156-157; PEqllev. Rea, GR
RA No. 8042, as anended by Sectioo 5, RA No. 10022 [Mcrth 8, 2010]; See also
Sectkrl2. IU! rv, OnriJus Rules ald No. 197049, June
10, 2013; PEqJie v. Espenla, G.R No. 193667, Feb. 29, 2012; People v. Tuglilay, G.R
No. 186132,
Re:J~ ~the tq.riWallers Md <Nerseas Fipiios Act or 1995, as AmeRied by RA No.
10022, issued
Feb. 27, 2012; ~v. Ochoa, GR No.173792, Aug. 31, 2011; Cl1d Peoplev. Dalen, G.R
No.173198,.11Jne 1, 2011;
Peoplev. Pbal, G.R No.168651, Mcrch 16, 2011; Peqllev. DOilingo, G.R No.181475,Apri
7, 2009; Peqlle v. Lo, G.R
onJltf 8, 2010; See Peoplev.lid, G.R No. 195419, Oct 12, 2011;f'lqllev. Gallo,
G.R ~ 187730,29 June 2010,622
SCRA439; Peoplev. Soliven, G.R No. 125081, Oct 3, 2001; Peoplev. BoOOzo, G.R No.
96621. Oct 21, 1992,215 SCRA
33.
I No. 175229, Jat 29, 2009; People v. GlrlgM, G.R No. 178204 [Formerly GR
No.156497)] Aug. 20, 2008; People v.
Bartolome, GR No. 129486, Jltf 04, 2008; People v. Cesar, G.R No. 176737, Apri 16,
2008; People v. Olenro, G.R No.
3 kl People v.l.ago, G.R No. 121272, June 6, 2001, the H'gh COlli. discussed
conspiacy i11Iis 1\ise: 'The elements of
conspiracy ere llle ~: (1} lw:l or more peiSOI1S came 1o Cll agreemoot, {2} the
agreement concerned tie coornission
of afelony, and (3} llle execution d llle felony was deOOed upon. PlOOf of llle
conspiracy need net be based on direct
127848. Jltf 17, 2003; People v. Ballesteros, G.R Nos. 116905-908, Aug. 6, 2002;
People v. Oela Piedra, G.R No.
121m. Jan. 24,2001,350 SCRA 163; People v.l.ixem, G.R No. 132311. Sept 28, 21XX!;
People v. G1rrboa. G.R No.
135382, Sept 29, 2(XX), 341 SCRA 451; People v. Castillon; GR No. 130940; Apli 21,
1999; People v. Too T1011Q Mef'9,
G.R. Nos. 120835-40, Apri 10, 1997; People v. Goce, G.R No. 113161, Aug. 29, 1995,
247 SCRA 780; People v.
eVidence, because l may be iiferred from 1he parties conduct i'I<i:atir'J
aCOil1I10I1 uroderstlldiYJ among tlemselves IWh
respect 1D the oorrvrisskJn of llle airoo. Neither is l necessasy 1D show that
two or more peslllS met lrx;lether ood entered
il1D Cll explicit agreement setti1g oot 1he detafts of oolllli8Nful scheme oc
objecltie 1D be C!lli!d out. The conspiiacy may be
5 People v. Jimny ~. G.R No. 181245, Aug. 06, 2008; People v. Honrada, GR Noo.
112178-79, April21, 1995, 243
SCRA 640; PEqllev. Reyes, G.R. No. 105204, Maid\9, 1995, 242 SCRA 264; See also
Peqlle v. Oltiz-Miyake, G.R Nos.
deduced tool 1he !rode 'l manner i1 v.ilich 11e aime was peq>ellaled; l may also
be ilfe!red from l1e acts of the accused
~ e~orCOI11TOO ~ Md desi;!n, concerted adion oodronmu!Wf cifi:lterest.'
l~"~
I
I
~-
CHAPTER II
Section 6 in relation to Section 7 of R.A. No. 8042 for "large scale illegal
57
large scale, sentencing her to suffer the penalty of life imprisonment and ordering
m
argument that the trial court erred in convicting them of illegal recruitment in
large her to pay a fine and actual
damages."
scale by cumulating the eight (8) individual informations filed by private
3. APPLICABILITY TO BOTH WCAL AND OVERSEAS
complainants. It noted that each information was filed by only one complainant
As EMPWYMENT.
3
held in People v. Reyes:
Albeit the illegal recruitment cases involving economic sabotage studied
"xxx When the Labor Code speaks of illegal recruitment
'committed against three (3) or more persons individually or as a
group,'
illegal recruitment 3 But since the governing law, Article 38 of the Labor Code,
scale illegal recruitment In other words, a conviction for large scale
illeg:U recruitment must be based on a finding in each case of
illegal
recruitment of three or more persons whether individually or as a
group."
&
contains a provision thereon, th.e same should likewise apply to iocal illegal
recruitment cases.
2.3. SYNDICATED VS. LARGE-SCALE.
3-C.
As distinguished from illegal recruitment committed by a syndicate,
illegal SOME
PRINCIPLES ON JLl,EGAL RECRUITMENT
recruitment in large scale may be committed by only one (1) person. What is
important as a qualicying element is that there should be at least three (3)
victims of 1. JURISPRUDENTIALLY
DECLARED PRINCIPLES.
4
such illegal recruitnent, individually or as a group.
• Mere impression is sufficient to eonstitute illegal recruitment To convict a
The number of offenders is not material in illegal recruitment in large
scale. pei"oOn for illegal
recruitment, it suffices to show that he gave the victim the
As held in People v. Laurel/ the number of offenders, whether an individual or a
l distinct impression that he had the power or ability to send him
abroad for work
II
syndicate, is clearly not considered a factor in the determination of the
commission such that the
latter was convinced to part with his money in order to be
of illegal recruitment in large scale. Counsel for accused-appellant was misled by
the employed. 4
fact that illegal recruitment in large scale is defined immediately after illegal
• Mere promise of employment abroad amounts to recruitment To .be
recruitment by a syndicate. However, the only reason therefor is that they are
both engaged in the
practice of recruitment and placement, it is plain that there must,
considered offenses involving economic sabotage as the law itself so provides.
In situations where there are three or more illegal recruiters and
there are
three or more recruitees involved in one case, the illegal recruiters may be
convicted i
either as a syndicate or in large-scale, depending on the evidence presented. In
any
6
case, the penalty imposable is the same for both since the law does not make any
I penaly sllall be irclooed f the persoo legatj recniled is less am
ei;ID1 (18) yellS rJ. age " IXXII16ld by a1100-
I
distinction between these two.
tensee "noo-tdler of arthorily.'
~.
rJ. the ClrrrDJs Rules <H1d Regulations ln'4Jiernen!i'l;l the M;}Iant Wcxkers Md
OveBeas A~os Pd. r/.1995, ao; Amended
Peojlle v. Taglba, G.R Nos. 95207-17, Jan. 10,1994,229 SCAA 188; Peqllev.
Bodozo, G.R No. 96621. Oct 21, 1992, by RA No. 10022,
issued on Jutt 8, 2010, there is aso no sinilcr p«Msixx on legal IeaUifJnert
iMlNiv;l economc
215SCRA33;Peoplev. Bugaoan, G.RNo. 87542,MM:h6, 1990, 183SCRA62.
~
~ sabofage (1a'ge-stale " syndicated) i1 both the Reo.ised POEA rues and
Rsgwms GalemilQ 11e Reauiment and
s G.R. No. 120353, Feb.12, 1998.
/.;' Err(>loyrnent d l.a'd-Based Overneas Ripino WIXXers rJ. 2016 and the
2016 Re.tal POEA Rules Md Rei}Jations
Sedioo 7(b) of RA No. 8042, ao; anended by Secbl6 rJ. RA. No. 10022,
jl(tNkleS: "(b) Tl'e penaty r/.lfe ~ ~~ GcNemi1g the
Reauilmert and ~klyment rJ. SeamiS issued on February 26, 2016.
Md a me of rd. lesS than Two milion pesos (P2~~:00) ra mere tal FIVe mllion
pesos (1'5,000,000.00) sha1 be
I•'
iq People v. Fem<lldez, G.R No. 199211, Jllle 04, 2014; People v. Abat, GR
No. 168651, tiM:h 16, 2011; People v.l.aogo,
~ Wlegal recruilmert OOlSti1u1es eccaorrt S!ilciage as defiled tlereil;
FW~kled, howe'ler, That toe ImXirum ~
GR No. 176264, Jan. 10, 2011; carmen Ritualov. People, G.R. No. 178337,.klle 25,
2009;
~
L
Ii
58 BAR REVIEWER ON LABOR LAW
CHAPTER!!
or license from the POEA. Even in the absence of money or other valuables
recruiter whether locally or abroad.'
'9. given as consideration for the "services" of the recruiter, he is
considered as
• There is no need to show that accused represented himself as a liceused
being engaged.in recruitment activities. 2
recruiter. Evidencewise, it suffices that the prosecution has established
that the • Absence of receipt not
essential. Receipt issued by the recruiter is a
POEA did not authorize or license the recruiter to engage in recruitment
( documentary evidence that proves that he/she is engaged in
recruitment and
activities and that despite the absence of such authority or license, he
still 3
recruitment fees is not material nor fatal. 4 The absence of receipts to evidence
• Referrals may constitute illegal recruitment. Article l3(b) of the Labor Code
includes "referrals" in the definition of what constitutes ''recruitment and
placement.',3 In convicting the accused-petitioner in Rodolfo v. People,4 the
Supreme Court declared that the act of referral within the contemplation of
the
payment to the recruiter would not warrant an acquitta~ a receipt not being fatal
one person recruited is sufficient to convict one for illegal recruitment 7 The
~
employer, placement officer or bureau." Petitioner's admission that she
brought non-prosecution of
another suspect provides no ground for an accused-appellant
private complainants to the agency whose owner she knows and her acceptance
to fault the decision of the trial court convicting her. 8
of fees including those for processing betrays her guilt.5
• Execution of affidavit of desistance affects only the civil liability but has no
• Cooduct of interviews may amount to illegal recruitment. The conduct of
effect on the criminal liability for illegal recruitment. 9
interviews by the representatives of the foreign principal amounts to illegal
recruitment under Section 6 ofR.A. No. 8042. 6
2. ON NON-LICENSEE OR NON-HOLDER OF AUTHORITY.
• It is immaterial whether the recruitment is done for profit or not. The
a. Meaning.
argument of the accused-appellants that there was no proof that they received
The term ."non-licensee" or "non-holder of authority" refers to any
money from the private complainants deserves no <;redence because money is
person, partnership or corporation With no valid licensei 0 or authority" to engage
in
not material to a prosecution for illegal recruitment considering that the
definition of "illegal recruitment" under the law includes the phrase
"whether i recruitment and placement of
OFWs or whose license or authority is revoked,
li
for profit or not. "7
recruitment/manning agencies registered with the POEA. 12
• Actual receipt of fee, not an element of the crime of illegal recruitment.
Thus, even if the accused recruiter did not actually receive any fee, his
Peoplev.llallesleos, G.R Nos. 1169J5.9JS, Aug. 6, 2002.
representation that he had the capacity to secure employment for private
• Peoplev.Jarilsa, G.R No. 169076,Jan. 27,2007.
complainants made him liable for illegal recruitment since he had no
authority 3
Peoplev.~.G.RNo.198664,Nov.23,2016.
People v.1bal, G.R No. 168651, Mlfdi 16, 2011; People v. Bilaber. G.R Nos.
114967.s!. Jan. 26, 2004; People v.
Ii
1 People v. Laogo, G.R No. 176264, Jal. 10, ~11; People v.l:mlilgo, G.R No. 181475,
April7, 2009; People v. Galardo, ForUla, GR. No.148137,Jal.16,
2003; Peoplev.Juego, G.R No.123162. Oct 13,1998.
G.R Nos. 140067-71, Aug. 29, 2002,436 Phi. 698, 711; People v. Angeles, G.R No.
132376, Apri111, 2002,380 SCRA s Peoplev. PatlaleM, G.R No.108107,
.kl1819, 1997.
7
519, 526-527.
Peoplev. Pans, G.R Nos. L-58674-77, JlJtf 11, 1986,142 SCRA664.
8
2 People v. Balemos, G.R Nos. 116905-00S,hlg. 6, 2002; People v. Clilac<nj, G.R.
No. 113917, July 17, 1995, 2-16 People v. Sendon, G.R Nos.
101579-89, Dec. 15, 1993, 228 SCRA 489; See also People v. Goce, G.R No.113161,
AIJJ.
SCRA530.
29, 1995, 247 SCRA 780.
3 Article 13(b) a 11e LaJoc Co:le deftnes "recruiiment ood placement.' as '{a)\)'
a:t 01 ~. enlisfug, ~.
~. uliizilJ, hiv-19 a procuring wern. ood mtdes referrals, mact services,
jli'OOisilg or ~ ill'
erf1)io)moot.localy or cmJad, l'lilether for proft or not.'
~-
9 P.v.l..a.lei,G.RNo.120353,Feb.12,1998.
0 The tenn 'bnse' Iefeis tJ 11e document lisued by toe DOlE Secretly aJIIorizh;j
apersoo, ~ (J oorporation to
operae ap!We ~ CJJeflCY. (Sectm1(w). RUe II, Qmi!us Rules ood RegiAaOOns ~ lhe
~ G.R No. 146964, kig. 10, 2006.
12
Wakets!lld Overseas Fipim Acta 1995, as hnended by RA No. 10022, issued m Ju~ a.
2010).
G.R No.171644, Nr:Neii'dler 23,2011,661 SCRA 143, 154-155; carmen Ri11100v.
People, GR No. 178337, June 25, Ontj the tenn 'ncJn.i:ensee"
ll'Jnot "nm-hoodera aufhcxi!y'l\tiich is defined il Section 1(o::), Rule II,
Orrnbus Rules Md
2009; People v. Valenciano, G.R No. 180926, Dec. 10, 2008; People 'i. J;rnOOsa,
G.R No. 169076, Jan. 23, 2007, 512 Regulatioos ~ the Mgrnnt WalletS
and <Nerseas Flipinos Acid 1995, as Amended by RA No. 10022, issued
SCRA 340, 352; Rodolfo v. People, GR No. 146964, Aug. lu, 2006; People v.
Sagaydo, G.R Nos. 12-1671-75, Sept 29, f' on Jlij 8, 2010, See also
lhe delilition ci the lelm "nooi::ensee' it No. 25, Rule II, Revised POEA Rules ood
Regulations
The acts mentioned in Article 13(b) of the Labor Code can lawfully be
Illegal recruitment and estafa cases may be filed simultaneously or
undertaken only by licensees or holders of authority to engage in the recruitment
and separately. 1 The
filing of charges for illegal recruitment does not bar the filing of
placement of workers. 1 To reiterate for emphasis purposes, non-possession of a
estafa, and vice versa.1 lllegal recruitment and estafa are entirely different
offenses
license or authority to recruit is, under the law, an essential ingredient of the
crime of
illegal recruitment penalized under the law.
2
!.(
I*
,,
-~
both illegal recruitment and estafa. The reason therefor is not hard to discern:
illegal recruitment is malum prohibitum, while estafa is malum in se. In the first,
the
criminal intent of the accused is not necessary for conviction; the fact alone that
the
~-
of the crime of illegal recruitment.
~~ accused violated the law warrants his conviction.6 In the second, such an
intent is
4.
~
imperative.7
ILLEGAL RECRUITMENT VERSUS ESTAFA
It must be stressed that not all acts which constitute the felony of estafa
under the Revised Penal Code necessarily establish the crime of illegal recruitment
1. FILING OF ILLEGAL RECRUITMENT CASE, NOT A BAR TO FILING
under the Labor Code. Estafa is wider in scope and covers deceits, whether related
OFESTAFA.
or not related to recruitment activities.8 This is clear from the following
elements of
R.A. No. 10022 has introduced an amendment to R.A. No. 8042, which
estafa, in general, to wit (1) the accused defrauded another by abuse of confidence
now statutorily recognizes the jurisprudentially settled fact that the filing of
an or by means of deceit;
and (2) the offended party or a third party suffered damage or
offense punishable under said law, such as for illegal recruitment, "shall be
without prejudice capable of
pecuniary estimation.9 However, the elements of estafa by
prejudice to the filing of cases punishable under other existittg laws, rules or
regulations," 5 such as swindling or estafa, under Article 315, paragraph 2(a) of
the l means of deceit under
Article 315, paragraph 2(a) of the Revised Penal Code are the
made or executed prior to or simultaneously with the commission of the fraud; (c).
that the offended party relied on the false pretense, fraudulent act, or fraudulent
Ole em~· i1 No. 31, ~II, 2016 ReVIsed POEA Rules llld Regulalb"ls Gowmi"l;l Ole
Reaui1Jnent llld
Efr4llcrimenl rJ. Seafarers issued on Febnay 26, 2016; See also Sedi:xl1(d), ~
~lilg P.O. No. 1920, .ktj 12, I 1
Syv.People,GRNo.183879}4Jfl14,2010.
ld.
II
1984 Mlele 11e terns "11oMcenSee'llld 'rmholder of illlhorily' a-e defiled as
re!eniYd ., etrt pei50I\ QlJlOI1Ition or 2
entityv.tlk:h has rn been issued avali:l il8lse cr aihait)' 1D engage il
recniJ11ert Clld ~by 11e DOlE Secreay, 3 ld.
crv.tlose il8lse or IIJI1crily has been suspEilded, reYdr.ed cr coocelled by
lie P0EA cr lhe DOLE Secrelary. ~ People v.
Fanclldez, GR No. 199211,.krle 04, 2014; People v. Turda, G.R Nos. 97Q4.4..16,
Jltf6, 1994, 233 SCRA 702;
1 Peqllev.Bodozll,GR No. 96621.Clct. 21,1992.215 SCRA33.
Peoplev.~GRNo.100285,Nj.13, 1992,212SCRA607.
.
z Peoplev. T~uba. GR Nos. 95207-17,Ji11.10, 1994,229 SCRA 188; Peoplev. Sendon,
GR Nos.L-101579-82. Dec. 15, 5 Ci11nen RWl v.
People, GR No. 178337, June 25, 2009; People v. Donilgo, G.R No. 181475, Apri 7,
2009; ~
v. People, GR. No. 179907, Feb.12, 2009; People v. Y!ilut, G.R Nos. 115719-26, Oct
5, 1999. .
3
1993,228 SCRA 489.
Peoplev. Saulo, GR No. 125903. NaY. 15,2000.
~ People v. Ca;jailgal, G.R No. 198664, Nov. 23, 2016; People v. Rea, G.R No.
197049, June 10, 2013; Cannen RibJalo v.
Ifi 6 People v. TeRllOfllda, G.R No. 173473, i)ec. 17, 2008; People v.
Gil1toa, G.R. No. 135382, Sept 29, 2000, 341 SCRA
451,462.
~ 1
People v. Bafesleros, GR Nos. 11fi!K5.908, kg. 6, 2002, 435 f'llil. 205, 228; See
also Peqlle v. Enriquez. GR. No.
People, G.R No.178337, June 25, 2009.
Section 6, RA. No. 8042, as IJT1el1ded by Seclion 5, RA No. 10022.
;!! 127159, Mf( 5, 1999; People v. Reyes. G.R Nos. 10473944, NaY. 18,
1997, 282 SCRA 105; See also People v. Cornia,
s Qt,erMse kllooMl as 'AnHraffickilg ill'e!sons Actol2003.'
GR No. 171448, Feb. 28, 2007, 517 SCRA 153, 167-168; People v. Gharbia, G.R. No.
123010, Ju~ 20, 1999.
1 <Jt,er,o,ise kllooMl as lhe 'Elcpil1ded AnHraiOCkilg il Persoos AclrJ.
2012.' fiis ill Aclexpand'119 RA No. 9208 en1i1led
l'eq>le v. Amaiz, G.R No. 205153, Sept 9, 2015; People v. Tolenlitlo, G.R No.
208686, JIAy 01, 2015; People v. Mateo,
k1stitutional Mechil1ismS b" lhe ProlecOOn llld Support of Trafficked
Pernons, PrMliY;I PeMOOs for ils Vdations and for G.R. No.
198012, ~1 22, 2015; Peqlle v. &Watierra, G.R No. 200884, June 4, 2014; People v.
Espenila. G.R No.
Other Pu!poses.'
193667, Feb. 29, 2012; Peoplev. Tlgli\:rf, G.R No. 186132, Feb. 27, 2012; ~lev.
Ochoa. G.R No. 173792, Al1J. 31,
8 Seclion 8, Rille r-1, O!mbuS Rules and RegootionS ~ 1he tJqil1l WOOiers !
lld Overseas Fiipilos M ol1995, ,, 2011; ll1d People
v. Ocden, G.R No.173198, June 1, 2011; People v. Callais, G.R No. 129070, Mard116,
2001, 354
as Amended by RA No. 10022, issued on July 8, 2010.
SCRA 553; Peoplev. Banzales, G. R No.132289, July 18,2000.
CHAPTER II 63
SAR REviEWER ON lABOR lAW
RECRUITMENT AND PlACEMENT
62
person is convicted for both illegal recruitment and estafa for one and the same
act. 1
means and was induced to part with his money or property; and (d) that, as a result
The initiation of an illegal recruitment case does not bar the filing of estafa
against
thereof, the offended party suffered damage. 1 To emphasize, under this class of
one and the same person since these two crimes are entirely different offenses and
~
estafa, the element of deceit is indispensable. Likewise, it is essential that the
false neither one necessarily
includes or is necessarily included in the other. Double
statement or fraudulent representation constitutes the very cause or the only
motive ~ jeopardy could not result from
prosecuting and convicting the accused-appellant for
I
2
which induces the complainant to part with the thing ofvalue.
both crimes considering that they were entirely distinct from each other not only
Thus, in convicting the accused spouses for estafa in People v.
from their being punished under different statutes but also from their elements
being
Cagalingan/ the High Court found that private complainants were led to believe by
different. 2 A person who is convicted of illegal recruitment may, in addition, be
accused spouses that they possessed the power and qualifications to provide them
with work in Macau when in fact they were neither licensed nor authorized to do
so.
Accused spouses made it appear to private complainants that Beatriz was requested
by her employer to hire workers for Macau, when in fact she was not They even
I"
!1:
convicted of estafa under Article 315 2(a) of the Revised Penal Code. There is no
'·1
needs only to present t!J.e very same evidence proving his commission of the crime
complainants were deceived by accused spouses by pretending that the latter could
of illegal recruitment4 It is thus enough to show thct the recruiter and his cohort
arrange their employment in Macau, China. With these misrepresentations, false
acted with unity of purpose in defrauding the victims by misrepresenting that they
assurances and deceit, they suffered damag~s and they were forced to part with
the!r
had the power, influence, agency and b1JSiness to obtain overseas employment for
hard-earned money, as one of them even testified to have mortgaged her house and
them upon payment of a placement fee, which they did pay and deliver to the
another, to have borrowed money from a lending institution just to raise the
alleged recruiter. 5
processing fees.
5.
3. ACQlliTfAL IN THE ILLEGAL RECRUITMENT CASE, NOT A BAR
TO CONVICTION FOR ESTAFA.
LIABILITY OF LOCAL RECRUITMENT AGENCY
Considering that illegal recruitment and estafa.are distinct crimes, a
person AND
FOREIGN EMPLOYER
4
acquitted of illegal recruitment may be held liable for estafa A person's
acquittal in l
II
the illegal recruitment case does not prove that she is not guilty of estafa.
Double
a.
5
jeopardy will not set in as discussed below.
SOLIDARY UABll.1TY
4. CONVICTION FOR BOTH ILLEGAL RECRUITMENT AND ESTAFA,
the recruitment/placement agency applies to any and all monetary claims arising out
II overseas deployment'
, SUil1iJl v. P• • G.R. No. 1!10970, Nt:N. 24, 2014; P~ v. Chua, G.R No.
187052, Sepl13, 2012, 680 SCRA 575,
For dooble jecpMfy 1o exS, flee (3) requisites ll'liSt be present (1) a fist
jeopaldy ll1JSt hale altd1ed prilr kl1he secood;
592; Syv. ~. G.R. No.183879,Apri 14, 2010,cililg RR l'iledesv. ~. G.R.
No.156055, March 5, 2007,517
P.
seRA 369; Cosme. Jr. v. People, G.R No. 149753, Nt:N. 'll, 2006, 508 SCRA
190; Jm{)ec Ccnstruclion Corporafion v.
CA. G.R No. 146818, Feb. 6, 2006,481 SCRA 556; See also l'eqllev. Cornia,
G.R. No. 171448, Foo. 28, 2007;
~ G.R. Nos. 141221-36. M!rth 7, 2002; Pef:411ev. Salb, G.R No.125903.
Nov.15,2000; Peoplev. Till TIOilJ
MeriJ, G.R Nos. 12083540, Apri110, 1997; P . v. calonzo, G.R Nos.
11515().55, Sepl27, 1996; People v. Roolero,
v. ~
4
(2) tile fist jeopaldy ll'liSt M.oe been~ 1errrilated; ll1d (3) fie second jeopaldy
l1liSt be fa'fle same offense as l1al i1
fie first
~v.Bayker,G.RNo.170192,feb.10,2016.
People v. ~atiena. G.R No. 200884, June 4, 2014; ~ v. Chua, G.R No. 187052, Sept.
13, 2012; Qrmen Riluab v.
G.R Nos. 97044-46. July 6, 1994, 233 SCRA 713; P~ v. MruYJas, Jr., GR Nos.
91552·55, March 10, 1994, 231 People, G.R No. 176337,
J111e2S, 2009; People v. T~ G.R No. 173473, Dec. 17, 2008.
~ 5
kllplementi1g tile ~rant W<Xke!S and ~ Fqlilos Pd. of 1995, as Amended by RA No.
10022, issued on July 8,
Syv. P~. G.R. No.183879, Apli 14,2010.
2010; See also No. 17, Rule II, Pert I, Revised POEA Rules and RegOOOOrls Gaiemirg
the Recni1ment ll1d ~of
4
5 ld.
i
2. A PRE-QUALIFICATION REQUIREMENT.
nature of liability of partners, or officers and directors with the partnership or
The joint and several liabilities discussed above shall continue during the
entire period or duration of the employment contract and shall not be affected by
any
Ii
proprietor, the managing partner, or the president of the corporation stating that
the substitution,
amendment or modification made locally or in a foreign country of the
applicant• shall assume full and complete responsibility for all claims and
liabilities said contract 2
which may arise in connection with the use of the license2 and assume joint and
several liability with the employer/shipowner/principal for all claims and
liabilities 6. EFFECT OF
COMPULSORY INSURANCE COVERAGE ON JOINT
which may arise in connection with the implementation of the contract, including,
~
<
partners, that they shall be jointly and severally liable with the corporation or
',~
should not affect the joint and several liability of the foreign employer and the
partnership for claims and/or damages that may be awarded to the workers.
4
No. 17, Rule II, Pert I, Revised POEA Rules and ~ Govemilg the Reauirnent iD1 ~of
l..aJd.Based
l..a1d-Based ~ Fiipilo Wtrte; of 2016; No. 20, RIJe II, Pat I, 2016
ReviSed POEA Riles Clld Regulations Overseas ~
Worke; a 2016; No. 20, RiJe II, Pat I, 2016 Revised POEA Rules IVld Regulc'dioos
Govemilg the
G.:wemi'9 the Recruitment and ~of Seafcres issued oo Fellnay 26, 2016. See
also 'Realimrtinl ~of
Seafirefslssued 00 Febuay26, 2016.
SectOO 4(1), Rule II, Pert II, Revised POEA Rules !lld RegUa!iooS QNerni1g
the Recruitment iDI ~ ct Lm 2 Soctioo 10, R.A.
No. 8042, as ;mended by Section 7, RA No. 10022; Section 3, Rule VII, cmmus IU!s !
lld RegUa!ions
Based <Ne!seaS ~ Worke; rJ. 2016; Section 4(F), Rule II, Pat I~ 2016
Revised POEA ~ Clld Regulations ~the WiJill1t
Workers !lld <Ne!seaS ~hi. ct 1995, as Amended by RA No. 10022, issued on Mf 8,
Gowmi1g the Recruitment Cl1d ~of Seafcres issued oo Fellnay 26, 2016.
2010.
3 Soctioo 37-A, RA. No. 8042, as added by Sedion 23, R.A. No. 10022; Sedion 1,
RiJe XVI, Oimllus Rle and
2 SectOO 4(F)(2), Rule II, Part II, 2016 Revised POEA Rules trld RegUalixls
Govemi'g lhe RecnJiment Clld fnllloyment of
Seafarers issued oo Fellnay 26, 2016.
RegtAaOOns ~11ilg lle ~ Wort<e; and CNBseas Fipi1os hi. ct 1995, as Anmded by RA
No. 10022, issued
3 SectOO 4(1){8), Rule II, Pat II, Revised POEA Rules and Regulalioos G!
Nemilg the Reauibnert Clld ~loyment of l.Md- 00 .Mt 8,
2010.
Based <Ne!seaS Flipilo Worke; of 2016; Section 4(F)(3), Rule II, Part II,
2016 Revised POEA IUls Clld Regulations
See ~(f) ctSedion37-A, RA No.8042, asOOded bySection23, R.A. No.10022; SectOO 1(~,
Rule XVI, OlmiJus
GoYemi1g the Recruitment il1d ~of Seaflms issued oo February 26, 2016.
Rules Clld Regulations ~ the Mgrant Worke; iDI Overseas Flipilos Ad. ct 1995, as
Amended by R.A. No.
4 SeealsoSeclion 4(g), Rule II, Pat II, Revised POEARulesiVld RegtJatms ~the
Recruitmentclld Empk7jmentof 10022, issued oo
Ju~ 8, 2010.
5
Lm&sed <Nerseas fii4lioo Worke; ct 2016; Section 4(G), Rule II, Pirt II,
2016 Re.ised POEA Rules Clld Regulations See Section
37-A (6), RA No. 8042, as added by Sedion 23, RA No. 10022; Seem 10(6), RUe XVI,
Ormbus Rules and
GcNemi1g the Recruitment and Err!Jioyment of Seafarefs issued oo Fellnay 26,
2016. '" Regulations
lmplementilgthe MgrantWcners and CNBseas Fipinos Mol 1995, asAmeoded by R.A. No.
10022, issued
s SectOO 10, RA No. 8042, as emended by Section 7, R.A. No. 10022; Section 3,
Rule VII, OiMIJus Rules and RegulationS
~ling the Mglallt WorkeiS and CNE!ISOOS Fffipinos M of 1995, as Amended by
R.A. No. 10022, issued oo Mj 8,
2010.
~ ~
oo Ju~ 8, 2010.
Section 10, R.A. No. 8042, as 8l11el1ded by Section 7, RA No. 10022; Section 3,
Rule VR, Omnilus Rules and Regulations
L
Ride VII, Olmilus Rules and Regulafals Implementing lhe Mglllll Worke;
and CNerneas Fipilos Ad. of 1995, as LlvJd.Based
CNerneas Fipi1o Wo!Xe; of 2016; No. 20, Rule II, Part I, 2016 Reo.ised POEA Rules
and Regula!Xlns
Amended by R.A. No. 10022, issued oo Ju~ 8, 2010.
G!Nerni1Q the Recruilmertinl ~loymerltof Seafcrels issued oo Februaly 26, 2016.
This was, however, not the case in Sunace,1 where the OFW (Divina), a
domestic helper in Taiwan, has extended her 12-month contract after its expiration
for two (2) more years after which she returned to the Philippines. It was
established
I CHAPTER II
and severally liable with the corporation or partnership for the aforesaid claims
and
damages. 1
6.
67
by evidence that the extension was without the knowledge of the local recruitment
agency, petitioner Sunace. The CA, however, affirmed the Labor Arbiter's and
TERMINATION OF CONTRACT OF MIGRANT WORKER
NLRC's finding that Sunace knew of and impliedly consented to the extension of
WITHOUT JUST OR VALID CAUSE
Divina's 2-year contract. It went on to state that "It is undisputed that [Sunace]
was 1. OFWs DESERVE TO BE PROTECTED BY OUR
LAWS.
continually communicating with [Divina's] foreign employer." It thus concluded
that "[a]s agent of the foreign principal, 'petitioner cannot profess ignorance of
such OFWs belong to a
disadvantaged class. Most of them come from the
extension as obviously, the act of the principal extending complainant (sic)
poorest sectors of our society. Their profile shows they live in suffocating slums,
employment contract necessarily bound it."'
~ trapped in an environment of crimes. Hardly literate and in ill health,
their oaly hope
lies in jobs they can hardly find with difficulty in our country. Their unfortunate
In finding that the application of this theory of imputed knowledge was
circumstance makes them easy prey to avaricious employers. They will climb
misplaced, the High Court ruled that this theory ascribes the knowledge of the
agent, ~ mountains, cross the seas, endure
slave treatment in foreign lands just to Sllivive.
Sunace, to the principal, employer Xiong, not the other way around. The knowledge
~ Out of despondence, they will work under sub-human conditions and accept
salaries
~-
of the principal-foreign employer cannot therefore be imputed to its agent Sunace.
[ below the :ninLrnum. The least we can do is to protect t.iem with our
laws.2
There being no substantial proof that S•mace knew of and consented to be bound
under the 2-year employment contract extension, it cannot be said to be privy
There is an extreme need for the strict enforcement of the law and the rules
thereto. A5 such, it and its "owner" cannot be held solidarily liable for any of
and regulations governing Filipino contract workers abroad. Many hapless citizens
Divina's claims arising from the 2-year employment extension. As the New Civil
of this country who have soug."tt foreign employment to earn a few dollars to ens!
lfe
Code provides: "Contracts take effect only between the parties, their assigns, and
for their fanlilies a life worthy of human dignity and provide proper education and
a
heirs, except in case where the rights and obligations arising from the contract
are decent future for their children
have found themselves enslaved by foreign masters,
not transmissible by their nature, or by stipulation or by provision oflaw."
harassed or abused and deprived of their employment for the slightest cause. No one
should be made to unjustly profit from their suffering. Hence, recruiting agencies
Furthermore, as Sunace correctly points out, there was an implied
must not only faithfully comply with government-prescribed responsibilities; they
revocation of its agency relationship with its foreign principal when, after the
must impose upon themselves the duty, home out of a social conscience, to help
termination of the original employment contract, the foreign principal directly
citizens of this country sent abroad to work for foreign principals. They must keep
negotiated with Divina and entered into a new and separate employment contract in
in mind that this country is not exporting slaves but human beings, and above all,
Taiwan. Article 1924 of the New Civil Code reading: "The agency is revoked if the
fellow Filipinos seeKing merely to improve their lives.3
principal directly manages the blisiness entrusted to the agent, dealing directly
with
third person.S" thus applies. As defined, a "principal" refers to an employer or
2. APPLICABILITY OF TilE SECURITY OF TENURE DOCTRINE.
foreign placement agency hiring or engaging Filipino workers for overseas
OFWs, regardless of their classifications, have the right to security of
2
employment through a licensed private recruitment/manning agency.
tenure guaranteed under the Constitution,4 notwithstanding the fact that their
place of
It bears stressing, however, that the nature of the liability of the
local work is overseas.5 Thus, for the
entire duration of employment agreed upon in their
recruitment agency/local manning agency and its principal is "joint and severaL"
contracts, they cannot be dismissed without observing both substantive and
This holds true for any and all claims arising out of the implementation of the
employment contract involving Filipino workers for overseas deployment. If the
local recruitment agency/local manning agency is a juridical being, the corporate
1 Section 1[s], Rule II, Ormilus Rules and Regulations knplementing l1e ~ WlxkeiS
and OJelseas Flipi1os M. of
officers and directors and partners, as the case may be, shall themselves be
jointly t: 1995, AsAmendedbyRA No.10022
{Marr.f108, 2010].
t;
2 Yap v. Thenamais Ships M<mJement G.R. No. 179532, May 30, 2011, cilirq ~ v.
Nayooa, G.R No. 148407, Na.t. 12,
I 3
2003; Chavezv. Bont!rPerez, GR. No.109808, Mard11, 1995,242 SCRA 73, 82, 312Phl88.
JSS lndochinaColp. v. femr, G.R No.156381, Oct 14,2005, citing TeW:a Sills nHrade
SeMces, Inc. v. NLRC, G.R.
L
1 Suna::e inEmational ManagementSeMces, Inc. v. N!RC, G.R No. 161757, Jal.
25,2006. No.100399, Aug. 4, 1992,212
SCRA 132.
2 Sf£tion 1[poL Rule II, Ormilus Rules ~ Reglliatioo<; 1n1J1ementi19 the Mgrant
Wal\eiS aoo <Nerseas Ripioos M of 4
procedural due process. If they were illegally dismissed, their right to security
of Court ruled that the act of the
dismissed seamen in asking for increases in their
tenure is violated. 1
salaries does not constitute a breach of their employment contracts. 1
It bears underscoring that the rights violated when, say, a ftxed-period
local Any ambiguity in the
overseas employment contract shall be interpreted
worker is illegally tenninated are neither greater nor iess than the rights
violated against the parties that
drafted it.2 Labor contracts must be interpreted liberally in
when a ftxed-period overseas worker is illegally tenninated. It is state policy to
favor of the worker? The provisions contained in the POEA-SEC are manifestations
protect the rights of workers without qualification as to their place of employment
In both cases, the workers are deprived of their expected salary, which they could
have earned had they not been illegally dismissed For both workers, this
deprivation
translates to economic insecurity and disparity. 2
3. THE POEA STANDARD EMPWYMENT CONTRACT (POEA-SEC).
'I of the State in favor of the working class, consistent with the social
justice and
r~
the POEA from the time of aetna! signing thereof by the parties up to and including
the period of their expiration without the approval of the POEA.5 Consequently, it
OFWs. They are discussed hereunder.
w
The POEA is tasked to secure the best possible terms and conditions of
employment for OFWs. As such, it shall develop and continually review
her foreign employer which reduced her salary below the amou.•1t approved by the
~ f'OEA is void because it is against our existing laws, morals and public
policy. The
employment standards in accordance with policy thrusts and markP.t developmcnts. 3
~ said side agreement cannot supersede her standard employment contract
approved
~
The POEA-SEC for OFWs is designed primarily for their protection and
&
~'
'
on~8,2010.
1 kl.
I 6
7
Chavezv. Boo1o-P~ G.R No. 109808, Mcrth 1, 1995, 242 SCRA 73, 82; 312 Phil. 88.
See aso Placewelllnlemalional SeM:es COip. v. ~. G.R No. 169973, m 26, 2006.
i
2 kl.
lhe iJ1lOSiOOn ci lhe penally of pemmeot dsquablioo cnl deisting flan lle roster d
acaded pli1¢ferr¢yers.
3 Sectioo 134, Rule I, Part V, Revised POEA Rules and Regulations Governing 1he
Recruilmenl and Efillloyment of l.Md- (Section 144(1)(i), Rule IV,
RMied POEA Rules and Re;~ulalions GaJemirg lhe Realilment and ~~ of ~.and
lmed<Nelseas Fiipilo WO!Kers of2016.
Based Overseas Fiipilo WOO:ers of 2016). For sea-based OFWs, sud! 5lMJtion or
alteralioo ci ll1e POEA-approved
4
Pllirl)pine TIMSI1Bine Galiels, Inc. v. NLRC, G.R No. 123891, Feb. 28, 2001;
Walem Maritine Se!vices Inc. v. NLRC, cootract Y.'iU be penalized
as folows: 1d Offense· File of PSO,OOO.OO; 2'11 Offense· Fne ci P100,000.00; 3"'
Offense •
G.R No. 130n2, NoY.19, 1999, 318 SCRA 623; 376 Pllil. 738.
Suspensi:ln tum pri:ipation n1he OYe!SI!8S errc>lo'fment prcgram (Six nmt11s kl One
year); 4~ Of!eose • PeiTI1allellt
s Vr.Jen Shippi1g cn1 Mrine SeiVicesv. NLRC, G.R Nos. 58011-12, .lui)' 20, 1982,
115SCRA.347. ~ification em delisling from
1he roster of accredited (l!indpalslerrc>I:!Yers. {Section 127(BX2), Rule IV, 2016
Rellised
L
s See Sec1ioo 15, ~ V, R1Aes cn1 Regulatioos lrnplerreltillJ fie Lalla Code.
POEA Rl*ls and Regulations GcNemi1g lhe Recrui1mentcnl ~of Sealarefs issued on
February 26, 2016).
7 &Jzaav.NLRC,G.R.No.57999,Aug.1, 1989.
9 ld.
CHAPTER II 7l
f:
It must be noted that the Philippines does not take judicial notice of
foreign the certificate of
termination, both of which documents were certified by Mr.
laws, hence, they must not only be alleged; they must be proven. This is so because
Mustapha Alawi, Head of the Department of Foreign Affairs-Office of Consular
in international law, the party who wants to have a foreign law applied to a
dispute Affairs Islamic
Certification and Translation Unit; and respondent's letter of
or case has the burden of proving the foreign law. The foreign law is treated as a
reconsideration to the Ministry, wherein she noted that in her first eight (8)
months
question of fact to be properly pleaded and proved as the judge or Labor Arbiter
of employmen~ she was given a rating of "Excellenf' albeit it changed due to
cannot take judicial notice of a foreign law. He is presumed to know only domestic
changes in her shift of work schedule. The Supreme Comt, however, ruled that these
or forum law. 2 To prove a foreign law, the pa1ty invoking it must present a copy
documents, whether taken singly or as a whole, do not sufficiently prove that
thereof and comply with Sections 243 and 25 4 of Rule 132 of the Revised Rules of
respondent was validly terminated as a probationary employee under Kuwaiti civil
Court.
service laws. Instead of submitting a copy of the pertinent Kuwaiti labor laws duly
[
termination of the employment of the OFW. Unfortunately for petitioner, it did not
Indeed, the parties to an overseas employment contract may select the law
! of the parties and such party expectation is protected by giving effect to the
parties'
l own choice of the applicable law. In such a case, the foreign law is adopted
as a
to enter into the contr.!c~ the formalities to be observed by the parties, matters
of
respondent's employment contract, which she voluntarily entered into, that the
terms performance and the
like. Instead of adopting the entire mass of the foreign law, the
of her engagement shall be governed by prevailing Kuwaiti Civil Service Laws and
parties may just agree that specific provisions of a foreign statute are to be
deemed
Regulations, as in fact POEA Rules accord respect to such rules, customs and
incorporated in their contract "as a set of terms." By such reference to the
practices of the host countiy. To prove the Kuwaiti law, petitioners submitted the
provisions of the foreign law, the contract does not become a foreign contract to
be
following: MOA between respondent and her foreign employer, the Ministry of
governed by such foreign law since the said law does not operate as a statute but
Public Health of Kuwait (the Ministry), as represented by ATCI, which provides
merely as a set of contractual terms deemed written in the contract
The choice of law must, however, bear some relationship to the parties or
1 kl.• ~ E!JI.S1aflbut:l klimalional,lnc. v. NLRC, G.R !t1.14558,0ct. 26,2007.
2 8JI.S1afftxilel ~.he. v. M.RC, • ·
their transaction. For instance, as Cadalin1 pronounced, where the services of the
3 11is jii1Msion states: 'SEC. 24. Pmol ct ati:ial record. -The reaxd ct Pld:
dtnmenls referred kl i1 paa;J~ (a) d claimants were rendered
in Bahrain, there is no question that the contracts sought to
Section 19, m missille fa" any PlJPQSe, may be eWiena!d by oo ariCial
pubi:alioo f1ereof or by acql)' ~by be enforced have a
direct connection with Bahrain. Consequently, where the claims
f1e officer haW1g l1e legal rusiDdy ct l1e recoid. (J" by his deputy, a1d ~.
llle recad is not kept illhe
1'1111qJpiles, will aCEftiftaE 1hal sud1 officer has the ~.file ollice
il'Afli:tl lie record is kept is i1 a~ COI.mby, are for benefits
granted under the Bahrain law, only the claimants who worked in
the certificafe may be made by a~ d lle entassy oc legalioo, CIJI1Stj genera,
amd, vk:e consul, oc COOSilar agoot Bahrain should be
entitled to file their claims in a class sui~ excluding those who
<r by IJTf officer ilthe fcxegn seNice ct the Phif~ statiooed illle forei;Jn
IXU1by il\Wlidllle record is kept, Md
aJ1hen1k:ated by lle seal ct his alice.
worked elsewhere.
~ This section provKles: 'SEC. 25. VIM! at1eslatioo d cql)' llllSI slate. -
'M1eneYer a CfYt1f d a doo.Jment a record is
attested for l1e pwpose ct 1he evidence, lhe mtestaOOn llllSI state, in
subslillce, llat 1he copy is a cooect rtfr'/ a the
i"
aiJilal, or aspd:: pat lheroof, as lhe case may be. The a!testaOOn l1lJSI be
ll1der 1he olfidal seal of lhe attesli'lij dficer,
f 1here be fffi, <r Jhe be 1he cleit ct acourt haW1g aseal, under lhe seal ct
such coot'
L
5 ~-
6 ATCI CNe!seasGaporalkxlv. Echil, G.R No.178551, Od. 11,2010.
1 Cadaio v. POEA's Admi1Stratlr, GR No. 104776, Dec. 5, 1995, 238 SCRA 721.
I CHAl'TERll
73
and hearing apply strictly only when the employment is within the Philippines and
that the same need not be strictly observed in cases of international niaritime or
't, overseas employment. The Supreme Court, however, disagreed The provisions of
By our laws, OFWs may only be tenninated for a just or authorized cause
the Constitution as well as the Labor Code which afford protection to labor apply
to
and after compliance with procedural due process requirements. 1 Article 297 [282]
Filipino employees whether working within the Philippines or abroad Moreover,
of the Labor Code enumerates the just causes of tennination by the employer2 and
the principle of lex loci contractus (the law of the place where the contract is
made)
Articles 298 [283] and 299 [284] thereof enumerate the authorized causes. The
governs in this jurisdiction. In the present case, it is not disputed that the
Contract of
fundamental procedural rights afforded by Philippine laws to workers equally apply
Employment entered into by and between petitioners and private respondent was
toOFWs. 3
executed here in the Philippines with the approval of the POEA. Hence, the Labor
The 2014 en bane case of Sameer v. Cabiles, 4 is a classic example of
Code, together with its implementing rules and regulations and other laws affecting
illegal dismissal of an OFW. Respondent's dismissal grounded on inefficiency and
labor, apply in this case. Accordingly, as to the requirement of notice and hearing
in
negligence less than one year from hiring and her repatriation on the same day show
ihe case of a seafarer, the Court has already ruled in a number of cases that
before a
not only failure on the part of petitioner to comply with the requirement of the
seaman can be dismissed and discharged from the vessel, it is required that he be
existence ofjust cause for tennination; they patently show that t'Ie employers did
not given a written notice regarding the
charges against him and that he be afforded a
comply with the due process requirement. Thusly:
formal investigation where he could defend himself personally or through a
representative. Hence, the employer should strictly comply with the twi.r1
"A valid dismissal rtxtuires both a valid caliSe and
adherence requirements of notice and hearing
without regard to the nature and situs of
to the valid procedure of dismissal. 5 The employer is required to
give the employment or the nationality of the
employer. Petitioners failed to comply with
charged employee at ieast two written notices before termhation. 6 One
of the written notices must inform the employee of the particular acts
these twin requirements.
that may cause his or her dismissal. 7 The other notice must
'[inform]the 7. DUE PROCESS"
employee of the employer's decision.' 8 Aside from the notice
requirement, the employee must also be given 'an opportunity to be
a. In the absence of proof of applicable foreign law, OFWs are
heard.'9
entitled to due process in accordance with Philippine laws.
"Petitioner failed to comply with the twin notices and
hearing As a general rule, in the
absence of proof of the applicable laws of the
requirements. Respondent started working on June 26, 1997. She was
foreign employer, it is the provisions of the Labor Code which govern
told that she was terminated on July 14, 1997 effective on the same
day termination of employment of OFWs. This
was the holding in the case of EDI,
and barely a month from her first workday. She was also repatriated on
Staffbuilders International, Inc. v. NLRC/ where no proof of the Saudi laws
the same diiy that she was informed of her termination. The abruptness
was presented. In such absence, Philippine labor laws and regulations shall
of the termination negated any finding that she was properly notified
and govern the relationship between the OFW
and his employer. Our laws and rules
given the opportunity to be heard. Her constitutional right to due
process
therefore apply.
4
In Philemploy Services and Resources, Inc. v. Rodriguez, the
contract, with 40 days probationary period before she would become a regular
1 &mlerOverseas Plocement.AI;}ency, lnc.v. Joy C. Gables, G.R No.170139,AuJ.
05,2014. domestic helper. Terminated after ten
(10) days of work, she filed an illegal
2 ld.
dismissal case. The Supreme Court affirmed the validity of her termination
3 ld.
J within the probationary period but noted that the twin requirements of
notice and
4 Sarreer Overseas Placemeot Agency, Inc. v. Jaj C. Cabiles, G.R No. 170139,
Aug. 05, 2014. The loregn empbye- [~
I 1
I 3
See Oriental ShipmalagemertCo., Inc. v. Hoo. CA,G.R. No. 153750, Jeri. 25, 2001.
G.RNo.152616,M!fcl131,200l.
L.
4
and the reasons for it should be furnished the erring seafarer. It is only in the
obtaining in the courts oflaw. Its proceedings are non-litigious innature.
exceptional case of clear and existing danger to the safety of the crew or vessel
that the required notices are dispensed with; but just the same, a complete report
6-1.
should be sent to the manning agency, duly supported by substantial evidence of
AWARD OF MONETARY CLAIMS
the fmdings. 5
AND DAMAGES TO OFWs
8. AWARD OF INDEMNITY IN THE FORM OF NOMINAL DAMAGES
t rfHE RELIEFS UNDER ARTICLE 294 [279] OF THE LABOR CODE
IN CASE OF DISMISSAL OF OFWs FOR JUST OR AUTHORIZED
ARE NOT AVAILABLE TO OFWs; LEGAL BASIS FOR THEIR
CAUSE BUT WITHOUT DUE PROCESS.
RELIEFS IS SECTION 10, R.A. NO. 8042, AS AMENDED.
The Agabon doctrine6 of awarding indemnity in the form of nominal
damages in cases of valid termination for just or authorized cause7 but without
I Any and all money claims arising from the employment of OFWs,
including those for death, disability or illness benefits, are not rooted in the
procedural due process also applies to termination ofOFWs. The amount of
indemnity of P30,000.00 was awarded in DMA Shipping Philippines, Inc. v.
,I
'
~
1 GR No. 153031, Dec. 14, 2006.
~
2 GR No. 180719, Aug. 22, 2008.
li I G.R No. 155389,Feb. 28, 2005.
G.R. No.148418,J~ 28, 2005; See also Dela Rosav. Michaelmar Philippines, Inc., G.R
No.182262, Apli 13,2011.
3 See Section 1711lereoii\!1K:h prescriles tile DisdprMy ProcedlRS" be followed in
le!mination of seafarers.
~ GRNo.144314,NoY.21,2002,392SCRA371.
5 See also !lela Rosa v. Mchaemar Phifwines, Inc., G.R No. 182262, ~ 13, 2011; NFD
lnlemamal Manni1g ~l!llls v.
I 2
J ErJt.S1allbui:! lillem<6:xlal, Inc. v. NLRC, G.R No. 14558, Oct 26, '}ffJ7. .
Rase v. NlRC, G.R. No. 110637, Oct. 7, 1994,237 SCRA 523; Manalo v. Roldal-
Confesor, G.R No. 102358, Nov. 19,
4
NlRC, G.R No.165389, Oct 17, 2008;Centennial Transmarine, Inc. v. !lela Cruz, GR.
No. 180719,AIJ;J. 22,2008. 1992,215 SCRA808.
6 Agabon v. NLRC, GR No.158693,NoY.17,2004.
5 NYK.fil Sh~ Managtll1ent, Inc. v. The NLRC, GR. No. 161104, Sept 27, 2000; See
also Sealooes Marine SeMces, Inc., v.
7 Also per Jaka doctrine based on Jaka Food~ Corpora1ixl v. I'm, G.R 151378, MKth
28,2005.
L
NLRC, G.R. No. 84812, Oct 5, 1990, 190 SCRA 337, 346.
76
CHAPTER II
BAR REVIEWER. ON lABOR lAW
77
Workers and Overseas Filipinos Act of 1995, "1 and not Article 294 [279]2 of the
2. A VALIDLY DISMISSED OFW IS NOT ENTITLED TO IDS SALARY
Labor Code, which is the appropriate legal basis for such claims, thus:
FOR THE UNEXPIRED PORTION OF IDS EMPLOYMENT
CONTRACT.
"SEC. 10. Money Claims. - Notwithstanding any provision of Jaw to
the contrary, the Labor Arbiters of the National Labor Relations Commission
An OFW who is dismissed from employment for a valid cause is not
(NLRC) shall have the original and exclusive jurisdiction to hear and
decide, entitled to any salary for
the unexpired portion of his employment contract.
within ninety (90) calendar days after the filing of the complaint, the
claims However, if he is dismissed
without observance of procedural due process, he is
arising out of an employer-employee relationship or by virtue of any law
entitled to an indemnity in the form of nominal damages. 1
or contract involving Filipino workers for overseas deployment including
claims for actual, moral, exemplary and other forms of damage. Consistent
3. THE SERRANO DOCTRINE: ILLEGALLY DISMISSED OFWs ARE
with this mandate, the NLRC shall endeavor to update and keep abreast with
NOW ENTITLED TO ALL THE SALARIES FOR THE ENTIRE
the developments in the global services industry.
UNEXPIRED PORTION OF THEm EMPLOYMENT CONTRACTS,
XXX
IRRESPECTIVE OF THE STIPULATED TERM OR DURATION
"In case of termination of overseas employment without just, valid
THEREOF.
or authorized cause as defined by law or contract, or any unauthorized
deductions from the migrant worker's salary, the worker shall be entitled
Prior to the Serrano doctrine which was enunciated in the en bane
to the full reimbursement of his rtacement fee and the deductions made
ruling in the 2009 ~ase of Ar.tonio M. Serrano v. Gallant Maritime Services,
with interest at twelve percent (12%) per annum, plus his salaries for the
Inc} the following provision of the 51h par~graph of Section 10 of R.A. No.
unexpired portion of his employment contract or for three (3) months for
8042, which is again quoted below for ready reference, viz.:
every year ofthe unexpired term, whichever is less.
XXX;'
"In case of termination of overseas employment without just,
3
SeeSediat 10dRA tb.8042v.tlk:hwas IWilelldedcn MM:h8, 2010bySectioo 7.dRA
No.10022.
apiMicls: 'Arlk:le 294 [279l Security ofTernre.- k1 cases a18JIW ~ 11e ~ sha1
not lemW1ale lhe
seNkEs d <11 ~except for aiJS1 cause« u aJihorized by tlis Tille. lvl en1Jbyee
v.f10 is UljJSitf dismissed
tan Wllk shall be riUed " reilstalement v.ilhrul bss of seliority ,gtrts Cl1d
dher prNisges S1d Ill his tJII ~.
idlsM! d alcMances, S1d kl his olher benefits« 8lei' lllOOeQy eqLWalent ~ toot
11e line lis~ was
Ylflhheld tom hin ~ kllhe line ahis actual reinstalement•
PoseOon ~ M1itire Selvices, Inc. v. TCillCIIa, GR No. 186475, June 26, 2013;
See also k1lemational
SefVices ard Resrut:es, tic. v. ~uez, G.R No. 152616, t.'arch 31, 2006.
G.R No. 167614, MM:h 24, 2009.
..
~ SeMces v.ID;Jcrfa, G.R tb. 163657, 1\pfj 18, 2012, 670 SCRA 22, 36-37;
SadagiKt v. Reinief Pacific
See for ils1Mce: SkWem Pacific, Inc. v, Mra, G.R No. 144314, N<w. 21, 2002, 392SCRA
371; Alheona klEmalional
~ SeNDls, loc. v. ViMls, G.R No. 151303, April15, 2005; wasanm MCI1ni1g A~Jec'q,
Inc. v. NLRC, G.R. tb.
~ ~. Inc., G.R tb. 152636, kYJ. 8, 75YJ7, 556 Pfll252, 262; ll1d Dela Rosa v.
Mcl1aekTa' Ph~iles,
Inc., G.R tb.182262, Apli 13,2011,648 SCRA 721,731.
127195, ktg. 25, 1999, 313 SCRA 88; Ali. Ertllk7f Ser.tes Cl1d Resooltes, k1c. v.
Plrcmio, G.R. tb. 144786, Aplil15,
2004; l!ii1ia SlWifg Selvices, klc. v. Chua, G.R No. 162195, Ap,i.S, 2008.
~ l.kred Pdt, loc. v. NLRC, G.R No. 148893, Jutj 12, 2006; Gu-Mro v. Ackx3lle,
G.R tb. 160952, Aug. 20,
I
4
2004; Penlagon klenamal ShWilg, Inc. v. Ade!Ciltr, G.R No.157373, Jut,t 'll,
2004; Ra'/agov. ESSO Eastern Marne, • See for exBIJ1lle: Skippers
Un~ed Pacific, Inc. v. Maguad, G.R. No. 166363, ~. 15, 2006; Skippers Pdlc, Inc. v.
ll!!, G.R tb. 158324, Marth 14, 2005, 453 SCRA 381, 402.
tka, ~; Phi.~ SefVices Clld Resourtes, Inc. v. F'arllnio, supra
L ,._J,,.
CHAPTER II
78 BAR REVIEWER ON lABOR lAW
79
1
whichever is less" between his "salaries for the unexpired
portion
'
issue. Did such replication result in curing its patent nullity and
unconstitutionality?
of his employment contract" or his salaries 'for three (3) months
for
every year o1·"h 'd term. " 3
t e unexprre
In the light of the rationale behind such pronouncement of
The· foregoing rule has been rendered nugatory by the Serrano tuling
unconstitutionality and nullity which was eloquently ventilated and articulated
which declared the afore-quoted qualification - "or (or three f11(Jnths (or every
in Serrano, it is opined that such replication does not operate to cure the nullity
vear o(the unexpired term, whichever is less" in paragraph 5, Section 10 of
and unconstitutionality of the provision. Notably, the very raison d' etre for so
R.A. No. 8042 null and unconstitutional for being discriminatory and violative
nullifying it cannot be wiped out by the simple expedience of re-enacting it in
thenewlaw.
of the equal protection of the law clause, among other significant reasons cited .
therein, thusly:
5. THE SAMEER DOCTRINE.
"The Court concludes that the subject clause contains a
suspect It was only in the 2014
en bane ruling in Sameer Overseas Placement
classification in that, in the computation of the monetary benefits
of Agency, Inc. v. Joy C. Cabiles, 1 that
the unconstitutionality of the said reinstated
fixed-term employees who are illegally discharged, it imposes a 3-
2
clause introduced by R.A. No. 10022 in the 5lh paragraph of Section 10 ofRA. No.
month cap on the claim of OFWs with an unexpired portion of one
year or more i11 their contracts, but none on the claims of other
OFWs 8042, was finally declared by the
Supreme Court. The finding in Serrano3 was
or local workers with fixed-term employment. The subject clause
reiterated tl'.at limiting the wages that should be recovered by an illegally
dismissed
singles out one classification of OFWs and burdens it with a peculiar
OFW to three (3) months is both a violation of due process and the equal protection
disadvantage."
clauses of the Constitution.4 Respondent Joy Cabiles is entitled to her salary for
the
unexpired portion of her contract, in accordance with Section 10 ofR.A. No. 8042.
Consequent to the Serrano ruling, an illegally dismissed OFW is now
The award of the three-month equivalence of respondent's salary must be modified
entitled to all the salaries for the entire unexpired portion of their employment
accordingly. Since she started working on June 26, 1997 and was terminated on July
contracts, irrespective of the stipulated term or duration thereof. 4 Resultantly,
all 14, 1997, respondent is entitled to her
salary from Jllly 15, 1997 to June25, 1998. To
past decisions subjecting the monetary award to the afore-mentioned qualifying
rule otherwise would be iniquitous to petitioner and other OFWs, and would, in
clause no longer apply.
effect, send a wrong signal that principalsiemployers and recruitment/manning
4. mE PROBLEM IS THE SAME UNCONSTITUTIONAL RULE WAS
agencies may violaie an OFW's security of tenure which an employment contract
REPLICATED IN THE AMENDATORY R.A. N0.10022 (MARCH 8,
2010).
1
GR No. 170139, AIJJ. 05, 2014. Respondent Jaf Cabiles was recruited by peliOOner
8cmeef for a ooe-yea ~
ha.Yever, she was asked tl v.ak as a ruuer. Accad'RJ mSaneer, she was later
d'tsmEsed due kl her i1e!&:iency,
8042 is uncOnstitutional, R.A. No. 10022 that was passed in 20106 to amend the
negigence il her Wties, llld her '!abe b coow Ylith the v.ak requiemerlt
[dl her forei;Jn ~-· On Octdler 15,
said sm paragraph still contained the same qualifying provision.
1997, Jaf lied aCOf1lllai1l wlh the NLRC 3Jiins! petitioner llld ~ S1e clai1led !
1at she was ilegift lisrrissed. She
asked for lhe reun of her placement lee, the Mtlhekl cmmfor repalriaOOo coot,
payment c1 her salaryb 2311D11hs as
The insistence by Congress on this provision despite its earlier
well as nmlllld ~ danages. S1e iden!ified WCK;Oai as SMleer ().leseas Placement
h}ero/s W;ln pilcipa.
declaration of unconstitutionality and nullity, certainly creates a constitutional
The Laxr MliB dismissed Ja{s ~~ becaJse l was based oo mere alegations. On appeal,
the NLRC ~ lhat
Jaf was legatj dismissed. The NLRC awaded Jl]f ooly 3 mooths \Qih cl Sliay ilthe
lmJlllt cl NT$46,0SO, the
reiltursemfrtt cl the NT$3,000 Ylittlleld from her, llld atkxne/S fees rJ. NT$300.
On cediorcri, the CA. afimed the decision
c1 the NLRC wiiJ1 respect m11e 1ildiY;I c1 ilegal disnissaf, Jf!ls entitfement mthe
eqtMient of. 3monlhs m c1 salary,
t See lor exa!llJie: Oriental Shipmanagement Co., Inc. v. Hon. CA, G.R. No.
153750, Jan. 25, 2006; Olarte v. reimwsement of IWhheld repa!rialion
expense, and aU!xney's fees. Belote the 5upltme Court. petitioner rcised the issue
Nayona, G.R. No. 148407, Nov. 12, 2003; Talidano v. Falcon Maritime & Anied
SefVices, Inc., G.R. No. 172031, c1 v.llelher 11e Court of Appeals
erred m kalfirmed 11e 1\fqJ d the NLRC ~ respondent JIJf 1eg~ aiSO'issed and
July 14, 2008.
CMaiOOg her 3months' Ytllllh of salcly, 11e reirrblmrent of the oost ci her repa\
Jiation, ood alklmey's fees desple the
Universal Staffing SeNices, Inc. v. NLRC, G.R. No. 177576, July 21, 2008;
Flourish Maritime Sh~ping v. Almanzor, aleged exisB1ce of~ causes of
mri1ation.
G.R No. 177948, March 14, 2008; JSS Indochina Colporation v. Ferrer, G.R No.
156381, Oct. 14, 2005, 473 2 The dispos(M! porOOr1 of lhe decisi:Jo
ill1is case pal1ly s1a1es: 1he clause, 'oc lor U1ree (3) mooths for fNfJ'f year cl
the
SCRA 120; Athenna International Manpower SeNices, Inc. v. Villanos, G.R. No.
151303, Aprtl15, 2005. unexpired tmn, r.t1ichever is klss' i1
Sedioo 7cl Republic flD. No. 10022 ameod'lllQ Section 10 of Reptillic Ad. No. 8042
is
3 ld.
declared l.fiCrtiStitLdk ood, lherefcre, 001 and void.'
4 In other words, lhe Supreme Court reverted to lhe old rule prior to lhe
effectivity of RA. No. 8042 on August 25, Antonio M. Serrlllo v. Gai!Mt
Mlritine Selvices, Inc., and Marlow Navgation Co., Lid., supla.
1995.
Section 1, MD! Ill of the Coosti1utioo prMies: "No person shaD be deplived of life,
libErty, or ~ without due process
5 Mml24, 2009.
of law, nor shall arrt person be denMld the equal protection of lhe lavts."
s MarcM. 2010.
including the period of their expiration without the approval of the POEA is
6. SOME PRINCIPLES ON MONETARY AWARDS TO OFWs.
prohibited. 1
• Monetary award to OFW is not in the nature of separation pay or
• Effect of a final and executory judgment against a foreign
backwages but a fonn of indemnity. 1
employer/principal. - It shall be automatically disqualified, without further
• Only salaries are to be included in the computation of the amount due for
proceedings, from participating in the Philippine Overseas Employment
the unexpired portion of the contract. Overtime, holiday and leave pay2 and
Program and from recruiting and hiring Filipino workers until and unless it
allowances are not included. 3 However, this rule on exclusion of allowance
fully satisfies the judgment award. 2
does not apply in case it is encapsulated in the basic salary clause. 4
DAMAGES.
entitled to the full reimbursement of the deductions made with interest at
twelve percent (12%) per annum. This is in addition to the full
In the following cases, the OFWs were awarded actual or compensatory
reimbursement of his placement fee with the same interest of twelve percent
damages becatise of the failure of the recruitment agency to deploy them abroad,
(12%) per annum plus his salaries for the unexpired portion of his
after signing a POEA-approved employment contract, an act constitutive of
employment contract if he is terminated without just, valid or authorized
breach of contract:
cause as defined by law or contract.8
respondent recruitment agency was held liable to pay petitioner actual and
included in the monetary award to an illegally dismissed OFW. 9
I
Tla1SI1l1Jile CMiefs, Inc. v. Cilia, G.R No. 157975, June 26, 'lfJJ7.
1 See Soc. 6{i], RA No. 8042; Placewellntemational Selvices Corp. v. Camote, GR
No. 169973, June 26, 2006;
3 PCL Shipping Philippines, Inc. v. NLRC, G.R No. 153031, Dec.14, 2006.
f Chavez v. BontcrPerez, GR ~.109808, Marth 1, 1995,242 SCRA 73, 82; 312 Phi.
88.
4 Yap v. Thenamaris Ship's Management GR No. 179532, May 30, 2011.
t 2 Secib110, R.A. No. 8042, as amended by Secfioo 7, RA No. 10022 \MKth 8,
2010.
5 Stolt-Nielsen Mri1e Se1Vi:es (Phis.), Inc. v. NLRC, GR No. 105396, Nov. 19, 1996,
264 SCRA 307; 332 Phl340, 352. 3 In a 2001 case, ha.vever, ATCI <Nerseas
Corpcxatioo v. CA, G.R. No. 143949, Aug. 9, 2001, lle tNo p!Mlle respondent
6 Elm ShWilg SeM:es, Inc. v. Chua, G.R No. 162195, Aptll8, 'lfJJS; &rl\iagov. CF
Sharp Crew Mrlcgernent, Inc., G.R t OFWs were grooted ~ CK1d separation
pay by lhe Supreme Couil on \he basis of ils ruivJ l1at lley were regtS
No. 162419,Ju~ 10, 'lfJJ7; CKldlheearliercaseclStolt-Nielsen t,1aine
Selvioos(Phis.), Inc. v. NLRC, supra ~ However, because of \he 2nd
ruing illhe 'lfJJ2caseclM\Iaresv. NLRC, GR No.110524, J~29, 2002,385
7 PCL Shipping Philippines, Inc. v. NLRC, G.R No. 153031, Dec. 14, 2006; See aso
Centennial Transmame, Inc. v. Dela SCRA 306, IW1ere lhe Court ruled 8lat
0FWs can never becoo1e regula' emplc7fees, lhe decisioo illhis case of ATCI may
Cruz, G.R No. 180719, Aug. 22, 'lfJJS.
no ~hokl ils validitf.
a Section 10,RA No.8042,asanmdedbySectioo7, RA No.10022.
4
G.RNo. 162419,Ju~10,2007.
9
Sevil\ana v.\.T. [lntemalionaq COfJl., GR No. 99047,.A4Jnl16, 2001.
;
5
GR No. 165935, Feb. 8, 2012.
to PCL Shipping PhHippines, Inc. v. NLRC, G.R. No.153031, Dec.14, 2006.
It is the general rule under Article 183 that no employer shall directly hire
A seafarer who requests for early termination of his contract shall be
an OFW for overseas employment4 The following, however, are exempted from
liable for his repatriation cost as well as the transportation . cost of his
this ban on direct hiring:
replacement. 7
b) futernational organizations;
1 See also Sil11iago v. CF Shap Crew t.tmgement, klc., GR No. 162419, Ju)f 10,
'1SIJ7; PCL ShWilg Pli~. Inc. v. c) Heads of state
and government officials with the rank of at least deputy
NLRC, G.R. No. 153031, Dec. 14, 2006.
2 Based on lis flldilJ llat the breach d ~was tainted wilh bad faih, 001Sideri1g
llat respondeot's Medical Ceni1icate minister; or
slaled flat he was rt tl wen on the day rt his scheduled depaUe, yet he was na
alklwed to le<Ne alleged~ for medical
reasons.
3 This was ~ by Wti'f ci exanple or axredion for the p.lbl«: good i1 view ci
petitiooel's act ci prevenli1g respondent
from bei'I;J deployed on the ground that he was na yet dedared ft tl m on lhe~
IX his depOOure, despm evidence tl 1 See paragraph (d) of the new
Section 37-A of RA. No. 8042, as amended by Section 23 of R.A. No. 10022. See
lhe !XlllbiJy. &JCh act. wklle!ated, v.wkl ~d'ICe the ernpklyment ~ ct oor
seafare!s v.t10 ire quaified to be also Section 2(d), Rule
XVI (Compulsory Insurance Coverage of Agency-Hired Wtrters) and Section 1, Rule
XIII
deployed, but prevented to do so by a rravilg agency for ~ reasons. Ex~ mages
ire illJosed not to (Repattiation of Wor11ers),
Omnibus Rules and Regulations Implementing the Mgm Walkers and Overseas
erri::h one party or iTlloYerish MOther, but kl ser1e as adelerrent agai1st or
as a r.egative ilcen!Ne to QJ!b social~ Fnipinos Act of 1995, as
Amended by R. A. No. 10022 {tach 08, 2010).
delemlus actions.
2 Section 1[i}, Rule II, Omnibus Rules and Regulations Implementing lhe M~grant
Wor11ers and Overseas Filipinos Act
~ This a.van! is based on the fact lhat becaJse ci petitionet;' faiMe kl depby
respondent based on <11 lfljuslli3d ground, of 1995, as Amended by R. A.
No. 10022 (Man:h 08, 2010).
respondent was bt:ed kl fie this case.
3 Article 18 provides as folows: 'Miele 18. Ban on arect-HiiY;I. - No ~er may
hire a Fif¢lo V«Jri<er for ove!Se8S
GR No.151303,April15, 2005.
See also Ofienlal Shipmanagement Co., Inc. v. Hon. CA, G.R No. 153750, Ja1.
25, 2006; ATCl CNelseas ColporaOOn
v. CA, G.R No. 143949, Aug. 9, 2001,414 PM. 883,893.
II
,.
empk7fment except through lhe Boilds and entities autliJized by lhe Secretay of
labor. !Jirecl.lliirg by rrerrbers of lhe
L
Going Vessels.
Recruilrnentand Employmentcii..Cild-Based Ovecseas Fiipilo W<rters of 2016.
I CHAI'TERII
ss
d) Other employers as may be allowed by the DOLE Secretary, such
as:
1) Those provided in (a), (b) and (c) above, who bear a lesser
rank, if
same wages and benefits without regard to the nationality or nationalities of the
2
group shall be counted as one; or
courts for acts done against a person or persons in the Philippines.
3) Workers hired by a relative/family member who is a permanent
resident of the host country .1
B.
REGULATION OF RECRUITMENT
3. RATIONALE FOR THE BAN.
4
4. NATIONALITY OF EMPLOYER NOT MATERIAL.
participate in the recruitment and placement of workers for locatl and overseas
87
accordance with the Rules and any subsequent guidelines that may be issued by the
1) Omnibus Rules and Regulations Implementing the Migrant Workers
POEA Governing Board and the Administration.1
and Overseas Filipinos Act of 1995, as Amended by RA. No. 10022,
issued on July 8, 201 0; 1
2. GRANT OF POWER TO THE DOLE SECRETARY.
The latest major issuance for local employment is Deparunent Order No.
As far as recruitment and placement of workers for local and overseas
141-14, Series of 2014 [November 20, 20 14) which promulgated the Revi~ed Rules
employment are concerned, the Labor Code contains two (2) separate provisions
and Regulations Governing Recruitment and Placement for Local Employment. 3
on the regulatory and visitoriai powers of the DOLE Secretary, namely:
the power to restrict and regulate the recruitment and placement activities
of all agencies within the coverage of this Title and is hereby authorized
1 Sectioo 1, Rule I, Part II, Revised POEA Rules Mel RegulaOOns GcNemilg the
Recruitmeot and ~of l..a1d-Sased to issue orders and
promulgate rules and regulations to carry out the
CNerseas ~ ~ of 2016; Sectioo 1, Rule I, Part II, 2016 ReVised POEA Rules Md
Regulations Govemilg lhe objectives and implement
the provisions of this Title."
Recni1ment Mel ~b;ment of Seafarelslssued oo February 26, 2016.
2 Section 1, Rule II, Book I, Rules 1D ~ lhe Labor Code.
b. Nature of regulatory power.
3 Foonedy, the Rules Mel Regufali:Jns Govemilg I'IMite RecruimentMd P'anent
Agencies b' Local ~Issued
by Seaetay RWen D. Torres oo A(lril4, 1991.
The power to regulate and restrict the recruitment and placement
4 &Jdl as fie folk:NMg issuances tiat were made pOOl' kl the 00vert of RA No.
8042 ii 1995, kl wit (1) Rules and activities of all agencies conferred
by Article 36 to the DOLE Secretary is a
Regulalms Govemilg CNerseas ~~ issued by Seaelay Rldlen D. Torres oo May 31,
1991; (2) Poftey valid grant of police power.5
tnsmJcms such as Policy klstructions No. 22, Series of 1977 IGuidefi1es
Govemilg the ~ of Cooslrudion
I
W~EIS Olelseas by Apri 1, 1977) Md it; ~lemenling Rules Md ReglAafioos; Poicy
Instructions No. 34, Series of 1978
[Onrilus lnsbudions Gcmmi1g the Oepklyment of Conslrudi:xi Waters OVelseast and
Pcky lnslrudims No. 45, Series
of 1981 [l)ieding the OEDB il tlooi\:J, Deveql Mel Adnilister the Hmg Mel ~ of
rtl(lilos il F~n 1 Formerlj, Omnbus RUes Mel
Regulations ifr4Jiemenlilg R.A. No. 8042jlillly issuedl7flleSecrellllyofF!
Xei;JnAifairS and
liousehoij;); (3) Cio.dars such as Citula' No. 01-91, issued by Seaetay Ruben
D. Torres oo Noveniler 20, 1991 Seae!ary of l..aboc Md
ErrCJioyment oo Febnay 29, 1996.
~ additiooal requirement;, coodiOOns and procedures b' lhe dep~t at pedo!m'ng
artists; and (4) DOLE I
2 Entitled 'tnsumce Guideliles on Rule XVI or the arroous Rules and Regulam ~
Republc M 8042 {The
Order No. 35, Series of 1994, issued oo October 14, 1994 by Seaeay Ma. Nieves
Con!esor regcrtli1g lhe CoolJrehensive I Mg!Cilt ~EIS em 0/e!seas F~ilos M
of 1995), as Alrended by RepubE M 10022 Relative il ConlXJisoly
5
wem Program b' Artists Overseas.
&Jdl as: (1) Republic Act No. 8042, otherMse knct.m as the 't.i:Jr.WW~ers and
Oie~SeaS ~Act of 1995," v.f!idi I 3
FOITTIE!IIj, POEA Rilles and Regulations Governilg l1e Recrui1ment and ~of l.al:I-
Based Overseas WatEIS
became e!lecWe oo August 25, 1995 (approved oo June 7, 1995]; (2) RA No. 9422,
enacted oo Apri 10, 2007, I 4
FOITTIE!IIj, POEA Rules em Regulations Govern~ the Recruitment and ~of Seliaels
issued on May 23, 2003.
~ lhe regulakxy functions of the POEA; and (3) RA No. 10022, enacted on fv4arch
8, 2010, emend~ certai1
L
pnMsions of RA No. 8042.
5 Philippine Associatm of Se!vice Exponels, Inc. v. Torres, G.R No. 101279, Aug.
6, 1992, 212 SCRA 298.
Being regulatory, the DOLE Secretary may validly issue rules and
Article 289 [2741 dwells on the visitorial power of the DOLE Secretary
regulations restricting or otherwise regulating the recruitment and placement
to inquire into the fmancial activities of legitimate labor organizations.
activities of persons and entities engaged in the recruitment and placement of
c. Effect of obstruction of exercise of visitorial power.
workers locally or overseas.
c. Exercise of the regulatory power.
The act of any person, whether a non-licensee, non-holder, licensee or
c.
The visitorial power is found in Article 37, viz.:
Secretary through the DOLE-Regional Director who has jurisdiction over the
intended place of work of the foreign nationa~ authorizing the foreign national. to
and placement of workers for local or overseas employment. It also includes the
f work in the Philippines.
ti
power to require the submission of reports regularly on certain prescribed forms
•
i Philippine-based company and the foreign national where the former has
the power
local employers to determine violations of the Labor Code and any labor laws,
wage orders or rules and regulations issued pursuant thereto.3
to hire or dismiss the foreign national from employment, pays the salaries or wages
1 Such as, iller alia, !he POEA Rules and Regulatioos GcNemi1g l!le Recruitment and
~of Land-Based Overseas
~ 1 See Mi:le 34 ~]. bid; Section 6, RA. No. 8042; Section 9 (V~
Ormibus Rules Cl1d Regulalions iiTlJiementirl: 11e "<!rant
WOO<ers issued oo Febrlay 4, 2002; POEA Rules and RegUations Govelni"9 the
Reaumneot and Employment of W00<ers and Overseas
Fqli1os Act of 1995 dated Feb. 29, 1996.
Seafarers issued 00 May 23, 2003; and MemoranOOm CiaJiar No. 10, Series of 2010,
Odcber 26, 2010 [Amended 2 See PdtyOecaation, Depment Older
No. 146-15, Series of 2015 (August 20, 2015), Revised Rules fa lhe Issuance of
St:r1dard Tenns and Conditions Govw.irg l!le Overseas ~loyment of Filipoo
Seafarers On-Board Ocem-Going Sllips. El11lloYment Pemits tl
Rxegn Natic".Ms. This latest issucro! repeals ex- m:xfles aa:ordi'IJIY,ia'
guideliles, rules and
2 Mi:le 37 ,llilorCode.
regul<mns, procedures Clld a;Jreetneols incoosistent i1et'eM1h 'lXI (per i1s SecOOn
16. Repealirg Oalse). These Rules tool<
t
3 Article 128,1lid.; Sal Josev. NLRC, G.R No. 121227,Aug.17,1998.
etlect 'c& (15) days fltm the dale ofils pubicalion" (per i1s Section 17.
EffeciMiy).
L . -.·
thereof and has authority to control the perfonnance or conduct of the tasks and
c) Those providing Consultancy services who do not have employers in
duties. 1
the Philippines.
the Philippines:
a) All members of the diplomatic service and foreign government
officials
accredited by and with reciprocity arrangement with the Philippine
(i) an Executive: a natural person within the organization who
government;
primarily directs the management of the organization and
b) Officers and staff of international organizations of which the
Philippine exercises wide
latitude in decision making and receives only
government is a member, and their legitimate spouses desiring to work
general supervision or direction from higher level executives, the
in the Philippines;
board of directors, or stockholders of the business; an executive
c) All foreign nationals granted exemption by law;
would not directly perform tasks related to the actual provision of
d) Owners and representatives of foreign principals whose companies are
the service or services of the organization;
accredited by the Philippine Overseas Employment Administration
the Philippines; c
b) Corporate officers as provided under the Corporation Code of the
qualifications; and
such as President, Secretary and Treasurer.
(iii) must be employed by the foreign service supplier for at least one
93
The Regional Director shall revoke the AEP after one (1) month from its
from receipt of application. The same shall be published in the DOLE website and
9. DENIAL OF APPLICATION FOR NEW OR RENEWAL OF AEP.
posted in the PESO. Such publication and posting shall be for a period of thirty
(30) An application for AEP or the renewal thereof may be
denied by the
days and shall contain the name, position, employer and address, a brief
description Regional Director based on any of the following grounds:
of the functions to be performed by the foreign national, qualifications, monthly
salruy range and other benefits, ifthere are any.
(a) Misrepresentation of facts in the application;
~
treatment of workers may be filed with the Regional Offices any time. 1
10. CANCELLATION/REVOCATION OF AEP.
7. VALIDITY OF AEP.
The Regional Director may, motu proprio or upon petition, cancel or
The AEP shall be valid for the position and the company for which it was
revoke an AEP a..fter due process, based on any of the following grounds:
issued for a period of one (1) year, unless the employment contract, or other modes
(a) Non-compliance with any of the requirements or conditions for which
of engagement provides otherwise, which in no case shall exceed three (3) years. 2
the AEP was issued;
8. RENEWAL OF AEP.
(b) Misrepresentation of facts in the application;
i from justice;
t
1 Seclm6,1d.
1 Section 10, ld.
2 Seclm9,1d.
2 Section 11' ld.
L'
~<
II 1 Section 4(c), Depal1met1t Order No. 146-15, Series of 2015 (August 20,
2015), Revised PJJies kr lhe Issuance of
3 Section 8, Ibid.
~ Section 15: ld:
97
Code:
such ratio. 1
and
approved competency-based system.3
(c) Possess the ability to comprehend and follow oral and written
7) Duration o(training. Leamership involves practical training on the
instructions.
job for a period not exceeding three (3) mor.ths; while
apprenticeship requires for proficiency, more than three (3)
However, the Implementing Rules presciibe the following four (4)
months but not over six (6) monthi of practical training on the
qua Iifications:
job.
a) Be at least fifteen (15) years of age, provided those who are at
8) Circumstances justifving hiring of trainees. Unlike in
least fifteen (15) years of age but less than eighteen (18) may be
apprenticeship, in leamership, the law, Article 74 of the Labor
eligible for apprenticeship only in non-hazardous occupations;
Code, expressly prescribes the pre-requisites before learners
may be
b). Be physicaily fit for tlJ.e occupation in which he desires to be
validly employed, to wit:
trained;
instructions.
prevail over the latter. The implementing rule cannot certainly operate
the learner after the lapse of the leamership period; while in
to amend the law. Consequently, the minimum age requirement
1
• oo.E Cicula" f-b. 2. Seres of200i, [ftmendi1g Ceriain l'roYisiJns ofllepnrent
Q1lEr No. Ql.Q4j issued on Augusl11, 200i by 1:xmer oo.E See No. 3.10
ofTESDA Circular No. 16, Seriesof2004 and DOLE Circular No.2, Serlesof2006.
Se::retl!y (na.v Associae.Justre oflhe &Jpere Cotr1) Ml1o D. BliJo
Se::00n 29, Ruia VI, Book II, llid.; Se::00n 5, Rep.Jti: f>d No. 6640; Section 10,
Rules ~ RA f-b. 6640; Section 10, Rues
See al9.l SediJn 2, Rue VII, Book II, Rules tl mperrent the Lat;q Code
~ting RA No. f;/l/; No. I [HI. DCXE HaldxJol( oo Worl<ers Staluby ~ Benefit; No.
3.8. lESDA Citutar !lb. 16, Series of
[
No.3.7.,1bid
2004, dalld August 12,2004 [1leiised GuiOOiines nlhe mpemenlaiKln of Appenli:eship
and Leanersh~l'lo!J;m;.
CHAPTER II
correct
enumerated in the law.3
Apprenticeship is not one of the exceptions, therefore, this
prolnbition It bears noting that
despite the developments in the law as above
on employing an apprentice below the age of fifteen (15) years
applies discussed, the latest Syllabui
still describes these workers as "disabled
to apprentices. Consequently, the proper age qualification is
fifteen
workers."
(15) years but not because of the Implementing Rules' provision
as 2. DEFINITION OF IMPORTANT TERMS.
mentioned above but by reason ofR.A. No. 9231.
1 Entitled 'AN ACT PROVIDING FOR THE ELIM1NATION OF n£ WORST FORMS OF CHILD LABOR
AND AFFORDING
SlRONGER PROTECTION FOR THE WORKING CHJU), AMeiDING FOR THIS PURPOSE REPUBLIC
ACT NO. 7610,
~ MIENDED, OTHERWISE KNOWN AS THE 'SPECfAL PROTECTION OF CHILDREN AGAINST CHilD
ABUSE,
I
legal guard'oo, v.ilh tJe e'(JJil!SS agreement of the did COOCE!IlOO,
WpossiJie. md lle ~ ci h! Depa1Vnent ofl..alxr
Clld ~ Pro'lkled, U1he", That lle ~ reqLi'emenls i1 al i1slances ae stJX:tty
coolJied v.ith: opportunities to
be able to participate fully in socio-economic
(a) The~ shal ensure h! proB:OOn, healh, safely, rraals Clld normal development
oflhe ctild;aalaw
(b) The ~shall i1stilute mea9JI'eS to ~the chtrs exploilatioo or disainilatioo
taki'l;! ilto acoount lle system activities and who
have no means of livelihood and Whose incomes
Clld level ci ll!m.J!'IelliOO, Clld the dun*xl Clld ~Emenl ci 'Mifu:l time; and
fall below the poverty threshold.
(c) The en1lio'fer shal bmJla1e Clld ir(Jiement. ~ to 11e app!MI Clld
supervision of COfl1lEllenl au!horities, a
!XXIIiouilg pr<:1JflliTl for trainilg and skils acquisition oflhe chikl.
In lhe ~ceptional cases v.i1ere aey such chid may be ~ed. the erJllbyer shal
first secure, before engagirg
ruch chid, a Yol)f1\ penni! from l1e Depa1ment of l..alxr Cl1d ~ 'Mlich shalt
ensure 00se1vance of 11e me
~·
' See SectiJn 41teoof. Tiis tr« b&;ane elb:tive oo ~ ll, YJI. Sectioo 4stalls:
'SEC. 4. The tile of RA No. 7iJ7 is t'eeby il'lla'1dld tl
3 Article59,l..alxrCode; Section 11, ROO VI, Book. II, Rules to ~the Labor Code.
read asfle 'Mag1a Catll:rPmons v.iflllisatit(, and al reiJenoosoo f1e
sai:llawll'disalled persons' shalllteMse oo l¥reflded tl read
4 ReiMIII!rK. RA No. 7277, as anended byRA No. 9442.
as'\lefsonsllilhdisabi.~.'
·
~lolhe2017~.
2
5 ~mMath24, 1992.
CHAPTER II 101
BAR REVIEWER ON lABOR lAW
100
RECRUITMENT AND PLACEMENT
ff"
incentive-rate jobs during the training period, he shall be paid one hundred
b.
LEARNERS HIP.
Under R.A. No. 7277,3 it is provided that subject to the provisions of
1. DISCRIMINATION ON EMPLOYMENT PROHIBITED.
the Labor Code, as amended, PWDs shall be eligible as apprentices or learners;
No entity, whether public or private, shall discriminate against a
ptovided that their handicap is not as much as to effectively impede the
qualified PWD by reason of disability in regard to job application pro~dures,
performance of job operations in the particular occupation for which they are
the hiring, promotion, or discharge of employees, employee compensation, job
hrred and provided further that after the lapse of the period of apprenticeship,
if training, and
other terms, conditions and privileges of employment. The
found satisfactory in the job performance, they shall be eligible for
following constitute acts of discrimination:
employment.
necessity;
Wage orders issued by the Regional Tripartite Wages and Productivity
Boards (RTWPBs) normally reflect this principle. To cite an example, Section 7
(c) Utilizing standards, criteria, or methods of administration that:
6
of Wage Order No. NCR-20, which was approved on May 17, 2016 by the
(1) have the effect of discrimination -on the basis of disability; or
RTWPB-National Capital Region, states:
Ili
~·
r
l Sdln 7, 01ape" I, Tile Ht.ereol
1
SeealooSecfun8,Rtlleii,RuEs~Wa;JeQMNo.NCR·20iljl!X1lWdbyteOO£~oolo1ay27,2016.
M:le 00 [bl, l.rb:r Code; Se:&:xl 5, llepuli: hi No. 6640; Se:li:ln 10,
RuEs mpiefreniriJ fl.etluiM: hi No. 6640; £ectill10, RUes
~ Repubic hiNo. IS/'ll; No.I[H]. DOlE Ha!dxxll<oo Wa\<8S Sta1utri !.bnetay
llel1elm;.
rr, 2 Mde 124, LabJ Code as M1ellded by Sec1Xx13, ReptiJfr; tv;t No. &27;
Seci:ln 10, RUes ~ling RepJ!Jii: PC. No. fjf'll; Seclkln 5,
I' Republi: PC. No. 6640; SecOOn 10, Rues inpmenfng Repubic hi No. 6640 [~
by analogy silU ~ns appli:able 'D
s Se:m5, ChapU 1, TilE 1\ofRA No. 7277.
appenliresh~ ir1d meship~ rrenlbned lhereil.
L
• Thewagecni!Jv.as pJiilshed il The PhifiWine Slaroo May 18,2016. ~is rue\!
ectMloo 2. 2016.
CHAI'TER III
2. Hours of Work
(h) Failing to select or administer in the most effective manner
employment tests which accurately reflect the skills,
aptitude or a. Principles in Determining Hours Worked
c. Meal Break
(i) Excluding PWD from membership in labor unions or similar
d. Waiting Time
organizations. 1
e. Overtime
g. Rest Periods
---<oOo---
b. Holiday Pay, 131h Month Pay
i. Service Charge
B. Wages
2. Payment of Wages
4. Non-Diminution of Benefits
C. Leaves
2. Maternity Leave
3. Paternity Leave
1. Women
a. Discrimination
L . . . ,. . .
b. Managerial employees;
c. Other officers or members of a managerial staff;
d. Domestic servants and persons in the personal service of another;
I 1
Alti:le 34, labor Code; Section 3, Rille I, BOO\ Ill, Rilles kl ~Iemen! the Labor
Code; Rada v. Nt.RC, GR. No. 96078, Jan.
~,
--'~·---¢
branches of government and the private sector in Metro Manila during the
Moreover, the age-old rule which governs the relationship between
Christmas Season from December 15, 2004 to January 6, 2005. According to
labor and capital or management and employee of a "fair day's wage for a fair
this issuance, the "Staggered Working Time" is meant to improve the delivery of
day's labor," remains the basic factor in determining the employees' wages a.'ld
goods and services.
3
backwages.
shift, should be given additional compensation for such work done beyond hi8
2. REDUCTION OF 8-HOUR WORKING DAY BY EMPLOYER.
regular working hours which legally is .considered overtime work.
The employer, in the lawful exercise of its prerogative, is not
prohibited 6. REDUCTION OF WORKDAYS ON ACCOUNT OF LOSSES.
from reducing the eight-hour normal working time per day provided that no
Workdays may be reduced in situations where the reduction in the
corresponding reduction is made on the employee's wage or salary equivalent to
number of regular working days is resorted to by the employer to prevent
an eight-hour work day.
serious losses due to causes beyond his control, such as when there is a
In instances where the number of hours required by the nature of work
substantial slump in the demand for his goods or services or when there is lack
is less than eight hours, such number of hours should be regarded as the
ofraw materials.'
employee's full working day.
7. FLEXIBLE WORK SCHEDULE UNDER R.A. NO. 8972.
3. BROKEN HOURS.
Under R.A. No. 8972, otherwise known as "The Solo Parents' Welfare
Act of2000," solo parents are allowed to work on a flexible schedule, thus:
The normal eight (8) working hours mandated by law do not always
mean continuous and uninterrupted eight (8) hours of work. As may be required
"Sec. 6. Flexible Work Schedule. - The employer shall
by peculiar circumstances of employment, it may mean broken hours of say,
provide for a flexible working schedule for solo parents: Provided,
That the same shall not affect individual and company productivity:
four hours in the morning and four hours in the evening or a variation thereof:
~ 1
! 2
1985.
L
3
lABOR STANDARDS
The phrase "flexible work schedule" is defined in the same law as the
3. OTHER FORMS OF FLEXIBLE WORK ARRANGEMENTS.
right granted to a solo parent employee to vary his/her arrival and departure time
1
I Other than the CWW, the following are flexible work arrangements
without affecting the core work hours as defined by the employer.
months.
1. DEFINITION UNDER DEPARTMENT ADVISORY NO. 2, SERIES OF
2. "Rotation of Workers" refers to one where the employees are
2009.
rotated or alternately provided work within the workweek.
The Labor Code provides that the normal work hours per day shall be
3. "Forced Leave" refers to one where the employees are required to
eight (8) hours. Work may be performed beyond eight hours a day provided the
go on leave for several days or weeks utilizing their leave credits, if
employee is paid for the overtime work.
there are any.
On the other hand, the normal number of workdays per week shall be
4. "Broken-time schedule" refers to one where the work schedule is
six (6) days, or a total offorty-eight (48) hours based on the normal workday of
not continuous but the work-hours within the day or week remain.
eight (8) hours. This is without prejudice to fmns whose normal workweek is
5. "Flexi-ho/idays schedule" refers to one where the employees agree
five (5) days, or a total of forty (40) hours based on the normal workday of eight
to avail of the holidays at some other days provided there is no
(8) hours. 2
diminution of existing benefits as a ;esult of such arrangement. 1
''Compressed Workweek" or "CWW" refers to a situation where the
Under these flexible work arrangements, the employers and the
normal workweek is reduced to less than six (6) days but the total number of
employees are encouraged to explore alternative schemes under any agreement
work-hours of 48 hours per week remabs. The normal workday is increased to
and company policy or practice in order to cushion and mitigate the effect of the
more than eight (8) hours but not to exceed twelve (12) hours, without
loss of income of the employees.2
corresponding overtime premium.3 This concept can be adjusted accordingly in
4. CONDITIONS.
cases where the normal woikweek of the firm is five (5) days. 4
beyond eight (8) hours is within the threshold limits or tolerable levels of
2 kl.
3. The employer shall notify the DOLE, through its Regional Office
Tryco informed the Bureau of Working Conditions (BWC) of the
having jurisdiction over the workplace, of the adoption of the CWW scheme.
Department of Labor and Employment of the implementation of. the said
1
compressed workweek in the company.
The notice should be made in DOLE CWW Report Form.
holding that petitioners are guilty of illegal reduction of work hours, the
private respondent Tryco and the petitioners signed separate Memorand[a) of
Supreme Court found specious the petitioners attempt to justify their action by
Agreement (MOA), providing for a compressed workweek schedule to be
alleging that the company was suffering from financial losses owing to the
implementedin the company effective May 20, 1996. The MOA was entered
Asian currency crisis. Petitioners' claim of financial losses was not supported by
into pursuant to DOLE Department Order (D.O.) No. 21, Series of 1990
be contrary to the State's policy to afford protection to labor and provide full
1
4 G.R. No. 151309, Ocl15, 2008.
G.R. No.163147, Ocl10, 'IIXJ7.
""--·~~
I CHAI'TER Ill
work hours."
! 2. SHORTENING OF MEAL TIME TO NOT LESS THAN 20 MINUTES,
WHEN COMPENSABLE.
ii.
POWER INTERRuPTIONS/BROWNOUTS
In the following cases, a meal period of not less than twenty (20)
The following are the effects of work interruption due to brownouts:
1 minutes may be given by the
employer provided that such shorter meal period is
purpose of allowing them to leave work earlier than the lapse of the eight (8)
hours required by law (say, 4:30p.m. instead of 5:00 p.m.). This shortened
~
c.
a. The employees voluntarily agree in writing to a shortened meal
MEAL BREAK
period of thirty (30) minutes and are willing to waive the overtime
period;
meals. 4
lABOR STANDARDS
members or not."
e. The overtime pay of the employees will become due and
demandable if ever they are permitted or made to work beyond 4:30
6. MEAL TIME INVOLVING SEVERAL SHIFTS.
p.m.; and
In a company where work is continuous for several shifts, the mealtime
f. The effectivity of the proposed working time arrangement shall be
breaks should be counted as working time for purposes of overtime
for a temporary duration as determined by the DOLE Secretary.1
compensation. Consequently, the workers who are required to work in two (2)
full successive shifts should be paid for sixteen (16) hours and not fourteen (14),
4. SHORTENING OF MEAL TIME TO LESS THAN 20 MINUTES,
the two hours for rest or mealtime breaks being included as compensable
EFFECT.
working time. The idle time that an employee may spend for resting wherein he
The law does not allow that meal time be shortened to less than twenty
may leave the work area should not be counted as working time only when the
(20) minutes. If so reduced, the same shall no longer be considered as meal time
work is not continuous. 1
but merely as rest period or coffee break and, therefore, becomes compensable
d.
working time. 2
WAITING TIME
5. CHANGL~G FROM 30-MINUTE .PAID "ON CALL" LUNCH BREAK
TO ONE (1) HOUR MEAL TIME WITHOUT PAY, EFFECT.
1. WHEN WA!T!NG TIME COMPENSABLE.
Waiting time spent by an employee shall be considered as working time
The case of Sime Darby Pilipinas, Inc. v. NLRC,3 is illustrative of
material.
hour not only for eating but also for their rest and comfort which are
conducive
to more efficiency and better performance in their work. Since the employees
2.0NDUTY.
are no longer required to work during this one-hour lunch break, there is no
Waiting time while on duty is included in compensable time, especially
more need for them to be compensated for this period. We agree with the
Labor when it is unpredictable, or is of such short duration that the
employees cannot
Arbiter that the new work schedule fully complies with the daily work period
of
3
3 GR No. 119205, April15,1998, 289 SCRA 86.
G.R No. 78210, FebruaJY 28,1989,170 SCRA n6.
lABOR STANDARDS
use the time effectively for their own purposes. In those instances, the
time to sleep, eat, watch television, exercise, play ping pong or cards,
employees are to be compensated whether their work is on or off the employer's
read and engage in other personal amusements; and
premises, even if the employees spend the time engaging in such amusements as
• Truck drivers responsible for picking up and delivering the mail who
playing cards, watching television or reading. Examples in American
were free to attend to personal matters and occupy their time as they
jurisprudence where employees were found to be engaged in compensable
desired during the waiting time between scheduled runs.
waiting time include:
4. IDLE TIME.
• Assembly line workers who experienced idle time of 45 minutes or
A close variance of "waiting time" is "idle time" during which an
less due to delays in delivery and mechanical failures;
otherwise off-duty employee remains available to be called to work may or may
not be compensable, depending upon the situation. As a general rule, the issue
• A well pumper who resided on the employer's premises and who
upon the extent to which employee is able to and does use the time effectively
• Restaurant employees who were required by their employer to
employee receives an emergency call outside of his regular working hours and is
119
lABOR STANDARDS
required to travel to his regular place of business or some other work site, all of
2) In computing overtime work, "regular wage;' or "basic salary"
the time spent in such travel is considered working time.
means "cash" wage only without deduction for facilities provided
·b. Travel that is all in the day's work.
by the employer.
Time spent by an employee in travel as part of his principal activity,
3) "Premium pay" means the additional compensation required by law
such as travel from jobsite;to jobsite during the workday, must be counted as
for work performed within eight (8) hours on non-working days,
hours worked. Where an employee is required to report at a meeting place to
such as regular holidays, special holidays and rest days.
receive instructions or to perform other work there, or to pick up and carry tools,
the travel from the designated place to the workplace is part of the day's work
4) "Overtime pay" means the additional compensation for work
and must be counted as hours worked regardless of contract, custom or practice.
performed beyond eight (8) hours.
If an employee normally finishes his work on the premises at 5:00p.m. and is
5) Illustrations on how overtime is computed:
sent to another job which he fmished at 8:00p.m. and is required to return to his
employer's premises arriving at 9:00 p.m., all of the time is working time.
a) 'For overtime work performed on an ordinary day, the
However, if the employee goes home instead of returning to his employer's
overtime pay is plus 25% ofthe basic hourly rate.
premises, the travel after 8:00p.m. is work-to-home (home-to-work) travel and
b) For overtime work performed on a rest day or on a
is not hours worked.
special day, the overtime pay is plus 30% of the basic
c. Travel away from home.
hourly rate which includes 30% additional compensation as
Travel that keeps the employee away from home overnight is travel
provided in Article 93 [aJ o[the Labor Code.
away from home. Travel away from home is cleariy working time when it cuts
c) For overtime work performed on a rest day which falls
across the employee's workday. The employee is simply substituting travel for
on a speci!l.l d~y, the overtime pay is plus 30% o(the basic
other duties. The time is not only hours worked on regular working days during
I, hourly rate which includes 50% additional compensation as
normal working hours but also daring the corresponding hours on non-working
provided in Article 93 [cl o[the Labor Code.
days. Thus, if an employee regularly works from 9:00 a.in. to 5:00 p.m. from
Monday through Friday, the travel time during these hours is working time.
d) For overtime work performed on a regular holiday, the
I
airplane, train, boat, bus or automobile.
e) For overtime work performed on a rest day which falls
Any work which an employee is required to perform while travelling
on a regular holiday, the overtime pay is plus 30% o[the
must be counted as hours worked. An employee who drives a truck, bus,
basic hourly rate which includes 160% additional
automobile, boat or airplane or an employee who is required to ride therein as an
compensation.
assistant or helper, is working while riding, except during bona-fide meal
2. PREMIUM PAY VS. OVERTIME PAY.
periods or when he is permitted to sleep in adequate facilities furnished by the
employer.
"Premium pay" refers to the additional compensation required by law
for work performed within eight (8) hours on non-working days, such as rest
e.
days and regular and special holidays. 1
OVERTIME
performed beyond eight (8) hours a day. Every employee who is entitled to
1) Work rendered after normal eight (8) hours of work is called
premium pay is likewise entitled to the benefit of overtime pay. 2
"overtime work."
I
The general rule remains that no employee may be compelled to render
additional compensation required by law such as overtime pay or
7. WAIVEROFOVERTIMEPAY.
b. Exceptions when employee may be compelled to render
The right to claim overtime pay is not subject to a waiver. Such right is
overtime work:
governed by law and not merely by the agreement of the parties.'
1. When the country is at war or when any other national or local
While rights may be waived, the same must not be contrary to law,
emergency has been declared by the National Assembly or the
1 Mercader v. Mania POOCUJ, G.R. No. L·8373, Sept 28, 1956; Cruz v. Yee Sing,
G.R. No. L-12046, Oct 1959; Manila
Terrnb1a1Co.,lnc. v. CR, G.R. No. L-9265, Apfif 29, 1957,480. G. 7, p. 2725,91 PhD.
625.
1 Erf:!ileeri'tg~~ Inc. v. Mnisterofl.abor,G.R. No.L-64967,Sept23,1985
2 Article 6, CMI Cede;~ Sugar Develop!rent Co., Inc. v. Court of Industrial
Relations, G.R. No. L-39387, June 29,
2 G.R. No. 105963, August 22, 1996.
1982.
3 No. rv [DJ, DOLE Handbocl< on WC!kers SlabJ1Dty M:lnetar{ Benefit.
lABOR STANDARDS
work, there being no proof that the value of said privileges did not compensate
b. On a rest day or special day or regular holiday. Plus 10% of
1
for such work, such waiver may be considered valid.
130% of regular hourly rate on said days or a total of 110% of
REST PERIODS
1. HOW RECKONED.
Night shift differential is equivalent to 10% of employee's regular wage
1.
for each hour of work performed between 10:00 p.m. and 6:00 a.m. of the
employees subject to CBA and to such rules and regulations as the DOLE
1) Where night shift (10 p.m. to 6 a.m.) work is regular work.
Secretary may provide. Howev::r, the employer shall respect the preference of
a. On an ordinary dav: Plus 10% of the basic hourly rate or a
employees as to their weekly rest day when such preference is based on
. . grounds..2
reItg10us
total of 110% of the basic hourly rate.
RA No. 946 (June 20, 1953], olherMse kn<MI1 as toe '!fllue &mday Law; prc7Mes that
no COIMle!dal, ildustrial or
Day, New Veal's Day, HolyThtnsday, <VldGood FOOa'{, from 12:00 midnghl1o 12:00
11Dlght
1 Merak:o WO!kers Unbn v. Mania EledOC Co., G.R. No. L-11876, tMj 29, 1959.
s Article 317 [302], Labor Code; Section 1[q], Rule Ill, Bcxi VII, Rukls 1o
Implement the Labor Code.
I CHAPTER Ill
lABOR STANDARDS
125
on Sundays and holidays provided that the employees are given the weekly rest
day and the resultant benefits as provided in the law and its implementing rules. 1
4. SOME PRINCIPLES ON WEEKLY REST DAY.
I e) Where the nature of the work is such that the employees have to
1 Section 6, Rule Ill, Book Ill, Rules to lmplem€ntthe Labor Code; Alticle92,
l.abo'Code.
I Section 2, Rule 1\1, Book 1\1, ibid.
2 ld.
2 Section 5(a], Rule Ill, Book Ill, Ibid.
3 k!.
3 Section 5[b], Rule Ill, Book Ill, Ibid.
Alticle 94' l.alxr Code.
4
k, held in Mercury Drug Co., Inc. v. Dayao, G.R No.l-30452, Sept 30, 1982.
Formerly called domestic helper or househelper. See R.A. No. 10361, otherwise known
as the ~Domeslic Worl<ers
s Lagatic v. NLRC. GR No.121004, Jan. 28, 1998.
Acf [January 18, 2013].
lABOR STANDARDS
• Additional special
A fixed list of dates of holidays presents a challenge because some of
non-working day - October 31, 2017 (Tuesday)
the regular holidays and nationwide special holidays are movable, per R.A. No.
-November 1, 2017 (Wednesday)
1 M:;ie 82, Labor Co:le; See also Section 1, RukliV, Book Ill, Rules kl
inlJiement l!le Labor Code; No. II (A], OOLE
1 Approvied on July 25, 2007, entitled 'M Act Rationalizirg the Celeblalion of
National Holidays Amendi1g lor the Pul)l05e
0\artered Bank ~ees Association v. Ople, G.R No. L-44717, Aug. 28, 1985, 138
SCRA 273; Man1radetfM\IC Section 26, Chapter
7. Book Iof Exeartive Order No. 292, as Mlended, OtherMse l<nct.m as Ble
Adrni16b'ative Code of
DMsloo ~loyees ood Workers Unoo v. BacungM, G;R No. L-48437, Sept 30, 1986, 144
SCRA 510. 1987.'
•...
,...,....__,
• If unworked- 100%
6. COMPUTATION OFPREMIUMPAYFORHOLIDAYS.
• If worked- first 8 hours - plus 30% of 2\JO%
4
Labor Advisory No. 06, Series of 2013, on the Payment of Wages for
• Work in excess of 8 hours- plus 30% of hourly rate on said day
the Regular Holidays, Special (Non-working) Days, and Special Holiday (For all
Schools) for the Year 20 14, specifically promulgated the following rules that
2. SPECIAL (NON-WORKING) DAYS
shall apply:
• ![the emplovee did not work. the "no work, no pay'' principle shall
lABOR STANDARDS
• If the employee worked during a special day that also falls on
4) When day preceding regular holiday is a non-working day or
his/her rest day, he/she shall be paid an additional fifty
percent of scheduled
rest day - should not be deemed to be on leave of
his/her daily rate on the first eight hours of work.
Computation:
absence on that day, in which case, employees are entitled to the
((Daily rate x 150%) +COLA].
regular holiday pay if they worked on the day immediately
• If the employee worked in excess of eight hours (overtime work)
preceding the non-working day or rest day.'
during a special dav that also falls on his/her rest day, he/she
shall 8. RIGHT TO HOLIDAY PAY IN CASE
OF TEMPORARY CESSATION
be paid an additional30 percent of his/her hourly rate on said
day. OF WORK.
Computation: (Hourly rate of the basic daily wage x 150% x 130%
x number of hours worked).
a. Temporary or periodic shutdown or cessation of work not due
to business reverses.
Simplified Computation:
In cases of temporary or periodic shutdown and temporary cessation of
a. If unworked-
work of an establishment, as when a yearly inventory or when the repair or
1 Section 6(c}, Rule IV, Book Ill, Ibid.; No. II [EJ, Ibid.
1 SecOOn 6 (a}, Rule IV, Book Ill, Rules '> 1fr91ement the \.abor Code; No. II
{E}, OOLE Handbook on Workers Stali.Jtoly 2 Section 7(a}, Rule IV, Bed
Ill, lbi:l.; No.I! [F], llid.; See also Rule IV [Holidays With Pay], Bed Ill of lhe
Rules to Implement
M:lnetaly Benefits.
lhe l.aboc Code.
2 SecOOn 6(a}, Rule IV, Book Ill, Ibid.; No. II [EJ.Ibid.
3 Section 7[b], Rule IV, Book Ill, W.
3 Section 6[b), Rule IV, Book Ill, lbkl.; No. II {E}, Ibid.
~ SecOOn 8[a}, Rule IV, Book Ill, Ibid.; No. II G}, Ibid.
lABOR STANDARDS
shortened for the hours they are supposed to have taught, whether extensions of
plantations where the work is performed in bulk or in volumes,
class days be ordered or not; and in case of extensions, said faculty members
hence, difficult to quantify. 1
shall likewise be paid their hourly rates should they teach during said
•
extensions.·
1
thereof).
(2) Those whose time and performance are unsupervised. Here, the
employer's control is over the result of the work. Workers on
5. SOME IMPORTANT PRINCIPLES ON HOLIDAYS.
pakyao and takay basis belong to this group. Both classes of
• Non-Muslims are entitled to Muslim holiday pay during Muslim
workers are paid per unit accomplished. Piece~te payment is
holidays5 considering that all private corporations, offices, agencies, and
generally practiced in garment factories where work is done in
the entities or establishments operating
within the designated Muslim provinces
company premises, while payment on pakyao and takay basis is
and cities are required to observe Muslim holidays, hence, both Muslims
commonly observed in the agricultural industry, such as in sugar
2 SecOOn 8 (c], Rlre PI, Boct Ill, Rilles Ill in1Jiement lhe labor Code; No. II
G], DOLE HMdiJod( on WOI1<ecs Statutoly
1 Jose Rizal College v. NLRC, GR No. 65482, December 1, 1987.
t.'ooelay lleneft;,
..
2 Section 8 [b], Rule IV, Book Ill, Rules to lfr4llement l1e t.m COOe; No. II
G], OOI.E HinJxd oo Wtrtem StaWy 3 SecOOn 11 (Overline ood Ho&tays),
Merrxxandum Citular fob. 10, Series d 2010, OctOOer 26, 2010 [Amended Sla1d.W
Mxletaly Beoefi1s.
Terms and Conditions Govenilg the Ovefseas ~ d Filipino Seafarers OtHloMI Ocean-
Goi'q Sh~].
J lm' Coogress d the ~Hippiles v. NLRC, G.R. No. 123938, May 21, 1998, 290 SCRA
509; Tan v.la;jrama, GR fob. 4 ld.
L
151228, August 15, 2002.
5 San MiJuel Cotporalion v. The Hon. CA, G.R No. 146n5, Jan. 30, 2002.
lABOR STANDARDS
and Christians working within the Muslim areas may not report for work on
the days designated by law as Muslim holidays.
1
2.
• The day designated by law for holding a general election is deemed a
13THMONTHPAY2
2
regular holiday.
• In case of two (2) regular holidays falling on the same day, the worker
1. COVERAGE.
should be compensated as follows:
All employers are required to pay all their rank-and-file employees, a
o If unworked - 200% for the two regular holidays;
13th month pay not later than December 24 of every year.
o If worked- 200% for the two regular holidays~ premium of 100%
Only rank-and-file employees, regardless of their designation or
3
for work on that day.
employment s1atus and irrespective of the method by which their wages are
• "Monthly-paid" employees are not excluded from the coverage of holiday
paid, are entitled to the 13th month pay benefit.3 Managerial employees are not
pay. 4 (Note: A "monthly-paid employee" refers to one who is paid his
entitled to 13th month pay. 4
wage or salary for every day of the month, including rest days, Sundays,
or task basis, and those who are paid a flxed amount for
• Regular or special holidal pay benefit cannot be withdrawn after being
2 PD. No. 851 J)ecerrbel' 16, 1975; Memorandum Order No. 28 ~ 13, 1986; ReWled
Gtroernes on 1he
~-
3 See "Explana\Oiy Bli\letin on Wolke!S' Entitlement to Holiday Pay on 9 Ap!
l1993, • ng Kagitingan and Good ~ d lie 13111 lv'ooth Pay l.aN
[No'lentler 16, 1987'
Fooay' issued on March 11, 1993 by DOLE Underseelelaly Cresendano B. Trajano;
Labor NJ.vioory issued on 3 Ibid.; SeciJn 1, l.'anoov1dum Order
No. 28.
March 22, 2004 b'f DOLE Secretary Pabicia A. Santo Tomas; Asioo Transmission
Caporation v. CA, G.R. No. HousedScraleev.Rey,GR No.
149013,Aug. 31,2006.
144664, March 15, 2004.
P.O. No. 851, as amended.
~ San Mguet Corp. v. Del Rosano, G.R. Nos. 168194 &168603, Dec. 13, 2005; Oda~o
v. NLRC, G.R. No. 147420, 6 No. 2 {a], Revised Guideines on lhe
Implementation a the 13~ Mlnlh Pay l.all, fonnel1y Section 3 lbL Rules and
June 10, 2004; Insular Bank of Asia and America ~Joyees Union tiBMEUJ v.
lnciong, G.R. No. L-52415, Oct. Regutam ~P.O. No. 851;
AlfiOOCe ofGovemmentWO!kersv. t.tmdlaborand Empkl)1nenl, G.R No. L-
23, 1984, 132 SCRA 663; The Chartered Bank Employees Associatioo v. Ople, G.R
No. L44717, Aug. 28, 1985. 60403, Aug. 3, 1983.
5 FEU Employees Labor Union v. Far Eastern University, G.R Nos. 69224-5, Dec.
18,1987,156 SCRA629, 677. 1 Section 2, PD. No. 851; No.2 [b],
Revised Gtideines oo the hr~J~ementatialdthe 13~ Woo1h Pay laN, bmeft/ Section 3
L
s ld.; See also Oceanic Pharmacal Employees Union [FFW] v.lnciong, G.R. ~: L-
50568, Nov. 7, 1979. [c), Rules !lld Regulations
Implementing PD. No. 851.
a No.2 !dJ, lbid.,loonel1y Section 3[e], Rules em Regulations lmplementi1g P.O. No.
851.
~
CHAPTER Ill
136 BAR REvlEWERON lABOR lAW
lABOR STANDARDS
137
! .
I
household helpers and persons in the personal service of another in relation to
! But if the commission paid in addition to the basic salary has a
clear
such workers. However, R.A. No. 10361 is now explicit in its commandment
direct or necessary relation to the amount of work actually done by the
that a domestic worker or Kasambahay is entitled to 13th month pay as provided
employee, it should be considered as part of basic salary. 2
forbylaw. 2
If the employee is paid on commission basis only, he is excluded from
3. NATURE OF 13m MONTH PAY.
receiving the 13th month pay benefit. 3
13th month pay is in the nature of additional income granted to
7. CBA VIS-A-VIS 13m MONTH PAY.
employees who are not receiving the same.3 P.D. No. 851 is undoubtedly a labor
For purposes of computing the 13th month pay, "basic salary" includes
standards law whose purpose is to increase the real wages of the workers. 4 It is
all remunerations or earnings paid by the employer for services rendered but
based on wage but not part ofwage. 5
does not include allowances and monetary benefits which are not considered or
4. MINIMUM AMOUNT OF 13m MONTH PAY.
integrated as part of the regular or basic salary, such as the cash equivalent of
unused vacation and sick leave credits, maternity leave, overtime, premium,
The minimum 13th month pay required by law should not be less than
night differential and holiday pay, premiums for work done on rest days and
one-twelfth (1/12) of the total basic salary earned by an employee within a
benefits should be included as part of the basic salary in the computation of the
5. MINIMUM PERIOD OF SERVICE REQUIRED.
l3rn month pay if by individual or collective bargaining agreement, company
To be entitled to the 13lh month pay benefit, it is imposed as a
practice or policy, the same are treated as part of the basic saiarj of the
minimum service requirement that the employee should have worked for at
employees. 4
least one (1) month during a calendar year. 7
8. SOME PRINCIPLES ON 13TH MONTH PAY.
6. COMMISSION VIS-A-VIS 13TH MONTH PAY.
l. "Basic salary" or "basic wage" contemplates work within the normal eight
In order to be considered part of 13th month pay, the commission
(8) working hours in a day. This means that the basic salary of an
should be part of the basic salary of the employee.
employee for purposes of computing the 13th month pay should include all
3. Extras, casuals and seasonal employees are entitled to 131h month pay.7
1 No. 2 [c1 Revised Gilerrles 00 81e ~ ct the 13fl Mlnlh Pay l.a'l, b:mel1y Secloo
3 [d), PJAes en:! 1
ReglEtioos ~P.O. No.85-1.
Philippine Dupli:ators, klc. v. NLRC, G.R No. 110068, Feb. 15, 1995; Boie-Tateda
Cllemi<3s, Inc. v. Oela Serna, GR No.
2 Section 25, Article IV, RA No. 10361, otherwise known as the MDomestic WO!kers
Acf [January 18, 2013~ 92174]Md Phftippine Fuji
XeroxCapoodionv. Trajano, G.R. No.102552, M:rth 24,1994.
2 ld.
3 ~ v. NLRC, G.R No. 158693, Nov. 17,2004.
4 A1iance <i GoYemment Workels v. t.tlis!er of Lalor, G.R No. L-60403, Al.g. 3,
1983; Nationa Federatioo <i Sug<rWakels
King of K'BJ5 Troosport, Inc. v. Mml:, GR. No. 166208, June 29, 2007.
v. Ovejela, G.R No. 59743, May 31, 1982; Martqlper ~ Ccxpoortioo v. Ope, G.R No.
51254, June 11, 1981, 105 • No. 4 [a], Revised GOOel'lllE!S on
l1e inllfemenlation of the 1Jfllloolh Pay taw, lixme!lt Section 2 PIJ of the RUes
ald
SCRA75.
Regulations lrqllemenlilg P.O. No. 851; No. X(C], DOLE Haldbook on Wo:kers
Sta1utory M:x1elay !lerlelis.
5 CeotaiAzllceade Tmv. Centra!Azucarera deTm laborUnio!J.NLU, G.R No. 188949, July
26,2010.
See No.1, OOLE ~lanatoiY Bullelinoo the lndlsiono!Teache!s' OieOOad Pay il the 13fl
Mln1h PayDeemilatioo (Dec.
6 SecOOn 2[a], Rules en:! RegulaOOils ~P.O. No. 851.
03,1993.
7 No. 1, Revised Guileines on the Implementation of the 13fl fv'ooth Pay law; No.
X[A], DOLE~ on WaKe!S 6
Hooda Phis., Inc. v. SarnahM ng Malay~ Manggagawa sa HoOOa, GR No. 145561, June 15,
2005; San Mguel
StabJtcy MJlelary Benelit.
Corporation (Cagayan Coc&Cola PlanQ v. b:lcklng, G.R No. L49n4, Feb. 24, 1981, 103
SCRA 139.
7
s Reyesv. NL.RC, G.R No.160233, Al.g. 8, 2007.
BWC Opinkln dated Dec. 19, 1987, Bagong Pilipino WOOd's Fashion Wake!S Union,
WOOd's Fashion, Inc.
I
138 BAR REviEWER ON lABOR lAW
CHAPTER Ill 139
lABOR STANDARDS
.. i.
5. INTEGRATION.
1
SERVICE CHARGE
!i
the Labor Code. The basis of the amount to be integrated is the average monthly
share of each employee for the past twelve (12) months immediately preceding
I • Tips and services charges are two different things. Tips are given by
customers voluntarily to waiters and other people who serve them out of
2. EMPLOYEES COVERED.
recognition of satisfactory or excellent service. There is no compulsion to
The same rules on service charges apply to all employees of covered
give tips under the law. The same may not be said of service charges which
employers, regardless of their positions, designations or employment status, and
are considered integral part of the cost of the food, goods or services
irrespective of the method by which their wages are paid except those receiving
ordered by the customers. As a general rule, tips do not form part of the
more than n,ooo.oo a month. 3
service charges which should be distributed in accordance with the sharing
• Service charges are not in the nature of profit share and, therefore,
4. DISTRIBUTION.
B.
distributed at the following rates:
WAGES
I) 85% to be distributed equally among the covered employees; and
1.
2) 15% to .management to answer for losses and breakages and
WAGE VERSUS SALARY
distribution to employees receiving more than P2,000.00 a month, at
1. BASIC DISTINCTION.
the discretion of the management. 6
'i'
lABOR STANDARDS
2. DISTINCTION IN TERMS OF EXECUTION, ATTACHMENT OR
3. MINIMUM WAGE.
considered wages. Salary is understood to relate to a position or office, or the
compensation given for official or other service; while wage is the compensation
The minimum wage rates prescribed by law shall be the basic casb
for labor.'
wages without deduction therefrom of whatever benefits, supplements or
allowances which the employees enjoy free of charge aside from the basic pay. 2
2.
PAYMENT OF WAGES
4. STATUTORY MINIMUM WAGE.
1. BASIC WAGE.
[ The term "statutory minimum wage" refers simply to the lowest basic
wage rate fa:ed by law that an employer can pay his workers.J
The term "basic wage" means all the remuneration or earnings paid by
i
Tripartite Wages and Productivity Boards (RTWPBs), and which shall not
4
Further, as held in Honda Phils., Inc. v. Samahan ng Malayang
be lower than the applicable statutory minimum wage rates.
Manggagawa sa Honda/ the following should be excluded from the
The minimum wage rates for agricultural and non-agricultural
computation of "basic salary," to wit: payments for sick, vacation and
employees and workers in each and every region of the country shall be those
maternity leaves, night differentials, regular holiday pay and premiums for
prescribed by the "RTWPBs". 5 These wage rates may include wages by
work done on rest days and special holidays.4
industry, province or locality as may be deemed necessary by the RTWPBs.
2. ATTRIBUTES OF WAGE.
6. WAGE RATES.
"Wage" paid to any employee has the following attnbutes:
The term "wage rates" includes cost-of-living allowances as fixed by
1. It is the remuneration or earnings, however designated, for work done
the RTWPB, but excludes other wage-related benefits such as overtime pay,
or to be done or for services rendered or to be rendered;
1992
2007, June 19, 2007 (Arnel1ded RUes of Procedure on tMitun Wage FIXing.
Gaa v. CA, ilfra; See also ~itable BarUg Colp. v. Sadac, 1J.R No.164n2,June 8,
2006.
4 Section 4 [k1 Rule I, N'IWC Guideliles No. 01, Series d 'lf!J7, June 19, 2007
[.Arne!1ded Rules of Procedure on Mnill1JI11
IIEm [n1 Defllitkln ofTenns, Rilles lmplementi1g Republic Act No. 6727.
GR No.145561,June 15,2005,460SCRA 187.
Wage FIXilg.
5 See Article 99 (Regional Minimum Wages),.as amended by Section 3, RA. No. 6727,
June9, 1989.
See also Soo t.i;)uel Co!poralioo Gagaym Coca-Cola Plant v.inciooJ, G.R No. L-
49774, Feb. 24, 1981, 103 SCRA 139. 6 Micle99, Labor Code; Section 1,
Chapter Ill, Rules lf1'4llementing RA. No. 6727.
L.
I CHArTER Ill
143
I
142 liAR REVIEwER ON lABOR lAW
lABOR STANDARDS
~I b. Validity of integration.
wage. 3
It must be noted that acceptance by the employee of wage below tbe
minimum set by law does not preclude bim from suing for tbe deficiency.
3.
The principle of estoppel or laches does not apply in this situation.
FACILITIES VERSUS SUPPLEMENTS
8. INTEGRATION OF COLA AND OTHER MONETARY BENEFITS
l. FACILITiES, DEFINED.
INTO THE BASIC PAY.
The term "facilities" includes articles or services for the benefit i>f the
a. Meaning of cost-of-living allowance (COLA).
employee or his family but does not include tools of the trade or articles or
services primarily for the benefit of the employer or necessary to the conduct of
Clearly, COLA is not in the nature of an allowance intended to
the employer's business. 4 They are items of expense necessary for the laborer's
reimburse expenses incurred by employees in the performance of their official
and his family's existence and subsistence which form part of the wage and
functions. It is not payment in consideration of the fulfillment of official duty.
4
As defmed, "cost of living" refers to "the level of prices relating to a range of
everyday items"5 or "the cost of purchasing the goods and services which are
1989; C*x Relilely ~ AssociaOOn v. Bdlcrlles, G.R No. 123782, Sept 16, 1997, 279
SCRA 218; Ourabilt
1 Sedb12 G], DepOOrnent O!der No.10, Seres of 1998 [May 04, 1998.
~ Plirt~ v. NLRC, G.R No. L-76746, Jt1t 27, 1987, 152 SCRA 328; SSS v. SSS
s...,eMsors lrol,
2 GRNo.157634,May16,2005.
GR No. L-31832, Oct. 23,1982.
L.
3 See also Vda.de Rachov. M.inqlaiyofl\ag<rl, G.R No.L-23542, Jan. 2,1968,22 SCRA
1. 4 SecOOn 2, Rli! IJII.A, Book Ill, Rules tl ~lle Lalor Code, as
emended by M!romim Citulir No.3, NoJ. 4,
4 Qmerrezv.DBM, G.R No.153266,March 18,2010,616SCRA 1, 18.
1992.
s ld. at 19, cili1g Tt,e New Oxford AmeOCallli:tionay, Oxford UlMllsity Press, 2005
Editioo.
CHAPTER Ill
144 BAR REVIEWER ON lABOR lAW
lABOR STANDARDS
45
when furnished by the employer, are deductible therefrom; since if they are not
provided that such deduction is with · the written authorization of the
so furnished, the laborer would spend and pay for them just the same. 1
employees concerned. 1
• The free board and lodging petitioner SIP furnished its employees cannot
2. SUPPLEMENTS, DEFINED.
same was explicitly and clearly made applicable only to "supplements or other
(1) Proof that such facilities are customarily furnished by the trade;
Code.3
by the employee; and
(3) The facilities are charged at fair and reasonable value. 5
This view that Article 100 is not the proper basis for the invocation of
• An employer may provide subsidized meals and snacks to his employees
the non-diminution and non-elimination of benefits principle was underscored in
provided that the subsidy shall not be less than thirty percent (30%) of the
the separate concurring opinion of Mr. Justice Arturo D. Brion4 in the case of
fair and reasonable value of such facilities. In such a case, the employer
Arco Metal Products, Inc. v. Samahang ng mga Manggagawa sa Arco
may deduct from the wages of the employees not more than seventy percent
Metal-NAFLU {SAMARM-NAFLU),5 where he clarified that the basis for the
(70%) of the value of the meals and snacks enjoyed by the employees,
prohibition against diminution of established benefits is not really Article 100 of
the Labor Code as the respondents claimed and as the cases cited in the
1 Sedioo 1, RIJe VIl-A, Book Ill, Rilles b ~the Labor Code, as emended by
Memorandum Cialla' No.3, Nov. 4,
BiJ Wedge lvililg Co., Inc. v. Alii BiJ Wedge MJ1ual BeneftAssocmln, G.R No.
L-5276, Marth 3, 1953,97 Phi. 294. 1992.
2 Stale Mline Cooperation and Royal Lile, Inc. v. Cebu Seamen's Association,
Inc., supra; Amk eg Wedge Moing Co., he. 2 See Article 124,
t.aJortode.
v. NDk Bg Wedge Mltual BenefitAssociatioo, G.R No. L-5276, Mirth 3, 1953, 97
f'llH. 294 Apex Mni'lg Company,
Inc. v. NLRC, G.R No. 86200, Feb. 25, 1992,206 SCRA497; See also Octavia v.
Philippine
l State Mline CoJporaOOn and Royal line, Inc. v. Cebu Smell's AssociaOOn, klc.,
supra; Mayon Hotel &Restaurant v. Long DislaJce Telephone
Company, G.R No.175492, Feb. 27, 2013; Insular Hotel Employees Union-NFL v.
Adooa, GR No. 157634, May 16, 2005; Mima v. NLRC, G.R No. 118506, Apn1 18,
1997, 271 SCRA 670. Wateffront Insular
Hotel Davao, G.R Nos. 174040-i1, Sept 22, 2010.
State Mali1e Coqxra!ion illd Royal Lile, Inc. v. Cebu Seamen's Association,
Inc., supra. 4 Fonner Secretay cllhe
OepMment oll.aba md Employment pOOr lo his~ kllhe High Court.
L
4
5 Mabeza v. NLRC, supra.
GR No. 170734, Mly 14, 2008.
f
·--
147
lABOR STANDARDS
by their employees. This rule, however, applies only if the benefit is based on
Indeed, the view is advanc.ed that even without Article I00, the
any of the following:
protection-to-labor clause 1 in the Constitution and the grounds of justice and
equity will not allow such diminution and/or elimination of employee benefits.
(I) An express policy;
which, it gains the status of a company policy that can no longer be disturbed or
And the protection-to-labor mandate enunciated in Section 18 of
withdrawn.
Article II and Section 3 of Article XIII of the Constitution as well as the rule on
the proper interpretation and construction of the provisions of the Labor Code
b. The grant of benefit should not be by reason of legal or
and its implementing rules enshrined in Article 4 thereof are the main bedrock
contractual obligation but by reason of liberality.
and shield against any attempt at reducing, diminishing or eliminating benefits
To ripen into a company practice that is demandable as a matter of
that employers have granted and which the employees have been enjoying.
right, the giving of the benefit should not be by reason of a strict legal or
c. Latest pronouncement on the application of the non-diminution
rule in Article 100.
The 2014 case of Wesleyan University-Philippines v. Wesleyan
Universitv-Philippines FacultY and Staff Association/ succinctly pointed out
1 Citing Cenlral Azuc<rera De Tal1acv. Cenlral Amcare!a De Tarlac lalxri.Jrm.NLU,
G.R No.188949, Ju~ 26,2010, 625
2 PhUippi1e Wreless, Inc. [F'ockeftlelfl v. NLRC, G.R. No. 112963, Ju¥ 20, 1999;
Blillmles v. GuMra, G.R No. L-22586,
3 Unmn Safely~. Inc. v. Bascrte, G.R No. 154689, lb. 25, 2004; See also ~Mide
Sales Wiiehouse CUJ v. NLRC,
2 G.R No. 181806, Martfl12, 2014.
G.R. No. 154503, Feb. 29, 2008; Chiang Kai Shek College v. Hon. CA, G.R No. 152988,
Aug. 24,2004.
LABOR STANDARDS
In the following cases, the act of the employer was declared company
There is no hard and fast rule which may be used and applied in
excluded by law has lasted for six (6) years, hence, was considered
According to the case of National Sugar Refineries Corporation v.
NLRC/ the test or rationale of this rule on long practice requires an
indicative of company practice.
indubitable showing that the employer agreed to continue giving the benefits
(b) Sevilla Trading Compa!!y v. A. V. A. Semana/ - The act of
knawing fully well that said employees are not covered by the law requiring
including non-basic benefits such as paid leaves for unused sick
the payment thereof.
leave and vacation leave in the computation of the employees' 13th
month pay for at leasi two (2) years was c~_msidered a company
The following criteria may, however, be used to determine whether an
act has ripened into a company practice:
practice.
practice the act of petitioner of granting for thi.rty (30) years, its
(2) The act should be done consistently and intentionally; and
lABOR STANDARDS
I
concerned based on the principle of "no work, no pay. " The
Supreme Court ruled that the discontinuance of said benefit
I CBA.
vested right may be said to have arisen therefrom nor any diminution of benefit
1 G.R. No. L-51636, May 16, 1983,122 SCRA267; 'lf.J7 Phil. 2235.
2
3
G.R. no.152928, June 1S, 2009.
GR No. L-57636, We/ 16, 1983, 122 SCRA 267; 'lfJ7 Phil2235.
I 1 G.RM:;. ii7460,Jan.6, 1997.
L.
lABOR STANDARDS
may have resulted by virtue ofthe correction thereof.' The error, however, must
case, respondent Bank has previously implemented Wage Orders
be corrected immediately after its discovery; 2 otherwise, the rule on non-
Nos. NCR-01 and NCR-02 nationwide although they are
diminution of benefits would still apply.3
supposedly applicable to the National Capital Region only. With
The following cases would illuminate this principle:
the issuance of Wage Order No. RB 05-03 (appiicable for Region
resigning employees, despite the fact that the Labor Code does not
(b) TSPIC Corp. v. TSPIC Employees Union JFFWJ/ where the
despite the provision of the law and the CBA that 13th month pay,
vested right accrued to individual respondents when TSPIC
payment of the same benefits to seven (7) employees who had not
employees in excess of what they were entitled to, as computed
served for the full 12 months in 1992, 1993, 1994, 1996, 1999,
above, may be legally deducted by TSPIC from the employees'
· salaries.
2003, and 2004. Petitioner claims that its full payment of benefits
cases in the years 1992, 1993, 1994, 1999, 2002 and 2003.
status of an established management practice; thus, it is estopped
According to petitioner, it was only in 2003. that the accounting
from implementing a wage order for a specific region only. In this
department discovered the error "when there were already three (3)
L.
1
6 GRNo.131247,J<l1.25, 1999,302SCRA74.
2 G.R. No. 170734, May 14, 2008.
lABOR STANDARDS
1.55
thereof. 1
petitioner had adopted a policy of freely, voluntarily and
consistently granting full benefits to its employees
regardless of
5.
the length of service rendered. True, there were only a
total of
seven employees who benefited from such a practice, but it
was PROHIBITIONS REGARDING
WAGES
an established practice nonetheless. Jurisprudence has not
laid 1. PERTINENT LABOR CODE'S PROVISIONS.
down any rule specifying a minimum number of years within
which a company practice must be exercised in order to
The LRbor Code devotes an entire Chapte~ on the prohibitions regardi'lg
constitute voluntary company practice. Thus, it can be six
(6) wages, spanning Articles 112 to 119 thereof.
Below is a discussion on all these
years, three (3) years, or even as short as two (2) years.
Petitioner prohibitions
cannot shirk away from tls responsibility by merely claiming
that
it was a mistake or an error, supported only by an affidavit
of its 2. NON-INTERFERENCE BY EMPLOYER IN THE DISPOSAL BY
1
manufacturing group head."
EMPLOYEES OF THEIR WAGES.
d. Some principles on the non-diminution principle.
Article 112 of the Labor Code is clear-cut in its interdiction that no
• As a final word, the Supreme Court, on the issue of what should be
employer is allowed to limit or otherwise interfere with the freedom of any
included in the computation of the 13th month pay, declared that
no employee to dispose of his wages and no employer
shall in any manner oblige any of
more error can be asserted at this late hour in the reckoning of
the his employees to patronize any store or avail of
the services offered by any person.3
"basic salary" as basis for the computation of the 13th month pay
3. WAGES NOT SUBJECT TO EXECUTION OR A'ITACHMENT;
because from the inception ofP.D. No. 851 on December 16, 1975,
EXCEPTION.
clear-cut administrative guidelines have been issued to insure
uniformity in the interpretation, application, and enforcement of
The general rule is that laborer's wages are not subject to execution or
the provisions of P.D. No. 851 and its implementing rules and
attachment The exception is when such execution or attachment is made for debts
regulations. Thus, an employer cannot successfully assert that it
incurred for food, shelter, clothing and medical attendance.4
has committed an honest error in including such salary-related
4. DEDUCTIONS FROM WAGES.
benefits as the cash equivalent of unused vacation and sick leave
credits, overtime, premium, night-differential and holiday £ay,
and The general rule is that an employer, by
himself or through his
cost-of-living allowances in the computation of the 13 month
representative, is prohibited from making any deductions from the wages of
pay.2
• No company practice could ripen in situations where certain
benefits are granted only under certain specified circumstances
1
Lexal L.abcxalrxies, Inc. v. Court of lndusiial Relations, G.R No. L-24632, Od. 26,
1988; Asis v. Moister of t.roor, G.R Nos.
such as in case of payment of per diem, relocation allowance,
58094-95, March 15,1989.
Code.
1 See also Honda Phils., Inc. v. Samahan ng Malayang Manggagawa sa Honda, BR No.
145Sil1,Jllle 15,2005. See aso Section 12, Rule VIII, Bool<.lll,
Rules to lll"lllementlhe Labor Code.
2 Central Awcarera de Tarlac v. Central Azucarera de Tarlac Labor Union-NLU, G.R
No. 188949, .htf 26, 2010.
lABOR STANDARDS
his employees. The employer is not allowed to make unnecessary deductions
1
7) Withholding tax mandated under the National Internal Revenue
without the knowledge or authorization of the employees.
Code (NIRC);
4.1. PERMISSffiLE DEDUCTIONS FROM WAGES UNDER THE
8) Withholding of wages because of the employee's debt to the
LABOR CODE AND OTHER LAWS.
employer which is already due/
Article 114 of the Labor Code enunciates the rule prohibiting the
to check-off has been recognized by the employer or authorized in
imposition by the ew\)loyer of the requirement that workers should make a deposit
writing by the individual worker concerned; and
from which deductions shall be made for the reimbursement of ioss of tools,
(c) In cases where the employer is authorized by law or regulations
Article I14 of the Labor Code the ,15.00 daily deposit required by the employer
and other laws.
from taxi drivers for the purp0se of defraying shortage in "boundary," since there
is
Deductions from the wages of employees may be made by the
no showing that the Secretary of Labor and Employment has recognized the same as
employer in any of the following cases:
a "practice" in the taxi industry. Article II4 provides the rule on deposits for
loss or
permit deposits to defray any deficiency which the taxi driver may incur in the
Code;
remittance of his "bozmdary." Such illegally collected deposits should be refunded
2) Deductions made for agency fees from non-union members who
accept the benefits under the CBA negotiated by the
bargaining to the drivers.
union. This fonn of deduction does not require the written
Likewise, in another case, Dentech Manufacturing Corporation v.
2
authorization of the non-bargaining union member concerned;
NLRC,S it was ruled that the employer is not allowed to require his employees to
3
3) Union service fees;
file a cash bond or to make deposits for loss or damage to tools or equipment
4) When the deductions are with the written authorization of the
employee for payment to a third per~on and the employer
agrees 5.1. PERMISSffiLE DEDUCTIONS
FOR WSS OR DAMAGES.
to do so, provided that the latter does not receive any
pecuniary Where the employer
is engaged in a trade, occupation or business where
4
benefit, directly or indirectly, from the transaction;
the practice of making deductions or requiring deposits is recognized, to answer
for
5) Deductions for value of meal and other facilities;~
the reimbursement of loss of or damage to tools, materials or equipment supplied by
6) Deductions for premiums for SSS, PhilHealth, employees'
the employer to the employee, the employer may make wage deductions or require
6
compensation and Pag-ffiiG;
the employees to make deposits from which deductions shall be made.
1 Gavadoresv. Trajooo, G.R No. L-70067, Sept 15,1986,144 SCRA 138.
2 Article 259{e) {248(e)), L!ilor Code.
L.
5 Section 7' Role Vl, Book Ill, ll«l.
Article 114, latxx'Code; Section 14, Role VIII, Book Ill, Roles ro Implement !he
latxx'Code.
CHAPTER Ill
158 BAR REviEWER ON lABOR lAW
lABOR STANDARDS
159
withholding respondent employee's last salary covering the period from November
Court ruled that:
"[I]he petitioners should first establish that the making of
deductions lI 16 to November
30, 2005, was justified because respondent was absent and did not
show up for work during that period. He also failed to account for his whereabouts
from the salaries is authorized by law, or regulations issued by the
and work accomplishments during said period. Petitioners further argued that when
Secretary of Labor. Further, the posting of cash bonds should be
proven there is an issue
as to whether an employee has, mfact, worked and is entitled to his
as a recognized practice in the jewelry manufacturing business, or
correctly pointed out by the Labor Arbiter, "absent a showing that the witlili.o!
di.IJ.g of
6. PROHlBITION ON \\1TIDIOLDING OF WAGES.
complainant's wages falls under the exceptions provided in Article 1i3, the
certainty whether respondent worked for the entire period from November 16 to
unlawful for any person, whether employer or not, directly or indirectly, to
witW10Id
November 30, 2005, the consistent rule is that if doubt exists between the evidence
any amount from t.'le wages of a worker.
presented by the employer and that by the employee, the scales of justice must be
Under Article 1706 of the Civil Code, withhoiding of the wages, except for
tilted in favor of tiie latter in line with the policy mandated by Articles 2 and 3
of the
a debt due, is not allowed to be made by tlJ.e employer.
Labor Code to afford protection to labor and construe doubts in favor of labor. For
worked during the period in question and is, accordingly, entitled to his salary.
allowed to seize or retain any tool or other articles belonging to the laborer.
DISMISSAL
an employee has worked for, his employer must pay. Thus, an employer cannot
simply refuse to pay the wages or benefits of its employee because he has either
In the same case of SHS Perforated Materials, the unlawful withholding
defaulted in paying a loan guaranteed by his employer; or violated their
of the last salary of respondent was declared to constitute constructive dismissal
memorandum of agreement; or failed to render an accounting of his employer's
since for this reason, he was forced to resign as it has made it impossible,
property.
unreasonable or unlikely for him to continue working for petitioners. It is of no
moment that he served his resignation letter on November 30, 2005, the last day of
1 G.R No. 188169, Nov. 28; 2011, 661 SCRA 416. On M}JSt 13, 2004, Nitia Jeweiiy
~a pcky fa' goldsmiths the payroll period and a
non-working holiday, since his salary was already due him
requii'g llem '>post cash balds or deposits in vai)'i'g aoount; but il no
case exceecft'Q 15% of l1e lattel's salaries per on November 29,
2005, being the last working day of said period. In fac~ he was
week. The deposits were ilteoded 1D lllSWef fi:lr C1rJ klss or da'n<rJe
v.ill::h Niia Jewelly may sustain by reason of lhe
gctisrrilhs' faultorOOJii;Jence in lm:l~ 1he!JI*! enUus8:l '>toem.
Thedeposils shal be relilmed upoo ~of tile then infonned
that the wages of all the other SHS employees were already released,
goklsmiths' l'tlll1l. and after an accwnting of the gold recef.red. Nina
Jewelry alleged that Ole goldsmiths were gMlll tile and only his was
being withheld. What is significant is that the respondent prepared
option not 1o post deposit;, but to sgn authorizatioos ~ lhe former to deduct
from U1e latte(s salaries amounts not
exceeding 15% of !heir take home pay shoold tt be found lhat they lostUle
gold enlrusled 1D !hem. The respondents claimed I and served his
resignation letter right after he waS infonned that his salary was being
L
readiness 1D pJSt 1he required deposils.
1 G.R No. 185814, Oct 13, 2010.
2 G.RNo.143304,Ju~8,2004.
lABOR STANDARDS
withholding of his salary for a longer period before his employment can be
have to the employer. Thus, there is no reason to limit its scope to uniforms and
considered as so impossible, unreasonable or unlikely as to constitute constructive
equipment
dismissal. Even granting that the withholding of respondent's salary on November
30, 2005, would not constitute an unlawful act, the continued refusal to release
his·.
salary after the payroll period was clearly unlawful. The petitioners' claim that
they
prepared the check ready for pick-up cannot undo the unlawful withholding. It is
worthy to note that in his resignation letter, respondent cited petitioners'
"illegal and
unfair labor practice" as his cause for resignation. As correctly noted by the CA,
respondent lost no time in submitting his resignation letter and eventually filing
a
I "Accountability," in its ordinary sense, means obligation or debt. 1
The
ordinary meaning of the term "accountability" does not limit the definition of
There is no reason to limit its scope to uniforms and equipment Thus, the term
complaint for illegal dismissal just a few days after his salary was withheld.
These "accountability" was construed in
the 2015 case of Milan v. NLRC and Solid
circumstances are inconsistent with voluntary resignation and bolster the finding
of Mills, Inc.,4 as including
petitioners' possession of their constructed houses within
constructive dismissaL
tlJ.e SMI Village, a property of private respondent Solid Mills where petitioners
and
their families were allowed to occupy during their employment. When Solid Mills
6.2. VALIDITY OF WITHHOLDING OF RELEASE OF LAST PAYMENTS
closed its operations resulting in the termination of petitioners, they were bound
to
TOEMPLOYEESFORF~URETOCOMPLY~THCLEARANCE
vaCilte and tum-over their possession over their houses to Solid Mills.
Consequently,
REQUIREMENTS.
63. KICKBACKS.
benefits of terminared or resigning employees prior to or pending their compliance
with certain clearance procedures. This appears to be a standard procedure among
The second instance prohibited by Article 116 of the Labor Code is the so-
employers, whether public or private. 2 Cleardllce procedures are instituted to
ensure called "kickback" which consists in
the act of any person, whether employer or not,
that the properties, real or persona~ belonging to the employer but are in the
directly or indirectly, to induce a worker to give up any part of his wages by
force,
possession of the separated employee, are returned to the employer before Li.e
stealth, intimidation, threat or by any other means whatsoever, without the
worker's
employee's departure. 3
consent
The law supports the employers' institution of clearance procedures
before 7. PROIUBITION AGAINST DEDUCTION
TO ENSURE EMPWYMENT.
the release of wages. 4 As an exception to the general rule that wages may not be
withheld5 and benefits may not be diminished, 6 the Labor COOe provides in its
Article 117 of the Labor Code prolnbits and considers it unlawful for any
Article 113 [Wage Deduction] that "[n]o employer, in his own behalf or in behalf of
person, whether the employer himself or his representative or an intermediary, to
any person, shall make any deduction from the wages of his employees, except """
require that a deduction be made or to actually make any deduction from the wages
(3) In cases where the employer is authorized by law or regulations issued by
of any employee or worker, for the benefit of such employer or his representative
or
the Secretary of Labor and Employment."
an intermediary, as consideration of a promise of employment or, when already
employer:
t Re!ening Ill Article 116 ollhe Labor Code, riled ''Mhholding of wages and ~
prOOilited.'
2 em
M1an v. NLRC Solid Mils, Inc., G.R No. 202961, Feb. 04, 2015.
a) to refuse to pay the wages and benefits of an employee; or
3 kl.
b) to reduce his wages and benefits; or
4 ld.
s SeeAiticle 116 of the Labor Code, entitled 'VItidilg of wages and kkkbad<s
prohbib!d."
s Re!enTlg Ill Artide 100 of the Wlor Code l'tth pi(Nides: 'Art 100. Prollilitioo-
eimination or -diminution of benefits. t t.1iri v. NLRC and Sdid Mils, klc.,
supra.
Nolhiflg in tilis BooK sh<dl be construed Ill eliTin<*l or in any WCfi diminish
supploolenls, or other ~ ben~ being 2 ld.
enjoyed at the tine of promugation of this Code..
3 ld.
1 Atticle 1700. ~hol:lilg of the wages, ~In' adebt due, shallnotberra:leby
lhEHliJ1lklyer. 4 G.R No. 202961, Feb. 04,
2015.
~
162 BAR REviEWER ON lABOR lAW
CHAPTER Ill 163
lABOR STANDARDS
person, whether employer or not, to make any false statement, report or record
8.1. WHEN THE RETALIATORY ACT IS CONSIDERED UNFAIR LABOR
required to be filed or kept in accordance with and pursuant to the provisions of
the
PRACTICE.
Labor Code, knowing such stltement, report or record to be false in any material
The commission of the retaliatory act of discharging or in any manner
respect.3
discriminating against any employee who has filed any complaint or instituted any
Examples of such statement, report or record required to be filed or kept
proceeding or has testified or is about to testify in such proceeding described in
under the Labor Code are payrolls, time records, employment records and
Article 118 may be considered an unfair labor practice under Article 259(f)
[248(f)]
6.1.
be related to or connected with the exercise by the employee of his right to self-
WAGE ORDER
organization or collective bargaining. The employee giving testimony or about to
give one, may or may not be a member of a union.'
1. WAGE ORDER, DEFINED.
5
only to the one who filed charges against the company as constituting unfair labor
to pay upon effectivity of a Wage Order.
practice, the legislative intent is to assure absolute freedom of the employees to
3. WHEN PROPER TO ISSUE WAGE ORDER.
establish labor organizations and unions, as well as to proffer charges for
violation of
investigate and study all pertinent facts and based on the prescribed standards
would be and is an undue restraint upon said freedom, the dismissal of his brother
and criteria, shall proceed to determine whether a Wage Order should be issued.
owing to the non-withdrawal of the charges of the former, would be and constitute
as
much, in fact a greater and more effective, restraint upon the same freedom. What
is
prolnbited to be done directly shall not be allowed to be accomplished indirectly.
3 SOOion 13, Rule X. Book Ill, PJJestl Implement 1he Latxr Code.
1 Phi'oon ~loyees Unkin v. Phil~ Global Conm.mications, G.R No. 144315, Ju~
17, 2006; See also Bisig 4 Section 4 [n], Rule I, NV'I'PC COOefines
No. 01, Series of 2007, June 19, 2007 [/ln'e1ded RUes of Procedure on Minimum
Manggagawasa TfYOOV. NLRC, G.R No.151309, Ocl15, 2008.
Wage Fixing]; SOOion 2[hJ, llepa1mefit Order No. 10, Series of 1998 {Mff)' 04,
1998].
2 G.R No. L-18364,Feb. 28, 1963.
.t- s SOOion 2 m. Department Order No. 10, Series ot 1998 [lky 04, 1998.
f'Ft'"··
2) Productivity.
Any such Wage Order shall take effect after fifteen (15) days from its complete
publication in at least one (l) newspaper of general circulation in the region. 1
(3) Comparable wages and incomes
4. PUBLIC HEARINGS/CONSULTATIONS.
1) Prevailing wage levels.
In the performance of its wage-determinmg functions, the Regional
region. These wages shall include wages varying with industries, provinces or
such appeal within sixty (60) calendar days from the filing thereof.
localities if in the judgment of the Regional Board, conditions make such local
The filing of the appeal does not stay the order unless the person
2
The Supreme Court has identified two (2) methods of fJXing the
6. STANDARDS/CRITERIA FOR MINIMUM WAGE FIXING.
1 Section 2, Rule II, toNv'PC GWelnes No. 01, Series ci 'lftJ7, June 19, 'NJ7
(Amended rues ci Procedure en Mnirun
(2) Capacity to pay
~ FIXing]; ArOCie 124, I..OOor Code .
.. 2
ld.
4 The secood method moe was used il Repubic Ads Noo. 6640 end 6727 and 11
Presidential Decrees Nos. 525, 1123,
1 Artide 123, I..OOor Code.
1614, 1634, 1678,1713 MCIW;JJe Orde!s Nos. 1, 2, 3, 5and 6. This meii'Kld Is
prefen'ed as imnimizes disputes ilvolving
2 ld.
wcge distortion. (ld.).
L
3 kl.
b. On public bearings/consultations.
to have exceeded its authority (ultra vires) by extending the coverage of the
Wage Order to wage earners receiving more than the prevailing minimum wage
• Hearings may be conducted by the Regional Board en bane or by a
rate without a denominated salary ceiling. 1
duly authorized committee thereof wherein each sector shall be
While ATB wage increases have been granted in the past, current
represented. 3
policy discourages the Regional Boards from granting ATB adjustments as they
• No preliminary or permanent injunction or temporary restraining
create more distortions in the labor market which in turn affect adversely the
order may be issued by any court, tribunal or any other entity
income and standard of living of workers and their families. Specifically ATB
against any proceeding before the Commission or Regional
wage increases ( 1) have greater impact on inflation; (2) are disincentives to
trade Board.4
1 Section 3, Rule IV, NWPCGuidelines No. 01, Series of 2007, .kine 19,2007 (Amended
Rules of Proced1.1e oo Mnirum
WageFIXi'IJJ.
2 AI1ic1e 123,l.abor Code; Section 4, 01aplef Ill, Rules lmplemenlilg RA. No. 6727;
Section 5, Rule IV, tM'PC Guidlelines
No. 01, Seres ci 2007, June 19, 2007 [Aioonded RUes ci Procedure oo Mnirum WiJJe
FIXilgl.
1 Metropolitan BanK and Trusi Co., inc. "· National \Nsges and Productivity
Commissioo, G.R. No. 144322, Feb. 6, 3 Section 2, Rule Ill, tM'PC
Guidelines No. 01, Seres of 2007, June 19, 2007 [.Amended Rules of Procedure oo
Mnimum
2007; NilS¢ Integrated Arras1re lfld Stevedoring SeNices, Inc. (NIASSI) v.
Nasip~ EmpkYfees Lm Unoo (NB.O}ALU. W<rJeFIXing].
TUCP, G.R. No.162411,June27,2008.
4 Section 7, Rule Ill, Ibid.
2 See htlp11YMw.rw.pc.dole.gaJ.pMaq.hbnl
s Cagayan Sugar Millillg Company v. Secretart of Labor and Employment GR No. 128399
Jan.15, 1998.
3 Sedioo 2, Rule IV, WIIPC Gukleliles No. 01, Series of 'lf1J7, J1.11e 19, 2007
(Amended Rules ci Pro:edure oo Mnirum 6 Capitol Wireless, Inc. v. Bate, G.R
No.104682, Ju~ 14, 1995.
W"~FIXf!Qj.
7 Pag-Asa Steel Woli<s, Inc. v. CA, GRNo.166647, M3rth31,2006.
4 Re!en'd1g tllle National Wages lfld ProdudMy Coom'issill (tM'PC).
6 Mabezav.NLRC,G.RNo.118506,Apli18, 1997,271 SCRA670.
classification.
a) Skills;
b) Length of service; or
3. "ELIMINATION" AND "SEVERE CONTRACTION;" DISTINCTION.
1
c) Other logical bases of differentiation.
In order to justify adjustment in wage rates, it is not required that there
Wage distortion presupposes a classification of positions and ranking of
should be a complete elimination of quantitative wage differences. The
these positions at various levels. One visualizes a hierarchy of positions with
existence of "severe contraction" of such quantitative wage differences is
corresponding ranks basically in tenns of wages and other emoluments. Where
sufficient.
a significant change occurs at the lowest level of positions in terms of basic
The law mentions "intentional quantitative differences" in wage or
wage without a corresponding change in the other level in the hierarchy of
salary rates between and among employee-groups in an establishment. By the
positions, negating as a 1esult ther~::of the distinction between one level of
term "intentional" means that the quantitative differences had been arrived at
position from the next higher level, and resulting in a parity between the lowest
through the collective bargaining process and concluded by the parties. The
level and the next higher level or rank, between new entrants and old hires, there
intention of the parties on the issue of whether or not the benefits under the CBA
exists a wage distortion. xxx. The concept of wage distortion assumes an
should be equated with those granted by law must prevail and should be given
existing grouping or classification of employees which establishes distinctions
full effect.
among such employees on some relevant or legitimate basis. This classification
is reflected in a differing wage rate for each of the existing classes of
4. SEVERE CONTRACTION; MEASURE THEREOF.
employees. 2
In Metropolitan Bank and Trust Company Employees Union-ALU-
2. FOUR (4) ELEMENTS OF WAGE DISTORTION.
TUCP v. NLRC,Z the Supreme Court said that the contraction between
3
(4) The existence of the distortion in the same region ofthe
country. Company/ it was declared
that wage distortion presupposes an increase in the
groups. Such distortion does not arise when a wage order gives employees in
one branch of a bank higher compensation than that given to their counterparts
t Arti:le 124,labor Code; Item fp), Definition d TellllS, Rides knplemenling
Repubic /lD. No. 6727; Sedioo 4lm), Rule I, in other regions occupying the
same pay scale, who are not covered by said
N'M'C GuK!elines No. 01, Series of ?J1J7, June 19, 2007 ~ Rules of Procedure
oo Mnitrum Wtw;~e Ftxmg]; See
also Se<fun 1~, Rt.lle II, N~ Revised Procedural Guideliles in the
ConductctVoluntaty Atbitratioo Proceedngs JOel 15, f
r
2004].
~
Na1iona1 Fedemli:ln of Labor v. NLRC, G.R No. 103586, Ju~ 21, 1994, 234 SCRA
311; See also M!lrcp:litan Bank and
~
Trust Coolpaly Employees lJnion.ALU-TUCP v. NLRC, G.R No. 102636, Sepl. 10,
1993, 226 SCRA 268; Calma v. 1 Nalional F.edemOOn of
L.allorv. NLRC, G.R No. 103586, Ju~ 21, 1994, 234 SCRA 311.
NLRC, G.R No. 89007,1/oo::h 11,1991, 195 SCRA92;Associaled LaborUniJns.TUCPv.
Nl.RC, G.R No.109328,Aug. 2 G.R No.102636, Sepl10, 1993.
G.RNo.131247,Jm.25,1999,302SCRA74.
L.
l
16,1994, 235 SCRA 395.
3 Prubri.e!SAssociaOOnV. Prudential Bank and TrustCoo1Jany, G.R. No.131247, Jan.
25,1999,302 SCRA 74.
CHAPTER Ill
171
lABOR STANDARDS
wage order. In short, the implementation of wage orders in one region but not in
agreements or recognized labor unions, the employers and workers should endeavor
A disparity in wages between employees holding similar positions
to correct such distortions. Any dispute arising therefrom should be settled
through
but in different regions does not constitute wage distortion as contemplated
the National Conciliation and Mediation Board (NCl\.1B) and, if it remains
by law. It is the hierarchy of positions and the disparit'; of their corresponding
unresolved after ten (10) days of conciliation, should be referred to any of the
Labor
wages and other emoluments that are sought to be preserved by the concept of
Arbiters of the appropriate branch of the NLRC. It shall be mandatory for the
l'-!'LRC
wage distortion. Put differently, a wage distortion arises when a wage order
to conduct continuous hearings and decide the dispute within twenty (20) days from
engenders wage parity between employees in different rungs of the
the time said dispute is submitted for compulsory arbitration. 1
organizational ladder of the same establishment. It bears emphasis that wage
3. Fffect ofpendency of a wage distortion dispute. - The pendency of a
distortion involves a parity in the salary rates of different pay classes which, as
a dispute arising from wage distortion
shall not, in any way, delay the applicability of
result, eliminates the distinction between the different ranks in the same region.
any increase in prescribed wage rates pursuant to the provisions of the Wage Order.
1
The difference in wages between employees in the same pay scale in
c. Prohibition on the staging of a strike or lockout involving the
different regions is not the mischief sought to be banished by the law. In fact,
issue of wage distortion.
R.A. No. 6727 recognizes "existing regional disparities in the cost of living"
in its Section 2. 1
3
Any issue involving wage distortion is not a valid ground for a strike or
such wage distortions .are in keeping with the public policy of encouraging
In the same case ofMdropolitan Bank/ the Supreme Court has given
employers to grant wages higher than legislated wage rates. 4
its imprimatur to the following formula for the correction of wage distortion in
the pay scale structures:
To compel employers simply to add upon legislated increases in
lockout.
l. In organized establishments. - Where the application of any prescribed
wage increase by virtue of a Wage Order issued by the RTWPB results in distortions
Wage distortion is not a proper ground to be invoked in support of a
of the wage structure within an establishment, the employer and the union should
strike or lockout. Disputes arising from wage distortion resulting from wage
negotiate to correct the distortions. Any dispute arising from wage distortions
should orders issued by the RTWPBs which
are alleged in the notice of strike or notice
be resolved through the grievance procedure under their CBA and, if it remains
of lockout should be referred to the Labor Arbiter if not settled within ten
unresolved, through voluntaty arbitration. Unless otherwise agreed by the parties
in (10) calendar days of conciliation by
the NCMB. 6
writing, such dispute should be decided by the Voluntaiy Arbitrator or panel of
Voluntaty Arbitrators within ten (10) days from the time said dispute was referred
to
voluntuy arbitration.3
~·
~ 2, SecOOn 1, Rule VII, lbkl.; A10C1e 124, IJid.; Section 7, ChapEr II~ llid.
2 P~ 2, Sedioo 1, Rule VII, Ibid.; AIOCie 124, Ibid.; Section 7, ~-IH, .liid.
l 3
Seciioo 16, ChapEr I, Rules Implementing RA No. 6727; llaw at Bukb:I!YJ Malggagawa
v. NLRC, G.R. No. 91980, June
1
2
ld.
GRNo.102636,Sept 10,1993.
I 5
'l/, 1991.
~ Associated Labor Unions-TUCP v. NLRC, G.R No. 109328, AuJ. i6, 1994, 235 SCRA
395.
Apex Ml1ilJ Co., klc. v. NIRC,{).R No..86200, Feb. 25, 1992,206 SCRA497, 501; M!
lropolitan Bank and Trust Company
L
3 Para:Jraph 1, SecOOn 1, Rule VII, NWPC Guide&les tb. 01, Seres of 2007, Jooe
19, 'JJYJ7 (Amended Rules of Procedure ~ LmrALU.lUCP v. NLRC, G.R No.
102636, Sept 10, 1993.
on Mnrnum Woo,e F;xi;g}; Article 124, 1..ctJor Code; SecOOn 7, Chapter II,
Rules mplementing R.A. No. 6727. 6
Section 6{cj, Rull V, NCMB Manual of Procedures for Coociali:ln i!1d PreverltM! Me!
iation Cases.
CHAPTER !II
benefit. 4
In the case of Bankard Employees Union-Workers Alliance Trade
NafiJM FedeaOOn oll.abcn. N.RC, G.R No. 103586, JIAy 21, 1994, 234 SCRA 31 Uletro
Transi!Organizati:ln, Inc. v.
It must be noted that in correcting wage distortion, the law does not
NlRC, G.R No. 116008, July 11, 1995,245 SCRA 767.
2
require that the difference which had previously existed between and among the
& Miele 95 [at labor Code.
~; Section 3, Rule V, Book Ill, Rules klifll>lement lhe labor~; No. VI [BJ,
OOlE lmdbook oo Workers Sta!u!oty
M:xtetary Benefits; lntegraled Ccnim CM1d Plui!OO;J WOO:s, klc. v. NI.RC, G.R No.
152427, Aug. 9, 2005.
Formerly called domestic helper or househelper. See R.A. No. 10361, olherllise
known as 1he ~Domestic Walkers
5
1 GR No.140689,Feb.17, 2004.
2 G.R.No.116008,.Mf11, 1995,245SCRA767.
A~ [January 18, 2013].
pregnancy and the probable date of her childbirth, which notice shall
The service incentive leave is commutable to its money equivalent if
be transmitted to the SSS in accordance with the rules and
not used or exhausted at the end of the year. 2 The phrase "leave with pay"
regulations it may provide;
means that the employee is entitled to his full compensation during his leave of
"(b) The full payment shall be advanced by the employer within thirty
absence from work. 3 In computing the service incentive leave benefit, the basis
(30) days from the filing of the maternity leave application;
is the salary rate at the date of ::omrnutation. The availrnent and commutation of
"(c) That payment of daily maternity benefits shall be a bar to the
4
the service incentive leave benefit may be on a pro-rata basis.
recovery of sickness benefits provided by this Act for the same
"(d) That the maternity benefits provided under this section shall be paid
To illustrate the computation of the service incentive leave (SiL) cash
only for the first four (4) deliveries or miscarriages;
commutation, an employee who is hired on January 1, 2017 and resigned on
"(e) T4at the SSS shall immediately reimburse the employer of one
March 1, 2018, assuming he has not used or commuted any of his accrued SIL,
hundred percent (100%) of the amount of maternity benefits
is entitled upon his resignation to the commutation of his accrued SIL as
advanced to the employee by the employer upon receipt of
follows:
satisfactory proof of such payment and legality thereof; and
entitled to."
2.
2. CONDITIONS TO ENTITLEMENT.
MATERNITY LEAVE6
The following are the qualifications for entitlement to maternity
1. COVERAGE.
benefits:
"Maternity leave" is the period of time which may be availed of by a
1. The female member should be employed at the time of delivery,
woman employee, married or unmarried, to undergo and recuperate from
miscarriage or abortion. ·
2. She must have given the required notification to the SSS thru her
1 Aitide 82, UibOr Code; SediOO 1, Rule V, Book Ill, Rules to lnvlement the Labor
Code; No. VI (A), DOLE Hcmbook on employer.
WOO<els Slatu1oty t.metal)' Benefils.
I
2 SediOO 5, Rule V, Book Ill, lbi:l.; No. Vl[q lbkl.
1 Esoosum v. San tJjgueiBrewely, loc., G.R No. L-16696; Joo. 31,1962.
4 No. VI[CJ, DOLE Handbook oo Wo!kern St!tu1ort tJooela!y Benefits.
s See No. VI (A], DOLE Handbook oo Wmas Statuby MJnetary 8enefjs based on the
opi1ion of DOLE Legal
L
SeMce.
1 /Is amended by RA No. 7322 as well as lheSocial SecOOty ActcA 1997 [RA No.
8282].
s MK:Ie131[133J,~Cv:!e; Section 14-A, Social Seculilylaw[RA.No.8282].
LABOR STANDARDS
within which she was already paid the maternity benefit. As a rule, no member
Entitlement to maternity leave benefits is not dependent on the civil
full or in two (2) equal installments. The first installment will be paid upon
The maternity benefits shall be computed as follows:
receipt of the maternity leave application. The second will be paid not later than
1) Exclude the semester of contingency (delivery, miscarriage or
thirty (30) days after payment of the first installment. Upon receipt of
abortion). A semester refers to two consecutive quarters ending
in satisfactory proof of such payment, the SSS will pay back the
employer the
the quarter of contingency. A quarter refers to three (3)
consecutive amount of maternity benefit it legally advanced to the
employee.
months ending in March, June, September or December.
3.
2) Count twelve (12) months backwards starting from the month
PATERNITY LEAVE
3
immediately before the semester of contingency.
3) Identify the six (6) highest monthly salary credits within the
12- 1. COVERAGE.
month period. "Monthly salary credit" means the compensation
"Patemity leave" covers a married male employee allowing him not to
base for contributions and benefits related to the total earnings
for report for work for seven (7) calendar days but continues to earn the
the month. 4
compensation therefor, on the condition that his spouse bas delivered a child or
his wife in her period of recovery and/or in the nursing ofthenewly-bom child.
monthly salary credit
together.
L
3
lABOR STANDARDS
2. CONDffiONS TO ENTITLEMENT.
( 1) A woman who gives birth as a result of rape and other crimes
Every married employee in the private and public sectors is entitled to a
against chastity even without a fmal conviction of the offender:
paternity leave of seven (7) calendar days with full pay for the first four (4)
Provided, That the mother keeps and raises the child;
deliveries of the legitimate spouse with whom he is cohabiting. The male
(2) Parent left solo or alone with the responsibility of parenthood due
employee applying for paternity leave should riotify his employer of the
to death of spouse;
pregnancy of his legitimate spouse and the expected date of such delivery?
(3) Parent left solo or alone with the responsibility of parenthood
Paternity leave benefits are granted to the qualified employee after the
while the spouse is detained or is serving sentence for a criminal
delivery by his wife, without prejudice to an employer allowing an employee to
conviction for at least one (1) year;
avail of the benefit before or during the delivery, provided that the total number
(4) Parent left solo or alone with the responsibility of parenthood due
of days should not exceed seven (7) calendar days for each delivery. In the
to physical and/or mental incapacity of spouse as certified by a
event that the paternity leave benefit is not availed of, said leave shall not be
public medical practitioner;
convertible to cash. 3
(5) Parent left solo or alone with the responsibility of parenthood due
3. AVAILMENT.
to legal separation or de facto separation from spouse for at least
The employee is entitled to his full pay, consisting of basic salary, for
one (1) year, as long as he/she is entrusted with the custody of the
the seven (7) calendar days during which he is allowed not to report for work
children;
provided that his pay shall not be less than the mandated minimwn wage. 4
(6) Parent left solo or alone with the responsibility of parenthood due
(7) Parent left solo or alone witt, the responsibility of parenthood due
1. COVERAGE.
to abandonment of spouse for at least one (1) year;
"Parental/eave" is the leave benefit granted to a male or female solo
(8) Unmarried mother/faiher who has preferred to keep and rear
parent to enable him/her to perform parental duties and responsibilities where
her/his child/children instead of having others care for them or give
physical presence is required.
them up to a welfare institution;
The parental leave shall not be more than seven (7) working days
(9) Any other person who solely provides parental care and support to
every year to a solo parent who has rendered service of at least one (1) year, to
a child or children;
enable him/her to perform parental duties and responsibilities where his/her
(10) Any family member who assumes the responsibility of head of
physical presence is required. This leave shall be non-cumulative. 6
family as a result of the death, abandonment, disappearance or
2
3
SecOOn 1(e), Ilk!.
SecOOn 2, RA No. 8187.
Sectioos 5emS, -ReWed Implementing Rules and Regulations of RA No. 6167
[March 13, 1997].
4 Sedioo~. Ibid.
II parent for support who are unmarried, unemployed and not more than
eighteen
(18) years of age, or even over eighteen (18) years but are incapable of self-
5
6
RA. No. 8972, 'The Solo Parents' Welfare Act of 2000' (November 7, 2000).
Section 18, Article V, Implementing Rules of R.A. No. 8972.
I; : Section ~G[b], Article Ill Ibid
Section 3[a]lbid
7 Section 6, RA. No. 8972.
' ., 6[e), Article m: Ibid:
L ~0·
lABOR STANDARDS
the same is greater than the seven (7) days provided for in the Act, the greater
(2) To give them love and affection, advice and counsel,
benefit shall prevail. Emergency or contingency leave provided under a
companionship and understanding;
company policy or a collective bargaining agreement shall not be credited as
(3) To provide them with moral and spiritual guidance, inculcate in
compliance with the parental leave provided for under the Act and its
them honesty, integrity, self-discipline, self-reliance,
industry and Implementing Rules. 2
thrift, stimulate their interest in civic affairs, and inspire
in them
compliance with the duties of citizenship;
c. Benefits.
(4) To furnish them with good and wholesome educational materials,
Any solo parent whose income in the place of domicile falls below the
supervise their activities, recreation and association with
others, poverty threshold as set by the National Economic
and Development Authority
protect them from bad company, and prevent them from acquiring
(NDDA) and subject to the assessment of the DSWD worker in the area shall be
habits detrimental to their healih, studies and morals;
eligible for assista.'lce: Provided, however, That any solo parent whose income is
(5) To represent them in all matters affecting their interest;
above the poverty threshold shall enjoy the benefits mentioned in Sections 6, 7
(6) To demand from them respect and obedience;
and 8 ofR.A. No. 8972, to wit:
(7) To Impose discipline on them as may be required under the
5.
circumstances; and
SPECIAL LEAVES FOR WOMEN WORKERS
(8) To perform such other duties as are imposed by law and upon
(MAGNA CARTA FOR WOMEN)3
parents and guardians. 1
3 The proper description of this law, RA. No. 9710, otheiWise known as 'The Magna
carta of Women" [August 14,
1 Section 3[c], Ibid.; Section 6[fJ, Article Ill, Ibid.
2009], is Magna Carta of Women (not Magna Carta for Women) since this is what is
embodied in the law.
2 Section 19, Article V, Implementing Rules of R.A. No. 8972.
1"~"''"-- . i.
lABOR STANDARDS
State shall progressively realize and ensure decent work standards for women
form of remuneration and fringe benefits, to a female employee as
against a male employee, for work of equal value; and
2 SedXx1 4(b), Chapter II, R.A. No. 9710, approved oo August 14, 2009; See a1oo
Section 7(c), rue II, ~ Rules
1 Section 21, Rule r.J, krcllementinQ Rules andRegul<b:insofRA No. 9710.
Md Regulltions d R.A. No. 9710.
2 Section 7(m), Rule II, Ibid.
3 ld.
t~-'--~. 4
lABOR STANDARDS
that involve the creation of jobs of acceptable quality in conditions of freedom,
"1. New applicants will not be allowed to be hired if in case he/she
equity, security and human dignity. 1
has [a] relative, up to [the] 3'd degree of relationship, already
The Supreme Court ruled that the dismissal based on this stipulation in
The following cases are relevant:
the employment contract is a valid exercise of management prerogative. The
I) Zialcita v. Philippine Airlines, Inc.3 - In this case decided by the
prohibition against personal or marital relationships with employees of
Office of the President, the provision in a contract between an airline company
competitor companies upon its employees was held reasonable under the
and a flight attendant which states that "flight attendant-applicants must be
circumstances because relationships of that nature might compromise the
single and that they shall be automatically separated from employment in the
interests of the company. In laying down the assailed company policy, the
event they subsequently get married" was declared as a null and void provision;
employer only aims to protect its interests against the possibility that a
hence, cannot be enforced for being contrary to Article 134 [136] of the Labor
competitor company will gain access to its secrets and procedures.
Code and the protection-to-labor clause in the Constitution.
c.
2) Philippine Telegraph and Telephone Company v. NLRC.4 - It
PROIITBITED ACTS
was declared here that the company policy of not accepting or considering as
disqualified from work any woman worker who contracts marriage runs afoul of
l. PROillBITED ACTS UNDER ARTICLE 135 [137] AND ITS
the test of, and the right against, discrimination afforded all women workers by
IMPLEMENTING RULES.
our labor laws and by no less than the Constitution.5
Article 135 [1371 of the Labor Code and its implementing rule consider
6
3) Star Paper Corp. v. SimboL Cornia and Estrella. - The following
unlawful the followings acts of the employer:
policies were struck down as invalid for violating the standard of reasonableness
~"'--•..
U\BOR STANDARDS
The Supreme Court agreed with the Court of Appeals in concluding that
2. DENIAL OF BENEFITS.
pregnancy. The Court was convinced that tile petitioner terminated the services
a) Facilities for women; 4
of respondent on account of her pregnancy which justified her absences and,
b) Maternity leave benefits; 5 and
thus, committed a prohibited act rendering the dismissal illegal.
c) Family planning services and incentives for family planning.6
II Lakpuc Drug, Inc. v. Belga.3 - Respondent was dismissed for
allegedly deliberately concealing her pregnancy and for incurring absences
2) To discharge any woman employee for the purpose of preventing
I.
her from enjoying any of the benefits provided under the Labor
without official leave for 16 days at which time she delivered her baby.
Code. 7
Petitioner argues that such non-disclosure is tantamount to dishonesty. In
that the alleged misconduct of Belga barely falls within the situation
already constitute a violation of Article 135 [137]. Under No. 2 above, it is
required that there must not only be denial but actual discharge or dismissal of
I contemplated by law. Her absence for 16 days was justified considering that
she
had just delivered a child, which can hardly be considered a forbidden act, a
the woman employee meant to prevent her from enjoying any of the benefits
under the Labor Code and not only of the benefits under Chapter I, Title III of
Book III of the Labor Code.
3. DISCHARGING A WOMAN DUE TO PREGNANCY.
dereliction of duty; much less does it imply wrongful intent on the part of
pregnancy. This argument, however, begs the question as to bow one can
conceal a full-term pregnancy. The Court agreed with respondent's position that
it can hardly escape notice how she grows bigger each day. While there may be
~
3 As prll'lided in Chapter I(Employment of Women), rttle Ill (Wo~ing Cond'rtions
for Special Groups of Employees)
of Book Ill of the Labor Code.
4 Under Article 130 [132], Ibid.
s Under Article 131 [133], Ibid.
1
3
7 See~ Section 13, Rule XII, Book Ill, Rules to lfllllementlhe Labor Code.
GR. No. 166379, Oct. 20, 2005.
4
s See paragraph (aj (2) and (3) thereof.
See Section 13, Rule XII, Book Ill of the Rules to Implement the Labor Code.
i
CHAPTER Ill
lABOR STANDARDS
189
EMPLOYMENT ENVIRONMENT.
the only ULP act of the employer which need not be related to the exercise 1
by
the employee of his right to self-organization and collective bargaining.
In a work-related or employment environment, sexual harassment is
committed when:
d.
SEXUAL HARASSMENT
1. The sexual favor is made a: condition in the hiring or in the
2
employment, re-employment or continued employment of said
{A.T'ITI-SEXUAL HARASSMENT ACD
individual or in granting said individual favorable compensation,
1. THREE (3) SITUATIONS ONLY.
terms, conditions, promotions, or privileges; or the refusal to grant
subordinate's hand and shoulder, caressing her nape and telling other people that
2. SPECIFIC ACTS PENALIZED.
the subordinate was the one who hugged and kissed him or that she responded to
The law punishes sexual harassment if the same is:
his sexual advances, was considered an act of sexual harassment for which he
was penalized by the company with a 30-day suspension whose validity the
1. . work-related; or
Supreme Court affirmed. 5
2. education-related; or
3. training-related.
3
Domingo v. Rayala.6 - This involves a sexual harassment suit filed
against Rogelio I. Rayala, the former Chairman of the National Labor Relations
3. PERSONS WHO MAY BE LIABLE FOR SEXUAL HARASSMENT.
Commission (NLRC) by a subordinate, Ma. Lourdes T. Domingo, then
Work, education or training-related sexual harassment is committed by
Stenographic Reporter lll. Rayala contends that the acts ascribed to him do not
any employer, employee, manager, supervisor, agent of the employer, teacher,
constitute sexual harassment because Domingo did not allege in her complaint
instructor, professor, coach, trainor, or any other person who, having authority,
that there was a demand, request, or requirement of a sexual· favor as a condition
influence or moral ascendancy over another in a work or training or education
environment, demands, requests or otherwise requires any sexual favor from
1 ld.
2 ld.
;._
······'·.:.._...._._
commission of acts of sexual harassment and to provide the procedures for the
"xxx
maybe.'
In an education or training environment, sexual harassment is
committed:
7. SOME PRINCIPLES ON SEXUAL HARASSMENT.
1. against one who is under the care, custody or supervision of the
l) The employer or head of office or the educational or training
offender;
institution are solidarily liable for damages arising from the acts of
2. against one whose education, training, apprenticeship or tutorship
sexual harassment committed in an -employment, education or
is entrusted to the offender;
training environment, if such employer or head of office or
3. when the sexual favor is made a condition to the giving of a
educational or training institution is informed of such acts by the
passing grade, or the granting of honors and scholarships, or the
offended party and no immediate action is taken thereon?
payment of a stipend, allowance or other benefits, privileges, or
considerations; or
4. when the sexual advances result in an intimidating, hostile or
offensive environment for the student, trainee or apprentice.'
1 Section4, lbki.
2 Section 5, Ibid.
1 Sectioo 3[b1 RA No. 7877.
but below eighteen (18) shall be allowed to work between ten (10)
2.
o'clock in the evening and six (6) o'clock in the morning of the
MINORS5
following day. 2
1 Sedion 6, Ibid.
2 Sedion 7' Ibid.
3 Sedion 7, Ibid.
Section 15, ~ 5, W.; Section 12-A, RA No. 7610, as added by Sedion 3, RA No. 9231.
4 GR No. 140604, M:Ych 6, 2002.
3 ld.
s Relevant~: Labor Code, RA No. 7678 and RA No. 9231.
KASAMBAHAY 1
5. PROillBITION ON THE EMPLOYMENT OF CHILDREN BELOW 15
1. EXPRESS REPEAL OF ENTIRE CHAPTER ID, TITLE ID, BOOK III
YEARS OF AGE; EXCEPTIONS AND CONDITIONS.
OF THE LABOR CODE.
1. General rule. The general rule is that no child below fifteen
(15) This Chapter on Househelpers
originally covers Articles 139 [141] to
years of age shall be employed, permitted or suffered to work in
any 150 [152]. The entire Chapter III,
however, has been expressly repealed by RA.
2
public or private establishment.
No. 10361, otherwise known as "Domestic Workers Act" or "Batas
intent of repealing the said provisions, did not follow the numbering pattern of
(a) When the child works under the sole responsibility of his/her
the Labor Code, as renumbered lately pursuant to Section 5 ofR.A. No. 10151
parents or guardian, provided that only members of the
child's
[June 21, 2011]. It, in fact, has its own designation of its provisions which it
family are employed.
denominated as "sections." This notwithstanding the fact that it merely
(b) When the child's employment or participation in public
rehashed or revived some principles already embodied in the repealed provisions
entertainment or information is essential, regardless
of the of the Labor Code. For purposes of
discussion, therefore, its substantive
3
provisions are presented herein following the presentation in the law itself.
extent of the child's role.
3. Cohditions to the prohibition. Such employment shall be
strictly 2. COVERAGE.
under the following conditions:
R.A. No. 10361 applies to all domestic workers employed and
a) The total number of hours worked shall be in accordance
with working within the country. 3 It shall
cover all parties to an employment contract
Section 15 [Hours of Work of a Working Child] of the Rules
for the services of the following Kasambahay, whether on a live-in or live-out
[supra];
arrangement, such as, but not limited to:
b) The employment does not endanger the child's life, safety,
(a) General househelp;
health and morals, nor impair the child's normal
development; (b) Yaya;
c) The child is provided with at least the mandatory
elementary or (c) Cook;
secondary education; and
(d) Gardener;
4
{e) Laundry person; or
d)· The employer secures a work permit for the child
"Normal development of the child" refers to the
physical,
emotional, mental, and spiritual growth of a child
within a safe
and nurturing environment where he/she is given adequate
1 RelevaltliM: RA No. 10361.
nourishment, care and protection and the opportunity to
perform
2 Ais ptM!ed il its Section 44, flus: 'SEC. 44. Repealrg Claise.- AI aOCfes or
pllNisions ct ~ Ul ~of
5
~)of PD. No. 442, as anended illd rwrbered by RA No. 10151 are hereby expresstj
repealed. AD M,
tasks appropriate at each stage of development.
deaees, execuwe ordefs, issuanCeS, lUes !l1d regulations or piJ!s flerect
R:onsistent wilh 1he p!O\'OOis ct 115 Pd. are
efl1lloyed oo ful or part-line basis, are already expressty repealed: Article 139
[141] (Coverage); Article 140 (142] (Con1ract
1 Sedion 6, Chapter 2, Department Order No. 65-04; Sedion 14, Miele VIII,
RA No. 7610, as amended by Section 5, RA of OcxnesOC SefVice); Article 141
(143] (Mnilrum Wage~ Miele 142 (144] (Mnimum Cash Wa;Je); Article 143 ~45]
(d) "Employer" refers to any person who engages and controls the
(f) Any person who regularly p.erfonns domestic work in one
services of a Kasambahay and is party to the employment contract. 2
household on an occupational basis!
4. DEFINITIONS.
5. HIRING OF KASAMBAHA Y.
Some important terms are defined below:
a. Mode of Hiring. - A Kasambahay can be hired by the employer
10
BecaUse of these new terminologies prescribed in the law, the use of
justifiable reason within six (6) months from employment.
the term "househelper'' may no longer be legally correct.
"Deployment expenses" refers to expenses that are directly used for
(b) "Domestic work" refers to work performed in or for a household
the transfer of the Kasambahay from place of origin to the place of work
6
covering the cost of transportation, meals, communication expense, and other
or households.
(c) "Household" refers to the immediate members of the family or the
lABOR STANDARDS
(k) Any other lawful condition agreed upon by both parties. If the
document showing the age of the Kasambahay such as voter's
shall have the obligation to furnish a copy of the employment contract to the
To make the relationship between the employer and the kasambahay
Kasambahay and to. the Office of the Plmong Barangay in the barangay where
more formal, R.A. No. 10361 4 requires that a written contract of employment be
L.
l Section 12, A11k:1e Ill, RA No. 10361; Sectioo 4, Rule II, lmplementilJ
Rules and RegulalionS of RA No. 10361. 4
lABOR STANDARDS
coockJsioo lhat Sld1 ElfllloYment coo9:t is tJr a "Bm', Vrus: 'SEC. 32.
Temilation d SeM::e.- Neilher l1e domestic Clld before
1l1e expiation d ils leml, nether the domestic W0111er nor the eJ11lklyer may
Enritale l except on 111e grounds
IWiker nor l1e en1Jioyer may Eminate !1e mact before l1e expiakx1 ci l1e tEnn
except tJr g!Mds pnMded for il ll1lliOOled
il111e law itsef.
2 This Is dear toot Seclkx132, his: 'SEC. 32. Temilatioo of SeMce. - Nei!1er the
domestic IWiker nor 1l1e eR1Jioyer may
Sections 33 and 34 rJ. U1is />D.. J:J:t This cbsetvalion is further
sb'eogl1ened by 1l1e openilg paagraphs d sad Sections 33
and 34, his: 'SEC. 33. Te;rnilation nitiated by 1l1e Oomeslk \'o\ner. - The
domestic IWiker may ilrmilale fie lennilate lhe
contract before !1e expiation cA the loon exa!pl b' grounds prtl'lided b' i1
Sections 33 end 34 cl Ills />D..'
~~ aiBlrf tine babe lle expiaOOn rJ.111e <XX11rcnb: Blrf rJ.1he ~causes: u:t
Clld 'SEC. 34. Section 33 teals
of the iJst caJSeS i1 cases cllennilaOOn kilialed by 1he Domesti: Woker end Section
34 speaks d lle
Te111'i1aion nlaled by 111e ~--!vi ~may temila!e lle services ci fie domestic
IWiker at Blrf ine before jJStcauses m le!
milaOOn isillia!ed by111e ~.
l1e expiation d l1e oonllatt, b' Blrf d1he bbWvJ causes~
3 il case lle ~ conba:t b' domes&: services does net ptrNide b' a specific cr
deli1iive 1erm, 2nd paagrap11 rJ.
2 NotaJiy, RA ltl. 10361 ro bYJer I1B1dales that a det'riE nurrber d yeas be ~
illle aiJm mact rJ. Seclkx132, Mkte
VrJ RA NO. 10361 Slates, his: 'SEC. 32. Temi'lalion d SeM::e.- XXX 111e cUation
rJ.Ihe domes&:
~ d dareslk: IWikers. lkxler 11e OfiJm rendefiVJ <t Altfe 142 cllle t.axr
Code, 1is p«Niled flat ~ seM:e Is not
delem'iled eihr i1 ~ cr by l1e nahJe cllhe seM:e, 1he eJl1lkrtlr 1r fie domestic
Y«llker may gr.oe
aiJm cxnracta domestic seM:e s11a1 net ~a&b' nne 1m t.w (2) yeas but 1may be
renewed 111m peRxls as may nOOce 1o end 1he
VtiXki1g ~ fNe (5) days before lle i1lerded temi1alion rJ 1he SENi:e.' ft is hJs ~
dea' toot
be ClJfeed ~by thepllties.'This perkxl-inilaiD1 has alreOOy been deleled
illle new llfN. lis
proviskln, Wlk:h Is a~ l81ash of lle ~ hi:le 150 rJ 1he Labor Code, llatro
IJreSll11ltion d reglDily d
3 Neller RA ltl. 10361 nor 11e 1..a1xr Code enixJdies Blrf pro~xm~y Eff!
lloyment ~ 1o OOmesti: mers. f!
ll1lklYment rmt m flon1 11e faiJre cl the ~ Clld the domestic W0111er 1o ~
on a detiie lenn.
Al1ough i1 cases of OYerseas Fif4Ji1o V«Hkees vhl are deployed as doolestic
Y«llkers cboad, l1e • rJ such Consequentlt,
the erJ'I)bymeot ~ is temirlOOie by fie sir1J1e exped'lel'la! cllle Sf!lloyer or
1he domestic Y«llker
prOOali:JMy perb:l of~~ is reoognized, but 1l1e SCire is att b' lle pUipose
rJ delermini1g M1elher lle danes1i:: 'gr.{llg) notK:e
llend 111ew:MJ rel:ltillship five (5) days bebe fie il\stded llillnilalion
cllleseivice.'
W0111er has qurjied ulle fixed.l!m1 ~~ ~ by lle pa&!s as held i1 ~ SeMces
and 4
This is !I10ther ildication that lle eiJ1lbyment ~ between a domestic IWiker Clld
lish1er en1Jbfer is not regular n
Resou«:es, klc. v. lvlita Rodtlluez. GR ltl. 152616, Mll:h 31, 2006.
nahJre is 1he grant cllle Jij1t ll eilher of lhem to pre-lemlilale 1hei' oontract
of Efl'llblment un:ler the 3id paragtaph of
4 This is 00\bJs fltrn 1l1e t.lct lhat ll1efe is 00 pltNision cA law v.llk:h
makes reference 1o lhe appli3lllly d said p!llYiskJn 1o Section 32,
Miele Vcl RA No. 10361, lhus: 'SEC. 32. Termilation cl SeM::e.- XXX 'The domestic
Y«llker end lhe
h! eflllkJymentof domesticwo!kers. On111e oonfiary, l1e ~rJV«lll<ers b' en
ildelilite perb:l is ootifuNed and en1Jioyer may
I1XJb:Ja'ly 3Jtee upon w.itleo notice D pre-lenni1a1e the oontract of ~ Ill end lhe
employment
they do not becon1e reg!B' ~ by reason of the nature of therm Series of re-
hin;l or renewal clthe oontact of relationsl!ip."
It beals noth1g llat 81ere is no similar provision illhe entire Lm' Cede v.llk:h
grcJ\Is the sane light of pre-
ef11lloYmenl of adomestic WO!ker does not llev.ise lipen il1o regula'~
lennilation tl 1l1e erlll~Jyer Clld the domestic woiXer ~). Under exisli1g law Ol1d
jlrisprudence, never is K
5 The refief oen legaly d'ISITissed d<xnesti: IWiker is found i1 Seclkx132,
Mlde vof RA. No. 10361 m speaks of 11e p!tl'lkled IX'
abNed il Blrf ~ b: 1l1e ~ ood ~ fD pre-ferrrme lheb' regula' relaOOnship by siT1llf
ilki1g en
penalty v.l1en the errq>loyer 'unjustly d'JSmisses' 1l1e domestic W0111er.
Thus, '(i)f the domestic waller is ~ dismissed, a;~reement of
pre-tennination. In fact, such a;~reement on pre{emlilation has been slruck doYm as
a nul stipulation il cr1
the domestic'Mlltershal be paid the~ already earned P'Js the
equivalentofflfleen (15) days WOI1I by wat of
emplcyment contract illhe case of Price v.lnncxlata Phils., lr.cJ1nnodata Corp.,
G.R No. 178505, Sept 30, 2008.
5
ildermity~
Per Section 1, Rule IV, lmplemenli'g Rules and Regula1ions<tRA. No. 10361.
L~
lABOR STANDARDS
following conditions:
follows:
"SEC 24. Minimum Wage. - The minimum wage of domestic
(a) The Kasambahay is· clearly shown to be responsible for
workers shall not be less than the following:
the loss or damage;
(a) Two thousand five hundred pesos (1"2,500.00) a month for
(b) The Kasambahay is given reasonable opportunity to show
those empioyed in the National Capital Region (NCR);
cause why deduction should not be made;
(b) Two thousand pesos (1"2,000.00) a month for thl)se employed
in (c)
The total amount of such deductions is fair and reasonable
chartered cities and first class municipalities; and
and shall not exceed the actual loss or damage; and
(c) One thousand five hundred pesos (1"1,500.00) a month for
those
employed in other municipalities.
(d) The deduction from the wages of the Kasambahay does
chits, or any object other than the cash wage as provided for
• Frequency of payment of wages. - The wages . of the
under this Act. 5
Kasambahay shall be paid at least once a month. 4 This is so
I 3
ld.
lABOR STANDARDS
(a) Forcing, compelling, or obliging the Kasambahay to
purchase merchandise, commodities or other
properties d.
l31h month pay. - The Kasambahay who has rendered at least one ·
from the employer or from any other person; or
(1) month of service is entitled to a 13th month pay which shall not be less than
(b) Making use of any store or services of such employer
or one-twelfth (l/12) of
his/her total basic salary earned in a calendar year. The
any other person. 1 ·
131h month pay shall be paid not later than December 24 of every year or upon
6. Prohibition against withholding of wages. - It shall be
separation from employment. 1
unlawful for an employer, directly or indirectly, to
withhold e. Daily
rest period. - The Kasambahay shall be entitled to an
the wages of the Kasambahay. If the Kasambahay leaves
aggregate rest period of eight (8) hours per day. 2
without any justifiable reason, any unpaid salary for a
period
not exceeding fifteen (15) days shall be forfeited.
Likewise, f. Weekly
rest period. -The Kasambahay shall be entitled to at least
the employer shall not induce the Kasambahay to give up
any twenty-four (24)
consecutive hours of rest in a week. The employer and the
part of the wages by force, stealth, intimidation, threat
or by Kasambahay shall agree in
writing on the schedule of the weekly rest day but
any other means whatsoever. 2
the preference of the Kasambahay, when based on religious grounds, shall be
· respected. 3 Nothing in this provision shall deprive the Kasambahay and the
10. TERMS AND CONDITIONS OF EMPLOYMENT.
employer from agreeing to the following:
The following is a rundown of the basic terms and conditions that
(2) Waiving a particular rest day in return for an equivalent daily rate
a. Employable age. - Children whose age is below 15 years are
of pay;
absolutely pronibited to work as Kasambahay. 3
(3) Accumulating rest days not exceeding five (5) days; or
and shall be entitled to all the benefits in accordance with their respective
c. Normal daill hours of work for working child-kasambahay is
policies, laws, rules and regulations. 6
eight (8) hours per day.
. :
Chi:lren Against Chikl Abuse, ExpkJitation and asaini1aOOn M.'
2
Sedion20,Mkle IV, RA No. 10361; Section 5, Rule IV, lmplementilg Rules and
RegulationsofRA. No.10561.
4 Silce as ea1ier discussed, RA No. 7610, as amended by RA No. 9231, applies 1o a
'chiid' v.tlk:h l.eml, il legal 3
lABOR STANDARDS
1
s SecOOn 3, Rille V, llro.
Sedioo 5, Article II, Ibid.; SecOOn 12, Rule W, llid.
s Section 10, Rille IV, llid.
2 SecOOn 6, Article II, lb«<.; Section 13, Rule IV, Ibid.
L.
7 Section 11, Rille IV, Ibid.
3 Sec00n 7, Article 11, Ilk!.; Section 14, Rule IV, llid.
4
s Sedioo 14,Article Ill, RA No.10361; Section 7, RllleV, Ibid.
Sedioo 8, Article II, Ibid.; Section 15, Rule W, bid.
lABOR STANDARDS
shall be inadmissible in evidence, except when the suit involves the employer or
industrial or agricultural enterprise at a wage rate lower than that provided for
any member of the household in a crime against persons, property, personal
agricultural or non-agricultural workers. 1
liberty and security and chastity .1
The following cases decided prior to R.A. No. 10361, are still relevant
f. Opportunities for education and training. - The Kasambahay shall
to this proscription in the law:
be afforded the opportunity to finish basic education, which shall consist of
(l) Apex Mining Company, Inc. v. NLRC.2 - In this case, the High
elementary and secondary education. He/she may be allowed access to
considered a regular employee thereof. The mere fact that the househelper is
technical vocational education and training.
working within the premises of the business of the employer and in relation to or
The employer shall adjust the work schedule of the Kasambahay to
in connection with its business, as in its stafthouses for its guest or even for
its
allow his/her access to education or training without hampering the services
officers and employees, warrants the conclusion that such househelper is and
required by the employer. Access to education may include fmancial assistance
should be considered as a regular employee of the employer and not as a mere
at the option of the employer.
family househelper or as contemplated in the law. 3
The Department of Education (DepEd) shall ensure continued access of
(2) Remington Industrial Sales Corp~ v. Castaneda.4 - The same
the Kasambahay to alternative learning system education. 2
ruling as in Apex was made in this case. Respondent worked at the company
premises and her duty was to cook and prepare its employees' lunch and
g. Membershin in labor organization. - The Kasambahay shall have
merienda. Clearly, the situs as well as the nature of respondent's work as a cook,
the right to join a labor organization of his/her ovm choosing for purposes of
who caters not only to the needs of Mr. Tan (Managing Director of petitioner)
mutual aid and collective negotiation. The Kasambahay shall be afforded
and his family but also to that of the petitioner's employees, made her fall
opportunity to attend organization meetings during free tirne. 3
arranged meetings between these visitors and the Head Monk and supervised the
j. Assignment to non-household work. - The employer shall not
preparation of the food for the temple visitors; acted as tourist guide of foreign
assign the Kasambahay to work, whether in full or part-time, in a commercial,
visitors; acted as liaison with some government offices; and made the payment
for the temple's Meralco, MWSS and PLDT bills. Indeed, these tasks may not be
L.
lABOR STANDARDS
regulations. 1
for the purpose, particularly on the tasks to be performed;
(b) The Kasambahay is entitled to additional payment of not less than
13. TERMINATION OF KASAMBAHAY.
the applicable minimum wage rate:
a. Pre-termination of employment - The following rules shall be
(c) The original employer shall be responsible for any liability
observed:
incurred by the Kasambahay on account of such arrangement; and
(1) ln case the duration of employment is specified in the contract, the
(d) The original employer is not charging any amount from the other
Kasambahay and the employer may mutually agree upon notice to
household for the arrangement.
terminate the contract of employment before the expiration of its
term.Z
The temporary pe1formance of work shall not exceed thirty (30) days
per assignment. The ot1er household where the Kasambahay is temporarily
(2) In case the duration is not determined by stipulation or by nature of
assigned is solidarily liable with the original employer for any non-payment of
service, the employer or the Kasambahay may give notice to end
wages during such temporary assignment.
the employment relationship five (5) days before the intended
termination of employment..;
It shall be unlawful for the original employer to charge any a.rnount
from the said household where the service of the Kasambahay was temporarily
b. Termination of employment initiated by the Kasambahay. - The
performed. 1
Ka~ambahay may terminate the employment relationship at any time before the
1 SecOOn 2, Rule VI, ~IPJ Rules and Re;!Ualions of RA tfl. 10361. Ad<litioMli.
~is prcMded thEreil as foloy,s:
(
Section 16, Al1ide Ill, RA. No. 10361; Sedion 3, IUl VI, lbi:l.
1hal measures are il place ID ensure COIJlllicnce wi1h lhe staldcrds b' ~loyment of
chilren il domestic v.uri< as
s Entitled 'An Ad. Providing ti:J 1he Eliminalioo of lhe Woo;t Foons of Child
l..alxx' lH1d Affold"lllQ Slronger ProEction for 1he !l presaiJed
in !his Rule.'
WOO<i1g Chikl, .Amendi1g for !his PurposeReplilt Ad. No. 7610, As Amended,
Olherv.te kflooMl as the 'Special Pro1ection 2 Section
32, Article V, RA No. 10361; Sedion 1, Rule VII, inlJiementilg Rules and
Regulations of RA. No. 10361.
of Children Against Child Abuse, Explailatioo and lmililaliln Act'
i 3 ld.;ld.
L . 4
lABOR STANDARDS
4.
If the Kasambahay leaves without cause, any unpaid salary due, not
HOMEWORKERS2
exceeding the equivalent of fifteen (15) days work, shall be forfeited. In
1. DEFINITIONS.
addition, the employer may recover from the Kasambahay deployment
expenses, if any, if the services have been terminated within six (6) months from
a. "Industrial homeworker" refers to a worker who is engaged in
employment.2
industrial homework. 3
c. Termination of employment initiated by the employer. - An
b. "Industrial homework" refers to a system of production under
employer may terminate the employment of the Kasambahay at any time before
which work for an employer or contractor is carried out by a homeworker at
the expiration of the contract for any of the following causes:
his/her home. Materials may or may not be furnished by the employer or
having such goods or articles pmcessed in or about a home and then repurchases
d. Invalid ground for termination. - Pregnancy and marri~e of the
them himself or through another after such processing.
Kasambahay are not valid grounds for tennination of employment. 5
e. Employment Certification. - Upon the termination of employment,
the employer shall issue the Kasambahay, within five (5) days from request, a
2 ReleVcl1t ProYi:six15: Ar1kles 151 [1531 t>153 [155J, l.alloc Code; Depas1ment
Older No. 5, fSxuay 4, 19921 en~
II ~
kl.
kl.
L~ "
CHAPTER Ill
215
lABOR STANDARDS
f. "Contractor" or "subcontractor" refers to any person who, for the
substances. 1
homeworker, goods or articles to be processed in or about his home and
thereafter to be returned, disposed of. or distributed in accordance with the
5. CONDITIONS FOR DEDUCTION FROM HOMEWORKER'S
direction ofthe employer. 1
EARNINGS.
g. "Processing" refers to manufacturing, fabricating, fmishing,
a. Deductions for lost, destroyed, soiled or damaged materials.
repairing, altering, packing, wrapping or handling in any way connected with the
production or preparation of an article or material. 2
No employer, contractor or subcontractor shall make any deduction
from the homeworker's earnings for the value of materials which have been lost,
2. DUTIES OF EMPLOYER, CONTRACTOR OR SUBCONTRACTOR.
destroyed, soiled or otherwise damaged unless the following conditions are met:
Whenever an employer contracts with another for the performance of
a) The homeworker concerned is clearly shown to be responsible for
the employer's work, it shall be the duty of such employer to provide in such
the loss or damage;
contract that the employees or homeworkers of the contractor and the latter's
b) The homeworker is given reasonable opportunity to show cause
subcontractor shall be paid in accordance with the provisions of the Rules to
why deduction should not be made;
Implement the Labor Code? In the event that such contractor or subcontractor
c) The amount of such deduction is fair and reasonable and shall not
fails to pay the wages or earnings of his employees or homeworkers as specified
exceed the actual loss or damage; and
in said Rules, such employer shali be jointly and severaily liable with the
d) The deduction is made at such ratt: that the amount deducted does
contractor or subcontractor to the workers of the latter, to the extent that such
not exceed twenty percent (20%) of the homeworker's earnings in a
work is performed under such contrac~ in the same manner as if the employees
week. 2
or homeworkers were directly er,gaged by the employer. The employer,
contractor or subcontractor shall assist the homeworkers in the maintenance of
5.
basic safe and healthful working conditions at the homeworkers' place ofwork. 4
NIGHT WORKERS
3. PAYMENT FOR HOMEWORK.
1. SIGNIFICANCE OF THE LAW.
3
Immediately upon receipt of the fmished ·goods or articles, the
R.A. No. I0151 has repealed Article 130 [Nightwork Prohibition] and
employer is required to pay the homeworker or the contractor or subcontractor,
Article 131 [Exceptions] of the Labor Code and accordingly renumbered the
as the case may be, for the work performed less the corresponding
same articles. Additionally, it has inserted a new Chapter V to Title III of Book
homeworker's share of SSS, PhilHealth and ECC premium contributions which
III of the Labor Code entitled "Employment of Night Workers" which addresses
should be remitted by the contractor or subcontractor or employer to the SSS
the issue on nightwork of all employees, including women workers. Chapter V
with the employer's share. However, where payment is made to a contractor or
covers newly renumbered Articles 152 [154] up to 167 [161] of the Labor Code.
subcontractor, the homeworker should likewise be paid immediately after the
2. COVERAGE OF THE LAW.
goods or articles have been collected from the workers. 5
The law on nightwork applies not only to women but to all persons,
4. PROHIDITIONS ON CERTAIN KINDS OF HOMEWORK.
who shall be employed or permitted or suffered to work at night, except those
and Regulali:xls.
I Sedioo 11, DepaVnent<JderNo. 5[Rule XIV, Booil\11, RJJ\esto lr(Jiementlhe Labor
Code.
5 Sectioo 6, Ibid.
3
Entitled "lvl Ad~ the ~of N~htWOI1<ers, ll1ereby RepeaiVJ Mk:les 130 and 131 rAPD.
No. 442, As
Amended,~ KnoYm as lhe Labor Code of lhe Ph!ippines' was appiMd oo June 21, 2011.
CHAPTER Ill
216 BAR REvtEWER ON lABOR lAW
lABOR STANDARDS
217
or
representatives/labor organizations and employers. 1
ii. Where the start or end of the night work does not fall within
3. NIGHT WORKER, MEANING..
12 midnight to 5 o'clock in the morning; or
"Night worker" means any employed person whose work covers the
iii. Where the workplace is located in an area that is accessible
period from 10 o'clock in the evening to 6 o'clock the following morning
twenty-four (24) hours to public transportation;
provided that the worker performs no less than seven (7) consecutive hours of
iv. Where the number of employees does not exceed a specified
work. 2
number as may be provided for by the DOLE Secretary in
4. HEALTH ASSESSMENT.
subsequent issuances. 1
At their request, workers shall have the right to undergo a health
6. TRANSFER DUE TO UNFITNESS OF WORK FOR HEALTH
assessment without charge and to receive advice on how to reduce or avoid
REASONS.
health problems associated with their work:
Night workers who are cei"tified by competent physician, as unfit to
(a) Before taking up an assignment as a night worker;
render night work, due to health reasons, shall be transferred to a job for
(b) At regular intervals during such an assignment; or
which they are fit to work whenever practicable. The transfer of the employee
(c) If they experience health problems during such an assignment.
must be to a similar or equivalent position and in good faith.
With the exception of a finding of unfitness for night work, the findings
If such transfer is not practicable or the workers are una ole to render
of such assessments snail be confidential and shall not be used to their
night work for a continuous period of not less than six (6) months upon the
detriment, subject, however, to applicable company policies. 3
certification of a competent public health authority, these workers shall be
granted the same company benefits as other workers who are unable to work due
5. MANDATORY FACILITIES.
to illness.
Mandatory facilities shall be made availabie for workers perfonning
I 1
L
a Sectkw13, Oepa1meot Order No. 119-12, Series ol2012 (Rules ln1Jiemeolirq RA No.
10151); Article 153 (155], t.a1xr 2 Sectbn5,
ki.Mi:ie157,1d.
COOe, as amended bySection4, RA No.10151.
4
219
lABOR STANDARDS
1
after childbirth other than the period mentioned in the
foregoing l3 h month pay, and other benefits as provided for by law,
company policy or
paragraph, provided that the length of additional period should
not CBA. 1
be more than four (4) weeks or for a longer period as may be
agreeg 11. SOCIAL SERVICES.
upon by the employer and the worker; ·
ii. extension of maternity leave; and
Appropriate social services shall be provided for night workers and,
before it is implemented. 3
8. NON-DIMINUTION OF MATERNITY LEAVE BENEFITS UNDER
EXISTING LAWS.
The law and its rules shall not be construed to authorize diminution or
----oOo-----
reduction of the protection and benefits connected with maternity leave under
existing law. 2
9. PROTECTION AGAINST DISMISSAL AND LOSS OF BENEFITS
ATTACHED TO EMPLOYMENT STATUS, SENIORITY AND
ACCESS TO PROMOTION.
Where no alternative work can be provided to a woman employee who
is not in a position to render night work, she shall be allowed to go on leave or
on extended maternity leave, using her earned leave credits.
A woman employee shall not be dismissed for reasons of pregnancy,
childbirth ·and childcare responsibilities. She shall not lose the benefits
regarding her employment status, seniority, and access to promotion which may
attach to her regular night work position.3
10. COMPENSATION.
The compensation for night workers in the fonn of working time, pay
or similar benefits shall recognjze the exceptional nature of night work. 4
Consequently, such compensation shall include, but not be limited to,
working time, pay and benefits under the Labor Code, as amended and under
II \ SediJn 9, ld.
~160,1d.
3 Section 8, ld. Article 158, ld.
L
4 Artide 159, ld.
3 Sectioo 10, ld. Article 161, ld.
220
CHAPTER IV 221
POST EMPlOYMENT
CHAPTER FOUR
2) Payment of wages or salaries;
to control the employee not only as to the result of the work to be done but also
A. Employer-Employee Relationship
as to the means and methods by which the same is to be accomplished. 2
1. Tests to determine employer-employee relationship
2. Kinds of employment
3. THE FRANCISCO DOCTRINE: 2-TIERED TEST OF EMPLOYMENT
3. Subcontracting versus Labor-Only Contracting
RELATIONSHIP.
a. Elements
While the control test may be the most important index to detennine the
b. Trilateral relationship
existence of the employer-employee relationship, however, in certain cases, the
c. Solidary liability
control test is net sufficient to give a complete picture of the relationship
between the
B. Termination of Employment
parties, owing to the complexity of such a relationship where several positions
have
1. Termination by Employee
been held by the worker. There are instances when, aside £:om the employer's
a. Resignation versus Constructive dismissal
power to control the employee with respect to the means and methods by which the
2. Termination by Employer
work is to be accomplished, economic realities of the employment relations help
l!. Just Causes
control not only the end [to be] achieved but also the manner and means [to be
l. FOUR-FOLD TEST.
1) Selection and engagement of the employee;
1 ~Gklbal Comrrunications, klc. v. Oe Vera, G.R No. 157214, .krle 7, 2005.
2 Galego v. Bayer Philippines, Inc., G.R No. 179807, J~ 31, 2009, 594 SCRA 736.
3 See the dissentirYJ opinko of tvt. Justk:e Arhlro BOOn in the 2013 case of Re:
Request of (Ret) Chief Justice Artemio V.
1 This topic is designated as No. 3under the general topic of "Due Process.' It
is tile view of tile author that this topic P~rim for Re-r.crnpulalio of his
Creditable SeiVk:e for the PulpOse d ~ his Retirement Benefits, A.M.
has no direct relation to due process and, therefore, must be treated as
aseparate and distinct topic. No.W-9-15-SC, Feb.l2,
2013v.lleretllis 2·1iered1estisexlensWidiscussed.
2 This topic is designated as No. 4 under tile general topic of "Due Process.'
For the same reason as above, this 4 G.R. No. 170087, Aug. 31, 2006.
topic should be presented as aseparate and dislinct topic.
5 ld.
POST EMPLOYMENT
used in reaching such] end"1 the broader economic reality test calls for the
of an employer-employee relationship between petitioner and respondent
detennination of the nature of the relationship based on the circumstances of the
corporation.
whole economic activity. 2 Under this test, the proper standard of economic
Based on the foregoing, it is clear that the two-tiered test gives a complete
dependence is whether the worker is dependent on the alleged employer for his
picture of the relationship between the parties. Aside from the employer's power to
continued employment in that line of business. 3 In the United States, the
touchstone control the
employee, an inqui.'Y into the economic realities of the relationship helps
of economic reality in analyzing possible employment relationships for purposes of
provide a comprehensive analysis of the true classification of the individuaL
whether
the Federal Labor Standards Act is dependency. 4 By analogy, the benchmark of
as employee, independent contractor, corporate officer or some other capacity.
economic reality in analyzing possible employment relationships for purposes of the
Labor Code ought to be the economic dependence of the worker on his employer.
Following the broader economic reality test, the Supreme Court found
1 ld.
2. These citlrnstlllces ;re as foi!<wls: (1) The extent kl v.!lidllhe seMce5
perfonned are 111 iniEgral pat It lhe erJ1lloyel's
business; (2) The extent ct the wnef's i1Vestmenl in equ~ !lld fadlities; (3)
The nature and degree of cootrol
2 Caurdane!aan Pece WOO:ers Union v.laguesma, G.R No.113542. Feb. 24, 1998,286
SCRA401, 426.
exeftised by lhe eiJ1ll<7fer; (4) The V«rtef's qlpOrtunily for proiU !lld
klss; (5) The amount ct initiative, skil, jJdgmenl or 3
faesght required b" lhe success ct l1e claired i1dependenl enterprise; (6) The
pe1lTI!IlElllcy and duration of the MaOO;!al Shipping Co. v.
Me!OO, G.R Nos.l-17362& L-17367-69, Feb.28, 1963,7 SCRA330.
~ between lhe wner and lhe ~ Cl1d (1) The degree rJ. dependency of the mer
upoo 11e employer for
5 Chavezv.NLRC,G.RNo.146530,Jan.17,2005.
his cootiooed employment illhat line of busiless. (Per Fr!lldsco v. NLRC,
Ibid.).
3 ~ v. Pulse Drug~. s21 F.2d 261 (5th cr. 1987).
s Lazarov. Social SerurityCoovnissOO, G.R No.138254,July 30,2004.
L
7
4 Weiselv. ~JointVenb.Jre, lnc.,602F2d.1185(51hCir.1979~
lHnbov. NLRC, G.R No.111042,0ct 26,1999,317 SCRA420.
POST EMPLOYMENT
1
no pay" basis does not affect existence of employment
(1) Employees performing activities which are usually necessary or
relationship.
desirable in the employer's usual business or trade can either be
f) Retainer fee arrangement does not give rise to employment
regular, project or seasonal employees; while
relationship. 2
(2) Those performing activities not usually necessary or desirable in
workers. The consequence of the distinction is found in Article 294 [279] of the
(a) Regular employees referring to those who have been "engaged to
Labor Code? With respect to the activities of project employees, they may or
perform activities which are usually necessary or desirable in the
may not be usually necessary or desirable in the usual business or trade of the
usual business or trade of the employer";
employer, as discussed by the Court in some cases. 4
(b) Project employees referring to those "whose employment has been
a.
fixed fo1 a specific project or undertaking, the compietiou or
PROBATIONARY EMPLOYMENT5
termination of which has been determined at the time of the
engagement of the employee";
l. NATURE OF PROBATIONARY EMPLOYMENT.
(c) Seasonal employees referring to those who work or perform
A probationary employee is one who, for a given period of time, is on
services which are seasonal in nature, and t.'J.e employment is
for observation, evaluation and trial by an
employer during which the employer
the duration of the season; and
determines whether or not he is qualified for permanent employment. During the
(d) Casual employees referring to those who are not regular, project,
probationary period, the employer is given the opportunity to observe the skill,
or seasonal employees.5
competence, attitude and fitness of the probationary employee while the latter
A fifth one, [IXed-term employees, must be added to the above
enumeration.' This, however, is not provided in the Labor Code but recognized
only in jurisprudence. 7
1 G.R No.176419,Nov.27,2013.
ex~ v.t.ere the~ has been fixed lor aspeci: JXtject« ll1deltakirJ lhe IXlflllleOOn
a-leimilation ct>Mlich has
[280],: another classification may be formed in accordance with the nature of
been delenri1ed a 11e 1ine o1 lhe ergaJerrent ct lhe ~a- v.t1ere 11e Y«lfk or
service 1D be perbmed is
employment, to wit:
seasonal i1 nalure cnllhe ef1llbimen! is lor lhe dt.r.Drl cllhe ~
v.t1o has rendered a11m one )'19" of service, v.41ether such service is coobJous a-
broken, shal be oonsideled areguao
1 CRC1¢'1JIJ.raiTra<ilgv.M.RC,G.RNo. 1n664,0ec.23,2009.
~ v.i1h respect mlhe a:My nv.nm he is errc*lYed iWl tis ef11lk¥nenl shal coo1ilue
Wlli! such d.i!y exist.
2 PfiWile~CamulicaXxls, klc. v. DeVera,GR No.157214,.ltlle7,2005.
lfs rerurrbered pu-suant 1D Se:tial5, RA. No. 10151, June 21, 2011 Md OOlE
DepMmentAdvi&wy No. 01, Selies of
3 GIAANe\wo!k, nc.
v. ~a,G.RNo.176419,Nov.27,2013.
2015 (Reoorrbe!iv;Jclthe LmCodecllhe f'hiWiles, as Anlended}, issued on JWt 21,
2015).
~ As expressly reoogni..>ed by the lfr,jh Coort in Leyte GOOhennal Power
f'ro.lressiJe Employees UnmALLJ.TUCP v. 3 GMA Nelwt:xk, Inc. v. ~.
G.R. No. 176419, Nov. 27, 2013. Artk:le 294 [2791 ci lhe Labor Code proWles:
'Seality ol
~ NatiooaiOil Corqlaly-EneigyDevelopmentCapaab!,GR No.170351, Mtrch 30,2011.
tenure. -In cases d regli!r employment, lhe ~ shal not lelmilale the seM:es ci an
employee except ftr a;JSt
s See 1B> Benares v. Pilldlo, G.R No. 151827, Apli 29, 2005; ~lla v. NLRC, GR
117043, Jan. 14, 1998, 284 SCRA 105, caJSe <r v.toen liJ1taized by
lhis Tille. An empklyee v.tlo is llf1usiiY disrilissOO from WOik shaB be 81titled t
rei1slatement
127; f7rlwine Federation o!Cred"~ klc. v. NLRC, G.R. No. No. 121071, Dec. 11,
1998,300 SCRA n, n;
CHAPTER IV 227
POST EMPLOYMENT
seeks to prove to the employer that he has the qualifications to meet the
after the lapse of the period. In fLXed-term employment, no such intention exists
2. PROBATIONARY PERIOD.
and the relationship automatically terminates at the expiration of the period. A
As a general rule, it should not exceed six (6) months from the date the
probationary period cannot be stipulated within the fixed period of
employee started working. 2 One becomes a regular employee upon completion
employment. 1
ofhis six-month period ofprobation.3
6. SOME PRINCIPLES ON PROBATIONARY EMPLOYMENT.
3. EXCEPTIONS.
• The probationary period may be extended but only upon the mutual
The 6-month period provided in Article 296 [281] admits of certain
agreement by the employer and the probationary employee. 2
exceptions such as:
• An employee who is allowed to work after a probationary period is
1) When the employer and the employee agree on a shorter or longer
considered a regular employee.3
period;
• Employment is deemed regular if the employment contract has no
4
2) When the nature of work to be performed by the employee requires
stipulation on probationary period.
a longer period;
• Employee is deemed regular absent any contract to prove probationary
5
3) When a longer period is required and established by company
employment.
policy.
• Repetitive rehiring of a probationary employee means he has become a
If not one of the exceptional circumstances above is proven, the
regular employee. 6
employee whose employment exceeds six (6) months is undoubtedly a regular
• Regular workers of previous owner of business may be hired as
employee. 4
probationary employees of new cwner.
3 ArtDe 296 [281L L.m Code;~ National Balk v. Caba\scg, G.R No. 157010, June 21,
2005; Setvklad v. NLRC,
1 DelaCruz, Jr. v. NLRC, G.R. No.145417, Dec. 11,2003.
G.R. No. 128682, Mirdl18, 1999.
2 MX:Ie 296 [281], Lm Code.
4 ATCI Oversem Ccrpaalion v. CA, G.R No. 143949, Aug. 9, 2001; A. MOre1a &Co.,
tic. v. NLRC, G.R No. 7-1004, Al.g.
3 V(1f€1Jr Visage SWdio, Inc. v. CA, G.R. No. 144939, Mrd118, 2005; t>; PJime
Sec:.ni!y Seriices, Inc. v. NLRC, G.R No. 10,1989.
107320,Jat19, 2000.
5 Sal fl9iel Corp. v. Del Rosario, G.R Nos.168194and 168603, Dec. 13,2005.
8 Voyeur VISage Studio, Inc. v. CA, G.R. No. 144939, March 18,2005.
SUpplf Coqxxation v. Roal, G.R No. 150660, Jlltf 30, 2002.
9 Ptippile Dai1f lrqlier, Inc. v. Magtibay, Jr., G.R Nc. 164532, July 24, 2007.
...
CHAPTER IV 229
POST EMPLOYMENT
1. For a just cause; or
b.
c. Some principles on termination of employment of probationary
REGULAR EMPLOYMENT2
employees.
1. Procedural due process is required only in the case of the first and
L.
a l>be!deen Coort, Inc. v.~ustin,Jr., G.R. No. 149371,Aprit 13,2005.
Article 295 [280]. Labor Code; Conti v. NLRC, G.R No. 119253, Aplil10, 1997, 271
SCRA 114; Pt-dlippi1e Fruit &Vegetille
POST EMPLOYMENT
case may be, because the absence thereof will make the relationship
3. SOME PRINCIPLES ON REGULAR EMPLOYMENT.
that of regular employment. It is only by proving the terms and
a. Law presumes regularity of employment. The presumption
conditions of the contract that the general presumption that the
having been made by the law itself, it follows that an employee is
relationship is regular in nature would be effectively dispelled.
deemed regular by operation of law the moment the fact is
Jurisprudence abounds where the non-presentation of the written
established that the nature of his work is directly related to the
contract was held as evidence that the status of employment is not
2
principal business of the employer.
what it purports to be, that is, probationary, project, seasonal, casual
b. The phrase "to perform activities which are usually necessary or
or fixed-term but regular employment.
desirable in the usual business or trade of the employer"
g. The doctrine of adhesion' applies to employment contracts.2 It must
includes performance of peripheral jobs indirectly related to the
be emphasized, however, that the rule on the interpretation or
principal business of employer.3
construction of contracts of adhesion does not apply when the
c. No declaration or appointment paper necessary to make one a
stipulations contained in a contract are not obscure or ambiguous. 3
regular employee. 4
Besides, a contract of adhesion is not prohibited per se. 4
d. Fixed-period employment is the exception to the rule that an
h. The act of hiring and n:-hiring the employees over a period of time
employee becomes regular by reason of nature of work or period of
without considering them as regular empioyees evidences bad faith
employment5 because in fixed-period employment, these factors are
on the part of the employer. 5
not decisive indicators of regularity of employment. The decisive
i. Manner and method of payment of wage or salary is immaterial to
determinant is the day certain agreed upon by the parties for the
the issue of whether the employee is regular or not. 6
commencement and termination of their employment relationship, a
day certain being understood to be "that which must necessarily
c.
come, although it may not be known when. ,,o
PROJECT EMPLOYMENT7
e. Written or oral agreement is inunaterial to determine regularity
of l.CONCEPT.
employment. The phrase "the provisions ofwritten agreement to the
contrary notwithstanding and regardless of the oral agreement of
Project employees are those hired:
the parties" in Article 295 [280] simply means that irrespective
of l) for a
specific project or undertaking; and
any written or oral agreement stating that the employment is not
regular, once the fact is established that the employee has been
2) the completion or termination of such project has been
engaged to perform activities which are usually necessary or
detennined at the time of their engagement.8
desirable in the usual business or trade of the employer, his
employment is regular by reason of its nature. 7
1 Al1k:le 1377 ct lhe CMI Code p!tl'<ties: 'The i1terprela!ioo ci obscure wads oc
stipula1kx1s i1 a contlct shall nd favor 1he
( Article 295 [280], labor Code; Section 5~]. ~le I, Book VI, Rukls
to iiT1>Iement lhe l.abor Code, as !r11ellded by Article IV,
Feb. 5, 1990.
Depatment Order No. 10, Sefies ci 1997; ~ v. Suarez, G.R. No. 151227, July 14,
2008, 558 SCRA 135, 142; D. M.
7 Association ct Trade Unions [ATU] v. Abela, G.R No. 100518, Jan. 24, 2000;
S1rllvfguel Corporation v. NLRC, G.R Consunj.lnc. v. NLRC,
G.R No. 116572, Dec. 18, 2000; Association ci Trale Unions [AlU] v. Abella, G.R.
No. 100518,
L
125600, Oct 7, 1998.
Jan. 24, 2000.
l '
POST EMPlOYMENT
reasons why the Court held that respondent in said case was not a project employee.
The two (2) categories of project employees on the basis of "project"
for which they have been engaged to perform are as follows:
On the other hand, in San Miguel Corporation v. NLRC/ respondent
was hired to repair furnaces, which are needed by San Miguel Corporation to
(1) A particular job or undertaking that is within the regular or usual
mall.ufacture glass, an integral component of its packaging and manufacturing
business of the employer company, but which is distinct and
business. The Court, finding that respondent is a project employee, explained that
separate, and identifiable as such, from the other undertakings
San Miguel Corporation is not engaged in the business of repairing furnaces.
of the company; or
Although the activity was necessary to enable petitioner to continue manufacturing
(2) A particular job or undertaking that is not withi:t the regular
glass, the necessity for such repairs arose only when a particular furnace reached
the
business of the corporation.2
end of its life or operating cycle. Respondent therein was therefore validly
In the realm of business and industry, we noie that
'project' !.:onsidered a project employee. 4
could refer to one or the other of at least two (2) dist!nguishable
tvpes
of activities. Firstly, a project could refer to a particular job
or In GMA Network, !nc. v. Pabri2a,S
respondents were hired and assigned
undertaking that is wiJhin the regular or usual business of the
by petitioner to the following tasks (l) Manning of Technical Operations Center;6
employer company, but which is distinct and separate, and
(2) Acting as Tra.'lSmitter/VTR men; 7 (3) Acting as Maintenance staff;8 and (4)
ider.tifiable as such, from the other undertakings of the company.
Acting as Cameramen. These jobs and undertakings, according to the Supreme
Such job or undertaking begins and ends . at determined or
Court, are clearly within the regular or usual business of the employer company and
determinable times. The typical example of this first type of
project is are not identifiably distinct or separate from the
other undertakings of the company.
a particular construction job or project of a construction company.
A There is no denying that the manning of the operations
center to air commercials,
construction company ordinarily carries out two or more [distinct]
identifiable construction projects: e.g., a twenty-five-storey
hotel in
2 G.R No. 155045, NaY. 24, 2006, 508 SCRA 31; 537 Phi. 840.
~(satellle).
GM\Nellllllk, kic. v.~. G.RNo.176419,Nov.27,2013.
7
Perfooniig the folkMilg fullCOOns: {a) Prepare tapes for local ai~; (b) Ac\Jal
airing of corrrnertials; (c) 1\Jggilg of slaOOn
aso
Al.lJ.TUCP v. NLRC, G.R. No. 109902, 1\!JJ. 2, 1994, 234 SCRA 678, 684-686. See
GMA. ~. D:. v. PIMJa,
supm; l.efe Geollen'lla Power PI!JJressi.'e ~ Uniln-AI.lJ.1UCP v. Phftppine
National Oi ~ - Enelgy l 8
P~ the followiig functions: {a) Oleckilg mequ~ (b) Wcrmilg up of generator; {c)
Fifing of oi, fuel, and water
L
~capaation. G.R. No.170351, Manil31l, 2011.
il radiafor.
POST EMPlOYMENT
for employees who are absent or on leave. Such tasks, whether performed by the
necessarily depend on the ground cited. If the termination is for just cause, due
usual employee or by a substitute, cannot be considered separate and distinct from
process applicable to Article 297 [282] terminations applies. If due to authorized
the other undertakings of the company. 1
cause, due process applicable to Articles 298 [283] and 299 [284] terminations
should be followed.
While it is management's prerogative to device a method to deal with this
issue, such prerogative is not absolute and is limited to systems wherein employees
5. INDICATORS OF PROJECT EMPLOYMENT.
are not ingeniously and methodically deprived of their constitutionally protected
construction companies. 1
2. Due process likewise varies. In case of project employment, if the
tennination is brought about by the completion of the project or any phase
b. Some principles on project employment.
.thereof: due process is complied with even if no prior notice of termination is
1. Project employees should be informed of their status as such at
served. For termination of regular employment, the due process required would
inception of the employment relationship. 2
POST EMPLOYMENT
required.5
services to other employers.'
1 Abesco ConslructiJn 11\d Oe'JelopmertCoql. v. Raniez, G.R No. 141168, April tO,
2006; Section 22, Depa1ment Oilier 1 Tomas lao Construdion, v. NLRC, G.R
No.116781, Sept 5,1997.
No. 19, Series a1993, Guileiles Govemilg 11e ~loymenta Workels nile Coosbuctioo
h'ldusby. z fqJinas Pl&f<iri:a!W MOOg Syslems
[RsyslemsLinc. v. Puente, G.R No. 153832. Mardl18, 2005.
2 HajJ Heavy hluslries 11\d Cooslrudioo Co, Lid. v.llaiez, GR. No. 170181, June 26,
2008. 3 Section 32., Depment Older No. 19.
Series ct 1993, GuCeli1es GovemilQ 1he ~ a wcaers i1 lhe
3 M¥p1as v. N-RC, G.R No.100333, Mlrd113,1997, 269 SCRA453, 468.
Coos!r\dioo kWslry ~supersedes Policy k1slrucOOns No. 20 of 1977; Saberda v.
SUarez, G.R No. 151227, July 14,
4 Palomares v. NLRC, G.R No. 120064, Aug.15, 1997.
2008; Salazarv. NLRC, G.R No. 109210, ~ 17, 1996, 256 SCRA 273.
s PIDTv. ~. G.R. No.155645, Nov. 24,2006.
4 See Dacui1alv. L.M Camus Eng~ C<xp., G.R No.176748, Sept 1, 2010.
6 Salinas v. NLRC, G.R No. 114671, Nov. 24, 1999.
5 Ci:loo ¥. C. E. Coos1ru:tioo Corporation, {l.R No. 156748, Sept 8, 2004.
7 F~ v. Sal !Ji;juel Capocatioo, G.R No. 150658, Feb. 9, 2007.
Jf
POST EMPlOYMENT
SEASONAL EMPLOYMENT
d.
employer, and such job, work or service is for a definite period made known to
1. CONCEPT.
law?
Seasonal employees may attain regularity in their employment as such.
• No regular appointment papers necessary for casual employees to become
Once they attained such regularity, they are properly to be called "regular
4
regular.
seasonal employees. "
• The one (1) year period should be reckoned from the hiring date. 5
Regular seasonal workers are called to work from time to time,
6
EMPLOYMENT.
3. REQUISITES FOR REGULAR SEASONAL EMPLOYMENT.
The requisites in order that a seasonal employee may be deemed to
The two (2) requisites or criteria for the validity of a fixed-term
have attained regularity of employment are as follows:
contract of employment are as follows:
l) The seasonal employee should perform work or services that are
l. The fixed period ofemployment was knowingly and voluntarily
seasonal in nature; and
agreed upon by the parties, without any force, duress or improper
2) They must have also been employed for more than one (l) season.
pressure being brought to bear upon the employee and absent any
2 Article 295 [280J.labor Code; Section 5!bJ, Rule llloii VI, ~ 1D kr(llement lle
Lalor Code, as cvnended by Ar1k:le IV,
3 Section 5 Jl], Rue I, Book VI, Rules 1D ~ lhe l.alxJ Code, as 811el'ded by
Article IV, Oepa1ment O!tfer No. 10,
1998.
Kimbef1y-Ciarll [Phils.L Inc. v. Secretary of labor, G.R No. 156668, NcN. 23, 2007.
5 Abasobv. NLRC, G.R No. 118475, Nov. 29, 2000; Bacolod-MJrtia Mlfrg Co, Inc. v.
NlRC, GR. No. 84272, Nov. 21, Tan v. la;jrana, G.R. No.
151228, Aug. 15, 2002; Romares v. NLRC, G.R No. 122327, Aug.19, 1998.
1991, 204 SCRA 155, 158; VJSaYOO Si!Yedore Tr<riSp<lrtaOOn ~v. CIR, No. L-
21696,Feb. 25, 1967. PlliiWi:le ArreOCa1
Mm;jement Association, v. CIR, G.R No. L-37206, Apnl15, 1988.
6
Hacienda Fatima v. National Federation of Sugarcane WorkeiS- Food and General
Trade, G.R. No. 149440, Jan.
L l .
28,2003.
48494, Feb. 5, 1990).
CHAPTER IV 241
BAR REviEWER ON lABOR lAW
POST EMrLOYMENT
240
• Liability for illegal dismissal of fixed-term employee is only for salary for
2. It satisfactorily appears that the employer and employee dealt with
unexpired portion. 2
each other on more or less equal terms with no moral dominance
1
3. FIXED-TERM EMPLOYMENT OF OFWs.
whatever being exercised by the former on the latter.
If the foregoing criteria are not present, the ftxed-term contract of
• OFWs can never acquire regular employment.3
employment should be struck down for being illegal.
2
LABOR-ONLY CONTRACTING
upon the expiration of their contracts with other wqrkers with the same
10
employment status circumvents their right to security oftenure.
(NOTE: To provide for a more comprehensive discussion,
• Employment on a "day-to-day basis for a temporary period" will result to
the topics in this section are re-arrangl!d accordingly).
11
regular employment.
1. JUDICIAL RECOGNITION OF VALIDITY OF OUTSOURCING.
• Termination prior to lapse of fixed-term contract should be for a just or
authorized cause.
1
The validity of outsourcing has been judicially recognized by the
Supreme Court. It has already taken judicial notice of the general practice
3 See second 2002 Resolution i1 M11ares v. NLRC, G.R No. 110524, July 29,3102, 385
SCRA 306.
Sunrise Met!! CoosnJcb1 v. Pia, G.R No. 171131, July 10, 2007.
4 Pentagon lntemalional Shipping,lnc. v. Adelantar, G.R No.157373, Joly 27,2004.
5 Poseidoo FJShi"g v. NlRC, G.R No. 168052, Feb. 20, 2006.
5 Gu-Mirov. Adorable, G. R. No. 160952, Aug. 20,2004.
s MIA Ca11Ju~erCollege,Pcrlllaque, v. Auslrla, G.R No.1&1078,tb.23,2007.
6 ld.
7 V~e~~~es v. NLRC, G.R No. 108405, April4, 2003.
7 De La Cruz v. Maersk F~ Crewi1g,lnc., G.R No. 172038,1\!Jii 14, 2008.
8 Megascope General Services v. NLRC, G.R. No. 109224, June 19, 1997, 274 SCRA
147, 156; PQusoo del Nate
8 Mllares v. NLRC, G.R No. 110524, July 29,2002,385 SCRA 306; See amtiel.a Cruz v.
Maersk Fl'ip~ Crewilg, inc.,
Eledric ~.Inc. v. Ca':J;vnpcrlQ Md G!rzoo, GR No. 167627, Ocl10, 2008.
9 PhRips Semiconductors [Phils.l,lnc. v. Fadliquela, G.R. No.141717, April14,
2004.
243
POST EMPLOYMENT
janitorial, security and even technical or other specific services. While these
have been issued by various DOLE Secretaries over the years, the latest of
services may be considered directly related to the principal business· of the
which is Department Order No. 174, Series o/2017, issued by DOLE Secretary
employer, they are not necessary in the conduct of the principal business of the
Silvestre H. Bello III on March 16, 2017 entitled "Rules Implementing Articles
employer. 1 ·
106 to 109 of the Labor Code, as Amended "1 Indeed, the DOLE Secretary is
1.
enunciate the rules on contractualization, to wit:
by him."
pe!foonallCe ol1he foonits work. the en1)loyees cl1he cool!ackr Md cl1he Ws
subc:tmcb', I <Iff, shall be pad il
axx:xda1ce IWI1 the provisioos d this Code.
. Based on the foregoing, the party which contracts
with the principal is
n1he event lhat 1he c:®acb' cr ~ fais t pay the wages d his EfTilllYees il
accordooce l\il !his Code, the the "contractor"; while the party
which subcontracts with the contractor is
~shal be pi1tt; Md ~ iable lrih lisma:tx' aSilbo:Jnirocb'tsuch ~to the eMent
cllle ~ called "subcontractor." "The term
"contracting", therefore, should be
perfmned tllds'llecoollacl, illlescrne mmrMdextentllathe is liable t~~~by hin.
The Secrelily d l.tbJ 11111 ~ II!Clf, by~ reg1Etions,18S8:1 cr proljllt lite~
lllcmor t correlated to the "contractor"; while
the word "subcontracting", should be
pcW!Ct 11e ~ d ~ estallisha!IRier llis Code. n so ~ a restalg, he may nae ~
used in relation to the "subcontractor."
clsfi1clbls beMeen lcmor-ooly Clll'ilr.l:fhJ Md pi ~ as wei as llfealliabiS d1il
flese l)1les II amc&1g
!I'd delemi1e v.tlo II1100J the pMies tMMd shal be cmsi!ered f1e ~ b' jilrposesd
tlis Code, to pevenl iff'/ However, under D.O. No. 174, the
foregoing distinction is no longer
WJiation a ci'aln'wntioo d 1l1f pnMsi:ln !IIIlis Code.
underscored in the defmition of terms. Thus, it appears now that the foregoing
There is 'IIIler-or#( C001radiY,J where lite peoo1 ~ Yme!S to 111 el1'4iJ'ier
does rd 11M~~ cr
ilvesfment illle bm d Dis, ~ nmileries, ~ prenises, ilf1lX'9 oilers. 11111 the
defS reau1Ed Md terms may be used interchangeably for
they are now {{efined as follows:
p1cm1 by such persoo ;re pecfiJmilg a:tivities r.ft1t ~~e ciredtf related to
llejlfiqJal busi1ess «m ~- nsuch (l) "Contracting" or
"Subcontracting" - refers to an arrangement
cases. toe peiSOn a ilfenneciary shaR be tooSide'ed merely' as M agent d the~
v.tlo shal be responsllle t the
defS il the sane !MYlei'Md extent as I the lal!rYII!f'e d'redtf en¢'fed by hin.
whereby a principal agrees to farm out to a contractor the
3 Mal 107. kldiect ~- -The ~II the iTmedialely ~ ri:le shall ikev.ise IWf t Tiff
pe!SOil, performance or
completion of a specific job or work within a
~. associatioo a COipOOIIioo m, n1t bei1g m ~. IXXltu wih 111 ildependent
ta'llrm b' 11e
perfamance d aiT'f work,1ask, .00 or. projel;t.
4 Ar1i:te 108. PostiYJ d Bond. - fvl E!lf4lioyel cr i1<iect ~klyer may require the
cooP:IDr cr sWcomadlr t foolish a 1
ba1d ec,.Jal Ul tl1e w;t of labor lllder IXX\R:t, Cl1 ton<iliCI1 flat the bald
Yoil ii1SWer b' lhe wages due lhe ~ This issuance supefSeded
Depatrrent Order No. 18-A, Series d 2011 ·[NcNember 14, 20111. Past siiir issla1ces
are
should the IXXltracUlr or subcontacb',as lhe case may be,lail t pay 11e scme.
Oepament Otder No. 1~. Series d 2002lfebruay 21' 20021, Md Depment Order No. 3,
Series d 2001 [May 08,
s Ari:le 109. Soiday l.iabity.- The proW;iCI1s c1 exSti1g laws ID the cootray
~.IM!:f ~a ildi:ect 20011 Mmg olhels.
1
~ shal be hek1 responsiJie v.ilh his oordJadDr or subcootradl:r lor <Iff vWiJn of
Cl'tf pn:Msion d llis Code. Fa
3
RereniYJ 1D the 2017 S)tabus.
-~,.
POST EMPlOYMENT
project.
l.MEANING.
c. Contractor's employees.
"Trilateral relationship" refers to the relationship in a contracting or
subcontracting arrangement where there is a service contract for a specific job,
All contractor's/subcontractor's employees are entitled to certain rights
work or service betwe~n the I!rincipal and the contractor, and a contract of
such as the right to security of tenure and all the rights and privileges as
employment betweer. the coil tractor ::nd its workers.
provided for in the Labor Code, as amended, to include the following;
2. THREE (3) PARTIES INVOLVED.
a) Safe and healthful working conditions;
b) Labor standards such as, but not limited to, service incentive leave,
As the tenn "trilateral" connotes, there are three (3) parties
involved,
rest days, overtime pay, holiday pay, 13th month pay, and separation
to wit:
pay;
1) The "Principal" which refers to any natural or juridical entity,
c) Retirement benefits under the SSS or retirement plans of the
whether an employer or not, who puts out or farms out a job or
contractor/subcontractor;
3
work to a contractor;
d) Social security and welfare benefits; and
2) The "Contractor" as defmed above; and
4
e) Self-organization, collective bargaining and peaceful concerted
3. FURTHER DISCUSSION.
In a trilateral relationship, there are two (2) kinds of contracts that
3 Miele 294 {279] of lhe L.alxr Code ~es: 'Security of !enure. -In cases of
regular~ 1he erJllk!Yer shall not
2 Sedkx13{d), Ibid.
temi1ate 11e seM:es ct an ~except tlr ajJst cause oc m au1hOiized by 115 Tille. fv1
llfTilklyee 1'100 is un)Jst!y
3 Sedkx13ffi, Ilk!.
• Sedkx13{d), Ibid., 1huS: (d) 'Olltradlf- refefs 1o Wf pe!SOil or en1ily engaJEd
il alegbnale ~ or SI.JbcOOrading dislrissed from 'Ml!k shal be mliled 1o
reinstalemen1 >Mthout kiss d seniorily rijlls and ofler p!M\eges and 1o his ful
POST EMPLOYMENT
provisions on general labor standards. It shall include the
following employer-employee
relationship between the contractor and its employees it
stipulations:
engaged to perform the specific job, work or service being contracted with the
the latter to the fonner. The contractor's employees remain its employees and do
individual employee.
mentioned, shall render the principal the direct employer of the employees of
i. The specific description of the job or work being
subcontracted, the
contractor/subcontractor, pursuant to Article 109 of the Labor Code, as
including its term or duration;
amended. 5
ii. The place or work and terms and conditions governing the
7. EFFECT OF TERMINATION OF EMPLOYMENT.
contracting arrangement, to include the agreed amount of
the
contracted job or work as well as the standard
administrative fee The
tenllination of employment of the contractor's/subcontractor's
of not less than ten percent (10%) of the total contract
cost; and employee prior to the
expiration of the Service Agreement shall be governed
by Articles 297 [282],6 298 [283]' and 299 [284]1 of the Labor Code.2
iii. A provision on the issuance of the bond/s, 4 renewable
every
'year.5
1
5. EXISTENCE OF EMPLOYER-EMPLOYEE RELATIONSHIP.
Sedioo 5[a1 Depal1ment0rder No. 1S.A, Series of 2011.
Bagub v. NI.RC, G.R Nas. 79004-08, Oct 4, 1991, 202 SCRA -165; See Article 109,
lalx:f Code; See also Secb113,
In legitimate contracting or subcontracting arrangement, there exists
an Depa1ment Older No. 174,
Series ct 2017, wl1kt1 prMjes fa' d:la'y obfgalion to perf~ wa.Jes Cl1d olher ~
beneflls lllder 1he Ser.U ~reement, iK:Wi1g unremtted lega nmdalo!y rormilutioos,
e.g., SSS, PhlHdl, Pl9-IBIG,
ECC.
5 SecOOn 12,1!1:!.
llld Iegatless dlle cral ~d l1e paties,lll ~ shal be deemed tl be lligl&v.ilefe
l1e en1Jk7iee has
6
been qaged tl perbm at.ilies Q:h ae IJSIIIty necessay or desi'aije illle urual
busiless or biKie c/.lle l!llfJaler, 'MX:te 297[282j.
Temmicrl by e!Jllbyer. HI eiJllbyer may kmilate 111 ~k¥oont for 211'/ ollle ~cases:
a)
exceptv.ilefe l1e flf11li1Jment has been fixed i:lr aspedft prqecta: ~ l1e
COO'flleOOn orErnliBion dv.tli:tl has SerixJs l1'isoo1dlxt
a: wlful <lsOOedience by lle ~ d 1he laY4JI ordels d his ~ cr ~ il
been deen'i1ed at lle lioo d lle engagement d lle aJtlloYee a: lW1ere the 1\al(
a: servk» b be pelfaTred is amection 'Mih his work;
'lXI
seascm il nai!Je 111<1 lle~is !or 11e dtralil1 c/.lheseason.
7 'Mide 298 [283). ~ c/. E':sW!shrnentllld ROOUC!ioo of l'elsonnel. · The
EfllJIJya: may also ~the
AA ~stat be deemed b be casta Klis not oovaed 1:rt 1he prececi1g p<rag!l¢
PnJWied, That iiTf en1Jbiee empbtment of iiTf
~rue 1o the ilsWiJn of fabor-saWIQ deW:es, redundlllty, retrendlment kl prevent
bsses or
.00 has rendered at least ooe )'IS' c/. seM:e, W1elher 5001 ser.bl is
<Xll1limls a: broken, . . be axlSi:!ered a regular the OOsirJ or
cessatm ct ~ of the eslallistm!nt a: unde!taki1g urJess 11e c1osi'Q is b' 11e
purpose of
~ wifl respect tile ldiitf nv.tth he is~ IIlii his~ sha!IXX)Iilue wlie suc11
adM!y exm. cia.lmvenling lle
pfO'Iilions ct tlis T111e, by seM1g a wriUen notice on the wers llld the tiby of
Lmor 111<1
(f>s reiU'I'bered pursulllt 1D Sediln 5, RA No. 10151, June 21, 201111ld DOLE
Oepalment AIMsay No. 01, Series of ~at least cne (1)
montt1 before 1he intended dale llereof. In case of tem1i1alion 00e to the
ilstallciln of Iaber·
2015 (RemJrileMQ oflle LiM Code c/.1he Phlippines, as l>rnended), Issued oo
Jutt 21, 2015). savi'g devices or
redundancy, l1e woriler affected 1hereby shall be entitled 1D aseparation pay
eqiMent to at least his cne
2 SecOOn 11, Ibid.
(1) montt1 perf or to at least one (1) 10011111 pay !or fM!J'f year of service,~ is
hgher.ln case ct retJend1ment to
3 SecOOn 3(j), llid.
pre;ent bsses and il cases ct dosures or cessation of qJe~alions of establishment
or ~ rxt due b seOOu5
4 The leml 'lxlnd" is defrlOO i1 Secbi 3(a), lbid.,lhus: a) 'Bond' •refets to t1e
bood ll1der Miele 108 d the~ Code lila! business losses or
frlalcial reverses, the sepaatm perf shal be eq!Walent to one (1) rrmtl perf a: at
least ooe-hal rhl
111e p!l1dpal may require mile cootracla' to be posted equa1 to 11e coot of
lalla: tmder oonB::t' montt1 pay fa' rmry
year c/. service, v.t1iclleYer is hgher. Afraction of at least six (6) nmths shal
be considefed one (1)
5 Selion 11,1bid.
v.f1ole year.,
···~·-,
POST EMPLOYMENT
. 2
contractor'slsubcontractor's employees who are regular employees ofthe latter. 5
contractmg arrangement.
8. GOVERNING LAW.
2. IMPORTANT POINTS ON THE ABOVE ELEMENTS.
The Employment Contract is governed by the Labor Code; while the
(a) ON NOS. 1 AND 3 ELEMENTS ABOVE.
Service Agreement is governed by the Civil Code. 6
This is the "Right of Control" test which basically addresses the issue
satisfied.
1. ELEMENTS.
Illustrative cases:
It bears noting that the Labor Code does not define what
constitutes a
I 2
Manufactwi-g Co., klc., GR No. 80680, Jan. 26, 1989, 169 SCRA 497.
6 See Section 9amd Section 5~], respedivetf, DepartmentOrderNo.18-A, Series
ol2011. 3 GR Nos. 184~. Oct
10,2012.
CHAPTER IV 251
POST EMPLOYMENT
affected employees. The NLRC highlighted the fact that Digiserv
addresses the issue of whether the Service Agreement between the principal
This is the "Substantial Capital or Investment" test which seeks to
and contractor/subcontractor is compliant with the rights and benefits2 of
3
address the issue of whether the contractor or subcontractor has substantial
workers under labor laws. If answered in the affirmative, the contracting or
capital or investment in the form of tools, equipment, machineries, work
subcontracting arrangement is deemed permissible.
premises, and other materials which are necessary in the conduct of its
business. 2 If the answer is in the affirmative, then this requisite of permissible
4.
contracting arrangement is fully complied with.
LABOR-ONLY CONTRACTING
Significant points:
l. MEANING.
A. Tbe · amount of substantial capita[ is now fu:ed under the
Implementing Rules. Under Department Order No. 174, the term
"Labor--only contracting" refers to an arrangement where the
"substantial capital" shall now mean:
contractor or subcontractor merely recruits, supplies or places workers to
perform a job or work for a principal, and the elements enumerated in the
l. In the case of corporations, partnerships or cooperatives -
Implementing Rulei are present. 5
paid-up capital stocks/shares of at least Five Million Pesos
(PS,OOO,OOO.OO); or
1. ABSOLUTE AND TOTAL PROHIBITION.
2. In the case of single proprietorship ·a net worth of at least
Labor.anly contracting is absolutely6 and totally1 prolnoited under
Five Million Pesos (PS,OOO,OOO.OO)?
Article 106 of the Labor Code2 and the implementing rules.3 Towards this end,
It bears noting that:
• The threshold amount of P3 M was fiXed for the first time
in
Neri v. NLRC, G.R Nos. 97008-09, July 23, 1993,224 SCRA 7171.
the earlier Department Order No. 18-A, Series of 2011.
SeeSectioo10ciD.O.No.174.
Mania WatsrCo, Inc. v. Pena, G.R No. 158255, .lutf 8, 2004; C<rpoml, Sr. v. NLRC,
G.R No. 129315, Oct 2, 2000, 395
Phil. 890.
4
1 G.R. No. 182016, Od. 10, 2012.
See Sectioo 5, Depment Order No. 174, Series of 2017.
5
2 lv'ooKa Eledric~v. Beoarriia, G.R No.1~271, MJ 14, 2005; lv'ooKa Waer Co., rc.
v. Pena, G.R No. 158255, Section 3(h), Ibid.
6
July 8, 2004; Corporal, Sr. v. NLRC, G.R. No. 129315, Oct 2, 2000, 395 Phil.
890. See Sectioo 4, Ibid., v.ilich pe!1i1enlly
declares, 10 wit "Sedicx1 4. RegulaOOn of Contractilg or SubconiJacling. The
3 Sedioo 3{11, Depmen\Oider No. 174, ~of 2017.
Secretlry of Lalor Mel Eflllk1fmeol shall regulale conlradif"IJ and sutx:onlradilg
aii'BIIgement by absokJtely prohi>Hing
POST EMPLOYMENT
principally operates. Failure to register shall give rise to the presumption that
the
Business" test which seeks to address the issue of whether the
Department Order No. 174, Series of 2017, 6 declared the following as being
l.abor-altf~. m is ~prohlliled.-m:
prohibited for being contrary to law or public policy:
2 Terg v. ~. G.R No. 169704, Nov. 17, 20W; &4JerklrPacka,jilg ColpcxaOOnv.
Baagsay, G.R No. 178009, Oct 10,
2012.
a) When the principal farms out work to a "Cabo". The term "Cabo"
3 k; tr as lhe ~li'g rules ire aJilOOIIled, Depamlent Onlef No. 174, Selils d
2017, is not 1l1e fifSt reglllalioo tl refers to a person or
group of persons or to a labor group which,
absolutely¢lllitlalor-oo~ ~. (SeeSectioos411ld 5thereof).lhejlfdllml was
enilodied illhe criJilal rules
~ Mdes 100 t1 109 issuechijht atlerllel.abor Code lookeffed.i11974. Earlier,
IJepMment Ordefs Nos. 1&-a
5
7 Coca-Cola Bottle!S Phils., Inc. v. Agito, GR No.179546, F~. 13,2009,579
SCRA445,400-461; Aboitiz Haulels, Inc. 6
CHAPTER IV 255
POST EMPLOYMENT
other consideration, whether in the capacity of an agent of the
1
contract is divisible into phases for which substantially different
employer or as an ostensible independent contractor.
skills are required and this is made known to the employee at the
b) Contracting out of job or work through an "In-bouse Agency". An
time of engagement.
"In-house Agency" refers to a contractor which is owned,
j) Such other practices, schemes or employment arrangements
managed, or controlled, directly or indirectly, by the principal
or
3 AlMada v. Procler &Gairble Phis., re., GR No. 160506, Way 9, 2010 and June 6,
2011 Resciltioo on 1he ~ lltltion ft
CHAPTER IV 257
POST EMPLOYMENT
contract between the contractor and its employee; and [2] Service
the wages, the principal is not responsible for any claim made by
8
l) In case of violation of any provision of the Labor Code, including
the (1) Article 106,
regarding the liability of the principal, in the same
fiillure of the contractor to pay wages of its employees supplied
to the manner and extent
that he/she is liable to his/her direct employees, to
principal;4
the extent of the work performed under the contract when the
2) In case oflabor-only contracting;'
1 Sedb15,1d.
subcoolladl:lr to such employees 1o 1he ex1ent of 1he I¥J11\ pelfooned under 1he
coollacl, illhe same manner and extent 1hat
4 SedOO 31\l ald Sedkv19, l:lepMmenl Order No.174, Series d 2017.
~
-~
1
contractor fails to pay the wages of his/her employees.
3. PERTINENT JURISPRUDENCE.
(2) Article 109/ as direct employer together with the contractor for
run: The
phrase "to the extent of the work performed under the contract, in
3
the same manner and extent that he is liable to employees directly employed by
violation of!!!I provision of the Labor Code.
him" was explained in the case of Rosewood Processing, Inc. v. NLRC. 1 In this
The solidary liability of the principal under No. 2 above should be
case, the security guards farmed out by the security agency to petitioner were
qualified in the sense that not all violations of the provisions of the Labor Code
and assigned to its
other clients. WithaL fairness dictates that the petitioner should not be
other social legislations by the contractor would make the principal "solidarily ·
held liable for wage differentials incurred while the security guards were assigned
to
liable" therefor. Such solidary liability of the principal would only be "to the
other companies. Under Articles 106, 107 and 109 of the Labor Code, should the
extent of the work performed under the employment contract", and should
contractor fail to pay the wages of its employees in accordance with law, the
indirect
only involve the violations connected to or related with the employment contract.
employer {the petitioner in this case), is jointly and severally liable with the
The solidary liability rule certainly does not cover such liabilities of the
contractor contractor,
but such responsibility should be understood to be limited to the extent of
to its employees not in any Ytay related to the "work performed under the
the work performed under the contract, in the same manner and extent that he is
employment contract." This is clear from Section 9 of Department Order No. 174,
liable to the employees directly employed by him. This liability of petitioner
covers
thus:
the payment of the workers' performance of any work, task, job or project. So long
"Section 9. Solidary Liability. In th~ event of violatimi
of any as the work,
task, job or project has been performed for petitioner's benefit or on its
provision of the Labor Code, including the failure to pay wages, there
behal~ the liability accrues for such period even i~ later on, the employees are
exists a solidary liability on the part of the principal and the
contractor for eventually
transferred or reassigned elsewhere. To reiterate, the principal's (indirect
purposes of enforcing the provisions of the Labor Code and other
social employer's)
liability to the contractor's employees extends only to the period during
legislations, to the extent of the work performed under the
which they were working for the petitioner, and the fact that they were reassigned
to
employment contract,4
another principal necessarily ends such responsibility. The principal is made
liable to
In other words, once the job contractor, although legitimate, fails to
pay his indirect
employees because it can protect itself from irresponsible contractors by
the wages of its employees supplied to the principal (2nd paragraph, Article 106)
or withholding such
sums and paying them directly to the employees or by requiring a
violates any of the provisions of the Labor Code (Article 109), the principal
would bond from
the contractor for this purpose.
no longer be considered merely as an indirect employer but as direct employer for
The said principle in Rosewood was reiterated in the 2010 case of GSIS v.
the limited purpose of complying with the wage requirement or legal provisions
NLRC.2 In this case, DNL Security Agency, the direct employer of the private
violated. Being by legal fiction the direct employer, the principal now becomes
respondent security guards which assigned them to petitioner GSIS office in
solidarily liable with the legitimate contractor for the payment of wages and for
Tacloban City, informed respondents in February 1993, that its service contract
with
pmposes of complying with the legal provisions violated.
petitioner was terminated. This notwithstanding, DNL Security Agency instructed
It bears stressing that the status of the principal as indirect
employer holds respondents
to continue reporting for work to petitioner. Respondents worked as
true only in situations where the job contractor with which it is dealing is
legitimate instructed
until April20, 1993, but without receiving their wages; after which, they
and is fully compliant with the requirements of the law and the implementing
rules. were
terminated from employment The High Court ruled that petitioner's liability
Otherwise, if the contractor is a labor-only contractor, then the principal will
never does not cover
only the payment of respondents' salary differential and 13th month
· be considered an indirect but dirtct employer of the contractor's employees
supplied pay during
the time they worked for petitioner but additionally, petitioner is
to it and the above discussion will not apply and thus would be solidarily liable
for solidarily liable
with DNL Security for respondents' unpaid wages from February
all the claims for wages and benefits by the latter.
1993 until April20, 1993. While it is true that respondents continued working for
petitioner after the expiration of their contract, based on the instruction of DNL
Security, petitioner did not object to such assignment and allowed respondents to
1 Sectioo3~10epmientOiderNo.174,Seriesof2017.
render service. Thus, petitioner impliedly approved the extension of respondents'
2 Miele 109 declares: 'Article 109. &ilay iilbilitj. ·The pr<MsiooS d existing
lew; to the COOI!l!iy ~llg. f!Nel'j services.
Accordingly, petitioner is bound by the provisions of the Labor Code on
a
~eror ildiect employer shal be held respoosille with hisamactor
orSI.Jbooniacformr anyviolcml atrf prcMsion
of llis COOe. For puipOSeS of d$rnili'l;l the extent of their cMIIiOOilly
under tis Ctlapter, ihey shal be considered as
died emp~oye~s;
1
3 ld.
G.R No. 116476-84, 21 May 1998, 290 SCRA 408,427.
2 G.R.No.1B0045,Nov.17,2010.
~ l.klderscat1g suppied.
~~
" '""'~~""-
CHAPTER IV
contractor.
EITHER OR BOTH THE PRINCIPAL OR LEGITIMATE
CONTRACTOR.
In legitimate job contracting, the law creates an employer-employee
As held in Eparwa v. Liceo de Cagayan University/ as far as the
relationship between the principal and the employees supplied by the job contractor
security guards are concerned, the actual source of the payment of their wage
for a limited purpose, i.e., to ensure that the contractor's employees are paid
their
differentials and premium for holiday and rest day work does not matter as long as
wages. The principal becomes solidarily liable with the job contractor only for the
they are paid. This is the import of petitioner Eparwa's and respondent LDCU's
payment of the employees' wages whenever the contractor fails to pay the same.
solidary liability. Creditors, such as the security guards, may collect from anyone
of Other than this,
the pri.."lcipal is not responsible for any claim made by the contractual
the solidary debtors. Solidal"; liability does not mean that, as between
themselves, . employees. On the other hand, in labor-only
contracting, the statute creates an
two solidary debtors are liable for only half of the payment.
employer-employee relationship between the principal and the employees supplied
TERMINATION OF EMPLOYMENT
"fails" in the afore-quoted provision does not mean that it should be proven first
that (NOTE: The presentation of the topics in
this portion of tlie Syllabui
the contractor is insolvent or is unwilling to pay. There is nothing in said
provision has been altered to provide for amore
comprehensive and orderly discussion).
which justifies this argument The rule is clear that in legitimate job contracting,
the 1.
principal is jointly and severally liable with the contractor to pay the wages of
the TERMINATION BY EMPLOYEE
latter's employees.
I.
As held in Del Rosario and Sons Logging Entemrises, Inc. v. NLRC,4
RESIGNATION, IN GENERAL
even in situations where the principal has not paid adequately the contractor in
accordance with the law, the latter may not successfully exculpate itselfby
claiming I. CONCEPT.
that it has no fault since what was paid by the principal was insufficient to
defray the While nonnally it is the employer4 who is
possessed of the right to
wages and other legally-required benefits of its employees. As an employer, the
terminate the employer-employee relationship, the Labor Code, 1 in recognition of
contractor/subcontractor is charged with knowledge of labor laws and the adequacy
Sa1 lli,Juel Colpoo!tioo v. ~Integrated Ser.Us, loc., G.R No. 144672, Jlij 10,
2003, cq PBC v. N!RC, G.R No.
2
2 ~suppie:j.
3 EpawaSeariyMdJanilOOaiSeMces, Inc. v.l.k:eode~Unt.oe~si\y{LDCU), GRNos.100376-
n,June17, 1994. ' Re!errilg lo l1e 2017 &,1labus.
~ GR No. L-64204, May 31,1985,136 SCRA669.
~ Under Artides ?!J7 [282], 298 [283] Md 299\2841 ct lle Lm Code, l1e employer is
the cregi<Wed SUdl riJhl.
~-'-'··~
CHAPTER IV 263
POST EMPLOYMENT
BAR REVIEWER ON lABOR lAW
262
300[285].
resign. The Constitutiolf expressly prohibits involuntary servitude, thus:
(4) In the former, the fuilure of the employee to serve the notice at least one
"Section 18. xxx: (2) No involuntary servitude in any
fonn shall
exist except as a punishment for a crime whereof the party shall
have (1)
month prior to the effectivity date of the resignation will make
him/her answerable for damages; while the employee in the latter is not
been duly convicted."
(5) In the former, there is no illegal dismissal to speak of; while in the
THE LABOR CODE.
II.
VOLUNTARY RESIGNATION
(1) Voluntary resignation - without just cause as provided in paragraph
other choice but to dissociate himself from his employment 1 Viewed differently,
termination under paragraph (a) and paragraph (b) of Article 300 [285]:
1 Gal v. Galdenna Phi~iles. klc., <3.R No. 1n167, Jan. 17, 2013; Celvri!s v. PAL
MJiine Colpmml, G.R No.
175209, Jal. 16, 2013; Hi!oo Heavy EquiJmertCorpoodion v. Oy, G.R t«l. 164800, Feb.
2, 2010, 611 SCRA 329, 336-
, See Ar\i:le :m !285lflereet,
337; BiRlao v. Saudi Alabia1 Aitiles, G.R No. 183915, De;. 14, 2011, ~ SCRA 540,
549; BMG Reards (Ptis.), klc. v.
2 See Seclioo 18(2), Alticle 1n (Iii of Rghls) llereof.
~. G.R No. 153290, Sept. 5, 'lfYJ7, 532 SCRA 300, 313-314; Slie Jie Corpoodion v.
NaOOnal Fedelml d labor,
3 Mi:ie:D>l2851. Temmatix!by~.-
G:R. No. 153148, Ju~ 15, 2005; Furgo v.l.rutfes Sdlool d Mandcitp1g, G.R No.
152531, Jut{ 'll, 2007; Alheona
(a) M eJl1lk7iee may~ v.i1IW jJSt coose lhe ~ rela~ by seNi'g a 'Mitten notice
oo lhe 1n!emationa1
M1'lpower Setvk:es, Inc. v. Vb1os, GR No. 151303, ~i15. 2005; Alfarov. CA, GR No.
140812, Aug. 28,
eJl1lk1fer at least me (1) nmll i1 OOvallee. The ~ ~ 'lollom no su::h notice
was ser.oed may OOkllhe ~ 2001.
I
~are b" dana;jes.
2 lnlel Tedmology f'hi~Wne$, h:. v. NLRC, G.R No. 200575, Feb. 5, 2014; Gov. CA,
G.R No. 158922, Mly 28,2004, 430
(b) ki e!1'flb/ee may put 111 em to l1e ~ v.ilhool seM1g fir/ notice oo
l1e 00'4)bya- lor fir/ of lhe ~jist SCRA 358, 367; Emco
Plytiood ColpoJa5on v. Abelgas, G.R. No. 148532, Apll 14, 2004; Cheniver Deoo Plill
Technk:s
causes:
ColpaaOOn v. NLRC, G.R. No. 122876, Feb. 17, 2000; Valdez v. Nl.RC, G.R No. 125028,
Feb. 9, 1998, ~ SCRA 87,
1. Serious ilsult by lle ~a his representaWe oo the hon<X" 11\d peiSOO
of the eJl1lloYee; dlilg Doschv.
NLRC, G.R No. L-51182, Jutt5, 1983,208 Phi. 259; 123 SCRA296; Maglolov. NLRC, G.R
No. 63370,
2. lnhunllrlllld uOOeaable ieabnent acoooled1he ~by1he ell1lk7fera his
representative; Nov. 18, 1985,
140 SCRA 58; MlaYe TOOlS CorpOJation v. NLRC, G.R No. 112909, Nov. 24, 1995, 250
SCRA 325, 330,
3. Corm'ission of aaine a olfense by the llJ1'4lioYer a his
represen1ative ~ains! lhe peiS0!1 rJ.1he employee a il.'lf cl the
citirg lnleltrod Mrine, Inc. v. NLRC, G.R t-MW87, June 19, 1991. 198 SCRA318.
im1e<iate membefs cl his fanity; and
3 Zenakla D.lleodoza v. HMS Cred"tt Co!pooltion, G.R No. 137232, Apnl17, 2013;
San M;Juel Propenies Phl~. Inc. v.
4. Olher causesmabJous1D arrtof1he foregoing.
Gucaban, G.R No. 153982, Ju~ 18, 2011, 654 SCRA 18;
4 ld.
5 ld.
CHAPTER IV
POST EMPLOYMENT
265
before and after the alleged resignation must be considered in detennining whether
he or she, in fact, intended to sever his or her employment.' ·
in making his resignation void but only in making him liable for damages. 1 Thus, a
resignation made effective "immediatelY' or short of the 30-day period violates the
To constitute a resignation, it m\!St be unconditional and with the
intent to law and may subject the
resigning employee to damages, if there exists no just cause
operate as such. It is settled doctrine that the resignation of an employee is
presumed to warrant the immediate
termination of employment by the employee.
voluntary, unless established otherwise. 1 Thus, the fact that the employee has
prepared her resignation letter in her own handwriting and that she has signed an
b. Amount and extent of damages.
undertaking evidencing her receipt of separation pay, when taken together with her
The law is silent on the form or amount ofdamages for which an employee
educational attainment and the circumstances surrounding the filing of the
complaint who violates the one (I)
month prior written notice requirement in Article 300 [285]
for illegal dismissal, comprise substantial proof of the employee's voluntary
may be held answerable. It may be deduced, however, that the damages
resignation. 3 Contrarily, there is no valid resignation where it was made without
contemplated therein refer to actual damages that the employer may have suffered as
proper discernment, such as when an employee's act of writing and handing in his
a consequence of the undue termination of the employment relationship by the
resignation letter to his employer was a knee-jerk reaction triggered by that
singular employee.
moment when he was left with no alternative but to accede, having been literally
forced into it by being presented with the more unpleasant fate of being
tenninated. 4 c.
Resigning/retiring employee's obligation to reimburse employer for
The case of Alm:.rio v. Philippine Airlines, Inc. 2 affirmed the right of the
In case of tennination effected by the employee without just cause,
the employer to be reimbursed for the
cost of training a resigning employee to higher
following requisites must concur:
positimt In this case, petitioner was hired by respondent as a Boeing 747 Systems
(1) The resigning employee should tender a written (not verbal)
notice of Engineer. Later, petitioner, then
about 39 years of age and a Boeing 737 (B-737)
· the tennir.ation (commonly known as "resignation letter");
First Officer at P.AL, successfully bid for the higher position of Airbus 300 (A-
300)
(2) Service of such notice to the employer at least one (I) month
in First Officer. Since said higher
position required additional training, he undetwent,
advance;5 and
at PAL's expense, more than 5 months of training consisting of ground schooling in
l
(3) Written acceptance by the employer of the resignation.
Manila and flight simulation in Melbourne, Australia After completing the training
course, petitioner served as A-300 First Officer ofPAL, bat after 8 months of
service
The ~nt requisite above is not expressly provided in Article 300 [285]
but as such, he tendered his resignation,
for "personal reasons. " In holding petitioner
is given such character of a mandatory requirement under well-established
liable to reimburse PAL for the training costs, the Supreme Court cited, among
other
jurisprudence.6
grounds,. Article 22 of the Civil Code on unjust enrichment which recognizes the
3. LIABILITY FOR DAMAGES IF REQUISITES NOT COMPLIED WITIL
principle that one may not enrich himself at the expense of another. Thus,
petitioner
was ordered to pay PAL the sum ofP559,739.90, to bear the legal interest rate of 6%
a. Resigning employee's liability for damages.
per annum from the filing of PAL's complaint on February l i, 1997 until the
finality
POST EMPLOYMENT
267
period.
retirement benefits.
The Supreme Court, however, allowed t.1.e deduction, in accordance with
2) ON ACCEPTANCE OF RESIGNATION.
its ruling in said case of A/mario. It considered PAL's act of sending it~ crew for
• Written acceptance of resignation necessary to make it binding
training as an investment which expects an equitable return in the fom1 of service
and effective.
within a reasonable period of time such that a pilot who decides to leave the
1
(2) shorten it to such number of days as he/she may deem
GR No.198261, Oct 16,2013.
2
appropriate or necessary; or
CusiDdb v. Mnisby cl Lab<J and ftllJk1fment, G.R No. 64374, Jltj 19, 1990;
Phqlpiles Todcrf, hlc. v. NLRC, GR. No.
112965, Joo. 30, 1997, 334 Ph!. 854,877.
(3) waive it completely.
3
PhHjlpile National Constuc00n Corporntion v. NLRC, G.R No. 120961, Oct 2, 1997, 280
SCRA 116; See also BMG
5 ld.
2 Phim:o h1duslries, Inc. v. NLRC, G.R No.118041,June 11, 1997,273SCRA286.
POST EMPLOYMENT
6
positions, they are not ordinary laborers or rank-and-flle
personnel who relinquishment
Therefore, in order to determine whether the employees
may not be able to completely comprehend and realize the
consequences truly intended
to resign from their respective posts, the teuor of the
of their acts. They are •;ducated individuals. Under these
circumstances, resignation
letters cannot be merely relied upon, but must take into
it can hardly be said that they were coerced into resigning from
the consideration the
totality of circumstances in each particular case.
company. The quitclaim they executed in favor of the company
amounts
Here in SME Bank, the records show that some of the respondent
to a valid and binding compromise agreement To allow them to
no real intention ofleaving their posts. They therefore did not voluntarily
resign from their work; rather, they were terminated from their
1 ld.
2 MJra v. AVf!!ti]J !Jaketilg Colpaation, G.R. No. 177414, Nov. 14, 2008.
style, pa.¥el' illd paitics inlle\E!s d ronflict nmagement. Apa1icul<r vcrialre or
a oorrbi1ation d simiar or ilissinilar
3 Salmiego v. ti.RC, G.R No. 93059, JIJ'Ie 3, 1991, 198 SCRA 111; Cali1llla v.
NLRC, G.R. No. 105083, Aug. 20, 1993, variablest:a1 i11'IJence 111
en1lfoyee il resign.'
2 St.Mchael~v.NLRC,GRNo.119512,Ju~
v..luaY;!co, G.R No. 166507, .krl. 23, 2007; Gkile Telecom v. CrisobJo, G.R
No. 174644, Aug. 10, 2007, 529 SCRA 811,
13, 1998,292SCRA47a. VICel11ev.CA,G.RNo.175988,Aug.24,
818; G.lelzm, Jr. v. P~ IImtries, klc., G.R No. 170266, Sept 12, 2008; Ga1 v.
Galdem1a ~. hlc.,G.R No. 2007,531 SCRA240;WPiHcm Eneprises,
v. Maghuyop, G.R th.160348, Dec.17,2004.
3 Biboo v. Saudi Arobian Mles, G.R No. 183915, Dec. 14, 2011, 662 SCRA 540, 549;
See also Gcl1 v. Galdem1a
177167, Jal. 17, 2013.
4 The human resoorre Sludies cited as Foarlae No. 50 in fle deciskln illlis Gbbe
Teleoom case refer 1D the ones IT'ade by l'tilippines, Inc., GR. No.
177167, .lifl. 17, 2013; Gklbe Telecanv. Qisro;jo, supra.
Slephen P. ROObils il his book "'OgarizaDlla BeMiia" 9" ed., 22-23 vmere! was
adv!rlced thus: 'A~ mi1f eiD1er 4 Auza, Jr. v. MOL Phi~. klc., G.R
No. 175481, Nov. 21, 2012.
be 111 indM:lual leYel vaiallle or a g~ leYel varicille. kldMlual leYel
variOOies are l1ooe f1a relate 1D a pe!SO!l's 5 G. R Nos.184517
&186641,0ct8,~13(EnBanc).
6 See Mag1o1o v. Nl:RC, G.R No. 63370, Nov. 18, 1985, 224f'lli. 210,222-223,
cili1g Patten v. Miler, 190Ga. 123,8 S.E.
d1aradEristics such as his or her ~. gender, roles illd marla! slabJS. On the
other lmd, group leYel varicbe; are 1hose
lha! pei1ain Ill the worK erMroornent and agcrizational W1ure. Exafr4lles d
lhis are communicatioo patterns, leadersh~ 2nd757, 770; Sadlerv. Jes\er,D.C.
Tex., 46 F. Supp. 737, 740; a'd Black's Law DictioMy(Re;ised Four1h Edition, 1968).
271
POST ~MPlOYMENT
employment.
1
5) ONVALIDITYOFSPECIALVOLUNTARYRESIGNATION
• Burden of proof shifts to the employee to prove involuntariness of
(SVR) PROGRAM.
. t'Ion.6
res.gna
of the Labor Code that notice be sent to the Department of Labor and
1 A' Prine Securiy SeMces, klc. v. NLRC, G.R No. 107320, Jat 19, 2000; M:DIIe Pro!
edlve &Detective ~encyv. Orr!)ad, Employment at least a
month prior to the effectivity of the termination of
G.R.No.159195,Miy9,2005.
employment The reason is that by applying to voluntarily resign, the
2 Great Soothem Maitine Services Caporatioo v. AC1tia. G.R No. 140189, Feb. 28,
2005; Blue ~ Ma1power ald
~ SeMces, klc. v. Hoo. CA, G.R. No. 161196, Julf 28,2008.
3 lmoodoo v. NLRC, GR No. 154376, Sept 30, 2005, 471 SCRA 559, citing Travis v.
Tcmna Nlk Sd100I Distrk:t, 120
Wash. App. 542, 85 P.3d 959, Mrch 9, 2004 (See Foohl!e 22 8lered].
4 Villinlelv. YeoHanGuan,G.R No.169191,June 1,2011.
5 Payno v. Orizon TICKling Co!p., G.R No. 175345, Allg. 19, 2009; ~-oo v. Equitable
!leneia Se!vices, Inc., GR No.
185269, Jooe 29, 2010; Cabalef1 ~Co., Inc. v. Ouianilao, G.R No. 169494, Ju1124,
2007, 528 SCRA 153; 1
Diana E. Belaunllmv. ~c. GR. No. 120038, Dec. 23, 1996, 265 SCRA 800.
Mt1e ProiEdNe &l:lell!cWe ~encyv. Ompad, G.R No. 159195, May 9, 2005, 458 SCRA
308, 323. 2
WiU Hahn Enteqxises v. Mcrjruyop, G.R . No. 1&!348, Dec. 17, 2004; Seee also C1i11g
Kai Shek Colege v. Rosalilda M
IJN9ln), G.R No. 175988, Aug. 24, 2007, 531 SCRA 240; 1J9!e1 TelecoomJnicalio
Philippines, Inc. v. Soriano, G.R Torres, G.R No. 139456, Aprl 02,
2014; Mnlapatv. Add Folte Personnel Ser>mes, klc., GR No. 180285, July 6, 2010.
No.166039, .lll1e 26,2006.
4
G.RNo.193107,Mith24,2014.
POST EMPLOYMENT
his employment without serving any notice, verbal or written, to the employer if
6) ON EMPWYMENT ELSEWHERE.
such is occasioned by any of the just cause:; mentioned in paragraph [b] or by any
• Assumption of new job with another employer by resigning
act, fact or circumstance clearly showing the involuntary or forced nature of the
employee prior to current employer's acceptance of resignation
resignation.
indicates intent to relinquish position. 2
2. FORCED RESIGNATION.
• Employment elsewhere during the pendency of a case does not
3
· There is forced resignation where the employee is made to do or perform
amount to resignation.
an involuntary act, that is, the submission or tender of resignation letter meant
to
m.
validate the action of the employer in inveigling, luring or influencing or
practically
INVOLUNTARY/FORCED RESIGNATION
forcing the employee to effectuate the tennination of employment, instead of the
OR CONSTRUCTIVE DISMISSAL
employer doing the termination himself.
(TERMINATION BY EMPLOYEE WITH JUST CAUSE)
3. CONSTRUCTIVE DISMISSAL
1. INVOLUNTARY RESIGNATION.
There is constructive dismissal when any of the following three (3)
circumstances exists:
The termination initiated by the employee based on the just causes
descnbed and enumerated in paragraph (b) of Article 300 [285] is in the nature of
(I) \Vhen continued employment is rendered impossible, unreasonable or
involuntary resignation. Thus, an employee may put an end to the employment
unlikely;
relationship without need of serving any notice on the employer for any of the
(2) When there is a demotion in nmk and/or a diminution in pay; or
following just causes:
No. 193421, .IIJle 04, 2014; ChiMg tea S1ek Cdlege v. Roscmda MTooes, G.R ttl.
189456, ~ 02, 2014; llilml1d
Tennination initiated by an employee is involuntary in character if the
just Taxi ard &ym Ong v. F. Uanas, ¥., G.R
ttl. 1ID724, Math 12, 2014; CosiJe v. 8roOOcan k;ia, klc., G.R. ttl.
causes expressly enumerated above or other similar or analogous circumstances exist
201298, FEb. 5, 2014; Gerrila. Jr. v. Bri:wise. klc., G.R ttl.175365, Od. 23, 2013;
St.£ Bank. rev. DeGuznllll. G. R
in a given situation. In this instance, the service of a written notice to the
employer Nos. 184517 &186641, Od. 8, 2013 (En
Balc); MQ v. Sal Joaquil, Jr., G.R No.185549, AIIJ. 07, 2013; Gal v. Galderma
PhfWiles, klc., G.R ttl. 177167, .!at 17, 2013; Verd<Kiero v. ~ hJtiles Group of
Cort1)Ciies TflllSIXXI, re,
commonly called "resignation letter" becomes unnecessary and immaterial to
G.R No. 195428, Aug. 29,2012,679 SCRA 545, 555; Galq v. Maasugli, G.R No. 174173,
Mrch 7, 2012,667 SCRA
detennine the validity or legality of t.lJ.e tennination. The law expressly does
not 622, 634-635; M:Bes v. Hllbolr Cem Pat
Tennilal, Inc., G.R No. 174208, Jal. 25, 2012,664 SCRA 110, 117; The
require such notice.
University ollhe mra:ulale Ca1ception v. NLRC, G.R No. 181146, JM. 26, 2011, 640
SCAA 608, 61U19; PeWo' v.
Ouldoor Clot\ilg Millufa:luril:J ColporaOOn, G.R No. 177114, April13, 2010, 618
SCAA 208; FonnMies v. l»lcan
2009,598 SCRA 370, 376; Peo1a;Ja1 Steel Gapaaliln v. CA. G.R No. 174141, Ju1e
26,2009,591 SCRA 100, 174-175;
La Rosa v. Milassador Hotel, G.R. No. 177059, Mlrtl113, 2009, 581 SCRA 340, 346-
J47; 544 SCRA 279; SUgue v.
1 Dole Phi~. Inc. v. NLRC, GR No. 120009, Sept 13, 2001; kltematiooal
Hatttlare, Inc. v. NLRC, G.R No. 80770, Tlilm;lh lntema1ioocj (Phis.),
Inc., G.R Nos. 164804 & 164784, Jill. 30, 2(m, Endi:o v. Quil1bJm Foods~
Aug.10, 1989, 176 SCAA256.
Center, G.R No. 161615, Jan. 30, 2009, 577 SCRA 299, 310; Uni.vide Sales Wll91oose
CtJb v. NLRC, G.R No. 154503,
2 l'tlqlpilesToday, Inc. v. NLRC, G.R No.112965,JM. 30,1997,267 SCAA202.
Feb. 29, 2008; NOOc.is Tradilg Co., Inc. v. Gnio, G.R No. 159730, Feb. 11,2008,
Frcrx:isoo v. NLRC, G.R ttl. 170087,
3 Q-ea!Soothem Maritime SeM:es Corpaml v. Awia, G.R No.140189, Feb. 28, 2005.
4
Aug. 31, 2006, 500 SCRA 600, 702-703; Unicorn Safely Glass, Inc. v. BasMe, G.R
ttl.154689, Nov. 25, 2004; Chia!YJ Kai
Article 300(b) [28S(b)], l.abocCode; Section 11, R1k I, Booi<VI, !Us to 1!
11llementlhe l.mCode. Shek Coiegev. Hoo. CA. GR. No. 152988,
Aug. 24, 2004.
CHAI'TER IV 275
POST EMPLOYMENT
such act to be voluntary, an employee who is forced to relinquish the position held
In accordance with the same test, the following acts were considered
through the employer's unfair or unreasonable acts is deemed to have been illegally
· indicative of constructive dismissal in the case of Globe Teleeom, Inc. v.
Florendo-
1
terminated or discharged and as such the termination is implied to be involuntary.
Flores:1
Indeed, the law on constructive dismissal is a well-settled rule in both Philippine
and
foreign jurisdictions.2
"Although respondent continued to have the rank of
NLRC/ argues that private r~spondent did not suffer any demotion in rank since he
in order to protect their rights and interests from the coercive acts of the
ernployer.8
has "retained his rank of Vice President, continued to work in the same office, and
Following above test, it was held in Tuason v. Bank of Commerce,9 that
received the same salaries, benefits and privileges." In holding that private
petitioner was constructively dismissed by respondent BOC not only when the latter
respondent was constructively dismissal, the Court emphasized that constructive
has exerted pressure on petitioner to resign from her work but when the fonner,
dismissal does not always involve such kinds of diminution; an act of clear
while on leave, was replaced by another in her post.
discrimination, insensibility, or disdain by an employer may become so unbearable
on the part of the employee that it could foreclose any choice by him except to
2002).
.
Colpolatix1. G.R No. 172062, Oct ~. 2006, 536 Phi. 985; 506.SCRA 266, 273;
GIOOe Telecan, roc. v. Fkxendo-fbes,
supra
2 G.R No. 188711, July 08, 2013. nJuly 1991, Respondent Edna R Esrudero
(Escudero) was hied as bOOd<eeper by
6 CRC Agri:ull.ral Trad"DJ v. Nl.RC, G.R. No. 177664, Dec. 23, 2009, 609 SCRA
138, 149. pelitiooer Till Brolhers
CorpaatiCil ct Basiill Cly {TM Brothels), a coqxxation prirrOOiy ergaged illle real
estale
T Ang v. San ~Iii. ~.• G.R No. 185549, Aug. 07, 2013; GaiMg v. Malasu;Jui, G.R
No. 174173, Mcrt:h 7, 2012, 667 business. On 1Seplenter 2004,
Escudero lied ~ TM 8rolhers acomplailt klr legal disrrissal,ll!delpaymeri ct
SCRA622.~.
wages, oost ctMY;J alkHrcrlce and 13~ rrooll ~· In support lithe Cl:lfl1l'ai1l,
Escudero aleged il herp:dm ~that,
s Ocroond Ta>d ll1d 8lyCil Ong v. Felpe llamas, Jr., G.R No. 190724, Mlt:h 12,
2014;~ v. Broadcoo1 Asia, klc., G.R ~ July 2003, her IT01II1tt
saay rJ. P2,!Al0.00 was not~ on 1i11e by Tcr~ll!dhe!s. After~ the oorporation's
No. 201298, Feb. 5, 2014; !lin!gM v. !:latv.ms lkli1ed, IDxporated, GR No.
191053, Nov. 28, 2011, 661 SCRA 438, office remodeled il the
eat( part of 2004, Till Brothers alklgedtj rene! out lle office space Escudero used
kl OCCUI'f and
4<16; CRC AgrX:ull.n3 TlliMg v. Nl.RC, G.R No. 177664, Dec. 23, 2009; Globe
Teleoom, klc. v.lbrend<rFiores, G.R No. ceased gNilg her lJither
assiJnrneniS. E\tentualy ronstrm to slop repa1i"g lor IWI1I becaJse ct her die
1i1ancial
150092, Oct 20, 2003, SC E-LillafY.
coodition, EsaJdero cl<ined flat Till Brolhels 'shrewd~ maneuvered' her illega
dismissal !tool errc>iaJmenl
9 G.R.No.192076,NoY.21,2012.
3 GR. No. 120008, Oct 18, 1996.
POST EMPLOYMENT
occurs not when the employee ceases to report for work, but when the unwarranted
hotel but he was not paid his salaries corresponding thereto, prompting him to
tender
acts of the employer are committed to the end that the employee's rontinued
his resignation letter, the tenor of which reads:
employment shall become so intolerable. In these difficult times, an employee may
"I hereby tender my resignation to you, Mr[.] Wes Prentice,
be left with no choice but to continue· with his employment despite abuses ··
Dreamland Resort, Subie, Zambales, Philippines.
committed against him by the employer, and even during the pendency of a labor·
r
dispute between them. This should not be taken against the employee. Instead, we
I "Since joining Dreamland Resort & Hotel over three
months
ago, I have put my heart and soul into the business. I have donated many
must share the burden of his plight, ever aware of the precept that necessitous
men
. are not free men."
I
instance, an employee who tendered her voluntary resignation and signed the
XXX.
quitclaim after receiving all the benefits due her for her separation cannot claim
that
The above statement only goes to show that while it was Johnson who
she was constructively dismissed. The fact of her transfer due to a new
secretarial
tendered his resignation, it was due to the petitioners' acts that he was
constrained to
staffing pattern which she objected to, or the allegeJ hostility on the part of
her
resign. The petitioners cannot expect Johnson to tolerate working for them without
employer, cannot render nugatory the voluntary nature of her resignation. She was
such as Johnson, would continue working for an employer who does not pay him his
resignation and not constructive dismissaL'
saiaries.
The transfer of the location of an employee's office from under the
steps of
DISMISSAL
to resign does not amount to constructive dismissal but a case of voluntary
resignation. It was not shown that her transfer was prompted by ill will of
There obviously is a fine distinction between or "illegal actual" dismissaL
management It merely involved a change in location of the office and not a change
on the one hand, and "constructiv2" dismissa~ on the other, although, in some
of her position.2
cases,2 the Supreme Court conjoins the words "illegal constructive" dismissal or
dismissal.
constructive dismissal is the act of the employee who resigned and took a leave of
absence on the date of effectivity of his resignation and while on leave, he wo!
Xed "Dlegal dismissal" or "actual
dismissal" is readily shown by the act of
for the release of his clearance and the payment of his 13th month pay and leave
pay the employer in openly and expressly
seeking and effecting the termination of
benefits. In doing so, he, in fact, performed all that an employee normally does
after employment of an employee; while
"constructive dismissal," being dismissal in
he resigns. If indeed he was forced into resigning, he would not have sought to be
disguise, is not readily shown or indicated by any similar act of the employer that
cleared by his employer and to be paid the monies due him. The voluntary nature of
would openly and expressly show its desire and intent to terminate the employment
his acts has manifested itself clearly and belied his claim of constructive
dismissal.3 relationship. Notably, ronstructive
dismissal does not always involve forthright
L·
POST EMPLOYMENT
defend and justify the tennination but in constructive dismissal, there being no
legitimate exercise of management prerogative on the part of petitioner. Before the
express dismissal to speak of, the employer would normally contend that there was
order to transfer was made, discrimination, bad faith, and disdain towards
no termination at all.
respondent were already displayed by petitioner leading to the conclusion that she
In terms of evidence, in illegal diSmissal cases, documentary,
testimonial was constructively dismissed.
and other forms of evidence are adduced by the employer to secure affirmation from
The case of Star Paper Corp. v. Espiritu 1 is another good example of
the courts of the validity of the termination; in constructive dismissal, the
employer, transfer amounting to constructive
dismissal. Here, the combined circumstances of
who normally denies the termination, would advance arguments against the·
the immediate transfer of respondents to far-off provinces after their refusal to
sign
circumstantial evidence being presented by the employee to prove his constructive
the signature sheet of the document for the ratification of the Addendum to the
1995
dismissal.
CBA, and petitioner's emphasis on respondents' alleged previous infractions at
A1l far as the reliefs under Article 294 [279] of the Labor Code are
work, point to the fact that the transfers are motivated by ill-will on the part of
concerned, the same are available to both cases of illegal and constructive
petitioner. Petitioner's order for respondents to report for work in petitioner's
dismissal. 1
provincial branches on the very same day that they were served with the Memo of
dismissal.
dismissaL
While transferring an employee from one position to another or from one
In Jarcia Machine Shop and Auto Supply, Inc. v. NLRC/ private
workplace to another within the same establishment generally does not amount to
respondent, a machinist who had been employed with the petitioner company for 16
constructive dismissal, however, it may be considered constructive dismissal when
years, was reduced to the service job of transporting filling materials after he
failed
any of the following conditions should concur:
to report for work for one (1) day on account of an urgent fumily matter. This is
one
constitutes a demotion since the latter position was non-supervisory and clerical
in
, Mr1t Roche kllemational v. NLRC, G.R No. 123825, Al.g. 31, 1999; See also General
Baptist Bille Colege v. NLRC, G.R
No. 85534, Mm15, 1993, 219 SCRA 549, 555. Ulderscori'(l supplied.
nature. Despite several directives, the petitioner refused to tmn over her
2 Dearmt Hotel Resort v. Johnson, G.R No. 191455, l.latt\12, 2014; SHS Pelforaild
Materials, klc. v. Diaz, GR. No. responsibilities to the new Category Buyer,
or to accept her new responsibilities as
185814, Oct 13, 2010, 633 SI'..RA 258; SaNaoza v. tlRC, G.R No. 182086, Nai.
24,2010; Megatixte SeaJrity em Afted Provincial Coordinator.
Servtes, 0:. v. Laclao, G.R No.160940, »( 21, XOS, 559 SCRA 110, 117-118; f11io
v. CA, G.R No. 171764, June 8,
2007; Duklulalv. CA, G.R No. 164893, Mml1, 2007,517 SCRA 191, 199; Slifaov.
Cinech System Cooslrudioo, Inc.,
G.R No. 171392, Oct. 30, 2006; Fb'en Hotel v. NLRC, G.R No. 155264, May 6, 2005;
Phil. En'4JIOy SeM:es and 1 G.R. No. 154006, Nov. 2, 2006.
Resoortes, Inc. v. Parll11io, G.R No. 144786, Api 15, 2004, 471 Phi. 753, n£;
Mendoza v. Rural Book rJ lucba1, G.R 2 Jiltia Machile Shop em Auil&Wf, Inc. v.
NLRC, G.R No. 118045, .lal. 2, 1997, 266 SCRA 97; 334 Pl'dl. 84.
No. 155421, Julf 7, 2004; Blue Daiy Capaam v. NLRC, G.R No. 129843, Sept 14,
1999, 314 SCRA 401. 3 PEd\soo v. Robi11SOOS Supelll'al(e!Co!
poration, G.R No. 198534,.ltJ~ 03, 2013.
3 G.R. No.156963, Nov.11, 2004.
4 G.R No. 198534, July 03, 2013.
POST EMPLOYMENT
petitioners from Caloocan City to San Rafue~ Bulacan by virtue of a letter dated
(I) There is substantial showing that the transfer of the petitioner from
March 26, 1997 from the Bureau of Animal Industty (BAI) of the Department of
Category Buyer to Provincial Coordinator was not unreasonable, inconvenient, or
Agriculture reminding it that its production should be conducted in San Rafael,
prejudicial to her. The petitioner failed to dispute that the job classifications
of r
Bulacan and not in Caloocan City. Petitioners contend that the transfer order
Category Buyer and Provincial Coordinator are similar, or that they command a
I amounted to their constructive dismissal. They maintain that the letter ofBAI
is not
similar salary structure and responsibilities. The Provincial Coordinator's
position · credible beca.use it was not authenticated; it was only a ploy,
solicited by private
does not involve mere clerical functions but requires the exercise of discretion
from respondents to give them an excuse to effect a massive transfer of
employees. They
time to time, as well as independent judgment, since the Provincial Coordinator
point out that the Caloocan City office is still engaged in production activities
illltil
gives appropriate recommendations to management and ensures the faithful
now and respondents even hired new employees to replace them. The Supreme
implementation of policies and programs of the company. It even has influence over
Court, however, ruled:
a Category Buyer because of its recommendatory function that enables the Category
Buyer to make right decisions on assortment, price and quantity of the items to be
"We refuse to accept the petitioners' wild and reckless
sold by the store,
imputation that the Bureau of Animal Industry conspired with the
XXX
c. No constructive dismissal if transfer is made to comply with
POST EMrLOYMENT
company.
"The Cowt has previously declared that mere incidental
• Forcing the employee to resign with threat that if he will not resign, he will
inconvenience is not sufficient to warrant a claim of constructive
file charges against him that would adversely affect his chances for new
dismissal. Objection to a transfer that is grounded solely upon the
employment.
2
personal inconvenience or hardship that will be caused to the employee
to withdraw as a lawyer against the mayor with whom the former owes
certain favors, makes the cessation from employment of said employee not
9. OTHER INSTANCES OF CONSTRUCTIVE DISMISSAL OR
voluntary. Such act is in the nature of a contrivance to effect a dismissal
FORCED RESIGNATION.
3
without cause.
• Denying to the workers entry to their work area and placing them on shifts
• Asking the employee to file a resignation on the condition or promise that
"not by weeks but almost by month" by reducing their workweek to three
she would be given priority for re-employment and in consideration of
days. 1
immediately paying her two (2) months' vacation which she desperately
• Barring the employees from entering the premises whenever they would
needed then because she was ill. The employer's refusal in bad faith to
report for work in the morning without any justifiable reason, and they were
reempioy her despite its promise to do so amounted to illegal dismissal. 4
made to wait for a certain employee who would arrive in the office at
• Changing the employee's status from regular to casual constitutes
5
around noon, after they had waited for a long time and had left?
constructive dismissal.
• Instructing the employee to go on indefinite leave and asking him to return
• Offer made by a labor contractor to reassign its employees to another
to work only after more than three (3) years from the time he was instructed
company but with no guaranteed working hours and payment of only the
to go on indefinite leave during which period his salaries were withheld.
3
minimum wage. The terms of the redeployment thus became unacceptabie
4
for said employees and foreclosed any choice but to reject the employer's
• Implementing a rotation plan for reasons other than business necessity.
• Sending to an employee a notice of indefinite suspension which is
offer, involving as it does a demotion in status and diminution in pay.6
5
• Preventing the employee from reporting for work by ordering the guards not
tantamount to dismissal.
7
• Demoting a worker or re-assigning him involVing a demotion in rank or
to let her in. This is clear notice of dismissal.
6
• Transfer of respondent employee from Credit and Collection Manager to
diminution of salaries, benefits and other privileges.
innature.
investigation. It was only after almost onell) year that the employer made
8
known the findings in its investigation which was conducted ex parte.
6
246SCRA47,51.
7 lirlj.Ja Gro14JdCaT!Jaliesv. Vgan, GR No. 143723,JIIle28, 2001; See also SUdao
v. Cinech Sysen Consfrudion,
7 Globe Teleaxns, klc. v. Fklrerxlo.fklre G.R No.150092,Sept27,2002,390SCAA201.
klc., GR No. 171392, Oct. 30, :mi.
e C. Ak3t1a &Soos, Inc. v. NLRC, G.R. No. 73521, Jcrt 5, 1994'.
8 Norlds TI!KfO;l Co., klc. v. Gnilo, G.R No.159730,Feb.11, 2008.
L"
POST EMPLOYMENT
• Reducing the number of trips of the drivers and shortening their workdays
the personal inconvenience or hardship that will be caused to the employee by
1
reason of the transfer is not a valid reason to disobey an order oftransfer."1
which resulted in the diminution of their pay.
• Forcing the employee to tender her resignation letter in exchange for her
• Voluntary resignation is different from constructive dismissal. An
13th month pay, the reason being that the employee was found by the
employee who tendered her voluntary resignation and signed the quitclaim
employer to have violated its no-employment-for-relatives-within-the-third-
after receiving all the benefits due her for her separation cannot claim that
2
degree-policy, she having been impregnated by a married co-employee?
she was constructively dismissed.
10. SOME PRINCIPLES ON CONSTRUCTIVE DISMISSAL OR
11. EXAMPLES OF CASES WHERE FACTS PROVED CONSTRUCTIVE
INVOLUNTARY OR FORCED RESIGNATION.
DISMISSAL
declared that petitioner was constructively dismissed because all proceedings and
finding of forced resignation or constructive dismissal?
actions taken in regard to petitioner's employment and case, beginning on May 18,
• A threat to sue the employee is not unjust and will not amount to forced
2004, were all but a farce, done or carried out in bad faith, with the objective of
resignation or constructive dismissal. For instance, a threat to file
estafa
harassing and humiliating her, all in the fervent hope that she would fold up and
quit.
case, not being an unjust act, but rather a valid and iegal act to enforce
a
award), the investigation was still allegedly ongoing. She was deprived of the
privilege to attend company events where she would have received her ·well-
deserved awards with pride and honor, and her colleagues would have been inspired
1 ~ v. JB l.ile Bico1 Express, Inc., G.R No. 163n5, Oct. 19, 'JI/J7.
2 Stir ~cap. v. Si'rba, Coo'ia il1d Estrella, G.R No. 164774, ~ 12,2006.
by her in return. Certainly, respondents made sure that petitioner suffered a
3 ~v. Add Face Personnel ServiceS, Inc., G.R No. 180285, July 6, 2010.
c camta v. NI.RC, G.R No. 105083, !IJ.Jg. 20, 1993, 225 SCRA 526.
s Gaw.GaldelmaPh~,lnc.,G.R No. 177167,Ji11.17,2013.
s Be1aunzaran v. NlRC, G.R No. 120038, Dec. 23, 1996, 265 SCRA 600; Mandapat v.
Add Face Pe!SOOnel Se!vices, Inc., 1 GR.No.191281,Dec.05,2012.
G.R No. 180285, July 6, 2010; Gaa1ay Pacific Airways, Lid. v. Wain, G.R No.
148931, Sept12, 2006. 2 Concrete Aggregates v. NLRC,
G.R. No. 82458, Sept 7, 1989.
1 Philippine Rural Recons1rudion M;mment [PRRMj v. I'Ugar, GR No. 169227, July 5,
2010; Ma1dapat v. Add Face
G.R. No. 185100, July 09, 2014. Petitiooer, as Deil1 ci STJ..QJadaklpe, was praroEd
1D the position ci Chief Oper.!1ing
Pelsonnel Se!vices, Inc., G.R No.180285, July 6, 2010; Velasoov. TransitAub'oo!
Ne Supptf, klc., G.R No. 171327, June Officer (COO) of SlHJakati, lllder
the sane pasitioo classilicalkxl iWl my level of 'Job Qafe Mil1a;!er B'. She
educational ilsti1ulioo v.!lile respondent Mml v..JmJ (Jaoob) il1d Peter KFernandez
{Fenilldez) are sn otficefs, lhe
Warehouse().Jbv. NLRC andAmaia P. Ka.vada, GR. No.154503, Feb.29, 2008.
I fooner berg the Presklenl and Chief Executive Ofti:a' (CEO) and lhe IaUer
Sookr VICEH'resi:fent
B Germa, Jr. v. Bankwise, Inc., G.R No. 175365, Oct. 23,2013.
POST EMPlOYMENT
humiliating fate and consigned to oblivion. Indeed, petitioner could not be faulted
58 years old. His eventual decision to leave petitioners due to the agonizing
situation
for taking an indefinite leave of absence, and for altogether failing to report for
work at the worlq>lace cannot,
therefore, be discmmted.
after August 9, 2004. Human nature dictates that petitioner should refuse to
subject The NLRC and the
CA, therefore, correctly appreciated the foregoing
herself to further embarrassment and indignities from the respondents and her
events as badges of constructive dismissal, since private respondent could not have
colleagues. All told, petitioner was deemed constructively dismissed as of May 18,
given up a job he has engaged in for eight years unless it has become so unbearable
2004."
for him to stay 1herein. Indeed, private respondent felt compelled to give up his
2. McMer Corporation, Inc. v. NLRC and Libunao, Jr./ where private
employment
respondent Libunao, Jr. 2 was declared as having been constructively dismissed
based As far as private
respondent is concerned, how the working place is being
on the following acts committed by petitioners against him:
run has caused inordinate strain on his professional work and moral principles,
even
(1) About noon of July 20, 2007, petitioner Roque, McMer's General
stretching to desecration of dignity in the workplace. The allegation that all of
Manager, went to private respondent's office at the height of his anger with threat
to private respondent's staff were
removed one by one until finally only the latter was
inflict physical harm, shouted a command for private respondent to proceed to
left alone performing managerial and clerical duties is merely part of the greater
petitioner's office; private respondent was approached sarcastically with
scheme brought forth by the insensibility of petitioners in dealing with the
commanding voice by petitioner Roque even in front of some officers and rank-and-
employees.
file employees and newly-hired employees; and private respondent's professional
3. Cosare v. Broadcom Asia, Inc. 1 where it was held that petitioner
eiliic or moral belief was compromised due to certain business practices of
petitioner Cosare was constructively
dismissed since it is clear from the cited circumstances
McMer that were never exposed due to the employee's fear ofreprisa~ as shown in
that the respondents already rejected Cosare's continued involvement with the
private respondent's Position Paper.
company. Even their refusal to accept the explanation which Cosare tried to tender
(2) As may be gleaned from tlte records, what transpired on July 20, 2007
on April2, 2009 further evidenced the resolve to deny Cosare of the opportunity to
was not merely an isolated outburst on the part of petitioner Roque. The latter's
be heard prior to any decision on the termination of his employment. The
behavior towards his employees shows a clear insensibility rendering the working
respondents allegediy refused acceptance of the explanation as it was filed beyond
condition of private respondent unbearable. Private respondent had reason to dawdle
the mere 48-hour period which they granted to Cosare under the memo dated March
a'ld refuse to comply wi1h the summon of petitioner Roque out of severe fear that
he 30, 2009. However, even this
limitation was a flaw in the memo or notice to explain
will be physically harmed In fact, the same was clearly manifested by his immediate
which only further signified the respondents' discrimination, disdain and
reaction to the situation by going to the Valenzuela Police to report the incident
insensibility towards Cosare, apparently resorted to by the respondents in order to
deny their employee of the opportunity to fully explain his defenses and
ultimately,
(3) Private respondent has exhibited a strong opposition to some company
retain his employment. The Court emphasized in King of Kings Transport, Inc. v.
practices resulting in a severe marginal distance between him and petitioners Roque
Mamac, 1 the standards to be observed by employers in complying with the service
and Alvestir, McMer's Presiden~ at the workplace. This, together with the
of notices prior to termination which require compliance with the reasonable period
harassment and intimid;ltion displayed by petitioner Roque to his employees,
of at least five (5) calendar <lays from receipt of the notice within which to
explain
became so unbearable for private respondent to continue his employment with
his side. In sum, the respondents were already resolute on a severance of their
petitioner McMer. The fuct that none of the employees complained or brought this to
working relationship with Cosare, notwithstanding the facts which could have been
the attention of the appropriate ·authority does not validate petitioners' actions.
For established by his explanations
and the respondents' full investigation on the matter.
private responden~ retaining the employment despite his despair was a matter of
In addition to this, the fact that no further investigation and final disposition
principle. Private respondent reasoned that it was difficult for him to look for
another appeared to have been made by
the respondents on Cosare's case only negated the
employmen~ considering that at the time he filed his Position Paper, he was already
claim that they actually intended to first look into the matter before making a
final
from the fact that even before Cosare was required to present his side on the
charges
l
was evenlualy promoted as Head of Legal Depmert. and ooncunenl!y, as Officer-
iH:harge ci petitioner M:Mers Legal
and Adrri1istrative Deparonent, effective oo J111uary 3, 2000.
2 G.R.No.166208,JIJie29,2007.
POST EMPLOYMENT
cause means that there exists a ground which the law itself allows or authorizes
to participate in the activities of respondent company. His salary was no longer
1 See also Tuasoo v. Balk of Commerce. G.R No. 192076, Na.t. 21, 2012.
1 Pasrua v. Nt:RC, G.R. No. 123518, Mcrcll13, 1998; Mrlla BEm: Co. [M:RALCO] v.
NLRC, G.R No. 153180, Sept 2,
2 G.R. No. 170661, December 4, 2009.
2005; St. l.i!e's ~i:al ta18", klc. v. Ndaio, G.R No. 152166, Oct 20, 2010; Lilla
l.ald, klc. v. Cuevas, G.R No.
3 The Acting Disbicl Manager of respondent for the !locos Disbict.
169523, .ltl1e 16, 2010.
' Relerri1g 11 the 2017 SyilcdxJs.
2 Miele 298 (283], labor Code.
5 Relevant Provisions: Articles 292(b) (277(b)), 294 (279), 297 (282) and 298
(283), labor Code. 3 Article 299 (284), Ibid.
L ~
CHArTER IV 291
290 BAR REviEWER ON lABOR lAW
POST EMPLOYMENT
2
(a) Union officers who knowingly participate in an illegal strike
4. Failure to attain work quota.
requirement in the company rules that '3. to obey traffic rules and regulations
2. JUST CAUSES IN ACCORDANCE WITH PREVAILING
as well as the company policies. 4. to ensure the safety of the riding public
JURISPRUDENCE.
as well as the other vehicles and motorist (sic)' is so fundamental and so
In addition to the just causes mentioned in the Labor Code, just causes
universal that any bus driver is expected to satisfy the requirement whether or
are also found in prevailing jurisprudence.3 The following may be cited as just
not he has been so informed.
causes in accordance with prevailing jurisprudence:
4. DISCUSSION OF THE JUST CAUSES UNDER ARTICLE 297 [282]
l. Violation of company rules and regulations. 4
OF THE LABOR CODE.
2. Theft of property owned by a co-employee5 as distinguished from
The grounds mentioned in Article 297 [282] shall be discussed herein
company-owned property which is considered serious misconduct.
seriatim.
3. Incompetence, inefficiency or ineptitude.'
1 Rejes-Rayel v. ~ile Luen Thai ftili1gs Gap., G.R No. 17-1893, Jutt 11, :MJ12;
IWia v. New fvle ~k:s, klc.,
See asoNo. 33, NCMl Plineron sm. Pk:keli'g crld Lockoot. 2nd Edi!OI,Dec.1995.
GR No. 192190, ~ 25, 2012; Sk~ ~led Padflc. Inc. v. t.b;luad, G.R No. 166363,
Aug.15, 2000; Cu!resrna v.
klgulo v. Frst Phqlpi1e Scales, he., G.R No. 165407, June 5, 2009, 588 SCRA
471; ftJaba1g Colllty Wl, k1c. v. NLRC, Em:juez. AM No. MTJ-9H08, Sept 20,
1995, 248 SCRA 454; &lola v. Honrado, A.M. No. 202&CFlllec. 19, 1981, 196
G.R No.170287, Feb.14,2008, 545 SCAA351, 361; Del Mxlle ~he. v. Saldivar, G.R
No.158620, Oct 11, Phi.514.
2006, 504 SCRA 192; liag Textie Mils v. Bmoo, G.R. No. L-27029, Nov. 12, 1981,
109 SCRA 87. 2 AJq v. Felicia1o, G.R No.
185829, ,6flnl25, 2012; Lin v. NlRC, G.R. No. 118434, Julf 26, 1996, 259 SCRA 485;
Buiser
3 k1g1J1J v. FIISI ~ile Scales,lnc., supm.
v. ~.Jr., GR. No. L-63316, July 13, 1984, 131 SCRA 151; l..eonaldo v. NLRC, G.R No.
125303 June 16, 2000, 333
4 ~uita AulD TrMSpOrt Capora1ioo v. NlRC, GR. No. 197384, Jm. 30, 2013; Subl v.
t-lRC, G.R. Nos. 146762, SCRA 589; Phi~ AlneOCcrl En'tlrOOeries
v. EirdJIOOefy em Gament Walte!S, GR No. L·:Ml143, Joo. 27, 1969, 26
153584 cnl163793, Jal. 30, 2007, 513 SCRA 325; Nol1ds Tradi'g Co., Inc. v.
N.RC, G.R No. 168159, Aug. 19, 2005, 467 SCRA 634, 639.
SCRA 461, 47G471; Phbm EnlJioyees lh1i:xl v. Ph~Wlne ConvnJnicDs Cl1d Phloom
Caporatioo, GR No. 144315, 3
Y~iv.PhfippileAi1iles,lnc.,G.RNo.168081,0ct 17,2008.
Jtit 17,2006.
4 Reyes-Raye1 v. Philippile Luen Thai l1oldings Gap., G.R No. 174893, Juti 11,
2012; ~ MCilia,lnc. v. The CA. G.R
5 Jclln HMcod< Lie &1slmce Gap. v. £lavS, G.R. No 169549, Sepl3, 2008; MF.
YIOicrJoOier Tank Trucks v. NLRC, G.R. No. 154410, Oct 20, 2005.
Nos. 5695().51, Sepl30, 1982, 117 SCRA 544, 202 Phil. 872 and A. M1quez, he. v.
Leogardo, G.R No. L-63227, Mcrch s G.R No. 197384, J<n 30, 2013.
15,1984,213 Phi.217;0Ciliav. NI..RC, GR Nos. 97162.Q4,June 1,1995,244SCRA669,
674.
POST EMPLOYMENT
I.
• Misconduct must relate to employee's duties and must show his
1
SERIOUS MISCONDUCT 1
unfitness to continue working for the employer.
3
the following requisites must concur:
misconduct.
1. It must be serious;
• Committing libel against an immediate superior constitutes serious
2. It must relate to the performance of the employee's duties;
misconduct. 4
3. It must show that he has become unfit to continue working for the
• Possession or use of shabu or other drugs is a valid ground to
employer;2 and
terminate employment. 5
4. It must have been performed with wrongful intent. 3
• Drug abuse inside the company's premises and dwing working hours
scientific findings that drug abuse can damage the mental faculties of the
Ramonchito A. Alcon and Joann S. Papa, added the 4ih requisite above which,
it said, is "equally important and required."
user. 6
termmate empIoyment. u
G.R. No. 148205, Feb. 28, 2005; Sansoo v. NLRC, GR No. 121035, Apli 12, 2000, SCRA
460, 471; Edge Appcnl,
Plil250, 261; Austiav. NLRC, G.R No. 124382, Aug. 16, 1999,371 Phi340, 360.
Inc. v. NlRC, G.R. No. 121314, feb. 12, 1998, 286 SCRA 302.
3 This 4h reqtisle was added nmasen flt1qlpkle M:nJfad1Ji1g Co!pooibl v.
Ram1chlto A. Al::on and Jocm s. Papa, 2 Piedad v. L.no del
Nom Elelit ~. he., GR No. 73735, Aug. 31, 1987, 153 SCRA 500; See also Quialrilao
v.
GR No.194884, Oct 22, 2014; See aso&hevenia v. Venul!!k 1/edka, klc., G.R No.
169231, Feb. 15,2007,544 Phi.
MriaEJecn::~.G.RNo.171023,Dec.18,2009.
763,770.
3 Citilri, NA. v. NLRC, G.R. No. 159302, Feb. 6, 2008.
~ TOITeda v. Toohlla i1foonaOOn fquipment [Phis.j, hc., G.R. No. 165960, Feb. 8,
2007.
7 Nacague v. Su~ Liles, Inc., G.R No. 172589, AlltJ. 8, 2010; hlb110We£ngile Rebti!
els, klc. (AER) v. ~lxlng
Fu;tsu ~ Producls C<xporaOOn cllhe l'hifWines v. CA, GR No. 158232, March 31,
2005,454 SCRA 737, 767·
Unyon ng rnga t.mgg~asa AER, GR Nos. 160138 &160192, July 13, 2011.
768; VilcrncrGcfCkJb v. Pehid, G.R No.166152, Oct 4, 2005,472 SCRA 36, 48; St
Mchael's lnstiiJJ!ev. SMios, G.R
9 P1an1a1ion Bay Resatand Spa v. Oubrico, G.R No. 182216, Dec. 4, 2009.
Ra00Coommicaliooso11he PhifWiles, Inc. v. NLRC,G.R. No.113178. Julf5, 1996.
,......._ __ _
CHAPTER IV "'1:>
294 BAR REVIEWER ON lABOR lAW
PoST EMPLOYMENT
6
aggressor and not the victim who was constrained to defend himself
serious misconduct.
should be dismissed.
6
• The act of a teacher in pressuring a colleague to change the failing
7
• Filing of criminal case by an employee does not indicate his
grade of a student is serious misconduct.
. 7
8
mnocence.
• Sexual harassment is a just ground to dismiss.
9
8
• Sleeping while on duty is a ground for tennination.
• Challenging superiors to a fight is a just cause for termination.
10
9
• Dismissal b too harsh a penalty for eating while at work.
• Assaulting another employee is a just cause for termination.
• Utterance of obscene, insulting or offensive words constiiutes
serious • Pilferage or theft of
company-owned property is a just cause to
10
11
misconduct.
tenninate.
• Disrespectfui conduct is not serious misconduct if provoked by
• Theft of funds or property not owned by employer is not a ground to
. or emp Ioyer. u
12
supenor
tenninate.
13
• Gambling within compa!ly premises is a serious misconduct.
12
• Act of falsification is a valid ground to terminate employment.
• Instigating husband to maul her supervisor, a serious misconduct 13
• Punching-in of time cards of other employees is a just cause for
14
• Rendering service to business rival is a just cause to tenninate
termination.
15
14
• Circulating fake meal tickets is a just cause for tennination.
employment.
• Selling products of a competitor is a just cause for tennination.
16
14 San Mguel Corporation v. NLRC, G.R No. 82467, June 29, 1989.
12 IAnalanlii v. Seae!lry of t.m, G.R. No. 83854, May 24, 1989.
POST EMPLOYMENT
n.
• Employer has prerogative to formulate and implement company rules
INSUBORDINATION
and regulations or policies. 1
OR WILLFUL DISOBEDIENCE OF LAWFUL ORDERS1
• Company rules and regulations or policies are presumed valid until
amended or nullified. Until and unless the rules or orders are declared to
1. REQUISITES.
be illegal or improper by competent authority, the employees ignore or
9
which the order is based which must be:
answer memo to exp lam.
10
2) sufficiently known to the employee; and
written.
3) in connection with the duties for which the employee has been
engaged • Refusal to undergo random drug
testing constitutes both serious misconduct
to discharge.3
and insubordination. 11
An order which is not based on a rule, regulation or policy which does
not • Making false allegations in a
complaint filed with the NLRC does not
12
satisfy the foregoing 3 requisites is not lawful and thus may not be invoked as
basis constitute insubordination.
13
for terminating an employee on the ground of insubordination. Needlessly, absent
• Prolonged practice, not an excuse for commission of wrongful acts.
any of the foregoing elements would make the refusal ofthe employee to comply
wilh the rule, regulation or policy justified and not constitutive of ''willful
disobedience" as would warrant the imposition of the penalty of dismissal for such
1 Alilem C'.oopefaWe. klc. v. BMdilla, .k'., GR No. 173489, Feb. 25, 2013; ~ v.
NI.RC, G.R No. 121004, Jan. 28,
refusal.
1998,285 &:R/\251; SalaVilliav. Lem Ccilge. G.R No. 110396, Sept 25, 1998,296 SCAA
184, 190.
2 Benguet Elecii: ~ v. Flanla. G.R No. 158600, Mrd1 9, 2004; Aled Banl<tg
Capomfioo v. CA. G.R No.
144412, tb. 18, 2003; GTE lliectlOOs Co!pcratioo v. Sanchez, G.R No. 76219. Mlrf27,
1991, 197 SCRA452, 467-468.
4 CocaCcla BotlleiS PhfWiles, klc. v.wa, G.R No. 154384, Sept 13,2004.
1 Relevant provision: Article 297(a) !282(a)), Labor <:ode.
5 San t.'f:luel CorpQaOOn v. NLRC, G.R No. 50321, MJth 13, 1984; San Mguel
Copcxalion v. NI.RC, G.R Nos. 146121·22,
2 The Calee llealllld Tea Lea~ klc. v. Rolf P. Arenas, GR No. 208908, Marth 11,
2015; Maelsk~ ~16,2008.
Oe\WYJ, klc. v. Aveslruz, GR No. , 207010, Feb. 18, 2015; lbYpl v. Rapkl MlYels
ax! F~ Co., h:., G.R No. t.blt~) CorporaOOnv. Safu, G.R
No.197598, Nov. 21,2012.
163431, Aug. 28, 2013; M!ll1l lf'h~i1es] Co!poo6:x1 v. Saki, G.R No. ffi7598,
Nov. 21, 2012; -Reakla v. New kJe ·Petoo Corp. v. NLRC, G.R No.
154532, Oct. 27,2006.
Graphics, klc., G.R No. 192190, Apri 25,2012; Nisscrl tiOOr Pills., Inc. v.
Angelo,G.R No.1641S1, Sepl14, 2011,657 B Ace Pronmoo and Milketing Co!p.
v. Ursi:bia, G.R No. 171703, Sept 22, 2006.
SCRA520, 530; GraodtEq Industrial S1eel ProOOcls, b1c. v.fskela, G.R
No.192416,Mard123, 2011,W\ SCRA391, 400; 9 ld.
EquilablePCISankv. Ooolpoc, GR Nos.163293 &163297, Dec. B. 2010;
1o ePoci1ic Gl:lbal Contact CeniEf, Inc. v. CabMsay, G.R. No. 167345, Nov. 23,
2007.
3 MCI1ila B~ ~ v. NLRC, G.R No. 121975, Aug. 20, 1998; See also ArePnmmn and
t.'al<eling Corp. v. 11 ~and Its Meni>els v. Kingsport
ExpressaxiWJlsOC, G.R No. 194813}¢125, 2012.
lima, G.R No. 111703, Sept 22, ~; Genuilo Ice ~. klc. v. ~. G.R No. 147790,
June 27, 2006; 12 Petoo Corp. v. NLRC and ChilD C.
McKltos, G.R No. 154532, Oct. 27, 2006.
Stol-Nielsen Marine SeM:es [Phils.], h:. v. NLRC, G.R No. 109156, .lutf 11,
1900, 258 SCRA 643, 648. 13 Santos v. San M~guel
Corporation, G.R. No. 149416, March 14,2003.
L.
POST EMPLOYMENT
company practice.
GROSS AND HABITUAL NEGLECT OF DUTIES4
• No negligence if the act is in accordance with management-sanctioned
termmate empIoyment.9
character; and
(2) It must be work-related as would make him unfit to work for his
• Tardiness or absenteeism, if habitual, may be cited as a ground to terminate
employer.
employment. 10
2. SOME PRINCIPLES ON GROSS AND HABITUAL NEGLECT OF
• Tardiness or absenteeism, if habitual, may be tantamount to serious
DUTIES.
misconduct. 11
14
ground to dismiss. 7
• Unsatisfactory or poor performance, inefficiency and incompetence are
• Habituality may be disregarded if negligence is gross or the damage or loss
considered just causes for dismissal only if they amount to gross and
is substantiaL 8"Habitual negligence" implies repeated failure to perform
habitual neglect of duties.
15
9
one's duties for a period oftime, depending upon the circumstances.
1 School dlhe Holy Spirit of Quezon Cityv. Taguiam, G.R. No. 165565, July 14,
2008; Reyes v. Maxim's Tea House,
RB. Mchael Press.v. Gall, G.R No. 153510, Feb. 13, 2008.
G.R No. 140853, Feb. 27, 2003.
San Miguel Corp. v. PontiDas, G.R No. 155178, May 7, 2008; Westin Philippine
Plaza Hotel v. NLRC, G.R No. 2 Sll.uke'sMd:al Cem, klc. v.
Nlml.~
121621, May 3, 1999.
3 Sec. 4343.01[21, IJepatl1ent d l.m'Minlal.
! GoldO;y~PatServioos, Inc. v.NLRC,G.RNo.861XXl,Sept.21, 1990.
Dycoco, .t.v. E!Jlliille PCI Balk (naw BalCo de Oro), G.R No. 188271, hlg. 16,
2010.
4 Relevant provision: Article 297(b)i282(b)J, Labor Code.
5 ld.
St. Luke's Medic3 CenU, ~ v. NIBil, G.R. No. 152166, Oct. 20, 2010; TaidMo v.
Falcon .Mcriine &Allied Servioos, 6 Raros v. BPI Farily ScNi'gs Bri,
~. G.R No. 203186, IRe. 04,2013.
n:., G.R No. 172031, Jut)' 14, 2008.
1 l.b;a-Tatv. Sliiis lntemationaiiW,G.R No. 77457, Feb. 5,1990, 260 Pli 166.
01avez v. NLRC, G.R. No. 146530, Jat 17, 2005; Lmn Mlb'Corpolation v. NLRC, G.R
No. 159738, IRe. 9, 2004; Sec. 8 Oriental t.imo 8ed!ic CooperaWe,
R:. v. NLRC, GR. No. 111905, Mj 31, 1995; Alias Conscidated Mnilg and
4343.01(21, Depabrentdi..OOor Mrual.
l:leYeqlrnertCorporationv. NLRC, G.R No. 75751, Oct. 17, 1990, 190 SCRA 505.
1 k1lemational SchOO tlooia v. kltemational School Alialce d EducaiD!s (~. G.R.
No. 167286, F~. 5, 2014; Cavi!e 9 Gerum Ice Coo'paly, klc. v. ~.
G.R No.147790, Jllle 27,2006.
~.Inc. v. Mrquez, GR No. 172044, Feb. 6, 2013; ~ v. Phiex lvi1ilg Caporation,
G.R No. 178976, J~ 31,
10 Vcisao v. Hon. CA. GR No. 146621, ~ 30, 2004, 435 SCRA 543; Pl1qlpile
Geo1hem1al, tic. v. NLRC, G.R No. 106370,
2009; Nissan Mior Phis., klc. v. MJe!o, G.R No.164181, Sept 14, 201U57 SCRA
520, 530; GemD!Ice~. Sept. 8, 1994; ScjJnas v.
NLRC, G.R No. 49286, March 15, 1990; Malia Eledric CorlllanY v. NLRC, G.R No.
114129,
Inc. v. M:lgpantay, G.R. No. 147790, June 27, 2006, 493 SCRA 195, 205; Uni;Jn
Mlfor Colporalion v. NLRC, G.R. No. Oct. 24, 1996.
159738, IRe. 9, 2004; Phiippine Aeok.Js Alitofroli,oe Uli!Ed Colporation v.
Nt.RC, G.R No. 124617, Apri128, 2000; Judy 11 ~v. Manila Eledric Colr!mf,
G.R No. 171023, IRe. 18, 2009.
Pfli!Wites. Inc. v. NLRC, G.R No. 111934, Apri129, 1998, 289 SCRA 755; 352
Pill. 593; Sec. 00.01[2].1leplrtnent of 12 PLDT v. Teves, G.R No.
143511, Nov. 15, 2010; Na.ran'o v. c:ooH:ola Bo!lers Phils., klc., G.R No. 162583,
June 8, 2007.
8
I..OOorMilual.
Fuentes v. NLRC, G.R No. 75955, Oct. 28, 1988; Associaledllalkv. NLRC, G.R No.
86023,June29, 1989. I 13 Ered!lr AMrtisi1g Sgn G!wp, klc.
v. N.RC, G.R No. 167218, Ju1i 2, 2010.
I 15 Mrcmav.Careon,G.RNo.143540,Apli11,2003,401 SCRI\303,309.
~.
CHAPTER IV 301
POST EMPLOYMENT
IV.
• No hearing is required to validly dismiss an employee for abandonment. 2
1
ABANDONMENT OF WORK
• Notices in abandonment cases must be sent to employee's last known
l.CONCEPT.
address per record of the company. The employer need not look for the
10
12
7
• Abandonment is a factual issue.
• When what is prayed for in the complaint is separation pay and not
• Employer has the burden of proof to prove abandonment. 8
reinstatement, the filing of complaint does not negate abandonment. 13
• There is no abandonment when it was the employer who prevented the
• It is abandonment when what is prayed for in the complaint is separation
9
workers from reporting for work.
pay and it was only in the position paper that reinstatement was prayed
14
• Due process in abandonment cases consists only of the service of 2 notices
for.
to the employee, viz.:
• Employment in another firm coinciding with the filing of complaint does
1
a. First notice directing the employee to explain why he should not be
not indicate abandonment.
declared as having abandoned his job; and
b. Second notice to inform him of the employer's decision to dismiss him
1 ~ MnJ!acWri1g C<xporabl v. NLRC, GR Nos. 110452-54, Nov. 24, 1994; Cebu
Ra(cll P'alt [San ~
on the ground of abandonment. 1
~Jv. Hon. Deputy t.tlisB'ctl.alor, G.R No. 58639,hJJ.12. 1987, 153 SCRA381987.
Pmi;1 Cyilder MQ., Cap. v. Rokl, GR No. 173631, Sept. 8, 2010; ~i:an Safety Glass,
Inc. v. Basft, G.R No. 154689,
1 Releval!Plwisioo: Artkie 297{b) i282(b)L Lalor Code.
2 Forever~ &General SeM::es v. Fbres, GR No. 147961, Sepl7, 2007; Panilgfm lndus!
Jial Sales CapcxaOOn v.
Cosmos-
Nov. 25, 2004; See also Cap. v. ~r.rna. Jr, GR No. 164403, Man:h 4,
2008. .
Reno Foods, Inc. v. NI.RC, G.R No.116462. Oct 18, 1995,249 SCRA379, 387.
Caslllleda, GR Nos. 169~~. Nw. 20,2006.
3 CRC Agriculhllal Trading v. NlRC, G.R. No. 177664, Dec. 23, 2009; RBC Galle
Master System v. Baluyot G.R 7 Arv,jeles v. Femaldez. G.R No. 160213,
Jan. 30, 2007.
No. 172670, Jan. 20, 2009, 576 SCRA 668.
13 Jov. NLRC, G.R No. 121605, Fell. 2, 2000; Bombasev. NLRC, G.R No. 110889, June
30, 1995,245 SCRA496, 500.
9 Pasig ~ lvtJ., Gap. v. Rollo, G.R No. 173631, Sept 8, 2010.
L.
·CHAPTER IV 303
POST EMPLOYMENT
employer. 2
• Absence to evade arrest is not a valid justification. To do so would be to
3. SOME PRINCIPLES ON FRAUD.
place an imprimatur on the employee's attempt to derail tht: normal course
of the administration ofjustice. 8
• Falsification constitutes not only serious misconduct bt.Tf fraud under the
• Employer's insistence on commission of wrongful acts Eke estafa and/or
Labor Code.3
4
qualified theft by the employees negates the charge of abandonment.
• Failure to deposit collection constitutes fraud.
Rather, it strengthens the fmding of petitioner's discrimination,
insensibility , Lack of damage or losses is not
necessary in fraud cases. The fact that the
and antagonism towards the employees which gave no choice to the latter
employer did not suffer losses from the dishonesty of the dismissed
except to forego their employment. 9
employee because of its timely discovery does not excuse the latter from
any culpability. 5
v.
• Lack of misappropriation or shortage is immaterial in case of unauthorized
6
FRAUD 10
encashment of personal checks by teller and cashier.
7
1. CORRELATION OF FRAUD AND LOSS OF TRUST AND
• Restitution does not have absolutory effect.
CONFIDENCE.
VI.
Frarid is provided under paragraph (c) of Article 297 [282] of the Labor
WILLFUL BREACH OF TRUST AND CONFIDENCE8
Code, thus: "(c) Fraud or willful breach by the employee of the trust reposed in
him
by his employer or duly authorized representative."
1. REQUISITES.
For the doctrine of loss of trust and confidence to apply, the following
1 1t1a. ~ Iv. NlRC, GR No. 120556, Jan. 26, 1998; NS Transport SeM:es, klc. v.
Zeta, G.R No. 158499, Apri 4,
2007.
2 HimtTradilg Co., Inc. v. CA, G.R No.148241, Sept 27,2002.
~Aitoo~v.Rosales,GRNo.169260,1.1ad123,2011.
3 Melro Trans~Organizalion,lnc. v. NLRC, G.R No. 119724, May 31, 1999.
De Ia Cruz. s. v. NLRC, GR. No. 145417, Dec. 11, 2003; Eg,juena v. Vale Venle
CoiJ1Iry WI, GR No. 173012, .hJ1e 13,
4 Ranov. Befooo,GR No.L-55629,Jult39, 1981.100SCRA221.
2012.
s EastAsiaticv. CIR, GR No. L-29008,fwg. 31,1971,40 SCRA521.
3 Pm&tf, tl1der Article 297(a) ll1d (c) rm(a) ll1d (c)L respedNely, d l1e I.aJor
Code; Sill Mguel Capaabt v. NLRC,
6 Casfilk>v. CIR,G.R No. L-26124 and L-32725, ~ 29,1971,39 SCRA 75.
GR No. 82467, June 29, 1989; Mroel C. Feix v. Eneriidl9Jslems lrdlstres, Inc., G.R
No. 142007. t.m:ll28, 21Xl1.
7 Sandoval Shipyardv. Clave, G.R. No. L-49875, Nov. 21,1979,94 SCRA472.
~ Akleguer &Co., klcJL.oaldeBoutiquev. Tooiloc, GR No.147633,Jutj28, 2008.
L . _,.....,...
s Ce00a1 Pcllgasim Eledri: ~. klc. v. MaccmJ, G.R No. 145800. Joo. 22, 2003.
7 Goozales v. NLRC ar:1 PEpsfCo1a Protllds, Plis., re., GR. No. 131653, Milth 26,
2001.
,M\282(<)), """""'
POST EMPLOYMENT
2. GUIDELINES.
A classic example of a case where the invocation of the doctrine of loss of
trust and confidence was not genuine but a mere afterthought is Manila Jockey
As a safeguard against employers who indiscriminately use "loss of trust
Club, Inc. v. Aimee 0. Trajano. 4 The Court had unavoidably noted here that the
and confidence" to justify arbitrary dismissal of employees, the Court, in addition
to invocation of loss of trust and
confidence as a ground for dismissing respondent
the above elements, came up with the following guidelines for the application of
the Trajano was made belatedly. In its
position paper dated September 2, 1998,
doctrine: 5
petitioner MJCI invoked the grounds under paragraphs (a) and (b) of Article 297
(1) The loss of confidence must not be simulated;
[282] of the Labor Code to support its dismissal ofTrajano, submitting then that
the
(2) It should not be used as a subterfuge for causes which are illegai,
unauthorized cancellation of the ticket.constituted a serious violation of company
improper or unjustified;
policy amounting to dishonesty. The first time that MJCI invoked breach of trust
(3) It may not be arbitrarily asserted in the face of oven.vhelming
evidence was in its motion for
reconsideration of the decision of the NLRC. MJCI also
to the contrary; and
thereafter urged the ground of breach of trust in its petition for certiorari in
the CA.
(4) It must be genuine, not a mere afterthough~ to justify earlier
action Such a belated invocation of loss
of confidence broadly hints the ground as a mere
taken in bad faith. 6
afterthought to buttress an othenvise baseless dismissal of Trajano.
with confidence on delicate matters," such as the custody, handling, or care and
2008, 574 SCRA, 198,200.
protection of the employer's money, assets or propertyh.oss of confidence, as a
just
3 8a;JOO Cen1ia1 UnWelsiy v. Galenm, SUjlfll, citing Baron v. NLRC,G.R No. 182299,
Feb. 22,2010,613 seRA 351, 360; cause for dismis~ is never intended to
provide employers with a blank check for
See also TOII\lS v. RlJal Sri of SM Juan, Inc., G.R. No. 184520, M3n:h 13, 2013;
Phfippile Plaza Hokfngs, nc. v.
Episoope, G.R. No.192826, Feb. 27, 2013; Prudential Guarillk!e i:l1d Assulooce ~
LaborUnloo v. Nl.RC, G.R No. terminating their employees. Such a
vague, all-encompassing pretext as loss of
185335, Jme 13, 2012, 672 SCRA 375, 386; Jerusalem v. Keppel Mxlte Balk, G.R. No.
169564,.4¢1 6, 2011, 647 SCRA confidence, if unqualifiedly given the
seal of approval by the Court, could readily
313, 323-324; ~ v. PrtxB &GimJie Plil., nc., G.R No. 160506, 1.4ay 9, 2010;
Ak3llara v. The Phi~ reduce to barren form the words
of the constitutional guarantee of security of tenure.
Coomeldal i:l1d k1duslrial Bat, G.R No. 151349, Oct. 20, 2010; Renilkl (lnitia)
Ph~ R:. v. Snhez, G.R No.
176219, Dec. 23, 2008, 575 SCRA 324, 333; BrisiDI ~ SquiJb tphls.), nc. v. Bm1,
G.R No. 167449, Dec. 17, 2008, Having this in mind, loss of
confidence should ideally apply only to cases involving
574 SCRA 198, 205-206; &l\lldOI..Iles, nc. v. Gttte, G.R No. 149930, Feb. 22,
2002; Goozales v. NLRC i:l1d Pepsi-{:da
Produds, Phis" klc., GR No. 131653, Mirth 26, 2001.
4 ~ n1JSI be made that ooly 1he list 2 oot d 11e 4 requisftes were cited i1
Wesle'fcil UnNersily-Phippiles v. NaNela 178621, ~ :16, 2010; Bllim
Filii"$ i:l1d Mls v. Lab, GR No. 157861, Feb. 2, 2010; Md1ela v. Desily F~Slda
Reyes, G.R No. 208321,-lltj 30, 2014, based mlle nll1g i1 MM' Zaldefl'hifwi1es,
R:. v. En!ijuez;GR No. 169173, PIMs, G.R No. 179702, Feb. 16,
2010; MtW Zalder ~. klc. v. Efviluez, G.R No. 169173, Jllle 5, 2009, 588
JL11e 5, 2009, 588 SCRA 590; See also P.J. Uluilier, k1c. v. F'adeliz Vrkl{o, GR
No. 198620, Nov. 12, 2014, cililg SCRA590;FiriJOV.I.wdesSd!
odof~,GRNo.152531,.Jutt27,2007.
Nokanv.NI.RC,G.RNo.140043.
Jerusalem v. Keppel Mlofe Sri, G.R No. 169564, Ap!i 6, 2011, 647 SCRA313, 323-
324. See bller Mri1ez v. Central .k.tf 18, 2000, 390 Phi. 1228,
1244; Mabeza v. NLRC, G.R. No. 118506, Aplil18, 1997, 271 SCRA 670, 683.
Pqasilifl Eledric ~. he. (CENPB.CO), G.R No. 192306, Jutj 15, ~13, v.11K:h
siriarttded rltj lle fvst 2 , Tares v. R1ra1 Ba* d SM .kiM,
he., G.R. ttl. 184520, Mirth 13, 2013; Wcil Yuen Restam v. Ja)'ona. GR.
reqLisites ci10J as basis llered, Plippile Plaza~. R:. v. Episcope, G.R No.
192826, Fell. 27, 2013 v.1lich also No. 159448, Dec.16, 2005.
di!d Jerusalem v. Keppel Mlnte Bat, supra
2 The Coca-Qlla Expat Cop. v. Gacaycr1, G.R No. 149433, Dec.15, 2010.
s Vi111r1ueYa,Jr. v. NI.RC, G.R No.176893,June13, 2012.
3 Calcade Hotel v. CA, G.R No. 144089, Aug. 9, 2001.
s Wesiey.¥1 ~ v. Nowela Reyes, G.R No. 208321, Jutj 30, 2014; Mi11ia Jockey W!,
Inc. v. Ainee 0. 4 G.R No. 160982, Jllle 26, 2013.
. .
T~, G.R No. 160982, June 26, 2013; ~ v. Keppel Sri. Philippines, lnc.;GR. No.
176800, Sept. 5, 2011,656 s llklerllm
BkJe.JoiliVriresC<xr(lcrlyv. Gjza Esl!ibal, G.R. No.192582, Aplil07, 2014; Lynvi
FIShil;J En\elpriseS, he.
SCRA 718, 729; BwJuio Centrall.lnPJersil¥ v. Gallen\e, supm; lhe Coca-Cola
Elqlort Cap. v. Gacaycwi, G.R No. 149433, v. A001a, G.R No. 181974, Feb.
1, 2012; callex (Phil~). Inc. v. Agad, G.R No. 162017, Ap!i 23, 2010, 619 SCRA 196,
Dec. 15, 2010; Equitable PCI Balk v. ~. G.R Nos. 163293 & 163297, Dec. 8, 2010;
ROOia v. NlRC, G.R. No. 214; Tliln1Jh ~lematialal (Phils.),
k1c. v. Apostol i:l1d ClpuBlcia, G.R No. 164423, June 16, 2009, 589 SCRA 185.
POST EMPLOYMENT
independent judgment.
The relationship of employer and employee, especially where the latter
has
access to the former's money or property, necessarily involves trust and
confidence.1 The third class is comprised
of fiduciary rank-and-file employees, such
Where the rules laid down by the employer to protect its property are violated by
the as cashiers, auditors, property custodians, or
those who, in the normal and routine
very employee who is entrusted and expected to follow and implement the rules, the
exercise of their functions, regularly handle significant amounts of the employer's
employee may be validly dismissed from service?
money or property.1 These employees, though rank-and-file, are routinely charged
with the custody, handling or care and protection of the employer's money or
As firmly entrenched in jurisprudence, loss of trust and confidence as a
just
4
5
concerned holds a position where greater trust is placed by management and from
whom greater fidelity to duty is correspondingly expected.4 The betrayal of this
trust • Supervisory positions are also
reposed with trust and confidence.
is the essence of the offense for which an employee is penalized.5
Per jurisprudence, only the first and third classifications are generally cited
4. THREE (3) CLASSES OF POSITlONS OF TRUST.
as positions of trust and confidence. There is, however, a need to include and add
the
1 Prudrial Gucmee 1111 Assua1oe En1Jbyee taxr lMl il1d Valota v. NI.RC, G.R No.
185335, June 13, 2012, diYj
SeealsoMcblzav.NlRC,G.R~.11~.Apii18,1997,271 SCRA670.
1 SeeMk:te219(m)!212(m)]dllellbJCOOe.
2 f'liWileEducabiCo.,kiv.lkillu~EWcatioo~G.RNo.L-13778.Ap!I29,1960,107Phl1003.
2 Eli: AMrez v. Golden Tri Bklc, tic., G.R No. 202158, Sept 25, 2013; CenUy koo
WOO<$, Inc. v. Bafias, GR No.184116,
3 TliJI1lh ~{Phis.), k1c. v.~ llld ()plin:ia. •
·.M1e 19, 2013; ~v. Keppel Sri~. klc., G.R No. 176800, Sept. 5, 2011,656 SCRA
718,727.
4 S5lden Aitai ~ v. A:1sa1es, G.R No. 169260, Mrdl 23, 2011; Lina Lllld, nc. v.
Cuevas, G.R No. 169523, Mil1i1ez v. CaDI Pqa5im Ele<:tt Coope!iM,
Inc. (CEtflELCO), G.R ~- 192300, July 15, 2013; WesleyM
.b1e 16, 2010; Qivt v. NLRC, G.R No. 154308, Mclttl10, 2005; EmJiez v. Balk d the
Phi!Jpile lsllllls, G.R ~- ~i1es v. lblella Reyes. • : 8istll Mters
SqljJb [Phls1. k1c. v. Bal. supra: See also ANsfez v.
172812, Feb. 12, 2008; ~Liles, k1c. v. Gukle, G.R ~- 1~. Hib. 22. 2002; Sin:hez
v. NLRC, G.R No. 12.00, Golden Tri Bklc, klc., ~ ~Plaza~. klc. v.
Episcope. S~.V<~: Abel v. Phlex ~ Capoo!OOn, supra;
hlg. 19, 1999.
MtWZlllderflhWles, k1c. v. £m:p!z. ~ Mlbeza v. NLRC, supra
s L)11Yi F!Shi";J Eneprises, klc. v. AOOia, GR. No. 181974, Feb. 1, 2012; Lopez v.
AlhJas Grol4l u ~. G.R ~. 4 Wo(clv.FISlSOOd PJ.Jilberklduslries, klc.,
G.R No.184011, Sept 18, 2013;Abelv. PhiexMnklQ COipaatiln,suprn, citing
191008, Apr811, 2011,647 SCRA568. 573-574; ~ v. SM ~ Cofpol3ioo, G.R No. 149416,
Mird114, 2003; Pirdayv. NI.RC, G.RNo.67664,
Mit{20,1992,209SCRA 122,125.
Cema Pin;lasi1ill fJedJk: CoopelaiNe, k1c. v. Maaraeg, G.R ~- 145800, .lal. 22,
2003, 395 SCRA 720, 727. s pJ.troitlier, n:. v. Fkxdeiz Velayo, GR.
No.198620, Nov. 12, 2014; M+WZMderPhiWiles,lnc. v. Erri:!uez. supra.
s Abelv. PIExt.'ilrgQxpaalbl,G.R No.178976,July31,2009; Malezav.N.RC,
G.R~.118506,Ap!l18,1997,271 & GIOOeMD.ayCimle llld
Radi:>Colporalion v. NLRC, G.R No. 82511, Mcltti3,1992;Asicwlftd Nl!SlD:I House,
Inc. v.
SCRA670,&2.
Ople, G.R No. L-56398, .key 23, 1987, 152 SCRA 219; Cilytrust Fncme Corp. v. NLRC,
G.R No.75740, Jill. 15, 1988,
1 We!iJefatt llrWelsey~ v. NowelaReyes, G.R No. 208321, Jltf 30, 2014, cftirg M+W
Zlllder Philipphes,lnc. v. 157SCRA87.
~G.RNo.169173,JIJ!le5,2009,588SCRA590.
. 7 AMHez v. Golden Tri Bloc, Inc., GR No. 202158,
Sepl25, 2013; Esguena v. Vale Velde Cwll!y CkJb. GR No. 173012,
a tvmz v. Golden Tri Bklc, re, GR. No. 202158, Sepl25, 2013: flhiWie Plaza Hokmgs,
Inc. v. Episcope, GR. No. June 13, 2012; Yab!Jt v. Mooia EJem:
CorrcJany, G.R No. 100436, Joo. 16, 2012, 663 SCRA 92; The eoca.cda Expcxt
192826, Feb. 'll, 2013; &istd Mjels l4ilb [Phils.], klc. v. BabM, G.R No. 167449,
Dec. 17, 2008: MtW Zooder Clxpoo!tion v. Gacayoo, G.R No. 149433, June
22,2011: Too v. NLRC, G.R No. 128290, Nov. 24, 1998, 299 SCRA 169,
Plllipjiles,lnc. v. Enriluez. SIJil3: Mlbezav. NLRC, G.R No. 118506, Apnl18,
1997,271 SCRA670. 183.
~
I.
LHAPTER IV o)U;?
.:JUU lJI'U\. I'.CYit:nt:r\.VI'I U1.DVI\.
U\.YY
POST EMPLOYMENT
It is, therefore, clear from the above disquisition tha~ insofar as the doctrine of
trust positions of trust and
confidence. The security guard1 does not belong in
and confidence is concerned, its application is limited to the three (3) classes 1
of such category."
employees occupying positions of trust and confidence, namely: (1) managerial; 2
(2) It must be emphasized that
it is not the job title but the actual work that the
supervisocy;3 and (3) fiduciary rank-and-file.4 Consistently, this doctrine has
not employee perfonns which is material
in determining the issue of whether it is
·been rrpplied in tennination of ordinary rank-and-file employees. 5
reposed with trust and confidence.2 For instance, while an employee's position was
Marina Port Senices, Inc. v. NLRC/ expounds:
denominated as Sales Clerk, the nature of her work included inventory and
reasonah\e doubt is not necessary4 to justify the loss as long as the employer has
considered as enjoying the trust and confidence of his employer,
whose
property he is safeguarding. Like !he janitor, he has access w his
reasonable ground to believe that the employee is responsible for 1he
property. He too, is charged with its care and protection.
misconduct and his participation therein renders him unworthy of the trust and
5
1 Butn ~l..lllterCo., n:. v. NLRC, G.R No. L-54424,Aug. 31, 1989Cild caielev.
N!RC, G.R No.130425, Sept 30,
'(2) They rusbnaltj Clld fli!IUiclt{ cfred lhe Y«Xk d WHJI'IIQ9 ~ llereil;
[Mdj 1999, 1was lalllat
asecurit1~hoijs aposlion rJ trust Md CXX'1Iilerm n bls. he may be legaly dismissed
til' loss
"(3) They heM! lle aihaiy tll*e cr ill fAhEr en1J1aiees dbte' rri; cr lhei'
suggeslix1s Clld recoomenda!Kxls as tl of trust en! crilence.
lle hirilg Clld firh;J Clld as b lhe prarotkln or 8/'f/tller c:llqect stailsd
dhEr erT'flk7tees ae gNer1 pcrtkUa'weght." 2 ~ v. Phiex Mlq Corporalioo,
supra, c:IDJ ~ Mjers Squilb tpllk). n:. v. Bcban, supra.
3 Ulderthe me crticle, a~~ Is ooe 'Wlo, illle i1Erest d the~. el!ecWely
reconmends such 3 Bklefllm file
JoiltVeniJ.Jres Corr4mfv. Glyza Estebal, G.R No.192S82. Apll 07, :Ml14.
fWalez v. G1*1en lri Bloc, Inc., G.R No. 202158, Sept. 25, :M113;.Jerustilm v.
Keppel t.tlrm Bank. G.R No. 169564, ,6¢1
n
111mJe1ia1 actions f the exercise d such aJt1100¥ Is IQ •lllJ&lay cr cleli:al
naiiR& but reqlires lhe use ct 4
6, 2011,647 SCRA 313, 324; Abel v. Fhlex Mlilg CorporaOOn, supra, c:iliY,I Gaida v.
NLRC, <lR. No. 113n4, Apri115,
DJeperdentjJ!g!T1elt.
4 The me ri:te !lstilglishes Clld deli1es "riilk.;nt.lle ~ as ~: "AI ei11JkJyees
not faRO;! wilhin 11ese t.vo 1998, 289 SCRA 36, 46.
L.amsan Tradil:J, Inc. v. LeogM!o, GR. No. 73245, Sept 30, 1986; Mefro1)rug
C<xporatioo v. Nl.RC, G.R No. 72248, July
No. 148410, Ja1.17, 2005, 448 SCRA 516,529.
7
6 G.R. No. 80962 Jill. 28, 1991, 193 SCRA 420, 426.
22, 1986; Gonzaes v. NLRC and PepsiCola Prod\Jds, !'hils., Inc., G.R No. 131653,
March 26, 200t
POST EMPLOYMENT
having family relations under Article ISO of the Family Code, to wit:
• Dropping of crjminal charges or acquittal in a criminal case arising from
the
same act does not affect the validity of dismissal based on loss of trust
and ( l) Between husband and wife;
u
.
confidence.
(2) Between parents and children;
• In termination for loss of tr.JSt and confidence, the fact that the
employer did not (3) Among other ascendants and
descendants; and
suffer losses is of no moment1
(4) Among brothers and sisters, whether of the full or half-blood.6
3. ILLUSTRATIVE CASE.
I Ak:rila v. The f'liWi1e Conrneniallrld nlusbial an, GR. ~- 151349, Ocl31,
3110; PlOT v. Billa, G.R No.
143688.~.17,2007.
The case of Jeffrey 0. Torreda v. Toshiba Information Equipment
2 DeJesus v. tbt RaH. Aqlilo, GR. Nos. 164662 &165787, Feb.18, 3113; ~Plaza
IWPJS, tic. v. ~.
G.R. No. 192826, Feb. 'll, 2013; Jerusalemv. Keppelt.td!Bri, G.R
~.169564,Ap16, 201U47 SCRA313, 323. IPhils.], Inc.! best illustrates this
ground of commission of a crime against the
Reres-Rayefv. ~LuenlhaHoldilgsQxp"G.R ~.174893,Julf11,3112;Sinv.NLRC,G.R
No.157376, Oct.
3
2, 'JS:JJ7, 534 SCAA 515, 524; Coole v. MRC, G.R No. 115491, Nov. 24, 1998.
c Arg v. ~ Nati1m Bri, G.R ~- 178762, .kJle 16, 3110.
1 AI¥;! v. Ptllwine National Bri, G.R. No.178762, June 16, 2010.
6 Feflxv. NLRC, G.R.No.148256, Nov.17, 2004.
2 PJ.l.huilier, k1c. v. Fkxdeliz V9iJ.{a, G.R No. 198620, NoY. 12, 2014.
& Retes-Rayelv. ~ l.uen Th!i Hol:lilgsCo!p., G.R~.174893,Julf 11,2012.
3 SriJs v. Sal MiJuel Coijl., G. R No. 149416, Milch 14, 2003,447 Phil. 264.
7 Wensha Spa Center, oc v. YlllQ, G.R No.185122,hlg. 16,2010.
4 BagubCenbaiUnr.oecsityv. GaDente. G.R No.188267, Dec.02, 2013.
a Mlaje-Tuaznn v. Wenp1JJ C<xp., G.R. No.162447, ~ 'll, 2006.
s Relevant provision: Article 297(d) [282(11)],labor CQde.
9 PlDTv. &rla,G.R~.143688.~.17,2007.
6 See !lepal1menl Oldef No. 18 issued by the DOLE Sooetary oo May 18, 1994, p~ating
the Riles ll1d Regulations
10 Easyca'l Cormuik;atioos Phils., klc. v. Kilg, G.R. No.145001, Dec.15, 2005.
~ RA No. 7658 entitled 'lvl hl PrOOM1g the~ of Chik1ren Bebw Fi!Een (15) Yeas of
hJe i1
n Et:Ldlal, Jr. v. ~ ~. klc., G.R. No. 148410, Jat 17,2005.
Publi:; and f'livclle Undertakilgs, ~ Section 12, Mide VIII d RA No. 7610,
olhelwise knat.fl as the Special
12 Mllro Trm OlgillizlD:ln, Inc. v. CA. G.R. No. 142133, ~- 19, 2002.
Protection of Olildren Against Olild Abuse, Expkitation and Disainination Act.
J111e 17, 1992."
LHA.I'ItK.IV .:>•.:>
312 BAR REviEWER ON lABOR lAW
POST EMPLOYMENT
In addition to and distinct from the just causes mentioned in Article 297
dismissal was for just cause, the Supreme Court ruled that the NLRC did not err
[282], the Labor Code likewise provides for other just causes to terminate
much less conunit grave abuse of its discretion when it based its ruling on Article
of whether the strike is legal or illegal), is also a just cause to terminate his
abundant evidence on record showing that petitioner committed libel against his
employment.5
immediate superior, Sepulveda, an act constituting serious misconduct which
warrants his dismissal from employment. Petitioner maliciously and publicly
3. The act of strikers in violating orders, prohibitions and/or injunctions as
imputed on Sepulveda the crime of robbery of P200.00. As gleaned from his
are issued by the DOLE Secretary or the NLRC, is a just cause for which they may
Complaint daterl September 7, 1999 which he filed with the General Administration,
be imposed immediate disciplinary action, including dismissal or loss of
he knew that it was Deios Santos who opened his drawer and not Sepulveda. Thus,
employmeni strtus.6
by his own admission, petitioner was well aware that the robbery charge against
4. The act of any union officer or member of violating the union security
Sepuiveda was a concoction, a mere fabrication with the sole purpose of
retaliating
clause stipulated in the CBA is a just cause that may be cited as basis in
termination
against Sepulveda's previous acts.
of employment.7 The contracting union can demand from the employer the dismissal
VIII.
of an employee who commits a breach of union security arrangement, such as failure
OTHER ANALOGOUS CAUSES2
to join the union or to maintain his membership in good standing therein. The
contracting union can also demand the dismissal of a member who commits an act
l. ANAWGOUS CAUSES UNDER ESTABLISHED JURISPRUDENCE.
8
of disloyalty to the union, such as when the member organizes a rival union.
The following may be cited as analogous causes:
1) Violation of company rules and regulations.3
2) Theft of property owned by a co-emplo;ee, as distinguished from
1 !kg v. FadcrlO, G.R. t«l. 185829, ,6¢1 25, 2012; PhfWile hnericM Errtroidelies
v. EnD00ery a1d Garment
theft of property owned by the employer.
WoOO!Is, G.R No. L-20143, .lat. 27, 1969, 26 SCRA 634, 639; &iserv.l.eogaRlo, Jr.,
G.R No. L-63316, Ju~ 13, 1984,
CA. G.R No. 1544ro, Oct 20, 2005. HoweYer, nllis case ct ~ peti1ioners have I¥t
shaM! suiiDen1ly dea' !lid
also Navm mv. Damasoo, G.R No. 101875, Ju~ 14, 1995, 246 seRA 260, 265.
4 Jdm HMcock life i"wance Gap. v. t:Javic;, G.R. No. 169549, Sepl3, 2008; See
ai;o M.E V10lago OierTank Trucks v. 4 Mkle 2~a) (264{a)], l.alct-Code.
NI..RC, G.R Nos. 56950-51, Sepl30, 1982, 117 SCP.A 544,202 Phil. Sn ll1d A.
Marquez, Inc. v.i..ooJCido, G.R. No. L- 5 Miele 279(a) (264{a)], ld.
63227, M!rd\15, 1984,213 Phi. 217; Oaliav. NlRC, G.R Nos. 97162-M,JIIle
1,1995,244 SCRA669, 674. 6 Mkle 27~) [263(9)], ld.; No. 33,
NC!v'B Priner on S1rike, PidleliY:J !l1d l.ockoot. 2nd Edition, Dec. 1995.
5
lnEmatklnal Sci'IOO Mirlia v. 1ntematkx1a Schooi.Arlance ct Educatxs (ISAE),
G.R. No. 167286, Feb. 5, 2014; Reyes- 7 Pursuant to Article 259(e)
(248(e)]of1he Labor Code.
Rayel v. Plil)pile Luen Thai Holdilgs CUp., G.R No. 174893, Ju~ 11, 2012; Reak!
a v. New~ Graphk:s, loc., G.R. No. 8 LiagTextile Mils v. Blanco, G.R. No. L-
27029, Nov.12, 1981, 109SGRA87.
192190, Apli 25, 2012; 5qJpels Uniild PacifK;, Inc. v. Maguoo, G.R. No. 166363,
Aug. 15, 2006.
POST EMPLOYMENT
Dismissal based on this ground has been reiterated in the case of Alabang
"computerization", "reorganization", "re-engineering",
"streamlining",
Country Oub, Inc. v. NLRC/ where the Supreme Court declared that, in addition
"downsizing', "rightsizing", "reconstructing" or "redesigning'' of operations, or
to the grounds mentioned in Articles 297 [282], 298 [283], 299 [284] and 300 [285]
similar modem descriptions, are often used to label what traditionally and legally
are
of the Labor Code, another cause for termination is dismissal from employment du~
known as installation of labor-saving device, redundancy or retrenchment
to the enforcement of the union security clause in the CBA. Here, Article IT of the
From the standpoint of the law, however, the validity of these modem
CBA on union security contains the provision on union shop and maintenance of
thrusts and schemes should be measured on the basis of their compliance with the
membership shop. Termination of employment by virtue of a union security clause
requisites for authorized cause terminations. As pointed out above, the authorized
embodied in a CBA is recognized and accepted in our jurisdiction. This practice
causes mentioned in Article 298 [283] are exclusive in nature and thus no other
strengthens the union and prevents disunity in the bargaining unit within the
duration grounds may be invoked in lieu or in substitution thereof.
of the CBA. By preventing member disaffiliation with the threat of expulsion from
the union and the consequent termination of employment, the authorized bargaining
For example, if termination of employment is effected by reason of
representative gains more numbers and strengthens its position as against other
"modernization," "automation," "computerization," the requisites applicable to
unions which may want to claim majority representation.
installation oflabor-saving device should be fully complied with.
dateofterminatio~ ·
2. USE OF MODERN NOMENCLATURES, IMMATERIAL
least one-half (l-'2) month pay for every year of service, whichever is
CHAPTER IV ,jLf
POST EMrlOYMENT
(c) If closure is due to serious business losses or financial
reverses, NO 2. SOME RELEVANT PRINCIPLES.
separation pay is required to be paid.
(d) In case the CBA or company policy provides for a higher
separation • The installation of
these devices is a management prerogative and the courts
pay, the same must be followed instead of the one provided in
will not interfere with its exercise in the absence of abuse of discretion,
Article 298 [283].
arbitrariness, or malice on the part of management. 1
5. Fair and reasonable criteria in ascertaining what positions are to
be • Redundancy results from
installation of labor-saving device. The
affected by the tennination, such as, but not limited to: nature
of work; installation of labor-
saving device will result in making the positions being
status of employment (whether casual, temporal)' or regular);
held by employees who will be adversely affected thereby redundant and
experience; efficiency; seniority; dependability; adaptability;
fleXIbility; unnecessary. 2
trainability; job performance; discipline; and attitude towards
work. 1 • Modernization program
through introduction of high-speed machines is
Failure to follow fair and reasonable criteria in selecting who to
valid. 3
terminate would render the termination invalid.2
• Proof oflosses is not required.
4. REQUISITES UNIQUE TO EACH OF THE GROUNDS.
n.
Each of the five grounds has its own unique requisite/s that distinguishes
it
REDUNDANCY
from the others. For instance, the requisite of extreme business losses or
financial 1. ADDITIONAL FACTORS
UNIQUE TO TillS GROUND.
reverses is distinctively applicable to retrenchment in order for tennination based
on
this ground to be valid and legal. Termination due to redundancy does not require
In addition to the five (5) common requisites earlier mentioned, any of the
existence of losses or financial reverses to validate it. While losses or reverses
may following factors must be
present when redundancy may be cited as a valid ground
to termmate employment: 4
be considered as a major factor in cases of closure or cessation of business
operations, but their relevance is only in relation to the determination of whether
the
employer is liable for sepa_ration pay or not Consequently, if the closure or
cessation
of business operations is due to serious business losses Oi financial reverses, the
c) There is oo !tier optioo Cflailable tllhe ef1llkJyEr but !he iltroductioo of the
rr.adlilely, eqlipment or deVice and lhe
employer is not liable to pay any separation pay; otherwise, he is so liable.3
ronsequent tami1afb1 ci ~ ci 1flose atreded ttlereby,
d) The ooe (1) 110181 JXb' ll1ilEn noli:e requianent under Mk:le 298 !2831 shoukibe
~ v.;t~;
I.
e) There shOOd be~ and rar smdclds or aiBia i1 ~ v.tlo ro M1ale sudl as nalure of
m, s1a1us of
coosijered as one (1) v.t101e year. In case !he CBA or C00'4JMY policy prcNides b'
ahghef sepa-a!ion paf, !he 5m1e
In addition to the five (5) common requisites above, the unique requisite
JruS!be ~ ilsml ct !he ooe provi1ed i1 Mk:le 298 [283].
·
for this ground is that the purpose for such installation of labor saving device/s
must , MagrdaOaiyl'Rm:lsCo!poollkxl
v. NlRC, G.R. ~- 114952, JM. 29, 1996, 252 SCRA 483.
2 Solim, Jr. v. NlRC all PLOT, G.R No. 1~94. 1fJti 23, 2.007.
be valid,4 such as to save on cost, enhance efficiency and other justifiable
3 Abapo v. CA. G.R No. 142405. Sept. 30, 2004. ms case ~ i1lrcductioo ci hgf1.speed
machiles mbe I.ISOO i1 the
economic reasons.5
nmJaduie of beer by Sal t.t:luel Coiprxation ills t.mdaJe plirrt.
c) W!l1en nob! is S1liV9.1 oo bolh !he al!in!d en1Jbiee$ all U1e Depainent d t.m
In!~ at least ooe (1)
1 CUiv. Easan Te~eamr~Jri:ailn Phqlpiles, ~ G.R No. 165381, Feb. 9, 2.011; l.qlez
&lga'Colpaation v. Franco, monthprb'tllle i1enda1 dat!
ct mni1atilt;
2
3
G.R No. 148195, May 16, 2005; Asufm, s. v. Sall.tJuel Colp., G.R No. 156658,
Mildl10, 2004, 425 SCRA 270, 275;
~ Tube!tWsis Scxilly, ~ v. NI.RC, GR No. 115414,hlg. 25, 1998.
LarOert Pav.nbdess In! Jeot.l*yCo!p. v. Bi1ania, GR No.170464, Jltj 12, 2010.
SeeNOJtil.laJaoMnilg\.orpooiOOnv.NLRC, GR No.112546, Mirth 13, 1996,254SCRA
721.
least ooe (1) monlh pay b" wery year d ser.te, Mlichever is llgher, a lractioo ct
at least six (6) InJn1hs shal be
considered as roe {1) v.t10ie year. In (300 the CBA or COOllillY palicy prcNides
for ahgher sepaa6oo pay, the 5m1e
I
4 Phi!Wile Sheet Metal Wlness UIOOn v. CIR, G.R No. L-2028, ~ 28, 1949,83 Phi.
453. e) Far and reasonable
aileria i1 ascer1ainilg v.toat posilioos are 1o be dedared redunda1t and accooling~
abo&shed. (See
5 Mxe pa1iculatj, In aderklvaldt{i"Mlkettm grruld, the~ requisiles 1111St0llalr.
Lopez Sug<r Coqiomion v. FICII1CO, G.R No. 148195, May 16, 2005; See also SPI
TedlnOOgies, Inc. v. Vctxia K.
a) Thei1trtxifdion ollhemachilely, ~or oh!rde>kes JOOSt be done i1 good fcilh;
Mapua, G.R No. 191154, Apli07, 2014; Genemf Mllilg Qrpolalion v. V1<1ar, {l.R No.
181738, Jcr~. 30, 2.013; catex
b) The pupooe for StJdl i1b'cldu!ioo roost be val'xl, StJdl as to save oo coot.
enha1ce efficiel1cy and Other j.lstifiable [Phils.tlnc. v. NLRC, G.R
No.159641, Od. 15, 2007; Asian Ab:lhol Gorporali:Jnv. NLRC, G.R No.131108, Mmt 25,
L.
ecooorrk reasoos;
1999).
POST EMPLOYMENT
7
(4) Where it is validly resorted to as a cost-cutting measure and to
valid.
streamline operations so as to make them more viable. 4
• Hiring of casuals or contractual employees after redundancy is valid. 8
Time and again, it has been ruled that an employer has no legal
obligation • Advertisement on hiring
for new position similar to the alleged
to keep more employees than are necessary for the operation of its business. 5
Thus, redundant position is evidence
that the position is not redundant. 9
the employer has the prerogative to implement reorganization and redWldancy as
• Where two or more persons are performing the same work which may
well as to adopt such measures as will promote greater efficiency, reduce overhead
be effectively accomplished by only one, the employer may terminate
costs a.1d enhance prospects of economk gains, albeit always within the framework
10
11
redundancy program as a grmmd for the termination of the employee a.re present, the
taken into account by the employer.
termination should be declared illegal.7
~ The LIFO or FILO (First In, Last Out) rule has no basis i!1law. 12
13
Wilshire File Co., roc. v. NLRC, G.R No. 82249, Feb. 7, 1991, 193 SCAA 665; See
also Becton Dicki1soo Phils., Inc. v.
s Smcrt CalmJnicalions, Inc. v. Amga, GR. No. 148132, .la1. 28, 2008; caHex
tphils.), Inc. v. Nl.RC, G.R ~- 159641, NLRC, G.RNos.159969& 160116, tb/.15,
2005,475SCRA 123.
Od. 15, 2007.
t1 Maya Foons ErrclkJyees Otga1izaOOn v. NLRC, G.R No. 100256, Dec. 28, 1994.
9 Coca-Cola Bot11e1S Phfll!li1es,lnc. v. Del Villa', G.R. No. 163091, Ott 6, 2010.
12
10 Sebuguerov. NLRC, G.R No.115394, Sept 27, 1995; Esccrealv. NLRC, G.R No. 99359,
Sept 2, 1992, 213 SCRA 472.
CHAPTER IV 321
POST EMPLOYMENT
prejudice to the latter, resorted by management during periods of business
recession, industrial depression, or seasonal fluctuations; or during lulls
8. Fire which resulted in considerable decrease in business;
occasioned by lack of work or orders, shortage of materials; or considerable
9. Streamlining the company into a lean and trim centralized organization
reduction in the volume of the employer's business, conversion of the plant for a
by shedding-off marginal business activities!
new production program or the introduction of new methods or more efficient
4. STANDARDS TO DETERMINE VALIDITY OF LOSSES AS
machinery, or of automation." 1
JUSTIFICATION FOR RETRENCHMENT.
2. ADDITIONAL REQUISITE UNIQUE TO TIDS GROUND.
The general standards in terms of which the act of an employer in
Proof of losses or possible imminent losses is the distinctive
retrenching or reducing the number of its employees must be appraised are as
requisite of retrenchment This is the only statutory ground in Article 298
follows:
[283] which requires this kind of proof. The other grounds of closure or
1) The losses expected should be substantial and not merely de
cessation of business operations may be resorted to with or without losses. 2
minimis or insubstantial and inconsequential in extent.
3. VALID JUSTIFICATIONS FOR RETRENCHMENT.
2) The substantial loss apprehended must be reasonably imminent, as
ordinary connotation, this phrase means that retrenchment must be undertaken by the
employer before the losses anticipated are actually sustained or realized. The
Supreme Court, in a plethora of cases, has thus interpreted it to mean that the
1
F. F. Miri1e Capaatioo v. The Hon. SeaXld IMm, NLRC, G.R No. 152039, ~ 8, 2005;
See alsO Anale v. ~
CoosWttkn, G.R No. 183233, Dec. 23, 2009; Maval v. ·flhl4ipile T~ ood Telephale
Cap., G.R No. 172363, employer need not keep all his
employees until after his losses shall have
t.mtl7, 2008;T<Iljmv.flhlWile Poslal Sa'lir¥Js8at, k¥:., G.R No.155278, &¢
16,2003. materialized3 This is never
the Intention of the lawmaker. If such an intent were
Predskvl Ele!:tooi::s ~ v. NLRC, G.R No. 86657, Oct 23, 1989.
2
3
Sedion 248 d fle mr.m Coded ll!e Ph~ pnMles: 'Sec. 248. Kat art tinebetre, «
*·
11e suspensi:n cr
revocation cllle ~ d allxriy d 111 ilstla1ce aJI1IMY as pttMied illlepletedilg
ti1le. lie Qmnissi:ner rms
expressly written into the law, that law may well be vulnerable to constitutional
1
'The arJSefVab' may be anolher i1surance arJ1la'lY doing busi1ess ilthe PhfWi!
es, by otrm or dfl:ers d such Revklad v. N.RC, G.R No.
111105, June 27, 1995; PrOOsb1 Elecllooi::s Copocl6JI v. NLRC, G.R No. 86657, Oct
23,
COIJ1lC!IlY, cr artt olhe' ~ ood qu3lfied person, 1im or capomtion. The
rei1Jlllelalion of lhe tooSeiVaklr ood olhe' 1989.
expeoses attendM!tllle~ shal bebanebylle ilsurcltce~axmned.
2
Andrada v. NLRC, G.R. No. 173231, Dec. 28, 2007; Orienlal Petroleum and Minerals
Corp. v. Fuentes, G.R. No.
'The oonseMtor shal not be subject to 8lT'J adioo, clain.cr denmd by, or labii!
y to, artt pe!SOil il respect d ll1')ti'I;J dale 151818, Oct. 14, 2005;
Clarion Plinling House, Inc. v. NLRC, G.R No. 148372, June 27,2005.
or omlled to be dooe i1 good failh il fle exen:i'le, or i1 !Xll1f1edixl with
the exertise, d the paNelS 001feRed on the 3 /1siM Alcohd ColpcratiJn
v. NLRC, G.R No. 131W8, 1Jatil25, 1999,305 SCRA416; TP1 PhqJpi1es CEment cap. v.
conseiVator.
Ccf,Jc:om VII, GR. No.149138, Feb. 28, 200i; Lr4JezSuga'Cap. v. Federa!OO
dFmeWaters, G.R t«ls. 75700-01, Aug.
CHAPTER IV v•v
322 BAR REvlf\VER ON LABOR LAW
POST EMPlOYMENT
• The fact that there has been economic or other crisis besetting a particular
At the other end of the spectnnn, it seems equally clear that not every
2
greater or lesser degree, in the carrying on ofbusiness operations, since some,
indeed • Article 298 [283] applies only to
permanent retrenchment or lay-off.
3
many, of the factors which impact upon the profitability or viability of such
• Cost-reduction or cost-saving measures prior to retrenchment are required.
operations may be substantially outside the control of the employer. 1 Hence, there
is • The phrase "retrenchment to prevent
losses" means that retrenchment
a need for concrete and substantial proof of imminently expected substantial losses
must be undertaken by the employer before the losses anticipated are
that the employer would incur in the event that the retrenchment of the employees
is actually sustained or realized. The
employer need not keep all his
not effected.2
employees until after his losses shall have materialized. Otherwise, the law
4
petitioner Talam tried to negate the dire financial picture besetting respondent
TSFI • Employer bears the burden of proof to
show business losses or financial
claiming that the very financial statement cited by TSFI showed a uet income of
5
reverses.
P298,725.00, referring to the period ending on September 30, 2002. Such a claim,
7
20 employees), the losses it suffered were not merely de minimis in extent but
were, finar.cial statements audited by
COA.
8
at the time Talam was dismissed, actual and with more losses reasonably imminent.
e Period covered by fmancial statements, material.
9
Significantly, the employer objectively and in good faith perceived the imminence
of • Income tax retums, not valid since they
are self-serving documents.
10
more losses as it was based on the report of its external auditor.
• Mere affidavit on alieged losses is not sufficient.
su ffic1ent.
• If said standards are present, wisdom to retrench cannot be questioned. 4
12
13
of operations resorted to by a construction company in order not to
retrenchment program.
jeopardiu the completion of its projects is valid. Thus, several departments
like the Civil Works Division, Electro-mechanical Works Division and the
1 CerGa1 Azu:aela de Ia Ccr1:Xa v. N.RC, G.R. No. 100092. Dec. 29, 1995, 251
SCRA 589.
Territorial Project Management Offices, among others, were abolished in
2 Sebuguerov.NLRC,G.R.No.115394,Sepl27,1995.
the early part of 1996 and thereafter, the Structural Steel Division by the
· 3 L1rrbert PcrM1brokers ll1d Jeweky Colp. v. Bimia, G.R. No. 170464, .htf 12,
2010.
4 AsiM Akohol Corporation v. NLRC, G.R No. 131108, March 25, 1999, 305 SCRA 416;
lPI PhiWineS Cement
end of year 1997.'
Cclp. v. cajucom VII, G.R. No. 149138, Feb. 28, 2006.
9 C8siiJio v. Stem Rea Estate, klc., Rentlaldt Hotel, G.R No. 162233, Mim110,
2006; Favia v. tlRC, G.R No. 126768,
2 Bana1a Growe1s ColecWe at !Wid Fams v. NLRC, GR. No. 113958, July 31, 1997, 276
SCRA 544. June 16, 1999, '!fiT Phi. 584,595.
3 G.R No.175040,,6¢16,2010,617 SCRA408.
10 MJmMP~IndustJieS,Inc.v.NLRC,G.R.No.118973,Aug.12,1998.
11 ~Enterprises,lnc.v.~,G.R.No.159919,hlg.8,2007.
4 N:CGutlrie Plrillilns, Inc. v. NLRC,G.R No.110740, hlg. 9, 2001.
s Sentilei!M!glaled Servk:es, klc. v. Reloo, G.R No. 188223, July 5, 2010.
12 Claron Pli1li'g House, Inc. v. Nl.RC, G.R. No. 148372. June 27, 2005.
6
Shinizu Phis. Coollaclols, Inc. v. Qlmla, G.R No. 165923, Sept 29, 2010.
POST EMPLOYMENT
further argued that the immateriaiity of the distinction between these two just
causes
ill-A.
for dismissal is shown by the fact that redundancy and retrenchment are found and
lumped together in just one single provision of the Labor Code (Article 298 [283]
REDUNDANCY VS. RETRENCHMENT
thereof).
1. NEED FOR CLEAR-CUT DISTINCTIONS.
The Supreme Court disagreed with this contention. It said that it cannot
Before leaving the topics of redundancy and retrenchment, a clear-cut
accept Jardine's shallow understanding of the concepts of redundancy and
distinction should be made between these terms since a reading ofsome decisions of
retrenchment in determining the validity of the severance of an
employer..:.employee
the High Court indicates that confusion continues to hound employers in
relationship. The fact that they are found together in just one provision does not
determining the proper term to be used to describe their personnel reduction
necessarily give rise to the conclusion that the difference between them is
schemes. The improper use of the term will have far serious adverse effects in
terms immaterial. It has already been ruled
before that retrenchment and redundancy
oflegal consequences as well as the amount of separation pay involved.
are two different concepts; they are not synonymous; thus, they should not be
used interchangeably.5
1 ld.
1 G.R No. 166703, Apri 14, 2008.
2 Taggatlndusbies, Inc. v. NLRC, G.R. No.120971, Marth 10,1999.
2 GRNo. 108259,Nc71.29, 1996,332Phl.937.
3 Mllalad v. Phi"qlpile T~ emTelephooeCorp., GR No. 112363, Mm17, 2008.
4 Lopez Sugar Corporation v. Fedil131ion of Free WMes, G.R. Nos. 75701).41, Aug.
30, 1990.
3 Mllalesv. Metqlo&tal Balk em Trust CcJr!lanY, G.R No. 182475, Nc71. 21, 2012.
GRNo.181719,~21,2014.
s Koleal p.; Co., l.k!. v. Yusoo, G.R No.170369, June 16, 2010.
5 Arm:la v. NlRC, G.R No. 173231, Dec. 28, 'J!JJ7, cii1g lle cased Sebuguero v.
t-I.RC, GR No. 115394, Sept.27,
6 kllemaOOnalliardwae, Inc. v. NLRC, G.R No. 80770, Aug. 10, 1989; See also Unicorn
Safety Glass, Inc. v. Basarte, G.R
1995, 248 SCRA 532, 542, 1\flere it was dcrilied: "Redtlldancy exists l\1lere lhe
seM:es d 111 ~ ae il excess rJ.
No. 154689, Nov. 25, 2004.
v.ta is lllaSilMij denmded by lhe actual requilmenls rille eneprise. Aposili:x1 is
re(m!c1111\1lere it is super(uoos,
Henmdezv. Phiippi1e l3loomi!Y;) MIS Co., Nl.RCNCRCaseNo. 3-1223-83,Ju~26. 1985.
em ~ rJ. a posftioo or positioos may be lle outrome of a IUI'ber rJ. facbs, such as
CNer lllilg of WCJIIIers,
l.arbel! Pav.flbrok8s em Jeweky Corp. v. Binarrila, G.R No. 110464, J\.tf 12.
2010. deaeasOO V!ime rJ. busiless, oc ~ d a
pri::uB' pllDJct i1e a seM:e octMiy prMxJsiJ mMUfa<ilred oc
9
Centat Azuccma de Ia car1ota v. N'..RC, G.R No. 100092, Dec. 29, 1995, 251 SCRA
589, 321 Phil. 989, 997. llldelt<ten by 1he enbllprise. Remhnenl.
on lle other hilld, is used ~ Mh lhe Elm 'la'f-d!." k is lhe
1o Manaladv. Ph~ TelegrapiHIIdTelephooe<np., G.R No. 172363, Mard17,2008.
\lnni\atixl of llfl'4lbfment ilitialed by lhe ~ lhrooJJh no faJI d lhe ~·sen!
v.;vru pre;!dice ID lhe laller,
CHAPTER IV 327
POST EMPLOYMENT
"Redundano/' exists when. the services of an employee are in excess of
It is only in the first that payment of separation pay is required. No
what is required by an enterprise. "Retrenchment," on the other hand, is resorted
to such requirement
is imposed in the second. 1
primarily to avoid or minimize business losses. Thus, a "Redundancy Program,"
4
position has already become in excess of what the employer's enterprise requires. 2
independent contractor as replacements is valid.
of the Philippine Veterans Bank by operation of law (R.A. No. 7169 [An
Act 3518, Providing the Mechanisms Therefor and for other Purposes]
CLOSURE OR CESSATION OF BUSINESS OPERATIONS
or closure of the employer's business because a large portion of its estate
!.CONCEPT.
was acquired by the Department of Agrarian Reform pursuant to the
11
3 E1!ge Appa8, Inc. v. N.RC, G.R No. 121314, Feb. 12, 1998, 286 SCRA 302; Phi.
Engileelilg Qxp. v. CIR, G.R No. L·
~ ~ because d bsses illle operation d abusi1ess, leD d IWik, and~ reOOdi:ll oo
f1e
vOOrlle dhis liusiless, afl:lht IXXlSislenllf recog1ized and aftinred 17{ llis
Curt' 278SO, Sept.
30, 1971,41 srnA89.
1
4 Asoocic6ln of ln!egraEd SectJily Force dllisfiJ {AISFBj-ALU v. Hon. CA. illd
PICOP, G.R No.140150, AIIJ. 22, 2005.
Mm:Gulfilld PadficCoo"4lanY of Mril, kE. [AG &P). v. NLRC,.G:R. No. 127516, Mly
28, 1999;AG &PUnited Rank 5 Ole!
WerDecoPriliTectrtsColpoJaiXxlv. NLRC, G.R. No.122876, Feb.17, 2000.
&Fie Associatioo v. NLRC, G.R No. 108259, Nal. 29, 1996, 332 Phi. 937;Edge
~.Inc. v. NlRC, G.R No. 121314, 6 JAT. General
SeM:es v. NLRC, G.R No. 148340, Jal. 26, 2004; ll1dt.lstB Tniler Co!poraOOn v.
NLRC, G. R Nos.
Feb. 12, 1998; Witshie File Co., klc. v. NI.RC, G.R No. 82249, Feb. 7, 1991;
Precision EJeaooi::s capcxation v. NLRC,
G.R. No. 86657, Oct. 23, 1989.
107302-107300 &10855!1-10860, June 10, 1997, 339 Phil. 395,404.
7 St. John Colleges, Inc. v. St. Jdvl Acaderrri Faculty and Empcyees Unkxl, G.R No.
167892, Oct. 27, 2000.
2 Andradav. NLRC, Sllpla.
3 The sepaalion PiJf i1 case rl retrenctment is ~ivalenl kl one (1) rmnth pay or
at least oneMf Cl~ rroolh pay for wery s
ComistaOomilgov.NLRC,G.RNo.156761,0ct.17,2006.
11 Nath Da.oo Mining Gaporationv. NLRC, G.R No. 112546, Mcldl13, 1996, 254 SCRA
721.
G.RNo.164582,Midl28,<m7.
""-•>::.._,.__ ,,
CHAPTER IV 329
POST EMPlOYMENT
• Evidence of losses in a closure case should not be presented for the frrst
Thus, in the afore-cited cases, the rule was enunciated and reiterated that
1
while the two are often used interchangeably and are interrelated, they are
actually
time on appeal with the Court of Appeals or Supreme Court.
v.
DISEASE3
1 M!-S1un Co1poJa00n v. Me-Shum WOIXe!S Union- FSM, G.R tokl. 156292, Jcrl. 11,
2005. 1. TWO ASPECI'S OF THE REQUISITES.
2 Sapia1 v. JB 1.i1e Bi::c1 Express, ~.• GR No. 163n5, Oct 19, 2007.
3 Sall.tJue!Qxp. v. AbaBa, GR No. 149011, June 28, 2005.
Disease is one of the authorized causes to terminate employment In the
4 G.R No. 148340, Jan. 26, am. Hwas held it flis case ihal1he issues and oone1bls
nm centsed on dosure ci 2014 case of Deoferio v. Intel
Technology Philippines, Inc} the requisites that must
busi1ess opell1tkln lllfler l1an Jelrenchment. W1at gave rise b lle c.m.e
ls fie 4ecile illle sale ci heavy equipment be complied with before termination
of employment due to disease may be justified
becaJse ci lle Asicll rureocy aisis. Consequenltj, JAT lerr.,aatt suspended Is~
llinaE!y, oo Decenter 14,
1998, JAT led an EstaJiisl1menl TenTinalion Report Nt11he DOLE, OOif,tg 1he
lli!Erd its dedskxl tl cllse Is busi1ess were specifically divided into
two, namely:
~due tl busiless losses and tnanciallllYe!SeS.
s G.R No. 157511, Aug. 9, 2005, 503 FW. 937.1n lhis case, rea~ZDJ llatlwasno
bY:Jerptdilableb' ACCIID maillilil its (1) Substantive
requisites; and
l7i«1 F &8 Oepa!1ment, lle managemeiJl dedded Ill cease from opeJa6ng lle
depa1men! and Ill ~ tie sarre Ill a (2) Procedural
requisites.
axtlraetJr, La Tasca Re!.tlm Inc. (La Tasca) vtth would be y,frg Ill opa21s aM
filed ald bever.rJe busiless 'Mlllin
lle cilb. This JeSUIIed illle cklsure ci lhe F&8 Depcrbnent v.bose ~were
Emli1ated effective Januay 1, 1995.
The ll!allQelllE!!1 is 11at ll1ey l'«llAA be pai:l sepnon pay ~ tl ooe hltldred
twenty fNe (125%) percent d lheir
~ my b" IM!f'J year (t serlice. ACCI lEo i1lonned llem lh<t La Tasca agreed
Ill mxb m1 affecled employees
1 Sand1 Fullen Pht, R. v. Benm1o and Taghoy, GR No. 187214, All;!. 14, 2013;
E'asiOOge Gel Ck!b, Inc. v. Easttilge
im1edialely 'Mllllle starus of regula' ~ees v.itlout need ci llldeJgci'g a~
period, and V1at an a1!ected Golf Cldl, ~ .• l.abcJ IBn-
Super, GR No. 166760, ~. 22, 2008, 563 SCRA 93, 106.
~ vru:l receM! lhe same sa1a1y 111ey were receNi1g fnxn ACCI at lle tine of ter
temilalion. 2 t.mia Polo CUI ~· lkl01
(r..f'CEU) FtR-TUCP v. ManUa Polo CI.Jb, klc, G.R No. 172846, J1ii 24, 2013;
& G.R No. 172846,.Mj 24, 2013.lle ilAiabang, !his~ also ilvc*"eslle<hlure ciMania
Polo's F&8 Department due ~Gal C'dl, R. v. Elmlge Gol
CI.Jb, Inc., Lalor-Union,~. supra.
Ill extreme bsses. kresulled illlle lemlilation ol123 employees gJlllllled 00
retenchment<!Jld not dosure. Aa:xllding Ill 3 Relevant PrrNiskln: Pliil299
[2841, Labor Code.
lhe &qlreme Court, lhis case ilvot.les a dosure of business undertaki'iJ, not
relmncllment 4 G.R No. 202996, June 18,2014.
POST EMPlOYMENT
2. SUBSTANTIVE REQUISITES.
The employee should be given reasonable opportunizy to answer and to
2 be heard on his
defense. Although sufferance of disease is not to be equated with
Based on the Labor Code 1 and its Implementing Rules, the following three
commission of a wrongful act which is the primordial feature of a just cause
(3) requisites, according to Deoferio, may be drawn therefrom, to wit:
termination, the ailing employee needs to be given ''reasonable opportunity to
(1) An employee has been found to be suffering from any disease;
answer and to be heard on his defense" before he could be validly dismissed on the
(2) His continued employment is:
ground of disease. Consequently, once the substantive requisites for termination
due
(a) prohibited by law; or
to disease are complied with, the employer should comply with the other equally
(b) prejudicial to his health as well as to the health of his co-
important procedural requisites as prescn'bed in Deoferio.
employees; and
Per Deoferio, the 2"d required notice infonning the employee of his
(3) A competent public health authority issues a medical certificate
that
dismissal should be "issued !dk! the employee has been given reasonable
the disease is of such nature or at such a stage that it cannot be
cured
opportunity to ~ and to be heard on his defense." This requirement, in effect,
within a period of six (6) months even with proper medical
treatment 3
dictates that before an employee may be terminated due to disease, he must first be
3. PROCEDURAL REQUISITES.
given a show-cause notice that wouid afford him a ''reasonable opportunity to
answer'' the charge of his being terminable by reason of his suffering a disease
and,
a. Due process in termination due to disease is similar to due process
secondly, for him to be afforded a "hearing on his defense."
for just cause termination but different from authorized cause
termination u:tdt!r Article 298 [283).
Comparatively, the authorized grounds under Article 298 [283] such as
It is thus the rule that the twin-notice requirement for just cause
!).OW
3.1. THE FUJI RULE- THE EMPLOYEE SHOULD BE GNEN THE
termination does apply to authorized cause termination due to disease under Article
CHANCE TO PRESENT COUNTERVAILING MEDICAL
299 [284] of the Labor Code. However, it is different from authorized cause
CERTIFICATES.
termination under Article 298 [283]. This ruling reinforces the State policy of
Subsequent to Deoferio, another 2014 case, Fuji Television Network,
protecting the workers from being terminated without cause and without affording
Inc. v. Arlene S. Espiritu/ has further expounded on the due process requirement
them the opportunity to explain their side of the controversy.5
in termination due to disease, this time by categorically specifying the right of
the
a.",
~liiliiliiiilifiio.oc•'c••...__• ~
tuberculosis {PTB), and that under Article 299 (284], an employer may tenninate the
services of his employee found to be suffering from any disease and whose
I POST EMrLOYMENT
of his co-employees. This is so because the scope of this phrase is not limited to
contagious or communicable diseases for the reason that this phrase is preceded
continued employment is prohibited by law or is prejudicial to his health as well
as
to that of his co-employees, however, the fact that an employee is suffering from
such a disease does not ipso facto make him a sure candidate for dismissal.
4. SOME PRINCIPLES ON TERMINATION DUE TO DISEASE.
··· l
1
by the phrase "!!!Y disease" under Article 299 [284] of the Labor Code.
• Consistent with this construction, this provision has been applied in resolving
attack, osteoarthritis, and eye catarac~ among others. In Baby Bus, Inc. v.
Minister of Labor,2 the labor arbitration's finding was upheld that private
• The fact alone that an employee is suffering from a disease is not generally a
respondent bus driver's continued employment - after he suffered several
sufficient ground to terminate his employment. That a person has a disease
does strokes- would be prejudicial to his health.
In Duterte v. Kingswood Trading
not per se entitle the employer to terminate his or her services! Tennination
is Co., Inc.,3 the applicability of Article 299
[284] to heart attacks was recogniz£d.
2
the last resort. Even if the disease is. a contagious one, like pulmonary
In that case, it was held that private company's failure to present a certification
3
tuberculosis {PTB), mere sufferance thereof by an employee does not ipso
from a public health authority rendered petitioner's termination due to a heart
4
facto make him a sure candidate for dismissal. 4
attack illegal. This provision was also applied in Sy v. CA, to determine
• An example of a disease made subject of a specific law but termination
whether private responden~ Jaime Sahot, was illegally dismissed due to various
based thereon is declared unlawful is R.A. No. 8504, otherwise knoYm as the
ailmerls such as presleyopia, hypertensive retinopathy, osteoarthritis, and heart
5
"Philippine AIDS Prevention and Control Act of 1998. "5 Sufferance of
IDV/AIDS under this law will not justifY termination of employment of the
ruled that petitioner company's non-presentment of a certification from a public
ailing employee based on the following provision: "Sec. 35. Discrimination in
health authority with respect to respondent's eye cataract was fatal to its
the workplace. - Discrimination in any form from pre-employment to post-
defense.
employmen~ including hiring, promotion or assignmen~ based on the actua~
• Disabillty is not equivalent to disease as thes<;: terms are understood within
·perceived or suspected HIV status of an individual is prolubited. Termination
the context of the law. The former should not be confused with the latter. One
from work on the sole basis of aetna~ perceived or suspected mv status is
noteworthy distinction lies in the fact that disability itself, irrespective of
deemed unlawfuL'"
whether it is temporary or permanent, is not a ground for termination. R.A. No.
• Contagious or communicable diseases or infections, like sexually transmitted
7277,6 otherwise known as the "Magna Carta for Disabled Persons" [now
1
diseases or infections (STDs or STis), tuberculosis, hepatitis A, malaria,
among known as "Magna Carta for Persons with
Disability'1, prolubits the
others, are certainly the best examples of diseases which would render an
termination of a person with disability based on disability alone. This
employee's "continued employment prejudicial to his health as well as to the
constitutes an act of discrirnination8 which is treated as a criminal offense for
health ofhis co-employees." This ground may not, however, be solely confined
which the offender may be fined and/or imprisoned for its commission.
1
7
to these kinds of diseases. Deoferio enunciates that the phrase "prejudicial
to
his health as well as to the health of his co-employees" should be hberally
'M. 299{2M). Disease as !JOll1d uenmiln.- AA ~may Emi'laE the seM:esd ill enl*7fae
v.to has been
construed to mean "prejudicial to his health ru: to the health of his co-
1
fcund t1 be sulleliYJ fRxn IJhf dseaSe illd v.llooe CXX1Iilued ~is pJdlilitOO by
law« is (XIIjxtiJro lis heflh as
employees." It is clear, therefore, that the intent of the law is to allow
the v.All as ro the /"efJih of his~ PrtM!ed, That
he is pakl sepciU pay~ t> least me (1) mon1h a
termination of an employee if he suffers a disease and his continued
sa1cry ct t1 ~ ~ I11IXllh sa1ay b' INl!l.'f year d seM:e. YttlK:reler is·grem, a
fiacliiXl d a least six (6) monU1S
• GRNo.160325,0ct4,2.007,561 Phi.11.
kl.
4 G.R No. 142293, Feb. 27, 2003, 446ilhi. 404.
kl.
s G.R No. 167462, Oct 25, 2005. 510 Pli 81a.
3 kllle case d General Texties, klc. v. NLRC, G.R No. 102969, April 4, 1995, pummy
UJemJiosis (PTB) was 6 Entitled M h:t ~ fettle Rehdlation, Self-
Developmeol aiid Self.Reliance d DisOOIOO Pelsoos and Thei'
prOOOlllCed as a~ious disease.
lmegJatkxllltl Ule Mailstreiln d SocietyJfld for 0111er Purposes], olherMse knoY.Il
as Ule ·~na Cat! fctll;ab\ed
4 Tillv. NLRC,G.R No.116807,Aprl14, 1997.
li!'
POST EMPLOYMENT
2
employee's dismissal. The absence of this element thus renders the dismissal
authority, an employee's dismissal based on disease is not valid. Without
void and illegal.
the required certification, the characterization or even diagnosis of the disease
• Deoferio instructs that this 3111 element is not merely a procedural
requirement would primarily be shaped
according to the interests of the parties rather than
3
but a substantive one. The certification from a competent public health
authority the studied analysis of the
appropriate medical professionals. Clearly, it is only
is precisely the substantial evidence required by law to prove the existence
of where there is a prior
certification from a competent public authority that the
the disease itself; its non-curability within a period of 6 months even with
disease afflicting the employee sought to be dismissed is of such nature or at
proper medical treatmen~ and the prejudice that it would cause to the health
of such stage that it cannot be cured
within 6 months even with proper medical
the sick employee and to those of his co-employees.
treatment that the latter could be validly terminated from his job.
• An employer must not terminate if disease is curable within 6 months with
• Medical certificate is evidence of illness even if not notarized.5
proper medical treatment. The employee must be allowed to take a leave of
• Medical certificate cannot be dispensed with by reason of the fact that the
absence and reicstated 2fter being cured. Based on this requisite, even if the
l illness lasted for more than a year.
required certification was not presented, it was because the disease was not of
disease or ailment can be cured within the period of 6 months with proper
such a nature or serioi.!Sness that it could not be cured within a period of six
medical treatmen~ the employer shouid not terminate the employee but merely
months even with proper medical treatment. If so, dismissal was unquestionably
ask him to take a leave of absence. The employer should reinstate him to his
. 7
NlRC, G.R No. 116807,"¢114, 1997; See alsoCrayoos ~. ~ v. Pula, GR. No. 167727,
Ju1i 30,2007.
by the employer as its employee or hired on a retainer fee basis to whom sick
3 Crayons Processing, Inc. v. Na, supla
L~ .
POST EMPlOYMENT
required that in addition to compliance with the statutocy due process, the
2.
employer should still comply with the due process procedure prescribed in its
HEARING; AMPLE OPPORTlJNITY TO BE HEARD
own company rules. The employer's failure to observe its own company-
prescribed due process will make it liable to pay an indemnity in the form of
(NOTE: The foregoing topics will be discussed herein jointly
nominal damages, the amount of which is equivalent to the P30,000.00 awarded
In the fight of their close Interrelation).
under the Agabon doctrine.
1. THEAGABONDOCTRINE: DUE PROCESS IN TERMINATION OF
It was found in this case of Abbott Laboratories that respondent
EMPLOYMENT REFERS TO STATUTORY, AND NOT
Alcaraz, 3 who was hired as a probationacy managerial employee, was afforded
CONSTITUTIONAL, DUE PROCESS.
both the statutorily-mandated substantive and procedural due process, when she
Per Agabon doctrine,' it is now the prevailing rule that it is not the due
was terminated4 for failure to qualify as a regular employee. Nonetheless,
process provided in the Constitution7 that is required in termination of
despite the existence of a sufficient ground to terminate Alcaraz's employment
employment but the statutocy due process provided under Article 292(b)
and Abbott's compliance with the Labor Code termination procedure, it was
[277(b)] of the Labor Code.
POST EMPLOYMENT
contractual breach of its own company procedure - albeit not statutory in source
Records show that Abbott's PPSE1 procedure mandates, inter alia, that
-has the parallel effect of violating the laborer's rights. Suffice it to state,
the
the job performance of a probationary employee should be fonnally reviewed
contract is the law between the parties and thus, breaches of the same impel
and discussed with the employee at least twice: first, on the third month and
recompense to vindicate a right that has been violated. Consequently, while the
second, on the fifth month from the date of employment. Abbott is also required
Court is wont to uphold the dismissal of Alcaraz because a valid cause exists,
to come up with a Performance Improvement Plan during the third month
v. Nov.
17,2004.
of Alcaraz's employment procedurally infirm, warranting the payment of
2 Jaka Food f'rocesshJ
4 This was refelred kl i1 the decision as Article 296 releRi1g kl Article 297
[28~ ct the labor Code. This author renUIIlbers ft
CHAPTER IV 341
BAR REVIEWERO.N lABOR I.AW
POST EMPLOYMENT
340
During the hearing or conference, the employee is given the chance to
2. Conduct of hearing; and
defend himself personally, with the assistance of a representative or counsel of
3. Service of second written notice.
his choice. Moreover, this conference or hearing could be used by the parties as
·described above. For obvious reason, due process in abandonment cases does
l) to enable him to prepare adequately for his defense;
not involve the conduct of hearing. Compliance with the foliowing two (2)
2) to study the accusation against him;
notices suffices, viz.:
3) to consult a union official or lawyer;
upon the separate and simultaneous service of a written notice of the intended
After serving the first notice, the employer should schedule and
termination to both:
conduct a hearing or conference wherein the employee will be given the
(I) the employee to be terminated; and
opportunity to:
(2) the appropriate DOLE Regional Office, at least one (l) month
1) explain and clarify his defenses to the charge/s against him;
before the intended date of the termination specifying the ground/s
2) present evidence in support of his defenses; and
3) rebut the evidence presented against him by the management.
1 1<iwJ of~ Troosport, Inc. v. Mama:, Si.Jpra; See also !.ina lald, Inc. v.
Cuews, G.R No. 169523, June~. 2010;
2 Based oo the en bane decisioo in the 2009 case of Perez v. PhqJpine Teleg~ Md
Te!Eiphclle Company, G.R No.
l52048,Apri7,2009,584SCRA 110.
1 G.RNo.166208,June29,2007.
CHAI'TERlV
circumstances:
of the season;
3. Casual employment which antomatically tenninates upon the lapse
(1) When requested by the employee in wriJing; or
of the agreed period;
(2) When substantial evidentiary disputes exist; or
4. Fixed-term employment which automatically terminates upon the
(3) When a company rule or practice requires it; or
expiration of the fiXed period.
(4) When similar circumstances justify it.
8. PROCEDURAL DUE PROCESS IN TERMINATION OF
(c) the "ample opportunity to be heard" standard in the Labor Code
PROBATIONARY EMPLOYMENT.
him."
9. THE PEREZ DOCTRINE: NEW GUIDING PRINCIPLE ON THE
HEARING REQUIREMENT.
The Perez doctrine is now the prevailing rule as shown by a catena of
GaiJs v. Qualty House, klc., G.R No.156766, ~ 16, 2009; New Puerto
CorrrneltBv.l.llpez, G.R No.169999, ~ 26,
1
11. 2012; ~ao del Norte Eleclric CooperaWe, Inc. v. Gonzaga, G.R No. 1sn22..il1e
10, 2013.
-lliiiill~--~
-----···- -·---·-·-----~--
CHAPTER IV 345
344 liAR REVIEWER ON lABOR lAW
POST EMPLOYMENT
12. Termination of employee who has admitted his guiit for the offense
1. Termination of project, seasonal, casual or fixed-term employment.
charged. 5
2. Termination of probationary employment on the ground of failure
12. SEVEN (7) STANDARD SITUATIONS IN TERMINATION CASES.
of the probationary employee to qualify as a regular employee in
accordance with reasonable standards made known to him at the
The rules on termination of employment in the Labor Code and
10
pertinent jurisprudence are applicable to seven (7) different situations, namely:
start of the employment.
3. Termination due to abandonment of work.
I. The dismissal was for a just cause under Article 297 [282]: for an
4. Termination due to authorized causes under Article 298 [283]
authorized cause under Article 298 [283], or for health reasons under
(installation of labor-saving device, redundancy, retrenchment or
Article 299 [284], and due process was observed- This termination is
closure of business or cessation of operations). In such cases,
there LEGAL.6
are no allegations which the employees should r-efute and defend
11
2. The dismissal was without a just or authorized cause but due process
themselves from.
12
was observed- This termination is ILLEGAL.7 ·
5. Termination due to disease under Article 299 {284].
6. ·Termination by the employee (resignation) under Article 300 [285].
3. The dismissal was without a just or authorized cause and due process
1
~ 1ba1 Bri, k1c. v. NI.RC, GR. No.122075,Ja'l. 28, 1998,285 SCRA 297.
1 Sebuguerov. NLRC, GTI SportswearColporalion, G.R. No. 115394, Sept 27,1995.
2 Robusta Agro Marine Products, Inc. v. Gorombalem. G.R. No. 80500, July 5,
1989. 2 Hladov.l.eogatlo,G.RNo.L~.June11, 1986.
3
Wenphi Co!pocaOOn v. NLRC, G.R No. &.\587, Feb. 8, 1989.
3 l.r.der AI1X:Ie 128 J!:l ci l1e t.m Code.
4
Maneja v. NLRC, G. R. No. 124013, June 5,1998.
4 Sedbl5, 1U! lnlt-A, Boat Ill, 1U!s b ~ lhe t.m Code, lfi aT'I!n100 by
M::le I, ~Order No. 10,
5
Centwy Textile Milts,lnc. v. NLRC, G.R No. n859, May 25, 1988.
Series It 1997 (:XI May 1997.
6 Ak:cnara v. The Pll~ile Conmerdal Cl1d k1dusbial Balk, ~.R No. 151349, Oct. 20,
2010; PLDT v. Honrado, G.R. No.
7
189366, Dec. 8, 2010.
CenlulyTextileMis,lnc.v. NLRC,G.R. No. 77w.!,May25, 1988.
8 Pepsi-Caa t:lisllilubsoflhePhirippiles, lrx:. v. ttRC, GR No.100686,Alr,j.15,
1995.
•m~•~
Phfwile Pizza, h:. v. &n!!cmoog, G. R No. 154315, May 9, 2005; Roche~] v. NLRC, G.R
No. 83335, Oct 5,
7 ACO nvest1Jaion Seariy f.~Jeoo/, h:. v. Daquera, G.R No. 147473, lla'dl30,
2004; PioneerTexUIID;I Ctvporalion v.
HeDenic Philippine Shipping, Inc. v. Siete, G.R No. a4082, March 13, 1991.
NLRC, G.R No. 118651, Oct 16, 1997; Oaliav. NLRC, G.R Nos. 97162-64,Jllle 1, 1995,
244 SCRA 668.
10
Phi~pineDailyklquirer, Inc. v. ~.Jr.,G.R.No.164532,July24,2007.
8 Lambert Pawnbrokers and Jewell'f COip. v. Binamira, G.R. No. 170464, July 12,
2010; JGil and Associates, Inc. v.
11
'NftlshieFile Co. v. ti.RC, GR. No. 82249,Feb. 7,1991.
NLRC, G.R. No.109390, March 7,1996.
12
Agabon v. NLRC, G.R No.158693, NO/. 17,2004.
4. The dismissal was for a just or authorized cause but due process was
operations or when, as in this case, he undertakes to implement a retrenchment
1
not observed- This termination is LEGAL.
program
5. The dismissal was for a non-existent cause - This termination is
b. Some principles under the Agabon doctrine.
ILLEGAL. 2
1. Measure of penalty or indemnity - no longer full backwages but
6. The dismissal was not supported by any evidence of termination - This
nominal damages.
termination is NEITHER LEGAL NOR ILLEGAL as there is no
2. Since the dismissal is considered legal, any award of backwages
dismissal to speak of.3 Reinstatement is ordered not as a relief for
must be deleted and replaced by award of indemnity.'
illegal dismissal but on equitable ground.
d.
a. Application of the Agabon and Jaka doctrines.
This topic is des~nated as No. 3uooer lhe general topic of 'Due Process." It is lhe
view of the author that this topic
3 Ledesma. Jr. v. NLRC, G.R. No. 174585, Oct 19, 2007.
has no direct relation to due process and,lherefore, must be treated as aseparate
and distinct topic.
4 St. Mly's N:2JJemJ ct ~ aty v. l'alail, G.R No. 164913, Sept.8, 2010; 'St.
tuke's Medical Ce!ller Errqlloyees ~ Article 294 (279]. Sectlily of
terlll9. ncases of regular employment lhe empklyer shall not tenni1a!e lhe seMc:es
of an
AssociiD:xH\FW ald Sa:lloS v. Nl.RC,{>.R. t-kl.162053, March 7, 2S'JJ7.
enllbJee ex~tklr ajist cause orll11en authorized by this Tille. fv1 ~k7jeev.to is
unjusltf disrrissed from work shaH be
s Per Serrano v. NLRC, G.R. No. 117040, Jan.~7, 2000.
entiUed t reinstatement ~ loss <i seniority ri;!ht and other p!Mieges and t his ful
ilackw!JJes, i1cfusNe of
6 Based oo the case tU~aboo v. NlRC, G.R No. 158693, tbl. 17, 2004.
li.oNirx:es, and to his illher benefi!s a their ~ eql!Nalent canputed from lhe time
his C001jleiiS8IiCI was l'liDlheld
1 Based on Jaka Fool Processir¥J Capor3ioo v. Pacot, G.R 151378, l.laltl128,
2005. from hill up to the time of his
actua rei1stalernenl
Belli RIJ'alllirlk, tic. v. De Guznm, G.R No.170904, tbt. 13, 2013; capii v. NLRC,
G.R No. 117378, Milth 26, 1997,
3. Article 292(b) [277(b)] which empowers the DOLE Secretary to
270 SCRA 488; Man!Joo v. MRC, G.R No.105338, Dec. 27, 1994.
suspend the effects of termination pending the resolution of the termination
2 f'hiiJ'eOO rre &RubberCapoabw. VK:en!e, G.R No. 142759, tbt. 10, 2004; Boli1ao
Searily Cl1d k1vesligation SeM:e,
dispute in the event of a prima facie finding by the appropriate official of the
lrl:. v. Toston, G.R 1-b. 139135, .len 29, 2004; ~ RalllitBus Liles, klc. v. tiRC,
G.R 1-b. 122078, Apti 21, 1999,
DOLE before whom such dispute is pending that the termination may cause a
300 SCRA 155.
3 Bot1omeo v. CA, G.R 1-b. 161596, Feb. 20, 2013; Nnjl v. Bianedica Heafth Cere,
k1c., GR No 193789, Sept 19,
serious labor dispute or is in implementation of a mass iay-off.
2012; Ailing v. Fefdcm, G.R No. 185829, April25, 2012; Velasoo v. NLRC, G.R No.
161694, June 26, 2006, 492 SCRA
4. Article 294 [279) which grants reinstatement as a relief to an
686, 699; St. luke's M!di:al CerEr, klc. v. Nrml, GR. No. 152166, Oct 20, 2010;
Manila WIS Co., klc. v. Pena, G.R.
tbt.11,2008.
CHAPTER IV
POST EMPLOYMENT
351
(b) Where the dismissed employee's position is no longer
available
at the time of reinstatement for reasons not attributable to
the (i) Takeover of
the business of the employer by another company
fault of the emp Ioyer. 1
and there is no agreement regarding assumption of liability by
8
feasible. 8
(6) Other circumstances such as (!!) when reinstatement is inirnical to
the employer's interest; (b) reinstatement does not serve the best
2
had depredaled ll1d had been replaced v.il new!!", beiEr ones; en! {d) I now
sdd goods V1rouQh ildependent lftsfJW:lrs, F. F. Mime Cccpcxation v.
1he Hon. Socond !Mim NLRC, G.R. No. 152039, Apl8, 2005; caiefe v. NLRC, G.R No.
leeby llllolisltw;l tleposilioos relcm:ll> sales Mel lf~st~Jutiln.ll Macatig v.
M.RC, G.R. NO. 158095, lb. 23, 2007, it 131467, Apl21, 1999; ~ v. NLRC,
GR No. 117378, IIM:h 26, 1997, 270 SCRA 488; Labor v. NI..RC, G.R No.
was hekt 'The OOslily ci pMie respoodent was I!100e mriest m she CXIlSidered
lhe fiiYJ ct 11e case as pelliooer's 110388, Sept 14, 1995; GCIXI
v.lhe Hon. NLRC, G.R No.104690, Feb. 23, 1994.
a:t ct exac1ivJ nmey 1roo1 her. 11 foci. shelllanded pelliooer asQle rm was
Vfi.Y good at aclilg, ll1d v.00 had mastered 3 ll!ertan!i1enla ~Cap. v.
Beneofdo, GR No. 152843, July 20, 2006; Maxi Seariy Mel lleleciMl N}erq v.
lhe at of gai1i1g ~ ~·s ~- 1he mties d lhe siJailn precludes a ~ ~. shook!
NLRC, G.R No. 162850, Dec. 16, 2005.
~becxdered."
~ Eleclruct PS.a, Inc. v. Meris, G.R No. 147031, Jlif27, 2004.
4 Vdrxy Liler, lie. v. ~. G.R No. 164820, t.bth 28, 2007; See aloofle ReookJtion
on Mltion lor Recoosidelation, Dec. 5 Bagong Ba(cl1 ~ v. Ople, G.R
No. 73334, Dec. 8, 1986.
8,2008.
Sectm 41bl. Rille I, Boo11 VI, Rules tl ~ 11e Lalor Code; Pli::e v.llnoda!a Phis,
lncJmodata Cap., G.R No.
5 Tooes, Jr. v. NLRC, G.R. No. 172584, Nov. 28, 2008.
178505, Sept 30, 2008; Phitread Tre & Rubber Cop<Ja!ion v. VK:ellle, G.R. No.
142759, Nov. 10, 2004; Ooo;ihsoo
6 &st!manEv. NLRC, G.R. No.111651, Nov. 28, 1996; Sagaesv.~·s ComnerciaColp.,G.R
No.166554, Nov. 27,
Constuctioo Co. W. v. tlRC, GR. No. 72945, l.trf 29, 1986; Pizza Inn v. tlRC, G.R
No. 74531, June 28, 1988.
2008;Jacullev. SillilmlkWefsity, G.RNo.156934, Mlldl16,2007;-Temms, Inc. v.
M:lbe8a, G.R No. 149074, Sealand SeNice.lnc. v.
NLRC, G.R No. 90500, Oct 5, 1990, 190 SCRA 347.
8
Alxj. 10, 21m; Befl;juet ColpaaOOn v. NLRC and Feizardo A. Guicr1an, G.R. No.
124166, Nov. 16, 1999; Espejo v. ti.RC, As cited in Esc<riov. NLRC,
GR. No.160302, Se!t 27,2010. . .
9
GR No. 112678, Mcrr.h 29, 1996, 255 SCRA 430,435.
SantJi;JueiCccpcxationv. OepulyMnisErofl..aborll1dEflllklyment, G.R. No. L-58927
&L-59870, Oct 27,1986.
7 ScWaloza v. NLRC, G.R No. 182086, Nov. 24, 20i0.
10
CentutyTextiie Mls, Inc. v. NLRC, G.R. No. nas9, May 25, 1988, 161 SCRA 528.
11
8 Asia PaciOCCh<Kterilg [Phils.], Inc. v. Farol<il, G.R No. 151370, Dec. 4, 2002.
Q.lbacv. NlRC, G.R No. 81946, July 13, 1990,187 SCRA412.
12
\ CHAI'TER !V
POST EMPLOYMENT
353
(1) The amount equi~'!llent to at least one (1) month salary or to one
(1) • Separation pay, as a substitute
remedy, is only proper for reinstatement but
month salary for eve!'j year of service, whichever is higher, a
not for backwages. 1
fraction of at least six (6) months being considered as one(l) whole
• Separation pay and backwages are not inconsistent with each other. Hence,
year. 1
both may be awarded to an illegally dismissed employee. 2 The payment of
(2) Allowances that the employee has been receiving on a regular
separation pay is in addition to payment ofbackwages.3
basis. 2
• Employer does not have the option to choose between actual reinstatement
4. PERIOD COVERED.
and separation pay in lieu thereof. Actual reinstatement has the primacy as
thereon. 6
When employer has ceased its business operations, the separation pay
5
7. STRAINED RELATIONS RULE
in lieu of reinstatement should be computed only up to that date of closure.
5. SALARY RATE TO BE USED IN THE COMPUTATION,
The doctrine of "strained relations" or "antipathy and antagonism" or
2 St. Wte's Medical Center, Q:. v. NolaOO, G.R No. 152166, Oct 20, 2010;
AgtbJllal Cl1d hduslrial &wfies Corp. v.
Siazlr, G.R No. 177970, Aug. 25, 2010; CenUy ~Gap. v. Rari, G.R No. 171630, Aug. 8,
2010; CerUyCaritg
CooJrml v. Vlcel!e, GR No. 171630, Aug. 9, ~10; Nssan Ncxth Edsa ~ Q.Jezoo City v.
Semo, k. GR No.
t Sectix14¥JL ~I, Bod~ VI, RUes 1o 1n1J1ementlle Lmor Code; Soolh East Wenlat<rB
Ralla1, klc. v. Jesus J. CooiJJ, 162538, .kite 4, 2009, 588 SCRA 238,
247-248; t1a:asero v. Southern k'dSial Gases~ G.R No.178524, Jlfl.
GR No. 186621, Mrdl12, 2014; St.ltie's Mecfcal CenU, klc. v. Nolaio, G.R No.
152166, Ott 20, 201(); Agrruuat 30, 2009, fiT7 SCRA 500.
IIIII Rfuslrial ~Corp. v. Siazlr, G.R No. 177970, AIJ;I.25, 2010;Pk:opResoortes.
Mrplr.Ed{PRI) v. AnacleiD L 3 ~ v. Felam, GR No. 18582.9, Aprl25,
2012, cili'g M1casero v. Soomn D11s1ria1 Gases ~ GR No.
Ta'leca,etlli.,G.R No.11i0828,Aug. 9, 2010; ~rnoo v. VMnadeMilll.lad!riYJQxponml.
G.R No.149552,Midl 178524, .Ia!. 30, 2009, fiT7 SCRA 500,
507; t.t Camel Cdlege v. Resuena. G.R No. 173076, Ocl. 10, mr, 535 SCRA
10, 2010; CRCAgrk:IAJral Traci1g v. NLRC, G.R No. tn664,tlec. 23,2009,609 SCRA
138,151; 518,541.
2 P1c111ers ProWcts, klc. v. NLRC, G.R No. 78524,JM. 20, 1969.
~ Johnsoo &Johnson [Phis.), R:. v. Johnson otrx:e &Sales Union- FFW, G.R No.
172799, J~ 6, mT, ~ v.
3 ~CoocreleProdldsv. NLRC, G.R No.106916,Sept.3,1999; RefomlstllniooctRB..L.iler,
Q:. v. Nl.RC,G.R NI.RC, ~.R No. 105338, Dec. 27, 1994.
No.1al482, Jlfl. 27, 1997,266 SCRA 713, 725;Seala'ld SeM:e,loc. v. NI..RC, G:R.
No. 00500, Ott 5, 1900,190 SCRA 5 SM: Blflk, blc. v. De Guznm, G. R N~.
184517 &186641, Ott 8, 2013 (En Bcn::t Johansen Wort! Grol4l Qrpaalioo
347.
v. Rene Manuel Goozales Ill, G.R No. 198733, Ott 10,2012, Goklen .6ll! Buikfelsv.
Takle, G.R No. 187200, 5tlaf 2010,
~ Agtbltua IIIII lnduslriaiSupplies C.O.lJ. v. Siazcl, G.R No. 1n970, Aug. 25,2010;
~~ Pa'lay~v. NLRC, GR. 620SCRA28.
No.180718, Ott 23,2009,604 SCRA 362, 371.
6 Session Delights lceOeamand F~Foodsv. CA(Sixth Diviskln), G.R No. 172149, F8J.
8, 2010,612 SCRA 10.
5 Polymer RubberCaporatioo Md .lose4Jh Ang v. Bayokl Salaru:!i1g, GR No.
185160,.lltj24, ~13. . 1 Wensha Spa Center, klc. v.
Ylli'Q, G.R No.185122, Aug. 16, 2010; AgrbJI1llaiMd nNsbial Supples Corp. v.
Siazcr, G.R
s Masagala Cooae1e Products v. NLRC, GR No. 106916, Sept. 3, 1999; Reloonist Uoioo
ct R.B.I.iler,loc. v. NI.RC, GR No. 177970, Aug. 25, ~10; CenbJ1y Qmi1g
Corp. v. Rami!, G.R No. 171630, Aug. 8, 2010; NiJ::agUe v. ~LileS,
No. 120482, Jlfl. 27, 1997, 266 SCRA 713, 725; Seaa1d ~. klc. v. NLRC, G.R. NQ.
00500, Od. 5, 1990, 190 SCRA Inc., G.R. No. 172589, Aug. 8, 2010;
Lanbert P~ and Jewely Corp. v. Bimira, G.R No. 170464, Jtlf 12, 2010;
347.
Goco v. The Han. NLRC, G.R No. 104690, Feb. 23, 1994; See also ~ v. NLRC, G.R No.
107940, Jl.lle 17, 1994;
1 l.eqlMI SeaJrity Md kNes!JJation Agencyv. QIR:Pf, GR No. 186JA.4, Feb. 20, 2013.
liri<elkai Sons t&rg, loc. v.l.lclnera. G.R No.152514, July 12, 2005.
common denominator is the fact that the employee was dismissed by the
. !
employer. 1 Even in cases of illegal dismissal, the doctrine of strained relations
is proper.
3
hostility, it has likewise been ruled that the understandable strain in the
parties' • Criminal
prosecution confirms the existence of "strained relations'' which
relations would not necessarily rule out reinstatement which would, otherwise,
would render the employee's reinstatement highly undesirable. 4
become the rule rather than the exception in illegal dismissal cases. 2
5
In a plethora of cases, the Supreme Court has been consistent in its
exist.
holding that the existence of strained relations between the employer and the
• In case of new ownership of the establishment, reinstatement is proper if no
illegally dismissed employee may effectively bar reinstatement of the latter. 3
strained relations exist with new owner.
considered not to have left his office so that he is entitled to all the rights and
confidence be reposed by the employer upon the employee occupying it as
.,J
&"'
I' CHAPTER IV
POST EMPLOYMENT
357
equivalent. 2
8
e. Just share in the service charges."
1 H separation pay is ordered in lieu of reinstatement, full backwages
should be computed from the time of illegal dismissal until the fmality of
1 Telefunken Semiccnduclofs En1Jioyees Union-FFWv. Court of Appeals, G.R. Nos.
143013-14, Dec. 18, 2000, 348 the decision. The
justification is that along with the finality of the Supreme
SCRA 565, 590.
. Court's decision, the issue on the illegality of the
dismissal is finally laid to
2 Earlier, there were II'Kl (2) rules on backwages. Theist is the~ 'MeR:uy Drug
Rule'v.tlich refels kltherulelist 9
rest.
erm:.iBI il the case ct Mmly Drug Co., ~ v. 00, G.R No. L-23357, ~ 30, t974, 56
SCRA 694, v.t1ict1 !l1illdales
tta il case the ilegal cfiSITiissal d M ~ has lasEd ilr l1'a1'f ye;.rs, he is
entitled b backwaJes ilr afixed period d • Tbe rule is different if
employment is for a definite period. The illegally
tree (3) yeas, 'voii100t iri1er ~ « deOOdkxls.' The Meltuy Drug IUl was
superseded 1a1er by lle 'fErrer dismissed fixed-
term employee is entitled only to the payment of his
~ lail dcrM1 il the cased Farer v. NLRC, aR No. 100898, July 5, 1993, 224 SCRA
410, 423, Nth grri!d
~ il u but lle ~may dedud af/ il1lXI1l v.t1ich the~ may have eoo1ed
elseAtlere !Ui1g the
pOOcxl dhis legal emiiiDn
3 G.RNo.111651,Nav.28, 1996,265SCRA61.
4 See aso Kay Produds, K. v. CA, G. R No. 162472, ~ 28, 2005; Trnders Ra(<ll
Billk v. NLRC, G.R. No. 127864, Dec.
22,1999.
1 ~ Rllaltlalktcagayan Valle'f), Inc. v. NLRC, G.R No. 123810,Jill. 20, 1999,301
OCRA.rtJ.
5 See also PLDTv. NLRC, G.R. No. 106947, Feb. 11, 1999; Genellll ~Bille Coleges v.
NLRC, G.R. No. 85534, March 2 BlJe Day~ v. M.RC, G.R No.
129843, Sepl14, 1999.
3 Femilldez v. NLRC, G.R. No. ~05892, Jill. 28, 1998, 285 SCRA 149.
5,1993,219 SCRA549
& ~ v. NLRC, GR. No. 93915, Oct. 11, 1995; PnrortV11)'1 Producfs ~ v. NlRC, G.R No.
81200, Oct 4 Eq1iab1e Banki1g Corp. v.
Sadoc, GR No.164772, JIJ1e 8, 2006.
17,1990.
5 Tomas0aud'10 Mlm:lrial Cdlege,lnc. v. CA, G.R No.152568, Feb. 16,2004.
7 Espejo v. NLRC, G.R No. 112678, Mardl 29, 1996, 325 Phi. 753, 760; General
Bapfist Bble Colleges v. NLRC, G.R No. ~ !RiaQuzv. NlRC, G.R
No.121288, Nov. 20, 1998,299 SCRA 1,12-13: I_ T. Dab! &Co., Inc. v. NLRC,G.R.
No.H3162.
85534, March 5, 1993, 219 SCRA 549.
Feb. 9, 1996,253 SCRA 440,453.
.s lv:JSia Coqxxa1i:Jn v. ttRC, G.R No. 152308, Jal. 26, 2005.
7 Aurora Land Projeds Colporation v. NLRC, G.R. No. 11473~. Jan. 2, 1997, 266 SCRA
48 .
9 Salles v. NLRC, GR No. 76n1, Sepl21, 1987; Slmlov. NLRC, G.R. No. L-75510, Oct
27, 1987. 8
The Coca-Cola Export Co!p. v. Gacayan, G.R No. 1~433, Dec. 15, 2010; Buenviaje v.
CA, M. No. 147806, 12
1o St L.ou5e Colege ctTuguega:ao v. NLRC, G.R No. 74214, kg. 31, 1989; On sel'lice
i1oentive leave, see Femandezv. Nov. 2002, 391 SCM 440.
.
NlRC, G.R No. 105892, Jal. 28, 1998,285 SCRA 149.
9 CRC Agricultural Tradill!l ~. t.!1.i«;, G.R. No. 177664, Dec. 23, 2009;-Gaco v.
NLRC G.R No. 104600, 23 Feb.
11 Marcm.ti fWs &ResortC<Xporalioo v. NLRC, G.R No.123880, Feb. 23, 1999.
!I! 1994,230 SeRA.~. 2B9.
>~.%--'
CHAPTER IV 359
358 BAR REVIEwER ON lABOR lAW
POST EMPLOYMENT
Code. However, in certain instances, backwages are not granted at all or are
should be computed only up to said age. The contention of the employer
granted but only for a limited amount.
3
that backwages should be reckoned only up to age 60 cannot be sustained.
The discussion below will point out the variations in the grant of
4
In Jaculbe v. Silliman University, it was declared that since petitioner has
backwages as follows:
already reached seventy-one (71) years of age at the time the decision was
with no backwages was ordered because the penalty of dismissal imposed on the
should be computed from the time of his dismissal up to the time of his
9
employee for {;Ommitting theft of company property was reduced to suspension
death.
due to mitigating circumstances. The justification was that the entire period
10
• The period of valid suspension is deductible from backwages.
when the employee was out of job because of his dismissal should already be
11
1 Backwages should include period of preventive suspension.
the employee was illegally dismissed but at the same time guilty of misconduct,
1 ~ Transp<lt SeMces, ki v. NLRC, G.R No. 95449, kg. 18, 1997; O!loodo Fams Gr!
Mers it was ruled that there was no
grave abuse of discretion in the resolution of the
AssocialkliVGic AncNerv. NLRC, G.R ttl. 120076, Nal. 25, 1998, 299 SCRA 364.
2 Espe;lv.NIRC,G.R No.112678,Mardl29, 1996,255SCRA430,435.
..
·--~:.._·
POST EMPLOYMENT
When he reported back for work, he was told that he had been dismissed for
(3) It was likewise held in Integrated Microelectronics, Inc. v.
being absent without leave. It was held that while he was at fault, the employee
Pionella/ on motion for reconsideration by petitioner, that the backwages 2
could not be dismissed. He was ordered reinstated but he was denied backwages.
should be deleted on the grounds that (a) the penalty of dismissal was too harsh
IMI was in good faith when it dismissed Pionilla as his dereliction of its policy
(l) In Itogon-Suyoc Mines, Inc. v. National Labor Relations
on ID usage was honestly perceived to be a threat to the company's security. In
Commission,1 the employee was found guilty of breach of trust for stealing ore
this respect, since these concurring circumstances trigger the application of the
with high gold content. However, his dismissal was considered drastic and
exception to the rule on backwages as enunciated in the above-cited cases, the
unwarranted considering that he had rendered twenty three (23) years of service
Court found it proper to accord the same disposition and consequently directed
without previous derogatory record and he was prematurely suspended during
the deletion of the award of backwages in favor of Pionilla, notwithstanding the
the pendency of the case. Consequently, he was ordered reinstated but without
illegality of his dismissal.
granting him any backwages. Tne High Court pronounced that "[t]he ends of
social and compassionate justice would therefore be served if private respondent
• Illustrative cases of the THIRD situation above:
is reinstated but without backwages in view of petitioner's good faith."
(l) In Best Wear Garments v. De Lemos,4 where the records are
(2) Finding factual similarity with the fmegoing case of Itogon-
bereft of any showing of clear discrintination, insensibility or disdain on the
part
Suyoc, the Supreme Court, in Pepsi-Cola Products Philippines, In~. v.
of petitioners in transferring respondents - both sewers on piece-rate basis - to
Malon} deems it appropriate to render the same disposition insofar as one of
perform a different type of sewing job which would amount to constructive
the respondents in this case was concerned - Saunder Santiago Remandaban III.
dismissal. That respondents eventually discontinued reporting for work after
This case involves a stri.'<e which the DOLE Secretary certified to the NLRC for
their plea to be returned to their former work assignments was their personal
compulsory arbitration. A return-to-work order was issued as a consequence of
decision, for which the petitioners should not be held liable particularly as the
such certification. However, Remandaban failed to report for work within
latter did not, in fact, dismiss them. Indeed, there was no evidence that
twenty-four (24) hours from receipt of the said order. Because of this, he was
respondents were dismissed from employment. In fact, petitioners expressed
served with a notice of loss of employment status (dated July 30, 1999) which
willi'lgness to accept them back to work. There being no termination of
he challenged, asserting that his absence on that day was justified because he
employment by the employer, the award of backwages cannot be sustained. It is
had to consult a physician regarding the persistent and excruciating pain of the
well settled that backwages may be granted only when there is a finding of
inner side of his right foot. In ordering his reinstatement but without
backwages, illegal dismissal. In cases where there is no evidence of dismissa~
the remedy is
the Supreme Court cited the following as its bases:
reinstatement but without backwages.
(a) While Remandabari was remiss in properly informing Pepsi of his
(2) In Leopard Security and Investigation Agency v. Quitoy,S as
intended absence, the penalty of dismissal is too harsh for his
well as in the earlier case of Security and Credit Investigation, Inc. v.
iilfractions considering that his failure to report to work was
clearly NLRC/ reinstatement without backwages was ordered because petitioners
were
prompted by a medical emergency and not by any intention to defy
the July 27, 1999 return-to-work order.
(b) Pepsi's good faith is supported by the NLRC's finding that
''the return-to-work order of the Secretary was taken lightly by
1 G.R ltl. 200222, AIJJ. 28, 2013 (Res001iln on Mmn b" Reoonsideraliln).
Remandaban." In this regard, considering Remandaban's ostensible
2 Respondg'itwas ordered rei1slaEd pkJs ba:kwages by lle Cwt ci ~·
3 Respoodent Pklnla has w:xXed v.i1h petiOOner IMI as Is pnxlJdkx1 Wilker si1ce
NcNerOOer 14, 1996, 01 May 5, 2005,
dereliction of the said order, Pepsi could not be blamed for
sending Pionila I'I!CeM!d a m fRxn IMI requiiDJ hin il explai1 tle l1cidert
W1ich ocx:uned tJe daf before r.t1ere he was seen
him a notice of termination and eventually proceeding to dismiss
~ alady il bolrd lhe ~shuttle bus alle Alimq Temiial. kwas repaet by l1e bus
IIB'Shallhat l1e lady
him.
was weailg a~ klenlk:ation cad (D) - v.tlich serves as afree pass b" side bus
passEI'IQers- eY91 f she was
jJSt ajciJ ~at IM. ~ llis regald, Pionilla OOriled llal he lent lis ID tl tJe lady
'IIIlo hlned out il be his relatNe. He
hisd:xls.
4 GR No.191281,DEc.05,2012.
POST EMPLOYMENT
363
found not to have dismissed respondents (security guards) and that the latter, for
• Illustrative case where award of backwages was limited to 2
their part, have not abandoned their employment. 1 ·
years:
(3) Leonardo v. NLRC ·where the Supreme Court ordered the
In Dolores v. NLRC/ the employee was terminated for her continuous
reinstatement sans backwages of the employee (Fuerte) who was declared
absence without permission. Although it was found that the employee was
neither to have abandoned his job nor was he constructively dismissed. As
indeed guilty of breach of trust and violation of company rules, the High Court
pointed out by the Court, in a case where the employee's failure to work was
still declared the employee's dismissal illegal as it was too severe a penalty
occasioned neither by his abandonment nor by a termination, the burden of
considering that she had served the employer company for 21 years, it was her
economic loss is not rightfully shifted to the employer. Each party must bear his
first offense, and her leave to study the French language would ultimately
own loss.
benefit the employer who no longer had to spend for translation services. Even
so, other than ordering the employee's reinstatemen~ the said employee was
7. REINSTATEMENT WITH LIMITED BACKWAGES.
awarded backwages limited to a period of two (2) years, given that the employer
While in the aforementioned cases of illegal dismissal, the Supreme
acted without malice or bad faith in tenninating the employee's services.
Court ordered the employees' reinstatement but without backwages, there are
• Illustrative case where award of backwages was limited to 5
also instanc;es where the backwages were not given in full but merely limited for
years:
the same reason of good faith on the part of the employer.
employee only when his alleged violation is the subject of an investigation. This
remedy may thus be resorted to only while the errant employee is undergoing an
prevent him from causing harm or injury to the company as well as to his fellow
employees. It is justified only in cases where the employee's continued
1 See also Ledesma, Jr. v. NLRC, G.R No. 174585, Oct 19, 2007; lndophil Aaylic ~
Caporatioo v. NLRC, GR 1
No. 96488, Sepl ZT, 1993,226 SCRA 723.
G.R No. 87673, Jan. 24, 1992, 205 SCRA 348.
2 G.R. Nos. 125303 &126937, June 16, 2000.
G.R No. 164820, Dec. 8, 2008.
3 G.R No. 54244, Jan. ZT, 1992, 205 SCRA 469.
RelevootPn:Ms.ioos: Sedions 8and 9, Rules XXIII, Book V, Rules ~ lmple!oont tle
l..abcJ COOe {No proo.1sb1 on Preven!Ml
4 G.R. No.139847, Malt:h 5, 2004.
Suspension illhe.l.aborCOOe].
4
s GR No. 87673, Jan. 24, 1992,205 SCRA 348.
fo.s amended by Mide 1, Depcrtnent On!er No. 09, Series ol1997.
...
·.:. ,
POST EMPLOYMENT
presence in the company premises during the investigation poses a serious and
during said period of extension. In such a case, the worker is not bound to
imminent threat to the life or property of the employer or of the employee's co-
reimburse the amount paid to him during the extension if the employer
workers. Without this threat, preventive suspension is not proper.'
decides to dismiss him after the completion of the investigation.•
3. SOME PRINCIPLES ON PREVENTIVE SUSPENSION.
• Extension of period must be justified. During the 30-day period of
c.
• Preventive suspension is neither equivalent nor tantamount to disrnissa1.
RETIREMENT 10
• Preventive suspension should only be for a maximum. period of thirty (30)
Series d 1997 !21 June 1997; See also~ AiflleS, k1c. v. tlRC, {>.R No. 114307, !Jiy
8, 1998, 292 OCRA 40;
CHArTER IV
POST EMPLOYMENT
367
1. All employees in the private sector, regardless of their position,
conjunction with, such farming operations, but does not include
designation or status and irrespective of the method by which their
the manufacture and/or processing of sugar, coconut, abaca,
wages are paid;1
tobacco, pineapple, aquatic or other farm products. 1
2. Part-time employees;
3. Employees of service and other job contractors;
3. OPTIONAL OR COMPULSORY RETffiEMENT AGE.
4. Domestic helpers or persons in the personal service of another; 2
a. Under Article 302 [287].
3. Underground mine workers; 3
4. Employees of government-owned and/or controlled corporations
This article provides for two (2) types of retirement:
organized under the Corporation Code (without original charters).4
(I) Optional retirement upon reaching the age of sixty (60) years. 2
2. EXCLUSIONS FROM COVERAGE.
(2) Compulsory retirement upon reaching the age of sixty-five (65)
Article 302 [287], as amended, does not apply to the following
years. 3
employees:
It is the employee who exercises the option under No. 1 above. 4
1. Employees of the national government and its political subdivisions,
b. Under retirement plan.
induding government-owned and/or controlled corporations, if they
arc covered by the Civil Service Law and its regulations.
The optional and compulsory retirement schemes provided under
Article 302 [287] come into play or.ly in the absence of a retirement plan or
2. Employees of retail, service and agricultural establishments or
providing for an earlier or older age of retirement (but not beyond 65 which has
a. "Retail establishment" is one pP.ncipally engaged in the sale
been declared the compulsory retirement age), the same shall be controlling.
of goods to end-u3ers for personal or household use. It shall
lose its retail character qualified for exemption if it is engaged
c. Retirement at an earlier age or after rendering certain period of
in both retail and wholesale of goods.
service.
· b. "Service establishment" is one principally engaged in the sale
5
Based on Article 302 [287] the employers and employees are free to
of service to individuals for their own or household use and is
agree and stipulate on. the retirement age, either in a CBA or employment
generally recognized as such.
contract. It is only in the absence of such agreement that the retirement age shall
c. "Agricultural establishment/operation" refers to an employer
be fixed by law, that is, in accordance with the optional and compulsory
which is engaged.in agriculture. This term refers to all farming
retirement age prescribed under Article 302 [287].6
activities in all branches and includes, among others, the
parties, a voluntary agreement between the employer and the employee whereby
and harvesting of any agricultural or horticultural commodities,
dairying, raising of livestock or poultry, the culture of fish and
other aquatic products in farms or ponds, and any activities
performed by a farmer or on a farm as an incident to, or in
1 Section 1, Rule II, Implementing Rules of the Retiement Pay law; labor Advisoly
on Retirement Pay law dated 1
Sedm 2, Rule II, ~ Rules of l1e Retilernoot Pay Law; LOOa Miwy oo Retirement Pay
taN daEd Oct 24,
Ocl24, 1996, issued by Secreta!y leonardo A. Quisumbil¥;!.
1996.
2 tm-Mirnyoo RefiementPay Law daB! Oct. 24, 1996. ~: Ulderthe ~versm of 11e AJies
~the 2
~v.tlRC,G.RNo.120802,June17, 1997,273SCRA576.
20, ~ by Seaelily Ma. N'leYeS Roldoo Cofesa' on May 31, 1994. On OdOOer 24,
1996, Secretary l.eonMio A. 5
Tlis pnMsioo states that '(a)ny efl1lkryee may be retired upon read1irYJ lhe
retirement a:~e eslabished illhe c;oiJedive
Quismtilg issued lis l..alxr Mimy 00 the Rt&'ement Pay Law Wlere tiler M.<e
been expressly a-d calegOO::altf balgailOJ a;Jreement or other appli::able
flll1lloYmen! contact'
ilOOded v.ill1illhe ro.oeraae of IIi; law).
6
Easan 91iJpi'lg Liles, klc. v. Anmkl, G.R No. 171587, Oct 13, 2009; ~ Shippilg
Liles, Inc. v. Sedal, G.R No.
3 RA No. 8558.
CHAPTER IV 369
POSf EMPLOYMENT
the latter, after reaching a certain age, agrees to sever his or her employment
1
Following Jaculbe, the retirement of petitioner in the 2010 case of
with the former.
Lourdes Cercado v. Uniprom, Inc. 1 at the age of 47, after having served
d. By mutual agreement, employers may be granted the sole and
respondent company for 22 years, pursuant to its Employees' Non-Contributory
exclusive prerogative to retire employees at an earlier age or
Retirement Plan, which provides that employees who have rendered at least 20
after rendering a certain period of service.
years of service may be retired at the option of the company, was declared
This agreement may be stipulated in an employment contract or a CBA.
illegal because it was not shown that she has given her consent thereto. Not even
By entering into an employment contract containing such stipulation, the
an iota of voluntary acquiescence to respondent's early retirement age option is
employee is bound to adhere thereto. In the same vein, by their acceptance of
attributable to petitioner. The assailed retirement plan was not embodied in a
the CBA, the union and its members are obliged to abide by the commitments
CBA or in any employment contract or agreement assented to by petitioner and
and limitations they had agreed to cede to the employer. It is not repugnant to
her co-employees. On the contrary, it was unilaterally and compulsorily imposed
the constitutional guarantee of security oftenure.2
on them.
Cainta Catholic Schoo! v. Cainta Catholic School Employees Union
f. Retiring at an earlier age will amount to illegal dismissal if
[CCSEUJ/ where the Supreme Court upheld the exercise by the school of its
employee did not consent thereto.
option to retire employees pursuant to the existing CBA where it is pmvided that
In the same cases of Jaculbe and Lourdes Cercado, having tenninated
the school has the option to reiire an employee upon reaching the age limit
the employee solely on the basis of a provision of a retirement plan which was
of sixty (60) or after having rendered at least twenty (20) years of service to
not freely assented to by the employee, the employer was held guilty of illegal
the .school, the last three (3) years of which must be continuous. Hence, the
dismissal.
tennination of employment of the employees, arising as it did from an exercise
4. M!NIMUM YEARS OF SERVICE REQUffiEMENT.
of a management prerogative granted by the mutualiy-negotiated CBA between
Five (5) years is the minimum years of service that must be rendered by
In Pantranco North Express, Int. v. NLRC,4 the Supreme Court
the employee before he can avail of the retirement benefits upon reaching
upheld the validity of the CBA stipulation that allowed the employee to be
Hence, the employer and the employee are free to stipulate a different period in
consented to by the employee.
the retirement plan, employment contract or CBA.
In Jaculbe v. Silliman University,5 the Supreme Court ruled that in
cannot stipulate a period higher than five (5) years since this will run counter to
employee's participation in the plan is voluntary. An employer is free to impose
the intention of the law to grant retirement benefits not upon reaching the
a retirement age of less than 65 for as long as it has the employees' consent.
favors the workers and therefore deserves to be construed for their benefit.
·
retirement age if they feel they can get a better deal with the retirement plan
· presented by the employer.
b. Components of the minimum 5-year service requirement.
The minimum length of service of at least five (5) years required for
CHAI'TERIV 371
370 BAR REVIEWER ON lABOR lAW
POST EMPLOYMENT
and reckoned in computing the retiring employee's length of service. The period
b. Underground mine employee.
1
of time when the business establishment was closed should not be included.
An underground mine employee refers to any person employed to
c. The age and service requirements are cumulative; non-
extract mineral deposits underground or to work in excavations or workings
compliance with one negates entitlement to the retirement
such as shafts, winzes, tunnels, drifts, crosscuts, raises, working places whether
benefits.
abandoned or in use beneath the earth's surface for the purpose of searching for
2
retirement benefits provided under the law.z
years of age; while the compulsory retirement age is sixty (60) years old
Thus, where an employee like the petitioner in Padillo v. Rural Bank
d. Minimum years of service requirement
of Nabunturan, Inc./ terminated his employment due to disease4 when he was
To be entitled to retirement benefits, the underground mine worker
at 55 years of age, his claim for retirement benefits was not granted and instead,
should have rendered service as such for at least five (5) years, in addition to
the
4
he was simply awarded financial assistance of P75,000.00, exclusive of the
age requirement. The minimum length of service of at least five (5) years
PlOO,OOO.OO benefit under the Philam Life retirement/insurance plans earlier
required for entitlement to retirement pay shall include authorized absences and
taken out for the employees by respondent bank in anticipation of its possible
vacations, holidays, and mandatory fulfillment of a military or civic duty. 5
closure and the concomitant severance of its personnel. In the absence of any
applicable contract or any evolved company policy, Padillo should have met the
6. E~11TLEMEI'i1 OF EMPLOYEES DISMISSEil FOR JUST CAUSE
age and tenure requirements set forth under Article 302 [287] of the Labor Code
TO RETIREMENT BENEFITS.
to be entitled to the retirement benefits provided therein. Unfortunately, while
a. General rule.
Padillo was able to cumply with the five (5) year tenure requirement- as he
served for twenty-nine (29) years -he, however, fell short with respect to the
Management discretion may not be exercised arbitrarily or capriciously
sixty(60) year age requirement given that he was only fifty-five (55) years old
especially with regards to the implementation of the retirement plan. As held in
when he retired.
Razon, Jr. v. NLRC/ upon acceptance of employment, a contractual
the retirement fund. Hence, the dismissed employee is entitled to the retirement
Jeremias Cabiles,S similarly held that if the retirement plan requires a minimum
for just cause was held not entitled to the retirement benefits under the
1 Santiago v. Bilallalfll Estate, G.R No. L·2268, Oct 20, 1950, 87 PhH. 538.
company's retirement plan which concededly prohibits the award. of retirement
2 Padil v. Rua1 Bat of Naburitul<ul, klc., G.R No. 199338, Jan. 21, 2013.
3 G.R.No.199338,Jfll.21,2013.
~ ~ WCVA ~ AcOOentj with shatEimmem:rybss.
1
s G.R No. 200575,Feb. 5, 2014.
Sedioo 1, Rule 11-A, lbil.
6 Enlilbi'An M. Amend'rg Artide 302 (287] of P.O. No. 442, as Amerxfed, OlleiWise
KnoYm as Vle l1ixr CQde of the
4
oo Feb. 26, 1998.
Article 302 [287], as anendedby RA No. 8558.
5
7 See Sectixl8,RIOO I~A. Rules Presa'llirl,) the Relilement kJe tr lblelgRuld Mile
~ees, llepa1mer¢ Older No. Sedioo 2.3, IU! 11-A, lbkl.
6
09, Series ct 1998 [tJay 4, 1998. This Oepment Older enurx:iated l1e ~iUs d RA
No. 8558. Kwas issued G.R No. 80502, May 7, 1900, 185 SCRA 44.
oo May 4, 1998 but it elfedM!ywas made refroadive Ill M1l:h 22, 1998vdlen said
l<fN 11m! i1to la're.
CHAPTER IV 373
372 BAR REviEWER ON lABOR lAW
POST EMPLOYMENT
for his financial support. It is also a form of reward for the employee's loyalty
benefits to an employee dismissed for just cause, a proscription that binds the
the period that an employee is looking for another employment after his
in Razon, the employer's refusal to give the employee his retirement benefits is
termination. 2
based on the provision of the retirement plan giving management wide
discretion to grant or not to grant retirement benefits, a prerogative that
b. When both retirement pay and separation pay must be paid.
obviously cannot be exercised arbitrarily or whimsically. But in San Miguel, the
There are cases where both retirement pay and separation pay for
retirement plan expressly prohibits the grant of retirement benefits in case of
authorized cause termination were awarded and ordered paid. The most eloquent
dismissal for just cause. Hence, the employee is bound by such prohibition.
complied with the mandate of the law on retrenchment by paying separation pay
In the 2010 case of Philippine Airlines, Inc. v. NLRC,2 it was held
double that required by the Labor Code (at the rate of one [l] month pay instead
that private respondent's termination for cause thereby rendered nugatory
of the one-half [Y2] month. pay per year of service) was not favorably considered
any entitlemeilt to mandatory or optional retirement pay that she might
by the Supreme Court because the employees were not pleading for generosity
have previously possessed."
but demanding their rights embodied in the CBA which was the result of
In the 2013 case of Daabay v. Coca-Cola Bottlers Phils., Inc} the
negotiations between the company and the employees. The company's counsel
Supreme Court relied 011 the above ruling in Philippine Airlines in denying the
should have made it a point to categorically provide in the Retirement Plan and
claiin for retirement benefits of petitioner Daabay in view of his lawful dismissal
the CBA that an employee who had received separation pay would no longer be
by Coca-Cola on the grounds of serious misconduct, breach of trust and loss of
entitled to retirement benefits. Or to put it more plainly, collection of
retirement
confidence.
benefits was prohibited if the employee had already received separation pay.
case decided before the advent ofR.A. No. 7641, the Supreme Court ruled that
under the law. Their distinctions are as follows:
if it is provided in the retirement plan of the company that the retirement, death
1. While both retirement pay and separation pay are fixed by law,
and disability benefits paid in the plan are considered integrated with and in lieu
retirement pay differs from separation pay in that the former is paid by reason of
of termination benefits under the Labor Code, then the retirement fund may be
retirement; while the latter is required in the cases enumerated in Articles 298
validly used to pay such termination or separation pay because of closure of
[283] and 299 [284] of the Labor Code and as substitute remedy in cases where
business.
reinstatement is not possible. 4
retirement plan of the company provides that the employee shall be entitled to
Aquino v. NLRC, supm; IHJillil v. WCC, G.R. No. L-45785, Mrth 21, 1988, 159 SCRA
91, 99. .
2 kl.
I G.RNo.159701,Au.l.17,2007.
3
2 GR »:1.123294, Oct. 20, 2010,634 SCRA 18.
G.R No. 87S53,Feb. 11, 1992
4
3 GR No. 199890, Aug. 19, 2013.
G.R No. 75347, Dec. 11,1987.
...
: .}
CHAPTER IV 375
PO;r EMPLOYMENT
either the retirement benefit provided therein or the separation pay provided by
law, whichever is higher, the employee cannot be entitled to both benefits. 1
1.
The reason for the first situation is to prevent the absurd situation
a. SSS retirement pal is separate and distinct from the retirement
pay where an employee, who is otherwise
deserving, is denied retirement benefit5 by
under the Labor Code,5 retirement policy or plan of the employer
or the nefarious scheme of employers in.
!l0t providing for retirement benefits for
underaCBA.
their employees. The reason for the second situation is expressed in the Latin
b. GSIS retirement benefits6 apply to government employees only.
maxim pacta prt11ata juri publico derogare non possunt. Private contracts
Cailll.~t derogate from the public law. "Ang kasunduang pribado ay hindi
c. The coverage of the Pag-IBIG Fund7 may be treated as a substitute
makasisira sa batas publiko.'.;J
retirement benefit for the employee within the purview of the
Labor c. One-half (Yz) month
salary.
Code.
Translalion d.lhis maxin kl ~ was made by 11e Supreme Court i1sef il its dfx:isioo
illhe case d ~ v. United
377
Posr EMPLOYMENT
month salary for every year of service, a fraction of at least six (6) months being
year of service should be paid in full. It should not be computed on the basis of
considered as one (1) whole year. 1 ·
1112 of the 5-day service incentive leave. 1 ·
EMPLOYMENT.
(l) Fifteen (15) days salarv of the employee based on his latest
salary rate. The term "salary" includes all remunerations paid by
Supposing the retiring employee, by reason of the nature of his work,
an employer to his employees for services rendered during normal
was not entitled to 131h month pay or to the SIL pay pursuant to the exceptions
working days and hours, whether such payments are fixed or
mentioned in the 13th Month Pay Law and the Labor Code, should he be paid
ascertained on a time, task, piece or commission basis, or other
upon retirement, in addition to the salary equivalent to fifteen (15) days, the
method of calculating the same, and includes the fair and
additional2.5 days representing one-twelfth [1/12] of the 13lh month pay as well
reasonable value, as determined by the DOLE Secretary, of food,
as the five (5) days representing the service incentive leave for a total of 22.5
lodging or other facilities customarily furnished by the employer to
days?
his employees. The term does not include cost of living
allowances, profit-sharing payments, and other monetary benefits
This question was answered in the negative in R & E Transport, Inc.
which are not considered as part of or integrated into the regular
v. Latag/ The Supreme Court in this case ruled that employees who are not
salary of the employees;
entitled to 13\b month pay and SIL pay while still working should not be paid the
(2) The cash equivalent of.five (5) days of service incentive leave;
entire "22.5 days" but orJy the fifteen (15) days salary. In other words, the
additional2.5 days representing one-twelfth (1/12] of the 13th month pay and the
(3) One-twelfth {1/12) ofthe 13'h month pay due the employee; and
five {5) days of SIL should not be included as part of the retirement benefits.
(4) All other benefits that the employer and employee may agree
upon that should be included in the computation of the employee's
The employee in this case was a taxi driver who was being paid on the
retirement pay. 2 .
"boundary" system basis. It was undisputed that he was entitled to retirement
benefits after working for fourteen (14) years with R & E Transport, Inc.
e. "One-half ('lz) month salary" means 22.5 days.
However, he was not entitled to the 13th month pay since Section 3 of the Rules
To dispel. any further confusion on the meaning of "one-half {~)
and Regulations Implementing P.D. No. 85tl exempts from its coverage
month salary" provided in Article 302 [287], the Supreme Court, in the case of
employers of those who are paid on purely boundary basis. He was also not
Capitol Wireless, Inc. v. Confesor, JG.R. No. 117174, November 13, 1996,
entitled to the 5-day service incentive ieave pay pursuant to the Rules to
4
264 SCRA 68, 77), simplified its computation by declaring that it means the
Implement the Labor Code which expressly excepts field personnel and other
total of "22.5 days" arrived at after adding 15 days plus 2.5 days representing
employees whQ~~ perfonnance is unsupervised by the employer. 5
one-twelfth [1112] of the 13lh month pay plus S days of service incentive leave.
4. DISTINCI'ION BETWEEN DRIVERS PAID ON "BOUNDARY
Evidently, the law expanded the concept of "one-half month salary" from the
SYSTEM" AND CONDUCTORS PAID ON "COMMISSION" BASIS.
usual one-month salary divided by two.3
The said R & E Transport case should be di~tiguished from the 2010
2. FIVE (5) DAYS OF SERVICE INCENTIVE LEAVE, HOW
case of Serrano v. Severino Santos Tran~6 which involves a bus conductor
RECKONED.
(petitioner) who worked for 14 years for respondent bus company which did not
The five (5) days of service incentive leave provided under Article 302
adopt any retirement scheme. It was held herein that even if petitioner as bus
[287] as part of the retirement benefit of one-half(~) month salary for every
CHAPTER IV
. i
7641 and its implementing rules. This means that his retirement pay should
[287] as discussed above. 1
include the cash equivalent of the 5-day SIL and 1/ 12 of the 13th month pay for a
total of22.5 days. The affirmance by u'ie.Court of Appeals of the reliance by the
I 2.
NLRC on R & E Transport case was held erroneouS. For purposes of applying
RETIREMENT BENEFITS OF
1
the law on SIL as well as on retirement, there is a difference between drivers
i WORKERS PAID BY RESULTS
paid under the "boundary system" and conductors paid on commission basis.
!
'
This is so because in practice, taxi drivers do not receive fixed wages. They
1. ONE-HALF MONTH SALARY OF EMPLOYEES WHO ARE PAID
BY RESULTS.
retain only those sums in excess of the "boundary" or fee they pay to the owners
or operators of the vehicles. Conductors, on the other hand, are paid a certain
For covered workers who are paid by results and do not have a fixed
percentage of the bus' earnings for the day. It bears emphasis that under P.O.
monthly rate, the basis for the determination of the salary for fifteen (15) days
No. 851 and the SIL Law, the exclusion from its coverage of workers who are
shall be their average daily salary (ADS). The ADS is the average salary for the
paid on a purely commission basis is only with respect to field personnel.
last twelve (12) months reckoned from the date of their retirement, divided by
I
The retirement benefits to which an underground mine worker is
I
.
57636,May16, 1983, 122SC'RA267.
1 Sedil142, Rule I~A. Ibid.
~ Sedion4.1, rue I~A. w.
2 Sedioo 5.3, !Ulll, Ibid.
MANAGEMENT PREROGATIVES
receive under such prescribed standards or rates and that
actually paid them by the employer."'
CHAPTER FIVE
3. UNDERGROUND MINE EMPLOYEES PAID BY RESULTS.
~AGEMENTPREROGATNES
The rule mentioned above is the same for underground mine
employees. 2
TOPICS PER SYLLABUS
3.
RETIREMENT BENEFITS OF PART-TIME WORKERS
v.
MANAGEMENT PREROGATIVES
1. PART-TIME WORKERS ARE ENTITLED TO RETIREMENT
BENEFITS.
A. Discipline
There can be no question that part-time workers are also entitled to
B. Transfer of Employees
retirement pay of "one-half month salary" for every year of service under Article
C. Productivity Standard
302 [287], as amended by Republic Act No. 7641, after satisfying the following
D. Bonus
conditions precedent for optional retirement: (a) there is no retirement pian
E. Change of Working Hours
between the employer and employee; (b) the employee should have reached the
F. Marriage Between Emp!oyees of Competitor-Employers
age of sixty (60) years; and (c) shou\4 have rendered at least five (5) years of
G. Post-Employment Ban
service with the employer. Meanwhile, the compulsory retirement age under the
------------------------
law is sixty-five (65) years. 3
I.
2. HOW COMPUTED.
~~AGEMENTPREROGATnffiS
Applying, therefore, the principles under Article 302 [287], as
amended, 4 the components of retirement benefits of part-time workers may
1. RIGHT OF EMPLOYER TO REGULATE ALL ASPECTS OF
likewise be computed at least in proportion to the salary and related benefits due
EMPLOYMENT.
them.
It is ~
maccordance wtth therr own dtscretlon and JUdgment. ThiS pnvtlege ts inherent
-=~---oOo---
working methods, time, place and manner of work, tools to be used, processes to
exercise by the employers of their rights and prerogatives. For this reason,
1
2 Sedioo 4.3, !l'Je I~A. Rules Presczili1g tile Retiieme!l! fl:;e fci Unde!gnml
~ Employees, Depa1ment ~ No. 09, Deles, Jr. v. NlRC, G.R No. 121348, March 9,
2000; C!9llo v. NI..RC, G:R. No. 104319, Jl.lle 17, 1999; Autubus WOikels'
~ c: 1998 [May 4, 1998.
2
Union v. Nl.RC, G.R No.117~; Ji,re 26, 1998, 291 SCRA219, 228.
..
~ txplanat01y Bulletin on Part-Time Employment dated Jan. 02, 1996 issued by
Acti"B DCU: Secrelafy Jose S. 1 Pllif!)pine Airliles, Inc. v. NRC, G.R
No. 115785, Aug. 4, 2000; OSS Seauity Cl1d Allied SeNices, Inc. v. Nt.RC, G.R No.
Blillantes.
4 As amended by R.A. No. 7641.
112752, Feb. 9, 2000, 325 SCRA 157.
CHAPTERV 385
MANAGEMEN:r PREROGATIVES
5. RIGHT TO PRESCRIBE COMPANY RULES AND REGULATIONS
employer's rules, and appreciation of the dignity and responsibility of his office,
OR CODE OF DISCIPLINE.
has so plainly and completely been bared. Company rules and regulations
The prerogative of an employer to prescnoe reasonable rules and
cannot operate to altogether negate the employer's prerogative and
regulations necessary or proper for the conduct of its business and to provide
responsibility to determine and declare whether or not facts not explicitly set out
certain disciplinary measures in order to implement said rules and to assure that
in the rules may and do constitute such serious misconduct as to justify the
the same would be complied with has been recognized in this jurisdiction. 1
dismissal of the employee or the imposition of sanctions heavier than those
6. RIGHT TO IMPOSE PENALTY; PROPORTIONALITY RULE.
specifically and expressly prescribed therein. This is dictated by logic,
otherwise, the rules, literally applied, would result in absurdity; grave offenses,
The employer may lawfully impose appropriate penalties on erring
e.g., rape, W()uld be penalized by mere suspension, this, despite the heavier
workers pursuant to its company rules and regulations. 2 However, the
penalty provided therefor by the Labor Code or otherwise dictated by common
"proportionality rule" should be observed. This means that infractions
sense. 1
committed by an employee should merit only the corresponding sanction
demanded by the circumstances. The penalty must be commensurate with the
In Cruz v. Coca-Cola Bottlers Phils., Inc} admittedly, the violation
gravity of the offense, the act, conduct or omission imputed to the employee and
of the company rules committed by petitioner is punishable with the penalty of
imposed in connection with the employer's disciplinary authority. 3 Accordingly,
suspension for the first offense. However, the Supreme Court affirmed the
in determining the validity of dismissal as a form of penalty, the charges for
validity of his dismissal because respondent company has presented evidence
which an employee is being administratively cited must be of such natu!'e that
showing that p.:ltitioner has a record of other violations from as far back as
1986.
would merit the imposition of the said supreme penalty. Dismissal should not be
imposed if it is unduly harsh and grossly disproportionate to the charges. 4
B.
7. RIGHT TO CHOOSE WHICH PENALTY TO IMPOSE.
TRANSFER OF EMPLOYEES
The matter of imposing the appropriate penalty depends on the
I. CONCEPT.
employer. It is certainly within the employer's prerogative to impose on the
a. Two (2) kinds oftransfer. - A transfer means a movement:
erring employee what it considered the appropriate penalty under the
I. Prerogative to reorganize;
The einployer has the right to impose a heavier penalty than that
4 SentK1el Security~. k1c. v. NLRC, G.R No. 122468, Si!ilt S, m&;Blle Daily
Colpaation v. NLRC, GR No. 129843,
s China Banking Corporation v. Borromeo, G.R No. 156515, Oct. 19,2004.
Sepl14, 1999.
. .. .
CHArTER V 387
MANAGEMENTPREROGATN<S
should not be motivated by discrimination or made in bad faith or effected
1
• The refusal of an employee to be transferred may be held justified if there is
as a form of punishment or demotion without sufficient cause.
a showing that the transfer was directed by the employer under questionable
• The Court cannot look into the wisdom of the transfer of an employee?
circumstances. For instance, the transfer of employees during the height of
• Commitment made by the employee in the employment contract to be re-
their union's concerted activities in the company where they were active
assigned anywhere in the Philippines is binding on him. 3
participants is illegal. 1
• Even if the employee is performing well in his present assignment,
• An employee who refuses to be transferred, when such transfer is valid, is
management may reassign him to a new post. 4
guilty of insubordination or willful disobedience of a lawful order of an
• The transfer of an employee may constitute constructive dismissal when it
employer under Article 297 [282] of the Labor Code.Z For example: The
amounts to an involuntary resignation resorted to when continued
dismissal of a medical representative who acceded in his employment
employment is rendered impossible, unreasonable or unlikely; when there is
application to be assigned anywhere in the Philippines but later refused to
a demotion in rank and/or a diminution in pay; or when a clear
be transferred from Manila to a provincial assignment, was held valid. The
discrimination, insensibility or disdain by the employer becomes unbearable
reason is that when he applied and was accepted for the job, he agreed to
to the employee leaving him with no option but to forego with his continued
the policy of the company regarding assignment anywhere in the
5
employment.
Philippines as demanded by his employer's business operation.3
• More specifically, the following three (3) conditions must concur in order
• Refusal to transfer due to parental obligations, additional expenses,
for the transfer to be considered as constructive dismissal: ·
inconvenience, hardship aud anguish is not v~lid. An employee could not
l) When the transfer is unreasonable, inconvenient or prejudicial to the
validly refuse lawful orders to transfer based on these grounds.
4
employee;
• Refusal to transfer to overseas assignment is valid.5
2) When the transfer involves a demotion in rank or diminution of salaries,
• Refusal to transfer consequent to promotion is valid. 6
benefits and other privileges; and
7
2 ld.
No.155178, May7,2008.
3 ld.
3 Abbott laboratories, Inc. v. NLRC, G.R. No. 76959, Oct 12,1987.
4 ld.; See also Abbd!Lmaatcries {Phils.), klc. v. M.RC, G.R No. L-76959, Ocl12,
1987, 154 SCRA 713.
4 ABied Balkb:J Gapolabl Y. CA, GR No. 144412, Nov. 18, 2003; lion'leaMiels
Savn;)s 8ld loan Associa&xl, Inc. v.
5 Fknn IW v. Nl.RC, G.R No.155264, MayS, 2005; We'tlklza Y. Rilal Bri II l..ucbal,
G.R No.155421, Ju~ 7, 2004;
NLRC, GR. No. 97f1if, Se!t 26, 1996, 262 SCRA 400.
&ilao v. Cinech SysEm Coosm:tixl, klc., G.R No. 171392, Oct. 30, 2000; 8lle Daiy
Capcxation v. NlRC, GR No. 5 A!rled~ QxpcJamv. CA. GR. No. 144412,
Nov.18, 2003);DJschv. N.RC, GR No. L-51182, .kty'5, 1983,208
129843, Sepl14, 1999, 314 SCRA 401.
Ptll.259; 123 SCRA 296.
s Tmv. CA. G.R No. 171764, June 8, 2007; Mendoza v. Rulal Bri d l..ucbM, G.R. No.
155421, Ju~ 7, 2004. Dosd1 v. NLRC, [supm.
7 BisiJMin;lgaga.o~asaTryoov.NLRC,G.RNo.151309,0ci.15,3Xla.
CHAPTERV 389
388 liAR REviEWER ON lABOR lAW
MANAGEMENT PREROGATIVES
1
3. PREROGATIVE TO REORGANIZE.
of such right and he cannot be punished therefor.
3
• It is hard to accept the claim that an employer would go through all the
1 Employer's decision on whether to promote an employee or not is
expenditure and effort incidental and necessary to a reorganization just to
valid for as long as it does not appear to have been actuated by
dismiss a single employee whom they no longer deemed desirable. 6
bad faith.
5
accompanied by an increase in compensation and benefits. 8
b. Some principles on demotion.
b. Transfer vs. Promotion.
1 Demotion may result from transfer when the same results in
6
Promotion denotes a scalar ascent of an officer or an employee to
reduction in position and rank or diminution in salary.
another position, higher either in rank or salary; while transfer involves lateral
1 Transfer from a highly technical position to one requiring
movement from on~;: position to another of equivalent leve~ rank or salary.9
mechanical work - virtually a transfer from a position of dignity
7
c. Some principles on promotion.
to a servile or menial job- is demotion.
• An employee has the right to refuse promotion. There is no law
Change in workplace may result in demotion. Hence, there is
which compels an employee to accept a promotion. Promotion Is
demotion in the case of transfer of an employee from the
CHAPTERV 391
MANAGEMENT PREROGATIVES
this is a transfer from a workplace where only highly
trusted
authorized personnel are allowed to access to a
workplace that is inefficiency meriting her
dismissal on the basis of the Court's finding that she
not as critical. 1
failed to measure up to the standards set by the school in teaching Filipino
classes.
• Mere title or position held by an employee in a company
does not
determine whether a transfer constitutes a demotion.
Rather, it is In the 2012 case of Reyes-
Rayel v. Philippine Luen Thai Holdings
the totality of the following circumstances, to wit:
economic Corp.,' the validity of the dismissal
of petitioner who was the Corporate Human
significance of the work, the duties and
responsibilities conferred, Resources (CHR) Director
for Manufacturing of respondent company, on the
as well as the rank and salary of the employee, among
others, that ground of inefficiency and ineptitude,
was affirmed on the basis of the Court's
establishes whether a transfer is a demotion. 2
fmding that petitioner, on two occasions, gave wrong information regarding
• The employer has the right to demote and transfer an
employee issues on leave and holiday pay which
generated confusion among employees in
who has failed to observe proper diligence in his work
and the computation of salaries and wages.
incurred habitual tardiness and absences and indolence in
his In another 2012 case, Realda v.
New Age Graphics, Inc.,4 petitioner, a
assigned work. 3
machine operator of respondent company, was dismissed on the ground, among
• Demotion may be validly imposed due to failure to comply
with others, of inefficiency. In affirming the
validity of his dismissal, the Supreme
productivity standards. 4
Court reasoned:
• Due process principle in termination cases applies to
demotions. 5 "xxx (T)he petitioner's
failure to observe Graphics, Inc.'s work
Simply put, even the employer's right to demote an
employee standards constitutes
inefficiency that is a valid cause for dismissal. Failure to
requires the observance of the twin-notice requirement.'
obse-rve prescribed stat1dards of work, or to fulfill reasonable work
assignments due to inefficiency may constitute just cause for dismissal. Such
sanetrne 11 August 1993. Upoo Scm's reun 1D lle SchOO, rrif ooe clasS of Spalsh was
MiOOie br her to ~
7'm7, May 18, 1987.
Thus, br lhe school ye;~1993-1994, SriJS agreed 1o leoch one clasS d Spanish ood W'
other classes of Fi(Jilo flat
l.eooadov. NLRC, G.R. No.125303, June 16, 200081d Fuerev.Pqlilo,
G.RNo.126937,June 16,2000. were left behild by
aretired teache': SOOsequent to this, she laugh! oo~ ~until herlelrnilatioo.
3 G.RNo.174893,July11,2012
1.eooM1o v. NlRC, supra; liJe Daiy Cixpomti:xJ v. NLRC, SIJillll; Jarcia
Madli1e !:tql and Aim Supptj, Inc. v. NLRC,
G.RNo.118045,JM.2,1997,266SCRA97.
• G.R No.192190, Apri125, 2012.
AJoo HeEl v. NlRC, G.R. No. 1552.64, May 6, 2005; Jatia Machi1e Shop em Au1D
St.W/, ~ v. NLRC, supra.
6
5 G.R. No.L.m316, July 13,1984,131 SCRA 151, 158.
...
MANAGEMENT PREROGATIVES
with the employer as part of its burden to show that the dismissal was for a
just performance of an ordinary worker of minimum
skill or ability. 1 An ordinary
cause. The employer must show that such quota was imposed in good faith.
worker of minimum skill or ability is the average worker of the lowest
2. DOLE TO ESTABLISH STANDARD OUTPUT RATES.
producing group representing fifty percent (50%) of the total number of
In appropriate cases, the DOLE intervenes, motu proprio or upon the
employees engaged in similar employment in a particular establishment,
initiative of any interested party, to establish productivity standards.
excluding learners, apprentices and handicapped workers employed therein. 2
For instance, in the case of workers paid by results who are
In the case of homeworkers, the time and motion studies should be
considered "non-time" workers as their compensation is based not on the basis
undertaken by the DOLE Regional Office having jurisdiction over the location
of the time spent on their work but according to the quantity, quality or kind
of of the premises used regularly by the
homeworker/s. However, where the job
job and the consequent results thereo~ it is subject to more regulations in
order operation or activity is being likewise
performed by regular factory workers at
to ensure the payment of fair and reasonable wage rates. Thus, on petition of
any the factory or premises of the employer, the
time and motion studies should be
interested party or upon its own initiative, the DOLE shall use all available
conducted by the DOLE Regional Office having jurisdiction over the location of
measures, including the use of time and motion studies and
individual/collective the main undertaking or
business of the employer. Piece rates established
bargaining agreement between the employer and its workers as approved by the
through time and motion studies conducted at the factory or main undertaking of
DOLE Secretary and consultation with representatives of employers' and
the employer shall be applicable to the homeworkers performing the same job
workers' organizations, to determine whether the employees in any industry or
activity. The standard piece rate shall be issued by the DOLE Regional Office
enterprise are being compensated in accordance with the minimum wage
within one (1) month after a request has been made at said office. Upon request
requirements of the rule on wages. 1
of the DOLE Regional Office, the Bureau. of Working Conditions (BWC) shall
with the rates prescribed by the DOLE in an appropriate order, the employees
·~·-
MANAGEMENT PREROGATMS
are entitled to the difference between the amount which they are entitled to
1
usually fixed. But if the amount of bonus is dependent upon the realization of
9
l. GENERAL RULE; NOT DEMANDABLE OR ENFORCEABLE.
profits, the bonus is not demandable and enforceable.
Bonus, as a general rule, is an amount granted and paid ex gratia to the
3. FORFEITURE OF BONUS.
employee. Its payment constitutes an act of enlightened generosity and self-
It is valid for an employer to establish as policy that once an employee
interest on the part of the employer rather than as a demandable or enforceable
is found guilty of an administrative charge, he shall forfeit his bonus in favor of
obligation. 3
the employer.
It is an amount granted and paid to an employee for his industry and
loyalty which contributed to the success of the employer's business and made
1 UST Faaiy Union v. tlRC, G.R No. 00445, Oct 2, 1990, 190 SCRA 215; Ph~ EOOcation
Co.,~ v. CIR, G.R No.
4 Producers Sri d the Phiippiles v. NlRC, GR. No. 100701, M.W128, 2001, 355 SCRA
489, 496.
s 1.umn Stevedori1g Capomfion v. Crutd k1duslria Re!alions, G.R No. L-17411, Dec.
31, 1965.
7 Mcmls v. NlRC, G.R. No. 111744, Sept. 8, 1995; lv'alila Eleclrlc CoillJanY v.
Seaetary of labor, G.R No. 127598, Jan.
1 SecOOn 5~.Rule VIl-A, Book HI, Rules to l~llelaba"Code, as Mlellded
byMemorcrldwnCirularNo. 3, Na./.4,
1992.
27, 1999; Da'lao Fruits COipo!atioo v. Associaled laba"Unions, G.R No. 85073, Aug.
24, 1993, 225 SCRA 562.
8 Alii Bg Wedge Mni"MJ Co., i'lc. v.Aili BiJ Wedge MJtua Benefit Association, GR
No. L-5276, ~ 3, 1953,92 Phil.
2 GR. Nos. 72616-17, Man:tt 8,1989,171 SCRA87.
3 ProclJcers Balk d 1t1e Phi4Jpines v. NlRC, G.R No. 100701, March 28, 2001, 355
SCRA 489; Phiippine Oupicakxs,loc. 754.
v.NLRC,G.R No.110068,Feb.15,1995.
Prtt!cio v. Laya lv'ala!YJhaya &Co., G.R No. 168654, Ma!th 25, 2009; See also The
Mania Bankilg Colpora1ion v.
NLRC, GR No. 107487, Sepl29, 1997; 345 Pili. 105, 106.
- y+r.....:.r:·etXZ'
MANAGEMENT PREROGATIVES
F.
.Bank v. NLRC, 1 the Supreme Court recognized as valid the forfeiture of the
1988 mid-year and year-end bonus of an employee who was found guilty of an
~GEBETWEENEMPLOYEES
administrative charge in 1988, in accordance with the existing company policy
OF COMPETITOR-EMPLOYERS
of the employer.
company. It provides:
Sime Darby Pilipinas, Inc. v. NLRC. 3 - The exercise of this
prerogative is best exemplified in this case where it was held that management
"10. You agree to disclose to management any existing or future
marriage. 2
contracts marriage runs afoul of the test of, and the right against, discrimination
1 GR No. 117460, Jan. 6, 1997.
2 ~ Aililes, Inc. v. NLRC, G.R No. 115785, Aug. 4, 2000; OSS SeQriy and
Alried Setvices,lnc. v. NLRC, G.R No. 1 G.R. No. 162994, Sepl 17, 2004.
112752,Feb.9,2000,325SCRA 157.
G.R No.119205,Apri 15,1998,289 SCRAB6.
2 See also Section 13 [e],IMJ XII, 8o1:t Ill, Rules lo ln'(llement lhe Labor
Code; Guallerto v. M:mduque Mnilg Industrial
G.RNo.1snoo.March7,2007.
Coiporation, C. A.-G.R No. 52753-R. June 28, 1978.
I._
MANAGEMENT PREROGATIVES
afforded all women workers by our labor laws and by no less than the
married a co-employee. Petitioners failed to show how the marriage of
Constitution. 1
Simbol, then a Sheeting Machine Operator; to Alma Dayrit, then an
In a case decided by the Office of the President/ Zialcita v. Philippine
employee of the Repacking Section, could be detrimental to its business
Airlines, Inc} the stipulation in the contract between PAL and the flight
operations. Neither did petitioners explain how this detriment will happen
employee marries a co-employee, but they are free to marry persons other
The employees in Star Paper Corp. v. Simbol,4 were terminated on
than co-employees. The questioned policy may not facially violate Article
various occasions, on the basis of the following company policy, viz.:
134 [136] of the Labor Code but it creates a disproportionate effect and
"I. New applicants will not be allowed to be hired if in case he/she
has under the disparate impact theory, the only way it
could pass judicial
[a] relative, up to (the] 3'd degree of relationship, already
employed scrutiny is a showing that it is reasonable despite
the discriminatory, albeit
by the company.
disproportionate, effect The failure of petitioners to pmve a legitimate
"2. In ca~e two of our employees (both singles [sic], one male and
busintss concern in imposing the questioned policy cannot prejudice the
another fem3le) developt:d a friendly relationship during the
course employee's right to be free from arbitrary
discrimination based upon
of their employment and then decided to get married, one of them
stereotypes of married persons working together in one company."
should resign to preserve the policy stated above."
According to the employer, said rule is only intended to carry out its
G.
no-employment-for-relatives-within-the-third-degree-policy which is within the
POST-EMPLOYMENT BAN
ambit of the prerogatives of management. The Supreme Court, however,
disagreed. It ruled that said policy failed to comply with the standard of
1. RIGHT TO IMPOSE POST-EMPLOYMENT PROillBITIONS.
reasonableness which is being followed in our jurisdiction. The cases of Duncan
The employer, in the exercise of its prerogative, may insist on an
[supra] and PT&T[supra] instruct that the requirement of reasonableness must be
agreement with the employee for certain prohibitions to take effect after the
clearly established to uphold the questioned employment policy. The einployer
termination of their employer-employee relationship.
has the burden to prove the existence of a reasonable business necessity. The
The following stipulations in an employment contract are illustrative of
burden was successfully discharged in Duncan but not in PT&T. The High
the prohibitions normally agreed upon by the employer and the employee:
Court similarly did not find a reasonable business necessity in the case at
bar. Thus, it pronounced:
1) Non-Compete Clause;
I.
"It is significant to note that in the case at bar,
respondents were hired
after they were found fit for the job, but were asked to resign
when they NON-COMPETE CLAUSE
1. FREEDOM TO CONTRACT.
I GJalbErtl V. Mlilduque t/ili1g &kldls1Jial Corpofalion, supra.
The employer and the employee are free to stipulate in an employment
2
3
4
At the time when an appeal to lite Office of the President was stin the rule.
Case No. R04-3-398-76, Feb. 20, 1977.
GR No. 164n4, April12, 2006.
L contract prohibiting the employee within a certain period from and after the
I CHAmRV
MANAGEMENT PREROGATIVES
401
l 3. ILLUSTRATIVE CASE.
The most significant case that would broadly describe the historical
imposed was much greater than what was necessary to afford respondent a fair
l) Dai-Chi Electronics Manufacturing Corporation v.
Hon.
company was an accepted practice in the pre-need industry. Since the products
2) Portillo v. RudolfLietz, Inc. 10
sold by the companies were more or less the same, there was nothing peculiar or
G.R No.163512,Feb.28,2007.
'\'
i&L
stipulation as legal. reasonable. and not contrary to public policy. In the said
employment for two years was valid and enforceable considering the nature of
case, the employee was restricted from opening, owning or having any
respondent's business.
connection with any other drugstore within a radius of four miles from the
In affirming the validity of the Non-Involvement Clause, the Supreme
employer's place of business during the time the employer was operating his
Court ratiocinated as follows:
drugstore. We said that a contract in restraint of trade is valid provided there
"Petitioner avers that the non-involvement clause is offensive to
public is a limitation upon either time or place and the restraint
upon one party is
policy since the restraint imposed is much greater than what is necessary
to not greater than the protection the other party requires.
3
afford respondent a fair and reasonable protection. She adds that since
the "Finally, in Consulta v. Court cf Appeals, we
considered a !!Q!\:
products sold in the pre-need industry are more or less the same, the
transfer involvement clause in accordance with Article 1306 of the
Civil Code.
to a rival company is acceptabie. Petitioner also points out that
respondent While the complainant in that case was an independent
agent and not an
did not invest in her training or improvement. At the time she joined
employee, she was prohibited for one year from engaging directly or
respondent, she aln:ady had ti-Je knowledge and expertise required in the
pre- indirectly in activities of other companies that compete with
the business of
need industry. Finally, petitioner argues that a strict application of
the non- her principal. We noted therein that the restriction did
not prohibit the agent
involvement clause would deprive her of the right to engage in the only
work from engaging in any other business. or from being
connected with any other
she knows.
company. for as long as the business or company did not compete with the
"Respondent counters that the validity of a non-involvement clause
has principal's business. Further, the Q_rohibition applied
only for one year after
been sustained by the Supreme Court in a long line of cases. It contends
that the termination of the agent's contract and was therefore a
reasonable
the inclusion of the two-year non-involvement clause in petitioner's
contract restriction designed to prevent acts prejudicial to
the employer.
of employment was reasonable and needed since her job gave her access to
"Conformably then with the aforementioned pronouncements, a
the company's confidential marketing strategies. Respondent adds that the
non-involvement clause is not necessarily void for being in restraint of
non-involvement clause merely enjoined her from engaging in pre-need
trade as long as there are reasonable limitations as to time. trade, and
business akin to respondent's within two years from petitioner's
separation place.
from respondent. She had not been prohibited from marketing other
service "In this case, the non-in,·olvement clause
has a time limit: two years
plans.
from the time petitioner's employment with respondent ends. It is also
"As early as 1916, we already had the occasion to discuss the
validity of limited as to trade, since it only prohibits
petitioner from engaging in
a non-involvement clause. In Fmazzini v. Gsel~ we said that -such clause
1
any pre-need business akin to respondent's.
was unreasonable restraint Of trade and thereftlre against pubiic
policy. In "More significantly, since petitioner was the
Senior Assistant Vice-
Fmazzini, the employee was prohibited from engaging in any business or
President and Territorial Operations Head in charge of respondent's
occupation in the Philippines for a period of five years after the
tennination Hongkong and Asean operations, she had been privy
to confidential and
of his employment contract and must first get the written permission of
his highly sensitive marketing strategies of respondent's
business. To allow her
employer if he were to do so. The Court ruled that wJllle the
stipulation was to engage in a rival business soon after she
leaves would make respondent's
indeed limited as to time and space. it was not limited as to trade.
Such trade secrets vulnerable especially in a highly
competitive marketing
prohibition. in effect forces an employee to leave the Philippines to
work environment. In sum, we find the non-involvement
clause not contrary
should his employer refuse to give a written pennission.
AlfooOO del casfil1ov. stmnon Rictm:lnd, GR No. 21127, Feb. iJ, 1924.
Raquel P. Consulta v. CA. PamMa Pl1ilipjli1es, Inc., (3.R No. 145443. McJ"ch 18,
2005.
1 Anserno Fenazzili v. Ccrios Gsell, GR No. 10712, Aug. 10, 1916.
·ri~~
L,c.
'fV;)
CHAcPTERV
V/\.t\.E\.C.YII::YVtK.UN LAHUK lAW
MANAGEMENT PREROGATIVES
to public welfare and not greater than is necessary to afford a fair and
distributor, merchandiser, or advertiser of the employer for the purpose of
reasonable protection to respondent
offering to that person or entity goods or services which are of the same type as
"In any event, Article 1306 of the Civil Code provides that parties
to a or similar to any goods or services supplied by the employer at
termination.
contract may establish such stipulations, clauses, terms and conditions as
they may deem convenient, provided they are not contrary to law, morals,
3. NON-RECRUITMENT OR ANTI-PIRACY CLAUSE.
good customs, public order, or public policy.
This clause prohibits the recruitment by the employee of personnel or
"Article 1159 of the same Code also provides that obligations arising
employees of the employer for a certain period after his termination of
from contracts have the force of law between the contracting parties and
employment, either on his own account or in conjunction with or on behalf of
should be complied with in good faith.. Courts cannot stipulate for the
parties nor amend their agreement where the same does not contravene law,
any other person.
morals, good customs, public order or public policy, for to do so would be
to 4. INVENTIONS ASSIGNMENT CLAUSE (INTELLECTUAL
alter the real intent of the parties, and would run contrary to the
function of
PROPERTY CLAUSE).
the courts to give force and effect thereto. Not being contrary to public
policy, the non-involvement clause, which petitioner and respondent freely
In industries engaged in research and development and related
agreed upon, has the force of law between them, and thus, should be
activities, this clause requires the employee, within a certain period, to disclose
complied with in good faith.
in confidence to the employer and its subsidiaries and to assign all inventions,
"Thus, as held by the trial court and the Court of Appeals,
petitioner is improvements, designs, original works of authorship,
formulas, processes,
bound to pay respondent PI 00,000 as liquidated damages. While we have
compositions of matter, computer software programs, databases, mask works
equitably reduced liquidated damages in certain cases, we cannot do so in
and trade secrets, whether or not patentable, copyrightable or protectible as trade
this case, since it appears that even from the start, petitioner had not
shown secrets (coilectively, the "Inventions"), which the employee
may solely or
the least intention to fulfill the non-involvement clause in good faith."
1 jointly conceive or develop or reduce to practice, or cause to be
conceived or
developed or reduced to practice, during the period of his employment with the
II.
employer.
OTHER POST-EMPLOYMENT PROHIBITIONS
jill
.L,,
406
LHAffiRVI "tV/
with an income of at least Pl,OOO a month and not over 60 years old, should
register with the SSS. Included, but not limited to, are the following self-
I.
employed persons:
SOCIAL WELFARE LEGISLATION
a. Self-employed professionals;
~ under Sedioo B(s), RA No. 8282 as folows: 'SeiJ.errllloYe - Alrj person lll1ose
i1cane is rot detM!d fulm
person shall take effect upon his registration with the SSS or upon
applicable to covered employees shall also be applicable to the covered self-
payment of the frrst valid contribution, in case of initial coverage.
employed persons. 1
A self-employed person shall be both employee and employer at the
For voluntary coverage:
coverage.
4. VOLUNTARY COVERAGE.
2) For a non-working spouse- upon first payment of contribution.
1. Separated Members
3) For a separated member- on the month he/she resumed payment
of contribution?
A member who is separated from employment or ceased to be self-
employed!OFW/non-working spouse and would like to continue
6. EFFECT OF SEPARATION FROM EMPLOYMENT.
contributing. 3
When an employee under compulsory coverage is separated from
2. Overseas Filipino Workers (OFWs)
employment, his employer's contribution "'n his account and his obligation to
pay contributions arising from that employment shall cease at the end of the
A Filipino recruited in the Philippines by a foreign-based
employer month of separation, but said employee shall be
credited with all contributions
for employment abroad or one who legitimately entered a foreign
paid on his behalf and entitled to benefits according to the provisions of this
Act.
country (i.e., tourist, student) and is eventually employed. 4
He may, however, continue to pay the total contributions to maintai.'l his right to
4
3. Non-working spouses ofSSS members
full benefit.
A person legaliy married to a currently employed and actively
7. EFFECT OF INTERRUPTION OF BUSINESS OR PROFESSIONAL
paying SSS member who devotes fuJI time in the management of
INCOME.
household and family affairs may be covered on a voluntary basis,
If the self-employed realizes NO income in any given month, he shall
provided there is the approval of the working spouse. The person
not be required to pay contributions for that month. He may, however, be
should never have been a member of the SSS. The contributions
allowed to continue paying contributions under the same rules and regulations
will be based on 50 percent (50%) of the working spouse's last
applicable to a separated employee member.
5
posted monthly salary credit but in no case shall it be lower than
Pl,000.5
2.
1 llid.
1 ld.
2 Sectioo B(c) ll1d (d), RA No. 8282.
2 SSS 'MJbslle at htlps1/w.lw.sss.gcw.phlsssfndex2jsp?sedd=114&cat=2&p;j=nuU,
L.astaa:essed: ~ 20, 2014.
3 SSSwebsile at htlps111w.w.sssp.p1Vss&'ildex2j;p?secid=113&:at=2&pg=nul, Last
accessed:~ 20,2014. 3 SSSwebsMe at htlps1/w.lw.sss~cw.phlsssfndex2.jsp?
secid=113&cat=2&pg=nuR, Lastaa:essed: May 20, 2014.
4 ld
4 Section 11, RA No. 8282.
5 ld.
5 Section 11-A, RA No. 8282.
6 SSSwebslte at hUps1JwN.v.sss.gcw.ph/sssmldex2j;p?secid=114&cal=2&pg=ooll, Last
accessed:~ 20, 2014. 6 Sedion8(c), RA No. 8282.
Sectioo 10, RA No. 8282;
(1) Employment purely casual and not for the purpose of occupation or
2. SECONDARY BENEFICIARIES.
business of the employer;
The following are secondary beneficiaries:
(2) Service performed on or in connection with an alien vessel by an
1. SICKNESS BENEFIT.'
3.
DEPENDENTS, BENEFICIARIES
• What is the sickness benefit?
1. PRIMARY BENEFICIARIES.
The sickness benefit is a daily cash allowance paid for the number of
1 The discussklo 1hilt fullaNs is based on tre ilfonnatiJn iftEd from the SSS
websi1e at hllpst/ol.wN.sss.gov.ph/ (Last
1
accessed: Mly 30, 2014).
Sedion8(j),RA.No.8282.
sickness benefit?
ninety percent (90%) of the member's average daily salary credit.
confined in a hospital?
a) The semester of sickness would be from July 2004 to December
For hospital confinement, the claim for benefit must be ftled within one
2004.
(1) year from the last day of confinement from the hospital. For home
b) The 12-month period would be from July 2003 to June 2004
confmement, the claim for reimbursement by the employer must be ftled within
within which the six highest monthly salary credits will be
one (1} year from the start of illness. Failure to file the claim within the
chosen.
CHAPTER VI 415
3. Identify the six highest monthly salary credits within the 12-month
1. She has paid at least three (3) monthly contributions within the 12-
period.
month period immediately preceding the semester of her childbirth
"Monthly salary credit" means the compensation base for
or miscarriage.
contributions benefits related to the total earnings for the month.
2.. She has given the required notification of her pregnancy through her
4. Add the six highest monthly salary credits to get the total monthly
employer if employed, or to the SSS if separated, voluntary or self-
salary credit.
employed member.2
5. Divide the total monthly salary credit by 180 days to get the average
Maternity benelfits, like other benefits granted by the SSS, are granted to
a) The semester of contingency would be fi·om July 2004 to
employees in lieu of wages and therefore may not be included in computing the
December 2004
employee's 13111 month pay for the calendaryear.4
b) The 12-month period before the semester of contingency would
e) The total maternity benefit due would be P30, 000 (P500 x 60·
• How much is the maternity benefit?
days) for normal delivery or P39,000 (PSOO x 78) for caesarian
The maternity benefit is equivalent to 100 percent of the member's
cases.
average daily salary credit multiplied by 60 days for normal delivery or
• How many deliveries are covered under existing laws?
miscarriage, 78 days for caesarean section delivery.
The maternity benefit shall be paid only for the first four (4) deliveries
• How is the maternity benefit computed?
or miscarriages starting May 24, 1997 when the Social Security Act of 1997
I. Exclude the semester of contingency (delivery or miscarriage).
(R.A. No. 8282) took effect
• Can a member apply for sickness benefit if she has been paid the
1 The disaJSSioo M fol7,w is based oo l1e i1bmafioo ifted fran lle SSS 'Mlbsile at
htlps:/ftMw.sss.gov.phl (last mmernity benefit?
occessed: ~ 30, 2014).
2 See also No. XI, DOLE Handbook on WorKer.; Staluby M:lnelary Benefit.
No. A female member cannot claim for sickness benefit for a period of
3 ld.
60 days for normal delivery or miscarriage or 78 days for caesarean delivery
4 ld.
within which she has been paid the maternity benefit. As a rule, no member can
2. A member who is 65 years old whether employed or not and has
be entitled to two benefits for the same period.
paid at least 120 monthly contributions prior to the semester of
retirement.
• Is it necessary to notify the S~S of a member's pregnancy?
·Yes. As soon as a member becomes pregnant, she must immediately
For Underground Mineworkers:
notify her employer (if employed) or the SSS (if separated/voluntary/self-
1. Has reached the age of SS years old and is an underground
employed) of such pregnancy and the probable date of her childbirth at least 60
mineworker for at least S years (either continuous or accumulated)
days from the date of conception by accomplishing SSS FORM MAT-1
prior to the semester of retirement but whose actual date of
(Maternity Notification Form) and by submitting proof of pregnancy.
retirement is not earlier than March 13, 1998; separated from
The employer must, in tum, notify the SSS through the submission of
employment or in the case of self-employed, has ceased self-
the maternity notification form and proof of pregnancy immediately after the
employment, and has paid at least 120 monthly contributions prior
receipt of the notification from the employee member. Failure to observe the
to the semestt:r of retirement.
rule on notification may result to the denial ofthe maternity claim.
2. Has reached the age of 60 years old whether employed or not.
• How would the claimant be paid the matemity benefit?
• What are the types of retirement beneftts?
(I) For employed members - the benefit is advanced by the
Tney are:
employer to the qualified employee, in full, within 30 days from
the date of filing of ihe maternity leave application. The SSS, in
1. the monthly pension, and
tum, shall immediately reimburse the employer l 00 percent of
2. the lump sum amount.
the amount of maternity benefit advanced to the female
has paid at least 120 monthly contributions to the SSS prior to the semester of
legality thereof. If the employee member gives birth or suffers
retirement.
miscarriage without the required contributions having been
remitted by the employer, or the employer fails to notify the
The lump sum amount is granted to a retiree who has !Q! paid the
SSS, the employer will be required to pay to the SSS damages
required 120 monthly contributions. It is equal to the total contributions paid by
equivalent to the benefits the employee would otherwise have
the member and by the employer including interest.
been entitled to.
minor children but not to exceed five. The amount of monthly pension will be
• What is the retirement beneftt?
the highest of:
It is a cash benefit either in monthly pension or lump sum paid to a
member who can no longer work due to old age.
1. the sum of P300 plus 20 percent of the average monthly salary
credit plus 2 per cent of the average monthly salary credit for each
• Who may quaUfy for a retirement benefit?
accredited year of service (CYS) in excess often years; or
1. A member who is 60 years old, separated form employment or
2. 40 per cent of the average monthly salary credit; or
ceased to be self-employed, and has paid at least 120 monthly
contributions prior to the semester of retirement.
3. Pl,200, provided that the credited years of service (CYS) is at least
419
A retiree has the option to receive the first 18 monthly pension in lump
contributions. The counting of 120 monthly contributions shall start in 1972,
sum discounted at a preferential rate of interest to be determined by the SSS.
when the Medical Care Act of 1969 started implementation.
The option should be exercised upon filing of the first retirement claim. Only
• Are the children of a retiree member entitled to the dependent's
advance payments shall be discounted on the date of the payment. The
pension?
dependents' pension and 13th month pensions are excluded from the 18 months
The legitimate, legitimated. or legally adopted and illegitimate children.
lump sum pension.
conceive on or before the date of retirement of a retiree Will each receive
The member will receive the monthly pension on the 19th month and
dependents' pension equivalent to 10 percent of the member's monthly pension
every month thereafter.
or P250, whichever is higher.
Only five minor children, beginning from the youngest, are entitled to
• What happens when the retirement pensioner resumes
the dependents' pension. No substitution is allowed.
employment?
If there are more than five dependents, the legitimate, legitimated or
The monthly pension shall be suspended upon the re-employment or
legally adopted children shall be preferred.
resumption of self-employed of a retired member who is less than 65 years old.
• For how long will the dependent child receive his pension?
The member shall again be subjected to compulsory coverage. At 65 year old
The dependents' pension stops when the child reaches 21 years old,
whether employed or not, he can already claim for retirement benefit.
gets married, gets employed or dies. However, the dependents' pension is
granted for life for children who are over 21 years old, provided they are
• How much is the monthly pension of a member who retires after
, The disa.tssioo t1at ftho,s is based 00 lhe ilformalion ifled from lhe sss
websile ci ~.sss.gov.ph/ (Last
1 lhlslawisolherwiseknoMI as lhe'Naoonal HeaUh lnsu~"MCeAd.of1995."
accessed: May 30, 2014).
\..HAl'ltK VI 421
420 BAR REviEWER ON lABOR lAW
SOCIAL WELFARE LEGISLATION
The lowest monthly pension is P1,000 for members with less than 10
• Wh() is qualifred for disability benefit under the new program?
credit years of service (CYS); Pl,200 with at least 10 CYS and P2,400 with at
A member who suffers partial or total disability with at least one (1)
least 20 CYS.
monthly contribution paid to the SSS prior to the semester of contingency is
qualified.
annual physical examination when notified by the SSS. The member may
occupation.
request for a domiciliary or a home visit if the disability inhibits the member
one thumb one big toe
one hand
from reporting for re-examination by the SSS physician at any of SSS branch
one index finger
one middle finger one arm
offices.
one ring fmger one foot
one little fmger one leg
The monthly pension of a partially disabled member is paid up to a
hearing of one ear one ear
certain number of months only according to the degree of disability. If with
hearir.g of both ears both ears
deteriorating and related permanent partial disability, the percentage degree of
sight of one eye
disability of previously granted claim shall be deducted from the percentage
pensioner receive?
The monthly pension is a cash benefit paid to a disabled member who
has paid at least 36 monthly contributiQ!!§ to the SSS prior to the semester of
In addition to the monthly pension, a sup_plemental allowance of
P500.00 is paid to the total or partial disability pensioner. The allowance will
disability.
provide additional fmancial assistance to meet the extra needs arising from the
The lump sum amount is granted to those who have not paid the
disability.
required 36 monthly contributions.
CHAPTER VI
423
7&75 on March 4, 1995 and thereafter, are no longer covered except when they
have accumulated one hundred twenty (120) Medicare monthly contributions
If the totally disabled pensioner has no primary beneficiaries and dies
and have reached age sixty (60).
However, those who wish to avail ofPhilHealth benefits may enroll in
I
within sixty (60) months from the start of the monthly pension, the secondary
They are:
The minor children of a partially disabled pensioner are not entitled to
the dependent's pension.
l} the monthly pension; and
death.
granted for life to children who are over 21 years old, provided, they are
incapacitated and incapable of self-support due· to physical or mental defect
The lump sum is the amount granted to the primary beneficiaries of a
which is congenital or acquired during minority.
deceased member who had paid less than 36 monthly contributions before the
• What will happen to the monthly pension in case the pensioner gets
semester of death. The secondary beneficiaries shall be entitled to a lump sum
benefit.
re-employed, resumes self-employment, r.ecovers from his
permanent total disability or his failure to present himself/herself
• How much is the monthly pension?
for examination upon notice by SSS?
The monthly pension depends on the member's paid contributions,
The monthly pension of the member and the dependent's pension will
including the credited years of service (CYS) and the number of dependent
The diialSSion that ftlllaNs is based on 11e ilfllnmlion lifted from lhe SSS
website at hHps:/Aw.w.sss.gov.ph/ (last
·n···m·tt
• If the deceased member has not paid any single contribution, are
member, who had no contribution payment at all and who was reported for
basic pension.
Only five (5) minor children, beginning from the youngest, are entitled
The secondary beneficiaries of the deceased member shall be entitled
to the dependents' pension. No substitution is allowed.
to a lump sum benefit equivalent to:
Where there are more than five (5) legitimate and illegitimate minor
a. 36 times the monthly pension; if the member has paid at least 36
children, the legitimate shall be preferred.
monthly -contributions prior to the semester of death; or
b. monthly pension times the number of monthly contributions paid or
• For how long will the dependent child receive his pension?
twelve (12) times the monthly pension, whichever is higher, if the
The dependents' pension stops when the child reaches 21 years old,
member has paid less than 36 monthly contributions prior to the
gets married, gets employed or dies. However, the dependents' pension is
semester of death.
granted for life to children who are over 21 .years old, provided they are
• Is there anything else a deceased member's benefiCiaries can avail
incapacitated and incapable of self-support due to physical or mental defect
of?
which is congenital and acquired during minority.
Yes, the deceased member's beneficiaries are entitled to a l31h month
• What is the funeral benefit?
pension payable every December and the funeral benefit, which is paid to
The funeral benefit is a variable amount ranging from a minimum of
whoever, shouldered the funeral expenses of the deceased member.
P20,000 to a maximum of P40,000, depending on the member's paid
4.2.
compulsorily covered, provided they are receiving fixed monthly
EMPLOYEES' COMPENSATION BENEFITS
compensation and rendering the required number of working hours
I 2. CLASSES OF MEMBERSHIP.
4
b) Appointive officials who, before reaching the mandatory age of 65,
under this Act.
are appointed to government position by the President of the
Republic of the Philippines and shall remain in government service
3. EFFECTMTY OF MEMBERSIDP.
at age beyond 65. 4
The effective date of membership shall be the date of the member's
5
c) Contractual employees including casuals and other employees
assumption to duty on his original appointment or election to public office.
with an employee-government agency relationship are also
L_
.
"' -~--
(a) The legitimate spouse dependent for support upon the member or
4. EFFECT OF SEPARATION FROM THE SERVICE.
pensioner;
A member separated from the service shall continue to be a member,
(b) The legitimate, legitimated, legally adopted child, including the
and shall be entitled to whatever benefits he has qualified to in the event of any
illegitimate child, who is unmarried, not gainfully employed, not
contingency compensable under the GSIS Law. 1
over the age of majority, or is over the age of majority but
government employees.
(a) Uniformed personnel of the Atmed Forces of the Philippines
4.
(AFP), Philippine National Police (PNP), Bureau of Fire Protection
BENEFITS
(BFP) and Bureau of Jail Management and Penology (BJMP); 3
(b) Barangay and Sanggunian Officials who are not receiving fixed
1. KINDS OF BENEFITS.
monthly compensation; 4
The following arc the benefits under the GSIS Law:
(c) Contractu!!! Employees who are not receiving fixed monthly
compensation;5 and
(a) Compulsory Life Insurance Benefits under the Life Endowment
(d) Employees who do not have monthly regular hours of work and
Policy (LEP)
a..re not receiving fixed monthly compensation. 6
(b) Compulsory Life Insurance Benefits under the Enhanced Life
Policy (ELP)
3.
(c) Retirement Benefits
DEPENDENTS, BENEFICIARIES
(d) Separation Benefit
(e) Unemployment Benefit
1. BENEFICIARIES.
(t) Disabiiity Benefits
There ru:e two (2) kinds of beneficiaries under the GSIS Law as
(g) Survivorship Benefits
follows:
(h) Funeral Benefits
as a case ofPTD.
Section 3., Rule II, llid.
3 Section3.1.1.,Rulell, llid.
4 Section 3.12., Rule II, Ibid.
s Section 3.1.3., Rule II, llid.
......_
2
6 Section 3.1.4., Rule II, Ibid.
7 Section 2(g), RA No. 8291.
. -
1
4. RETIREMENT BENEFITS.
c) Death Benefit, which is the face value of the policy payable to
designated beneficiary/beneficiaries or legal heirs, in the absence
of The retirement benefit consists of a monthly pension which
is
the former, upon the death of a member,
computed based on years of creditable service and Average Monthly
d) Accidental Death Benefit (ADB) is an additional benefit equivalent
Compensation (AMC) for the last 3 years.
to the amount of Death Benefit when the member dies by accident.
a. Eligibility.
In this connection, proof must be presented to sufficiently
establish
The member:
that the cause of the member's death is accidental.
e) The right to present sufficient proof to show that death was
1) has rendered at least Fifteen (15) years of service;
accidental shall prescribe if the claim for ADB is filed four (4)
years 2) is at least Sixty (60) years of age; and
after the death of the member.
3) is not receiving a monthly pension benefit from permanent total
f) Cash Dividend. A policyholder is entitled to dividends subject to
the disability.1
guidelines as approved by the GSIS Board. This is not a guaranteed
b. Retirement Benefit Options.
benefit. 1
A retiring member has the following options:
3. COMPULSORY LIFE INSURANCE BENEFITS UNDER THE
(1) Five (5) year lump sum equivalent to sixty (60) months of the basic
ENHANCED LIFE POLICY (ELP).1
monthly pension (BMP), subject to qualification requirements, less all
A member under this policy may be entitled to any of the fallowing
outstanding obligations of the member ir1 accordance with the Claims and Loans
benefits, depending on the circumstances:
Interdependency Policy (CLIP), plus an old-age pension benefit equal to the
BMP payable for life, starting on the first day of the month following the
l. Death Benefit equivalent to the latest annual salary multiplied by
expiration of the five year guaranteed period; or
amount of insurance (AOI) factor which is 1.5 or 18 times the
(2) A cash payment benefit equivalent to eighteen (18) times of the
current monthly salary of the member or as determined by the
BMP, subject to qualification requirements, less all outstanding obligations of
GSIS, payable to the legal heirs, less all outstanding obligations
of the member in accordance with the CLIP, plus monthly pension for
life payable
3
the member in accordance with the CLIP.
on the first month following the date ofretirement.
2. Termination Value. The policy earns a Termination Value during
4
• 'The accumulated termination value will grow at such rate as
subject to eligibility.
determined by the Actuary.
d. Change of retirement benefit option under RA 8291.
• The termination value shall be paid to the member upon his
Change of retirement benefit option from eighteen (18) months cash
separation from the government service less all indebtedness of
payment plus immediate pension to five (5) year lump sum, or vice versa, shall
the member with the GSIS in accordance with CLIP.
not be allowed. The GSIS shall process the claim for retirement benefits based
3. Cash Dividend. A policyholder is entitled to dividends, subject to
on the member's records in the GSIS database.s ·
the guidelines as approved by the GSIS Board. This is not a .
guaranteed benefit. 3
1.__
. .
the retiree re-entered government service before June 24, 1997; and (b) the total
For those qualified for retirement benefits:
2
2. If the deceased member opted for immediate pension as indicated in
using forty-hour week and fifty two-week a year as basis.
his/her claim for retirement benefit his legal heirs shall be
entitled to
3
primary beneficiaries, if any, and shall be computed from the date
with the required premium contributions.
of death of the retiree, subject to filing of claim.
The AMC shall be computed on the basis of the average salary of the
option, it shall be computed as if he/she opted for immediate
member for the last 36 months of creditable service immediately preceding his
pension.
retirement or separation.
4. The proceeds of retirement benefits shall be paid and distributed
to The basis for computing the AMC of a separated or retired member
the legal heirs in accordance with the law on succession under the
5
laws administered by the GSIS.
AMC plus Seven Hundred Pesos (P700.00).
f. Effects of re-employment.
k. Computation of Basic Monthly Pension.
When a retired/separated member is re-employed or reinstated in the
The formula for computing the BMP may be adjusted subject to the
service, his/her previous services credited at the time of his/her
approval of the Board upon the recommendation by the President and General
retirement/separation for which a corresponding benefit had been awarded, shall
Manager.
be excluded in the computation of service. In effect, he/she shall be considered a
As a general rule, the B:MP shall only be computed for those members
new entrant.
OAKKI:VItWtKUN IAHUKIAW
CHAPTER VI 4~:>
'IS'l
law. It shall be computed on the basis of a percentage of the RAMC at the rate
on their basic monthly salary (premium-based) when they ceased to be members
1
of 2.5% for every year of creditable service, but in no case shall it exceed 90%
of the GSIS.
of the AMC of the member. The formula for computing BMP shall be: BMP =
(4) Processing of separation benefit of members who died while their
RAMC X (2.5% X RCSi
5
least 3 years of service but less than I5 years shall be entitled to cash payment
least one (1) year but less than 15 years prior to separation.
equivalent to 100% of the member's AMC for each year of creditable service,
but not less than PI2,000.00, payable upon reaching age 60, or upon his
The amount of unemployment benefit is equivalent to 50% of the AMC 6
separation if he is already 60 years of age at the time of separation.5
and shall be paid in accordance with the Schedule in the Implementing Rules.
(2) A cash payment equivalent to eighteen (18) times the basic monthly
7
7. DISABILITY BENEFITS.
pension payable at the time of resignation or separation, provided the member
resigns or separates from the service after he has rendered at least I5 years of
a. Meaning.
service and is below 60 years of age, plus an old-age pension benefit equal to the
Disability refers to any loss or impairment of the normal functions of
basic monthly pension payable monthly for life upon reaching the age of60.6
the physical and/or mental faculties of a member, which permanently or
(3) Reckoning Date of Separation of Uniformed PNP, BJMP and BFP
Personnel shall be February I, 1996. The computation of benefit shall be based
, Sedioo21.3., Rule IV, IJi!.
t Sedioo 20.11., RiJie IV, Ibid.
2 Sedioo 21.4.1., RUe IV, bid.
2 Sedia120.12., Rule IV, Ibid.
3 Section 21.42., Rule IV, Ibid.
3 Sections 20.13.1. tl20.13.3., Rule IV, Ibid.
4 Section 22, Rule IV, lbi:!.
4 Sedioo 21, Rule IV, Ibid.
s Sections 22.1.1. t>22.1.3., Rule IV, lbKI.
s Sedioo 21.1., Rule IV, Ibid.
6 Sedioo 222., Rule IV, Ibid.
6 Sedioo 212., Rule IV, Ibid.
7 Sedioo 23, Rule IV, Ibid.
temporarily prevents him to continue with his work or engage in any other
their normal functions, but such disability shall result in temporary incapacity to
gainful occupation resulting in the loss of income. 1
work or to engage in any gainful occupation. 1
b. Basis of reckoning.
e. Disability or injury not covered.
The corresponding disability benefits for each kind of disability shall
Any disability or injury as a result o~ or due to grave misconduct,
be granted to a member based on the duration of incapacity to work and
participation in riots, gross and inexcusable negligence. under the influence of
actual loss of income. 2
drugs or alcohol or willful intention to injure or kill himself or another, shall
not
be compensable.2
c. Kinds of disability.
f. Actual loss of income.
There are three (3) kinds of disability which shall be determined by the
The actual loss of income shall refer to the number of days when a
GSIS based on established medical standards:
member went on leave of absence without pay (LWOP) reckoned immediately
from the date of commencement of disability and for the duration of entitlement
• Permanent Total Disability
thereto, based on medical evaluation. Any LWOP incurred after the duration of
• Permanent Partial Disability
entitlement to the benefit shall not be compensable.3
• Temporary Total Disabilitl
permanently and totally disabled shall be entitled to the monthly income benefits
3. Temporary Total Disability OJDl- accrues or arises when the
impaired physical and/or mental faculties can be rehabilitated and/or restored to
LtiAI'ItR VI 4::SIJ
438 BAR REVIEWER ON lABOR lAW
SOCiAl WELFARE LEGISLATION
disability;
2. Permanent Partial Disability (PPD).- The period of entitlement to
becomes permanently and totally disabled but has not paid a total of at least one
exreed a total of 240 days.
CHAPTER VI 441
3
Sdx\23.41, Rl*! IV, Ibid.
Section 24 .1.1., Rll.e IV, llid.
Sedioo23.4.3.1, Rule r-J, lbkl.
~ Section 24.12., Rule IV, llid.
3 w,
SecOOn 23.4.32., rue Ibid.
5
....
-.,. --~,
443
the cash payment equivalent to 100% of the AMC for every year of creditable
incapacitated dependent children, . must file a Petition for
service. 1
Guardianship to be able to claim the survivorship benefits on behalf
6. When the pensioner dies within the 5-year period after receiving the
Primary beneficiaries of inactive members who have at least 15 years
five-year lump sum, the survivorship pension shall be paid only
of creditable service shall receive the survivorship pension only.
after the end of the said five-year period. However, filing of claim
1) Primary beneficiaries of inactive members who have at least 3
years for survivorship benefit should be done
before the end ofthe4-year
prescription period. 1
but less than IS years of creditable service and were less than 60
years old at the time of death shall receive the cash payment
e. Conditions for entitlement to survivorship benefits.
equivalent to 100% of the AMC for every year of creditable
service,
but not less than Pl2,000.00.
The primary and secondary beneficiaries, except dependent children,
2) Primary beneficiaries of inactive members who have less than 15
shall be entitled to applicable survivorship benefits, subject to the following:
years of creditable service but were at least 60 years old at the
time a) not engaged in any gainful occupation;
of separation and have received the corresponding separation
b) the surviving spouse and the deceased member were living together
benefit, shall not be entitled to survivorship benefits. However,
if a~ husband and wife;
the member has nat received yet his separation benefit within fom
c) not gainfully engaged in a business or economic activity (self-
years after his/her separation, the primary beneficiaries sha!\
receive employed);
the cash benefit equivalent to 100% of the inactive member's AMC
d) employed/engaged in a business or economic activity but receiving
for every year of creditable service, but not less than
P12,000.00. 2 income less than the minimum
compensation of government
employees.
d. Payment of survivorship beuefits.
c) not receiving any other pension from the GSIS or another local or
The survivorship benefits shall be paid as follows:
foreign institution or organization; and
1. When the dependent spouse is the only survivor, he shall receive
the f) In the case of the dependent spouse, payment of
the basic
basic survivorship pension;
survivorship pension shall discontinue when he remarries, cohabits,
2. When only the dependent children are the survivors, they shall be
or engages in common-law relationship.
entitled only to the dependent children's pension equivalent to
10% The foregoing conditions, except the last one, must be
present
of the BMP for every dependent child, not exceeding five {5),
immediately preceding the death of the member or pensioner.1
counted from the youngest and without substitution;
3. When the survivors are the dependent spouse and the dependent
9. FUNERAL BENEFITS.3
children, the dependent spouse shall receive the basic
survivorship a. Nature of benefit
pension for life or until he remarries or cohabits, and the
dependent
children shall receive the dependent children's pension.
Funeral benefit is intended to help defray the expenses incident to the
4. When the dependent spouse and dependent children are already
burial and funeral of the deceased member, pensioner or retiree under R.A. 660,
receiving the basic survivorship pension and dependent children's
R.A. 1616, P.D. 1146 and R.A. 8291.4
pension, respectively, any subsequent death, emancipation or
b. To whom payable.
disqualification of any one of them shall not entitle the other
beneficiaries to the forfeited share.
It is payable to any qualified individual, in accordance with the
5. In the absence of a natural guardian, the guardian de facto of
following order of priority:
dependent children, as well as the physically or mentally
1
Sedioo 25.1., Rule IV, Ibid. The taws mentioned illlis sedioo refertopre.oioos
lV11endataylaws kllle GSIS l..lWI.
·,"'
CHAPTER VI
445
sector to combine their years of service and contributions which have been
c. Amount offuneral benefit.
credited with the SSS or GSIS, as the case may be, to satisfy the required
The amount of funeral benefit are as follows:
number of years of service for entitlement to the benefits under the applicable
laws. 1 ·
1) The prevailing amount approved by the Board of Trustees at the
time of death of the member or pensioner.
c. Totalization, defined.
2) For uniformed members of the PNP, BJMP and BFP, the amount of
The term "totalization" refers to the process of adding up the periods
funeral benefit is fixed at P10,000.00. 2
.-. of creditable services or contributions under each of the Systems, SSS
or GSIS,
d. Portability, defined.
Funeral benefit shall be paid upon the death of:
On the other hand, the term "portability" refers to the transfer of funds
1) An active member; or
for the account and benefit of a worker who transfers from one system to the
2) A member who has been separated from the service with more t.1an
othl!r.3
15 years of creditable service, but entitled to future separation
or c. Applicability of limited
portabiHty scheme..
retirement benefits; or
3) Old age or disability pensioner; or
The benefits provided under R.A. No. 7699 apply to active or inactive
4) A retiree who at the time of his retirement is at least 60 years of
age members of either System (GSIS/SSS) as of the
date of its effectivity on May
and with at least 20 years of service but who opts to retire under
20, 1994. 4
R.A. 1616 on or after June 24, 1997; or
f. Coverage.
5) A member who retired under R.A. 1616 prior to June 24, 1997 with
R.A. No. 7699 and its implementing rules apply to all worker-members
at least twenty (20) years of service, regardless of age.3
of the GSIS and/or SSS who transfer from the public sector to the private sector
worker who transfers employment from one sector to another (i. e., from private
a. Declared policy is to establish a unitary social security system.
sector to public sector, or vice versa), or is employed in both sectors, shall have
It is the declared policy of the State to institute a scheme for
his creditable services or contributions in both Systems (GSIS and SSS) credited
totalization and portability of social security benefits with the view of
to his service or contribution record in each of the Systems and shall be
establishing within a reasonable period, a unitary social security system. 5
totalized for purposes of old-age, disability, survivorship and other benefits in
case the covered member does not qualify for such benefits iri either or both
t kt
1
2 Section 252., RlOO IV, Ibid.
R.A. No. 8282, for SSSmembers and R.A. No. 8291, forGSIS members.
2 Section 2, RA No. 7699; Section 1[e], Rule Ill, Rules en! Regulations
lrrcJiementing RA No. 7699.
• Section 25.3., Rule IV, Ibid.
4 RA No. 7699, ~ 'M Nl ~ Linited Patalility Scheme i1 tile Social 'Security
k1slm:e System by Totalizilg Set1ion 2, lbi:l.; Secliln 1,],
Rule Ill, Ibid.
11e WoOO!s' Creditltlle SeMces orCmlrilutions il Eoch of tile Systems' ~oo Mly
1, 1994. Set1ion 1, Rule VII, Rules en!
Regulations ~ Republic Jld. No. 7699.
5
5 Section 1, RA No. 7699.
Set1ion 1, Rule I, Ibid.
~\ ..,
CHAPT£RV1 447
time?
i. Totalization of contributions and benefits; how processed.
The tenn "eligibility" means that the worker has satisfied the
1. Contributions.
requirements for entitlement to the benefits provided for under R.A. No. 7699.3
All contributions paid by such member personally and those that were
3. Benefits.
paid by his employers to both Systems (GSIS &nd SSS) shall be considered in
the processing of benefits which he can claim from either or both Systems,
Ail services rendered or contributions paid by a member personally and
provided, however, that the amount of benefits to be paid by one System shall be
those that were paid by the employers to either System shall be considered in the
in proportion to the number of contributions actually remitted to that System. 3
computation of benefits which may be ciaimed from either or both Systems.
2) Disability benefit;
All creditable services or periods of contributions made continuously
3) Survivorship benefit;
or in the aggregate of a worker under either of the sectors shall be added up and
4) Sickness benefit;
considered for purposes of eligibility and computation of benefits. (Section I,
5) Medicare benefit, provided that the member shall claim said benefit
Rule V, Rules and Regulations Implementing Republic Act No. 7699).
from the System where he was last a member; and
The term "creditable services" insofar as the .public sector is
6) Such other benefits common to both Systems that may be availed of
concerned, refers to the following:
through totalization.5
4
~ SetOOn 2, Republic Act No. 7699; Section 1(a).lqJie Ill, RUes il1d Regu!aions
1111llemenling RA No. 7699. Sedioo 2, Ru:e V, Ibid.
EMPLOYEE'S COMPENSATION-
c) if a worker in the private sector is not qualified for any benefits
COVERAGE AND WHEN COMPENSABLE2
from the SSS.
1. BACKGROUND ON THE STATE INSURANCE J.?UND [SIF).
For purposes of computation of benefits, totalization applies in all
cases
so that the contributions made by the worker-member in both Systems shall
a. SIF created from contributions of employers.
provide maximum benefits which otherwise will not be available. In no case
The State Insurance Fund (SIF) is built up by the contributions of
shall the contribution be lost or forfeited. 1
employers based on the salaries of their employees as provided under the Labor
Gamogamo v. PNOC Shipping and Transport Corp.2 - Following
Code.
the concept of totalization, the High Court in this case pronounced that
b. Two (2) separate SIFs.
obviously, totalization of service credits is only resorted to when the retiree
does
not qualify for benefits in either or both of the Systems. In <:ase the employee is
There are two (2) separate and distinct State Insurance Funds: one
qualified to receive benefits granted by the GSIS or the SSS, as the case may be,
established under the SSS for private sector employees; and the other, under the
he cannot avail of the benefits under R.A. No. 7699.
GSIS for public sector employees. The management and investment of the
Funds arc done separately and distinctly by the SSS and the GSIS. It is used
k. Effect if worker is not qualified after totalization.
exclusively for payment of the employees' compensaticn benefits and no
If after totalizatioiL, the worker-member still does not qualify for any
amount thereof is authorized to be used for any other purpose.3
benefit as listed in tht: law/ the member will then get whatever benefits
c. Three (3) agencies involved in the implementation of tbe ECP.
correspond to his/her contributions in either or both Systems. 4
Government Service Insurance System (GSIS) and (3) the Social Security
m. Processes of totalization; joint responsibility of GSIS and SSS.
System (SSS), the administering agencies of the ECP.
The processes of totalization of creditable services or periods of
d. Role of the GSIS and SSS.
contributions and computation of benefits provided under R.A. No. 7699 are the
joint responsibility of the GSIS and the SSS. 6
Being administering agencies of the ECP, both the GSIS and SSS are
tasked to:
n. Effect of overlapping periods of creditable services.
generate earnings which will form part of the State Insurance Fund (SIF) from
1 Sedkx13, Rule V, Ibid.
which payments for employees' compensation claims are sourced.
G.R. No.141707, Wey7, 2002.
Section 1ffi, Rule Ill, Ibid.
4 Sedkx14, Rule V, Ibid.
5 Sedkx15, Rule V, Ibid.
1
lI
6 Sedkx16, Rule V, Ibid.
2 Releliantlegal p!UJisions: AIOCies 166to 208-A, Tille II, Book IV oflhe
Lm'Code.
7 Sedkx17, Rule V, Ibid.
3
-~~
. I
I
The law applies the social security principle in the handling of
The following sectors are·covered Under the ECP:
workmen's compensation. Towards this end, the Employees' Compensation
bytheGSIS;
and it has no contro~ as in the past, over payment {)f benefits. The open-ended
d. Nature of coverage.
The injured worker does not have to litigate his right to compensation.
The coverage is compulsory in nature. 1
There is no notice of injury or requirement of controversion. The sick worker is
simply required to file a claim with the ECC which determines, on the basis of
3. EMPLOYEES' COMPENSATION BENEFITS.
the employee's supporting papers and medical evidence, whether or not
The following are the benefits provided under the Labor Code:
compensation should be paid. The payment of benefits is more prompt ad the
a) Medical Benefits1
cost of administration is low.
b) Disability Benefits3
2 Articles 185 k1190, ChaplerV, Title II, Book IV, Labor Code.
4) Any employee who is coverable by both the GSIS and SSS and
3 Al1ides 19~ to 193, Chapter VI, Tille II, Book N, Ibid.
should be compulsorily covered by both Systems.2
~ Article 191, Ibid.
2
sickness, during the subsequent period of his disability, and as the progress of
medical attendance beyond 120 days, but not to exceed 240 days.
his recovery may require. 2 The obligation of the SIF to provide medical services
If the disability is the result of an injury or sickness, the period of
shall continue for as long as the employee is sick. This duty is not ended even if
compensability shall be counted from the first day of such injury or sickness.
employment was tenninated. 3
sickness, it should not be paid longer than 120 consecutive days except where
It is worthy to note that Article 191 [185] does not impose as a pre-
such injury or sickness still requires medical attention beyond 120 days but not
requisite for the grant of medical benefits, that the injured or sick employee
to exceed 240 days from the onset of the disability, in which case, benefit for
should show proof that he suffered loss of wages or earning capacity as a result
temporary total disability shall be paid. However, the System (GSIS/SSS) may
declare the total and permanent status at any time after 120 days of continuous
1 Section 1, Rule VIII, Amended Rules on Erqlbyees' ~·
2 Section 2, Rule VIII, Amended Rules on Efll>byees' ~.
Miele 185, L.alxr Code; Coolies v. ECC;G.R. No. L-44063. feb. 27' 1979, 88 SCRA
547.
I~~ I
3 Nllgon-Suycx: Mnes, klc. v.llulay, G.R. No. L-18974, Sept30, 1963.
all material acts necessary for the prosecution of a gainful occupation without
Compensation.3
disability compensation, it is not the injury per se which is compensated but the
to the System (GSIS/SSS) a monthly medical report on his disability certified by
incapacity to work. 6
his attending physician; otherwise, his benefit shall be suspended until such time
that he complies with this requirement. Further, he must also submit himself for
Disability is intimately related to one's earning capacity. The test to
examination upon being notified by the System (GSIS/SSS), at least once a
determine its gravity is the impainnent or loss of one's capacity to earn and not
year.4 .
its mere medical significance.
3.3. PERMANENT TOTAL DISABILITY.
a. Permanent disability, defmed.
"Permanent disability" is the inability of a worker to perform his job
1
GSISv. em, G.R No.154093, .hit 8, 2003; Tr<I"ISIIkrile Carriers, klc. v. Nl.RC, GR
No. 123891, feb. 28,2001,353
for more than 120 days, regardless of whether or not he loses the use of any part
SCRA 47; GSIS v. CA, GR No. 132648, Malch 4, 1999, 363 Phi. 585, 592.
ofhis body. 5
2
Mlimatav. ECC, G.R No. 91m, Feb.19, 1991,194 SCRA264; Medllav. ECC, GR No. L-62400,
March 22,1986.
Ausm v. CA, G.R No. 146636, Aug. 12, 2002, 387 SCRA. 210, 221, citirg Gooza,ja v.
ECC, No. L.Q2287, .1!11. 31, 1984,
127 SCRA443.
1 ~ 2[a), RJJie X. Ibid.
Sedi:Jn 2[b), Rule VII, AAmled Rules oo Empllyees' ~; OiJpenes v. GSIS, G.R No.
96844, Jan. 23, 1992,
2 ~ 3, RJJie VII, Amended RI.ESoo Elt1lk1fees' ~-
205 SCRA 331; AqOOo v. ECC, G.R No. 89558, All;!. 22, 1991, 201 SCRA 84; Vte11e v.
ECC, G.R No. 85024, Jell. 23,
1991.
3 Sedioo 3, Rule X.llid.; See also Sedion 5d Rule IVtllereof cmdECC Resolution
No. 3682 dated July 21, 1987. 5
MakOOalv.ECC,GRNo.L-51533,Nov.29, W83.
4 Sedi:ln 5of Rule IV of1he Amended Rules oo Empbyees' Coo1Jensalion.
1
Bejenroo v. ECC, G.R No. 84m, Jan. 30, 1992, 205 SCRA 598; Clystal Sh~ilg, Inc. v.
Natividad, G.R. No. 154798, Oct
5 Crystal ~pilg, Inc. v. Nativilad, G.R No. 154798, Ocl20, 2005; GSIS v. Cadiz,
GR No. 154093, July 8, 2003, 405
20,2005.
SCRA450,454; ljcresv. CA,GR No.105854,Aug.26, 1999,313SCRA 141,149-150.
j;
more than 120 days and he does not come within the coverage of
1. Temporary total disability lasting continuously for more than 120
disabiUty.
6. Such cases as determined by the System (GSIS/SSS) and approved
bytheECC. 5
An employee is entitled to an income benefit for permanent total
In case of permanent total disability, the full monthly income benefits should be
account in considering disability as permanent, in addition to the existing rules
See also Tol:lsa v. ECC, GR No.~. Mly 8, 1985, 136 SCRA 335 ilvcM'f;! same
prildple.
5
1 &£tioo 1(a), RuleXI,Mlended Rulesoo ~·~.
SecOOn 2{cl, Rule XI, Ibid.
report on his disability certified by his physician; otherwise his benefit shall be
no case exceed the monthly wage or salary actually received by the employee as
suspended until such time that he complies with this requirement.
of the date of his permanent total disability. 1
k. Cash payment of permanent total disability benefit.
3.4. PERMANENT PARTIAL DISABILITY.
Permanent total disability resulting from the injury or sickness is
a. Disability, when partial and permanent.
compensable by cash payments and not the injury or sickness itself. 1
A disability is partial and permanent if, as a result of the injury or
I. Monthly income benefit.
sickness, the employee suffers a permanent partial loss of the use of any part of
his body. 2
Any employee entitled to permanent total disability benefits shall be
paid by the System (GSIS/SSS) a monthly income as defined in Section 9, Rule
b. Requisites for entitlement.
VI of the Amended Rules on Employees' Compensation. 2
An employee shall be entitled to an income benefit for permanent
(1) In the case of the SSS.
partial disability (PPD) if all of the following conditions are satisfied:
In the case of the SSS, the monthly income benefit is the amount
1) He has been duly reported to the System (GSIS/SSS);
equivalent to one hundred fifteen percent (llS%) of the sum of the average
2) He sustains the permanent partial disability as a result of the irJury
monthly salary credit multiplied by the replacement ratio and one a.11d a haif
or sickness; and
percent (1-112%) of the average monthly salary credit for each credited year of
3) The System has been duly notified of the injury or sickness which
service in excess of ten (10) years; provided, that the monthly income benefit
caused his disability.
shall in no case be less than P250.00; provided, however, that the monthly
His employer shall be liable for the benefit if such injury or sickness
pension of sUtviving pensioners shall be increased automatically and
occurred before the employee is duly rep01ted for coverage to the System
simultaneously to the extent that the fifteen percent (15%) difference in monthly
(GSIS/SSS). 3
income benefit between EC and SS and the twenty percent (20%) difference in
monthly income benefit between EC and GSIS, should be maintained.3
c. Effect of gainful employment
Per ECC Resolution No. 2819 dated August 9, 1984. (Sedbl 6, IU! XI, Amended IUs on
Efl1*lyees'
~).
1 Sedion 3, Rule VII, Nnended Rules on Empbyees' ConlJensaOOn,
5®.834; fmta,.K. v. ECC, G.R No. 64255, AIJJ. 16, 1989, 176 SCRA 507.
2 Sedion3[aJl1],RllleXI,AmendedRireson~·~.
~-.
the same monthly income shall be paid for a period equivalent to the sum of the
Permanent partial disability benefit is granted up to a maximum of240
periods established for the loss of the member or part thereof but not exceeding
days if the claimant's disability persists exceeding the 120-day limit?
seventy-five (75). If the result is a decimal fraction, the same shall be rounded
Any employee entitled to PPD benefit shall be paid by the System
off to the higher integer. 2
(GSIS/SSS) a monthly income benefit for the number of months prescribed
The degree of permanent disability shall be equivalent to the ratio that
4
under the Rules. [See Schedule below].
the designated number of months of compensability bears to seventy-five (75).3
e. Schedule of income benefit payment.
f. Consequence of loss of a part of body.
employee's body:
disability, but no longer than the designated number of months in the following
5
1) A loss of a wrist is considered a loss of the hand;
schedule:
2) A loss of an elbow is considered a loss of the arm;
Complete and Permanent Loss
3) A loss of an ankle is considered a loss of the leg;
oftheuseo( No. o(Months
4) A loss of more than one joint is considered a loss of the whole
one thumb ·w
fmge; or toe; and
one index fmger 8
5) A loss of only the first joint shall be considered a loss of one-half of
one middle finger 6
the whole fmger or toe.
5
one ring finger
Other permanent partial disabilities shall be determined by t~~ Medical
one little fmger 3
L ....",. . . . ,. .
4 Sedixl 3 [aL ~ XII, M1eoded RIJes on ~ ~; Section 2, Rule XII d t1e M1ended
RIJes on 3 Section 2[cl, Rule XII, lbkl.
4
Section 2~]. Rule XII, Ibid.
Errfiloyees' ~-
5
CHAPTER VI 465
BAR REVIEWER ON lABOR lAW
SOCIAL WELFARE LEGISlATION
464
is not entitled to death benefits because her husband had stopped working when
his work; or
he became physically disabled to do his work at the time of his retirement in
(2} The sickness for which he died is an accepted occupational
1975 and death on February 14, 1984, or almost nine (9) years after, which is
disease; or
clearly not within the two-year period required by the old Workmen's
(3} His working conditions increased the risk of contracting the
1
Compensation Act.
disease for which he died.
the cause of death, myocardial infarction, is closely related to the cause of his
The monthly income benefit provided under Article 200 [194] of the
compulsory retirement.
Labor Code is the new amount of the monthly income benefit for the surviving
beneficiaries upon the approval of P.D. No. 1368 [May 31, 1978] which
In GSIS v. Cuanang,l the employee died a year after retirement. The
introduced amendments to Title II, Book IV of the Labor Code.
Supreme Court held that indeed, if the death which occurred almost 4 ~ years
after retirement was held to be within the coverage of the death benefits under
d. Requisites for entitlement to death benefit.
P.O. 626, as in the Manuzon case, with more reason should the death which
The beneficiaries of a!\eceased employee shall be entitled to an- income
occurred within one year after retirement be considered as covered under the
benefit if all of the following conditions are satisfied:
same law. A claim for benefit for such death cannot be defeated by the mere fact
Upon the death of a covered member during the period that he/she was
3) The System has been duly notified of his death, as well as the
injury
receiving permanent partial disability (PPD) benefits, the remainder of his PPD
or sickness which caused his death.
was the same illness or injury for which he/she was awarded :f>PD benefits.
e. Death to be compensable must occur while in the performance of
i ·. ~-~
job; exception.
g. Additional requisites; ·proof of marriage. _:,: ·:
Under the law on employees' compensation, death is compensable only
If the employee has been receiving monthly income benefit for
5
permanent total disability at the time of his death, the surviving spouse must
when it results from a work-connected injury or sickness.
show that the marriage bas been validly subsisting at the time of his disability. 5
Lu v. WCC.' - It was ruled in this case that the benefits of the
I_ compensation benefits is the date of the death of the employee and not the
Gau Sherg Phis., 11¥:. v. Joaquil, G.R. No. 144665, Sept. B. 2004, d&1g
Bonia v. Crutof ~. G.R No. 136453, Sept.
1
21, 2!XXl, 3o10 SCRA 760.
Sec00n 3, Rule VII, AmendedRJeil oo EmployeeS' Canpensatioo.
1
2
GR.No.88573,JlBle25, 1990.
3 Arti::le 194 {c1lm Code.
3 G.R No. 158846,June3,2004.
4 SecOOn 1(a], RIOO XIII, llid.
Citi1g 1jues v. CA. G.R No.105854,Aug. 26, 1999,313 SCRA 141.
4
5 BuEna Obra v. SSS, G.R No. 14n45, Apli 9, 2003.
5 Section 1[b], Rule XIII, M1ended Rules oo Employees' ConlJenSation-
s G.R.No.L-43181,0ct27, 1986, 145SCRA 170.
·--···--------""
CHAPTER VI
following:
The monthly income benefit shall be guaranteed for 5 years which in·
no case shall be less than Pl5,000.00. Thereafter, the beneficiaries shall be paid
I) The surviving spouse; or
the monthly income benefit for as long as they are entitled thereto.2
2) The legitimate child who spent for the funeral services; or
(2) For secondary beneficiaries.
3) Any other person who can show incontrovertible proof of his
P6,000.00. 2
( l) When death benefits should be p:dd.
2) Subsequently, in I992, the amount of funeral benefit to private
Payment of death benefits shall be reckoned from the date a worker
sector3 employees was increa~ed to 1'8,000.00 effective May I,
was declared presumptively dead after he/she had been reported missing for
1992.
sometime, by proper authority, in accordance with law; except when the
3) Effective May 1, 1994, the funeral benefit was increa~ed to
declaration of death specified another date, in such a case, payment of death
f'lO,OOO.OO for the private sector and 1'3,000.00 for the public
benefits shall start from the latter date. 4
sector.
(2) Entitlement to funeral benefits.
c. Effect of denial of death benefit on entitlement to funeral benefit
The beneficiaries shall be entitled to funeral benefits as provided for
The denial of the death benefit being claimed has an adverse effect on
under the law, even though the body of a missing person had not been recovered
the claim for funeral benefit. The Supreme Court in the case ofTolosa v. ECC.t4
and that no burial activities had been undertaken.
held that the widow is not entitled to funeral benefit in view of its ruling that
4. DEPENDENCY.
The death benefits being paid under the law are not part of the
deceased's estate. They are not in the nature of inheritance~ They are granted by
a. Dependency, meaning.
operation of law as financial compensation and aid for the death of the
employee.
The term "dependency" does not mean absolute dependency for the
necessities of life but rather, that the dependent looked to and relied on the
It must be noted that the dependents mentioned in the law are not
contribution of the claimant, in whole or in part, as a means of supporting and
referred to as the "heirs" but rather as "beneficiaries." It may be further
maintaining himself in accordance with his station in life.
observed that the dependents are not necessarily the "heirs" of the deceased, as
this term is understood in civil law.
1
2 Section 2 !AI (aj ood lb1 Rile XIII, Amended Rules on Elqlloyees'
CorrcJensaOOn. This is il accordance witt ECC
ResokJtion No. 2799 dated Ju~ 25, 1964.
dated Jult 21, 1987 a1d ECCResliltion No. 2799daled.lutf 25, 1984.
2
3 Section 2IBI {a], Rule XIII, Ibid.; Per ECC ResoluOOil No. 2799 dated Ju~ 25,
1984.
3
~ Under ECC Board ResoluOOn 93$0068 issued on August 5, 1993.
CHAPTER VI
469
Under this concept, a person may be considered a dependent although
(3) Legal dependency.
1
he is able to maintain himself without any assistance from the decedent. For
instance, the legitimate spouse may be gainfully employed himself or herself but
Legal dependency proceeds from the mandate or operation of the law,
he/she is considered a dependent for as long as he/she is living with the deceased
irrespective of the ability of the dependent to support himself. This type of
employee at the time of the occurrence of death.
dependency, having been established by operation of law, is conclusive.
b. Test of dependency.
(4) Actual dependency.
There is no uniform test to ascertain dependency. What the law
Under this type of dependency, the reasonable expectation of
imposes is that the dependency relationship should exist at the time of the
continuing support appears to be the general and important criterion to consider.
occurrence of the injury. What would be ordinary necessity and comfort for one
An actual dependent, therefore, is one who looked to the employee for support,
person may not necessarily apply to another. However, such factors as standards
partially or wholly.
of living, station in life, the necessity and comfort required and the like, may
1) Legitimate children;
own and who receives less than all of his support from the -employee. If the
contributions from the employee enable him to live in accordance with his
2) Legitimated children;
station in life, without which he could not live in accordance therewith, such
3) Legally-adopted children; and
person is a partial dependent.
4) Acknowledged natural children.
i. He is incapacitated; and
1 castillov. Cadwallader &Gibson lumber Corlllany, GR No. 41267, Sept 26, 1934.
1 310.G.97.
1 1
_.L_
In case the legitimate surviving spou~e was living separately from the
stepchildren as well as brothers and sisters of the deceased employee are
deceased employee at the time of death, he/she may be treated as dependent if
considered dependents. However, under the Labor Code, reference to them is
such separation was necessary and justified as when the same was caused by
absent. Therefore, they should no longer be considered as dependents.
health or business reasons or because of the fault of the deceased spouse.·Under
As far as illegitimate children are concerned, paragraph [i] of Article·
these situations, it is believed that the conclusive presumption of dependency
173 [167] of the Labor Code defining the term "dependent" does not mention or
should still apply. In Vda. de Makabenta v. Davao Stevedore Terminal
make reference to them as dependents. However, paragraph OJ thereof and
Company/ a marriage celebrated in a hospital where the deceased employee
Section 1 [c), Rule XV of the Amended Rules on Employees' Compensation treat
was confined after the fatal accident where he sustained the injury but before his
illegitimate children as secondary beneficiaries.
death, was held sufficient for purposes of determining the dependency of the
Legally-adopted children, to be considered dependents, must have been
wife. For three (3) months prior to such marriage, they were already living
judicially-decreed as such prior to the occurrence of the injury and death of the
together as common-law husband and wife.
deceased employee. Without judicial pronouncement on the adoption, as when
(4) Policy on surviving spouse.
the child was merely taken into the home and treated as a member of the family,
would not be sufficient for purpose.s of entitlement to the benefits.
A polic/ has been enunciated as regards surviving spouse found not to
(3) Legitimate spouse as dependent.
be living with the covered employee at the time the employee died. Said
1 Scmr Wililg Co., Inc. v. WCC, G.R Nos. L-29933-39, March 31, 1971; ~ v. GSIS,
G.R No. L-28093, J<ri. 30,
1971.
CHAPTER VI 473
472 BAR REviEWER ON lABOR lAW
2
(5) Parents of deceased employee as dependeuts.
2) Secondary.
1
MDe 167m. Lalor eooe.
3 SecOOn 1!b). R1ite XN, Amerded Rules oo Employees'~· This rule is i1 aco:xdance
Mth ECC Resolutm No.
1 GR No. L·7489, Feb. 29, 1956.
2799 dated July 25, 1984.
.~~
1:
benefit not to exceed sixty (60) months and the death benefit shall not be less
or acquired during minority. 1
than Pl5,000.00. 1
i
e. When to determine beneficiaries.
h. Monthly income benefit, how distributed.
2
Beneficiaries shall be determined at the time of the employee's death.
The distribution of monthly income benefits shall be as follows: 2
Consequently, although in other jurisdictions, posthumous children
1) Monthly income benefits shall be shared equally by all the primary
who died before the employee's death are considered as dependents, 3 under the
beneficiaries including dependent children who were not considered
laws of the Philippines, they cannot, as a general rule, be so considered since
in the determination of dependent pensions. Upon emancipation or
beneficiaries are determined at the time of the death of the employee.
otherwise disqualification to entitlement to the dependent pension of
However, in Vda. de Makabenta v. Davao Stevedore Terminal
a dependent child, only ten percent (10%) shall be deducted from
Company, 4 the daughter born after the death of the employee and, therefore, a
the benefits and the remaining income benefits shall, once again, be
posthumous child, was considered a legal dependent of the deceased employee.
divided equally by the qualified primary beneficiaries. 3
---100ol---
If the deceased employee has no primary or secondary beneficiaries at
the time of his death, the death benefit shall accrue to the Employees'
Compensation Fund.7
g. Benefits payable.
Primary beneficiaries shall be entitled to a monthly income benefit. In
their absence, the secondary beneficiaries shall be entitled to a monthly income
Section 3, Rule XV, bkl.; Per ECC Resok1tKx1 No. 2799 daled Jutj 25, 1984.
t Sedioo 1~. Rule XV, llil.
2
The ECC passed ResokJtion No. 9Q.m.0022 [M<I1:h 23, 1990] a:lopling and
p!'OIIU;jati'lg the &JppleloJy Rilles tl the
2 Sedioo 1{a], Rule XV, Ibid.
Amended Rules on ~· C<qlensaOOn. These ~ RUes JlfllWie f!r the lisdJuOOn d
III0111hoY i1coote
3 Krg v. ~nsws Por1land CementCo., 21s Mdt 335.
berdKs.
4 G.RNo.L-27489,Ajxi30, 1970.
3
No.I{1J flerect.
Sedioo 2[aj, Rule XV, .Amended Rules onEnlJioyees' ~-
4
No.l[2]therea.
Sedioo 21b], Rule XV, llii. .
5
lABOR RElATIONS
A.
VII.
RIGHT TO SELF-ORGANIZATION1
LABOR RELATIONS
(NOTE: The
presentation of the topics in this portion of the SyUabui
has been
altered to provide for amore comprehensive and orderly discussion).
A. Right to Self-Organization
1. Who May Exercise the Right 1. CONSTITUTIONAL
BASES.
a. Doctrine of Necessary Implication Under the
1987 Constitution, it is mandated that "the State affirms
2. Commingling/Mixture of Membership labor as a primary
social economic force. It sh:dl protect the rights of
3. Rights and Conditions of Membership \\'Orkers and promote
their welfare." 3
a. Nature of Relati:mship
lABOR REU\TJONS
1.
workers' association of their own. They are, however, not. allowed to become
enunciated in Article 256 [245-A] 2 of the Labor Code, unlike in the old law, is
ORGANIZATION FOR COLLECTIVE BARGAINING PURPOSES.
z Anew plll'liskln i1seB!d i1kl the L.alxJ Code by Sectioo 9d~ Act No. 9481
(effedNeon Jlrl!l14, 2007).
PhftWiles is a sgnaby, 'V.Q1(ers il1d ~. v.hlt dis&1ctioo v.tasoeYer, shal have the
liJht tl establish llld
1 Al&:le 253 [243), t..m Code.
subject on~ mthe rules d fie OJQ!Ilization OOI'ltOTlBd. P, Olgalizi6:m of !her aMl
chlosi1g v.thoot prevkxJs
2 Article 254 (2441, Labor Code.
llllhorizalioo.'
3 Article 253 (2431. lllbor Code; Seem 2, Rl.lle II, 8o<i V, RJJies t1
irr1JIIrnen! the l.alxr C<XIe, as anended by ~ Artide 2of ILO CortJelltioo No.
98 1\flk:h dwells on the RiJht b Olgalize llld Co'lecWe Bagamg.
Depcr1ment Order No. 40-00, Seres ci 2003, [Feb. 17' 2003] !Wld lui1her anended
by Dep;r1moot ()der No. 40-C-05, 5 OtheiWise kn<Mrl as 'The Ctid !Wld Youll
Welfcre C<XIe.'
Series d 2005 !Marth 7, 2005; See also Al&:le 243, t..m Code.
6 Altide 111, Chapter 3, Tille VI, P.O. No. 603, as ll!1el1ded
byPiesi:letltiaiOecree No. 1179v.tW:h blk ellecton Al..g. 15,
Article 255 (245!, labor Code; P..,er kldusiJ1es Capaatioo ci the Phqlpiles
v.l.aguesma, GR No. 101738, ~ 12, 1977.
200lt lJni!d Pepsi-Cola SupeNisoly lJnkxl [\JPSUj v.l.aguesma, GR No. 122226,
1/M:h 25, 1998, 288 SCRA 15, 21-23. 7 Sectm 3, Depatne!lt Order No.5, Feb. 04,
1992.
5 SedXlns 1!Wld 2, Exea.We ()der No. 180, June 01, 1987; Sectioos 1!Wld 2, Rl.lle
II, Rules and Regulabls 1D G<Nem the 8 Sectm 4, Ibid.
Exoo:ise ci the Ri;lht ci GoYemmenl Efl1Jioyees lo Sef.()rg<Vlization.
L\BOR RElATIONS
2
Members of a cooperative have no right to form or join labor
R. A. No. 9481 which added the phrase: "The rank-and-file union and the
organizations for purposes of coliective bargaining for being themselves co-
supervisors' union operating within the same establishment may join the
owners of the cooperative. This prohibition covers employees of the cooperative
same federation or national union. " This doctrine prohibits the situation
who are at the same time members thereof. 1 However, insofar as the
where the supervisory union and the rank-and-file union operating within
cooperative's employees who are not members or co-owners thereof are
the same establishment are both affiliated with one and the same federation
concerned, they are entitled to exercise their right to self-organization and
because of the possible conflict of interest which may arise in the areas,
collective bargaining as guaranteed in the Constitution and existing laws. It is
inter alia, of discipline, collective bargaining and strike.
the fact of ownership of the cooperative and not involvement in the
4. SOME PRINCIPLES ON GOVERNMENT EMPLOYEES' RIGHT TO
management thereof which disqualifies a member from joining any labor
SELF-ORGANIZATION.
organization within the cooperative. But employee-members of a cooperative
may withdraw as members of the cooperative for purposes of joining a labor
• The labor organization in the government sector is technically called an
union. 2
"employees' organization."3
b. Right of employees of legitimate contractors to self-organization.
• Registration of employees' organizations is made with both Civil Service
V.llepatment d Labor illd ~ It the Seaetay, GR No. 157117, Nov. 20, 2006) and il
other related
labor organization. 5
cases.
• Right to join a union cannot be made subject of a CBA stipulation.6
2
SecOOn 8of Repldlic Act No. 9481 [elfedM! June 14, 2007.
SecOOn 1[111 Rule I,~ and Regulations~ GJJem the Exen:ise-d the Rij1l of GoYemmeot
~ees to Self-
O!gmatioo.
4
1 Coopeatle Rural Balk d Davoo Ctf, k1c. v. Felref-Calleja, G.R. No. 77951, Sept
26, 1988; Sal Jose EledJic Servk:e SecOOn 1!iJ, Rule I, lbKI.
~. klc. v. J.tRy dl..cM, G.R. No. n231, Mer)' 31, 1989.
7
3 Section 10(e), Depmen!OnlEJNo.174, Seriesd2917.
esc Memoroodum<:mJI<r No.6, s. 1987. 1APri121, 19871 pi001Uigaled by 111e Civi
Service ConmissQ1 categoricaDy
4 AIOC!e243, LaborCode;FElHlrJfiCCIIOI"ReyesMedicaiFoundaOOn, Inc. v. Trajano, G.R.
No. 76273,Jldy31, 1987. prohili1s all gwemment o1!icials illd employees
rom slll;lilQ ~es. denms1rali:X1S, mass leaves. wa1k-oots and other
s Altle 292(c) [2n(c)), labor Code; No. 10, Basic Amen<knents ll1der R A. 6715,
prepaed by Mmlels ct the Senate- fonns of mass actioo 1\tth v.;)l msu1t
illhe te~ stlppage or disrupfioo of public 5e!Vices. AbYlg tlem 1o slii:e or
Hoose Conference Cormitlee d Coo:Jress.
conduct the said prohilired ads s to undermine or ~ 4le gcNEIM1el1l system.
Executive Older No. 180, ~une 1,
s Southern~ Fedela!ioo of labor (SPFL) v. Calleja, G.R. No. 80882, ~ 24, 1989, 172
SCRA676. 1987], v.flich prCNides the guidelines on !he
exe!dseofl!le ri;lhlofgCM!fT1111e1111'1011<efS klOI!Ianize, ~idtly endolsed said
lABOR RElATIONS
2.
to another and are not always a reliable guide to membership in the highest
management classification.
WHO CANNOT FORM, JOIN OR ASSIST
LABOR ORGANIZATIONS
Middle Management. - This refers to more than one level in an
!ABORREIATIONS
The two (2) criteria are cumulative and both must be met if an
access to confidential information specifically relating to the bank's labor
employee is to be considered a "confidential employee" that would deprive
relations policies, absent a clear showing on this matter. 1
him of his right to form, join or assist a labor organization. 1
bargain for advantages for themselves, then they could be governed by their own
of directors may not be classified as a confidential employee disqualified to join
wnfidential employees for the purpose of collective bargaining would mean the
exercise of corporate powers and the general management of the business and
extension of the law to persons or individuals who are supposed to act "in the
affairs of the corporation. As secretary of the bank's governing body, the
interest of' the employers. It is not far-fetched that in the course of the
employee serves the bank's management, but could not be deemed to have
collective bargaining negotiations, they might jeopardize that interest which they
CHAPTER VII
lABOR RELATIONS
487
3. CASES WHERE CONFIDENTIAL EMPLOYEES WERE NOT
SCRA 370; National A$ociatioo ciTrade Unions· Republ't Plcllle!s Bri ~ ~ v. Tones,
G.R No. 93468,
Sedi:Jn 9of RA No. 9481 ilselted Artk:1e 256 (245-A] i"lto the Utxr COOe i12007.
3
1 Golden F11111S, l'lc. v. Ferrer-Caleja, G.R No. 78755, J~ 19, 1989, 175 SCRA471.
k1bodlx:ed as new prcMsion by Section 9, RA. No. 9481 v.i1i:h lapsed i11o law oo
May 25, 2007 and becalle effective oo
2 flt1qlS ~ Deveqxnent, h:. v. NLRC, G.R No. 68957, June 25, 1992, 210 SCRA339.
June 14, 2007; As renurrbered pwsuanttl Sedi:Jn 5, RA. No. 10151,June 21,2011 and
DOLE DepabnertAcMsay No.
Pilr 8Mastre &S1evedori'g Services, klc. v. ~. [G.R No. 110854, Feb. 13, 1995,
241 SCRA 294. 01, Series of2015 (Renunbeling of the Labor Code of
the Philqlpines, as Amended), issued oo .Mt 21,2015.
tletrolab lnckJslries, ktc. v. Rotlal-Confesa, G.R No. 108855, Feb. 28, 1996, 254
SCRA 182; 324 Phi. 416. ~ Article 266 [2541 Labor Code; De La Sale Unive!Si\y
Wedk:al Cen\er and College of Medicile v. tw.;Juesma, G.R No.
s G.R No. 80882, Apn124, 1989, 172 SCRA 676.
102084, AuJ. 12, 1998.
& G.R. No. L-26736, Aug. 18, 1972.
22,2003.
lABOR RElATIONS
file employees, it was held in Tayotrl that "clearly, based on this provision/ a
labor rank-and-file union. Thus, it was held
that the inClusion of supervisory employees in
organization composed of both rank-and-file and supervisory employees is no labor
petitioner union does not divest it of its status as a legitimate labor
organization. The
organization at all. It canno~ for any guise or pwpose, be a legitimate labor
CA's reliance on Toyota is misplaced in view of the subsequent ruling in
organization. Not being one, an organization which carries a mixture of rank-and-
file Kawashima where it was explained at length
how and why the Toyota doctrine no
and supervisory employees cannot possess any of the rights of a legitimate labor
longer holds sway under the altered state of the law and rules applicable to this
case. 1
orga::rization, including the right to file a petition for certification election
for the
OPERATION OF LAW.
granting of an order allowing a certification election, to inquire into the
composition
of any labor organization whenever its status is challenged on the basis of Article
As is now provided in Article 256 [245-A], any excluded members are
255 [245] of the Labor Code.3
automatically deemed removed from the list of legitimate members of the union
file union, they are deemed automatically removed from the roster of members of
In the same vein, it was held in Dunlo/ that for as long as the
supervisors' said union and vice versa.
union counts rank-and-file employees among its members, it has no legal right to
file
UNION REGISTRATION.
superviso:-s.
NATURE OF RELATIONSHIP
unit is not a wound for the cancellation of the registration of the union. The
i.
employees so impr.operly included are automatically deemed removed from the list
MEMBER-LABOR UNION
of members of said union by operation oflaw.8
character. The union is but an agent of its members for the purpose of securing for
1 Taj~E MU~ v. T(rf~E MU Philppiles Ccrpaati:x1 lmorllnkxl,{;.R
No. 121084, Feb. 19, 1!197, 268 SCRA them fair and just wages and proper, good
working conditions. It includes the
573.
obligation to give its members as its principals, all information relevant to the
union
2 hti:le 255!245) rJ lle Lalor Code.
3 See 8so Ta,da t.tlklr Philippiles CcqxxaOOn 1m Unkx1 v. Toyola MlliJ
f'tliWiJes Coipolalix1 fn1llcYees !lld
Wo!teist.ml, Ta,Qa M:UPhippilesCOiporaOOn,GR No. 135806,Aug. 8, 2002.
1 See 8so The Herila;je Hotel t.'a1ila v. Secrelay rJ Labor Md ~ G.R No. 172132,
Jutt 23, 2014; Tagayfay
c Dlrilp Slazenger [Phis.]; h:. v. Seaefaiy cl Lalor !lld ~ GR No. 131248, Dec.
11, 1998, :KXl SCRA 120, ~ h1fetnafiorta Golf CIJl me. v. T~ 1-
iJhl!llds EirclbJee5 Unbn • PGlWO, G.R No. 142001, JM. 22, 2003;
128.
Sill l.tJuel CorpaaOOn [MMdaJe P!WJing Products Plri>) v. M!lldaue Packagilg
flrtxka; Palls • Sal Packaging
s Rep!Ji:fitle~, Represented byDOI.Ev. Kawashina Texilt.IJ.,Phiippines, Inc.,
G.R No. 100352.Jlti 23, Producls-Sa1 l.iJuel ColpaatOO
tkxlt1lies Ralk-ood-Fle lml-ffW {tvPPP· SM'P-SI.W.flfi.I..FFV, G.R. No.
. 6
7
2008.
lnia.
SecOOn 9Vlereof. RA No. 9481 kick effect on JLIMl14, 2007.
2
-iles
152356, Aug. 16, 2005; ., .Re: Pe!ful tr Cax:ellaOOn ct d1e !.Moo Registration rJ
Ai Plippiles ~hi AllendMis
New Sec1ion 6, Rule YN, Book V, Rules mllllJiement the l.abor Code, as i1serted by
DepiJbnent Onler No. 40-F-03,
a See also Section 6, Rule YN, Book V, RUes D~I the Labor Code, as ilserted by
Department Older No. 40-F-03, Series of 2008 (Ott 30, 20081. Ttis
section ~: '"SecOOn 6. PrOOilired Groonds fi:Jr <:ancelalion rJ Regisfratioo. -The
Series cl2008(0ct. 30, 2008].
ilWskln as unbn l1'lefTbers rJ ~ Yttlo ere ootsi:le lle tagaining unl shat not be
aQ!OOf1d k> <3lCel the union
s ~ Mmggagawa sa a-n CheiTtal Solklaiy ct unms nile Phi~Wfles fi:Jr ~ Md
Reforms IeQisliation. The iiet,jbte
8illJioYeesare aJianaticaly deemed reroo.oed from the listct ~of the unioo.'
(SI.CCSUPER)v. ChaterChemk:al and Coating Caporation, G.R No.1697171, Man:h
16,2011. 3 Reieva1t pr<Msioo: AI1icle 250 [241],
Labor Code.
lABOR RELATIONS
and labor matters entrusted to it. The court has the duty to protect workers from
the d. Union members who are not
employees do not possess the right to
unfair treatment and unjust exploitation not only by oppressive employers but also
join union.
by their own unworthy leaders. Where the union leadership is recreant in its duty
If the union members are not employees, no right to organize for purposes
towards the: union members, the courts :QlUSt be vigilant to protect the
individual.
the determination of who shall be included in the proposed bargaining unit because
it
An employee cannot invoke an absolute right to union membership?
is the sine qua non, the fundamental and essential condition that a bargaining unit
be
Although the right to self-organization and collective bargaining is duly
guaranteed composed of employees. Failure to
establish this juridical relationship between the
under the Constitution, it is subject, however, to regulation by the State. For
instance, union members and the employer affects
the legality of the union itself. It means the
it is mandated by law that no labor organization shall knowingly admit as member or
ineligibility of the union members to present a petition for certification election
as
continue in membership, any individual who belongs to a subversive organization or
well as to vote therein. 1
who is engaged directly or indirectly in any subversive activity?
Article 250 [241] of the Labor Code enumerates the specific legal rights of
An employee has the right to join or not to join a labor union. 4 A member
a member of a labor union as well as the legal conditions of such membership. More
of a labor union may leave and cancel his membership at any time. An employee
specifically, these rights and conditions may be grouped into the following
who joins a union does not make any commitment or assume any undertaking to
categories:
continue his membership therein for a fixed period ofti'lle, much less
indefinitely. In
a. Fiscal rights.
this regard, he is a free agent. 5 The same may not be said, however, in case there
is a
valid union security clause in the CBA such as a closed-shop or union-shop
Financial rights include the following:
arrangement between management and the union. In such a case, the employee
concerned is duty-bound to keep his union membership for the duration of the CBA
{1) Right against arbitrary, oppressive or excessive fees, fines and
as a condition for his continued employment. If such membership in the union which
forfeitures;
contributions;
c. Right to join a union acquired from first day of employment
(4) Right to claim receipt for every payment of fees, dues ~r other
contributions;
By express provision of Article 292(c) [277(c)] of the Labor Code, any
(5) Right to prevent funds of the organization from being applied for any
employee, whether employed for a definite period or not shall, beginning on his
first
lABOR RELATIONS
493
(6) Right to demand or require that every income or revenue as well
as (1) Right to vote and be voted for as an officer
of the union, subject to
every expenditure of the union shall be recorded or receipted,
which ! the qualifications and disqualifications
mentioned in Article 250
record or receipt shall form part of the financial records of
the union;
(7) Right against unauthorized check-off for special assessments,
I [241] of the Labor Code;' and
LABOR UNION-FEDERATION
least once a year within thirty (30) days after the close of
its fiscal 1.
year and at such ot!)er times as may be required by a
resolution of the
majority of the members of the union and upon vacating his
office; AFFILIATION
(2) Right to require that the account be duly audited and verified
by 1. MOTHER UNION.
affidavit and a copy thereofbe furnished to the DOLE Secretary;
In relation to an affiliate, the federation or national union is commonly
(3) Right to inspect the books of accounts and other financial
records of known as the "mother union." This term is not found in law but
oftentimes, the
the union and to require full and detailed reports from their
officers Supreme Court uses this term to describe a federation or a
national union.
and representatives on all financial transactions as provided
for in the 2. AFFILIATE.
eonstit.rtion and by-laws of the organization;
(4) Right to be informed of the provisions of the constitution and
by- An "affiliate" refers to:
laws, CBA, the prevailing labor relations system and all their
rights (1) An independent union affiliated with a
federation or a national
and pbligations under existing labor laws through the medium of
union; or
labor relations seminars or other labor education activities;
and 1
Sectioo 1(a), Rule I, Book V, Rules to ~ l1e labor Code, as anended by IJep<vtment
Order No. 40-{)3, Series ct
Federation or nafiooallllion.
lABOR RElATIONS
"t7;..J
241 [234-A] of the Labor Code, cannot be properly called an "affiliate" if it has
acronym is merely to indicate that the local union is affiliated with the
not acquired any independent registration of its own.
federation or national union at the time of the registration. It does not mean
• The fact that it was the federation which negotiated the CBA does not
The purpose is to further strengthen the collective bargaining leverage
make it the principal and the affiliate or local union which it
of the affiliate. No doubt, the purpose of affiliation by a local union with a
represents, the agent. 2
mother union (federation or national union) is to increase by collective action its
• However, if it was the federation which negotiated all the CBAs. in the
bargaining power in respect of the terms and conditions of labor.'
establishment, the local chapter cannot negotiate the renewal of the CBA
5. CONTRACT OF AGENCY.
without the consent and participation of the federation. 3
The mother union, 2 acting for and in behalf of its affiliate, has the
status • The fact that it was the name of the
federation that was particularly
of an agent while the local union remains the principal - the basic unit of the
mentioned as the bargaining party in the CBA without specifying the local
association free to serve the common interest of all its members, subject only to
union does not have any effect on the right of the federation to participate in
the restraints imposed by the constitution and by-iaws of the association. 3
the bargaining process. 4
6. SOME PRINCIPLES ON AFFILIATION.
• It is the local union and not the federation/national union with which it is
affiliated that has the right to administer and enforce the CBA with the
• Independent legal personality of an affiliate union is not affected by
employer. 5
affiliation. 4
• In case of illegal strike, the localt•nion, not the mother union, is li2ble
• The affiliate union is a separate and distinct voluntary association owing its
for damages. 6
creation to the will of its members. It does not give the mother federation
the license to act independently of the affiliate union. 5
• The fact that the local chapter is not a legitimate labor organization does
not
2.
affect the principal-agent relationship. 6
DISAFFILIATION
• Affiliate union becomes subject of the rules of the federation or national
l. RIGHT TO DISAFFILIATE.
union. 7
The right of the affiliate union to disaffiliate from its mother federation
• The appendage of th.e acronym of the federation or national union after the
the former at any time. It is axiomatic that an affiliate union is a separate and
change the principal-agent relationship between them. Such inclusion of the
voluntary association free to serve the interest of all its members - consistent
with the freedom of association guaranteed in the Constitution. 7
1 Naional Uni:x1 cl Sri ~k1fees (NUBE) v.l'tlil1allrtflrllloyees Associatioo{P8M),
G.R No.174287, ALgust 12, 2. DISAFFILIATION OF INDEPENDENTLY-REGISTERED
UNION
2013, cili"g Maayarg Sancim llJ rrga Marggagawa saM. Greenfield v. Hen. Raoos, GR
No. 113907, Feb. 28, 2001, AND WCAL CHAPTER, DISTINGUISHED.
326 SCRA 428.
2 Refenh:l m 11e fedelati:ln cr natiooal unioo.
The disaffiliation of an independently-registered union does not affect
3 f!roJressNe Develqlmenl Capaatial v. Seaellry, Depna11 d tmilll:l~ G.R No. -
96425, Feb. 4, 1992, its legitimate status as a labor
organization. However, the same thing may not be
aJ5 SCRA l!02; Pcrrba1sarg ~ llJ rrga fwi:. PiMis sa Fonney Plaslk: -NaliJnal
Workers t!rol1erhood v. said of a local chapter which has no
independent registration since its creation
laJuesma, GR No. 111836, Feb. 1, 1996,253 SCRA 96, 103; l.herty-ca!OO Mils
Wailers lful v.l.herty Cclloo Ws,
Inc., G.R No.l-33987, Sept 4, 1975,66 SCRA 519.
~ Adanson !!1d Adamsoo v. CIR, G.R No.l-35120, JM. 31, 1!184, 127 SCRA268; St.
luke's Med"ICaiCenrer, Inc. v. Tares,
G.R No. 99395, June 29, 1993,223 SCRA n9; fisro.EiolltilorUllon {NAfl.O) v. Ncli!
l, G.R. No.l-41955, 1Joc. 29, 1
Tropica Hut FoOO EfrcliJyees Union. roN v. rrop;::a Hut Food Malket, G.R No. 43495-
00, Jan: 20, 1900; See also St.
1977, 180 SCRA 681.
l.uke'sMeoi:aiCenler, Inc. v. Torres, GR. No. 99395,June29, 1993.
2
5 k1su1ar fWEnlJiaiees lJnioo.NFL v. Waletfrontlnsulcr!Wt>avao, G.R Nos.17404Q..11,
Sept 22,2010, citi1J Coastal Elisco-13'101 t.mUlKl!l [NAFLU] v. Norie!,
G.R No. 41955, Dec. 29, 1977.
3
Subk: Bet Temilal, klc. v. Depmentc:IL.axr illl:l ~ clfle Secretly, GR No.
157117, Nov. 20, 2006; Abariav. NLRC,GRNos.154113, 18m8,
187861 &196156,0ec. 7,2011,661 SCRA686.
Alm:e ci Naliorl*l illl:l Genuile Labor Org. v. SanahM llJ rrga ~ Nagkakaisa sa
Mria Bet SpilnDJ ~ ~ Kapatiran llJ rrga Anak Pa'~Wi sa Formey
Plastic Nali:lnal WolkeiS Brotherhood v. L.aguesma, GR No.
Mils, G.R. No.118562, Ju~ 5, 1996, 258 SCRA 371, 3n.
111836,Feb.1, 1996,253SCRA96.
lABOR RElATIONS
was effected pursuant to the charter certificate issued to it by the federation or
national union.' Once a local chapter disaffiliates from the federation or national
• Election protest involving both the mother federation and local union is not
union which created it, it ceases to be entitled to the rights and privileges
a bar to disaffiliation. 2
granted to a legitimate labor organization. Hence, it cannot, by itself, file a
• The issue of affiliation or disaffiliation is an inter-union conflict the
petition for certification election. 1
jurisdiction of which properly lies with the Bureau of Labor Relations
South Sea Shipping Line,5 the July 28, 1957 CBA between respondent
change the administration of the contract. 8
company and the United Seamen's Union of the Philippines (USUP), has been
• As a general rule, a labor union may disaffiliate from the mother union to
continuously automatica!Iy renewed after every two years so much so that at the
form an independent union only during the 60-day freedom period prior to
time of the writing of the High Court's decision in this case, it would appear that
the expiration ofthe existing CBA. It is not, however, legally impossible to
the CBA will still be effective up to July 28, 1961, that is to say, about a year
effect the disaffiliation prior to the freedom period, provided that the same
therefrom. According to the claim of the petitioners, the bargaining agreement
is approved by the majority of the members of the bargaining unit. Undei'
of July 28, 1957 was but a renewal of the same or similar agreement of July
this situation, the CBA continues to bind the members of the new or
1955, so that the bargaining agreement has been in existence for about five
disaffiliated and independent union up to the expiration thereof. 9
years, which is too long a period within which a certification election has not
• Disaffiliating from the federation and entering into a CBA with the
employer does not constitute an unfair labor practice!0
• Disaffiliation is not a violation of the union security clause. 1
1
Tropical Hut Employees Union· CGW, v. Tropical Hut Food Maltet,lnc., G.R No.L-
43495-99, Jail. 20,1990.
3 ld.
1 See Article 234-A, Labor Code.
4 Article 265 )253-Al. Terms of a Collective Bargaining Agreement- Arrt Conective
Bargaining Agreement lhat the
2 See Article 234-A,Ibid.;Warv.lncilng,G.RNos.l-50283-84,~2tl,1983,121 SCRA444.
parties may enter into shall, ilsofar as the represenlation aspect is concerned, be
for a term of five (5} years. No
3 Philippine Skylanders, Inc. v. NLRC, G.R No. 127374, Jan. 31, 2002; People's
lndusbial and Convnercia1 pelilion questioning the
majority status of the Incumbent bargaining agent shal be entertaned and no
certification
Elr1!1oyees and Workers Organization [FFW) v. People's lndusliial and
Commercial Co!poration, G.R. No. L-37687, election shall be
conducted by the Department of Labor and En1lloyment outside of the ~ period
Marth 15, 1982, 112 SCRA 440
immediately before lhe date of expify of such five-year le!m of lhe Collective
Bargaining Agreement All olher
4 People's klduslrial and Commertial Employees and Worl<ers O!ganization [FFWJ v.
People's Industrial and provisions of lhe
Collective Bal!laining Agreement shaD be renegotiated not later than lhree (3)
years after its
Commercial Corporation, G.R. No. L-37687, Mard115, 1982, 112 SCRA440
·execution. Any agreement on such Other provisions of the Collective Bargaining
Agreement entered ilto within six
5 Eisoo-8illl LaxJ 1Mt tNAfl.U] v. Naiel, G. R L41955, Dec. 29, 19n.
(6) months from the date of expify of lhe tenn of such olher provisilns as fixed in
such Coleche Bargaining
& vuv. hcicrg, Sllplil;l..ilertyCotloo Mils wners Unkln v. L.ilerty Collen
Mils, nc., G.R -No.L-33987, Sept 4, 1975,66 Agreement shall retroact
to the day immediately fo8owing such date. Kany such agreement Is entered into
beyond
SCRA512.
six monlhs, the parties shall agree on the duration of retroactivity thereof. In
case of a deadlock iil the renegotiation
7 Volkschel LaxJ lkOOn v. BureaJ of Labor~. G.R. No. L-45824, June 19, 1985137
SCRA42. of the Collective
Bargaining Agreement, the parties may exercise lheir rights under lhis Code. (As
i1capCJated by
B Voltsdlel Llilor Unkln v. Bureau of Labor Relations, Sllpfa
Section 21, RA No. 6715, Mrch 21, 1989; As renunDered ptJfSIJalll hl SecOOn 5, RA
No. 10151, .klle 21, 2011 and
9 Associated Workers tmnPTGWOv. NLRC, GR Nos.87266-69, Ju~ 30,1990.
DOLE Depa1ment AtMitJry No. 01, Series of 2015 {Renurnbefi1g ct the LaxJ Code of
lhe Phiippiles, as Amended),
1o Philippi1e st\ylanders, Inc. v. NLRC, G.R No.127374, Jan. 31, 2002].
issued on Ju~ 21, 2015).
G.R.No.L-14689,July26, 1960.
L
lABOR RElATIONS
been held. And because of the "automatic renewal clause" provided in the CBA,
executed between Benguet and BBWU on June 23, 1959 and effective until
the time when the challenge should be made continues to pose a problem. This
December 23, 1963 automatically binds UNION-PAFLU upon its certification,
led the Supreme Court to analyze cases decided by the National Labor Relations
on August 18, 1962, as sole bargaining representative of all employees of
Board (Nl:RB) of the United States, which was the equivalent at that time of the
petitioner.
Court of Industrial Relations (CIR) ·and the present-day National Labor
support of its contention that the CBA then existing was binding on the new
"After reviewing the cases decided by the NLRB of the United States
bargaining agent- UNION PAFLU. The Supreme Court, however, ruled that
and our own cases, we have arrived at the conclusion that it is
reasonable such invocation is not persuasive because the above-
quoted pronouncement in
and proper that when there is a bargaining contract for more than a
year, it General Maritime was obiter dictum. The only issue in said
case was whether a
is too early to hold a certification election within a year from the
CBA which had practically run for five (5) years constituted a bar to
effectivity of said bargaining agreement; also that a two-yeai
bargaining
contract is not too lnng for the purpose of barring a certification
election.
certification proceedings. It was held that it did not and accordingly directed the
For this purpose, a bargaining agreement may run for three, even four
court a quo to order certification election. With that, nothing more was
years, but in such case, it is equally advisable that to decide whether
or not necessary for the disposition of the case. Moreover, the
pronouncement adverted
within those three or four years, a certification election should not be
held, to was rather premature. The possible certification of a union
different from that
may well be left to the sound discretion of the CIR, considering the
which signed the b3l'gaining contract was a mere contingency then since the
cenditions involve<i in the case, particularly, the terms and conditions
of elections were still to be held. Clearly, the Court was not called
upon to rule on
the bargaining coniract.
the possible effects of such proceedings on the bargaining agreement. It fu;ther
"We also hold that where the bargaining contract is to run for
more held:
thar. two years, the principle of substih:tion may well be adopted and
"But worse, BENGUET's reliance upon the Principle of
enforced by the CIR to the effect that after two years of the life of
Substitution is totally misplaced. This principle, formulated by the NLRB
bargaining agreement, a certification election may be allowed by the
CIR; as its initial compromise solution to the problem
facing it when there
that if a bargaining agent othr~r than the union or organization that
occurs a ·shift !n employees' union allegiance after the execution of a
executed the contract, is elected, said new agent would have to respect
bargaining contract with their employe;, merely states that even during
said contract, but that it may bargain with the management for the
the effectivity of a collective bargaining agreement executed between
shortening of the life of the contract if it considers it too long, or
refuse to employer and employees thru th1:ir agent, the
employees can change
renew the contract pursuant to an automatic renewal clause."1
said agent but the contract continues to bind them up to its expiration
In Benguet Consolidated, Inc. v. BCI Employees & Workers Union,
date. They may bargain however for the shortening of said expiration
date.
(PAFLUl/ a CBA was concluded on June 23, 1959 between petitioner
company and Benguet-Balatoc Workers Union ("BBWU"), effective for a
"In formulating the 'substitutionary' doctrine,' the only
period of 4-1/2 years, or from June 23, 1959 to December 23, 1963. It likewise
consideration involved was the employees' interest in the existing
changing their bargaining agent. And it is in the light of this that the
~suppled.
G.R. No.l·24711,Apri 30, 1968,23 SCRI\465.
! , GR. No.L-14689, July 26, 1960.
.if"
:,uu ""'_._.,_,,,"UN lABOR lAW
·tABOR Ktl.AllUN~
1
phrase 'said new agent would have to respect said contract' must be
· union, disaffiliates from the latter after it secured an independent
understood. It only means that the employees, thru their new
registration. The local union will thus be substituted to that of the federation
bargaining agent, cannot renege on their collective bargaining
which negotiated the CBA as in Elisco-Elirol Labor Union [NAFLID v.
contract, excev.t of 1course to negotiate with management for the
Noriel/ where petitioner union was created through the mode of chartering
s!tortening tbereof."
by the National Federation of Labor Unions (NAFLU) and later, it secured
2. EFFECT OF SUBSTITUTIONARy DOCTRINE ON THE DEPOSED
its independent r<:gistration with the BLR and disaffiliated with NAFLU by
UNION'S PERSONAL UNDERTAKINGS.
virtue of a resolution by its general membership.
lifetime of the CBA, the majority status of the sole and exclusive bargaining
doctrine, the new bargaining agent is not bound by the personal undertakings of
completely changes the situation of the employer and the bargaining agent. A
The 'substitutionary' doctrine, therefore, cannot be invoked
to petition for certification election
may thus be filed to detennine which of the
support the contention that a newly certified collective bargaining
unions has the majority status. The union certified as the new sole and exclusive
agent automatically assumes all the persona! undertakings -like the
bargaining agent will thus substitute the previous one as a party to the existing
no-strike stipulation ilere - in the collective bargaining agreement
made by the deposed union. When BBWU bound itself and its officers
2003,{Feb.17,2003].
This priqJie was alimled il1he case ct Milia Orienta Sai.mil Co. v. National
l.m' Unkxl, G.R. No. L-4330, March 24, ~ fulklp Slazenger [Phis.L Inc. v. ~IY
<t Labor and Employment. G.R No. 131248, Dec. 11, 1998, 300 SCRA 120,
1952, 91 Phl28.
3 SeeAIOCie241 [234-A], Labor Code.
12~126.
lABOR RElATIONS
2. NO HARD AND FAST RULE TO DETERMINE A BARGAINING
San Miguel Corporation Supervisors and Exempt Employees
UNIT.
Union v. Laguesma! - The fact that the three (3) plants comprising the
There is no hard and fast rule in determining an appropriate bargaining
bargaining unit are located in three (3) different places, namely, in Cabuyao,
unit. The 'est whether the designation of a bargaining unit is appropriate is
Laguna, in Otis, Pandacan, Metro Manila, and in San Fernando, Pampanga, was
whether it will best assure to all employees the exercise of their collective
declared immaterial. Geographical location can be completely disregarded if the
bargaining rights. There should be a community of interest which should be
communal or mutual interests of the employees are not sacrificed. The distance
reflected in groups having substantial similarity of work and duties or similarity
among the three (3) plants is not productive of insurmountable difficulties in the
of compensation and working conditions, among other criteria.•
administration of union affairs. Neither are there regional differences ·that are
majority or 84 out of the 149 qualified voters cast their votes, a quorum existed
San Miguel Corporation v. Laguesma. 4 - The Supreme Court applied
petitioner's five (5) campuses. Moreover, the administrative, teaching and office
disagreeing to this proposition of petitioner, the High Court said: "What greatly
personnel are not members of the union. They do not belong to the bargaining
militates against this position (of the company) is the meager number of sales
1 Derroaatic L.cilor AssodaOOn v. Cebu S!evedorilJ Co., nc., GR No. 10321, Feb.
28, 1958. 1 G.R. No.110399,Aug.15, 1997,277 SCRA370,38().381.
2 lni!maOOnal Scl1oa A1icU1ce ofEOOcabs PSAEI v. Olisun'bi'IJ, G.R No. 128845,
June 1, 20001. 2 G.R.No.96189,Ju~14, 1992,211 SCRA~1.
3 Sill ~uel Corpaation ~ lklion-PTGWO v. Confesor, G.R No.111262, Sept 19, 1996,
262 SCRA81, 98. 3 G.RNo.151326,NcN.23,2005.
4 GR No. 100485, Sept 21, 1994.
4 3NLRB294(1937).
lABOR RElATIONS
this mode. This case involves a corporation engaged in piggery and poultry
International School Alliance of Educators [ISAEJ v. Quisumbing. 2
raising, planting of agricultural crops and operation of superrnarts and cinemas.
- The Supreme Court ruled here that foreign-hired teachers do not belong to the
The Supreme Court ruled that it is beyond question that the employees of the
bargaining unit of the local-hires because the fonner have not indicated their
livestock-agro division of the corporation perfonn work entirely different from
intention to be grouped with the latter for purposes of collective bargaining.
those being performed by employees in the supennarts and cinemas. The
Moreover, the collectivebargaining history of the school also shows that these
differences among them lie in their working conditions, hours of work, rates of
groups were always treated separately.
pay, including the categories of their positions and employment status. As stated
3.3. COLLECTIVE BARGAINING IDSTORY DOCTRINE.
by petitioner in its position paper, due to the nature of the business in which its
This principle puts premium to the prior collective bargaining history
livestock-agro division is engaged, very few of its employees therein are
and affmity of the employees in detennining the appropriate bargaining unit.
permanent, the overwhelming majority of whom are seasonal and casual and not
However, the existence of a prior collective bargaining history has been held as
regular employees. Defmitely, they have very little in common with the
neither decisive nor conclusive in the determination of what constitutes an
employees of the supermarts and cinemas. To lump all its employees in its
appropriate bargaining unit. 3
integrated business concerns cannot result in an efficacious bargaining unit
c.
San Miguel Corporation v. Laguesma. 5 - Despite the collective
BARGAINING REPRESENTATIVE
bargaining history of having a separate bargaining unit for each sales office, the
Supreme Court applied the principle of mutuality or commonality of interests in
l.
holding that the appropriate bargaining unit is comprised of all the sales force in
DETERMINATION OF REPRESENTATION STATUS
the whole ofNorthem Luzon.
3.4. EMPWYMENT STATUS DOCTRINE.
1. EXCLUSIVE BARGAINING REPRESENTATION.
a. SEBA; meaning.
The determination of the appropriate bargaining unit based on the
employment status of the employees is considered an acceptable mode. 6 For
"Sole and erclusive bargaining agent (SEBA)" refers to a legitimate labor
instance, casual employees and those employed on a day-to-day basis do not
union duly certified4 as the sole and exclusive bargaining representative or agent
of
have the mutuality or community of interest with regular and permanent
1 Philippine Land-Air-Sea Labor Union v. CIR, G.R No. L-14656, N®. 29, mi.
lABOR RElATIONS
all the employees in a collective bargaining unit (CBU). 1 A labor union certified
as 3. DISTINCTIONS IN TERMS OF NUMBER OF
UNIONS
SEBA means that it shall remain as such during the existence of the CBA, to the
PARTICIPATINGINTHEELECTIONEXERCISE.
exclusion cf all other labor organizations existing and operating in the same CBU,
and no petition for certification election (l;lCE) questioning its majority status
shalt Before the foregoing modes
are discussed individually below in seriatim,
be entertained nor shall certification election be conducted outside of the 60-day
there is a need to point out the distinctions among them in terms of the number of
freedom period immediately before the expiry date of the 5-year term of the CBA?
unions involved in the electoral exercise.
Once certified, what is represented by the SEBA are not only its members but also
those who are members of other unions, called "minority'' unions, who are included
(1) Request for SEBA Certification.
in the CBU?
The Request will only be granted if what is involved is an unorganized
b. A non-certified union cannot collectively bargain witb employer.
establishment with only one (1) legitimate union. It will not be granted and
instead, a
Under Article 267 [255], it is clear that only the labor organization
selected certification election will be
conducted, in case the Request is made in (a) an
by the majority of the employees in an appropriate CBU through any of the proper
unorganized establishment with more than one (1) legitimate. labor organization,
certification processes can act as the exclusive representative or SEBA of all the
and (b) an organized establishment with an existing SEBA. This is as it should be
employees in such unit for purposes of collective bargaining with the
because with multiple unions present in the collective bargaining unit (CBU), the
employer. Hence, if the union is admittedly not the exclusive representative of
the SEBA cannot be designated on the
basis of a mere Request by one of them but only
majority of the employees in a CBU, it could not demand from the empioyer the
through the democratic process of certification election ir..volving all of them.
right to bargain collectively in their behalf. 4
(2) Certification eledion.
2. FIVE (5) MODES.
A certification election may be classified as follows:
The SEBA of the employees in a CBU may be determined through any of
(a) Single-unum election (when tbere is only one union in contention).
the following modes:
This refers to the situation where only one legitimate labor organization
(l) Request for SEBA certification5 (which repealed and replaced
ftles a petition for certification election (PCE} to be certified as the
"Voluntary Recognition'.6 as a mode of securing SEBA status);
SEBA in the appropriate CBU where it seeks to operate and which it
(2) Certification election;7
desires to represent.' Its opponent is the "no union" vote, a choice
(3) Consent election;8
which is always available in all electoral exercises, except run-off
(4) Run-Off election.9
election.
(5) Re-run election.10
(b) Multi-union"election 2 (when tbere are two or more unions in
contention). This may result in and give rise to the other kinds of
election, namely:
1 Mi:le 219(j) [212(i)); SecOOn 100. RUe I, Book V, llid.
2 Mi:le265~). t.axrCode; Trale Uni:lns dlhe Pllqlpiles/Febnay Six
t.blement{TUPASifSMJ v.lzq.Jesma. GR
LABOR RElATIONS
Being the sole and exclusive concern and domain of the employees,2 the
(iii) Re-run election - when there is a tie or failure of
election in a previous mode of allowing the
employer to extend "voluntary recognition" 3 to
certification election involving 2 or more unions thereby
enable a union to become a SEBA is a patently incongruous and self-contradictory
necessitating the conduct of another election called re-run
election. rule that runs diametrically contrary to
the autonomous process of choosing the
a.
SEBA. For by so allowing the employer to extend "voluntary recognition" to a
union, it is, in a way, no longer the employees but the employer who determines and
REQUEST FOR SEBA CERTIFICATION
designates the SEBA when he is not supposed to have any iota of role in such
(WHICH REPEALED AND REPLACED "VOLUNTARY
detennination and designation.
RECOGNITION")
such repeal and its eventual replacement by the mode of filing a Request for SE8A
a. Complete repeal ofthe Rules' provisions on "voluntary
first the consent a..11d vollll1tary recognition of the employer. And lll1der this
new rule,
Deparlment Order No. 40-1-15, Series of2015, 1 has expressly repealed the
the DOLE Regional Director is duty-bound to extend such SEBA Certification
entire set of Rulei applicable to "Voluntary Recognition" in the Labor Code's
simply on the basis of the iequesting union's compliance with the requirements.
Implementing Rules on Book V and replaced it with the freshly-minted mode of
c. Employt!r can withdraw "voluntary recognition."
securing the status of a sole and exclusive bargaining agent (SEBA) through a
"Request for SEBA Certification" or simply "Request. "
What militates against the mode of "voluntary recognition" is the right of
the employer to withdraw it for certain justifications such as when it has evidence
b. J!lstification for the repeal and replacement of "voluntary
that the recognized union has lost its majority status. Although such withdrawa~ as
a
recognition" by "Request for SEBA Certification."
general rule, cannot be done in view of what is known in the United States as the
It is an iron-clad, absolute rule that in an inter-union or
"Recognition Bar" doctrine,5 however, it is a fact that this doctrine has not been
certification/representation dispute, an employer is, as a mere bystander, not
considered a party thereto with a concomitant right to oppose a petition for
certification election (PCE).3 This rule holds true irrespective of whether the PCE
is 1 ld.
filed by the employer or by a legitimate labor organization.4 Ifever one may call
it as 2 The HeritrJe Hae1 Mria v. Seaeliry
of L.ala' illd fmplcftmenl, GR. No. 172132, July 23, 2014; Soo "'Juel Foods, k1c.
participation at all, the employer's role in such proceedings is limited to only
two (2) v. Soo t.iJue1 Corpa3kln ~ llll
Exen1!t !.Woo, G.R No. 146200, AL9. 1, 2011. 655 SCRA 1, 17; Trale lkioos
as sudl v.ilh l1e Regiooal O!lb!. (See SecOOn 2, PJ!Ie VII, Bodt Vci lhe rues ID ~!
he Labor COOe. (See Section
1 ~1. lUll, BOO< V, Rules to ~Iemen! lhe t.m Code, as lmlllded by Depment Older No.
401J3, Series ci 2003,
.,..
lABOR RElATIONS
If he/she finds it deficient, the DOLE Regional Director should advise the
adopted into Philippine laws, rules and jwisprudence. Resultantly, the recognition
requesting union or local to comply within ten (10) days from notice. Failure to
voluntarily extended to the recognized SEBA is always subject to the threat of
being
comply within the prescribed period shall be deemed withdrawal of the Request?
withdrawn by the employer.
This fear does not exist under· the present mode of simple filing of a
4.1. THREE SCENARIOS INVOLVING A REQUEST FOR
"Request for SEBA Certification" since it is no longer the employer that grants
CERTIFICATION.
voluntaty recognition but the DOLE Regional Director who, as earlier emphasized,
There are three (3) scenarios conceived under the Rules on this mode,
is under mandate to extend such SERA Certification upon showing by the requesting
namely:
union of compliance with the legal requirements.
certification.4
v.flhdraw reccgnition of the lriln at EfT/ line prkJ tJ a CBA being reached
upon ashaM1g !hat lhe ooion did net lif*'t
mcfxity slab.ls ill'OOJ lhe ba'gaili"IJ Illi!.
1 SediJn 1, IU! VII, Book V, ~ tJ ~the IJW' Code, as !ll1el1ded b'f Depment
Order No. 40{)3, Series cl
2003, !feb. 17, 2003], llld asfurhranmd b'fSediJn 3, Depa1rreiiOiderNo. 40-
~15, Series cl2015 [Sepll!flter07,
2015], enti1led "FU!Iher Amendi1g Depatbnent Order No. 40, Series cl 2003,
ArilerOOg lhe ~ Ruk!s Clld 1 F'urstmt tJ Section 4 [REQUEST
FOR CERTIFICATION IN UNORGANIZED ESTABLISI-IMENT WITH ONLY ONE (1)
Repatb1s d Book v cl the l1ilor Code cllle Phijlpiles, as Mlended.' Other
1enns used syi100yi1llUStJ C!1d LEGITlMATE UNION; VALIDATION
PROCEEDINGS] of Rule VII, Ilk!., (Section 3, ROO VII, Ibid.).
illefthalgeal*f with 'chartered loot 11e 'kx3 ~, 'kx:aUdlaptel", 'b3"
or'chapter." 2 kl.
2 Section 2, Rule VII, lbkf.
3 SecOOn 4, Rule VII, Ibid.
3 ld.
4 kl.
~ Refemilg to the docurnen1ary requi'emenls mentiooed i1 Section 2, Rule VII,
Ilk!.
lABOR RElATIONS
refer the same to the Mediator-Arbiter for the detennination of the propriety of
If the DOLE Regional Director finds the requirements complete, he/she
conducting a certification election.3
should issue, during the conference, a Certification as SEBA enjoying the rights
and
clearly involve the conduct of certification election. It is only in the 1st that
the
The DOLE Regional Director should cause the posting of the SEBA
conduct of certification election is not the order of the day; there will be
certification
Certification for 15 consecutive days in at least 2 conspicuous places in the
election only when the requesting union or local fails to complete the requirements
3
establislunent or covered bargaining unit
for SEBA certification during the conference, in which even~ the DOLE Regional
c. Effect of certification.
Director shall refer the Request directly to the Election Officer, not to the
Mediator-
CERTIFICATION ELECTION
d. Certification year bar mle.
The issuance of the SEBA Certification bars the filing of a petition for
1. DEFINITION AND NATURE.
certification election by any labor organization for a period of one (I) year from
the "Certification
election" refers to the process of determining through secret
date of its issuance. It is only upon the expiration of this 1-year period that any
other ballot the SEBA ofthe employees
in an appropriate CBU for purposes of c.ollecrive
legitinmte labor organization may file a PCE in the same CBU represented by the
bargaining or negotiations. A certification election is conducted only upon the
order
certified SEBA for purposes of challenging the majority status of the certified
of the Med-Arbiter of the BLR.6
SEBA, unless a CBA between the employer and the certified SEBA has already
5
Certification election is the most democratic method of determining the
been executed and registered with the Regional Office.
3 Section 6, Rule VII, llid. il accoo1in:e Ylill Rules VIII and IX d the Rules.
TJade Unklns of lhe Philippines il1d Alied Se1vices WOO:! Federatioo ofTrade Unioos
[TUPWM=TUJ v. L.aguesma, G.R
IWhout prejudice~ llle ~er bei1g prosecuted for the ULP act.
No.102350, June 30, 1994.
lABOR RElATIONS
Two (2) kinds of establishments are treated in the law, insofar as inter-
Direct certification originally allowed under Article 269 [2S7t of the
union or representation issues are concerned, namely:
Labor Code had been discontinued by President Corazon C. Aqujno's Executive
Order No. 111 5 as a method of selecting the exclusive bargaining agent of the
(a) organized; and
employees. 6 This is because the conduct of a certification election is still
necessary in (b) unorganized.
order to arrive in a manner definitive and certain concerning the choice of the
labor
The two consecutive provisions of Article 268 [256] and Article 269
organization to represent the workers in a collective bargaining unit. 7 This
(1) Even if there are several unions in existence in one CBU for as long as
2 ~Labor Unioos v. FemJ-Cal'Eja, GR No. 82260, JUy 19, 1989; MJdem Flshi'g Gecr
l.aborlkiln v. Norlel, G.R not one of them is duly certified as
SEBA.
No. 53907, May 6, 1988.
3 NaliooaiFederatioo ofl.aborv.lhe Seaellrydl.abor, G.R No.104556,Moo:tl9, t998.
(2) In CBUs therein existing that have no SEBA. For example, even if
4 The agna Arli::le 2681256] ct the l.abor COOe prcMled as blkMs: 'Artil26812561.
Procedue g<MIIi1g represenlalion there is a duly certified SEBA for one
CBU, say, for rank-and-file employees, the
issues.· Wlen aqueslkxl cmcemi1Q te represenlalioo ct ~ 6 !UJrrilled mlle
t.tllsky, a MeciMJier sha'llu
en! decide Sldl OOIMtNersy a1d re!tify ID the pcrties n 1\!iDJ tie nanert lle
lm'agRalion 11at has been des9J*d establishment is still considered
unorganized if there is no SEBA yet for another
aselecild byte~ clthe wakefs illhe ~ bclgalD;J IIi as lle~ balJai1i'G ~ lflere 6
rnt CBU, say, for supervisory employees.
The reason is that the CBU for rank-and-file
reasiMJie ckldlt as m1\ith u1oo te ~ taoe chosen as ht ~ b' tie pupa;e ct
CXJIIedNe employees is definitely separate
and distinct from the CBU of supervisory
bclgailD;J, the Med-Mller shal oolEJ an elecOOn by seaet bard mbe cm:lucEd by lle
t.tl*y mascer1ail f1e freett
chosen represeo1lltJe d the efl1lloyees coocemed, lllder Sldl Mils en! regUatiOns
as 11e J.tBy may presaiie, at employees.
v.llk:h elecli:x1 ~of tie oonlendi1g pcrties shal have l1e ~ ma:t as~ The 1m'
111i:ln receivi1g
11e l11<jriy d the valkl vaes cast shall be cet1ified as 11e exctJSNe ba'gaililJ
repcesEiltitive dtevmers~ The case of Lepanto
Consolidated Mining Company v. The Lepanto
s Issued by former President Corazoo C. Aquilo. l ilctl el!ea on Milth 4, 1987. The
anendailly pro'lisi:ln c1 Sedkln 7d Capataz Union, 3 best illustrates the
situation where the supervisory employees called
ExeaJWe Onler No. 111 is lle one reflecled il Arli::le 269 t257J prior ID Is
lllli!IUnent by Section 24, RA No. 6715, Midi "capatazes" were historically been
members of the rank-and-file union [Lepanto
21,1989 em Section 11,RA No. 9481, v.ili:h ~itllcr.vonMay25,2007 andbecameefl'ec!
NeooJune 14, 2IIJ7.
s ~ Mllggagawa sa Pennex [SM?-PULLJ.TUCP) v. Secretay rl t.a;xr, G.R. No. 107792,
Mi1t11 2, 1998, 286
SCRA 692; Cental Negros Electric CoopelatiJe v. Secretay of labor andfn1Jbyment,
GR No. 94045, Sept. 13, 1991,
201 SCRA591.
1 Secti:ln 1 [II], Rule I, Book V, Rules lo ~Iemen! the Labor COOe, as amended by
Depment Order No. 40-00, Series of
7 WesbllAgusanWalters Unionv. Trajano, G.R. No. 75724, May6, 1991.
2003, [Feb. 17' 2003].
2
a Nalionalt\ssodation of Free Tradei.Jnions(NAFLU-TIJCP)v. BlR, G.R No. 77318, Aug.
3, 1988. Mi::le 269 [257], Lalor Co:le.
s G.R No. L-44350, Nov. 25, 1976, 74 SCRA 72.
3 G.R No. 157086, Feb.18, 2013.
lABOR RElATIONS
2
employees· of petitioner's Mine Division. In giving due course to their PCB, it was
independent union or local chapter/chartered local;
declared that the capatazes are not rank-and-file employees; hence, they could form
(2) By the president or duly authorized representative of the federation or
their own union. They were performing functions totally different from those
national union, if filed br a federation or national union in behalf of its
performed by the rank-and-file employees. The bargaining unit sought to be
local chapter or affiliate; or
represented by the appellee are the capataz employees of the appellant. There is no
(3) By the president or any corporate officer who is authorized by the
4
other labor organization of capatazes v.ithin the employer unit except herein
Board of Directors, if filed by the owner.
appellant. Thus, appellant is an unorganized establishment in so far as the
The minimum number of at least 25% of the employees in the CBU
bargaining unit of capatazes is concerned.· Consequently, the Med-Aroiter shall,
mentioned in this article need not verify the PCE. What is required is merely to
pursuant to Article 269 [257] of the Labor Code, automatically order the conduct
of· attach to the verified PCE the signatures of
said number of employees.
certification election after determining that the PCE has complied with all the
requirements under the law.
1.3. THIRD REQUISITE: THE PCE SHOULD BE SUPPORTED BY
The reason behind the 25% requirement is to ensure that the petitioning
l. REQUISITES IN THE FILING OF PCE IN ORGANIZED
union has a substantial interest in t.'le representation proceedings and that a
ESTABLISHMENTS.
considerable number of workers desire their representation by the said petitioning
Under Article 268 [256], the Med-Arbiter is required to automatically
order union for collective bargaining purposes.
Hence, the mere fuct that 25% of the
the conduct of a certification election by secret ballot in an organized
establishment workers in ihe bargaining unit
signify their support to the petition by their written
as soon as the following requisites are fully met:
consent, it becomes mandatory on the part of the Med-Arbiter to order the holding
of
7
percent (25%) of all the employees in the bargaining unit 1
exercised in fuvor of holding a certification election.
1.1. FIRST REQUISITE: THE 60-DAY FREEDOM PERIOD.
c. The 25% requirement need not be strictly enforced.
As has been repeatedly discussed, it is only during this period that a
PCE This means that the 25% requirement
may not be strictly enforced
may be filed by a challenging union. It cannot be a day before or after this
period. If Compliance therewith need not be
established with absolute certainty. Thus, even if
it is filed a day earlier or longer, then it is considered prematurely filed; if
it is a day this statutory requirement has not been
strictly complied with, the Med-Arbiter is
after or longer, then it is considered belatedly filed. The 60-day period is
strictly still empowered to order the conduct of
the certification election for the purpose of
observed in determining the validity of the filing of the petition.
1.2. SECOND REQUISITE: THE PCE MUST BE VERIFIED.
1 Sedion 4, Rule VIU, 13001 V, Rules_, ~the l..alxrCode, as anended by Oepmen!
Oida" No.~. Series of
2008 (OdOOer 30, 2008~
The "verified petition" mentioned in Article 268 [256] refers to the
2 ld.
"petition for certification election" (PCE). Per Implementing Rules,1 the PCE is
3 ld.
4 ld.
required to be in writing and verified under oath by any ofthe following:
5 Phirppr,e Association of Free Labor Uni:lns (Septerrber Convention) v. Ferrer-
Cci!ja, G.R No. 79347, .lal. 26, 1989;
Sanaha1g Mi1YJgagawa rg PadfK: Mils, Inc. v. Noriel, G.R No. L·56586, Jill.
17,1985, 134 SCRA 152.
6 AI0C1e 269 ~57].l.alxrCode; Atlas Free WOOiers UnD1 v. Noriel, G.R. No.L-51005,
M3y 26,1981,104 SCRA565; FFWv.
1 Tra:leUnions d the PhiiJpiles and Allied SeMces Wor1d Federalioo of Trade
Unions [TUPAS-WFTIJ) v.Laguesma, G.R Noriel, G.R Nos. L-47182-a:l, Oct 30,
1978,86 SCRA 132.
No. 102350, June 30,1994.
7 National Mines and Allied Wcx1<ers Union [NAMAWJ.UIF] v. Luna, G.R. No. L-
46722. June 15, 1978, 83 SCRA f1J7.
lABOR RElATIONS
In Pizza Hut,3 it was held that the Labor Code requires that in organized
In a PCE filed by a legitimate organization involving an unorganized
and unorganized establishments, a PCE must be filed by a legitimate labor
establish.."Uent, the Med-Arbiter is required to immediately order the conduct of a
organization. The acquisition of rights by any union or labor organization,
certification election upon filing thereof by a legitimate labor organization.3 For
particularly the right to file a PCE, first and foremos~ depends on whether or not
the
obvious reason, the three (3) requisites that apply to PCEs in organized
labor organization has attained the status of a legitimate labor organization:'
establishments do not have any application to PCEs in unc~ganized establishments.
The only requirement is that the petitioning union should be legitimate. Being an
4. THE DOUBLE MAJORITY RULE.
unorganized establishment, the obvious rationale behind the law is to make it easy
The process of certification election requires the application of the double
for employees to self-organize - a policy which is enunciated in the Constitution
and majority rule for the following
twin purposes:
labor laws.
must have cast their votes. 5 If less than such majority have cast their votes, the
1 CrMoo1ia t.tmrcmi1g Colpaatioo v. Laguesma, GR No. 97020, June 8, 1992;
Easbld P.'allfaWI1g ~. 0:. v. certification election
process itself is not valid and, therefore, not one of the
Noriel, No.l...SS28, Feb. 10, 1982,111 SCRA 674; Alas Free WOO<ers
lJnioo.PSSLU~v. Noriel, G.R No.l-51905,
May 26, 1981, 104 SCRA 565; Soout Raroon Albooo Mlmaia!College v. Noriel,
G:R. No.l-48347, Oct 3, 1978,85 SCRA
494; Natkxlal Mnes !I'd Alied WOO<ers Union v. luna, G.R No. l-46722, June
15, 1978, 83 SCRA 607; Mm1l Artk:les 268 !256J !I'd
269 (257], labor Code; ld., ld.,
lnenaliona, Inc. v. Noriel, GR Nos.l-4757().71, May 11, 1978,83 SCAA 114; K<
¢am RJ IIlJa Mqgaga~oasal.a Sec00n 1, IU! VIII, Book V,
RUes to in1Jiemenl lhe Laxr Code, as l!llEOded by Depment Order No. 4Q.F.03, Series
rl.
&Jem.FOITAFv. Noriel, G.R No.l-45475, .1111e 20, 19n, n SCRA414.
2008 [Oddler 30, 2008], issued pliSUal!ID RA No. 9481, Clld as flllher amended by
Section 4, Depainert Order No.
2 Olienlal T11 Coo La!orUnion v. Secrelary of labor and Employment -G.R No.
H6751, Aug. 28, 1998, 294 SCRA 640; 4().~15, Seriesof2015
[Seplenter07,2015],1bid.
Coosoli!ated FillllS, Inc. II v. Noriel, G.R No. L-4n52, July 31, 1978, 84
SCRA 469, 472; Phiippile Associafioo of Free 3 PrcgressM!
~Colp.~Hutv.Laguesma,G.RNo.11SOn,,Ajlril18, 1997,271 SCRA593.
t.mUnionsv.8LR, G.R No. L42115,Joo.37, 1976,69SCRA 132.
. 4 See aso Ta;~<fi!aY li;Jhlmds klt!!maiXlrla Golf
Cklb Inc. v. Ta;~<filaY H~hmds ~ees Union-PGlWO, G.R No.
3 · Artk:1e 269 (257], Labor Code, as amended by Sec6oo 24, RA No. 6715, Mlth 21,
1989; Sec6oo 1, Rule VIII, Boolt V,
·~-
lABOR RELATIONS
contending lillions therein, even if chosen by the majority of the votes cast, can
be (2) Majority voting is the mode
but not plurality voting.
certified as the SEBA to represent the CBU.
Majority voting system is one in which more than 50% of the eligible
Second Majority: Majority vote of the valid votes cast required in order to be
voters should vote for the candidate-union in order for it to be declared the
winning
chosen as the SEBA. .
SEBA. Plurality voting system is one in which each voter is allowed to vote for
After establishing the validity of the certification election process
itsel~ the only one candidate-union, and the
candidate-union which polls more votes
next point to ascertain and establish is whether the petitioning union, in a
single- (plurality) than any other candidate-
union/s is proclaimed the winning SEBA.
union contest, or any of the unions, in a multi-union election, has garnered the
Simply stated, a majority, on the one hand, means more than half of the
majority of the valid votes cast. Under the same Article 268 {256], it is required
employees-electomte have voted for one candidate-union. This means that it gets at
that only "the labor union receiving the major/tv of the valid votes cast shall be
least 50.1% of the votes. A plurality, on the other hand, means the greatest number
certified as the exclusive bargaining agent of aU the workers in the unit" and
but less than half of the employees-electorate have voted for the candidate-union
that
under Article 267 [255], it is likewise provided that the labor organization
designated wins because the vote is split among
more than two candidate-unions. For example,
or selected by the majority of the employees in an appropriate CBU is the exclusive
Uniou A gets 45% of the vote, Union B- 25%, and Union C- 20%, with the other
representative of the employees in such unit for purposes of collective
bargaining.1 unions getting the rest (or
splitting the remaininglO%). Union A, therefore, wins by
a plurality (the most votes) but not a majority (over half the votes).
• Example of the manner of reckoning the double majoritv.
To illustrate the proper reckoning of the double majority, in a
bargaining 5. "NO UNION" IS ALWAYS A CHOICE IN
A CERTIFICATION
urjt for example composed of 100 employees, the first thing to detennine is how
ELECTION.
many votes should be validly cru.t in order to have a valid process of
certification
election. The second tlllng to ascertain is how many votes should a contending
union It is basic a principle hlabor
relations that the right to join a union has the
gamer in order to be declared winner and thus be proclaimed as the SEBA of all the
concomitant right not to join one. It is on this basis that "No Uninn" is ~!ways a
employees in the CBU.
choice in all certification elections.
1 Underlhe Rules, a ~n election should be held: (1) in case af atie, v.i1hi1 ten
(10) daysaftertheposting oflhe notice of re-
1
run election; or (2) in case of faWre of eledkln, Ytithin six (6) roonil'.s ian
dale of declaJalion of fallre of election. On lhe
lsaa: Peal v.llnitld fn1lloyees We!lae AssociaOOn, GR No. L-9831, Oct 30,
1957, 1{)2 Pli. 219; United Restauroi's
ot1er tml, aIUlXJII election is requied to be ronducled v.;ttJi'i ten (10) days
from the dose ri lhe elecOOn proceedings
~Mdl.miJnlon.PAFLUv. Tooes,G.R No. L·24993,Dec.18,1008,26SCRA435.
between lhe labcJ unions receiving lhe l'Ml h~hesl number af votes, if lhere are no
objedioos or chafienges which, if
2 PAFLUv. Bureaucll.mReim1s, G.R No.L43760,Auj. 21,1976, 72SCRA396.
lABOR RELATIONS
involve only the labor unions receiving the two highest number of votes in said
2. GENERAL RULE.
original election.
Once a CBA is duly registered and validly subsisting, the BLR should not
(i) Violation of the various bar rules. (See discussion below).
entertain any PCE or any other action which may disturb the administration of the
duly registered existing CBA. 2 Neither party should tenninate nor modify such
b-3.
agreement during its lifetime. Inter-union electoral contests are therefore not
BAR RULES
allowed. 3
l.NATURE.
2. DURATION OF THE CONTRACT BAR.
6
The bar doctrines are meant to limit employee Jree choice in order to
For the entire 5-year lifetime of the CBA, "[n]o petition questioning the
promote indll$trial stability. Consequently, they protect the SEBA from possible
majority status of the incumbent bargaining agent shall be entertained and no
onslaught on its majority status by either the employer, rival unions or CBU
certification election shall be conducted by the Department of Labor and
employees .<furing the period of bar doctrines' etfuctivity. By insulating the SEBA
Employment outside of the sixty-day period immediately before the date of expity of
against such assault for specified time periods, it gives it a chance to prove
itself such five-year term of the
[CBA]."
worthy of its designation as representative of the CBU.
3. PURPOSE OF RULE.
1 Section 14{a), RPe VIII [Certification EledDil. Book V d the Ruk!s tl ~ the
l.itxr Code, as anended by In more specific
terms, the reasons for this rule are as follows:
Oepa1ment O!de" No. 40-F-03, Series 11 2008 (Oct!lber 30, 2.0081. See Secbt 11,
paaglilj)h II, ~ PJJies of
llook V, RPe XI, as ill1ellded by D.O. No.9; Sanahalrg n-ga ~sa Scmnalakassa
lnd!Gbiya ng ~
Hai;Ji ng N(<r1sa (SMf.IA LIKHA) v. Soorna Clvporatioo, G.R. No. 167141, Mrch
13, 2009.
2 Section 14(1!), Rule VIII[CertiOCafioo ElecOOnl, llookVoltheRllles tllfr4!
1ementlle Labor Code, Ibid. 1 Section 3, Rille VIII,
llook V, Rules to ir4llementthel.aborCode.
3 SecOOn 14{~. 1Ul VIII, llid.
2 SecOOn 1,Rule VIII, Book V,
Ruleskl~ttheL.aborCode,asanendedby(lepmentOrdefNo.4Q.F.OO, Series of
4 Section 14{g), Rule VIII, llid.
2008 (OdOOer 30, 2008], issued J1U1S1S11 kl RA -No. 9481, llld as U1her anended by
Sedion 4, 0epam1ent Older No.
s Section 14(h), Rule VIII, Ibid.
~t5. Series of2015 [Septer00er07, 2015].
6
Erl1llafee 'free choice' refers to the ri;Jht g1lllled to an empkJyee to make a
clelenrdnation of v.tlettJer or not to be 3 foamlex Labor Unkln v. Noriel,
G.R No. L-42349, Aug. 17, 1976, 72 SCRA 371; Association of Independent Unions il
the
represented by alriln.
! Ptippi1es fAI\JP] v. NlRC, G.R. No. 120505, Manti 25, 1999,305 SCRA 219;
364 Phil. 697.
lABOR RElATIONS
wherein the CBA can no longer foster industrial peace. The conduct of
continue to recognize the majority status of the incumbent
bargaining
a certification election in such a situation becomes imperative to clear
agent where no PCE challenging such majority status is filed by
any
any doubt as to the real and legitimate representative of the employees.3
other union.3
(8) When there is an automatic renewal provision in the CBA but prior to
the date when such automatic renewal became effective, the employer
4. EXCEPTIONS.
seasonably filed a manifestation with the BLR of its intention to
The contract bar rule admits of several exceptions where a PCE may be
terminate the said agreement if and when it is established that the
validly filed, to wit:
bargaining agent does not represent anymore the majority of lbe
(9) When the CBA does not fostei indu.:.'irial stability anymore, such as
(2) When the CBA is not registered with the BLR or any of t.i.e DOLE
2 Associaal Trade lklion v. Noriei;G.R No. L-<l8367, Jlfl. 16, 1979; 88 SCRA 96;
GOP.ccP Wxkers UniJn v. CR, GR.
~ '
5'l.'J
lABOR RELATIONS
3. THE 1-YEARPERIOD,HOWRECKONED.
(11) Where the CBA is executed before any employees are hired.1
The 1-year period for "statutory bar" begins to run on the actual date of
the prior election, not from the date the SEBA was certified, 1 which is the
reckoning
n.
date for another rule- the "certification year bar. "
STATIJTORY BAR RULE
If the prior election results in a vote for "No Union, " the one-year period
1. RECKONING OF 1-YEAR PERIOD.
runs from the date of that election. 2
The Labor Code does not contain any provision on this rule but the Rules
4. INAI)PL!CABILITY TO THE CONDUCT OF RE-RUN OR RUN-OFF
to Implement the Labor Codi embody a rule that bars the filing of a PCE within a
ELECTION.
period of one (1) year from the date of a valid conduct of a certification,
consent,
run-off or re-ruu4 election where no appeal on the results thereof was made.5 If
there In situations
where the conduct of a re-run or run-off election3 becomes
was such an appeal from the order of the Med-Arbiter, the running of the one-year
necessary, the statutory bar rule does not preclude it nor apply thereto since it
is
period is deemed suspended until the decision on the appeal has become final and
required to be done and accomplished within a certain period after the failed
executory.'
certification election, which period incidentally falls within one (1) year
thereafter.
This is called the statutory bar rule which finds its roots from a
similar Thus, a
re-run election should be held:
rule in the United States. Thus, an election cannot be held in any bargaining unit
in (I) In case
of a tie, within ten (I 0) days after the posting of the notice of re-
which a final and valid election was concluded within the preceding 12-month
run election;4
period.'
(2) In case of failure of election, within six (6) months from date of
.
. .
.J-7
lABOR RELATIONS
15, Series of 2015. Previously, the 1-year period is reckoned from the date of
sustained, can materially alter the results.
recording of the Voluntary Recognition. However, under this new mode, the same
period is counted from the issuance of the SEBA certification which shall have the
m.
effect of barring the filing of a PCE by any labor organization. It is only upon
CERTIFICATION YEAR BAR RULE
expiration of this 1-year period that any legitimate labor organization may file a
PCE
1. CERTIFICATION YEAR- THE PERIOD WHEN THE CBA
in the same bargaining unit represented by the certified SEBA, unless a CBA
NEGOTIATION MUST COMMENCE AFTER A UNION HAS BEEN
between the employer and the certified SEBA was executed and registered with the
CERTIFIED AS SEBA.
DOLE Regional Oftice.4
Although the Labor Code does not contain any provision on when the
Note must likewise be made of No. 2 above where a distinction should be
collective bargaining negotiation process should start after a union is duly
certified made between the
reckoning of the 1-year statutory bar and the 1-year
as the SEBA of the employees it seeks to represent in a given bargaining unit,
there certification year bar.
The 1-year period in the former should be counted from the
is, however, this provision in the Rules to Implement the Labor Code1 when the
date of the election; while the 1-year period in the latter should be from the date
of
Mediator-Arbiter may dismiss the PCE if the same is filed within one (l) year
certification of the SEBA. The union will be deprived of its entitlement to the
critical
reckoned and counted:
one (1) year as a certified SEBA if this period is reckoned from the actual date
when
the certification, consent, run-off or re-run election was conducted. The union
(1) From the date the SERA Certification is issued by the DOLE
certainly is entitled to a full twelve (12) months as SEBA. Until the certification
is
Regional Director in cases of Request for SEBA Certification
filed in made in its favor, its status
as SEBA is not definite.
an unorganized establishment with only one (l) legitimate
labor
This rule is better known as the certification year bar rule5 which is
organization;1 or
similar to the "cert:fication year" rule6 in the United States where it is provided
(2) From the date of issuance of certification as SEBA and not
from the
that the collective bargaining negotiations between the employer and the SEBA
date of the conduct of valid certification, consent, run-off
or re-run3
should begin within twelve (12) months following the certification of the latter as
election. 1
SEBA. This rule thus prevents the holding of a new ~rtification election until the
530
l
BAR REVIEWER ON lABOR lAW
CHAPTER VII 531
lABOR RElATIONS
It must be noted that there is no law or rule that imposes a time limitation
union to file a new petition for certification election.3
or cap as to when the parties should negotiate and conclude a CBA. The parties have
3. INTERRUPTION OF THE RUNNING OF THE 1-YEAR PERIOD.
all the freedom to do the negotiating of the CBA's terms. In other words, the
Where an appeal has been filed from the order of the Med-Arbiter
negotiation process may last for days, weeks, months, even years, and during the
certifying the results of the election, the running of the one (1) year period is
deemed entire
duration of negotiations, no PCE may be filed by any challenging union!s.
suspended until the decision on the appeal has become final and executory.4
v.
IV.
BARGADUNGDEADLOCKBARRULE
NEGOTIATIONS BAR RULE
1. CBA DEADWCK, MEANING.
1. TilE CBA NEGOTIATION SHOULD BE VALIDLY COMMENCED
"Collective bargaining dead/ocR' refers to a situation where there is a
WITHIN THE REQUIRED PERIOD.
failure in the collective bargaining negotiations between the SEBA and the employtr
bargaining in good faith, the parties have failed to resolve the issues and it
appears
entertained from the moment the SEBA and tiJ.e employer have commenced and
that there are no other definite options or plans in sight to break the standoff.
Simply
sustained negotiations in good faith in accordance with Article 261 [250] of the
L
jJisdiclion and power to Issue the SEBA Certification.
Philippiles-TUCP v. Trajano, G.R No. 67485, Apri110, 1992; Natmal Congress of
Unions ilthe &lg1r i1dustry of the
'
. .
lABOR RElATIONS
NAFLU opposed the petition contending that at t.ite tLme the petition was filed on
The Supreme Court, unconvinced of this argument, ruled that although
April ll, 1985, it "Yias in process of collective bargaining with VIRON; that there
there was no bargaining deadlock between respondent CMCEA-AFW and
was in fact a deadlock in the negotiations which had prompted it to file a notice
of
respondent CMC before the filing by petitioner CMC-ACE-UFSW of the petition
strike; and that these circumstances constituted a bar to the petition for election
in
for certification election which had been submitted to conciliation or had become
the
'Mth Al1kle '!37 !2311 ct lle Qxle, a petition for teltifK:aOOn eledi:x1 n\CPf be
lied at lJrf line. Hov.eier, no celtification
electioo may be hek:l wiilil one yell' tool the dale d isslJm! d dedclatioo cl a 1M
cer1ifcaOOn eleclixlrWt. Neither
CHAPTER VII
lABOR RELATIONS
535
to bring VIRON to the negotiation table had been unsuccessful because of the
latter's 2. CONSENT ELECTION VS.
CERTIFICATION ELECTION.
recalcitrance and unfulfilled promises to bargain collectively; but there is no
proof
that it had taken any action to legally coerce VIRON to comply with its statutory
Consent election is but a form of certification election. They may be
duty to bargain collectively. It could have charged VIRON with unfuir labor
distinguished from each other in the following manner:
practice, but it did not. It could have gone on a legitimate strike in protest
againSt
(1) The former is held upon the mutual agreement of the contending
VIRON's refusal to bargain collectively and compel it to do so; but it did not.'
unions; while the latter does not require the mutual consent of the parties as it
is
(2) The stark, incontrovertible fact is that from February 27, 1981 -when
conducted upon the order of the Mediator-Arbiter!
NAFLU was proclaimed the exclusive bargaining representative of all VIRON
employees -to April 11, 1985 - when KAMPIL filed its petition for certification
(2) The former may be conducted with or without the control and
election or a period of more than 4 years, no CBA was ever executed and no
supervision of the DOLE; while the latter is always conducted under the control and
3
i.e., charging the employer with unfair labor practice and conducfillg a strike in
through the former. This is so because under the !mplementi!1g Rules, as ame!1ded,
4
protest against the employer's refusal to bargain. It is thus only just and
equitable even in cases where a PCE is
filed, the Mediator"Arbiter, during the preliminary
that the circumstances therein should be considered as similar in nature to a
conference and hearing thereon, is tasked to determine the "possibility of a
consent
"bargaining deadlock" when no certification election could be held. In the latter
election. " It is only when the contending unions fail to agree to the conduct of a
case, there was no proof that, for more than 4 years, the bargaining agent had
taken consent election during the
preliminary conference that the Mediator-Arbiter will
any action to legally coerce the ~mployer to comply with its statutory duty to
bargain proceed with the process of
certification election by conducting as many hearings as
collectively.
he may deem necessary up to its actual holding. But in no case shall the c.onduct
of
the certification election exceed 15 days from the date of the scheduled
preliminary
c.
conference/hearing after which time, the PCE is considered submitted for decision.
5
CONSENT ELECTION
(5) The former necessarily involves at least two (2) or more contending
1. DEFINITION.
unions; while the latter may only involve one (1) union.
"Consent election" refers to the process, voluntarily and mutually agreed
(6) The former may be conducted in the course of the proceeding in the
upon by the eQntending unions, of determining through secret ballot the SEBA of the
latter or during its pendency.
employees in an appropriate CBU for purposes of collective barfaining or
negotiation. It is conducted with or without the intervention of the DOLE.
Sedion 9, Rule VIII, Book V, Rules tlltr!>lement the Lalor Code, as amended by
Oepartnent Older No. 40-03, Series of
Union [Vv'MMJ] v. Bureau of labor Relations, G.R No. L-76185, Mald1 30, 1988,
159 SCRA 387; United Reslauror's 2003, [Fell. 17, 2003].
~and labor Union-PAFLU v. Tares, G.R No. L-24993, Dec. 18, 1968,26 SCRA435.
5
.~--~··n e· ·t @#'Sf
CHAPTER VII
lABOR RElATIONS
537
d.
e.
RUN-OFF ELECTION
RE-RUN ELECTION
1. DEFINITION.
1. RULE ON RE-RUN ELECTION, NOT FOUND IN LABOR CODE BUT
A "run-off election" refers to an election between the labor unions
LATELY PROVIDED IN A DOLE DEPARTMENT ORDER
receiving the two (2) highest number of votes in a certification election or
consent
election has been declaroo by the Election Officer and/or affinned by the
present and there are no objections or challenges which, if sustained, can
materially Mediator-Arbiter. "1
alter the election results, the Election Officer should motu proprio conduct a run-
off
election within ten (10) days from the close of the election prCY"...eediP..g
between the b. Grounds cited in the Rules for
re-run election.
labor unions receiving the two highest number of votes. 2
Based on the above-quoted rule, there are 2 situations contemplated
that negate the true will, undistorted desire and informed choice of the employees-
(2) If all the votes for the contending unions are added up, it will
result in at
1 Miele 268 [256[, Laboc Code; SecOOo 1 [ssj, Rule I, Book V, IUJs lo ~~ lhe
Labor Code, as anended by
1 lJndeJsaxi1g suppfied; New SecOOn 1(11), Rule I, Book V, IU!s Ill ~tie
l..aba"Code, as emended by~
DepmentOrderNo.4003, Sefiesof2003, [Feb.17,2003~
Onler No. 40-03, Series ci 2003, (Feb. 17, 2003[, !l1d as fuiDler added tlmlgh f1e
001e10nen1 iltnxluced by Sdx12,
2 SecOOn 1, Rule X, Book V, Ibid.
Oepment OnlerNo. 40-~15, Series of2015 [Sepfemler07, 2015], entiUed 'Ful1her
Pmendilg ~Qder No.«<,
3 ld.
Series of 2003; Arnen<fing lhe I~ Rules !l1d ReglEiicns of Book vci lhe Laboc Code
ollhe l'tlilippileS. as
Amended.'
d * "'terta
example, in a CBU composed of 100 employees, the majority of 100, which is 51,
(a) Between the 2 contending unions and the "No Union"1 choice
did should participate in the election;
otherwise, if less than 51 employees have
not garner the majority; or
participated, there is here a failure of election.
(b) Between 1of the 2 unions and the "No Union" choice.
A failure of election shall not bar the filing of a motion for the immediate
(a) Between and among 2 or more or all of the contending unions
and holding of another certification or
consent election, now to be called re-run election,
the "No Union" choice did not muster the majority; or
within six (6) months from the date of declaration of failure of election.3
(b) Between und among l or more of the contending unions and
the
"No Union" choice.
2. RUN-OFF ELECTION VS. RE-RUN ELECTION.
These two kinds of election may be distinguished from each other in that a
(3) A tie in the votes occurred between the 2 unions involved in a
run-off
be held instead
In any of the three (3) situations mentioned and discussed above, the
Election Officer should immediately notify the parties of a re-run election. The
Election Officer should cause the posting of the notice of re-run election within
five
1 ld.
(5) days from the certification, .consent or run-off election. The re-run election
shall 2 Section 16 ~Section 17], Rule IX,
B<n v, Rules to ki1J1ement the Lalor Code, as emended by Depment Oilier
be conducted within ten (1 0) days after the posting of notice.3
No. «Hl3, Seriesd2003, JFeb.17, 2003Lllld asre-rumered byDepa1men!OnlerNo. 40-F-00,
Series 112008 JOel 30,
2008].
lrr1Jiement the Lalor Code, by viWe of the llHitlll'bering O!dered by Sedioo 17,
l:lepcnnmt Oilier No. 40+15, Series of
1 See i:J exa11J1e 11e cases of Confederation ci Citizeos Labor lM1s v. Ncxiel,
G.R No. L-56902. Sept 21, 1982, 116 2015 [SeptenDer 07, 2015],
entilled 'Further Amendi1g Depment Order No. 40, Series d 2003, Aroo1dilg the
SCRA694; Na00na1 Federalionollaborv. The Secretary dLabor, G.R No. 104556,
Mard19, 1998,287 SCRA 599,607. ·~ RtJes Cl1d RegulationS d
Book Vd lle Lalor <:ooe of the Ph~ as Amended.' 11ls sediOI1 was
2 l l1lJSl be stressed lhat tt1e 'No Unkln" choice is aNr.t(s ooe d t1e cOOc:es
il ~ certifK:alion elections, M1h 1he sole OllJinal~ nurrbered Sedioo 18, per
Depatment Older No. 4().{)3, Series o! 2003, [Feb. 17, 2003], but tt was
subseqUelllfy
except;Jn ci run-oil elldixls, i:J obviOuS reason.
re-nuntered to Sedioo 17, per DepMment Older No. 40-F-03, Series d 2008 [Oct 30,
2008]. This laleSt 2015 re-
3 New Section 18, Rule IX, B<n V, Rules to lmplamenltle Labor Code, as~
Clll81dedtrf~o.der No. llUiltlering was ef!ecled
lll'oUgh said Section 17 m stales: "Sedims subsequent tJ i1S81ed new p!lMsklnS
<11d/or
40-m, Series d 2003, [Feb. 17, 20031 and as added by Secfoo 16, Depabnent
On1ef No. 4G+-15, Series d 2015 mn~ secli:Jns are renuntered
accadilJ~.·
(SeptentJer 07, 2015], enti1led 'FU!!her Amending Department 01ller No. 40,
Series ol2003, AmenlfllQ the htllementing 4 Miele 268 [2561,. Lalor Code;
Sedioo 1 [ss], Rule I, Book V, Rules to hr4llement the L.abor Code. as anended by
Rules and Regulations of B<n Vof the labor Code of the Phi~piles, as
Amended.' Department Order No. 40-
03, Seriesof2003, JFeb.17, 2003].
lABOR REtATIONS
D.
4. PRINCIPAL DISTINCfiON BETWEEN THE TWO KINDS OF CHECK-
RIGHTS OF LABOR ORGANIZATIONS
OFF.
The first kind mentioned above requires, for its validity, the execution by
1.
the employees of individual written authorization which should specifically state
the
CHECK-OFF, ASSESSMENT, AGENCY FEES
amount, pwpose and beneficiary of the deduction;' but the second kind does not
require any such authorization since the lawl itself recognizes and allows it upon
the
i.
employee's acceptance ofbenefits resulting from the CBA.3
CHECK-OFF
check off pertains to the local union which continues to represent the employees
refer to two (2) things, to wit:
under the tenns of a CBA, and not to the parent association from which it has
(1) Collection of union dues, special assessments and fees (such as
disaffiliated. 7
attorney's fees, negotiation fees or any other extraordinruy
fees)3 by the • SEBA has the
obligation to infonn the employer of the names of employees
SEBA from its members; and
subject of the check-off and the particulars of the deductions to be made.
(2) Collection of agency fees from non-members of the SEBA but
covered
by and inclUded in the bargaining unit who accept the benefits
provided
intheCBA
1 Ilk!.
See 3'l sen1ence ctlle 3-t.enlence pcragraph [eJ ci Altide 25912481 cilhe
lalorCOOe.
3
1 A. L Millen TJalSP()I1aOOn Co., Inc. v. Biool Tlli1SpOI1alioo ~ Mltua
Association, GR. No. l-4941, July 25, Holt
Crossofl:lavli!Colege,lnc. v.Joaquil, G.R No.110007, Oct 18, 1996,263 SCRA358;331
Phil. 680.
1952,91 Phl649.
~ GOOriel v. The l·lat Seaelaly citaJor and~ G.R No. 115949. Milth 16, 2000. 384
Pill. 797, 804; ltJtj Cross
2 Gaxie1 v. The Hat Secrelay of Lm and ~ GR. No.
115949, t.m:h 16, 2lXXl; ABS-CBN ~ ci Davao ~ klc. v.
Joaqlil, supm; ABS-CIIN Supervisors Err¢yees U.'liJn MenDers v. ABSC8N Broadcas&1g
~ l.klkxt ~ v. ABWlN Broadcasli¥,J Cap., GR. No. 100518, M:vdt 11, 1999; Holy
Cross of~
Corp.,GR.No.100518,Mcrdl11,1999.
Cdlege, Inc. v. Joaqun, G.R No. 110007, Oct 18, 1996, 263 OCRA 358.
5
ld.; See pcragraphs kj], ~I and [0] of Alticle 250 [241] on check-dfofuni:ln dues
and special~ and pcragJaph
3 See~ (o) of M:le 250 [241], LmCode vtth proW!es: 'Oiherlm b'IMldaby adMiies
under !he Code, no (e) of Article 259 [248]
ci lhe tm Code on agency lees.
6
spEdal assessmeniS, atlcmey's fees, negotiaOOn fees« M'f ~ exmdi!lay fees may
be checked <ftan illY arnoont A. L Arrmen
Tl'a'lSflOOalbl Co.. Inc. v.llii'Jj Tlai1SpOI1ation 8npklyees MJiual .4ssociation,
G.R No. L-4941, Jutj 25,
<kle to an e!T'Ilk:tfee IWhoot an i1dMdual wiiEn aJihorizatioo 1iJly signed
by l1e ~· The aJ1haization should 1952,91 Pltil649.
7
spec8r::ctf stm the iliOOUI1I, purpose and beneliciaty ci lhededudion.'
Volkc:hel LaborUnionv. B1.R, GR No. L-45824, .kJne 19, 1985.
. ~~-·
l,HJ\t'ltK Yll
542 BAR REVIEWER ON lABOR lAW
lABOR RELATIONS
:>4;:1
• Employer not liable to pay to the SEBA for unchecked-off union dues and
parties. Any contract, agreement or arrangement of any sort to the contrary is
1
asse~sments. 1
deemed null and void. Clearly, what is prohibited is the payment of attorney's
fees when it is effected through forced contributions from the workers from their
ii.
own funds as distinguished from the union funds. 2
DUES AND ASSESSMENTS
4. CHECK-OFF OF UNION DUES AND ASSESSMENTS.
l. RIGHT OF UNION TO COLLECT DUES AND ASSESSMENTS.
"Check-off' means a method of deducting from the employee's pay at
All unions are authorized to collect reasonable amounts of:
prescribed periods, any amount due for fees, fmes or assessments. 3 It is a
state the amount, purpose and beneficiary of the deduction. 5 The purpose of the
The following requisites must concur in order for union dues and
individual written authorization is to protect the employees from unwarranted
special assessments for the union's incidental expenses, attorney's fees and
practices that diminish their compensation without their knowledge or consent.6
representation expenses to be valid, namely:
~ SeM:es, klc. v. NLRC, G.R. t«J. 117418, Joo. 24, 1996, 252 SCRA 323; Pala:xll v.
Ferrer.caleja, G.R. No.
be charged only against the union funds in an amount to be agreed upon by the
85333, Feb. 26, 1900, 182 SCRA 710.
3 A. LAirmen Trcr1S.V. Bicol TfillSPOII~ MmJal ~. G.R. No.l-4941,Jut)'25, 1952,91
flhl.649.
1 Hc*jQossofDavaoColklge, Inc. V, Joaquil, G.R No.11!XXl7, Oct~.
1996,2.63SCRA358; 331 Phil.680. • GOOriel v. The Hon.
Seaetay o1 Lalxr .m ~ G.R No. 115949, Madl16. 2001; ABS<:BN ~
2 Articles 250(o) {241(o)l aid 292(a) {277(a)], Ibid.; Sedb11, Rule XIII, :Book
V, Rilles tl 1rr1>1ement 1he Labor Code, as ~ 1.JniJn Mmlecs v. AflS.CBN
Broadcasti1g COip., G.R No. 106518, tlath 11, 1999; Hc*j Cross cl Oawo
liiJellded by Depatment Older No. 4003, Series of2003, !Feb. 17, 2003~
Col!ege, Inc. v. ~. G.R No. 110007, Oct 18, 1996, 263 SCRA 358..
3 Alticle 259(e) [248(e)], labor Code.
5 Artkle241 (o], l..alxrCode.
6 GaVc!doresv. Tlajcm, G.R No. 70067, Sept 15, 1986, 144 SCRA 138.
4 Article 241[o], Labor Code; Galriel v. The li:in. Sea'e1ary of Labor ood ~t
supra, ABS-CBN Supef'lisors
Employees Unklo Merrbers v. Ass.cBN BroadcasWig Corp., supra
7 Mi:1e 259(e) !248(e)].l..m'Code.
lABOR RElATIONS
oqo
Check-off for a special assessment is not valid after the withdrawal of the
c) Check-off for union service fees authorized by law. 2
individual form?
execution but only for debts incurred for food, clothing, shelter
and
3
g) Deductions from wages ordered by the court.
intra-union dispute.
1 Approval of the union dues and assessments by the majority of all the
h) Deductions authorized by law such as for premiums for Phi!Health,
members of the union is required. 4 The Labor Code5 and the Rules to
social security, Pag-IBIG, employees' compensation and the like.
iii.
The obligation on the part of the employer to undertake the duty to
AGENCY FEES7
check~ff union dues and special assessments holds and applies only to the
bargaining agent and not to any other union/s (called "Minority Union/s"). This
1. NATURE OF AGENCY FEE- NEimER CONTRACTUAL NOR
is clear from the manner by which the Supreme Court described check-off in the
STATUTORY BUT QUASI-CONTRACTUAL.
case of Holy Cross of Davao College, Inc. v. Joaguin,5 that it is on the basis of
The bargaining agent which successfully negotiated the CBA with the
the agreement with the union which is recognized as the proper bargaining
employer is given the right to collect a reasonable fee, called "agency fee" from
representative that the employer is obligated to perform its task of checking off
its non-members - who are employees covered by the bargaining unit being
union dues or agency fees. When stipulated in a CBA, or authorized in writing
represented by the bargaining agent - in case they accept the benefits under the
by the employees concerned - the Labor Code and its Implementing Rules
CBA. It is called "agency fees" because by availing of the benefits of the CBA,
recognize it to be the duty of the employer to deduct sums equivalent to the
they, in effect, recognize and accept the bargaining union as their "agent" as
amount of union dues from the employees' wages for direct remittance to the
well.
union, in order to facilitate the collection of funds vital to the role of the
union
8
as representative of the employees in the bargaining unit if not, indeed, to its
According to Holy Cross of Davao College, Inc. v. Joaquin,
very existence.
payment of agency fees to the certified collective bargaining agent which
1 Palooll v. Fener-Calleja, G.R No. 85333, Feb. 26, 1990, 182 SCRA 71(}.711.
3 See old p1tNis00 ct Sedioo 1, tU! XVIII, Book V, RuleS mkrcJ1emen! lhe Labor
Cede, as lll1el'ded by Article 1,
Depment.OrderNo. 09, Seriesof1997 [21 June 1997.
1 Mi:le241 (o],1bkl.
4 S1elarlnduslrial Selvices, Inc. v. NLRC,G.R. No.117418, ~- 24,1996,252 SCRA
323; Palcmv. caleja,et.,supra
2 RCPiv.Secrelayoflabor,G.R No. n959,JaJ.9, 1989.
5 Article 241 ~]thereOf.
3 Mi:1e 1700, CM Cede.
6 Section 13 [a], Rule VIII, Book 1111hefeof.
4 Al1k:le 1708, bid.
7 Relevant Provision: ~ Sentence, Paagiaph [e], Miele 259}2481l.abor Cede.
5 G.R. No.110007, Oct 18,1996,263 SCRA358;331 Ptil. 680.
G.R.No.110007,0ct.18, 1996,263SCRA358;331 Phi1.680,692.
lABOR RElATIONS
successfully negotiated the CBA in an amount equivalent to the union dues and
6. ACCRUAL OF RIGHT OF BARGAINING UNION TO DEMAND
fees, from employees who are not bargaining union members, is recognized by
CHECK-OFF OF AGENCY FEES.
Article 259(e) [248(e)] of the Labor Code. The employee's acceptance of
The right of the bargaining union to demand check-off of agency fees
benefits resulting from a CBA justifies the deduction of agency fees from his
accrues from the moment the non-bargaining union member accepts and
pay and the union's entitlement thereto.
receives the benefits from the CBA. This is the operative fact that would trigger
2. A NON-BARGAINING UNION MEMBER HAS THE RIGHT TO
such liability.1
ACCEPT OR NOT THE BENEFITS OF THE CBA.
7.NO INDIVIDUAL WRITTEN AUTHORIZATION BY NON-
There is no law that compels a non-bargaining union member to accept
BARGAINING UNION MEMBERS REQUIRED.
the benefits provided in the CBA. He has the freedom to choose between
To effect the check-off of agency fees, no individual written
accepting and rejecting the CBA itself by not accepting any of the benefits
authorization from the non-bargaining uni.:>n members who accept the benefits
flowing therefrom. Consequently, if a non-bargaining union member does not
resulting from the CBA is necessary. 2
accept or refuses to avail of the CBA-based benefits, he is not under any
8. EMPLOYER'S DUTY TO CHECK-OFF AGENCY FEES.
obligation to pay the "agency fees" since, in effect, he does not give recognition
to the status of the bargaining union as his agent.
It is the duty of the employer to deduct or "check-oft" the sum
or certified as the collective bargaining agent. Union dues are required for the
continued existence and viability of their union. Hence, they are obligated to
pay .
The employees who are not members of the certified bargaining agent
two (2) kinds of dues:
which successfully concluded the CBA are not required to become members of
the latter. Their acceptance of the benefits flowing from the CBA and their act
(l) Union dues and special assessments to their own union; and
of paying the agency fees do not make them members thereof.
(2) Agency fee to the bargaining agent.
This is clear from a reading of Article 250 {241t which does not
5. CHECK-OFF OF AGENCY FEES.
qualify that the right to collect union dues and assessments; on the part of the
"Check-off' of agency fees is a process or device whereby the
union, and the obligation to pay the same, on the part of its members, are
employer, upon agreement with the bargaining union, deducts agency fees from
extinguished the moment the union is unsuccessful in its quest to become the
the wages of non-bargaining union members who avail of the benefits from the
sole and exclusive bargaining agent of the employees in the bargaining unit
CBA and remits them directly to the bargaining union. 2
where it seeks to operate.
i lbkl.
1 See also Section 4, Rule Y:IN, Book v, rues Ill in1J1ement ~Labor Code, as
anended by Depa1ment<llder No. 40-03, 1 Del Pilar Academy v. Del Piar
AcaderTrt Employees Unkln, G.R No. 170112, April30, 2008; ~Cross of DaJao Colege,
Seriesd2003, (Feb.17,2003].
ilc. v. Joaquil, supra.
2 Gmxiel v. The 1tn Seaetary oll.abor am~ G.R No. 115949, M!rd116, 2000; ABS-
CBN SUpeMsors 3 Del PilcJ Academy v. Del Piar
AcaderTrt fn1Jioyees Unkln, ~ Ga!riel v. Secre!a'Y of Laoor and Employment G.R No.
En'jlklyees Uniln Menter.; v. ABSCBN Broadcasting Co!p., G.R No. 106518,
Mml11. 1999; ~ Cross d Davao
College, Q:. v. Joaqli1, G.R. No.110007, Oct 18,1996,263 SCRA358.
J 4
~
MO MR IU:VItWtR UN IAHUR lAW
lABOR RElATIONS
2.
3. BARGAINING, NOT EQUNALENT TO ADVERSARIAL
COLLECTIVE BARGAINING
LITIGATION.
1. CONSTITUTIONAL FOUNDATION.
Caltex Refinery Employees Association [CREAl v. Brillantes.1 -
in the Labor Code may be made. In other words, it is only when there is no such
voluntary arrangement that the procedure laid down in Article 261 [250] of the
the employer and the bargaining union should promptly meet, convene and
1 ReieYcl1t PrtMsioos: Al1icles 261 [250) kl264 !2531 and Article 259 !248),
L.axr Code. confer in good faith for
collective bargaining purposes.
2 A1icle 252, L.axr Code; !<a Loy v. NlRC, G.R No. 54334, Jal. 22, 1986, 141
SCRA 179; United fn1lbyees Union v.
IQiel, GR. No. L-40810, Oct 3, 1975, 67 SCRA 267; Isaac PelallloiW'g Alley v.
Unilfd fnllklyees Wefcre Association, !I
G.RNo.L·9831,0ct30, 1957, 102Phi219.
3 Kklk L.oyv. NLRC, supra
1 GR No. 123782, Sept16, 1997, 279 SCRA 218, 236, 243-244.
·4 lJ001 d R~ ~. Food and ,AJJied lndusmes Unions-Kilusang Mayo Uno [UFE-IFA-KMJ]
v. Nestie 2 As provided it Article262 !251)
of fletaxr Code.
~. Inc. GR. Nos. 158930-31, MEh 3, 2008; 5analarg MafooiJJ<Ma sa Tq~ Foon
~.United 3 Mf)ro'Jk!OO it Article 264
J253) of lhe Lalor Code.
Wolkas d the Phi~iles [SMTFM-l.JVvP) v. NlRC, G.R No. 113856, Sept 7, 1998;
Panpanga Bus Co. v. Pambusco 4
.iL~.
CHAPTER VII
·which no agreement would govern from the time the old agreement expired to
!.CONCEPT.
the time a new agreement is concluded by the parties. 1
When there is a CBA, the duty to bargain collectively shall mean that
4. SOME PRINCIPLES.
neither party shall terminate nor modify such agreement during ·its lifetime.
However, either party can serve a written notice to terminate or modifY the
• If unchallenged, the majority status of the existing bargaining agent
agreement at least sixty (60) days prior to its expiration date. It shall be the
duty should be respected. A petition
for certification election challenging the
of both parties to keep the status quo and to continue in full force and effect the
majority status of the existing bargaining agent should be filed within- and
terms and conditions of the existing agreement during the 60-day period and/or
not before or after - the 60-day freedom period. Upon the expiration of the
until a new agreement is reached by the parties. 2
said period and no petition for certification election is filed by a challenging
faculty AssodaiD! r1 Mapua Institute c1 T~ v. Han. CA, G.R No. 164000, June 15,
2007; New Pacific Trrber &
3
No.L-45719, .kt( 31, 1978,84 SCRA 430.
4 ArOCie 264 !253L l.aba' QJde; New I'd: Tll!lbEf &&.WI Co., Fie. v. NtRC, G.R
No. 124224, Mml17, 2000, 323 Supply~, k1c. v. NlRC, GR No.124224,
Mcrth 17,2000,328 SCRA404,412-413.
4
SCRA 404; Pier 8Anas!le &~ SeMces, Inc. v. ~. G.R No. 110854, Feb. 13, 1995,
241 SCRA
294;Uniood~~v.NI.RC,G.RNo.9102S,Dec.19, 1900.
bargaining agent;
Employment, 1 where the university refused to perform its duty to
·- tively; hence, the High Tribunal upheld the
unilateral 2. The
bargaining agent must have the majority support of the
imposition on the university of the CBA proposed by the Divine
members of the bargaining unit established through the modes
Word University Employees Union.
sanctioned by law; 2 and
2. General Milling Corporation v. CA/ where the Supreme Court
0 3. A lawful demand to bargain is made in accordance with law. 3
imposed on the employer the draft CBA proposed by the union for
3. SOME PRINCIPLES ON CBA.
the last two (2) years commencing from the expiration of the 3-year
term of the original CBA. This was because of the employer's
refusal • CBA is the law
between the parties during its lifetime and thus must be
4
to counter-propose to the union's proposals which was declared as
an complied with in good
faith. It lays down the norms of conduct between
unfair labor practice act under Article 259(g) [248(g)j 3 of the
Labor the parties
the employer and the bargaining agent with respect to the terms and
3.
conditions of employment. 6
COLLECTIVE BARGAINING AGREEMENT (CB.A}
• Being the law between the parties, any violation thereof can be subject
1. CBA.
of redress in court. 7
Simply put, courts cannot stipulate for the parties or amend the latter's
· bargaining unit, including mandatory provisions for grievances and arbitration
machineries.4 It is executed not only upon the request of the exclusive
bargaining representative but also by the employer. 5
1
SCRA ~ See also Dlle ~ ~. v. Pcw.is RJ ~ Obrero, GR. No. 146650, .lal. 13,
2003, 395
299, 116.
3 VIOialm of l1e duty to~ OOiecWely.
~ Nonh Express, ~. v. NLRC;GR. No. 95940, July 24, 1996, 259 SCRA 161; See also
flhiiWne Airfiles, Inc. v.
6
4 Se::tioo 1 (!), RUe I~ NCMl Re'lised Prtx:eckn1 Glilei1es illle Cooducl of
Vokni:ry Aibilratioo ~ lOci. 15,
2004t Sectioo 1ID. Rule I, Bodt V, Rules to I~ lle l1txlr COOe, as an!nled by
Depam1ent Olller No. 40-03, Philil!line Ames~ Associa!ion
JPAlEAJ, G.R No. 142399, MiRti 12, m!; Centro Esc:o1cr Urileisily Facufly
Series of 2003, (Feb. 17, 2003j; Sectkn 1 [2], Ruk! IH, NCM3 Mroa of~ for
CoociialbllWld l'levenWe lW1d ~ Wal<;e15
lful.lndependert v. {;A, G.R No. 165486, Mlj 31, mi, 49J 5CRA 61; Honda Phils.,
Inc. v.
Mildiatia1 Cases; See Wes/efM ~ v. WeslefM li~We!sey~ Faculy lW1d Sla1f
Association, Sam00aJ ng Malay.nJ M!
lw~ sa Honda, GR No. 145561, June 15, 2005,460 SCRA 187, 191).191.
Faculty Ass1mioo of~ ml!u!e ofTm-d:lgy v.lbl. CA, G.R No. 164060, J111e 15, 2007;
Holy Cross cl Davao
1
GR No. 181800, Mald112, 2014; Ph!Wine Ames, k1c. v. PllifWile Ames~ Association
tpAI.EA], G.R No.
142399, ~ 12, 2008; UnNe!sly of 11e krlnmm! CoocepckJn, Inc. v.lhe Hat
Secrellry of t.m lW1d EIJ1lcyment, Cdlege, Inc. v. Holy
Q(lss cl{)avoo Faajy Unioo-IWNIPI, GR. No. 156098, June Z7, 2005; Ballaxk-Hiachi
(Phils.),
G.R.No. 146291, .1M. 23,2002.
Inc. Y. BOOoxkM {Rli5.J, Inc. M!kai~ l.ml (BHPMIJ], G.R No. 156260, Mmi 10, 2005; ~
5 RNem y. Espiilu, G.R No. 135547, Jan. 23, 2002; D<Mio lnleglllled Port
Slevedai1g v. Abcrque?, GR No. 102132. S1ee! ~m v. ~Free
Wal<;e.s Olgooizalion lMfNFRE\>V(}NFLJ Cagayan de Oro, G.R No. 130693, MJd\4,
M:rth 19, 1993, 220 SCRA 197·204.
2004; Madan WOO;e15 Union v. AbOOiz, G.R No. L-30241, June 30, 1972, 45 SCRA577,
581.
:h..
CHAPTER VII
bargaining unit;'
• Management rights and prerogatives are limited by the CBA.3
• CBA is not an ordinary contract as it is impressed with public interest. 4
(3) Members of the minority union/s who paid agency fees to the
• CBA should be construed liberally. s If the terms of a CBA are clear and
of the Labor Code that no Wage Order should be construed to prevent
workers in particular firms or enterprises or industries from bargaining for
there is no doubt as to the intention of the contracting parties, the literal
19,1993,220SCRA 197,204.
S1eYedabJ v. Mla!quez, G.R No.102132. Mrth 19, 1993, 220 SCRA 197·198.
M:1e 1370, CMl Code; WesieyM lkile!sity-PIIIJ!piles v. Wesfeyoo ~iles F.nily lrd
Stmf Association,
6
s Laas ng t.mgg~ Mlkibaya18J.Nl v. Alliet'a, G.R. No.L-29474, ~)!c. 19, 1970;
llleralion Slea<nsh.,Co.,lnc. v.
CtR, G.R No.L-25389, m 21. 1968.
G.R No. 181800, Marr.h 12, 2014; ~ Sleel CclpOI300n v. ~ MlrQQag<PNa ng Supreme
k1dependent
6 ~ Cdleges v. J)Uoo, G.R. No. 81144, Mly 7, 1990; lJni\tersal{)()m
Prtxldsv. M.RC, 153 SCRA 191; CliJalk 7
JlllMsms.
NFL v. Watel1ioot mtlar Hotel Davoo, G.R Nos. 17404041, Sept 22, 2010; RHela v.
Espifitu, G.R No.135547, Joo. 23, 9
CHAPTER VII
used interchangeably.
i.
GRIEVANCE PROCEDURE
ii.
1. "GRIEVANCE" OR "GRIEVABLE ISSUE".
VOLUNTARY ARBITRATION
A "grievance" or "grievable issue" is any question raised by either the
(NOTE: To avoid repetition of discussion, please see discussion on this
iii.
or
3. Any claim by either party that the other party is violating any
"NO STRIKE, NO LOCKOUT" CLAUSE
provisions of the CBA or compa.'ly personnel policies. 1
the union.
3. GRIEVANCE PROCEDURE.
"Grievance procedure" refers to the internal rules of procedure
2. EFFECT OF VIOLATION OF THE CLAUSE.
established by the parties in their CBA with voluntary arbitration as the terminal
No. 12, NCMB Pii:ner on Grieva1oe Settlement and Voluni<Hy MllnD:xl; See em Sedion
1[111 Rule II, Na.f! ReWied
1 Sedkxl1 [u1 RIOO ~ Book V, Rules 1D lqllemenllhe labor Code, as mnded by
Oepil1menl Cfller No. 4Gm, Sefies of flrooldtral Guidelines in lle Cooducl of
VokJn!afy ArbmaOOn Pnx:eedilgs{Od. 15, 2004J.
2
2003, Feb. 17, 2003; Sedioo 1G], Rule I~ NCMB Revised Procedtla G!ilemes illle
Cooducl of Vcimlay Arbitration
~ [0::1. 15, 2004; No.4, NCMB Pitner on Gfieva1oo SeUBnentCild VokJntay
Mlifralioo. . SCRA428,drlg Master Iron Lalor Union v.
NLRC, G.R No. 92009, F«J. 17,1993,219 SCRA47; SeealsoPalayEiectric
2 Article 274[261], Labor Code.
~. Inc. v. NLRC, u.R. No. 102672, Oct. 4, 1995, 248 SCRA 688; ~le's lndusflill and
Coornen:ia1 EnlJioyees
3 Ar1i::le 273 ]260], labor Code.
Clld Woriters Organizatioo [FFW] v. People's lnduslrial and Corrmercial Colpaalm,
G.R No. L-37687, Mi:rdt 15, 1982,
4 Rule 11117J, NCMB M<llual of Procedures !oc Conciiation and Pre'leniNe
Mediation. 112SCRA440.
558
l
BAR REviEWER ON lABOR lAW
CHAPTERVll
cited:
In Interphil Laboratories Employees Union-FFW v. lntcrpbil
Laboratories, Inc} the "overtime boycoti'' and "work slowdown" conducted
l. Constitutional origin. - The creation of the LMC is based on the
by the employees were considered an il!egal strike, the same being in violation
constitutional grant to workers of the right to participate in policy and decision-
1
of the CBA which prohibits the union or employees, during the existence of the
making processes under the 1' paragraph, Section 3, Article XIII of the 1987
CBA, to stage a strike or engage in slowdown or interruption ofwork. 6
Constit11tion, thus:
iv.
"!t shall guarantee the rights of all workers to self-
constitutional provision, the 2nd paragraph, Section 3, Article XIII of the 1987
establishment where they are employed insofar as said processes will directly
Constitution, which provides as follows:
affect their rights, benefits and welfare.8
"The State shall promote the principle of shared
CHAPTER VII
10. "Appeals." - The LMC does not make any decisions since no
created a Labor-Management Council (LMC) through which it concluded with
dispute or grievance is cognizable by it, hence, any policy formulations are not
the remaining officers of petitioner a Memorandum of Agreement (MOA)
with finality by the GM within seven (7) calendar days from the date of
the DOLE Secretary, alleging that the remainingcllicers signed the MOA under
submission, thus:
respondent's assurance that should the Secretary order a higher award of wage
increase, respondent would comply.
"All grievances submitted to the grievance machinery
which are not settled within seven (7) calendar days from the date of
Respecting the MOA, petitioner posits that it was "surreptitiously
entered into (in] bad faith," it having been forged without the assistance of the
See ArOCie 2fJ7 [255], labor Code; Sedix11, Rule XIX, Book V, Rules to Implement
the laba' Code, as anended by
t See Ar1i:1e 2fJ7 J255], i1 relaiXxl to Article 273 [260J, LIW Code.
0epmentOillerNo.40-m, Seriesof2003, lfeb.17, 2003J.
2
2 G.RNo.190515,Jllle6,2011,650SCRA656,663.
No. 12, NCMB P1iner on GOOvalce Mr::hinely and Volunlaly Arbilration; See also
Sedix11[hj, Rule II, NCM3 Revised
563
Under the Labor Code, there are only five (5) provisions related to
While strictly speaking, such elevation to voluntary arbitration may not
ULP, to wit:
be considered an "appeal" as this term is technically defined in law,
jurisprudence or rules, this is clearly the intention behind the law since it is
I) Article 258 (247] which describes the concept of ULPs and
required that the unresolved dispute or grievance be "automatically'' elevated to
prescribes the procedure for their prosecution;
a Voluntary Arbitrator or panel of Voluntary Arbitrators for voluntary
2) Article 259 [248] which enumerates the ULPs that niay be
arbitration purposes if unresolved within the said 7-day period. ·
committed by employers;
E.
3) Article 260 (249] which enumerates the ULPs that may be
lABOR RElATIONS
2) The act complained of must be expressly mentioned and defined in
(b) To require as a condition of einploymerit that a person or
the Labor Code as an unfair labor practice.
an employee shall not join alabor organization or shall
Absent one of the elements aforementioned will not make the act an
withdraw from one to which he belongs;
unfair labor practice.
(c) To contract out services or functions being performed by
The first requisite is necessary because ULP may only be committed in
union members when such will interfere with, restrain or
connection with the right to self-organization and collective bargaining by
coerce employees in the exercise of their rights to self-
employees. Necessarily, there must be an employment relationship in order foi:
organization;
the organizational right to be validly and lawfully invoked.
(d) To initiate, dominate, assist or otherwise interfere with the
The second requisite should be present since the Labor Code itself
formation or administration of any labor organization,
requires that the ULP be "expressly defined by this Code." If an act is not
including the giving of financial or other support to it or
covered by any of the grounds expressly mentioned in the law, it cannot be
its organizers or supporters;
deemed a ULP act.
(e) To discriminate in regard to wages, hours of work and
6. ASPECTS OF ULP.
other terms and conditions of employment in order to
by this Code;
CHAPTEI'- VI I 567
BAR REVIEWER ON lABOR lAW
s66
lABOR RElATIONS
petitioners," namely: (1) sponsoring a field trip to Zambales for its employees, to
the
DISCUSSION
exclusion of union members, a day before the scheduled certification election; (2)
I.
the active campaign by the sales officer of petitioners against the union
prevailing as
JNTERFERENCE WITH, RESTRAINT OR COERCION OF
a bargaining agent during the field trip; (3) escorting its employees after the
field trip
to the polling center; (4) the continuous hiring of sub-contractors perfonning
EMPLOYEES IN THE EXERCISE OF THEIR
respondents' functions; (5) assigning union members to the Cabangan site to work as
RIGHT TO SELF-ORGANIZATION
grass cutters; and (6) the enforcement of work on a rotational basis for union
l. THE INSULAR LIFE OOCfRINE: TEST TO DETERMINE
members. In declaring petitioners guilty ofULP, the Court held that indubitably,
the
INTERFERENCE, RESTRAINT OR COERCION.
above various acts of petitioners, taken together, reasonably support an inference
that, indeed, such were all orchestrated to restrict respondents' free exercise of
their
The tenns "interfere," "restrain" and "coerce" in paragraph (a) of
Article right to self-organization.
Petitioners' undisputed actions prior and immediately
259 [248] are very broad that any act of management that reasonably tends to have
before the scheduled certification election, while seemingly innocuous, unduly
an influence or effect on the exercise by the employees of t.'leir right to self-
meddled in the affairs of its employees in selecting their exclusive bargaining
organization may fall within their meaning and coverage.
representative.
According to the leading case of Insular Life/ the test of the
employer's
terms of the act's inherent import and effects, in light of the surrounding
The significant point to consider, for a charge ofULP to prosper, is
that it circumstances, and weighed on the basis
of the totality ofthe conduct of the entity
must be shown that the employer's act was motivated by ill will, bad fuith or
fraud, charged.
or was oppressive to labor, or done in a manner contrary to morals, good ~ms, or
public policy, and, of course, that social humilialion, wounded feelings or grave
The totality of conduct doctrine means that expressions of opinion by an
anxiety resUlted therefrom.' It bears emphasis, however, that according to
employer, though innocent in themselves, may be held to constitute ULP because of
jurisprudenoo, basic is the principle that good faith is presumed and he who
alleges the circumstances under which they
were uttered, the history of the particular
bad faith has the duty to prove it By imputing bad faith to the actuations of
the employer's labor relations or anti-
union bias or because of their connection with an
employer, the employee has the burden of proof to present substantial evidence
to established collateral plan of coercion
or interference. An expression which may be
CHAPTER VII
s6S BAR REVIEWER ON lABOR lAW
lA80R RElATIONS
569
and about to start with the effort at having it certified as their sole and
employer in presenting the letters from February to June 1993, by 13 union members
exclusive bargaining agent (SEBA). Consequently, to dismiss union
signifying their resignation from the union clearly indicative of the employer's
members in order to ensure the defeat of the union in the certification election
2
pressure on its employees. The records show that the employer presented these
isULP.
letters to prove that the union no longer enjoyed the support of the workers. The
fact • It is ULP even if the action of the
employer is short of dismissal, such as
that the resignations of the union members occurred during the pendency of the case
transferring, laying off or assigning employees more difficult work tasks, or
before the Labor Arl>iter shows the employer's desperate attempt to cast doubt on
otherwise punishing them because they engaged in organizing and forming a
• 3
the legitimate status of the union. The ill-timed letters of resignation from the
union urnon.
members indicate that the employer had interfered with the right of its employees
to • Dismissal of union officers which
threatens the existence of the union
self-organilation. Because of such act, the employer was declared guilty ofULP.
constitutes union-busting, a different kind ofULP. 4
In Hacienda Fatima,5 the Supreme Court upheld the factual findings of
the NLRC and the CA that from the employer's refusal to bargain to its acts of
Scmilan ng Malggcr;a.w sa B1r1doliJo.l..MC v. NL.RC, GR No. 126195, ~ 17, 1997, 275
SCRA 633; ~ Cillni'lg
Ccrpaatkx1 v. n:knJ, G.R No. L-51494, Au;). 19, 1982, 115 SCRA 887; Mclk Radle~ v.
N..RC, GR No.
1 k1su1cr Lie AssuralCe Co., Ltl., ~ AssocfalkxrNATU, v. k1sula' LJe
Assuc11Ce Co., l.kl., supra; Salam ng 123825,Au;j.31, 1999.
~awasaflaldom.l.M..Cv.NLRC,G.RNo.126195,Ju~11. 1997,275SCRA633.
4
4 General tJi1iJJ Capora1kln v. <'A G.R No. 146728, Feb. 11, 2004.
5 flaielllaFatinav. Nalional Federatioooi~Worilers-FoodCildGeneraiTrade, G.R.
No.149440,Ji11. 28,2003. Pa::ilic Steel Corp. v. Hoo. CA, GR. No.
164561, Aug. 30, :mi.
&jl
(j) Tenninating teachers who have attained permanent status because of the
(a) Dismissing the union officers and members on the ground oflosses
about
two years after it has allegedly sustained them and after the
dismissed
officers and members became more milita..1.t when they demanded
lI
3
employees concerned.4
them or to discourage union activity or support. 4
(d) Dismissal occasioned by the refusal of the employe-es to give up
their (c) Stating to5
employees that union bargaining is futile or a strike is
union membersilip, which dismissal was under the pretext vf
~1evitable.
retrench.'llent due to reduced dollar allocations. 5
(d) Threatening the union recruiter with bodily hann when he refused to
(e) Dismissal of aa empioyee because of his act of soliciting signatures
for yield the demand of the
employer to surrender the union affiliation
fonns. 6
the purpose of forming a union.6
(f) Dismissal of employees because of their refusal to resign from their
union 3.3. QUESTIO~G AND INTERROGATING
EMPWYEF.S THAT
and to join the union favorable to the emplo~er, the latter's
formation CONSTITUTE ULP.
having been aided and abetted by the company.
The act may also amount to ULP even if it is merely in the form of a
(g) Dismissal of employees because of their act of engaging in valid and
legal question. The following acts well
constitute ULP under this classification:
concerted union activities.8
SIJil3.
6 JudricCalni'g Corp<xatixl v.!nc:OOJ, G.R No. L-51494, Aug. 19, 1982,115 SCRAat\7.
5 ld.
7 ~~!Co!pcratb:w.CIR,GRNo.L-39546,Nov.24, 1977,80SCRA434.
6
Sco!y's ~ Sttre v. flkaller, GR No. L-8116, Aug. 25, 1956, 99 Phil. 762; fltiWne
S1m Navi;la!OO Co. v.
g Kapiscrlill ng r.troo~awa sa Canam Shoes v. Canara Shoes, GR No.L-50985, Joo. 30,
1982.
Ph~ Mime Office!s Gtil:l, G.R. Nos. L-20067-69, Oct 29, 1965, 15 SCRA 174.
lABOR RELATIONS
dues and agency fees will be deposited and held in trust; and
(c) Offer of Christmas oonus to all "/oyaf' employees made shortly after
(2) Discontinuing normal relations with any group within the union
the request by the union to bargain; wage increase given for the
pmpose including the incumbent set
of officers.
of mollifying employees after the employer has refused to bargain
with
the union or to induce strikers to return to work; employer's
promise of The said act of petitioners was
precipitated by the request of one of the
benefits in return for the striking empioyees' abandonment of their
contending groups in respondent union for them ''to please put on escrow all union
strike; and the employer's statement made about 6 weeks after the
dues/agency fees and whatever money considerations deducted from salaries of
strike started, to a group of strikers in a restmrant that if the
strikers concerned co-academic personnel until such time
that an election of union officials
returned to work, new benefits such as hospitalization, accident
has been scheduled and subsequent elections has been held." Petitioners' act
insurance, profit-sharing and a new building to work in, will be
given to described above drew respondent union to file
a complaint against them for ULP,
4
claiming that they unduly interfered with its internal affairs and discrinllnated
them.
against its memberS. The Supreme Court agreed with respondent union's contention.
(d) Announcement by the employer of benefits prior to the conduct of a
labor relations that a CBA entered into by a legitimate labor organization and an
The act of spying and surveilling of employees to determine their
employer becomes the law between the parties, compliance with which is mandated
involvement and participation in union organizing, formation and concerted
by express policy of the law.
activities is ULP. Examples are as follows:
to remit the union dues it has checked-<>ffto private respondent union, SMART,4 the
and activities of the union. It is illegal since it shows the
opposition of
incumbent bargaining agent, was declared an act of interference with the exercise
of
the employer to the existence oflhe union, and the furtive
nature 6of his
the empk>yees' right to self-<>rganize and therefore ULP under Article 259(a)
activity tends to demonstrate spectacularly the state ofhis
anxiety. [248(a)].5 The failure to remit the union
dues to SMART because of the disaffiliation
1n283,Apli7,:w.l.
~
3 klsUcr Lle AsSl.m:e Co., Lil., ~ Assoc:iatioo-NAlU v. Osula' life Asslmnl
Co., Ill, G.R No. L-25291, Jell. 3 G.RNos.1880l0&1882532,June27,2016.
CHAPTER \Til
participating therein. I
existence of a labor controversy over membership in the union. Such supposed
disaffiliation and voluntary recognition ofRTEA are but a lame excuse that cannot
(f) Suspending union officers who attended the hearing in the petition for
validate those acts.
certification election they filed 2
(o) Provoking the union officers into a fight by two recently hired
(d) The act of the purchasers of a business establishment in replacing the
1
2 ~~En'IJio'teesll1dWodrersUnioov.CA,G.RNo.139940,Sept.19,m.
3
lle corrpany rd only liriled lself to disper1sirQ Mil lhe services d lle 38
lctttels l1hl pa&:1laEd i1 the slrie, but hlusm. <3.R No. 30964, M!y 9,
1988.
ild'reclly bted l1em to Pi! MOtler 1m' lllion as a ooOOition v.llereby !hey
axil be ~. This was Yl11al was
prMied i1 fie c:Wse ilserBI i1 the CXVlfra::! ct seMce enfered ilb by the ~
v.tt l1e DMl Stevedore Ttminal 4 Mn31a~Facbyv,CIR, G.RNo.L-1S065,
Mml.30, 1962,4 SCAA 756;Cruzv. PAFW, G.RNo.L-26519, Oct 29,
11
LHAI'TER VII
lABOR RElATIONS
577
BAR REVIEWER ON lABOR lAW
576
are essential for its operation. It has the ultimate right to determine whether
n.
services should be performed by its personnel or contracted to outside agencies.•
YELLOW DOG CONTRACT
2. WHEN CONTRACTING-OUT BECOMES ULP.
1. GENERAL DESCRIPTION OF A YELLOW DOG CONTRACT.
It is only when the contracting out of a job, work or service being
Paragraph [b] of Article 259 [248] describes what is commonly known
performed by union members will interfere with, restrain or coerce employees in
as "yellow dog contract. " It is one which exacts from workers as a condition of
the exercise of their right to self-organization that it shall constitute an unfair
employment that they shall not join or belong to a labor organization, or attempt
labor practice.2 Thus, it is not unfair labor practice to contract out work for
to organize one during their period of employment or that they shall withdraw
reasons of business decline, inadequacy of facilities and equipment, reduction of
therefrom in case they are already members of a labor organization.
cost and similar reasonable grounds. The court usually refuses to substitute its
judgment for that of the business decision of the employer in ascertaining the
2. COMMON STIPULATIONS IN A YELLOW DOG CONTRACT.
validity or legality of the motivation for the contracting out of services.
A typical yellow dog contract embodies the following stipulations:
i In Shell Oil Workers Union v. Shell Oil Company of the
(1) A representation by the employee that he is not a member of a
Philippines, Ltd.,l the Supreme Court ruled that the contracting out of security
what was stipulated in the CBA to continue to maintain a security guard section
The act of the employer in imposing such a condition constitutes ULP
at least during the lifetime of the agreement.
under Article 259(b) [248(b)] of the Labor Code. Such stipulation in the contract
outsource its call center operation. While losses may have been a valid reason to
1. GENERAL RULE.
close down its operations in the light of the decline in the volume of transaction
Paragraph [c] of Article 259 [248] describes when the act of the
of operator-assisted call services as supported by Financial Statements for the
employer of contracting· out of services or functions being performed by union
years 2003 and 2004, during which Digiserv incurred a deficit of Pl63,624.00
members is considered an unfair labor practice.
and Pl64,055.00, respectively, it was, however, made in bad faith. In declaring
petitioner guilty of unfair labor practice, the Supreme Court stated that the
As a general rule, the act of an employer in having work or certain
closure of Digiserv was made after the DOLE Secretary had issued the first
services or functions being performed by union members contracted out is not
assumption order to enjoin an impending strike. When Digiserv effected the
per se an unfair labor practice. This is so because contracting-out of a job,
work dismissal of the affected employees, the union filed another
notice of strike.
or service is clearly an exercise by the employer of its business judgment and
its Significantly, the DOLE Secretary ordered that the second notice
of strike be
inherent management rights and prerogatives. Hiring of workers is within the
subsumed by the previous assumption order. Thus, it was held that bad faith was
employer's inherent freedom to regulate its business and is a valid exercise of
its manifested by the timing of the closure of Digiserv ap.d the
rehiring of some
management prerogative subject only to special laws and agreements on the
matter and the fair standards of justice. The employer cannot be denied the
faculty of promoting efficiency and attaining economy by a study of what units
G.R No. 117040, JM. 27, 2000; De Oc:a'1JO v. NI..RC, G.R No. 101539, Sepleniler 4,
1992, 213 SCRA 652; Asim
t
~
the union failed to substantially prove that their transfer, made to complete
were allowed to work Qnly two (2) days a week. Later, 52 employees who are
members of NAFLU were also terminated for refusing to join the Workers'
3. SUSPENSION OF CBA FOR A LONG PERIOD DOES NOT MAKE
Union. Because of these circumstances, the Supreme Court declared that the
THE UNION COMPANY-DOMINATED.
Workers' Union is a company union.
If warranted by circumstances, a CBA may be suspended for more than
In Oceanic Air Products v. CIR/ several employees were forced by
the usual 5-year lifetime thereof. During the period of suspension, the
parties company officers to join a
union. No member of the union had been dismissed
may mutually agree that the exclusive bargaining union's status shall
continue to despite the implementatiQn of
a retrenchment policy which resulted in the
be recognized as such. The question is, does this prolonged recognition
dismissal of other employees who are officers and members of another union.
tantamount to making the union wmpany-dominated? This poser was answered
After the dismissals, the company hired several laborers. All these
in the negative in Rivera v. Espiritu,4 where the CBA between the management
circumstances indicate that the union is company-dominated.
LHAPTERV 383
382 BAR REVIEWER ON lABOR lAW
MANAGEMENT PREROGATIVE
concerning the conduct of their business. 1 The Labor Code and its implementing
4)
with the employer. Such favoritism, however, has not blinded the Court to rule
A.
that justice is, in every case, for the deserving, to be dispensed in the light of
the
DISCIPLINE
established facts and applicable law and doctrine.4
1. COMPONENTS.
4. RIGHT TO DETERMINE WHO TO PUNISIL
The right or prerogative to discipline covers the following:
The employer has wide latitude to determine who among its erring
1) Right to discipline;
officers or emplorees should be punished, to what extent and what proper
2) Right to dismiss;
penalty to impose.
3) Right to determine who to punish;
t Coca-Cola Botllecs ~pines,lnc. v. Del Villar, G.R No. 163091, Oct. 6, 2010;
Phifippine Industrial Security
Agency Corporation v. Aguinaldo, G.R. No. 149974, June 15, 2005.
2 ValiCKJv.lbtCA,G.R.No.146621,JW30,2004.
1
Sine Dally Pi~ilas. nc. v. NLRC, G. R. No. 119205, Ap!115, 1998; PI.DT v. P"DJOI,
G.R. No. 182622. Sept 8, 2010;
5 Panbanco North Express, Inc. v. NLRC, G.R. No. 106~15, Sept 21, 1999.
Mcrilagol3tlewater Beach Resort, Inc. v. DJal, G.R. No. 180660, July 20, 2010.
5
5 Unicorn Safety Glass, Inc. v. ~.arte, G.R. No.154689, Nov. 25,2004.
Sorianov. NLRC, G.R. No. 75510, Oct. 27,1987.
7 PhfWi\e M\es, K. ~- Pasrua, G.R No. 143258, hlg. 15,2003,409 SCRA 195.
lABOR RElATIONS
Manufacturing Co.,t it was pronounced that one indication that the union is
which are granted to others under similar conditions and circumstances. 1 Thus,
company-dominated is the act of the employer in securing authorization cards
before a claim for discrimination can prosper, it must be established that first,
from employees and by immediately granting the union exclusive recognition as
there is no reasonable distinction or classification that can be obtained between
a bargaining agent and entering into a contract therewith although it was not the
persons belonging to the same class and, second, persons belonging to the same
duly authorized representative of the employees. Another is when the union
class have not been treated alike. 2 It must be stressed, however, that
approached the management rather than the employees in getting the union
discrllnination per se is not unlawful. There can be no discrimination where the
organized and management extended the requested assistance to the union. The
employees concerned are not similarly situated.3
acts of the company in soliciting membership and allowing union activities to be
held during working time and coercing employees to join the union under threat
2. DISCRIMINATION AND CLASSIFICATION, DISTINGUISHED.
of dismissal or demotion are clear indicia of company domination.
Discrimination should be distinguished from classification. While
In Davao Free Workers Front v. CIR/ the following acts of
discrimination is considered an unfair labor practice, classification is not
respondent employer, 7-UP Bottling Company of the Philippines at its Davao
because it merely differentiates the employees in accordance with their
branch, were cited as indicia that the union was company-dominated: It refused
respective jobs and accords them the appropriate levels of pay or benefits due
• • 4
organiZatiOn. ·
their just-expired contract and instead foisting upon petitioner union its
unilateral version of a CBA; and it filed a notice of lock-out and refused entry
to 4. MATERIALITY OF PURPOSE OF
ALLEGED DISCRIMINATORY
members of petitioner union when the latter refused to accept its unilateral
ACT.
contract version. These union-busting and discriminatory acts led petitioner
union justifiably to declare a strike against w:pondents' unfair labor practices.
In Rizal Cement Workers Union v. Madrigal and Co.,S it was held
premises in the meantime while the strike was still going on in the factory was
v.
borne out of the company's justified apprehension and fear that sabotage might
DISCRIMINATION
be committed in the warehouse where the products, machinery and spare parts
were stored. It has never been shown that the act of the company was intended
I. CONCEPT.
2 WLSe and Co., h:. v. Wise <n! Co.,lnc. Employees lJnk:o.NAlU, GR No. 87672, Oct
13, 1989, 178 SCRA 536, 539.
2 GR.No.L-29356,0ci.31.1974,60SCRA408.
3 G.RNo.L..J95o16,Nov.29, 1977,80SCRA434.
3
WLSe and Co., h:. v. 'Mse <nf Co., h:. Eflllloyees l..lnbl, ~;Great Pacilic Life
Employees Unkln v. Great Pacilic Life
4 Bl<d's Lcr.v Di:tionay, 6th E<fition, p. 467; SUgue v. TlilJn1lh
lntemalional (Phils.), Inc., G.R Nos. 164804 &164784, Joo. Assura1ce
Corpomlion, G.R No.126717, Fell. 11,1999.
30, 2009; Pattguez v. GSIS F<mly Bank [ComsaWlgs Bank], G.R No. 169570,
Mlld12, 2007, ~ Phippine Amerk:iJ1 4
BAilREVIEWEilON IABOillAW
CHAI'TEil VII
IABOil RElATIONS
sss
584
the employer reserved its right under the CBA to grant better bonus to those who
unionists.
are exceptionally good or efficient. It was held that it is neither discriminatory
In Manila Railroad Co. v. Kapisanan ng mga Manggagawa sa
-nor an unfair labor practice for said employer to give such bonus to non-union
Manila Railroad Co./ the non-regularization of long-time employees because
members, it being clear that many union members were also given the bonus and
of their affiliation with the union while new employees were immediately
it was purely a valid exercise of management prerogative.
regularized was declared an act of discrimination.
3
But in Manila Hotel Co. v. Pines Hotel Employees Association/ it
In Luzon Stevedoring Corporation v. Cffi, it was pronounced that
was enunciated that there was unjust discrimination when management departed
the disapproval of the application for leave of absence with pay does not
from its previous practice of dividing equally to all employees certain
necessarily indicate discrimination, unless it could be shown that such
percentage of its net profit as Christmas bonus - giving only to its employees in
disapproval was due to the employee's union membership or activity.
the operation where there was no union and not giving any to its unionized
4
In AHS/Philippines Employees Union v. NLRC, the employer
establishments.
transferred the union president from the main office in Manila to Cebu at the
7. RUNAWAY SHOP.
time when the union was still being organized. It was held that the uneven
application of its marketing plan resulting in the said transfer of d1e union
A "runaway shop" is a fonn of discriminatory act of the employer.
president is patently an act of discrimination constitutive of unfair labor
practice. Teclmically, it is defined as an industrial plant moved by its owners
from one
location to another to escape union labor regulations or state laws. The term is
In Bondoc v. cm,5 t.'le employee charged his employer as having
also used to describe a plant moved to a new location in order to discriminate
discriminated against him in the grant of promotion because he was not a
against employees at the old plant because of their union activities.3 A "runaway
member {)f any labor union. The Supreme Court held that the employee's
shop" in this sense is a relocation motivated by anti-union animus rather than for
contention that he was discriminated against to force him to join a labor
legitimate business reasons. 4
organization is untenable becav.se he failed to mention any specific union.
Moreover, it is not believable for the employer to harass and oppress an
In A. C. Ransom Labor Union-CCLU v. NLRC,S the "run-away
employee to force him to join a union, for it cannot be comprehended how his
corporation" was declared liable not only for the backwages but also for the
joining a union would benefit his employer.
reinstatement of the terminated employees of A. C. Ransom (Phils.)
were close corporations owned and managed by members of the same family. Its
2 G.RNo.L-30818,Sept28, 1972.
1 G.R.No.l-16003,Aug.31, 1965, 14SCRA955.
3 Texlile Workers Union v. DalfingDl tvfg. Co., 380 US 263, 12lEd.2d, 627,85,
SCt. 994;Wiam P. S\a!sky, Wesfs Legal
2 G.R No. L-19728, Mi 30, 1004.
ThesaJrus4Jicti, Special Deluxe Edition, p. 671.
3 G.R.Nos.L-17411 a1dl.-18683,0ec.31, 1965, 15SCRA"660.
4
Coo'qJiex Eleclrooi:s ~Association jCEEA], et., v. NLRC, GR No. 121315, Jltj 19,
1999; CorT1JieX Elecllmics
4 GR No. 73721, Mard\30; 1987.
~v.Nl.RC,G.R.No.122136,Ju~19,1999.
s G.R No. 33955, Joo. 26, 1989.
5
lABOR RElATIONS
organization proved to be a convenient instrument to avoid payment of
backwages and the reinstatement of the 22 workers. This is another instance
prohibited to be done directly shall not be allowed to be accomplished
indirectly. ·
where the fiction of separate and distinct corporate entities should be
disregarded. It is very obvious that the ~cond corporation seeks the protective__
In Itogon-Suyoc Mines, Inc. v. Baldo/ it was declared that an unfair
shield of a corporate fiction whose veil in the present case could, and should, be
labor practice was committed by the employer when it dismissed the worker
pierced as it was deliberately and maliciously designed to evade its financial
who had testified in the hearing of a certification election case despite its prior
obligation to its emplo.yees.
request for the employee not to testify in the said proceeding accompanied with
CBA-RELATED ULPs
l.CONCEPT.
Under paragraph (f] of Article 259 [248) of the Labor Code, it is an
I. THREE (3) CBA-RELATED ULPs.
unfair labor practice for an employer to dismiss, discharge or otherwise
Article 259 [248] enunciates three (3) CBA-related ULPs, to wit:
prejudice or discriminate against an employee for having given or being about to
1) To violate the duty to bargain collectively as prescribed in the Labor
1
give testimony under the Labor Code.
Code. 3
2. THE ONLY ULP NOT REQUIRj;.D TO BE RELATEQ TO
2) To pay negotiation or attorney's fees to the union or its officers or
EMPLOYEE'S EXERCISE OF THE RIGHT TO SELF-
agents as part of the settlement of any issue in collective bargaining
ORGA.l\l'IZATION AND COLLECTIVE BARGAINING.
or any other dispute. 4
It must be underscored that Article 259(t) {248(t)] is the only unfair
3) To violate a CBA.5
labOr practice that need not be related to the exercise by the employees of their
No. I above has been discussed earlier under the following separate
right to self-organization and collective bargaining?
topics/sub-topics: "VII. LABOR RELATIONS, 2. COLLECTIVE
In Philippine American Cigar and Cigarette Factory Workers
BARGAINING."
Independent Union v. Philippine American Cigar and Cigarette
Nos. 2 and 3 above are discussed hereunder seriatim.
Manufacturing Co./ the employer dismissed the brother of an employee who
filed a case against it. The Supreme Court ruled that such act of the employer
4
VIT-A.
constitutes unfair labor practice. Although Section 4(a] 5 of R.A. No. 875
would seem to refer only to the dismissal of the one who filed charges against
PAYMENT OF NEGOTIATION AND ATTORNEY'S FEES
the company as constituting an unfair labor practice, the legislative intent is to
assure absolute freedom of the employees to establish labor organizations and
I. WHEN PAYMENT CONSIDERED ULP.
unions as well as to proffer charges for violation of labor laws. If the dismissal
Article 259(h) [248(h)] of the Labor Code considers as an unfair labor
of an employee due to the filing by him of said charges would be and is an
practice the act of the employer in paying negotiation fees or attorney's fees to
undue restraint upon said freedom, the dismissal of his brother owing to the non-
the union or its officers or agents as part of the settlement of any issue in
withdrawal of the charges of the former would be and constitute as much, in fact
collective bargaining or any other dispute.
a greater and more effective, restraint upon the same freedom. What is
2
15, 2008; GreatPaclicUieEfl1lk!Yees tnon v. GreatPacliclileAssoon:eCo!poration,
G.R No.1£6717, Feb. 11,1999, See also Na1i:x181 Faslllner Qrporation v. CIR,
G.R No.l-15834, Jat 20, 1961, 1 SCRA 17; H. G. Hel1aes &Sons v.
303SCRA 113.
Nablallilorlkiln, G.R No. L-17535, Dec. 28,1961,3 SCRA 765.
3
a G.R No. L·18364, Feb. 28,1963.
Artk:le 259(g) (248(g)], llilor Code.
4
• NaN Miele 259(~ !248(m at 111e taxr{;(xle.
Mae 259(h) (248(11)], llid.
-··~·--""~ -- ~ ·unw<'•ie
negotiation fees .from the employer as part of the settlement of any issue in
The existence of an attorney-client relationship is a condition to the
Pacific~ Caporation v. Clave. GR. No. 56965, Marth 7, 1984, 128 SCRA 112; ~ v. T~.
G.R No.
1
7rJJrl, Sept 15, 1986, 144 SCRA 138; ~ Lmers AssociaOOn v. CIR. G.R No. L-23467,
Midi '0, 1968, 22
SCRA 1266.
2
1 kprM!es: 'lv!De 222. AppeMrx:es !lld Fees.-xxx (b) No atlooley's fees,
nego6ali:xl fees or siTU chages of '&'If kill! Al10l222(b),
Lalor Code.
-
RiYJ m '&'If coledNe ~ <r;~ieenent shall be i11Josed oo Plrf il<Miuallllli!
flter of 1he oon1Jadi1g uniln: 3
GOOriel v. The liJn. Seae1ay of Lm !lld EJl1lloymenl. <l.R No. 115949, Marth 16,
2000; VI".IOO v. Tllljano, G.R. No.
Prooli:led, hciM\Yer, flat atbne/S fees may be d1aged <r;~ainst union funds
illll CI'I1CXJii b be agreed upa1 by 1he paties. 74453, Mey 5, 1989;
S1l!lla' r.dusfJial Servi:es, k1c. v. NLRC, G.R No. 117418, Jan. 24, 1996, 252 ~
323; Palacd v.
Mj oonuact. <r;~reement or MMgement of Plrf sort 10 theallllrlly shal.be 001
Cl1d ..00.' Fen-er<:alleja. G.R.
No. 85333, Febnay 26, 1990, 182 SCRA 710.
.
G.R. No. L-23959, New. 29, 1971 (En Bane).
4
2
Pacific Bmlg QJqloratioo v. Clave, G.R No. 56965, Marth 7, 1984, 128 SCRA 112; See
alsO Em:o Pl,wJod Cotpora00n
3 ld.
v. ~ G.R. No. 148532. Apnl14, 2004.
5
4 PromJI;Jated on Jl.lle 21, 1988. Ca1oo 9-A ~ershal not. directly or ildreclly,
assistil toe ll1al.l1haized practX:eof l<r.v. As anended by RA. No.
6715.
l lABOR RElATIONS
:>~l
violations of CBA shall mean flagrant and/or malicious refusal to comply with
3.
1
the economic provisions of such agreement.
ULP BY LABOR ORGANIZATIONS1
2.CASELAW.
shall have the right to prescribe its own rules with respect
The act of the employer in permitting non-union members to participate
to the acquisition or retention of membership;
in the service charges, contrary to the stipulation in the CBA, is an unfair labor
(b) To cause or attempt to cause an employer to discriminate
practice. 4
against an employee, including discrimination against an
VIII.
employee with respect to whom membership in such
1
~ f'kx.9h Capolalioo, G.R No. 142506, Feb. 17, 2005; ~ MnJgagawa sa~ Liles,
Inc. ~u v. Relevall PnMsion: MX:Ie 200
[2489,1lid.
~k:io Liles, klc., GR. No.1~. Marcfl25, 2004.
2 As anended by Balas ParilMsa Bier@ 130, Aug. 21, 1981.
I CHAI'TER VII
!
DISCUSSION
declared to have coinmitted unfair labor practice when it expelled a member just
l.CONCEPT.
1. UNION MAY INTERFERE WITH BUT NOT RESTRAIN OR COERCE
Under Article 260(b) [249(b)], it is considered ULP for a labor
EMPWYEES IN THE EXERCISE OF THEIR RIGHT TO SELF-
organization, its officers, agents or representatives, to cause or attempt to cause
an
ORGANIZE.
employer to discriminate against an employee, including discrimination against an
Under Article 260(a) [249(a)], it is ULP for a labor organization, its
employee with respect to whom membership in such organization has been denied,
officers, agents or representatives to restrain or coerce employees in the
exercise or to terminate an employee on any ground other than the usual
terms and conditions
of their right to self-organization. Compared to similar provision of Article
under which membership or continuation of membership is made available to other
259(a) [248(a)] of the Labor Code, notably lacking is the use of the word
. members.
"interfere" in the exercise of the employees' right to self-organize. The
2. KINDS OF DISCRIMlNATION.
significance in the omission of this tenn lies in the grant of unrestricted
license I
to the labor organizatiqn, its officers, agents or representatives to interfere
with !
There are three (3) kinds of discrimination that a union may commit under
~
·the exercise by the employees of their right to self-organization. Such
I this article, to wit:
interference is not unlawful since without it, no labor organization can be
formed as the act of recruiting and convincing the employees is definitely an act
(1) The act of the union to cause or attempt to cause an employer to
of interference. It becomes unlawful within the context of paragraph [a] of
discriminate against an employee, in genera~ irrespective of whether he
Article 260 [249] only when it amounts to restraint or coercion which is
or she is a member or non-member of th.e union.
expressly prohibited thereunder.
(2) The discriminatory act of the union against an employee ''with respect
2. RIGHT TO PRESCRIBE OWN RULES NOT ONLY ON ACQUISITION
to whom membership in such organization has been denied."
OR RETENTION OF MEMBERSl:DP BUT THE WSS THEREOF.
The rules, to be valid, must be reasonable and within the bounds of the
The intent and initiative to discriminate should not emanate from the
law. Thus, the labor organization in M. D. Transit v. de Guzman,1 was
employer but from the union, its officers, agents or representatives. In fact, the
instigation of the union in order to hold the latter liable for ULP. If it is shown
that
the employer has yielded and acquiesced to the inducement and instigation of the
, GR No. L-18810, Apri 23, 1963,7 SCRA 726.
union by actually committing the act of discrimination, it may be held liable for
ULP
not under Article 260(b) [249(b)], which exclusively speaks of a ULP committed by
collectively with the employer, provided it is the representative of the employees.
a labor organization, but under Article 259(e) [248(e)], which is the counterpart
This is the coooterpart provision of Article 259(g) [248(g)] in regard to the
violation
provision for employer ULP insofar as the charge of discrimination is concerned.
by the employer of its duty to bargain collectively.
!
That Article 259(e) [248(e)] is the law violated by reason of such discriminatory
action of the employer consequent to the union's inducement or instigation is clear
from a reading of the U.S.law1 from which this provision of Article 260(b) (249(b)]
' 2.PURPOSE.
The ptupose of the law in imposing it as a duty on the part of the SEBA to
in order for them to conclude a mutually beneficial agreement on the terms and
2.2. SECOND AND THIRD KINDS OF UNION DISCRIMINATION.
conditions of their employment relationship.
The discriminatory ULP act under the 1'd and kinds of discrimination r
3. REQUISITES.
mentioned above is perpetrated by the union itself against an employee whose
membership therewith has been either: (1) denied by 1he union; or (2) terminated
The following are the requisites before a union may be held liable for ULP:
by 1he union.2 The first involves an employee who has not become a member of the
(l) The union is a duly certified SEBA; and
union because his membership 1herein has been discriminatorily denied by 1he
(2) lt~mmits any of the following:
tmion; while the second refers to the case of an employee who is already a member
(a) It violates the duty to bargain collectively; or
of the union but whose membership therein is discriminatorily terminated based
"on any ground other than the usual terms and conditions under which membership
.. (b) It re~ to bargain collectively with the employer.
CHAPTER VII
union.
On No. 2 above, the act of the employer in paying the money or delivering
1 ~. 11e am "'eaa1ertJedq"lriJinatt lebmd" ~ peBXt v.oo is ~. ~. cr ~
the things of value demanded by the union, is against its will and is therefore, as
the
rewaded. The em 00Ji!a1ec1 il the used~ tl t1 ma11resses il beds, pll)'Jiilg
lor mae ca00t. The modem use a
11e em il the litlor relalioos • • illle lW Sllres ralroad
iidustiy, IM!k:h used Wlered matesses il law states, "in the
nature of exaction" by the union. "Exoction", as a legal term,
sleeJq QIS. RaW.ay liila"llilns, CO'IIIOOed v.!tl ~ ~ Ylftilled tl MlespeiKI ~
&XJght1D means an excessive or harsh
demand of a reward or fee for an official service
peserve PIS by negotiatDJ conlitDs v.l1k:h requied ef1lll:rfels kl ~ 'MXKeis tl
cb llle cr no 'NOtll cr IWlk:h
~ <XJ1'I)Iex Md ~ w:n lUes so as tl ~a ill dais w:n lor 111 ~v.OO ollerY.te
v.wkl
rxt nmtt ~· (MenianWebsb's Oldionlry d l.a.v, 1~ at, MenBnWebsle', K. 1996.1SBN
~1; 1
VJSi also lhe ~e EncyOOpedia a hllp:/lwitW.Il!ferenceilibu.OOI1'IKooi.iedg
Feallelbedarg.tdrrl; Last
CWler09,2016.
lisiled: Jan. 30, 2017).
lhe unioo makn;! tle demMd lor payment of wages b' seM;es IVt:h are net Jl(lfbmed
or not tl be perbmed. lb¥ever,
1947. ftanendedlleNamilaxJRelalblsAct,29 U.S. Code§ 158·lklflirliila"prd:es,
Sec.S[b] ~llered. v.ilk:h
lhe prohilibls WJai1st fealheibeddiVJ lll1der l1is sOOiorl are made ~ oott b
payroonts lor WJkers not b 'Mik.
sttes: "kl caJSe cr atfenlll ~ caiSe 111 errpoyer 1:1 pay or defier or CY}'ee
tl pay or defier~ I1'0le'f cr ~ t1i:¥J of
naue
value, illhe m
of Ill exaction, lor seM;es are ndpelfonned (J nd 1D
be perbmed[.f __..1.___
_ ................._ ..............
CHAPTER VII
the union's demand that the employee be compensated for time spent in doing the
"I!XIICiion," the union exacts what is not due, when there is nothing due to it3
1
work does not violate the law. The law leaves to collective bargaining the
On No. 3 above, although the employer agrees to pay money or deliver
detennination of what work, if any, including bona-fide "made work," shall be
things of value, the employees to whom such payment and delivery are made will
included as compensable services and what rate of compensation shall be paid for
itl
not actually do or perfonn the contemplated services. Being an exaction, no
services
would be rendered in exchange for the money paid or things of value delivered.
A musicians' union has been held not to have violated the anti-
3. DEMAND FOR PAYMENT OF STANDBY SERVICES.
featherbedding provision by refusing to permit a union band to perfonn at the
opening game of the baseball season, refusing to pennit a union organist to play at
A union commits ULP under this provision by causing or attempting to
the home games, and picketing the baseball stadium, in order to force the owner of
cause an employer to pay or agree to pay for standby services. Payments for
the baseball team to hire a union band to play at all weekend home games; or by
"standing-by," or for the substantial equivalent of "standing-by," are not payments
refusing to give its consent to appearances of travelling bands in a theater unless
the
for "services performed" within the meaning of the law. When an employer receives
theater manager also employs a local orchestra in cannection with certain programs
a bona-fide offer of competent performance of relevant services, it remains for
tht: whet e the local
orchestra is to perform actual and not token services, even though
employer, through free and fair negotiation, to determine whether such offer should
the theater manager does not need or want to employ the local orchestra. 3 .
be accepted and what compensation should be paid for the work done. 4
regardless of whether or not the persons receiving payment are the ones who
1 t.9rq d'!'C8Cion' per USI.egaaxn b.lld athllp~.am'e'exa::lkn'.l.ast ~ Jooe ll,
2016. N<*! perfonned the work. 5
llat '{IJle act d exacq nmey a fie m exa:led Is also caled exa:iln.' See *> ~.Com
at
htlp:l~.aglexa:tin'. Lastao:essed: Jooe ~. 2016.
2 SeeYcaOicOOnay.amt4hHp:l/w.wl.ywtilnay~.LastVisik!d:Jooell,2016. ·
3 See USLega.can It htlp:lldefroilbls.uslegli!Xll1ll&'exdn'. Last &:~: JlJle ll,
2016..The Freeettiooay.can at
hllp~Nreedk:lknaly.corntexa:tion, ~ IIese Mil ems, his: 'B<ACTION. bts. Awllful
Yt100!J
NLRB v. GcmJie Enterprises, Inc., 345 US 117, fll Ed 864, 73 SCt 560; Americm
Newspaper~ Association v.
1
dcne lrf 111 dlicef, «by ooe v.OO,IJ'Ider mlor rJ. his m, ~ mere te «pay b' Ills
seiViles 11M v.ta 1he law abo$.
BeMeen exbtion Mel exa::liJn thele. is ltis dl1!~ 11ft illle tamer case 1he
dlicef exbts mere tal his liJe. v.11en NLRB, 345US 100,97
LEd852, 73SCt552,31 ALR2d497.
sanettf,J is rue~ hill; n1he latter, 11e exacts v.tlatis net his due,l'tflen
t.ere is 110ttg duet> hi11. 'Mshad; to.l.itl. 368.' 2 hneB:a1
NewspaperPublishersAm:ia!OOv.NLRB,345 US 100,97 bEd852, 73 SCt552, 31 AI.R2d497.
MJSkians Ulbn v. ~ C011t c:l Alimeda County, 69 Cal2ct$5, 73 Cal~ 201, 447 P2d 313;
NLRB v. GaltJie
3
last !mlSSEd: Jooe 30, 2016.
4 N..RBv. Gcmlle~. R:., 345US 117 97 LEd 864,73 SCt560.
Eneprises, R:., 345 US 117,97 LEd~. 735 Ct560.
.Arne!icM ~ PWishers Associa1ioo v. NI.RB, 345 US 100, 97 LEd 852, 73 SCt 552, 31
AI.R2d 497; lnlematiooal
4
s ilenationaiBrolhedlooddTeansters, et., 212 NLRB968,1974CCH tt.RB26867,87 BNA lRRM
1101.
6 CalsllilaledThelms, k1c. v. Theal1i:;al SI8;Je~lml, 69 Cal2d713, 73Cal Rpt213,
447 P2d 325.
CHAPTER VII
ULP even if they have not asked or demanded from the employer the payment to
OF NEGOTIATION FEES OR ATIORNEY'S FEES
them of negotiation fees or attorney's fees for as long as there is evidence that
they
!.CONCEPT.
have "accepted" negotiation fees or attorney's fees from the employer.
Under Article 260(e) [249(e)], it is ULP for a labor organization, its
On No.2 above, in order to be held guilty ofULP, there is a need to prove
officers, agents or representatives to ask for or accept negotiation fees or
attorney's that the union has "asked" or "accepted," as the case may be, for
the payment to it
fees from employers as part of the settlement of any issue in collective bargaining
or of the negotiation fees or attorney's fees by the employer, as principal
consideration
any other dispute.
for the settlement of any issues affecting labor-management relations, or even if
not
2. COUNTERPART PROVISION.
may have with the former. Moreover, it is possible that the matt.er of fixmg the
amount of negotiation fees or attorney's fees alone would present a problem much
This is the counterpart provision of Article 259(i) [248(i)] regarding the
complicated than the more substantive issues involving the terms and conditions of
employer's act of violating a CBA. But it must be noted that under Article 274
[261]
employment and the righ~ benefits or welfare of the workers.
of the Labor Code, violation of the CBA is generally considered merely a grievable
which means that there is flagrant and/or malicious refusal to comply with the
Following are the requisites to hold a union liable for ULP based on this
economic (as distinguished from non-economic) stipulations in the CBA. This
particular ground:
principle applies not only to the employer but with equal force to the labor
organization as well.
(l) The union or any of its officers, agents or representatives commit
.either of the following acts:
VII.
(a) to ask for negotiation fees or attorney's fees; or
BURDEN OF PROOF
(b) to accept negotiation fees or attorney's fees;
IN ULP CASES UNDER ARTICLE 260 [2491
(2) The negotiation fees or attorney's fees are demanded from, or given
by, the employer as part of the settlement of any of the following
For a charge of ULP against a labor organization to prosper, the onus
issues:
probandi rests upon the party alleging it to prove or substantiate such claims by
the
(a) in collective bargaining; or
requisite quantum of evidence! In labor cases as in other · administrative
(b) in any other dispute.
Proceedings, substantial evidence or such relevant evidence as a reasonable mind
llaptis1a v. Vimueva, G.R No. 194709, Jllo/ 31,2013, citing UST f<Dij IA:Jn v.
lJnWersay d 8n> Tanas. G.R No.
the employer. Under this situation, there is no need to prove that the employer has
180892. Apri 7, 2009, 584 SCRA 648. 662.
1
succumbed and given in to the union's demand.
ld., carg StrldMd 01ftred Bank En1lfoyees Uni:Jn (NUBE) v. Coolesoc, GR. No.
114974, June 1s, 2004,476 Phi. 346,
-:lJ7.
lABOR RElATIONS
indubitable that all the probtbited acts constituting unfair labor practice should
progress of society. Our laws thus regulate their exercise within reason by
balancing
materially relate to the workers' right to self-organization.
1
the interests of labor and management together with the overarching public
interest. 1
2. DEFINITION.
vm.
"Strike" means any temporary stoppage of work by the concerted action of
CRIMINAL AND CIVIL LIABILITY
the employees as a result of an industrial or labor dispute. 2
FOR ULPs OF LABOR ORGANIZATION
3. ELEMENTS.
1. PERSONS L:iABLE.
pay, holiday pay, vacation pay, etc.5 It is declared for the pwpose of
1. NATURE~ CONCEPT OF STRIKE.
forcing wage or other concessions from the employer which he is not
2 Miele 219(o) [212(oH. l.alor Cede, as llllellded tty SecOOn 4, RA. No. 6715;
Sediln 1 t.rul!Ull, 8cJd( V, IU!S tl
the relationship between labor and management but also on the general peace and
~ l1e t.m Code, as Mmled by Depabnent Qder No. 4G-03, Selies o12003, feb. 17, 2003t
No. 1, NCMB
b' Cadation md PreYEn1Ne Medic6Jl Cases; TCPjda M:Jb' Phis. COlp. Wakers Associailn
[TM'CWA) v. NLRC, G.R
Nos. 158786 &158789 Cl1d 15879SOO, Oct 19, 2007; G&STrnportCOlp. v. w.rte, G.R No.
181303, Sept 13, 2007.
1 ld., ciPJ Greci Pacli: Life En1Jklyees lkti:xw. Great PiKific Life Assura1ce
Capaatioo. G.R No. 126717. Feb. 11, 1999, 3
No.2, NCMB Prmeroo'Stlte, Meli"g a1d l.od(out, 2nd Edition, DereniJer 1995.
362 Pill. 451' 464.
4 ld.
2 Re1!Mrt Pr1Mskm: Mk:1es 278 (2631 Cl1d 279 J264L t.m Code.
5 ld.
3 Sec6oo 3, Artk:le XJn, 1987 Coostlutioo.
6
lABOR RELATIONS
employer but nonetheless stage the strike for the purpose of aiding,
a) General strike - one which covers and extends over a whole
directly or indirectly, other strikers in other establishments or
province or country. In this kind of strike, the employees of
various compa.nies, without
necessarily having any direct relation to the
companies and industries cease to work in sympathy with striking
advancement of the strikers' interest. This is patently an illegal
workers of another company. It is also resorted to for t!J.e
purpose of strike? An example
of a sympathy strike is t!J.e ''welga ng bayan"
putting pressure on the goveilli~ent to enact certain labor-
related where workers
refuse to render work to join a general strike which
measures such as mandated wage increases.
does not involve a labor or industrial dispute between the strikers
b) Particular strike - one which covers a particular establishment
or and the employer struck
against but it is staged in pursuit of certain
employer or one industry involving one union or federation.
ends, such as reduction in the electric power rates, increase in the
illegal strike.
4. As to the nature ofthe strikers' action:
I &ova.
1 No.2, NCMB l'linerooStke, Pi::keti'g 111<1 Lockout, 2nd Edful, Decerriler1995.
2~
.
2 ld.; F~uelaw. tJooeey Foods CcrporaOOn, G.R Nos.178409 &178434, June 8, 2011.
3
Oeet. 01UM &Sans, Ire. v. Kaischrl ng rnga Manggagawa sal<alay sa~. G.R No. L-8149,
99 Phll1050;G &S
3 ld.
Tr<IISpOrtQrp. v. Willie, GR t«l. 160303, Sejt 13,2007.
No.5,Ptftcy~No. 46.
~ Nitooaltm dwaKels nile Hotel, Restmrillld Arel i10Jskies [NlMHRAIN-APt-RJF)
O:Jsit fbtel Nid<o ~v.
amss !Ji::tiooay.<Xllll athttp1fNAw.hJsilessdK:tio.rom/del'nitioMYildc-
sbike.hlmi.Lastaccessed: Feb. 14, 2017. The Hon. CA, G.R Ncs. 16394211ld
1$3295, Nov.11, 2008. The llllecede!t pertilentta:L; of this 13ie ildicale tlat oo
6 Busiless llctionay.oom, Slqll'll.
OciOOef 24, 2000, petitioner 1.1100 submi!BI its CBA negofiabJ p!llpOSas ~ l1e
HeEl. /ls negotialiooS ensued, ft1e paties
7 No.2, NCMB l'lineroo Slrie, Pi::ketilg 111<1 Lockout. 2nd&filioo,
Decerriler1995; G&STranspa!Colp. v.lnlante, G.R failed " CliNe at ~ mpiOOie
Mls aod anfifions. ~ tl the bagaili"g dedx:k, l1e unkln, 00 December 20,
No. 160303, Sept 13,2007.
2001, filed aNotice of Stt.e oo lhegroundd the balg<inilg dedlck v.it1 the NCI.B.
The!eil'ler, CXX1Ciiabt heai1Qs we1e
8 Supra.
t:OOduc8l vmich proved ~. toosequenltj, a SVte VrJe was <XXlduded by 11e 111ion oo
JanuSIY 14, 2002 oo
9 Supra.
M1i:h ft was decided thallle lki:ln v.OOd ~a s!rile. Soon lherealter, i11he
a1temoot d Jcmary 17, 2002, ft1e lrirl
discussion of the requisites for a valid strike and the reasons for declaring a
strike
Following are the procedural but mandatory requisites for a valid and
number of employees in a company. 4
legal strike:
d. Overtime boycott
Raw at EkJIOOd ng Mirlggagawa PBMJ v. NLRC, GR ~. 91980, June 27, 1991, 198 SCRA
586.
2
ng lknggagawa v. NLRC, G.R ~. 91980, June 27, 1991, 198 SffiA 586.
Sukolhai Cuisi1e and Resfaurantv. CA., G.R No. 150437, Ju~ 17, 2006.
3
2 F~ v. Mlnmy Foods Colporciiln, G.R Nos. 178409 & 178434, June 8, 201i; Bagong
Pagkaf(aisa ng
~ ng T~ lnlemaiooal v. Secrelay d the Depa1nent rJ Lm llld ~ G.R Nos.
16740111ld ' ~1Dihe2017~.
5
167407,.Al!y5,2010.
See Article 259 (2481 tlr UlPs d ef11lloyers, Mkle 274 [2611 v.flich makes gross
voaoon d aCBA aULP act. and Artide
3 Webs!E!'s Thld New lntemalilnal Dictionary [19811.
278(c) (263(c)l for lllKxHlusting.
National Coooliation and Mldiation Board (NCMB) athe Depa11ment of Labor and
~(DOLE).
6
4 ~v. Bio:nedk:aHea«TGare,k\c.,G.R No193789,Sept 19,2012.
LABOR RELATIONS
(b) To give the NCMB ample time to decide on whether or not there is a
( 1) Unfair labor practice (ULP or Political Strike); and/or
1
need to supervise the conduct of the strike vote to prevent any acts of
(2) Collective bargaining deadlock (Economic Strike).
Section 1!18], RUe Ill, NcM8 Manual d Procedures for Coociiation and l'relenWe
Me<f~alion Cases.
No. 40M3 jMalth 12, 2003]; No.8, NCMB Primer on S1!te, PK:ketilg en!
Lockout,~ EdiOOn, December1995; Section 3, 2
lABOR RElATIONS
meetings or referenda called for that purpose. This process is called "strike vote
{2) In case of unfair labor practice, the cooling-off period is fifteen {15)
baUoting. " 1
days. 1
The purpose of a strike vote is to ensure that the decision to strike
broadly The exception to the rule on
observance of the cooling-off period is in
rests with the majority of the union members in general and not with a mere
minority cases of union-busting which is
considered an unfair labor practice where the said
thereof. At the same time, it is meant to discourage wildcat strikes, union bossism
15-day cooling-off period may be disregarded completely.
. 2
and even corrupb.on.
4
false, the majority of the members can take appropriate remedy before it is too
late. therein.3
A strike vote should be reported at least seven (7) days before the
actual The cooling-off period and the 7-
day waiting period or strike ban (waiting
staging of the L.1tended strikellockou~ subject to the observance of the cooling-
off periods) after the submission of the strike
vote repo~ are meant to be, and should be
periods provided under the law.
5
imperatively require the filing of a strike notice and strike vote report without
at the
The failure of the union to prove that it obtained the required strike
vote same time making ihe prescribed waiting
periods mandatory. 5
among its members and that the results thereof were submitted to the NCMB would
6
render the strike illegal.
• Purpose of the 7-day waiting period or strike ban.
t) On the SIXm Requisite
The Supreme Court has elucidated on the purpose of the 7-day waiting
(Cooling-off Period)
period or strike ban in the leading case of NFSW v. Ovejera. 6 It declared herein
that
the seven (7) day waiting period is intended to give the NCMB-OOLE an
The cooling-off periods before a strike or lockout may be conducted
are as
opportunity to verifY whether the projected strike really carries the imprimatur of
the
follows:
majority of the union members. The need for an assurance that majority of the union
(1) In case of bargaining deadlock, the cooling-off period is thirty
(30) members support the strike cannot be gainsaid.
Strike is usually the last weapon of
days;
1 Mk:le 278(c) (263(c)1Lm Code; Sedi:rl7, RUe )()(II, Bcxt V, Rlres b ~ 11e Lm
Code, as Mlel1ded by
1 See Sedkri 1 fiM!, rue 1. Bcxt v, rues" lfllllenmt 11e Lm(.(xle, as ·!l'lmled
by Oeparlment{)rder No. 4Gm, Aitide 1, Depabnent Order No. 4Gm, Series
ct 2003 p=eiJnay 17, 2003]', No.6, NCMl Priner 00 SH<e, Pi:ke&lg llld
Series a2003. [Feb. 17, 2003!.
Locltat, 2nd Edition, Oecenter 1995; Sedioo 5, RUe IV, NCt.tl Mci1Ual a Procedlres
b' Conc:iai:rlllld P!eventive
2 No.12, NCM3 Ptineroo Strile, Picketg ll1d Lockat,~Edlioo. Oecenter1995.
Mldiifui Cases; No.3, Gu«kfnes GcNoot1J LmRelatkxls.
3 No.13, NCM3 Ptineroo Siile, PK:keli'g 111dl.:oc:kcU;2ndBfilkxl, Deoentier1995.
2 ~.14, NCMB Priner oo Stie, Pk:keti'g ll'llf Loctrul, ~ Ed'Ibl, Decen'ber 1995;
Natiooal Fmalicrl of Suga- 'MrtEIS
4 Ni11ooa1 FedelalilnofSugarWakels (NFSW)v. 0/ejela, GR. No. L-59743,May31, 1982.
(NFSW) v. Oveje!a, G.R. No. l-59743, Play 31, 1982; See also flhiro! klduslries,
klc. Y. R1m:o ~ Llilor
s Aitide 278(1) [263(1)1. t.m Code; Sedkri 5, llJIIe )()(I~ Bcxt v, PJJies b
kt1*mentlhe Lm Code, as anended by -AssOOailn [PILAJ, G.R No. 170830, M;).
11, 2010.
llep<rtneit Order No. 4Gm, Series ol2003, [Feb. 17, 20031 ald as trller anended
by Oep;rlment Order No. 43M3 3 No.6, NCt.ll Priner m Sl!ie, Pk:keti'g
ll'llf Lockrul, 2nd Edilioo, Decen'ber 1995.
[Mml12, 2003t,. No. 2~]. Guidelines Gc1lemirg Lm RelaOOns; No.6, NCMl Priner 00
Slme, PK:ketg in! LockCAJI, 4 CCBPI Pai1rrix Wmas Unbl v. NIRC, G.R. No.
114521, Nov. 27, 1998; Coca-Cola Bottlers PhiS, blc. v. NlRC, G.R. No.
2nd Editioo, Deoerrber 1995; Section 2, ~VII, NCM3 Mnlal of Procedllesilr
Condlialioo !lld flre.reniNe M!diation 123491, No.o. 27, 1998; Gokl City
lntegraild Pat Servioo, Inc. v. NLRC, G.R No. 103560, JU)' 6, 1995, 245 SCRA 627,
Cases.
636-637.
~ P1iei0 v. NIRC, G.R No. 149610, M;). 20, 2004; S<rniilq MllggaJilWa sa~ Liles,
Inc. - NAFLU v. &JIJjcio 5 See also CCBP1 Pos1rrix Wmas UnKln v.
NLRC, G.R No. 114521, N!JI. 27, 1998; Coca-Cola BollfeiS Phils, Inc. v. NLRC,
Liles, Inc., G.R No. 140992, March 25, 2004; ~ MangglrJawa sa Wlex Produds,
Inc. v. NLRC, {OR No. G.R No.123491, Nov. 27,1998,299 SCRA410;
Gokl City lniEgraled PatSeM:e, Inc. v. NLRC, supra.
119467,Feb.1,2000.
6 National Federation of Sugar Workers (NFSW) v. Ovejera,G.R No. L-59743, May
31, 1982.
Sulpicio Lines.3
a majority vote assures the union that it will go to war against management with
the
strength derived from unity and, hence, with better chance to succeed. 1
Moreover, the NCMB Primer on Strike, Picketing and Lockout is very
''In the event the result of the strike/lockout vote ballot is filed
The 7-day waiting period or strike ban is a distinct and separate
within the cooling-off period, the 7-day requirement shall be cmmted
requirement from the 15-day or 30-day cooling-off period prescribed by law. The
from the day following the expiration of the cooling-off period.',s
latter cannot be substituted for the former. This is clear from the provision of
Article
278(f) [263(t)] which states that the 7-day requirement is "subjxt to the cooling-
off In other words, the seven (7)
days should be added to the cooling-off
period herein provided." 2
period of fifteen (i5) days, in case ofULP, or thirty (30) days, in case of
collective
bargaining deadlock and it is only after the lapse of the total number of days
after
The cooling-off period, on the one hand, is counted from the time of the
adding the two (2) periods that the strike/lockout may be lawihlly and validly
staged.
filing of the notice of strike up to the intended or actual staging thereof. In
case of
ULP, the cooling-off period is 15 days; and in case of collective bargaining
RUNDOWN OF CERTAIN BASIC PRL~CIPLES:
deadlock, such period is 30 days. The 7-day waiting period strike ban, on the other
• A strike mounted on the same day the strike vote report is submitted to
hand, is reckoned from the time the strike vote report is submitted to the NCMB-
illegal.8
• EITect on the reckoning ofthe 7-day waiting period or strike/lockout
ban if the strike/lockout vote is taken and reported within the
i-b.
cooling-off period
REASONS FOR DECLARING A STRIKE ILLEGAL
It must be stressed that the requirements of cooling-off period and 7-day
1. WHEN IS A STRIKE CONSIDERED ILLEGAL?
waiting period or strike ban must both be complied with, although the labor union
A strike is illegal if it is declared and staged:
may take a strike vote and report the same to the NCMB-DOLE within the statutory
cooling-off period In this case, the 7-day waiting period or strike ban should be
counted not from the date of submission of the report but "from the day foUowing
1
Gad Ciy lnlegraild Port SeM:e, k1c. v. NLRC, GR. No. 103560, Jtlf 6, 1995, 245 SCRA
628, 636, cii'd Nablal
FederaOOn of Suga-Workers (NFSW) v. Ovejera, GR. No. L-59743, MJ)' 31, 1982, 114
SCRA354.
~t.m:lg~sa~l.iles,klc.-NAFLUv.~l.iles,klc.,G.RNo.140992,Mildl25,2004.
3
1 See also Phiml bllskies,lnc. v. Phiral k1dusbies l..alxJ Association [PILA), GR
No. 170830, klg. 11, 2010; L.apanday 4
CCBPI Pos1nix Workers Ulillv. NLRC, G.R No.114521, Ncw. 27, 1998; Coca-Cola
Bottlers Phis, D;. v. tlRC, G.R. No.
Co., G.R No. L-1834, March 28, 1952, 91 Phi. 72; Phiippi1e Airlines v. flhiWi1e
Aili1es ~Association, G.R No. 123491, Nov. 27, 1998, 299 SCRA410.
l-8197, Oct 31,1958.
8
&rnaha~ MarY:Jgagawasa Sulpicio Liles, Inc.- NAFLU v. Sulpicio l..iles, Inc., G.R.
No. 140992, March 25,2004.
CHAPTER VI!
9 mediation case. 5
Sec also Section 5, Rule XXII, Book V, ~les to ~ 1he Labor Code, as emended by
lRpatnent Order No. 40-m,
v:
6 See also Sedilll5, RUe XXII, Book Rules to kr!J1eme11t the l.aborCOOe, as emended
by OepOOment Order No. 40-00, Se00sof2003, ]Feb. 17, 2003], !
lldasln1heranended byOepatnentOnler No..m.ro [M<rdt 12, 2003]; Nos. 6111C121,
Seriesof2003, [FBI. 17, 2003!, !lid as fu!1her anended by0epa1Jrent01dert-b.
40M3 [MM:h 12, 2003t t-b.8, NCM! NCM3 Priner on Sbi<e, Pk:keli'g !
lid l.ockoul, 2'11 Edition, Deceniler 1995; Section 3, RUe V, NCtiB Mnlal of
Priner on SH<e, Pi:keiP,j !lid Lockout, 2"' Ediion, Decenter1995; Section 3, RUe
V, NC~ Mllllal of Procedures iJr Procedlles iJr Conciiatia1 !lid
PreYentive PledicDln Cases; Buletil NJiisltg Coporalkrl v. Scrd1ez, G.R No. 74425,
Concial'al crd PrevenWe Melialion Cases; No.7, Guideliles G:NemOj t..m !Wions.
Oct 7, 1986, 144 SCRA 428.
.
7 Sedilll 3, RUe V, NCM3 Mllllal d f'rooodures iJr .conciiatia'l crd PreYaM
Medation Cases; t-b. 5, Guideliles 2
4
9 See AJtk:le 278(c) [263(c)], Labor Code.
AssOOaliln of k!dependenl Unixls i:\ fie PhifWi!es [AlliP) v. NLRC, G.R No. 120505,
Mlth 25, 1999, 305 SCRA 219;
10 Malay.nJ SaMlM ~ ITYJ8 M'l'lggW:Jawa saM Greenfield {MSMG-L'Ml) v. Paros, ~.R
No. 113907, Feb. 28, 2JXXl, 326 364 Ph~. 697.
SCRA 428, dli'Q Masfsr Iron l.abor Unkln v. NLRC, G.R. No. 92009, Feb. 17,
1993, 219 SCRA 47; See also Naional Unkln 5
No.18, NCMB Priner on Slrke, ~ llldl.ockool, 2nd Edb, Decenter 1995; l'hq!pile
Ai1i1es, he. v. Secrelay of
ofWakels i:ltle Hdel, Restau!antand Alfled lnduslries [NWIHRAIN-A?l.-IUF) 1m!
Hare! Niko~v. The Han. CA, Laxr llld~, G.R No.88210, JM. 23,
1991, 193 SCRA 223; Nl!MJRAIN v. NLRC, G.R. t-b. 125561, MJch 6,
G.R Nos.163942111C1166295,Na/.11,2008.
1998, 287 SCRA 192.
11 SecOOn 5, Rule XXH, Book V, ~to frrcllement 1he llilor Code, as am.:rded
byDepment Older No. 40-03, Series of
SecOOn 4, Rule 111, ~ rues II1CI Regulations of ExecuWe Order No. 1so to GcNem 111e
Exerdse of 11e Rgtrt of
2003, feb. 17, 20031. lf1d as fur1her am30ded by Oepatnent Order No. 40M3
tMarch 12, 2003); SecOOn 3, Rule V, GJieavnent ~ to Self.(}fgaizatm;
Alticte 291 [276), Labor Code.
7
NCM:l Mnsal of Procedures for Coociialion CVld Preventive Mediatkln Cases;
lJnMln of Fiipro Empklyees v. Nestle United Restauror's En'4!klyees
&liblr Unmf'AFLU v. Tares, G.R No. L·24993, Dec. 18, 1968, 26 SCRA 435.
8
~. loc., G.R t-b. 88710.13, Dec. 19,1990.
Alma v. NLRC, G.R Nos. 154113, 187778, 187861 &196156, Dec. 7, 2011, 661 SCRA 686;
S1anbt1 tlaf<eting Corp., v.
12 Phtom Employees Unkln v. Philippine Global Communications, G.R No. 144315, Jutt
17, 200l; FqJi1o P~ and Foondl}' Julin, G.R No. 145496, Feb. 24,2004.
Capaation v. NlRC, G.R No. 115180, NcN. 16, 1999.
9
10
ToyolaMllrtPhis. Corp. Workers Association [TMPCWA] v. NLRC, G.R Nos. 158786
&158789, Ocl19, 2007.
017
lABOR RElATIONS
BAR REVIEWER ON lABOR lAW
616
i-c.
Toyota Motor Phils. Corp. Workers Association ITMPCWAJ
LIABILITY OF UNION OFFICERS'
v. NLRC/ where the Supreme Court ruled that the protest
rallies AND
ORDINARY MEMBERS
staged by the employees from February 21 to 23, 2001 in front
of
the offices of the Bureau of Labor Relations (BLR) and the
(NOTE: These two topics are not part of the Syllabus 2 but a discussion thereon is
DOLE Secretary constitute illegal strike and not legitimate
important in order to complete the discussion on strike).
exercise of their right to peaceably assemble and petition the
1. PARTICIPATION IN LAWFUL STRIKE.
government for redress of grievances. It was illegal for
having
been undertaken without satisfying the mandatory pre-
requisites The declaration or actual
conduct of a strike does not result in the
for a valid strike under Article 278 [263] of the Labor Code.
severance of the employment relationship nor a renunciation thereof. The
1. Union officers.
(a) Obstructing, impeding or interfering with, by fmce,
violence,
coercion, threats or intimidation, any peaceful
picketing by The mere finding or
declaration of illegality of the strike will result in
employees during any labor controversy or in the
exercise of the termination of all union officers
who knowingly participated in the illegal
their right to self-<>rganization or collective
bargaining, or strike. 6 Unlike ordinary members,
it is not required, for purposes of termination,
aiding or abetting such obstruction or interference. .
that the officers should commit an illegal act during the strike. 7
(b) Conducting a stationary picket and using means like
placing Thus, Naranjo v. Biomedica
Health Care, In;,S instructs that absent
of objects to constitute permanent blockade or to
effectively any showing that the employees are
union officers, they cannot be dismissed
close points of entry or exit in company premises.
based solely on the illegality of the strike.
(c) Committing any act of violence, coercion or
intimidation by
1 Relevclll PttMsion: AI1Xle 279 [2641. t.aJor Code. The past Syilctlus uses lhc
em "'rtfmy Wate!S', tt is submilled lhat
fle better Elm shOOd be 'Ortilay Mentels' silce fle distilction illhc law is
beto¥een 'Union Ollioo!s' ii1d "'rtfnary
picketing.5
Mmbels" cA the striiDJ ll1kln.
5 Miele 279(a) [264(a)J, l.rbor Code; No. 030, PJiner on Sl!i<e, Pi:keting and
Lockout.
1 G.R Nos.158786 &158789, Oct 19,2007.
6
2 Toyola Mlla' Phis. Ccxp. WaXels Association [TM'CWA] v. NLRC, ~-
LapandayWOike!SUnionv. NLRC, G.R Nos. 95494-97, Sept 7, 1995.
3 GR No. 159460. Nov. 15, 2010.
7 Phirrro Industries, Inc. v. Phinco kldusbies Latxr A$ociation [PK.AL G.R. No.
170830, 1\uJ. 11,2010.
4 OO'e<Phils.lnc. Latxrl.klm[NAFLU]v.Foot!exklduslrlalilld~Cotp., G.R
No.155679,0ec.19,2006. B GR. No 193789, $epl19, 2012.
i
union officers based on their participation in the illegal slowdown strike which
·:1
• The fact that the employees are signatories to the CBA does not in
To illustrate how the "knowing participation" of union officers may
itself sufficiently establish their status as union officers during the
be ascertained and established, the following factors were taken into account in
illegal strike. Neither were their active roles during the bargaining
Abaria v. NLRC,' which led to the declaration that they knowingly participated
negotiations be considered as evidence of their being union
in the illegal strike:
officers. 2
(l) Their persistence in holding picketing activities despite the
• Only the union officers during the period· of illegal strike are
declaration by the NCMB that their union was not duly registered as a
liable? If the employees acted as union officers !f!tt the strike,
legitimate labor organization and notwithstanding the letter from the
they may not be held liable and, therefore, could not be terminated
federation's 1 legal counsel informing them that their acts constituted disloyalty
in their capacity as such. 4
tQ the national federation; and
• Shop stewards are union officers. 5 Hence, they should be
(2) Their filing of the notice of strike and conducting a strike vote
terminated upon the declaration of the illegality of the strike.6
despite the fact that their union has no legal personality to negotiate with their
• Union officers may be dismissed despite the fact that the illegal
employer3 for collective bargaining purposes.
strike 8was staged only for 1 day 7 or even for less than 10
2. Ordinary union members.
hours. This holds true in cases of defiance of the assumption/
The mere finding or declaration of illegality of a strike will not
r~sult i.'1
certification order issued in national interest cases.
termination of ordi.'1ary union members. For an ordinary union member to suffer
• If the dispositive portion of the decision failed to mention the
termination, it must be shown by clear evidence that he has committed illegal
names of union officers, resort should be made to the text of the
acts during the strike. 4
decision. 9
b. Reason for the distinction.
• Wholesale forfeiture of employment status is not allowed. The
The reason for this distinction is that the union officers have the duty
to mere
filing of charges against an employee for alleged illegal acts
guide their members to respect the law. If instead of doing so, the officers urged
during a strike does not by itself justify his dismissal. The charges
the members to violate the law and defy the duly constituted authorities, their
must be proved in an investigation duly called for that purpose,
dismissal from the service is a just penalty or sanction ·for their unlawful act.
where the employee should be given an opportunity to defend
Their responsibility as main players in an illegal strike is greater than that of
the
himself. This holds true even if the alleged ground constitutes a
. . 1offiense. 10
cnmma
ordinary union members and, therefore, limiting the penalty of dismissal only to
the former for their participation in an illegal strike is in order. 5
• No wholesale dismissal of strikers allowed. The employer cannot
c. Some principles on illegality of a strike.
just unceremoniously dismiss a hundred of its employees in the
2 ld.
5
1
Sanla Rosa CocaCola Plcll!Empbyees l.lnbnv. CcJca.Cola.Boll Phils., klc., G.R. Nos.
164302.00, Jan. 24, 2007.
GR Nos.154113, 1Sms, 1S7861 &196156, Dec. 7, 2011,861 SCRA686.
6
Scmlalg ~awasaSU4Ji;klLiles, Inc. -twl.Uv. ~Liles, klc., G.R. No.140992, March 25,
2004).
2
7
strke.
Universey of San Agustin ~loyees' IJnion.ffWv. The CA. G.R No. 169632, March 2S,
2006.
8
MllroCebuCoomlnily Hospital, n;. (MCCHQ, present{ knoY.ll as lhe Vis<rjas
ConlrulityMedical Center (VCMC).
CHAPTER VII
62i
lABOR RElATIONS
to seek validation of the dismissal it whimsically executed.
That
certainly cannot be allowed. 1
the penalty of dismissal on participating workers and union officers. 1 Liability
for illegal acts should be determined on an individual basis. For this purpose,
3. PARTICIPATION IN THE COMMISSION OF ILLEGAL ACTS
the individual identity of the union members who participated in the
DURING A STRIKE.
l
identify who they were. It thus failed to meet the "substantiality of evidence
b. Meaning of "illegal acts."
test" applicable in dismissal cases.
The term "illegal acts" under Article 279(a) [264(a)] may encompass a
commission of illegal acts are liable. Those who did not participate
provides that "[n]o person engaged in picketing shall commit any
act of violence, coercion or intimidation or obstruct the free
ingress
1 Phm:o l1dusbies, ~ v. Phinoo kWiUies I.JixJ AssociaOOn (PLA], G.R No. 170830,
Aug. 11, 2010, citDJ k>oo. of
c. Mere substantial evidence required to hold strikers guilty of
~Lmls ilflePhR. v. NLRC,364Phl.697, 707{11199.
364 Pit 697, 707;G &STIMSpatQxp. v. tla'1E, G.R No. 100303,Sept 13,2007.
While in all cases, it is required that the striker must be identified,
proof GR. No. 139940, Sepl19,
20C6.
beyond reasonable doubt, however, is not required; substantial evidence
Phin:o hdusties, he. v. Phinoo lnOOs!Ji!slalor Association [PILA), supra.
6
available under the attendant circumstances suffices to justify the imposition of
Sof'idbalk Corporation v. Gamier, G.R No. 159460, Nov. 15, 2010; G&ST!81Sp01tCorp.
v. Walte, G.R No. 160303,
Sept 13, 2007; Natiooa IJnkln It Workers illle IW, ResfaJra't Md Aled t100s1ries
jNlM'HRAtl-APL-tLf) QJSit HoE!
Nikko ~ v. The Honorable CA, G.R Nos. 163942 Cl1d 166295, N<w. 11, 2008.
1 Trres Tra'1Spa1atioo Co., Inc. v. tiRe, G.R Nos. 148500-01, Nov. 29, 2006.
T The rna lJa Asst.ain:e<:o., l.tf. ~Association- NAlU v. The lnsiB Lle ~Co.,
Iii., G.R No. L-
2 TO)'Oia MJa Phis. Corp. Wo!iem Associatioo [IWCWA] v. NLRC, G.R Nos. 158786
&158789, Oct 19, 2007; See also 25291,Jal.30, 1971,37
SCRA244.
8
Shell Oi Wod<em Union v. Shell~ d the PhiWOOS, GR No. L-28607, May 31, 1971, 43
SCM 224; Chua v.
NLRC, G.R No. 105775, Feb. 8, 1993, 218 SCRA 545.
Steel Co. v. Nafi:xlaii.JixJ Relations Boird 107 F. 2d 472.
National Brewely and Ali!d klduslries I.JixJ Union v. San !Ji:luel Brewely,
Inc., G.R No. L-19017, Dec. 27, 1963, 9 SCRA 9
623
lABOR RELATIONS
The most singular requirement to make picketing valid and legal is that
b.
it should be peacefully conducted. This is articulated in paragraph (e) ofArticle
thoroughfares."
marching to and fro before an establishment involved in a labor di!;pute generally
accompanied by the carrying and display of signs, placards and banners intended to
Based on the foregoing provision, the requisites may be summed up as
infonn the public about the dispute. 3
follows:
2. RIGHT TO PICKET PROTECTED BY CONSTITUTION A.lW LAW.
I. The picket should be peacefully canied out;
I
Unlike a strike which is guaranteed under the Constitutional provision
~ 2. There should be no act of violence, coercion or intimidation
attendant thereto;
on the right of workers to conduct peaceful concerted activities under Section 3,
Article XIII thereof, the right to picket is guaranteed under the freedom of
3. The ingress to (entrance) or egress from (exit) the company premises
speech and of expression and to peaceably assemble to air grievances under
should not be obstructed; and
Section 4, Article III (Bill of Rights) thereof. 4
4. Public thoroughfares should not be impeded.'
The right to picket is likewise guaranteed as part of the right ''to
engage 6. EFFECT OF THE USE OF FOUL
LANGUAGE DURING THE
in concerted activities for purposes of collective bargaining for their mutual
CONDUCT OF THE PICKET.
benefit and protection. "5
compound.
SCRA315.
1.
·CHAPTER VII
lABOR RELATIONS
62.§
signs making known the facts involved in a labor dispute. It is but one strike
activity separate and different from the actual stoppage of work.
Petitioner union, in the 20 11 case .of Leyte. Geothermal Power
(I) Petitioner union filed a Notice of Strike on December 28, 1998 with
8. WHEN PICKET CONSIDERED A STRIKE.
the DOLE grounded on respondent's purported unfair labor practices, i.e.,
dated January 4, 1999, certifying the labor dispute to the NLRC for compulsory
Bottlers Phils., Ir.c. 2 - P~titioners contend that what they conducted was a mere
arbitration. The Order indicated the following facts: (I) filing of the notice of
picketing and not a strike. In disagreeing to this contention, the High Court
strike; (2) staging of the strike and taking control over respondent's facilities
of
emphasized that it is not an issue in this case that there was a labor dispute
its Leyte Geothermal Project on the same day petitioner union filed the notice of
between the parties as petitioners had notified the respondent of their intention
strike; (3) attempts by the NCMB to forge a mutually acceptable solution proved
to stage a strike, and not merely to picket. Petitioners' insistence to stage a
futile; and (4) in the meantime, the strike continued with no settlement in sight
strike is evident in the fact that an amended notice of strike was filed even as
placing in jt:opar~y the supply of much needed power supply in the Luzon and
respondent moved to dismiss the frrst notice. The basic elements of a strike are
Visayas grids.
present in this case: 106 members of petitioner Union, whose respective
applications for leave of absence on September 21, 1999 were disapproved,
(3) Petitioner union itself, in its pleadings, used the word "strike."
opted not to report for work on said date, and gathered in front of the company
the NLRC, as affirmed by the CA thus: "The failure to comply with the
themselves and instead wore red ribbons and carried placards with slogans such
mandatory requisites for the conduct of strike is both admitted and clearly
as: "YES KAMI SA STRIKE," "PROTESTA KAMJ," "SAROD, KARAPATAN
after the submission of the strike vote was not complied with since there was no
working hours. Thus, petitioners engaged in a concerted activity which already
strike vote taken." In fme, petitioner union's bare contention that it did not hold
affected the company's operations. The mass concerted activity obviously
a strike cannot trump the factual fmdings of the NLRC that petitioner union
constitutes a strike. Moreover, the bare fact that petitioners were given a
indeed struck against respondent. In fact, and more importantly, petitioner union
Mayor's permit is not conclusive evidence that their action/activity did not
failed to comply with the requirements set by law prior to holding a strike.
amount to a strike. The Mayor's description of what activities petitioners were
allowed to conductis inconsequential. To repeat, what is defmitive of whether
9. EVEN IF PEACEFULLY CARRIED OUT, PICKET IS ILLEGAL IF IT
the action staged by petitioners is a strike and not merely a picket is the
totality OBSTRUCTS POINTS OF INGRESS AND EGRESS.
of the circumstances surrounding the situation.
and egress which would make the strike illegal. In Phimco/ it was held that a
1 G.R No.170830,hlg.11, 2010.
1
Phirnoo tKlusties, Inc. v. Phimco Industries Labor Asso1:iatm (PILA), G.R No.
170830, Aug. 11, 2010.
CHAI'TERVII
by the employer. It, however, may take other forms such as the employer's act of
F.
excluding employees who are union members. 1
PEACEFUL CONCERTED ACTI\1TIES
5. REQUISITES FOR A VALID LOCKOUT- SUBSTANTIALLY
requisites for a valid strike discussed above are substantially similar to those
a.
applicable for valid lockout. For purposes of ease and clarity, the same are
presented as follows:
LOCKOUT
81
lockout;
to tennination of employment due to closure of the establishment, the consequences
and ramifications of which will be totally different from lockout, to wit:
• 6th requisite - The cooling-off period of 15 days, in case of unfair
1
Priner oo Sble, Pk:keliY;J iK1d l..ockoot, 2nd Edi!m, llecenter 1995; Seclm
1[14j, RlAe II~ NCMl Mrrla d Prtx:roures Sectioo 3, P. D. tb. 823, as aoonded
by P:O. No. 849.
a
10r Coociiatioo cm PreoJenWe Mediatioo cases; Rllralllalk Al!rm ~
lk1i:ln ]RBAEUJ v. NtRC, G.R Nos.
100342-44, Oct 29, 1999; llcrN at Bullkxl ng Manggagawav. NI.RC, G.R No. 91980,
June 27, 1991, 198 SCRA 586.
2 ~ 8ectronks ~AssociatiOn [CEEAJ, elt. v. NLRC, G.R No. 121315, .1utt 19, 1999;
Sla. Mesa~ &
over the labor dispute in the said industry or certify it to the NLRC for ·
the submission of the lockout vote report to the NCMB-DOLE
compulsory arbitration. 1
should also be fully observed in all cases.
Past issuances of the DOLE Secretary have not made nor attempted to
F.
mention specifically what the industries indispensable to the national interest
PEACEFUL CONCERTED ACTIVITIES
are. It was only in Department Order No. 40-H-13, Series of2013, 2 that certain
3
actual staging of a strike or lockout since Article 278(g) [263(g)]. does not
should be strict?' limited to national interest cases. It is in the nature of a
police
require the existence of a strike or lockout but only of a labor dispute
involving power measure. This is done for the promotion of
the common good considering
national interest.z
that a prolonged strike or lockout can be inimical to the national economy. The
This law is unique in the sense that the very "opinion" of the DOLE
DOLE Secretary is mandated to act to maintain industrial peace. Thus, his asswning
jurisdiction over a labor dispute or his certification thereof to the NLRC for
Secretary is conferred with the force and effect of a law. Notably, there are no
criteria set by the law on when the DOLE Secretary should assume jurisdiction
over
a labor dispute or when he shoUld certify it to the NLRC for compulsory
arbitration.
The choice is obviously discretionary and his alone to determine.
2. WHAT CONSTITUTES A NATIONAL INTEREST CASE?
1 Phillread Wakecs lkP1 tpTWJ] v. Confesa, G.R No. 117169, Mm:h 12, 1997, 269
SCRA 293.
2 lssuedbyOOL£Seaelay!GafindaDillapilis-~OOOctlber21,2013.
The Labor Code vests in the DOLE Secretary the discretion to
3 No. 22, Gukfeliles GcMlrrq L.OOa RelaOOns.
detennine what industries are indispensable to the national interest.
lhe mler, safely, healll, lllO!l!ls a'1d general weli1e d society. The police
power, b;Jelher v.ith lhe power of emilent
Accordingly, upon the determination by the DOLE Secretary that such industry
dom<in and lhepc:rMJ d1axa!ion, is an itle'ent power d pe!Mlen! a'1d does rd need
to be~ conferred by the
Constitutioo. (Trans-Asia ShWiJg Liles, Inc. - UDlsed Cfeo.w ~loyees UnOO- ~ Labor
lk1ions [fASL~
AllJ] v. CA, G.R No. 1008, Jutf 7, 2004; ~Ia Diamond Hole! fn1Jklyees' IJiion v.
CA, G.R No. 140518, Dec. 16,
See also ArtK:Ie 278(i) [263(i)], Lm Co:le.
2004, 447 SCRA 97).
Government lnsulance System Employees Association, v. CIR, GR No. L-18734,
Dec. 30, 1961.
CHAPTER VII
631
630 BAR REVIEWER ON lABOR lAW
lABOR RElATIONS
compulsory arbitration is not intended to impede the workers' right to strike but
to when in the exercise of such right,
national interests will be affected The rights
obtain a speedy settlement ofthe dispute.
1
granted by the Constitution are not absolute. They are still subject to control and
.
limitation to ensure that they are not exercised arbitrarily. The interests of both
the
4. GRANT OF POWER FOR THE PROTECTION OF THE STATE, NOT
OFLABORNOROFEMPLOYER
I employers and employees are intended to be protected and not one of them is
given
undue preference. 1
Having been enacted pursuant to the police power of the State, Article
r
<i
upon ~ by li:wi is not a~a- atlhy disaelioo, but an if1llltial disaelioo guided and
IXJl1nlled il is exercise
1 SeePillreadWor1<ers IJnklntpn\Uiv. Con!esa, G.R No.117169,Mlrch 12, 1997,269
SCRA293. by fixed legal p!i'qlles. tt
is not a mental discretial to be exerciSed ex gratia, txt a legal discretion to be
exeldsed il
2 ~ Sc00o1 of Business ~ia v. tbiel, G.R No. L.ao648, Aug. 15, 1988, 164 SCRA
402; Samiento coofomity wilh lle spilit of
the law, en! il amamer to subsetve and not to if4lOOe a defeat the ends d
substantial justice.
v. Tulco, G.R Nos. 75271-73, June 27, 1988, 162 SCRA 676; Phiippine Aililes,
Inc. v. Seaetly d I.Bbor arid From the fa-egcbJ, it is
quite ~that no matiEr ha.¥ broad the exettise of disa"etion is, the scme roost be
v.ilhil the
Ef1lliJyment. G.R No. 88210, Jal. 23, 1991, 193 SCRA 223.
confines aile law. (PlDTv. tvmggagawa ng Komuni<asyon sa Pif4lilas, G.R No.162783,
July 14, 2005).
3 Mria Diarood Hael Eflllloyees'Unioo v.lJ., GR No.140518, Doc. 16, 2004.
4 Free Telephooe Waters Unioo v. Hon. Moister d Labor and EJr4!1oymert, G.R No.
L-58184, Oct 30, 1981, 108 SCRA
1999, 304 SCRA 747.
757.
LHAPTERVll
lABOR RElATIONS
633
the pretext of retaining a laudable objective, the intendment or purpose of the law
adequate protection of the life and health of its patients, most especially
will lose its meaning as the law itself is disregarded. 1
emergency cases, for the duration of the strike or lockout. 1
For instance, it was declared that a match factory, like the petitioner
in The DOLE Secretary may immediately
assume, within twenty four (24)
Phimco Industries/ though of value, can scarcely be considered as an industry
hours from knowledge of the occurrence of such a strike or lockoyt, jurisdiction
"indispensable to the national interest' as it cannot be in the same category as
'I over the same or certify it to the NLRC for compulsory arbitration. 2
"generation or distribution of energy, or those undertaken by banks, hospitals,
and export-oriented industries." Thus, it was declared here that the DOLE
10. SOME PRINCIPLES ON ASSUMPTION/CERTIFICATION POWER
Secretary acted with grave abuse of discretion in assuming jurisdiction over the
labor OF THE DOLE SECRETARY.
dispute in this case without any showing that the petitioner was engaged in an
• Prior notice and hearing are not required in the issuance of the assumption
industry indispensable to the national interest.
or certification order.3
Likewise, in GTE Directories,3 the Supreme Court declared the DOLE
• When the DOLE Secretary exercises the powers under Article 278(g)
Secretary to be without jurisdiction to take over a labor dispute invo!ving a
company [263(g)], he is granted "great
breadth of discretion" in order to find a
4
that produced telephone directories since the production and publication of
solution to a labor dispute. It necessarily includes and extends to all
telephone directories, which is the principal activity of petitioner GTE, can
scarcely questions and controversies that may
have arisen from the labor dispute
be described as an industry affecting the national interest GTE is a publishing
firm over which he assumed jurisdiction,
including those cases falling under the
chiefly dependent on the marketing and sale of advertising space for its not
criginal and exclusive jw·isrliction of Labor Arbiters. 5 It also includes
inconsiderable revenues. Its services, while of value, cannot be deemed to be in
the matters incidental to the labor dispute,
i.e., issues that ~e necessarily
same category of such essential activities as "the generation or distribution of
involved in the dispute itself, not just to those ascribed in the notice of strike
energy'' or those undertaken by ''banks, hospitals, and export-oriented
industries." It or otherwise submitted to him
for resolution. 6
cannot be regarded as playing as vital a role in communication as other mass media.
~ The DOLE Secretary may seek the assistance of law enforcement agencies
The small number cf employees involved in the dispute, the employer's payment of
like the Philippine National Police to ensure compliance with the provision
"PlO million in income tax alone to the Philippine Govcrnrnen~" and the fact that
the thereof as well as with such orders as he
may issue to enforce the same.
''top officers of the union were dismissed during the conciliation process,"
obviously
work order, even if the directive to return to work is not expressly stated
workforce of medical and other health personnel whose movement and services
shall be unhampered and unrestricted as are necessary to insure the proper and
1 ld.; See 11eN Sectioo 16, Rule XXII, Book V, Rules Ill ~ lhe Lalor Co:le, as
iiTief1ded by DOlE Depment Order
No. 40--Gm, Series of2010, issued by DOLE Secretary Mariooitl Roque on Mardl29,
2010.
2 tid.
3 Capilol Medical Center, Inc. v. Trajim, GR. No. 155690, June 30, 2005.
1 P11inco lnduslries, he. v.Brillles,
G.R No.120751,
March 17, 1999, 304 SCRA 747.
2 ld.
l'l1iloo11 En1Jioyees Unkln v. Ph~ne Gklbal Ccnm.micalms, GR. No. 144315, Ju~ 17,
2000.
5 St. Scholastica's College v. Torres, G.R No. 100158, June 29, 1992,210 SCRA
585,570.
3 GTEDimiesQxpcralblV.~GR.No.76219,tlay27, 1991,
197SCRA452,470-471.
4 Miele 278(g) {263(g)l Lalor Co:le; Fir Eastern UWersKy-Or. Nk:m' Reyes Medi:al
FoondaOOn [FlliNfM] v. FElJ.
Unkln of Fq,ro ~loyee&fuig, Fool a-d .AJ6ed lrxlusmes UnkJns.KiusMg Mayo Uno
ll.fE.OFM<MJ] v. Nestle
NRMF Ert1lfajees Associalm-AIIm of Fiipino WOike!s !faJ.NRM'EA-AFW], GR No.
168362, Oct 12, 2006. Phiippines.lnc., G.R No.158930-
31,Aug.22, 2006; Seeaso klternalional ~.Inc. v.lleSecrelayofl..abcr,
sup!a; Cftek Employees labor UnionfFWv. Ci1ek Eleclronics, Inc., G.R No. 190515,
Nov.15, 2010.
CHAPTER VII
lABOR RELATIONS
635
1
therein. It is thus not necessary for the DOLE Secretary to issue another order
directing the strikers to return to work.
• To implement the return-to-work order, the norm is actual
reinstatement. However, payroll reinstatement in lieu of actual
It is error therefore for striking workers to continue with their strike
Examples:
b. Nature of return-to-work order.
1
2
can continue serving the public and promoting its interest. It is executory in
NLRC and ruled that the NLRC did not commit grave abuse of
character and should be strictly complied with by the parties even during the
discretion in providing for the alternative remedy of payroll
pendency of any petition questioning its validity in order to maintain the status
reinstatement. It observed that the NLRC was only trying its best to
quo while the dete1mination is being made. 4
work out a satisfactory ad hoc solution to a festering and serious
problem.
c. Some prindples on returil-to-work order.
personal act of the strikers and cannot be used against the union and
1
Union offilipro Employees v. Nestle Phmppines, Inc., G.R. No. 8871().13, Dec.
19, 1990. G.R. No. 89920, Oct 18, 1900, 190 SCRA
758.
YSS Efr¥Jioyees Unbn - PhiJWne Transpat ood Gene!al WOOiels ~ v. YSS
l..abor.lbies, Inc., G.R. No. This case was subsequen11y
certified to the NLRC by the DOLE Secrelary.
155125, Dec. 4, 2009.
GRNo.151379,Jan.14,2005.
4
7 <NelseasWOOiet"S'WelfaeAdminisbalionv. Chavez,G.R No.169802,June8, 2007.
Bisayal.ald Transportation Co., Inc. v. CIR, G.R. No. L-10114, Nov. 26, 1957, 102
Phi.438.
8 PLOT v. Manggagawa ng Komunikasyon sa Pilipinas, G.R. No. 11)2783, July
14,2005. s Telefunken Semiconductors Employees
Union-FFW v. Secretaty of Labor and Employmen~ G.R. Nos. 122743 and
CHAI'TIR VII
lABOR RElATIONS
637
• The extension of the return-to-work order and the admission of all
striking workers by the company, cannot in any way be considered a
2. EFFECTS OF DEFIANCE OF THE ORDER.
waiver that the union officers can use to negate liability for
their The defiance by the
union, its officers and members of the Labor
illegal actions of defying .the first return-to-work order and for
Secretary's assumption of jurisdiction or certification order constitutes a valid
1
commission of illegal acts in the course of the strike.
ground for dismissal. 1
b.
The following are the justifications:
EFFECTS OF ASSUMPTION OF JURISDICTI.QN
I. A strike that is undertaken after the issuance by the DOLE
1. EFFECTS ON STRIKE OR LOCKOUT.
Secretary of an assumption or certification order becomes a
officers and ordinary union members were deemed to have lost their
(4)0n other pending cases.- The parties to an assumed/certified case,
employment status.
under pain of contempt, are required to infonn their counsels and the DOLE
Secretary/NLRC Division concerned, as the case may be, of all pending cases that
5
are related or incident to the assumed/certified case before it
lie displ.de between them pencilJ before t1rJ Regiooal Alblra!ion Brlrldl, Md 1he
I.JtJa" AlbiBs lla1dhJ t1e srne d
Sldl assoo.,oon a cerftalkll.lhe Lalor Aiater camned shal bWlld v.tit tt.o (2) days
fnm nak:e 1he enlie reaxds
ct 1he case kllle Carnissil1 a tile Secretly L.axr, as 1he case may be, for~
dilposticll.' (See aso ~
1 Bapg P<r:11taktisa ng Mi11ggagcrNa ng T!Ul1>h kWlmaliooal v. Seaetay d f1e
1)epirtnent ri L.axr Clld ~ 8ayal Corpoialion Realy k1vestxs
Clld IJewtlpels v. Ope, G.R No. 73334, Dec. 8, 1986). .
G.R Nos.167401 Clld 167407,Jttt5,2010.
1
Miele 278(g) [263(g)], L.axr Code; Secticn 5, R!OO XXJI, Book V, RlJes kl ~ the
L.axr Code, as M1ellded by
3 See Sedion 3[a), Rule VIII, 2011 NLRC RIJes d Procedute.
Depment Order No. 40-00, Series d 2003, [Feb. 17, 2003], Clld as flrlher anended by
Oepmert Order No. 40M3
1~ pcrlfJfllllh, SecOOn 3 ~].~VIII, llid.; Pli!JPile Federatioo ct Pclrolm
WolY.ers tpFl¥1] v. CIR, 37 SCRA 711; [MiHI:h12, 2003]; Phil'ippile
Ames, klc. v. Brilantes, G.R No.119360, Oct 10, 1997, 280 SCRA515.
ln\ernablal ~. klc. v. Secretly d Lalor a1d Associ<Ed L.axr l.klion ~Lq, GR
No. 92981.a3, Jill. 9, 3
Mria Holelfrrclklyees Associiful v. Mrlila Holel Cap., G.R No. 154591, Mcrth 5,
'Jf.'IJ7, !D'9Q!Ildl3oi.llevad Hotel
and ~ has assumed )Jrisd'ICOOn over a slite or klckoot or certifallle srne
title Coomission, Ole paties ~ v. GlO'MiRAIN, G.R No. 153664,
Jutj 18, 2003, 406 SC~ 688, 710; Telefunken Semk:onduclas fn1lklyees Union-
sud1 dispule sha1 irrnedi1*l¥ ilfonn ft1e Seaelily or the Conwnission, as
Oleia!e may be, d al cases diredfy related to FFWv. CA, G.R Nos.14301l-14,
Dec. 18,2000,348 SCRA565, 582; FFWv. roong, G.R No. 49983, Apli 20,1982,208
V;)';l
lABOR RElATIONS
638 BAR REVIEWER ON lABOR lAW
follows: (1) Union of Filipro Employees v. Nesde Philippines, Inc.,.t (2) St.
2
There is a long chain of cases where not only the union officers but
the Scholastica's College v. Torres; (3)
Federation of Free Workers v.Inciong; 3 (4) .
ordinary union members who defied the assumption/certification order and/or
AUied Banking Corporation v. NLRC; 4 (5) ·National Federation of Labor v.
5
retmn-to-work order were considered as having lost their employment status.
NLRC; (6) De Ocampo v. NLRC; 6 (7) Toyota Motor Phils. Corp. Workers
As an example, all the 44 defiant workers in the leading case of
SarmientO
v. Tuico,l were declared to have lost their employment status. While the employer,
1
G.R. Nos. 8871~ 13, Dec.19, 1990. This assumed case ilvOOtes peliOOner Union of
Fipro EmpkJyees and 70 Li1kJn oflicerS
Asian Transmission Corporation (ATC), has manifested its willingness to accept
and a member. tt was held il thS case lhat 'a stri<e 1hat is LUldertaken despite
file issuml by the Secrelaiy rJ Labor of an
sua:essMllawful orders rJ lien Labor tMislers Bias F. Ople, Auguslo Sand1ez llld
Labor Seaetry Frrilil Dnbn dated
have done, insisted on staging the restrained strike and defiantly picketed the
December 11, 1985, JCI1\BY 30, 198611ld Febnay 4, 1986, respecWely, and the cawier
treatment of the provisioos of lhe
company premises to prevent the resumption of operations. By so doing, ATC
Labor Code il1d t.e rellJn.b.wa1( ordes rJ the ~Mister (110N Secreta!y) of Labor
tVId En1Jio'Jmenl, or Artides 264 em 265
submits, these strikers have forfeited their right to be readmitted, having
abandoned (110N renumbered Ms. 278 !
2631 il1d 2791264l) x:n..'
GR. No. 100158, June 29, 1992, 210 SCRA. 565. AI the defiant stlikers, bdh Li1kJn
ollicers il1d oomy union members,
their positions, and so could be validly replaced. The Court agreed with this
position were al declcred to have
lost lheir ef11lklyment status under the folov.ing ra!iocilation:
of ATC and thus held:
'Wlie they clain that al'.Er receM1g copy of the Order of 9 November 1990 lliliaWes
were irrnedia!ety unde!tlken to
NLRC, G.R. Nos. 86917·18, Jill. 25, 1991; 193 SCRA 365), cannot be extended kl
theslrblg uniJn officers and members
75271-73, where the alleged acts are claimed to have been done on
June nthe ilsta1t petiOOn. There
was 1\iful disOOedience not ontt mone but 1v«> retum-IIJ.wcxk orders. Consideri1g
lhat the
9, 1986, and July 15, 1986.
UNION consisted mai1ly ci m:ller.;, lila are supposed to be wefl.letlered and~~.
lhe Coort cannot MOOok the
p00 ffiOQ<n:e il1d p00e \tspl:l'fOO by lhe UNION II V1is lctlcr dispL'i!. Despi1!;
OO"tlailil;J ~lffiat of discipiray action
"These dates are not denied. In fact, the petitioners
argue in ag<insl sorre m ati::ers ~
rnermers v.OO actively pa1qlated 11 t.e me, file 1e11er dated 91-«Jventer 1990 sent
by
their pleadings that they were engaged only in peaceful picketing,
which the COllEGE enjoi1rg file m cbs
and men"bers ID rebJm mV«llk on 12 ~ 1990 presented 11e V«llkers <r~
would signify that they had not, on those dates, returned to work as
oppa1l.:nily 1D re!um to w:xk Lnlerte scme terms llld conciOOns pOOr tlthe sllie.
Yet, lhe UNION deckled to gnore lhe
required and had decided instead to ignore 1he said order. By their
own sane. The COLLEGE,~~. had fMIY r
%Jhlto Emi1ale lhe seNices of those r.t10 chose 1o !lsregard the rebJITI-
bv.ok orders issued by respoodent SECRETARY i1 order b protect the i1teresls dIs
stJdenls lila bm pat rJ.flle yooVJ
acts, they are deemed ta have abandoned their employment and
of the lilld.
cannot now demand the right to return thereto by Virtue of the very
XXI.
' 2
order they have defied."
'klme, responden: SECRETARY gravetj cblsed his disaeOOn \\!1en he ordered file
reilstalement tt sUli1g unkxl
rnermers v.no refused kl repat back tl V«llk aner he issued ~v«> (2) reli.Jm.b.y,uk
orders, Yttii1 n ilsef is ~~
Other significant cases which declared all defiant strikers - both union
~ i1 <r1 illega act The Onleril ~is, teltailly, IXX1tray 1D eximJ law em~·
officers and ordinary members alike- as having lost their employment status are as
3 GR No. L-49983, Apri 20, 1992. The Sl.qxmle-crut, citi1g lhe sane nq i1 Union d
~. dedcred a! deliart V«llkes
as haii1g kJst l1eir ~ strus. 'llnrebuti!d eVdence shows that lhe ildM:lual
petitiooers dJely ~ ilflle
Sdlaastica's il1d Federaixl d flee wakers cases, t.e m oftk:ers 111<1 rnenters
v.tlo hcNe ~ i1 t.e said
1 caarno N. S!rmiEnD llld 71 Ol1er SH<iYJ W<Mkels d Asicrl TIII1SIIisskn tap.
v. The Hoo. Judge Odilldo R lli:Xl, legal d.litf, were al deemed tl
have kJst lhei" ~ strus, as a resUt d llei" defa1ce d 11e ~ or
certificalioo order.
GRNos. 75271-73&L-n567,.krle27, 1988.
s G.R No. 113466, Dec. 15, 1997, 283 SCRA 275. kwas aleged by pelb1ers lh.t 11e
disrrissal d l1e 141 Y«llkeiS is based
~suppled. The~ holdiYJ was reallimed ilflle ~ Courfs'ResokDln dated Febnay
22, 1989 vR:h
resd.oed, i1l!!r • t.e ID.1!ion b" ~ filed by l1e YOkel's areca! {G.R Nos.
75271-73). The Resdutioo solely on a p!ina facie filli"g
11at l"ef Cllf1'ded vcmus unlav.ful ads Yttlie slagi1g !lei" sllie, as ceRfied by
file City
stessOO llal 'tiJie NlRC had l1e d1att to i;sue te rellJn.bd ader, Slqed: il
sa1CiXls b" ~ Prosecutor's Olfice.ln ~ lle~dlle
disrrissalof allle 141l'tlll1(es, I was hekl that !his allegation is not rue.
llerewlh. The Court 131 ~sud! sancb1s. Those sbites W1o defied 1he.ader 111<1
refused b rebm to V«llk as The disnissal is~ basa:l Ill lhei"
refusal Ill rebJn kl V«llk after the Secre!ay d Lalor had assumed jJisdction rM!l
reqlied camat oow allf4llai1 f V1ey n deemed mMle bfeled t.ei" ~ as a ~ d
Ulei" file case oo Mild111, 1993. il
faa. despite the etltx1s d PNP persoonel flroug1 the llislltt ConvTmder tl
persua:le file
~- .: ~. t.e- of the begoi1g d"missald l1e 44 slrlers lila defied l1e
retJ.m.b.oM:xk order Y«llkes il coow with
file RebJrn.bWait Order, l1e s1rte c:on1hJed IIlli Mardi 29, 1993 m file mes
(ismcr1lled
was~ aMned illle sepmlle 1989 case rJ. Asicrl TrmsrrissiXI Cap. v. NLRC, G.R
No. 88725, Nov. 22, 1989. This their pickets. (See also Plqlle's ~
llld Comnercial ~ and Worllers Orgcnzaoon (FFW) v. People's
case was brought aboot by the NLRC's erroneous er.ecuOOn of the dedsiJns i1
f1e 2 prior cases rJ GR. Nos. 75271-73, Industrial and Coomertia1
Capaaion, G.R. No. L·37687, March 15, 1982, 112 SCRA 440).
6 G.R No. 101539, Sepl4, 1992. Tit is a CEitified case ID te NLRC. The kltal
ntl1ter of union ol!icefs and rnermers
riled "Catailo N. smerrto ood 71 OU1er S100lg Walkers of Aslil1
TICI1Siilissioo.corporation v. Hoo. JlXlge 0!1ll1do R
Tli:o, etc.,« al.,' llld G.R No. 77ffJ7 riled 'Asicrl
TllllSITissionQxporatioo {ATC) v. Nl.RC,' supra. Thus, l was held ordered
disnissed illhis case is 26. The Supreme Coort, i1 aftirmilg lhe NLRC's ruD:Jilat
11e slrie staged m February 6,
hereil, 1D wit 'VIH:REFORE. lle NLRC Resolution d June 13,1989 is ANNUI.lfD
111<1 SET .ASIIlE. Execution rJ.Ihis 1990 was ile;Jal, havi1g been
CCIIIdudEd II defmce of the certification order and~. nB1g that 'the union
Coots decision il G.R Nos. 75271-73 111<1 77fi37 kl eflect or axr.,et rei
ISfalement by fle petitioner rille trty.four oflicers/members vmo pa1qla!ed i1
said sl!ike cormitled prohilited ads [il1d lhereli:re]n deemed to have lost lhei'
V«X1<ersdeclared v.;thou!IYJhttllereto II said decision, is perpetllatf
resllailed. Cost ~Ble IM'l resp<llldenl;."
CHArTER VI!
ASSUMPTION/CERTIFICATION ORDER.
(b) Federation of Free Workers v. Incion!.!/- The period of defiance
was only nine (9) days.
•' 1
'
prosecution as well. 4
status of ~r cited the above QUOIEd holdl1Q i1 the said case of Union of
Rlipro, and furtt1er proooonced that 1
lJ)lrebutied ev'.dence sha.vs 111at the oorroual petitiooer; defied the retu~
ooier of 11e Seaelay ot l2bor issued The defiant strikers
could be validly replaced. 5
1
oo Februay 15, 1990. As a matter d fact, ft was CXlly oo Febrully 23, 1990
¥Alen the tmi:ades v.ec retWied Clld iile The refusal to
acknowledge receipt of the assumption/certification
mail gate of f1e ~was ~. Hence, the tenmali:ln of the serW:es of the iJdNk!ua
pe!ibiels is jJStilied oo this
QIW1d alooe.'
I orders and other processes is an apparent attempt to frustrate the
ends of
1 G.R Nos. 158786 &158789 and 15879&-99, Oct 19,2007. The~Court, usi"g as basis,
pidJJres shaMng the illegal justice, hence, invalid.
The union cannot be allowed to thwart the efficacy
a axmitled by the s!IiEIS, declared as vac1 the cisrrissal of 92 oomy lllkxi
menters ....oo pMqlaled i1 the May 23
of the said orders issued in the national interest through the simple
!l1d 28, 2001 paet> Clld coocerfed actioos i1 dE!ooce a the cril:alion order.
'These wne.s· a i1 jlili'IQ 1¥\d
~ i1 the May 23 Cl1d 28, 2001 Ja'lies a paels were pEnt vi:JiaOOns of lle Apfi
10, 2001 assurr¢ln of expediency of refusing
to acknowledge receipt thereof. 6
)Jisdk:ti:xllcertifi oroer issued by tJe OOLE Secretly, v.llill JliO!DbOO f1e
COO'Il1isslxl d a flat mght lead t1 the
'wcisenllg of ill already deleOOrated sm.Jatioo.' Ait 278(g) 1263(g)J is cleM
lhat stibs v.OO vi:ll* the
~ oroer may su1!er dismissal !rom 't'«KK.llis was 11e silualion illle May 23
Cl1d 28, 2001 pickets Cl1d
IXJ1Celi!d actions XXX.'
2 GR No.154591, Man:h 5, 2007. The rule was reiea\ed here, hls: 'llef'mre oflle
~<Xderaa retumtl 'MXII
ader by asWig.~. W1eiier aookxl ofti::er a a rnerm, is ill legal a:t Clld,
lleR!be. avail ground for klss of
~ sbllus.'·Coosequenlij, l1is case was disposed by l1e li'Jh Coort by ~ lle rA
dedsioo 'dedai'V lle
!ike IXI1dla!d by fpetitionefJ !MEA oo 10 Februay 1999 as legal hi, llus,
resuttllg i1 toe loss It~ s1a1us of
teooi:ln dbrs Clld menters....OO~ illlesaid~'
3 GR No. 144315, Jlt[ 17, 21XXi. l1is 6 ii18SSlllled case. The~ CM Mad IIrt
llefij,re d petitioner PEU's
tfm's Clld merrbefs tl ccrrctt irrned"Iale!y will the IXll.E Secrelily's
~ORiels daled 19 NcNenter llld 28
Noventer 1997 rant be coodoned. Dem:e of l1e ~ adels d. the SecnBy anti!s a
VIii gllllBld klr
lisrrissal. lbNever, because l1e identities of the lllioo dfms hllllelrilels
were rd: ~the dspositNe pat of the
deem~ sla81 "1hat lle Secretaiy d Uilor is diecled tl deEmile Yot10 !I110I'Q
the Alloom En1Jbtees IXion dire!S
Pilticflaled illhe ilega strite, il1d v.ro 8r7mJ t1e uniln menters ccrmiled
ilegal a a defied 11e ~ ordeiS 1
d 19 Noventer 1997 and 28 Na.ooober 1997.' The recools d lis case sllCNI tlat
oo 22 tbeTter 1997, Phtom G.R. No. 75271-73, Jooe 27,
1988.
2
pJjshed illle PhiWiJe Dait)' Inquirer a notice t1 sW1Q ~ tl R!Un t1 V«llk.
These eil'(lkl'tees did rd: report Telefunken
SemiaJnductors Employees Union.fFW v. Secretary of Labor illd Employment G.R Nos.
122743 and
back t1 vm but tOOlilued lleir mass actOO. kl fact, tet filEd hei' ~ li1es rrif
oo 22 Decertter 1997. PhictJm 3
Sill Juill de ~ Educational Founda1ion Eir!lloyees Union - AFW v. San Juan de Dios
Educa!ional Foondation, Inc.
4
ader. A1blm held ll'iTi1islraWe hm1gs 00 these disqlilaly cases. Thereall!r,
Pllilam <isnissed these ect'flklyees for
ltla1doomen1 d w:x1l i1 de!iax:e d.lle ~ order.
5
Navalev. CA. G.R No. 109957, Feb. 20, 1996, 253 SCRA 705.
:&
V't,>
642
JURISDICTION AND REMEDIES
PRELIMINARY CONSIDERATIONS
CHAPTER EIGHT ON
JURISDICTION AND REMEDIES
JURISDICTION AND REMEDIES
1. EXISTENCE OF EMPLOYER-
EMPLOYEE RELATIONSHIP.
TOPICS PER SYLLABUS The existence
of employer-employee relationship between t'te parties-
litigants, or a
reasonable causal connection to such relationship1 is a
jurisdictional pre-
requisite for the exercise of jurisdiction over a labor dispute
VIII. by the Labor Arbiters 2 or
any other labor tribunals.
JURISDICTION AND REMEDIES
2. THE CAUSE OF ACTION
MUST ARISE FROM THE EMPLOYER-
A. Labor Arbiter EMPLOYEE RELATIONSHIP.
1. Jurisdiction Even if there
is employer-employee relationship, if the cause of action
a. Versus Regional Director did not arise out of or
was not incurred in connection with the employer-
2. Requirements to Perfect Appeal to NLRC i employee relationship,
Labor Arbiters have no jurisdiction thereover.3 This is so
3. Reinstatement Pending Appeal because not every dispute
between an employer and employee involves matters
B. National Labor Relations Commission (NLRC) that only labor tribunals
like the Labor Arbiters and the NLRC can resolve in the
1. Jurisdiction
C. Court of Appeals·
I.. exercise of their
adjudicatory or quasi-judicial power. Actions between
employers and employees
where the employer-employee relationship is merely
l. Appeal Via Rule 65, Rules of Court incidental are within the
exclusive originaljlirisdiction of the regular courts. 4
D. Supreme Court 3. REASONABLE CAUSAL
CONNECTION RULE- THE RULE IN
l. Rule 45, Rules of Court CASE OF CONFLICT OF
JURISDICTION BETWEEN LABOR
E. Bureau of Labor Relations (BLR) COURT AND REGULAR
COURT.
1. Jurisdiction The "Reasonable
Causal Connection Rule" is a rule to determine
F. National Conciliation and Mediation Board jurisdiction between labor
courts and regular courts. Under this rule, if there is a
1. C.mciUation vs. Mediation r reasonable causal
connection between the claim asserted and the em~loyer
2. Preventive Mediation employee relations, then
the case is within the jurisdiction of labor courts.
G. DOLE Regional Directors In the absence
of such nexus, it is the regular courts that have
l. Recovery/Adjudicatory Power jurisdiction.6
H. DOLE Secretary 4. THE POWER TO DETERMINE
EXISTENCE OF EMPLOYMENT
l. Visitori~l and Enforcement Powers RELATIONSHIP.
2. Power to Suspend Effects of Termination Under labor
laws, it is not only the Labor Arbiters and the NLRC who
3. Remedies are vested with the power
to determine the existence of employer-employee
L Voluntary Arbitrator relationship.
1. Jurisdiction
2.Remedies
J. Prescription of Actions
1 Known as 'Reasonable
Causal Connection Rule.'
1. Money Claims 2 Ally. h1drea Vi v.
&reno, G.R No. 159119, Mildl14, 2006; Ah1iez v. kl1i1ile Loop TedlrlobJy cap., G.R
~. 162401,
2. lllegal Dismissal .lal. 31' 2006.
3 Poodocv. NLRC, G. R
No. 116347, Oct 3, 1996, 262 SCRA 632.
3. Unfair Labor Practice 4
Vdlcrnclia,Jr.v.CA,G.R.No.165881,Aprl19,2006,dtilg£vdav.CA,455Pit 118, 12912003~
4. Offenses Under the Labor Code 5 DaHGili Eleclronics
Manufacturing Corporation v. Villarama, Jr. G.R. No. 112940, Nov. 21, 1994, 238
SCRA 267,
5. lllegal Recruitment 271.
------------------------ 6 San M!Juel
Corporation v. ElcWal1, G. R No. 127639, Dec. 3, 1999.
045
!
possessed of similar power as held in the 2012 en bane Resolution in People's
Arbiter may exercise jurisdiction over the clainis of OFWs arising out of an
"'
Broadcasting Service (Bombo Radyo Phils., Inc.) v. The Secretary of the
employer-employee relationship or by virtue of any law or contract involving
Department of Labor and Employment 1 In fact, it was held here that the
Filipino workers for overseas deploymen~ including claims for actua~ moral,
detennination by the DOLE Regional Director and the DOLE Secretary of the ·
I exemplary and other forms of damage.
existence of employer-employee relationship in the exercise of their visitorial
4
Secretary of Labor cannot make their own independent finding as to the
provided in the contract. Additionally, respondent was awarded moral damages
5
existence of such relationship and must have to rely and wait for such a
in the amount of P30,000.00, exemplary damages of P50,000.006 and 10% of
detennination by the Labor Arbiter or NLRC in a separate proceeding. For then,
all recoverable amounts as attorney's fees. 7
given a situation where there is no separate complaint filed with the Labor
6. LABOR ARBITERS HAVE JURISDICTION EVEN IF THE CASE IS
Arbiter, the Med-Arbiter and/or the Secretary of Labor can never decide a
FILED BY THE HEIRS OF THE OFW.
certification election case or any labor-management dispute properly brought
before them as they have no authority to determine the existence of an
This was the ruling in Medline Management, Inc. v. Roslinda. 8 As
employer-employee relationship. Such a proposition is, to say the least,
heirs, the wife and son of Juliano Roslinda, the deceased OFW, have the
anomalous.
personality to tlle the claim for death compensation, reimbursement of medical
expenses, damages and attorney's fees before the Labor Arbiter ofthe NLRC.
The Social Security Commission (SSC) has also this power. In
would defeat the very salutary purposes of the law. Instead of simplifying labor
5. IN CASES FILED BY OFWs, LABOR ARBITERS MAY EXERCISE
JURISDICTION EVEN ABSENT THE EMPLOYMENT
As lately amended by Section 7 of RA No. 10022{Maltll8, 2010). But even before 1his
al!1ei1Clmal~ this provision
·RELATIONSHIP.
Is already embodied il Section 10 of RA No. 8042.
G.RNo.165935,Feb.8,2012.
In Santiago v. CF Sharp Crew Management, Inc.,4 it was held that a
3
reasons.
because the jurisdiction of Labor Arbiters is not limited to claims arising from
6
This was ~ by WZf of~ or axrecfiJn b" l1e publ'te goo! il view of petiible(s act d
piM'81g respondent
employer-employee relationships. Under Section 10 of R. A. No. 8042
fronl beilg depq'ed on lle grtlllld 1h<t he was no1 yet dedared ft ID WOik on tie
dale of his dep,nne, despie e.idence Ill
the ccrtay. 5ldl act. f llllerafed, IMllil ~the ef11lbymert ~ d 001' seafcm v.11o
Ire~ to be
This. <111m! is~ on t1e fact flatmuse d petiOOners' faille ., deploy respondent
based oo m ~ ground,
7
2 G.R No. 95011,Aplil22, 1991.
3 G.R.No.1n101,Nov.23,2007.
respoodent was fomed Ill file lhis case.
8
4 G.R No. 162419, July 10, 2007.
G.R. No. 168715, Sept15, 2010.
CHAPTER VIII
proceedings designed at expeditious settlement or referral to the proper courts or
jURISDICTION AND REMEDIES 647
offices to decide them finally, the conciliation of the issues before the Barangay
l.
4. When the parties agree to submit the case to voluntary arbitration
JURISDICTION
before a Voluntary Arbitrator or panel of Voluntary Arbitrators
who, under Articles 274 [261] and 275 [262] of the Labor Code, are
1. NATURE OF JURISDICTION OF LABOR ARBITERS, ORIGINAL
also possessed of original and exclusive jurisdiction to hear and
AND EXCLUSIVE.
decide cases mutually submitted to them by the parties for
AsirlleiKiedbyRANo.~715JM<nn21, 1989].
2
1 UnderA!tide218(e),laborCode.
/Is amended byRA No. 7730 [June2, 19941, i'JvoMngoontesEdcases under the ex~ clause
therein.
10022:
1. Under Article 224 [2171 ofthe Labor Code:
I.
Code, as amended, including questions involving the legality
of
Under the Labor Code, there are only five (5) provisions related to
arising from employer-employee relations, including those of
(3) Article 260 [249) which enumerates the unfair labor practices that
unorganized establishments not voluntarily settled by the
parties
4
may be committed by labor organizations;
pursuant to RA. No. 6727.
3. Under Article 128(b) of the Labor Code, as amended by R.A. No.
7730:
• Contested cases under the exception clause in Article l28(b)
of the 1 The last p<r.IQ~ ct Mde 276 [262-AJ ct lhe l..m'Code erdiled "Pml~Ues'
.pRNkles: ~ IroliJn ct 8ll'f i'1Eresled
parttes
(5) Article 224 [217] is deemed written into the CBA being an
TERMINATION DISPUTES.
1 C.Abrlaa &Sons, 1oc. v. CA, G.R Nos.155109, 155135 &179220, Sept 29, 2010.
L£mtex lndusllies v. CA, GR. No. 15027~. Aug. 9, 2007; Scrl "tuel Coqxlra!ion v.
NLRC,St¥<1
6 \lndef Articles 274 (2611 a'1d 275 [262].
a ~ lndus!iesv.CA, ~
7
\lndef p;.ragraph 191 of Article 278 [2631 he l11!rf tale
oo.Jnizance of temmiOO dispUteS 111at ere i1duded a Sl.4lS\Illed il 9
10
~¥deddellPOO·
The money claim in No.2 above does not necessarily arise from or
(lO)Failure of the employer to activate grievance machinery confers
involve a termination case but because the amount exceeds P5,000.00, it falls
jurisdiction on Labor Arbiters.'
Within the jurisdiction of the Labor Arbiter. If the amount does not exceed
• In other words, the Voluntary Arbitrator will only have jurisdiction
PS,OOO.OO, it is, under Article 129, the Regional Director of the Department of
over illegal dismissal cases when there is express agreement of the
Labor and Employment or his duly authorized hearing officers who have
parties to the CBA, i.e., the employer and the bargaining agent, to
jurisdiction to take cognizance thereof. 1
submit the termination case to voluntary arbitration. Absent the
2. DISTINCTION BETWEEN THE JURISDICTION OF VOLUNTARY
mutual express agreement of the parties, Voluntary Arbitrator
cannot ARBITRATORS AND LABOR ARBITERS OVER CASES FOR
2
acquire jurisdiction over termination cases. This was the holding
of3 MONEY CLAIMS.
the Supreme Court in the cases ofNegros Metal Corp. v. Lamayo,
5
Landtex Industries v. CA14 Atlas Farms, Inc. v. NLRC, and§!.!!
The original and exclusive jurisdiction of the Labor Arbiters under
Miguel Corporation v. NLRC.6 In all these cases, the Supreme
Article 224(c) {217(c)], over cases for money claims is limited only to those
Court has categorically declared that termination cases fall under
the arising from statutes or contracts other than a CBA. The
Voluntary Arbitrators
original and exclusive jurisdiction of Labor Arbiters and not of
or panel of Voluntary Arbitrators will thus have original and exclusive
7
jurisdiction over money claims "arising from the interpretation or
Voluntary Arbitrators.
implementation of the CBA and, those aris!ng from the interpretation or
• The express agreement must be stated in the CBA or there must
be
enough evidence on record unmistakabiy showing that the
parties enfor~ement of company personnel policies," under
Article 274 {261 ].
8
have agreed to resort to voluntary arbitration.
San Jose v. NLRC/ ruled that it was correct for the NLRC to hold that
the Labor Arbiter has no jurisdiction to hear and decide the employee's money
m.
claims (underpayment of retirement benefits), as the controversy between the
JURISDICTION OVER MONEY CLAIMS CASES
pa.'1ies involved an issue "arising from the interpretation or implementation" of
Philippines, Inc. v. Saldivar/ ruled that the Labor Arbiter in the instant case
for reinstatement; or
could not properly pass judgment on the money claim cited as cross-claim by
2) Any money claim, regardless of whether accompanied with a claim
petitioner against the union (Association Labor Union [ALU]) since it is a
for reinstatement, exceeding the amount of five thousand pesos
money claim arising from the CBA, hence, the Voluntary Arbitrator has
(PS,OOO.OO) per claimant.
jurisdiction to resolve the same.
The money claim in No. 1 above presupposes that it proceeds from a
3. SOME PRINCIPLES ON JURISDICTION OVER MONEY CLAIMS.
termination case, it being accompanied with a claim for reinstatement.
Hence, it
4
falls within the jurisdiction of the Labor Arbiter since it is principally
a • Money claims must arise out of emfloyer-employee
relationship. If not,
jurisdiction is with the regular courts.
termination dispute.
Alti::le 129, tm COOe; 8riad Agro DeYeklpmenl ~ v. de Ia Serna. G.R No. 82005, Nov.
9, 1989, 179 SCRA
1 Alias Fams. k1c. v. NI.RC, wpl8.
269;&t«enshire MlmOOal Hospial, lnc. v. Wslliroflaba'illd ErrcJioymeol, G.R No.
74621, Feb. 7,1990, 182 SCRA5;
Mil\eia v. NI.RC, Sllllfa; PantMCO North ExpresS, Inc. v. NLRC, G.R.
No. 95940. Julf 24, 1996.
2
SlarSecuritt andDetedHeAgencyv. Secretly film, G.R No.82607,J[Jo/ 12,1900,187
SCAA358.
3 G.R No.186557,Aug. 25,2010.
2
Sa!Josev.NLRC,G.RNo.121227,Aug.17, 1998.
.~ G.R No.150278,Aug. 9, 2007.
3
CHAPTER Vlll
• Award of statutory benefits even if not prayed for is valid.'
jURISDICTION AND REMEDIES 6ss
• The money claims lodged by an employee are not to be properly offset by
To recapitulate, absent any of the requisites mentioned above will
his unpaid subscription of stocks.2
divest the DOLE Regional Directors of their authority to hear and decide said
• Claim for notarial fees by a lawyer employed by a company is within the
money claims. Consequently, the jurisdiction over the same is vested upon the
Labor Arbiters. 1
jurisdiction of the Labor Arbiter. 3 .·
a.
In Oreshoot Mining Company v. ArellanQ:2 the DOLE Regional
Director Office No. IV issued an order in three (3) separate but consolidated
JURISDICTION OF LABOR ARBITER
cases, directing the reinstatement of private respondents and the payment to
VERSUS REGIONAL DIRECTOR
them ofbackwages and certain other benefits. The Supreme Court ruled that the
1. LABOR ARBITERS HAVE NO JURISDICTION OVER SMALL
petitioner is correct as regards its claim of lack of competence on the part of the
MONEY CLAIMS LODGED UNDER ARTICLE 129.
Regional Director over the cases. The Regional Director has no jurisdiction to
try and decide claims of workers arising from their illegal dismissal from
Under Article 129 of the Labor Code, DOLE Regional Directors or the
employment and for their reinstatement and recovery of monetary and other
duly authorized hearing officers, are empowered, in a summary proceeding, to
benefits. It is the Labor Arbiter who has jurisdiction over said issues.
hear and decide claims for recovery of wages and other monetary claims and
Consequently, the questioned order was nullified and the case was referred to
benefits, includir.g legal interest, provided the following requisites concur:
the Labor Arbiter for proper adjudication.
1) The claim must arise from employer-employee relationship;
2. JURISDICTION OVER CONTESTED CASES UNDER THE
2) The claimant does not seek reinstatement; and
EXCEPTION CLAUSE IN ARTICLE 128(b) OF THE LABOR CODE
3) The aggregate money claim of each employee does not exceed
INVOLVING THE DOLE SECRETARY'S VISITORIAL Arm
PS,D00.00. 4
ENFORCEMENT POWERS (INSPECTION OF ESTABLISHMENTS).
The first requisite is indispensable as labor authorities may only take
a. Requisites.
cognizance of cases arising from employer-employee relationship or when the
cause of action has a reasonable causal connection to such relationship under the
For the valid exercise by the DOLE Secretazy or any of his duly
"reasonable causal connection rule. "
authorized representatives (DOLE Regional Directors) of the visitorial and
must be discussed in connection with the jurisdiction of the Labor Arbiters. The
1
2 ApOOacav. NLRC, G.R No. 80039, Ap!i118, 1989, 172SCRA 442.
3 Ai' Ma1eria1 vq Savilgs and Loan Associatioo, Inc. v. NLRC, GR No. 111870, June
30, 1994. 386.
2
4
MPanirez lndusiries v. ~ rJ.l.abor and~ GR No. 89894, Joo. 3,1997, 266 SCRA
111, 128; Ubay G.R.Nas.L-7574648,Dec.14, 1987, 156SCRA498.
3
hTas1re and~ Selvices, Inc. v. Trajlno, G.R No.106813, NCN. 25, 1993,228 SCRA
189.
Resultantly, if the said elements are present and therefore the labor
cases mentioned in the exception clause in Article l28{b); and
standards case is covered by said exception clause, then the Regional Director
(3) Whether the factual fmdings of the DOLE Secretary or the
will have to endorse the case to the appropriate Labor Arbiters of the Arbitration
Regional Directors are binding on Labor Arbiters and the NLRC
Branch ofthe NLRC as held in said case ofEx-Bataan Veterans.4
·
under the doctrine of res judicata.
Pills~ v. C'anas, G.R Noo. 85934-36, .lal. 30, 1990, 181 SCRA 675, 678; Baloog
BuhiftGad t.bs, Inc. v.
Article 128{b) of the Labor Code and the case does not fall under the
exception Sec. !lela Serna, G.R No. 86963, kg. 6, 1999, 370 Phil 872;
BayhaYen, klc. v. AlluM, G.R No. 160859, JUy 30, 2008;
Section 1 Ja1 rue 111 ct 11e Rues on lhe ~ ct labcJ SlaOOMis Cases illhe Ragiora
Olfl:es [Seplmter 16,
clause.
1987].
GRNo.171275,Jitf13,2009.
t ~suppled.
2 GRNo.152396,tb/.20,2007.
CHAPTER VIII
may file the proper petition with the Labor Arbiter to seek a declaration of the
On No. 3 above:
illegality thereof. It shall be the duty of the Labor Arbiter concerned to act on
The factual findings of the DOLE Secretary or the Regional Directors
the caseprocess.
of due immediately
to the national interest is lodged with either the DOLE Secretary, in case he
JURISDICTION OVER CLAirdS FOR DAMAGES
assumes jurisdiction thereover, or with the NLRC, in case the DOLE Secretary
certifies it thereto.
1. LABOR ARBITERS HAVE JURISDICTION OVER CLAIMS FOR
DAMAGES.
Under either situation, all cases between the same parties shall be
It is now well-settled that claims for damages as well as attorney's fees
considered subsumed to, or absorbed by, the assumed or certified case, as the
in labor cases are cognizable by the Labor Arbiters, to the exclusion of all other
case may be, and shall be decided accordingly by the DOLE SecretarY or by the
courts. Rulings to the contrary are deemed abandoned or modified accordingly2
appropriate Division of the Commission. 4 The exception to this rule is when the
concerned shall fonvard within two (2) days from notice the entire
1
~uel Colpomtion v. Ettuban, G.R 1-b. 127639, Dec. 3, 1999; ROOI'guez, Jr. v.
foguiar, Sr., G.R 1-b. 159482. ~- 30,
No.25,Guklefines~LOOa-RelaOOns.
2
2005.
In assumed~.
3
4 Sectioo 10, ReptJllic f>D. No. 8042; SecOOn 58, Rules and Regula!Xlns ~ Ble
Migllrlt Waters and Olerseas
~.;
4
Fipinos Act of 1995.
5
should file a notice of strike or notice of lockout, as the case may be, with the
Thus, the parties to an assumed or certified case, under pain of
NCMB and not with any other office. It must be noted, however, that the
contempt, shall inform their coWlSels and the DOLE Secretary or the NLRC
NCMB, per Tabigue v. International Copra Export Corporation/ is not a
Division concerned, of all cases pending with the Regional Arbitration Branches
quasi-judicial body; hence, the Conciliators-Mediators of the NCMB do not
and the Voluntary Arbitrators relative or incident to the assumed or certified
have any decision-making power. They cannot issue decisions to resolve the
issues raised in the notice of strike or lockout. Their role is confmed solely to
case.1
Further, in cases certified to the NLRC which involve business entities
the conciliation and mediation of the said issues, although they can suggest to
with several workplaces located in different regions, the NLRC Division having
the parties that they submit their dispute to voluntary arbitration through the
territorial jurisdiction over the principal office of the company shall acquire
Voluntary Arbitrators accredited by the NCMB.
jurisdiction to decide such labor dispute; unless the certification order provides
2. Filing of a complaint to declare the illegality of the strike or
otherwise.
1
lockout with the Labor Arbiter or Voluntary Arbitrator or panel of
3. JURISDICTION OVER CRIMINAL CASES ARISING FROM
Voluntary Arbitrator. - In case a party wants to have the strike or lockout
declared illegal, a complaint should be filed either with the Labor Arbiter under
STRIKES OR LOCKOUTS.
Article 224(a)(5) [217(a)(5)] of the Labor Code or, upon mutual agreement of
The Labor Arbiter cannot adjudicate issues involving any crimes
the parties, with the Voluntary Arbitrator or panel of Voluntary Arbitrators
committed, whetht'\r related to a stdke or lockout or not. Prosecution of crimes
under Article 275 [262] of the same Code. The issue of illegality of the strike or
or felonies falls within the jurisdiction of the regular courts of justice.
lo:::kout cannot be resolved by the Conciliators-Mediators of the NC~ffi as
earlier pointed out and discussed.
V-A.
b case illegal acts violative of Article 279 [264] are committed in the course of
IN STRIKE OR LOCKOUT CASES
the strike or lockou~ a party may file a petition for injunction directly with the
1. NECESSITY TO DESCRIBE INTERPLAY OF JURISDICTION.
Commission (NLRC) under Article 225(e) [218(e)] of the Labor Code for
G.R. No. 183335, Dec. 23, 2009; See also Hotel En'jlloyees Unioo-NFL v. Wa!eifront
maar Hotel -D<Nao, GR. Nos.
1 Section ~1. Rule VIII, 2011 NLRC Rules of Procedure.
Thisruleshollldiite'M;e app~by analogy to assumed cases. 17404()..41,
Sepl22, 2010.
2 Sedioo 3~}. Rule VIII, 2011 Nl.RC Rules of ProcedUre.
which case, it will be the NLRC which shall hear and decide all the issues
and decide wage distortion cases, after the grievance procedure in the CBA
subject of the certification order.
failed to settle the same. 1
distortion.
in the case of assumed cases, or the NLRC, in the case of certified cases.
6. Assumption of jurisdiction over a national interest case by the
3. DISPUTES OVER LEGISLATED WAGE INCREASES AND WAGE
President - The President of the Philippines is not precluded from intervening
DISTORTION MADE SUBJECT OF NOTICE OF STRIKE OR
LOCKOUT.
in a national interest case by exercising himself the powers of his alter ego, the
DOLE Secretary, granted under Article 278(g) [263(g)] by assuming jurisdiction
Wage distortion is not a proper ground to be invoked in support of a
over the same for purposes of settling or terminating it.
strike or lockout. Disputes arising from wage distortion resulting from wage
7. Submission of a national interest case to voluntary arbitratior.. -
orders issued by the Regional Tripartite Wages and Productivity Board
compromise agreements:
278 [263]. The only labor official not so mentioned therein but who has a
significant role to play in the interaction of labor officials and tribunals in
strike
final and binding upon the parties. The National Labor Relations
VI.
Commission or any court shall not assume jurisdiction over
JURISDICTION OVER CASES INVOLVJNG
issues involved therein excel!! in -case of non-compliance thereof
~II, I~ ~Jes
1
Voluntary Arbitrator or panel of Voluntary Arbitrators, the jurisdiction to hear
Atti::1e 124, labor Code, as amended by Sedioo 3, RepOOi:: kJ. No. 6727; Sec00n 7,
•
ReflublicActNo. 67ll; Sedioo 1, Rule VII, Rulesofflm:erueoo Mni'rumWage F'~ issued
by~ Natiooa!Wagesllld
of
ld.
3
1 OlherMse 1a1o1m as !he 'Wage Ralionalizalioo Act'
Section 6JcJ, Rule v, NCMB Manual ofPmcooures for Conciaoon ald Prevenwe Medam
Cases.
~supplied.
winning party resides, to take cognizance of a motion for the issuance of the writ
2. PROVISION IN THE NLRC RULES.
of execution filed by such party and accordingly issue such writ addressed to
A similar provision is found in the 2011 NLRC Rules of Procedure/
and requiring the public officers mentioned above to execute the fmal decision,
where the jurisdiction of the Labor Arbiters is recognized over the enforcement
order or award of the Voluntary Arbitrator.
of compromise agreements when there is non-compliance by any of the parties
thereto pursuant to Article 233 [227] of the Labor Code.
IX.
CLAIMS OF OFWs.
entered into before the BLR and DOLE Regional Directors, the same rule
vesting jurisdiction to Labor Arbiters also applies to any compromise
settlement, R.A. No. 8042/ conferred
original and exclusive jurisdiction upon
including those involvin.g labor standard laws, voluntarily agreed upon by the
Labor Arbiters, to. hear and decide all claims arising from employer-employee
parties with the assistance of the Nationai Conciliation and Mediation Board
relationship or by virtue of any law or contract involving Filipino workers for
(NCMB) and its regional branches. Thus, as provided in the Rules to Implement
overseas deployment, inciuding claims for actual, moral, exemplary and other
the Labor Code, 1 the NLRC or any court shall not assume jurisdiction over
forms of damages. R.A. No. 8042, specifically Section 10 thereof, was
issues involved therein except in case of non-compliance thereof or if there is
undisturbed by the latest amendatory law, R.A. No. 10022.3
prima facie evidence that the settlement was obtained through fraud,
2. VOLUNTARY ARBITRATORSHAVEJURISDICTIONOVER
misrepresentation, or coercion.
MONEY CLAIMS IF THERE EXISTS A CBA.
Upon motion of any interested party, the Labor Arbiter in the region
If there is a CBA between the foreign employer and the bargaining
where the agreement was reached may issue a writ of execution requiring3 a
union of the OFWs, the jurisdiction over monetary claims of OFWs belongs to
Sheriff of the Commission or the courts to enforce the terms of the agreement.
the Voluntary Arbitrator and not to the Labor Arbiter.
2 ·Bltilled 'AA hJ. to k1sti1u1e lhe Pdicies of Ovenleas ~!and Estallish a Hghef
Standcrd rt Proleclkln Md
PromoOOn rt lie Welfare of ~rc11t W<rters, Thei" Famiies and CNerseas Fqlinos i1 ~.
and fa" Other PurposeS.'
See Seclioo 10 ct RA No. 8042, OlherMse kr1!1Ml as the 'MgiCill WO!kers and
CNerseas Fipinos Ad. rt 1995' (ApproVed
1
2
v
Section 4, Rule XXII, Book V, Rules to Implement the Labor Code, as
amended by ~Older No. 40-m, Series of
See Sectln 1(h) ofRIJe 111ere0f.
on June 7, 1995),
,_.._...,.,., __ ~ ......
VVf
)URISDICflON AND REM'EDIES
(1) Ace Navigation Co., Inc. v. Fernandez/ involving the disability
(c) Priests and ministers;
Claim of respondent; and
!I. (d) Domestic workers or kasambahay;·
(2)Estate of Dulay v. Aboitiz Jebsen Maritime, Inc. and General
~I
belongs, the original and exclusive jurisdiction over his monetary claims
belongs to the Voluntary Arbitrator and oot to the Labor Arbiters.
I JURISDICTION OVER CASES INVOLVING EMPLOYEES
X-A.
J
(a) All cases which are administrative in character, involving or
controlled corporations without original charters are covered by the Labor Code
arising out of violation of rules and regulations relating to
licensing and registration of recruitment and employment agencies
other cases that may be filed under this law; while those with original charters
or entities, including refund of fees collected frmn workers and
I are basically governed by the Civil Service Law, rules and regulations
and,
violation of the conditions for the issuance of license to recruit
workers. 3
Such party expectations are protected by giving effect to the parties' own choice
3
X.
ofthe applicable law. The choice of laW must, however, bear some relationship
OTHER ISSUES OVER WHICH LABOR ARBITERS HAVE
to the parties or their transaction. 4 A manning agency, for instance, cannot be
JURISDICTION
faulted for complying with the applicable foreign law. By so complying, it has
Reese, CilOO!oflaw in Tat and Cont!cts, 16 CoiiJ1ilia Joomal ofT~ law, 1, 2111977].
2 GR. No. 172642, Jllle 13, 2012.
3
Scdes ll1d Hayes, Cooflict of law, 044-647 {1982~ Asia tnenatiooa1 Buider
CofporaOOn v. Mlndeja', G.R No. 105029-32,
4
RUes fa' Seafae's; SOOion 28, CllmbJs Rules llldRegu1arons ~lilg MgrantWa:kem and
<Nerneas Filipinos Act Dec. 05, 1994.
of 1995 daled Feb. 29, 1996.
5
Ollri kltemational ~DevebpmentCoqxxalioo v. NlRC,G.R No.1~339, Dec. 22, 1998,300
SCRA 455.
• 11Jij,; ld.; ld.
6
G.RNo.61594,Sept.28, 1991
CHAI'TER V!ll
669
terms thereof shall be construed and governed by the laws of Pakistan and only
the courts of Karachi, Pakistan shall have jurisdiction to consider any matter
church, as employer, and the priest or minister, as employee is a purely secular
arising out of or under the agreement. Prior to the expiration of the contracts,
the matter not related to the practice of faith, worship or doctrines of the
church.
services of the two Filipino flight attendants were terminated. They jointly filed
I Hence, Labor Arbiters may validly exercise jurisdiction over said labor case.
a complaint for illegal dismissal. One of the issues raised is which law should
~ Austria v. Hon. NLRC and Cebu City Central Philippines Union
apply and which court has jurisdiction over the dispute.
Mission Corporation of the Seventh Day Adventist. 1 - The minister here was
The Supreme Court, in holding that the Philippine law should apply
not excommunicated or expelled from the membership of the church but was
and that the Philippine court has jurisdiction, declared that petitioner PIA cannot
terminated from employment based on the just causes provided in Article 297
take refuge in paragraph I0 of its employment agreement which, firstly,
[282] of the Labor Code. Indeed, the matter of terminating an employee which
specifies the law of Pakistan as the applicable law of the agreement and,
is purely secular in nature is different from the ecclesiastical act of expelling a
secondly, lays the venue for settlement of any dispute arising out of or in
member from the religious congregation. As such, the State, through the Labor
connection with the agreement "only [in] courts of Karachi, Pakistan." The first
Arbiter and the NLRC, has the right to take cognizance of the case to determine
clause of paragraph 10 cannot be invoked to prevent the application of
whether the church, as employer, rightfully exercised its management
Philippine labor laws and regulations to the subject matter of this case, i.e., the
prerogative to dismiss the religious minister as its employee.
employer-employee relationship between petitioner PIA and private
2. ECCLESIASTICAL AFFAIR, MEANING.
respondents. The relationship is much affected with public interest and that the
An "ecclesiastical affair" is one that concerns doctrine, creed, or form
otherwise applicable Philippine Jaws and regulations cannot be rer.dered illu3ory
of worship of the church, or the adoption and enforcement within a religious
'
I
by the parties agreeing upon some other law to govern their relationship. Neither
association of needful laws and regulations for the government of its
may petitioner invoke the second clause of paragraph 10, specifying the Karachi
membership, and the power of excluding from such association those deemed
courts as the sole wnue for the settlement of disputes between the contracting
1
3 ld.
. CHAPTER VIII . 071
b70 BAR REviEWER ON lABOR lAW
JURISDICTION AND REMEDIES
was a mere labor-only contractor. The High Court declared in this case that
work. Under R.A. No. 10361/ "domestic servant" or "househelper" should
AMPCO was a labor-only contractor and consequently pronounced that all the
·now be referred to as "domestic worker" or "kasambahay. "2
respondents, including Semillano, were regular employees of petitioner. On this
issue of jurisdiction, the High Court held that the Labor Arbiter has jurisdiction
X-E.
because precisely, Semillano has joined the others in filing this complaint
JURISDICTION OVER CASES OF
because it is his position that petitioner SMC is his true employer and liable for
EMWLOYEESOFCOOPERATWES
all his claims under the Labor Code.
1. WHEN LABOR ARBITERS HAVE JURISDICTION.
X-F.
The Labor Arbiter has jurisdiction only over monetary claims and
JURISDICTION OVER COUNTER-CLAIMS OF EMPLOYERS
illegal dismissal cases involving employees of cooperatives but not the claims or
termination of membershlp of members thereof. Cooperatives organized under
1. EMPLOYERS MAY ASSERT COUNTER-CLAIMS AGAINST
R.A. No. 6938,3 are composed of members; hence, issues on the termination of
EMPLOYEES FILED BY THE LATTER BEFORE THE LABOR
their membership with the cooperative do not fall within the jurisdiction of the
ARBITERS.
Labor Arbiters.
Almost all labor cases decided by labor courts involve claims asserted
Perpetual Help Credit Cooperative, Inc. v. Faburada. 4 - Petitioner
by the workers. The question that may be propounded is whether the employers
in this case contends that the Labor Arbiter has no jurisdiction to take
can assert counter-claims against their employees before the Labor Arbiters. The
cognizance of the complaint of private respondents who are not members but
Supreme Court answered this poser in the affirmative.
employees of the cooperative. The Supreme Court ruled that there is no
Banez v. Hoo. Valdevilla.: -The jurisdiction ofLabor Arbiters and the
evidence that private respondents are members of petitioner cooperative and
NLRC is comprehensive enough to include claims for all forms of damages
even if they are, the dispute i~ about payment of wages, overtime pay, rest day
"arising from the employer-employee relations." By this clause, Article 224
and termination of employment. Under Article 224 [217] of the Labor Code,
[217] should apply with equal force to the claim of an employer for actual
these disputes are within the original and exclusive jurisdiction of the Labor
damages against its dismissed employee, where the basis for the claim arises
Arbiters.
from or is necessarily connected with the fact of termination, and should be
1n San Miuuel Corp. v. Semillano,6 petitioner asserts that the present
entered as a counter-claim in the illegal dismissal case. This is in accord with
case is outside the jurisdiction of the labor tribunals because respondent Vicente
paragraph 6 of Article 224(a) [217(a)], which covers "all other claims, arising
2
Semillano is a member of the Alilgilan Multi-Purpose Coop (AMPCO), not an
from employer-employee relations."
employee of petitioner SMC. Petitioner is of the position that the instant dispute
is intra-cooperative in nature falling withln the jurisdiction of the Arbitration
XI.
Committee of the Cooperative Development Authority. AMPCO was contracted
ISSUES AND CASES OVER WHICH
by petitioner to supply it with workers to perform the task of segregating
bottles, LABOR ARBITERS
HAVE NO JURISDICTION
removing dirt therefrom, filing them in designated places, loading and unloading
the bottles to and from the delivery trucks, and to perform other tasks as may be
l. LABOR ARBITERS HAVE NO JURISDICTION OVER CERTAIN
ordered by SMC's officers. Semillano, together with the other respondents, filed
ISSUES AND CASES.
the complaint for regularization with petitioner SMC, contending that AMPCO
The following issues or cases do not fall under the jurisdiction of Labor
Arbiters:
(a)
UIU\,.[\.[.VJt:YVtK.UN LAHURlAW
JURISDICfiON AND REMEDIES
for granting
(c)
(d)
(e)
Dismissal of corporate officers and their monetary claims;
Cases involving entities immune from suit;
Cases falling under the doctrine offorum non conveniens;
employee-employer relations.
In case of violation of the non-compete clause and similar post-
c. Appliance loans concern the enforcement of a loan agreement
employment bans or prohibitions, the employer can assert his claim for damages
involving debtor-creditor relations fou..nded on contract and do not
against the erring employee with the regular courts and not with the labor courts,
in any way concern employee relations. As such it should be
such breach being civil in nature. 1
enforced through a separate civil action in the regular courts and not
XI-C.
l. LABOR ARBITERS HAVE NO JURISDICTION.
DISMISSAL OF DIRECTORS AND CORPORATE OFFICERS
With respect to resolving issues involving loans availed of by
employees from their employers, it has been the consistent ruling of the
l. LABOR ARBITERS HAVE NO JURISDICTION.
Supreme Court that the Labor Arbiters have no jurisdiction thereover but the
The dismissal of a director or corporate officer is an intra-corporate
regular courts.
6
dispute cognizable by the Regional Trial Court and not by the Labor Arbiter.
Where the claim to the principal relief sought is to be resolved not by
reference to the Labor Code or other labor relations statute or a collective
dispute belongs to the regular courts ofjustice and not to the Labor Arbiter and
221.
Nesli! PhilippileS, lni:. v. NlRC, GR No. 85197, M:ld\18, 1991, 195 seRA 340; See
aso L.ocsilll v. Mekeri Food
the NLRC. In such situations, resolutions of the dispute requires expertise, not in
3
capctatioo, G.R No. 192105, Dec. 00, 2013; Manese v. Jollilee Fcods CotpcxatiOO. GR
No. 170454. Oct. 11, 2012;
labor management relations nor in wage structures and other terms and
4
Clearly, such claims fall outside the area of competence or expertise ordinarily
Under SOOiOO 5 [52.] ct RA. No. 8799 lhe ~ d d1e SeaJiblS !l1d Exchange QmrisSD1
(SEC) oo al cases
5 Ibid.
enumeraled undel P.O. No. W2-A. has been iai1SfeiTed to d1e COUI1S
diJenetal)nisadi:xl or the approp<iale ~iJnal
t Qai.Chi Elecbooics lvlat1u!acllmg Corpcxatbn v. Hon. Vil\afama, G.R n:>.
112940. Nov. 21, 1994; Patikl v. Rudolf l.ielz, TliaiCM(RTC).
Inc., G.R No. 196539, Oct 10, 2012.
The better policy in determining which body has jurisdiction over a case
mentioned therein are deemed "employees."
would be to consider not only the status or relationship of the parties but also
the
(3) Corporate officers are elected or appointed by the directors or
nature of the question that is the subject of their controversy.
stockholders, and those who are given that character either by the Corporation
In the absence of any one of these factors, the RTC will not have
Code or by the corporation's by-laws;z_ Employees are not.
jurisdiction.
(4) The Corporation Code3 specifically mentions only the following
corporate officers, to wit: president, secretary and treasurer and such other
(10) The criteria do not depend on the services performed but on
officers as may be provided for in the by-laws.
the manner of cre2tion of the office.
(5) The Board of Directors can no longer create corporate offices
Matling prescribes that the criteria for distinguishing between corporate
because the power of the Board of Directors to create a corporate office
officers who may be ousted from office at will, on one hand, and ordinary
cannot be delc!!ated. Therefore, the tenn "corporate officers" should only
corporate employees who may only be terminated for just cause, on the other
refer to the above and to no other. A different interpretation can easily leave the
hand, do not depend on the nature of the services performed, but on the manner
way open for the Board of Directors to circumvent the constitutionally
ll1d lle axpo!l!OOn. Thlle is no distildixl. Qlllli3b1, nor trrY exerfCllion ~-The
pltNisiorl is I:MIIIld aM!IS
NacpU,Z are no longer controlling because they are ''too sweeping and do not
al ki1ds of contwersilS be\weell ~ md axpaalklnS.' ~ l1il case, lle petilklniJ'S
008 positicl1s s lhe tine ci
accord with reason, justice, and fair play."
her lismissal, l1al ci Med"K:al OiedDr ll1d Hosplal ~ of pr;me respondent Pana1a
Gc*len Ca"e MeOCal
a axpoolle dfl::er desple l1e In 11at toe By-t.ar.s d respa1dent IBC di:ln<t
mention tis posilkXl ci ~ md
Asslslmt Mmc~Jer. The reasoo ci'ed is 1hat Mil assuring U1al he was i1 !il1 i!
pllOiNld by the Gene!a t.'alaJef, sudl
1 ElulciiEd illle 2010 case of Malilg kldusbial !rld Commeldal Cap. v. Riccrdo R
Coros, GR ~- 157802, Oct. 13, ~tmentwas Slbsequen11y approved
byl1e BoMI ofQi"ecb"Sdrespondoot I!C.lha.11e position ofCoo¢dler is not
2010. This case is m ~via petiOOn b" re.iew ml:9tiorai. The petitkx1ers
chalenge the decism of the CA 1\fli::h expres5tf mentioned
11001YJ l1e ofticels ofiBC i1 Is By-l.altt> is of no rnorrent becaUSe the IBC's
Boald ci DiecllllS is
stJStai1ed the nA1g ct the N..RC tl.lle eirect 1hat the L.axr AI1Jiler had
jJiisdictkln because l1e respoodeo!, Is Vte ~ lflder Sedoo 25 ci the
Colpaatioo COOe md under the caporcBx1's byM t> ~ sudl olher aliceiS as
Presileltb" Frmce 8I1d Mni1isbalioo, was not acaporale olli::er of petitioner
Matlilg. ft may deem necessay.
tonsequenltf, si1Ge petitionel's appciniDlelll as ~ ~ lhe app!tNal md !oonal
2 P.O.~. 902-A; ISba v.l..i::eo de~ l.JnNersity, G.R No. 193857, Nov. 28, 2012;
Gomez v. PNOC IJeveqlment acliln ci respondert IBC's Bo!
rd of QiredDIS tl beoone vai:t, lis clea" 1herelore V1at petitiiXlef is a~
olficen~oose
aoo Mm:}ement Co!por1!tioo (PDMC), G.R No. 174044, Nov. 27, 2009, 606 SCRA 187,
194, disiJissal is i11he nature ct M
iltJa.CaPCllale amYefSY.
3 See Section 25, Balas Pmtmsa Big. 69, oU1erwise kn<Mn as B1e 'Corporation Code
of the Philippines.'
1
Vice President for Finance and Administration had been gradual but steady. 1
(1) Barba v. Liceo de Cagayan University (2012);
Even though he might have become a stockholder of Matling in 1992, his
3
employee of Matling. His subsequent acquisition of the status of
(3) Real v. Sangu Philippines, Inc. (2011).
Director/stockholder had no relation to his promotion. Besides, his status of
Director/stockholder was unaffected by his dismissal from employment as Vice
President for Finance and Administration.
2
XI-D.
VIOLATIONS.
a. Cosare v. Broadcom Asia, Inc./
law are recognized and adopted as part of the law of the land. Immunity of a
the regular courts, has original jurisdiction over the illegal dismissal case filed
State and international organizations from suit is one of these universally
by petitioner Cosare who was an incorpora~or4 of respondent Broadcom and was
recognized principles. It is on this basis that Labor Arbiters or other labor
holding the position of Assistant Vice President for Sales (AVP for Sales) and
tribunals have no jurisdiction over immune entities.
5
Head of the Technical Coordination at the time of his termination. The
following justifications were cited in support of this ruling:
2. ILLUSTRATIVE CASES.
(l) The mere fact that a person was a stockholder and an officer of
the There are quite a number of cases that
may be cited but the following
company at the time the subject controversy developed does not
would be the most ideal examples:
necessarily make the case an intra-corporate dispute.
6
the suit against it cannot prosper. And this immunity extends to its officers who
(3). General Information Sheet (GIS) submitted to SEC neither governs
also enjoy immunity in respect of all acts performed by them in their official
nor establishes the nature of office.
capacity. The Charter and the Headquarters Agreement granting these
~ Md produas and a11er ilems.l bd rNfitile btmi1ess ~~~ M<rc ~.Inc. v.tlk:h was
made roo-
I
1969 -thief Acaxrltrd; 19n-afk:e ~ 1973-Assistrt Treas~rer, 1978-Special
Astistri tr r~; 1980- ~ ~ b ilCOiporatia1 Md regisratian v.il1
B1e Seculities lnl Exd1a1ge Qxm1isskln (SEC). Petitioner Lucia
Asslsat ~ 1983-Frm:e IJld Adni1istJ'aM! Mil1aJer, 1985-kst. 'Ia! Presi:fent tr
Frm:e Md
Adrtilistratm; 1987 b April17, 2(ID.Ifl:e Presmrtfa"F~ Clld Mli1islmtkn
V. Josoo (l.ucila) is tie President !lld majority sbihokler of pelitiooer axpaabl.
5tle was also l1e mner Presitenl and
2
rnajcriystocl:ll<*lerrJ.BledeMictMllt Mrte!i¥;1. klc. Responden!Airedo M.
Jpsan(M"e<kl), oo lheot.erh!lld, was tie
See also PMential &r1k Md Trust CarpMy v. Reyes, G.R. No. 141093, Feb.
20,2001,352 SCRA 316,327. This case
· also iMWes an ell1Jioyee M1o rose tan the Iris unli she re.D1ed lhe poslion ci ~
~ atlhe lined Genelal Mmger, ilcXXpolab", diredDr !lld ~er ct
petitiooer c.oqxxa~Dl.
herlemilalion.
3 G.R. No.168757,Jan.19, 2011,640 SCAA67.
immunities and privileges to the ADB are treaty covenants and commitments
for profit and not in its governmental capacity, the case for illegal dismissal
filed
voluntarily assumed by the Philippine government which must be respected.
by a Filipino cook working therein is well within the jurisdiction of Philippine
courts. The reason is that by entering into the employment contract with the
In Lasco v. United Nations Revolving Fund for Natural Resources
cook in the discharge of its proprietary functions, it impliedly divested itself of
Exploration [UNRFNREJ,1 involving an illegal dismissal case ftled against the
its sovereign immunity from suit. ·
respondent which is a specialized agency of the United Nations, the said
immunity rule was asserted and reiterated by the Supreme Court. In dismissing
4. ESTOPPEL DOES NOT CONFER JURISDICTION OVER AN
the case, the High Court said that being a member of the United Nations and a·
IMMUNE ENTITY.
party to the Convention on the Privileges and Immunities of the Specialized
An entity immune from suit cannot be estopped from claiming such
Agencies of the United Nations, the Philippine government adheres to the
diplomatic immunity since estoppel does not operate to confer jurisdiction to a
doctrine of immunity granted to the United Nations and its specialized agencies.
tribunal that has none over a cause of action. 1
Both treaties have the force and effect oflaw. 1
The same doctrine was earlier applied in Jusmag Philippines v.
XI-E.
NLRC/ a case involving illegal dismissal of a Filipino employee of the Joint
DOCTRINE OF FORUM NON CONVENIENS
United States Military Assistance Group to the Republic of the Philippines
(JUSMAG-Philippines). In upholding the Labor Arbiter's dismissal of the case,
1. REQUISITES.
the High Court enunciated that since the employment contract was entered into
by JUSMAG in the discharge of its governmental functions, JUSMAG being an
entity petforming a governmental function on behalf of the United States
Government pursuant to the Military Assistance Agreement dated March 21,
1947, the illegal dismissal suit is one against the latter, albeit it was not
impleaded in the complaint. Considering that the United States has not waived
to labor cases. The following are the requisites for its applicability:
(1) That the Philippine court is one to which the parties may
conveniently resort;
(3) That the Philippine court has or is likely to have power to enforce
In Larkins v. NLRC,4 involving the dismissal of workers who worked
in the maintenance·of dormitories at the former US Clark Air Base in Pampanga,
r its decision?
dmmitories at Clark Air Base for members of the U.S. Air Force.
I Petitioners' invocation of this principle was rejected in Pacific
1 GR.Nos.1Q9095.109107,Feb.23, 1995.
1 ld.
, G.R. No.1200n. Oct 13,2000.
2
CHAI'TER VIII
jurisdiction of labor tribunals is limited to disputes arising from employer-
jURISDICTION AND REMEDIES 683
employee relations.
Municipal or City Courts and the Courts of First Instance (now
RTC). 1
XI-G.
CRIMINAL AND CIVIL ACTIONS ARISING FROM
XI-H.
VIOLATIONS OF THE PENAL PROVISIONS OF THE
CONSTITUTIONALITY.
LABOR CODE
OF LABOR CONTRACT STIPULATIONS
1. REGULAR COURTS HAVE JURISDICTION.
1. THE HALAGUENA DOCTRINE.
The Labor Code has expressly conferred jurisdiction over criminal and
In Halaguena "·Philippine Airlines, Inc. 22 it was pronounced that it is
civil cases arising from violations of the Labor Code with the regular courts. The
not the Labor Arbiter but the regular court which has jurisdiction to rule on the
relevant provisions are as follows:
constitutionality of labor contracts such as a CBA. Petitioners were female flight
1. Article 250 [241] - which provides that criminal and civil
liabilities attendants of respondent Philippine
Airlines (PAL) and are members of the
arising from violations of rights and conditions of union
Flight Attendants and Stewards Association of the Philippines (FASAP), the
membership provided for thereunder shall continue to be under
the sole and exclusive bargaining
representative of the flight attendants, flight
jurisdiction of ordinary courts.
stewards and pursers of respondent. The July II, 2001 CBA between PAL and
2. Article 258 [247) - while the jurisdiction to hear and decide
the FASAP provides that the compulsor;
retirement for female flight attendants is
administrative and civil aspects of unfair labor practices is
lodged fifty-five (55) and sixty (60) for their
IItale counterpart.
with the Labor Arbiters, the jurisdiction over the criminal
aspect Claiming that said CBA
provision is discriminatory against them,
thereof is vested in the regular courts.
petitioners filed against respondent a Special Civil Action for Declaratory Relief
3. Article 287 [272] - Although this article' does not mention
with Prayer for the Issuance of Temporary Restraining Order and Writ of
expressly that the jurisdiction over the criminal violation of
its Preliminary Injunction with the Regional
Trial Court (RTC) ofMakati City.
provision is vested in the regular court, it, however, mentions
the · In ruiing that the RTC has
jurisdiction, the Supreme Court cited the
word "courf' in paragraph [a] thereoL obviously referring to the
following reasons:
regular court. Further, in the Rules to Implement the Labor
Code, as
amended,1 it is provided that the regular courts shall have
(I) The case is an ordinary civil action, hence, beyond the jurisdiction
of labor tribunals.
jurisdiction over any criminal action under Article 287 {272] of
the
Labor Code, as amended, but subject to the required clearance
from {2) The said issue cannot be
resolved solely by applying the Labor
the DOLE on cases arising out of or related to a labor dispute
Code. Rather, it requires the application of the Constitution, labor
pursuant to the Ministry of Justice3 Circular No. 15, Series of
1982, statutes, law on contracts
and the Convention on the Elimination
·and Circular No. 9, Series of1986.4
of All Forms of Discrimination Against Women {CEDAW). The
4. Article 303 {288] -It is provided therein that any provision of
law power to apply and interpret
the constitution and CEDAW is
to the contrary notwithstanding, any criminal offense punished
in within the jurisdiction of
trial courts, a court of general
jurisdiction.
the Labor Code· shall be under the concurrent jurisdiction of
the
(3) Not every controversy or money claim by an employee against the
affirmative relief other than the ones granted in the appealed decision. 1
2.
3. GROUNDS FOR APPEAL TO THE COMMISSION (NLRC).
REQUIREMENTS
The appeal to the NLRC may be entertained only on any of the
TO PERFECT APPEAL TO NLRC
following grounds:
I.
a. If there is a prima facie evidence of abuse of discretion on the part
APPEAL IN GENERAL
of the Labor Arbiter;
appellant.1
original jurisdiction, undertaken by filing a memorandum of appeal.
1 Rad'IO't\le8th Fnance ~ v. Del Roscrio, G.R No. 138739, July 6, 2COO, 335 SCRA
288; See also Ca'ledo v.
1 Section 1 [b), Rule I, Book V, Rules to Implement the Labor COOe, as !mended by
Depal1ment Order No. ~3. Kat1lilan Searity inlllel!d.<e Np;q,
Inc., GR No. 179326, .kit 31, 2013; DaOOay v. Coc&Ccla BoU1e!S Phis., Inc.,
Series of 2003,lfeb. 17' 2003).
G.R. No. 199890, Aug.19, 2013.
2 Tanas ClaudXl t.'emOOal{',d\ege, Inc. v. CA. G.R No. 152568, Feb. 16, 2004;
Uni'Bd F!ekl Sea Watr.lrlm and Checke!S
2 Articles 129 and 229 [223), l.alxrCode; Sedioo 2, Rule VI, 2011 NLRC Rules
aPnx:edtle.
Hp'CfV. Req~,{3.R No.143527,0eC.6, 2006.
3 G.R. No. 160871, Feb. 6, 2000.
3 Phi\ux, Inc. v. NLRC, G.R. No. 151854, Sept 3, 2008.
4 See also Metro l:ln.I;J !lsbiJution, Inc. v. Metro l:ln.I;J Caporation
8nployees AssodalinfFW, G.R No. 142666, Sept 26,
4 Millennl!m Erectors Coqloration v. Magallanes, G:R. No. 184362, November 15,
2010; Reyesv. Maxin's Tea House,
2005.
G.R No.140853, Feb. 27, 2003;Cclyena v. NLRC, G.R. No. 76137, Feb.18, 1991.
5 G.R No.175481; Nov.21,2012.
s New Pacific fmber &Supply Co., Inc. v. NLRC, G.R. No. 124224, Marcl117, 2000.
s Section 3, Rule XI, 2011 NLRC Rules of Procedure.
and has the effect of rendering the judgment final and executory, hence,
2. EXCEPTIONS TO THE lO*CALENDAR DAY OR S*CALENDAR DAY
1
REGLEMENTARY PERIOD RULE.
unappealable.
3. REQUISITES.
Certain procedural lapses may be disregarded where there is an
which case, the appeal may be filed the next working day.
Ill.
2) Reliance on erroneous notice of decision6 as when the notice
REGLEMENTARY PERIOD
expressly states "working days" and r.ot "calendar days."
appeal is excused.
3) Five (5} calendar days - in the case of appeals from decisions
of the
DOLE Regional Director under Article
129
3
(stnall money claims ofPS,OOO.OO or
less).
4
The periods provided above are all calendar days and not worldng days.
Consequently, Saturdays, Sundays and legal holidays are included in
, flhiiWile Aiiles, klc. v. M.RC, G.R. No. 120506, Oct 28, 1996, 263 SCRA 638; ~
Guan TraciYJ v. NI..RC, G.R. No.
5
81471,,6¢126,1989, 172SCRA831.
reckoning and computing the reglementary period.
2 Ovoricte Securi1es capcxaoon v. NLRC, G.R. No. 157007, Nov. 25, 2004; EquitaJie
PCI Bat v. Rosi1a Ku, G.R. No.
3 fiJI!I' Coos1nK:tkxi Md ~ Colpocabl v. ~. G.R. No. 164141, Feb. 26, 2010; ~ill
Cement Corp. v.
~ 24, 2009, 586 seRA 449, 461; Ruiz v. Delos Salkls, G.R. No. 166386, JM. 27, 2009,
OTT SCRA 29,481
1 Opilaklo v. Ravila, GR No. 196573, Od. 16, 2013; 8unagll1 v. Sen1M Watmm
&ProleciMl AIJ«q, klc., G.R No. 4 Judy Phil'~ klc. v. NLRC, G.R. No.
111934, Ajxil29, 1998, 289 SCRA 755; 352 Phl. 593.
144376, Sept 13;2.00i; 533 Phi.283,200-291; Kalhy-OeneprisesV.
NLRC,GRNo.117610, Mrth 2,1998,286 SCRA 5 PhilWileGeolhemlal,klc. v.
NLRC,G.R. No.106370,Sept.8, 1994.
729.
1 Mk:te218(d), a!ill!lel1ded iJVRA No. 6715, Mrth21, 1989; Sedioo 1, Rule IX,
2011 Nl.RC RUes !I Procedure.
2 SedD11, RJJ1e IX, 2011 N..RC RUesofPrtx:eOOre; See also Mi:kl225(d)
{218(d)L as Miellded byRA No. 6715, Mrth
21, 1989; Section 1, Rule XXIII,-BookV, Rules to lmplemenllhe Lm Code, as
illlended by Department Order No. m3, 8 Under lhe rurrent 2011 NL.RC Rules of
Procedure, the dedsb1 of the Labor Altliler oo aBlid pa1y claim is not ~le
Series of 2003, {Feb. 17' 2003].
but may be elevated ID the Coorrission and resWed in ax:ordM::e v.ith Rule XII
[Exmtf11ay Remedes] of lhe 2011
3 SedD11, Rule VI, lbid:;SeealsoBrisloiM}els Squilbtpllis.], Inc. v.
Vbia;G.R No.1481$, Sept 27,2004. NlRC Rl.1es of ProceO.Ie.
(SEcOOn 11 fd], Rule Xllhereof). ConsequenUy, such elevafDl b the Comrisskln may my
be
4 RJL Mrilez FIShi'lg Co!paa1ion v. tlRC, GR Nos. L-63550-51, Joo. 31,
1984. initialed byway offirg of
apetitiiJ1 forexlraort!ilay remedy not latEr than len (10) calenda'days from
receipt oflhe order«
5 Juc.tt ~. Inc. v. NLRC, GR. No. 111934, April29, 1998, 289 SCRA 755; 352
Phi. 593; SM I>Qfi and Genelal resol.rtion oflhe l..alxr AlbEr,
tnnishilg acopylhefeo!ID lhe adverse party.( Sec1ion 3, Rule XII, l!id.).
9 New Pacific Tmber &&ipply Co., Inc. v. NLRC, G. R No.124224, Marth 17,
2000,328 SCRA 404.
MadlilelieS v. NLRC, G.R No. 74806, Jan. 9, 1989.
1
6) When technical rules are disregarded under Article 227 [221 ].
(8) Motion for extension of time to file appeal bond is not allowed. 2
7) When there are some compelling reasons that justify the allowance
N.
of the appeal despite its late filing such as when it is granted in
the
interest of substantial justice}
1 APPEAL FEE AND LEGAL RESEARCH FEE
3. SOME PRINCIPLES ON REGLEMENTARY PERIOD.
1. PAYMENT OF APPEAL FEE AND LEGAL RESEARCH FEE,
appellant's fault;
1 New~ rrmer &&Wf Co., rev. NLRC, ~CRy Fai'Corpaabw. N..RC, {3R Net ~11, ~
21, 1995, 243 (10) Peculiar, legal and
equitable circumstances attendant to each case;
SCRA~
(11) In the name of substantial justice and fair play;
2 &lrina v. N..RC, GR No. 121147, .1111e 26, 1998: Vak1em111a v. NLRC, G.R No.
98239, Aprl25, 1996: fqJga v. NlRC, (12) Importance of the issues
involved; and
G.R Nos. ~1 •.1tr1.22, ml, 181 seRA 266.
3 ~v. NLRC,-G.R No. 166411, Aug. 3, 2010, <m.1 ~ len<ivJtoqxxalioo v. CA. G.R No.
165580, Feb. 20,
comply with the rules.' Consequently, in instances where the appeal fee was
paid belatedly, it was held that the broader interest of justice and the desired
objective of deciding the case on the merits demand that the appeal be given due
course. 2
3. SOME PRINCIPLES ON MEMORANDUM OF APPEAL.
v.
• Mere notice of appeal without complying with the other requisites afore-
MEMORANDUM OF APPEAL
stated shall not stop the running of the period for perfecting an appeal.'
1. REQUISITES.
• Memorandum of appeal is not similar to motion for reconsideration. 1
4
1) The Memorandum of Appeal should be verified by the appellant
• Supplemental appeal need not be verified. Neither the laws nor the rules
himself in accordance with the Rules ofCourt, as amended;3
require the verification of the supplemental appeaL 5 Furthermore,
2) It should be presented in three (3) legibly typewritten or printed
verification is a formal, not a jurisdictional, requirement. It is mainly
copies;
intended as an assurance that the matters alleged in the pleading are true
3) It shall state the grounds relied upon and the arguments in support
and correct and not of mere speculation. 6
thereof, including the relief prayed for;
• An appeal will be dismissed if signed only by an unauthorized
4) It shall contain a statement of the date the appellant received the
repr~sentative. 7
appealed decision, award or order; and
.l.. • Only complainants who signed the memorandum of appeal are
deemed to
5) It shall be accompanied by:
have appealed the Labor Arbiter's decision. The prevailing doctrine in labor
(i) proof of payment of the required appeal fee and legal research
cases is that a party who has not appealed cannot obtain from the appellate
fee;
court any affmnative relief other than those granted, if any, in the decision
(ii) posting of a cash or surety bond (in case of monetary
awards); of the
lower tribunaL 8
and
• Certificate of non-forum shopping is no longer provided in the 2011
(iii) proof of service upon the other party. 4
~ NLRC Rules of Procedure. It is only required in the
initiatory complaint
27,2004.
cases, posting of the appeal bond.
2 1.ama1 Tllld"rg, nc. v.l.ea:!crdo. G.R tb. 73245, Sejt 30, 1986.
3 t.lemllmErectasCoporali:xlv.t.'ajBes
G.R.No.184362,Nov.15,2010;Ganw.NRC,G.Rtb.L~26.Sept
28, 1984, 132 seRA 402; Del Roscril &Soos IDJgh;J Eneplises, k1c. v. N..RC, G.R No.
L-64204, Mrt 31, 1985, 136
SCRA'669.
1 Saint Louis U!Wer.;itj, Inc. v. Cdmubias, G.R No. 187104, hlg. 3, 2010, tm.!
lill v. Oebl SMtos; G.R No. 172574, ~ Loonv.
PoilerMaster, h:., G.R tb.189404, Dec. 11, 2Q13.
Jutt 31, 2009, 594 SCRA 607, 61~17; Villena v. ~. G.R No. 167620, ~ 3, '1007,
520 SCRA 346, 358-359. I 5 SedOO 3, !U! 1d the
NLRC IUs It Procedure, i1 relation il Sdln4, Rule 7of the RIJes ct Cart.
Cilg PDf Pasos v. Ph~ NciJ1al Coos!nJ:IDI Corpcrakrl, G.R No.192394, Jlt( 3, 2.013;
ll1d Mlennilm Erectts
2 P1Dri1e lnsulllce Ot v. E01a Bonlo-Perez, G.R No. 83699, Ft>b. 21, 1989; C. W.
Till tJi1. v. NLRC, G. R No. 79596,
Feb. 10, 1989.
l 6
Coqxxation v. ~cianes. G.R tb. 184362, Nov. 15, 2010, 634 SCRA 708, 713·714, tm.1
PcK:qtilg v. c:oca.caa
3 See SecOOn 4, Rule 7lhereol.
f'l1iilpi1es. Inc., G.R. No. 157006, .!at 31, 2008, 543 SCRA 344, 356-357.
~ SecOOn 4Ia]. Rule VI, 2011 Nl.RC Rules of Proce!kre; Brislll M/eiS Squilb
[Phis.], klc. v. Vbia, G.R No. 148156, Sept _.,,jl
See No.4, Admi1istraliJe Older tb. 11-00, Series ct 2012 fNo'ieiTiler 16, 2012].
issued by Hoo. Gellldo c. 1-bJnies,
27,'1004.
NLRC Chairmen
5 Del Mar lmlestic Enterprises v. NLRC, G.R. No.108731 ;Dec. 10, 1997.
a &*Jus-Gap. v. Hon. CA, GR. No.157488, Feb. 6, 'lJJ7.
6 G.R No. 116464, Mati11, 2000.
9 See SecOOn 1' Rule Ill thereof.
.~\
. .
l.HAPitK VIII
692 BAR REVIEWER ON lABOR lAW
U';l,)
be posted within the reglementary period? If a party failed to perfect his appeal
It has long been settled that mere failure to serve a copy of .a
by the non-payment of the appeal bond within the 10-calendar day period
Memorandum of Appeal upon the opposing party does not bar the NLRC from
provided by law, the decision of the Labor Arbiter becomes final and executory
entertaining an appeal.3 It may even be dispensed with since in appeals in labor
upon the expiration of the said period.
3
cases, non-service of a copy of appeal memorandum to the adverse party is not a
jurisdictional defect which calls for the dismissal of the appeal. 4
(2) In case the employer failed to post a bond to perfect its appea~ the
remedy of the employee is to file a motion ttl dismiss the appeal and not a
4
vn.
petition for mandamus for the issuance of a writ of execution.
POSTING OF BOND
(3) Surety bond must be issued by a reputable bonding company duly
(4) The bond shall be valid and effective from the date of deposit or
Only in case the decision of the Labor Arbiter or the DOLE Regional
I posting, l!lltil the case is fmally decided, resolved or tenninated, or the
award
Director (under Article 129 of the Labor Code) involves a monetary award,
T
that an appeal by the employer may be perfected upon t.i.e posting of a bond,
I satisfied.6
!
which shall either be in the fonn of:
(5) Posting af a bank guarantee or bank certification is not
I
8
(3) pr(lperty bond. 5
l (6) Cooperatives are not exempted from posting bond.
9
exclusive of damages and attorney's fees. 6 In other words, only monetary
and/or controlled corporations, however, are not exempt therefrom.
awards (such as unpaid wages, backwages, separation pay, 13th month pay, etc.)
{8) Bond is not required for the NLRC to entertain a motion for
are required to be covered by the bond. Moral and exemplary daniages and
reconsideration. 10 An appeal bond is required only for the perfection of an
attorney's fees are excluded.
appeal of a Labor Arbiter's decision involving a monetary award.U
2. POSTING OF BOND, MANDATORY AND JURISDICTIONAL.
The provision of Article 229 [223] requiring the posting of a bond is
0\DrilaG v. NLRC, G.R No. 91935, llach 4, 1996, 324 Pit 455; AqliJJ v. NLRC, G.R
No. 98108, Sept. 3, 1993, 226
1
self-executory and does not need any rule to implement it. The reason for this
SCRA76.
2 Gada v. NLRC, GR No. 109371, Nov. 18, 1999; Lanzon v. tlRC, GR No. 113600, May
28, 1999, 307 5®. 665; 367
' ~ IJ1der MDe 229 12231. Lllbor Code; Stx:bl4 ta1 (S)(m), fllJe VI, 2011 tlRC rues
of Procedlle. Plil.169, 177.
3 Srils v. Ve'ade, G.R No. 140753, ,1¢ 30, 2003; Bolja Estale v. Spouses Ballad
G.R No. 15251i0,Jire 8, 2005, 459
2 PNCC v. NlRC, G.R No. 103670, Jutf 10, 1998,292 SCRA266; C. W. Tlll ~- v. tlRC,
G.R No. 79596, FEb. 10, 1989.
3 Sunrise Mimi'g ~.Inc. v. NI..RC, G.R No. 146703, Nov. 18, 2004; Paglblsalll1 v.
tlRC, G.R No. L~701, Jan. SCRA 657, 667.
31,1980,127 SCRA463.
4 !lazv.Naa:G.RNo.89324,0tt 11,1900.
5 MX:Ie 229{2231, Lalor Code; SecOOn 6, Rue VI, 2011 NLRC Rules of Ploaldure.
4 M11errim Erecbs CorpoJam v. ~. G.R No. 184362, Nov. 15, 2010; Remen:o Gamen1s ~
v.
11 See REst~ ProcediJed toeNLRC, Seres of 1999, RUe VI, Sedion 6, i1 nllaiOO kl
Rli! Vll Secliln 14{Section 15 illhe
2008; BOija Esla!e v. Ballad, GR No. 152550, June 8, 2005,459 SCRA 657; OllJ v.
CA, G.R No.152494, Sepl22, 2004;
l.a'nzon v. NLRC, G.R No. 113600, llay28, 1999, 307 SCRA665; 367 Phil 169, m.
2011 NLRC IUls of ProcetilreJihereof.
employment.
4. JUSTIFICATIONS FOR NON-POSTING OF BOND.
t was misled by the notice of the decision which did not mention that a bond must
be filed. The lawyer for petitioner relied on such notice and considering this
included moral and exemplary damages in the computation of the appeal bond.
Relevant cases.
Semblante and Pilar v. CA, Gallera de Mandaue,7 where the
VD-A.
respondents' fail lire to post the required appeal bond within the 10-calendar day
MOTION TO REDUCE APPEAL BOND
reglementary period was excused because the High Court found it compelling to
l.CONCEPT.
rule on the issue of whether the petitioners, who worked as masiador and
sentenciador in the cockpit of respondents, were employees of the latter. It thus
The general rule is that the appeal bond that should be posted should be
4
declared that ·they were not employees but independent contractors since their
equivalent to the monetary award of the Labor Arbiter. Its reduction is neither
provided in the Labor Code nor in its implementing rules. In practice, however, the
NLRC has allowed the reduction of the bond upon showing of meritorious grounds.
1 ~ v. ~ Kni;!hls [Jeted;,oe n Security~. Inc., G.R No.173189, Feb.13,
2013. The validity of this practice
has been given judicial imprimatur. It was first
2 ~v.NLRC,G.RNo.122627,Ju!y28, 1999.
recognized in the case of Star Angel Handicraft v. NLRC,5 where it was observed
3 Qnzmv. The Filh lJMsD1 dlhe HooooiileCOIItd Appeals, G.R No.155207, April29,
2005,457 SCRA 700;T<ilemil that neither the Labor Code nor its
implementing rules specifically provide for a
v. NLRC, G.R No. 11774~ Jlt)' 29,1997,276 SCRA 431; 342 Phi. 394, 402-403;
Vergcra v. NIRC, G.R No. 117196,
Dec. 5, 1997, 282 SCRA 486.
situation where the appellant moves for a reduction of the appeal bond Inasmuch as
4 Mlncbza, Jr. v. SM ~uel Foods, Inc., G.R No. 158684, May 16, 2005.
5 Sentlante v. CA, Galen! de Mlldaue, etal., G.R. No. 196426, Au:J. 15, 2011,
dti1g Orozco v. CA; Flflh DMsion, supra;
<ka:J v. Nl.RC, G.R No. 81390, Au;J. 29, 1989, 177 SCRA 38, 49; Tillemtt v.
NLRC, G.R No. 117742. July 29, 1997, 1
276 SCRA431, 342 PhH. 394; Star AIY,lel Haxliaatv. NLRC, G.R No.108914, Sept
20, 1994, 236 SCRA 580, 584. G.R No. 187693, Jlt)' 13,2010.
in practice the NLRC allows the reduction of the appeal bond upon motion of
This Mcburnie ruling has completely overhauled the rules on motion to
appellant and on meritorious grounds, it follows that a motion to that effect may
be reduce bond. Before its advent, the issue of what
amount to post by way of partial or
filed within the reglementary period for appeal. Such motion may be filed in lieu
of provisional bond has continued to hound the party
litigants and the courts. Now, the
fixing of"ten percent (10%) of the monetary award subject of the appeal, exdusive
a bond which amount is being conteSted. In the meantime, the appeal is not deem~
perfected and the Labor Arbiter retains jurisdiction over the case until the NLRC
has of damages and attorney's fees" as the "reasonable
amount" that should be posted
acted on the motion and appellant has filed the bond as fixed by the NLRC. 1
has completely eradicated any and all controversies thereon. In other words, no
more
What is left for the determination by the NLRC, using its sound judgment
2. THEMCBURNIEDOCTRINE: GUIDELINES FOR Fll..ING AND
and discretion, are only the issues of (l) the reasonable final amOWlt of the bond;
and
ACCEPTANCE OF MOTIONS TO REDUCE BOND.
(2) what constitute "meritorious grOWlds." This determination is important since
"in
all cases, the reduction of the appeal bond shall be justified by meritorious
grounds
The 2013 en bane decision rendered in the case of Andrew James
means that the perfection of an appeal shall stay the execution of the decision of
(c) Compliance with the foregoing conditions shall suffice to suspend
the
that the reinstatement aspect of the Labor Arbiter's decision needs a writ of
(d) The NLRC retains its authority and duty to resolve the motion to
execution as it is not self-executory, are deemed abandoned. 7
· reduce bond and detennine the final amount of bond that shall be
posted by the appellant, still in accordance with the standards of
meritorious grounds and reasonable amount, and
1 All!rew Janes M:fxrniev. Eufail Ga)zoo, G.R Nos. 178034, 178117, 186984llld
186985, Oct 17, 2013.; See also Saa
lllqlbjee s11a1 eitler be Drilled bed tl Y«rt under the same tenns illd ·imibls
JIRlV!IIliYJ prier tl tis a~S~Ti!Si or
the NLRC order within which to perfect the appeal by posting the
sepnm or, at 1te ~ ctlle el1lJk1(er, merelf rei1Sialed illhe payral. The pooilJ ct
abald by 1he ~Sial not
required appeal bond.
<Jai the exoolfb1 b"reilstEmentp1011ded hereit'
6 &JCh as the cases ct Mrnw Hotel Resa1 Ccqxxatioo (Cenli.Ry Pale ShelaD1 Millla)
v. NLRC, G.R No. 110021,
1 See also Cosico, Jr. v. NLRC, G.R No. 118432, May 23, 1997, 2n SCAA 583;
BuenaOO!a v. lin Ki1g !m!, G.R No. Novemler 16, 1994, 236 SCRA 100, as
reits<ied nAlthles Mnlfaciuilg CorporaOOn v. M.RC, G.R ~- 107225, .kMie
150147,JM. 20,2004,420 SCRA 359.
2, 1995, 244 SCRA 7fiJ.
2 tfJCOiv. Fooljoy Industrial Corp., G.R No.159372,Ju~27, 2007.
7 klBnational Cartailer Temi1a1 SeM:es, Inc. pCTSI) v. NLRC, supm.
l G.R Nos.178034, 178117, 186984!Pl186985, Oct 17,2013.
execution since the Labor Arbiter is mandated thereafter to motu proprio issue
2.REINSTATEMENT PENDING APPEAL, APPLICABLE ONLY TO
the writ With the new rules in place, there is hardly any difficulty in
THE ORDER ISSUED BY THE LABOR ARBITER; WRIT OF
determining the employer's intransigence in immediately complying with the
EXECUTION REQUIRED WHEN REINSTATEMENT IS ORDERED
order. 1
BY NLRC ON APPEAL, OR SUBSEQUENTLY BY THE COURT OF
APPEALS OR SUPREME COURT, AS THE CASE MAY BE.
5. LIABILITY OF EMPLOYER FOR DISOBEYING LABOR ARBITER'S
REINSTATEMENT ORDER.
By way of distinction, the rule on reinstatement pending appeal applies
only to the order of reinstatement issued by the Labor Arbiter and to no other.
Under any of the two (2) circumstances described above, the Labor
This means that if the reinstatement order is issued by the NLRC on appeal, or
Arbiter shall immediately issue a writ of execution, even pending appea~
directing the employer to immediately reinstate the dismissed employee either
by the Court of Appeals1 or by the Supreme Court,1 there is a need to secure a
liabilities,3 to wit:
3. TWO (2) OPTIONS OF EMPLOYER.
r available only after the Sheriff shall have served the writ of
of disobedience because the employee should not be left without any remedy in
4. DUTY OF EMPLOYER TO NOTIFY EMPWYEE ORDERED
case the employer unreasonably delays or refuses reinstatement. The unjustified
REINSTATED.
refusal of the employer to reinstate an illegally dismissed employee entitles the
It is required5 that in case the decision of the Labor Arbiter includes
an employee to the payment of his
salaries.' The entitlement of the dismissed
order of reinstatement, it should contain: ·
· employee to his salaries occasioned by the unjustified refusal of the employer to
(a) A statement that the reinstatement aspect is immediately
reinstate him becomes effective from the time the employer failed to reinstate.
8
executory; and
him despite the issuance of a writ of execution.
(b) A directive for the employer to submit a report of compliance
On No. 2 above, the remedy available to the employee whose
within ten (10) calendar days from receipt of the said decision.'
reinstatement ordered by the Labor Arbiter was not implemented by the
Disobedience of this directive clearly denotes a refusal to
reinstate. The employee need. not file a motion for the issuance of the writ of
1 Glldantunagov.~Aiiles.re,GRNo.164856,Jal.20,2009[1;nlm:l.
2 See 1• ~ d Sedioo 12 (bmerly SecOOn 9), R* XI, 2011 Nl.RC rues dFrocetklre. as
Rnll1tered by NLRC En
5 See aso QvisbllkraUe Crusade v. tl.RC, G.R No. 79106, .64ri 10. 1989, 171 SCAA
712; ~ v. tbl. CQe.
• M:!e 229 [223], t.axrCode; Zilrixm,}a CiyWc$1rDisbUv. &at. G.R No. 104389,
May27,1994, 232 SCRA 587.
s See Section 19 [Con8lts d Decisioos) d 1U! V(ProceediwJs Before Labor MliesJ ci
lle 2011 Nl.RC Rules d
G.R.No.110087,0ec.15,1993;kl<tls!rialcniTrnp<Xt~klc.v.~.G.RNo.113592,Rl. 15,1998.
l'roce!kre. tt rrust be neEd 11at t1is Sectioo 19 was previoosty lllllilered
Sectioo 18 d the ~ilal versioo of 11e 2011 6 See Jl<l~ciSedOO
12~Section9), Rule Xl,2011 NLRCruesdflrocelbe. asrerutteredbyNLRC En
NlRC ROOs d Procedtn'e. twas renmtJered by NlRC En Bcr1c RestMoo No. 11-12. Seres
d 2012 {NoYerMer 16, BalcResciD No. 11-12,
Seresof2012jNoJEIJilef16, 20~. etlecWeJ~ 11,2013.
2012), effecWe Januay 11, 2013.
7 PklneerTextrizb:l Cotpaafionv. NLRC, G.R No.118651,0ct 16, 1997,280SCRA800.
6 2"1 paagraph, Section 19, Rule Vthereof, as~ by NLRC En Ba:lc Resduiion No. 11-
12. Seres of 2012 8 Rtx!uerov.~Ai'Liles,lnc., G.R
No.152329,1¢122, 2003.
[NoYentJer 16, 2012], efledNe Jan~ 11, 2013.
employer is to file for contempt against the latter and certainly not the
institution (5) When former
position is already filled up, the employee ordered
of a separate action in the regular court or with the Labor Arbiter. Such recourse
reinstated1 pending appeal should be reinstated to a substantially equivalent
will violate the well-settled principle of res judicata. It would give rise to
position.
multiplicity of actions which the law abhors and exerts every effort to eschew.1
Court of Appeals or by the Supreme Court, as the case may be, merely suspends
(2) Reinstatement pending appeal applies to all kinds of illegal
the implementation and enforcement of the reinstatement order but it does not
dismissal cases, regardless of the grounds thereof. 6
have the effect of nullifying the rift of the employee to his reinstatement and
(3) Reinstatement pending appeal does not apply when the dismissal is
to be paid his reinstatement wages.
legal but reinstatement is ordered for some reasons like equity and
compassionate justice.7
B.
4
5 Ar1i:le 229 [223], llilorCode; Pix!OO'Texturizing Capcxalioov. NI.RC, supm.
Triad Seruily&AIIied Services, Inc. v. Oltega, GR No.160871, Feb.6,2000.
5
6 C.Abllti:la& Sons, Inc. v. CA, G.R Nos.155109, 155135& 179220, Sepl29,2010.
GR No. 180972, J111. 20, 2014.
6 fssoo:j by l1e l.aJor Albler flUISUlll( t> Alfi:le 229{223]d the labor Code.
7 I..Mscrgoo v. AntorT~ Phfppiles, Inc., GR ~.177026, Jlll. 30,2009.
7
8 ~v. CA, G.R.No.147806,NoY.12,2002; SeeasoPfizer, Inc. v. Velasco, G.Rt-
b.177467, Mrch9, 2011.
Zanlmlga City Wafer Oisfiictv. &a GR. No. 104389, May 27, 1994.
/U;j
exclusive jurisdiction of the Labor Arbiter, the NLRC cannot have appellate
2. Exclusive appellate jurisdiction.'
jurisdiction thereover. 1
2. EXCLUSIVE ORIGINAL JURISDICTION.
Under the Labor Code, the authori~ to conduct compulsory arbitration
The NLRC exercises exclusive and original jurisdiction over the
is principally vested upon Labor Arbiters. It is only in the exercise by the
following cases: ·
NLRC of its original jurisdiction that it discharges compulsory arbitration;
hence, the exercise by the NLRC of its appellate jurisdiction is not in the
a. Petition for injunction in ordinary labor disputes to enjoin or ,
nature of compulsory arbitration. This is so because it is the Labor Arbiter
restrain any actual or threatened commission of any or all
prohibited who is clothed with the
authority to conduct compulsory arbitration in cases
or unlawful acts or to require the performance of a particular
act in involving labor disputes falling
under Article 224 [217] of the Labor Code. On
any labor dispute which, if not restrained or performed
2
H.
for compulsory arbitration by virtue of Article 278(g) [263(g)]
of
COURT OF APPEALS
4
J,
the Labor Code.
I
1.
d. Petition to annul or modify the order or resolution (including
those
issued during execution proceedings) of the Labor Arbiter.
5
I APPEAL VIA RLTLE 65, RULES OF COURT
as the remedy of ordinary appeal to the Court of Appeals is not available from
the decisions, orders or awards of labor authorities/tribunals. The reason for this
1
Secm1.~1eVII,2.011 t.a..RCruesdProcedlle.
1 Pallocv.NLRC,G. R No.116347,0ct3, 1996,262SCRA632
2 IW:Ie218(e),laba'Code;Sedion 1, Rule X, 2011 NLRC~ofProcedure.
2 ~Ames, k1c. v. NLRC, G.R No. 55159, Dec. 22, 1989.
3
Section 2, Rule X, 2011 NLRC R!Jies of Piocedure.
3 ~MlrlggCJJ<IWllsaSatjv. Nl.RC, G.RNo.121400,'-'ay5, 1997,272SCRA209,
218;~/IJrines, Inc.
: IW:Ie 278(g) [263(g)l. l.aJor Code; Section 2, Rule VIII, 2011 NI.RC Rules
of Proc:e:Ue.
5. RULE ON PERIOD.
through the Court of Appeals by way of a Rule 65 petition for certiorari before
they can reach the Supreme Court through a Rule 45 petition for review on
a. Period within which to file certiorari petition is sixty (60) days
cediorari.
from notice of judgment, order or resolution. 4
4. RULE 65 CERTIORARI PETITION, AN INDEPENDENT SPECIAL
b. In case a Motion for Reconsideration or Motion fer New Trial is
CMLACTION.
filed, regardless of whether such motion is required or not, the 60-day
The only grounds that would justify the elevation of labor cases to the
period is reckoned and computed from notice of the denial of said rnotion. 5
Court of Appeals are when the same were rendered (1) without or in excess of
c. The 60-day period is reckoned from receipt of the decision !!Y
jurisdiction, or (2) with grave abuse of discretion amounting tc lack or
counsel or representative of record, !!2! by litigant-party.6
excess of jurisdiction.
d. Rule on extension of the 60-day period. - In IAbao v. Flores/
Section 1 of Rule 65 states as follows:
some of the exceptions to the strict application of the 60-day period rule were
"Section 1. Petition for certiorari. - When any tribunal, board, or
laid down, thus: (1) most persuasive and weighty reasons; (2) to relieve a litigant
officer exercising judicial functions, has acted without or in eness of
its from an injustice not commensurate with his failure to comply with
the
or his jurisdiction, or with grave abuse of discretion amounting to
prescribed procedure; (3) good faith of the defaulting party by immediately
Jack or euess of jurisdiction, and there Is no appeal, or any plain,
paying within a reasonable time from the time of the default; (4) the existence of
speedy, and adequate remedy in the ordinary course of Jaw, a person
special or compelling circumstances; (5) the merits of the case; (6) a cause not
aggrieved thereby may file a verified .Petition in the proper court,
alleging entirely attributable to the fault or negligence of the party
favored by the
the facts with certainty and praying that judgment be rendered annulling
or suspension of the rules; (7) a lack of any showing that the review
sought is
modifying the proceedings of such tribunal, board or officer, and
granting merely :frivolous and dilatory; (8) the other party will not
be unjustly prejudiced
such incidental reliefs as law and justice may require.
3 Sea P1rM!r ~ Elllelpmes.lnc. v. CA. G.R No. 138270, Jme 28, Zl01, 412 Pli 003;
Pelmex,lnc. v. NI.RC, GR
th 125031, Jm. 24, 200l; ~v. CA. G.R No.149404, Sept 15,2000.
4 Opmdov.RaWla,G.RNo.1!16573,0ct 16,2013.
1 As held il Luzon Development Sri v. Associalon of Luzon ~Sirt~-G.R No. 131319,
Ocfcber6,
TJaZOOa v. CA. G.R No. 169712, r.bdl13, 2008; See Section 4 d PJje 65 il~ 17t AM
No. 00.2.ro.5C, fur1her
1995.
Mexti'g Seclm 4, Rlre65 dlle 1997 Rules d CNi f'roceOJte (elfed;.oeSeptermer 1,m>).
2 GR No.130866, Sept 16,1998, 295SCRA494(Enlm).
6
co-petitioner Peter C. Maligro was not a signatory thereto. Maligro was being
6. RULE ON MATERIAL PORTIONS OF THE RECORD.
impleaded in the case as the former Visayas Operations Assistant Manager of
According to The Heritage Hotel Manila v. Pinag-isang Gating at
Petron's Visayas-Mindanao District Office at Lahug, Cebu City. The Supreme
Lakas ng mga Manggagawa sa Heritage Manila (PIGLAS-HERITAGE),7
Court, however, ruled that considering that Maligro derives his standing or
the Court of Appeals is correct to dismiss a Rule 6S petition for certiorari for
personality in the case from Petron, the certification on non-forum shopping
executed and signed only by the corporation benefited Maligro such that the
t Lin v. Debs Scmls, G.R. No. 172574, Jlij 31, 2009, 594 SCRA 007, 61~17; Viera
v. Rupiscn. G.R. No. 167620, ~
3, 'EXJf, Sal SCRA 346, 358-359.
2 Labao v. Fklres. . .
! G.R No. 191215, Fit~. 3, 2014. See also Re¢btv. St Vi1cent de Pall~ klc, G.R.
No. 192008, hlg. 22, 2012,
4
5 CDlg Vda. de Varia v. CA. 490 Phi. 210, 221-222.
G.R No. 154532, Oct. 27, 2006.
5 GR.No.139396,Aug.15,2000,338SCRA62.
6 atiJ.!l.a;l!Jla MlllsQxpaationv. CA. G.R No.185220,July27,2009,594SCRA 139.
7 G.R No. 177024, Oct 30, 2009.
6 NfAe lhat the petitioners illoquias ae he mayor, vice-mayor, and three members
of ft1e ~ board of San Mguel,
... fatal. 3
Sang-an v. Eguator Knights Detective and Security Agencv, Inc}
instructs that the requirement of a cash or surety bond as provided under Article
9.1. THE PHILTRANCO DOCTRINE
229 (223] of the Labor Code only applies to appeals from the orders of the
A motion for reconsideration should be filed even though it is not
Labor Arbiter to the NLRC. It does not apply to special civil actions such as a
required or even prohibited by tile concerned government office. This was
petition for certiorari under Rule 65 of the Rules of Court. In fact, nowhere
the rule enunciated in Philtranco Service Enterprises, Inc. v. Philtranco
under Rule 65 does it state that a bond is required for the filing of the
petition. Workers Union~Association of
Genuine Labor Organizations (PWU-
4
9.FILING OF MOTION FOR RECONSIDERATION OF THE DECISION
AGLO). Thus, while a government office5may prohibit altogether the filing of
OF THE DOLE SECRETARY, THE COMMISSION (NLRC) OR THE
a motion for reconsideration with respect to its decisions or orders, the fact
BLR DIRECTOR, A PRE-REQUISITE TO FILING OF RULE 65
remains that certiorari inherently requires the filing of a motion for
PETITION FOR CERTIORARI.
reconsideration which is the tangible representation of the opportunity given to
The rule on the filing of a Motion for Reconsideration of tlie decision
the office to correct itself. Unless it is filed, there could be no occasion to
of the DOLE Secretary,4 the NLRC5 and the BLR Director' is mandatory and
rectify. Worse, the remedy of certiorari would be unavailing. Simply put,
jurisdictional. Failure to comply therewith would result in the dismissal of the
regardless of the proscription against the filing of a motion for reconsideration,
Rule 65 certiorari petition. Jurisprudence abounds enunciating the rule that a
the same may be filed on the assumption that rectification of the decision or
order must be obtained and before a petition for certiorari may be instituted.
G.R No. 180002, Feb. 26, 2014. Atilough lhis case iWies adedsion d lhe DOLE
Seaelay,lle pliqlle enuncialed
Qxle, as ll1lended by Depal1ment Oaler No. .w.m. Series d 2003, ]Feb. 17,
2003], !l1d as re-rurilered by llepatrent herei1 equatt 8!lPies b:l the
NLR:.
0a1er No. 4Q.M3, Senes ot 2008 [Oct. 30, 2008D.
5
CHAPTER VIII
711
decisions are, in contemplation of law, null and void ab initio; hence, they never
It bears to stress that the principle of exhaustion of administrative
became final and executory. 3
remedies when a motion for reconsideration is required, is not an iron-clad rule.
This principle may be disregarded under the following circumstances:
2.
(I) When there is a violation of due process;
JUDICIAL REVIEW BY CA OF DECISIONS
(2) When the issue involved is purely a legal question;
OF VOLUNTARY ARBITRATORS
(3) When the administrative action is patently illegal amounting to
lack or excess of jurisdiction;
1. DECISIONS, FINAL AND EXECUTORY.
(4) When there is estoppel on the part of the administrative agency
As a general rule, decisions or awards of Voluntary Arbitrators are
concerned;
final, inappealable and executory after ten (10) calendar days from receipt of a
(5) When there is irreparable injury;
copy thereof by the parties. 4
(6) When the respondent is a department secretary whose acts as an
2. JUDICIAL REVIEW.
alter ego of the President bear the implied and assumed approval
oft~ latter;
It is well-settled a rule, however, that the fmdings of fact and law made
(7) When to reqllire ~xhaustion of administrative remedies would be
by the Voluntary Arbitrator may be reviewed by the court. 5 Judicial review is,
unreasonable;
...!
CM Procedure, even beyood 11e 1Gi:alerxl<r day peOOd piMied i'llhe t.m Code !l1d Is
~ rules txt wl1il
DECIS.ION OF THE DOLE SECRETARY, THE COMMISSION
l1e regkmeriay perixf set b' I\Jie65 peiDxls lllder lhe 1997 Rules d CM I'Ioame.
(NLRC), OR THE BLR DIRECTOR HAS ALREADY BECOME
, lk1der Al1icle 229 !2231 d l1e Lm Code, lhe decisial d lie NlRC becomes i1al
aterlen (10) calen<B' days fiom -
FINAL AND EXECUTORY.
lhereof by lie ~· H!Mwer, a pcrty Is not prosaiJed tom tq a petition b' certioori
wli1 aperixf of sixty (00) days
nm
2 The decision d lhe llR Oiecb' or lhe Oftk:e d l1e DOLE Seaetaiy (11 cases d ~
tern decisions of l1e BlR
NLRC1 or the BLR Directo? (in cases which he decided in his appellate
!:1m) shal beoome i1al Mel exooJay alblr len (10) dcrfs tern receipt 11ereo1 by lle
pri!s, Iri!ss anm b' Is
jurisdiction).
recoosideratioo is fled by~ paty thereil Mhi1 the me perixf..Orti one (1) l1'dioo
b' recmsileialkxl d toe decisial d
lhe BLR or lhe Ollire d l1e DOlE Secrelaiy i11he exertise d f1ei' appellate
jJisdicbl shal be a!owed. (Section 20
{bmeltf SecOOn 2111M1 XI, Boc.t V, Rules t ~lie Lm Code, as amended by Depa1mert
Onler No. 40-03,
4
1 Per Nm1a Federation af laboc [NFL] v. Laguesma, G.R No. 123426, M!rd1 10,
1999, The decisiln af lhe DOlE A11ic1e 276 (262-
AJ, Laboc Code; No. 107, NCMB Priner oo Grievcrlce Machi1ery and Voi.Jntay
Artliflalion.
5
Se::rel!ly shalbefinal ald executory after ten (10) days tioo1 ~'db!. Yet, ie
l1e deciskJns aftle NL.RC 1\ilich, under Article Continental MiJble
Caporaliln v. NlRC, G.R. No. L-43825, l.'a/9, 1988.
6
229 [223Jdlle I.SxlrCode, beaxne lila ald execuby after len (10) ~days tern
~flereofbylhepaties, l1e Uri:raft Industries
i'ltemamal COiporation v. CA, G.R No. 134003, McRh 26, 2001.
decisioos d lhe DOLE Secretary !Eo become final aid executxy after
len(10)talerdar days from~ tl1ered by the
Siine DOO!y~as. k1c. v. ~il, G.R No. 90426, Dec. 15, 1989; No. 107, NCM! Prineroo
Grievance Madlilefy Cl1d
paties, !l1d rraJ also be bra.ghtkl the Court of Appeals by W<Jfaf a peliioo
b'certilrari under Ruk! 65dthe 1997 Rules of VWllary Arbibation.
l
712 BAR REVIEWER ON lABOR lAW
CHAPTE.R VIII
713
fees within the prescribed period is not only mandatory, but also jurisdictional.
It
Being a quasi-judicial agency, the decisions and awards of a Voluntary
\
Arbitrator are appealable by way of a petition for review to the Court of Appeals ·
is an essential requirement, without which, the decision appealed from would
under Revised Administrative Circular No. 1-951 which provides for a uniform
r become final and executory as if no appeal has been filed.'
procedure for appellate review of all adjudications of quasi-judicial entities and
D.
which is now embodied in Section 1, Rule 43 of the 1997 Rules of Civil
Procedure.
SUPREME COURT
The ruling in Luzon Development Bank v. Association of Luzon
1.
Development Bank Employees,2 in effect, equates the decisions or awards of
RULE 45, RULES OF COURT
the Voluntary Arbitrator to those of the Regional Trial Court (RTC). Hence, in a
petition for certiorari from the awards or decisions of the Voluntary Arbitrator,
I. RULE 45 PETITION FOR REVIEW ON CERTIORARI, THE ONLY
the Court of Appeals has concurrent jurisdiction with the Supreme Court.3
MODE BY WHICH A LABOR CASE MAY REACH THE SUPREME
COURT.
In Alcantara, Jr. v. CA,4 it was held that Luzon Development Bank is
still a good law. The introduction of the provisions of Section 2, Rule 42 of the
Since the Court of Appeals has jurisdi~tion over the petition for
Revised Rules of Civil Procedure did not alter the ruling in said case. The reason
....' certiorari under Rule 65 that may be filed before it from the decisions of
the
is that Section 2, Rule 42 is nothing more than a reiteration of the exception to
NLRC or the DOLE Secretary or the BLR Director (in cases decided by him in
the exclusive appellate jurisdiction of the Court of Appeals, as provided in
his appellate jiJrisdiction), any alleged errors committed by il in the exercise of
Section 9, Batas Pambansa Big. 129, as amtD.ded.~
its jurisdiction would be errol)i of judgment which are reviewable by means of a
timely appeal to the Supreme Court and not by a special civil action of
4. PERIOD OF APPEAL -15 DAYS.
certiorari.
Rule 43 of the Rules of Court' requires that the petition for review to be
taken to the Court of Appeals should be filed within fifteen (15) days from
notice of the award, judgment or fmal order or resolution of the Voluntary
t Such appeal from a final disposition of the Court of Appeals is
a
petition for review on certiorari under Rule 45, and not a special civil action of
certiorari under Rule 65 of the Rules of Court. Rule 45 is clear that the
Arbitrator. Thus, when petitioner in Mora v. Avesco Marketing Corporation/
decisions, final orders or resolutions of the Court of Appeals in any case, i.e.,
filed before the appellate court a petition for certiorari forty-nine (49) days
after regardless of the nature of the action or
proceeding involved, may be appealed to
receipt of the decision of the Voluntary Arbitrator, the same was already out of
the Supreme Court by filing a petition for review, which would be but a
time since the 15-day period to file an appeal had already expired.
continuation of the appellate process over the original case. Under Rule 45, the
Saint louis Un~, klc. v. COOcrn.Das, GR No. 187104, Aug. 3, 2010; ROOy Sheller~ and
Reaty ~
s J1s llneoded by RA No. 7902; See 1$ W l3ectric CooperaWe, klc. v. LEYECO
Wfn1lloyees Lmn-ALU, G.R No. CoipoiatDl v. Fam!m Ill, G.R No.
175914, Feb. 10, 2009, 578 SCRA 283, m; Ruiz v. Delos Sanms, G.R No. 166386,
15m5,<WJer19,2007.
Jm.ll, 2009,577 SCRA 29, 43.
2
6 See Section 1, iuelalion lD Section 4, of Rule 43 there<t.
Asian TilllSII'isslon ColpacDln v. CA, G.R No. 144664, March 15, 2004; See also
Trazona v. CA. G.R No. 169712,
7 G.R. No. 177414, Nov. 14, 2008.
Mardl13, 2008; San tliiJuel Co1paatiGn v. CA, G.R No. 146n5, Jan. 30, 2002, 375
SCRA 311, 315.
dismissed. This is to prevent the party from benefiting from one's neglect and
2. MAY RULE 65 CERTIORARI PETITION BE AVAILED OF FROM
mistakes. However, like most rules, it carries certain exceptions. After all,
CA DECISION TO THE SUPREME COURT?
I
But in New Ever Marketing, Inc. v. CA,l and in the earlier case of
In answering this poser in the affirmative, it was held in Tomas
San Miguel Corporation v. The Hon. CA,4 the Supreme Court answered the
Claudio Memorial College, Inc. v. CA/ that a Rule 65 certiorari petition may
same poser in the negative because the Rule 65 petition was not proper since an
be filed if in issuing the assailed decision and resolution, the CA acted with
appeal was not only available but also a speedy and adequate remedy. Hence,
grave abuse of discretion, amounting to excess or lack of jurisdiction and there
for failure of petitioner to file a timely appeal, the questioned decision of the
is no plain, speedy and adequate remedy in the ordinary course of law. A
Court of Appeals had already become final and executory. 5
remedy is considered plain, speedy and adequate if it will promptly relieve the
is a petition under Rule 65 instead of Rule 45, before the Supreme Court may
court.3
treat the petition erroneously filed under Rule 65 as having been filed under
The aggrieved party is proscribed from filing a petition for certiorari
if Rule 45, the same must comply
with the reglementary period for filing an
appeal is available, for the remedies of appeal and certiorari are mutualiy
..... appeal. This requirement is not only mandatory but also jurisdictional
such that
exclusive and not alternative or successive. The aggrieved party is likewise
failure to do so renders the assailed decision fmal and executory and deprives
barred from filing a petition for certiorari if the remedy of appeal is lost
through the Supreme Colirt of
jurisdiction to alter the fmal judgment, much less to
his negligence. 4 A petition for certiorari is an original action and does not
entertain the appeal.
intenupt the course of the principal case unless a temporary restraining order or
petitioner, instead of filing a Rule 45 petition for review on certiorari from the
from further proceeding. 5
1" decision of theCA, filed a Rule 65 petition for certiorari to the Supreme
Court
In Cirtek Employees Labor Union-Federation of Free Workers v.
after 52 days from its receipt of theCA decision. Contrary to petitioner's claim
Cirtek Electronics, Inc.,6 it was conceded that respondent indeed availed of the
that there was no appeal or any other plain, speedy and adequate remedy in the
wrong remedy of certiorari under Rule 65. Due,· however, to the nature of the
ordinary course of law other than this petition for certiorari, the right recourse
case, involving workers' wages and benefits, and the fact that whether the
was to appeal to the Court in the form of a Rule 45 petition for review on
petition was filed under Rule 65 or appeal by certiorari under Rule 45, it was
certiorari. For purposes of appeal, the decision of the CA was a final judgment
filed within 15 days (the reglementary period under Rule 45) from petitioner's
as it denied due course to, and dismissed, the petition. Thus, the decision
receipt of the resolution of the Court of Appeals' Resolution denying its motion
disposed of the petition of petitioner in a manner that left nothing more to be
for reconsideration, the Court resolved to give it due course. As Almelor v.
done by the CA in respect to the said case. Petitioner should have filed an appeal
by petition for review on certiorari under Rule 45, not a petition for certiorari
under Rule 65, in the Supreme Court. Where the rules prescribe a particular
1 ~ 1/algg~ 1¥J Stlyfast Phis, klc. v. NtRC, G.R No. 155300, hig. 28, ~13;
Malayq Kf4liscmlr¥J remedy for the vindication
of rights, such remedy should be availed of.
Mcrgg~ sa Assodaled M.Jb hnericM Tcbaa:o COip. }hW<MW4GGAGAWA) v.
ftssocialed Pflglo AITlefi31
nc.
Tcbaa:o COip., G.R No. 156613, Feb. 18, axl8; New Ever~. v. CA, G.R. No.
140555, Jt*j 14, 2005, 463
SCRA 284, 293-294; ~~Balk d 11e f'hW1es v. CA. G.R No. 129368, AIJJ. 25,
2003, 456 Phil 755, 787; <n1 1 G.R.
No.179620,Aug.26,2008.
Fl$rd0 v. 8aJtisla, G.R tG. 1021m.97, May fll, 1994, 232 SCRA 291, 298.
i 2 See!Bl~v.CA,G.RNo.142001,JUy14,2005.
,;..., 3
2 GR No. 152568,feb. 16,2004.
G.R No. 1o40555, .JUy 14, 2005.
3 Citrg Natiooallrn:Jatioo AdrrilistJalion v. CA, GR No. 129169, Nov. 17,
1999, 318 SCWI255; See also P00i11o v. Ruddf 4 GR. No. 146775, Jat ~.
2002, 375 SCWI3H, 315.
Lillz, Inc., G.R No. 196539, Oct 10, ~12.
5
See IBl Sea Power ~ EniBplises, klc. v. CA. G.R No. 13827Q, June 28, 2001;
Asoodation d klmQraled Sewtt
4 ~ Maf¥JgagCM!lii¥J Stayfast Pl!ils, Inc. v. NLRC;SJV<!.
Foo:eofBisiiJt\ISFBJ-ALU v. Hoo. CA, GR. No.140150,Aug. 22. 2005.
5 Sec!ioo 7, Rule 65, Rules of Cart
6 <J.R. No. 169712, Meld! 13,2008.
6 G.R No.190515,June6.~11,650SCRA656,663.
7 G.R No. 155300, Aug. 28, ~13.
c·._
'
Mi:le 232 [226). 13urea1 a t..m Relalioos. - The &JreaJ c1 l.tixr Relations llld
111e ~ Retmns CMiklns nlhe
regiooa olbs afle Depa1meot of t.m, shal.hM ugoo llld ex~ d1aiy to act, a1 flei"
IM11 ililiaiM! or upon
I~
t NagklililmJ MamJrooo sa Pi:op Reswtes, lnc.-5oollem Phlippiles Federalon ct
l.tixr [NAtNIPRI-SPFI.) v. The requestd eilheror bah parties, oo al
i'le"-mial Mel i"tcHJnioo CXX"Ifict, in! al.d"ISflU(es, grievlllces orJXdllems arm,
Hon. CA. G.R Nos. 148839-40, Nov. 2, 2006; See also G&S Trcmport Copo!a!b1 v. rA,
G.R No. 120287, May 28, ti"orn or aflecti1g lim~ relaioos i1 a'l
~. v.tJel1er agrillbal or non-agrilmal, except U1ose arm,
2002, 382 SCRA 262, 273, b" Ill exceptiOO to 1his gereal !We.
mille ~00!1 or ilepretaOOn of collective balgaining agreemellt which shal be the
subject d grievcn::e
z G.R No. 187032, Oct 18, 2010.
proceOOre Clldlcr..oontly lllililr.m1.
3 cq PCJJooa Phiippiles, Inc. v. U!Wersal Ccrving, Inc., G.RNo. 160966, Oct
11,2005,472 SCRA355, 359.
The Bureau mall hM fifteen (15) 'MXki'I.J dais t> aa oo 100or cases~~ subject t>
extensioo by agreement or t1e
4 GRNo.175481,Nov.21,2.012.
J)ilties.
~.
CHAPTER VIII
718 SAR REVIEWER ON lABOR lAW
719
5
While the Labor Code refers to this official as "Med-Arbiter,"2 it should,
jurisdictions. Although, like the Med-Arbiters, they are not also specifically
however, be construed to mean "Mediator-Arbiter.'.J Most recent DOLE
mentioned in said article, it is a known procedural rule, however, that in addition
to
issuances4 have specifically changed such reference to "Mediator-Arbiter" in their
their jurisdiction over cases falling under Articles 1286 and 1297 of the Labor
Code,
provisions. This is but proper since the word "Med"5 obviously is an abbreviation
of they also have
jurisdiction over certain specified cases contemplated under Article
the word "Mediator. "
232 [226] of the same Code such as disputes concerning union registration and
name, instead of the BLR, is usually the one impleaded as public respondent in
the Med-Arbiters are part, suffices.
7
certiorari petitions tu the CA or subsequent appeals to the Supreme Court Thus, one
would encounter countless cases ftled against such luminaries like Pura-Ferrer
Indeed, under the law and rules, Med-Arbiters are not merely ordinary
functionaries in the BLR; they are possessed of certain powers not even available
to Calleja,
Cresenciano B. Trajano, Benedicto Ernesto R. Bitonio Jr., and Hans Leo J.
Cacdac, among others, who are sued in their capacity as BLR Directors.
IL
1 Sed001 !il. ~ I, Book v, Rules Ill ~Iemen! l1e L.m' COOe, as CITII3I'ded by
Depatnent Older No. 40-m, Seres ct
2003, JFeb. 17, 2003]. Excepted from the Mld-Aibia's ~ ae cases oo v.tth the
Regional DiedDr exertises
CASES PROVIDED UNDER ARTICLE 23212261
!XiJiMIIIld extiJst.oe j:JrisdDkxl sOOI as~ b' unkln regisbalioo. peitOOs b'
an:ellalkln of uni:x1 regislralblllld
~ b' exani1alioo ct lri:xls books ct aa:ooots.' Tlis Is per Sed003, ~ R~1. Rules
ct Prooodure The
following are the general classifications of the cases mentioned in
00 MediatiooMlibal, v.i1k:h prrMdes: 'SEC. 3. Jtmfdkln of toe Regilnalllim'.·
The Regilnal Oiredoc shaR exeldse Article 232 [226]
falling under the jurisdiction of the said officials, to wit:
aijila ll1d extiJst.oe )lisdctbl tMJ ~ b' lrix1 ~. pelims b' an:elalion ct
IJlicn regislralblllld
~ b'exanilatiood IX1ioos books d acaJOOIS.' See also Bales v. Bbli!, G.R No.
120220, .kl1e 16, 1999.
2 The em ~ 1s used n1 cEd nile ~ CJtk:les ct 11e l.I.W Code: ArtJes 230 12241 ~ a
1 lkldertle 1990 NLRCRUesdProcedlle, L.m' MXasveepeo.brstfplled
ijllclvepcM~J.lbvever, llis prrNision
de::isbls, cxdefs or awards), 268 l256J ~ issue i1 agariled Rbistrneuls), 2.69
[257) (Pelbs i1 Is no knJer
bnl i1 ils 2002, 2005 nl3111 wrsioos. The ~eam behi1d Is deletion IsM ll1lerIG:Ie
225(e) {21B(e)l ct
lllOigaized ~). Z72t2591 (.6weal from certifK:alioo electkln !Jdels), n1292
rzni(Mscellooeoos prM;ms), l1e
l.m'Code, ijllcWe pa.wr Is plEd ooly tl tle 'f.aTrriml' v.tlich d:JioSi refers b
lle N.RC's vcrilus cNsioos
pcrag~ (i) thelec:t. ~tt. MedArbiler 1s mrefened t1 atal i1 htle 232123iJ.
n1 mt>lhe Labor Albes.
ttsM1ere, ha.vewr, i1 Ole L.m' COOe Is l1e !1m 'Mldiab'-Arbilel" used or died.
2
Sedia1 5, ~le XVI, BOOt Vd 11e Onrilus RUes ~ lhe L.allor Code: 'Sec 5.lrjnixls. -
No 8J'ClORrY
4 &rch as Depab1lenl Older No. 40-F-03, Serilsd 2008, issued oo Ocilber ~. 2008.
This Oepiltnert Order was issued by ijJ1dklns or
restai1DJ «dee i1 tiTf case~ or !JlMb;l cltd a1m cf!ip(E shal be issued lrf tiTf
aut or cOler
11e DOlE Secretly to ~ 111e dlMges i1 the L.m' Code brooght mttrt 11e amerxmems
i1!roduced llereil by ritf. On t1e
cOler hald, l1e ab d lhe Presideot, l1e Seaelily d Labor, l1e Conllissirt, lle
Lalor MliB or Mld-
RA No. 9481 [Eifedive.klne 14, 2007).Ardlerlssuml is DepcWnertOrderNo.~15,
Seres ct2015 [Sepemer07, MRJ may
er10i1 tiTf oral~ iMlMvJ or ClisirYJ lnxn tiTf case pendiY,j before Flff Iisak! cb
ordfdals v.ilkil wm
2015], entiled 'Flriler Amenlfrlg Depmenl {lrder No. 40, Seres ct 2003, ~ tle ~
RUes ll1d resmled lcx1hlm
may cause poe or irepcrable dcr1l8Je b tiTf d toe piJiies ID the case or serbJstf
aflect soda! or
RegUafilnsdBook Vcttle Labor Ceded the~. as Amended.'
lm'ollli: sl!miily.'
s All!loo;lh Mhai apeOOd lhatY«lllkl siJriff M lis M atdgemert d aYollltl.
3 IAlkl v. J..a,juesma, G.R No. ~75. J111e 9, 1997, 273 SCRA 109. But its
issuanoo s1ni1 be illmlltlcrlce \Wit the
6 Althoogh as enr "n
noted, MedMlfter 1s berg re!ened other~ of the t.m
eooe. !JfMds pn:M!&:I by 1aw
il1d 1s deBmi1albllllJSI ben the I1WOef prMied by 1a.v.
MY. Sal Biscuis, klc. v.la;juesma, GR No. 95011, April22, 1991, W'e l was
slaled: 'Under Alticle 232 [226) ct lhe 4 Sedi:ln4,
Rule XVI, Book V, IUlstllrrjllementthel.alorCode.
L.axr eooe, as llllfl!lded, the Burear r1 Labor Relali:lns (BI..Rl, ct v.Wl
the med-abiler Is M dlicef, has the lolloNing 5 See Alticle 128,
labor Code.
j.ri;tixl xxx. [IJle BlR has the OO;)i1al il1d ~ jllisdk:tion ID, ilB' *.decile
al dspules, grievMces or problems 6
\4sitmlll1d em:rooment JK1I'I'IliS d lhe DOLE Secrelify il1d tis duly ClltOOzed ~.
11e OOLE Regional
ilisi'g 1rcxn cr alfedi'I;J labor-nmagement relams i1 al wor1qllaces
l'i1ell1er ~or ~ri:ulllral. Necessatt. i1 !em.
lhe exercised 1hls iJrisdidion over Iebel-management relaOOns, lhe med-abler
has l1e amity, cri,Jinalllld exclusive, Ill 7 See Alticle
129, L.m' Cede, iMM1g monelafy daRns d PS,OOO or less.
delemine f1e existence dan en'4JklYer~~ between lleJfts.'
:9-k·~-"
J CHAPTER VII(
)URISDICfiON AND REMEDIES 721
1
since it would merely require a simple validation process by the DOLE Regional
(b) Intra-union disputes; and
Director of confinning the majority support of the members of the bargaining unit
(c) Other related labor relations disputes. z
for the requesting union and once validated, the requesting union is immediately
11-A.
certified as the SEBA without conducting a ·certification election, however,
more than one (1) legitimate labor organization, in which case, the DOLE
legitimate unions involved, it also refers to any conflict between and among them
Regional Director, before whom Requests are required to be filed, should refer the
I
concerning the issue of which of them should be certified as the SEBA for purposes
Request directly to the Election Officer for the conduct of a certification
electionz in
of collective bargaining with the employer. Broadly, it covers any other conflict
or accordance with the
Rules;3 fuJ.d
dispute between legitimate labor unions. 5
officers and/or members of one particular union, including grievances arising from
1 llikrov.ltn~ G.RNo.168475,Jltf4,2.007;8aJtislav.rA,G.R. 123375, Feb.28,
2005,452SCRA406,420. any violation of
the rights and conditions of membership, violation of or
2 Sediln 1!BI {bn1ef¥ Sedixl2),1M! XI. Bed v. rues t ~ 11e lila Code, as
lll'II!IKBII1f 0epa1me1t Order disagreement over any
provision of the union's constitution and by-laws,6 issues
ttl.o10f.OO, Seriesd2008 (Oct 30, 2008t Artide 232 \226J,IilaCode; Poi¥
k1sUucfu1s No.6; vmv.
ttl.69188, Se!t 23, 1986; M. Y. SM Biinits, klc. v.Laguesma, G.R.
No.90011.~22, 1991.
T•.
G.R.
a lllkrov.ltn~~;BIUislav.rA, . .
4 Sediln 1J91, IUl Ul, Nct.B MinJal d Pmcetkes b' Coociaix1 a1d PJari.'e
Mediatioo Cases;~ 2[Delilitioo
d Terms), NCM3 Ptiner on Sd<e, Pi:kelh;lllld Lockoot, 2nd 8iil1, lleceriler
1995; lliOOlo v. Hen. ~ Ilk!.;
BaJtista v. CA,Ilkl.
·5 v.
Soction 1(xl,!Ull, Bed ~ tl ~Iemen! lhe l.rbor eooe.
as anended l1f
Depment Order ttl. 40-03, Series of
2003, [Feb. 17, 2.003].
1
Seaion 4, rue VII ctlhe IU!s t ~ lhe labor Code, as cmanded by l:lepmst()der No.
40-1-15, Series of
lssuOO on ~07, 2015.
:Ml15 (Seple!lter07, 2ll15]. TheeledixlShaud be oondJx:ted iHICOOidCilCe IWh Rule
IX llererl.
M:uatt Is Rule VII [Vokl1faly Reco:Jnitial], Bed V, ~ 1o 01Jiemenllhe l.rbor
Code, as lml!1ded l1f Depa1ment 2 Secbl s. rue
Vll,llil.
OrderNo.40.Q3, Series d2003,[Feb. 17, 2003J.lhis pi'CNism has been repealed
llld replaced by anew prtMsioo entitled, 3
Seaion 6, Rue VI~ lbi:J. it aa:adMce v.ilh Rules Vlllllld IX, lbkl.
Oepa1ment Order 1-b. 40, Series ct 2003, Amendi1g lhe ~ IU!s llld RegU;Um rl
Book vct lhe Lalor Code 5
SecOOn 1[bbl. Ru'e I, BookV,Il«<.;Mnov. Hen. Caalac, supm; Bautista v. CA. ~ra.
:~
·~ ..
2
organization, union membership and Collective bargaining -
from chartering or affiliation of a union. .
D-B.
2015,3 the following is a rundown of all possible inter-union/intra-union disputes:
Sedioo 1 [fll, ~I, Book V, Rules 1D ~the 1..8!or Code, as emended~ Depa1men1 Older
No. 40.oo, Seres of
Section 3, Deparbl1el1t Order No. 40-~15, Seliesof2015 [SepientEJ07, 2015],
lbll. 2003,
[Feb. 17, 2003]. .
s llspu\es a-s: the il1erprelaion cr ~of the CBA are consilered as grievable
issues oogrJizalle by ll1d shook! 2 Sedioo
1flll"(bmedy SedkJn 2), Rule XI, Book V, Rules 1D ~the Laxr Code, as anended by
Depatment Onler
be processed lhrough the gfieYcrlce rra:hi1ely ll1d volunlafy albiralion
proWled il the CBA ilsel. (See Al1icles 273 [260]
No.4().F.{)3, Selies !i2008{Da. 30, 2008].
!rid 274[261], labor Code).
·;·•:
·.,.......
I CHAPTER
VIII
725
rights to the claim, thereby relieving the party so· filing ftom suits they may
Ordinarily, if the conflict is between two or more legitimate labor
otherwise bring against it2 .
organizations, such is to be correctly denominated as an "inter-union" dispute
which,
broadly covers any conflict or dispute between legitimate labor unions.'
But what if one of the contending parties is a group which is not a labor
1
organization, much less, a legitimate one, as this tenn is understood within the
context of the law?1 How should that dispute be legally denominated?
colect.ta bagailirJ.(Micle 219(g).fl1~)1 LaluCode; See also Sd:xll(13}. ~II, toJB
M!nJaldPitceckles b"
·aganilaiXln nile piME secb' Ieljslered or~ \\11 lheOepRtmtcnm n1 ~ila:mdm! will
, ERV&~·
lletmCodecnlls~nEs. lilclJdestl'tfbr.n:horlacalhdd.(SeeAI!De219(h){212(h)],tmCcde;
Wakefs' Associi6lls], il IelaOOn t Sectioo 1(eel rue I, BOOt vd 11e IU!S b ~ fle
Labor Code, as anended
4 MY. Sal~. K v.l.aguesrrs,GR No. 95011,J14ri22, 1991.
by llepartnert Older No. 4().()3, Series d 2003, feb. 17; 2003}; SM "tte! Olp.
fnllbyees Uni:Jn.PT&M:> v. San
5 Besav. Traj;m, !Necb'dllleii.R,G.RNo. 72409,Dec.29, 1986, 146SCRA501.
2
e Sectioo 1[x1 ~ I, Brd V, ~les tl ~ lhe Lm Code, as 5l1l!llded by !Jepa1rrent
Older No. <W-03, Series al 2003,[Feb.17, 2003],
2003, [Feb. 17' 2003].
ii;l'
;.~
'~~'-"..",,..
727
Regional Directors~
(1) Inter-union disputes (representation or certification election
conflicts), such as:
2. ORIGINAL AND EXCLUSIVE JURISDICTION OF THE DOLE
(a) Request for SEBA certification when made in an unorganized
REGIONAL DIRECTORS.
establishment with only one1 or more than one (1) legitimate
3
The DOLE Regional Directors have original and exclusive jurisdiction
unioP 2 or in an omanized establishment; or
over numerous cases.3 But net all of them are relevant to or connected with the
three
(b) Petition for certification election, consent dection, run-off
election
(3) classes of cases4 expressly mentioned in Article 232 [226]. Only the following
or re-run election;
and rules:
(3) <Y.her related labor relations disputes; 4
(4) IP.junction cases;5 and
(l) Visitorial cases under Article 289 i274),5 involving examination of
.! 1
Sectioo 6, Rule VII, il relatioo lo Rules VIU a1d IX, !lepal1ment Older No. 40+15,
Series cl ~15 [Seplell"00"07, ~15].
meallhal sud1 Cl!llli3iJn electkrl siWd 11CfN be OOIWi!d ll1der lhe ;.riscidil1
d lle Medaa-Amili!r b v.t1om lle 3 All the cases rogill3lle by the
OOlE Regiooa !iectrs are as bb.s: (a) 'llsbial fllSpE!dion) cases under Article 37;
(b)
·E!edkxl Officer is dLtfiJoll1d tl repat the ootome d lle eledixl ~- Cerlail~.
lle IJ1SIDJ ca1ili:alioo eledkx1 VISitorial fnspedioo) llld
enftra:rnert cases l.l1der Article 128; (c) V!Sibial cases under Article 289 Tl741.
ilvoM1g
cm:.t be tlllldOOed oo:lerlle <iedNe d lhe DOlE leP4 Dia:trwlhoollle ~ d toe
t.lediab"-Aibi!Jv.txl, examaoon ct boc*s c1
ax:oLIIIs c1 nlependent lllioos, b:al ~ 1cca1s and workers' IISSilCimls; (d)
IIlier 11e law, is the one possessed ct lhe crij1a n ea:llsM! jlrisdiciDl oa
CEIIi:abl eletiln C3ieS. idJdi1g 11e ~safely a1d td1 vWioos; (e)
Smal rooney dains cases liVg from laiKr Slaldads vDa!ilns i1"' ll11lUI1l
plldmalkx1 ct ile v.iri1g SEBA. (See Section 21, lUI IX, BOOt V, RJies tl
k11J1enBt lie tm Code, as adered llli exr.eedi1l
115,000.00 llld llli ~ Yilh adain b' l8ilslalem!nt l.l1der Article 129; (f) Cases
relaEd t1 prMIIe
nnrmeredby Sedkln 17, Depannent Order No. 40+15, Series d 2015 tsePBrGer 07,
3115). This section was IP.IilaiJ reaui1mert llld placement~
(PRPAs) b' b:al ~ sud1 as: (1) ~for lcense or derialllered;
IU1tered Sedkln 20, per Oepmert Order No. 40«1, Series d 2003, [Feb. 17, 2003).
IU i was ~ re- (2) ~ b' suspensioo or
l3lCEIIatioo « icense by reasm d I100iistliMl olfenses; (3) ~ for ilegal
!Uitered tl Sedkln 19, perOepmen!OrderNo. o40f.03, Series d2008 [Oct 30, 2.00!
D. recnnnent; a1d (4) Petition tr
cbsue c1 agency; (g) Cases Slbrrilled b'vokmy allil!abl il m capadly as Ex.QIIicb
2 Secb15, iUl VI~ nrelalkln trues vm lild IX. Depmat Order No. 40-1-15, Series
a3115 (Sepbrber07, ~15). VoU!Iary Albllabs(EVAs)
l.llderOepment Order No. 83-07, Seriesd2007; (h) Lmn regislraliaH8aled cases. such
3 Sedkln 6, rue VI~ luelalbl t1 RUes VIII a1d IX, Iii
as: 1) ~ tr 111i:ln regislrml d ildependent ll1kx1s, b:al c.llapBs a1d vmers'
assoc:iablS; 2) Jlefilioo tr
4 Secb11 (i). ~ ~ I!OOt v, Rules t1 ~the l.aba' Code, as aneOOed by IJepilb8t
Order No. 40-m, Series d denial d applk;alix1 for
registralkln ct sakllllions; 3) PeliiORs b' lwocatmiJ Cii1Celation d llYjslraliln
of saklllli:lns; (i)
2003, [Feb. 17, 2003); Section 4, Rule XI, BOOt v athe rues b ~ 11e l.aba'
Code, as anended by 0epmen1 Noli:e c1 merger,
cmsddali:xl, alliatDI a1d ct~qe cl ncrne d sail lllilns a1d or petilicn b'
derialllerett. li)
Older No. 40-Rl3, Series ct 2008 [Oclcber 30, 2008). See ., Article 23212261.
l.aba' Qxle; Poky k1siruttklls No. 6; CBA-re!aled cases,
sud1 as: 1) ~ for registltioo ct ~ CBAs or pelitioo fiJ deregistatioo
Vluv. Tr<4000, G.R No. 69188, Sepl23, 1986.
therect, 2) Peition b' denial of regislratoo of siljlefnterplise CBAs (J derial of
dl!egistratioo lherecl; and (k) Request for
s ~1M 11e amty t issue~ IISiiiJ!IIIdels (TROsl a1d n ct ijn:bl il Wt1Xiale cases.
SEBA cd;atioo m 11100e il "'trogmed eslablisllnent wilh crit one {1) legilinate
uni:ln.
SedXJi 5, ~XVI, I!OOt Vcllhe Ormb.Js RIJes ~ l1e Lm COOe staes: 'SeeS.
kJMoos.- No~ 4 These ire (1) i'IIB"-
IIli:ln di;puteS; (2) i1lrcHriln dispules; a1d (3) Other relaled IOOOI"relations
disputes.
~ cr ~ order iliJTf case ~ cr !JifMb:l cit cl a laiKr dispute shal be Issued
by IJTf aut or other 5 'Mide 289 W4]. VISitorial
pallel".llle Seaeay of Labor a1d ~crhis IUy aulhorized represenlative is hereby
ri\y. On lhe lfler hald, lle Ollice ollhe Presilert fie Salay ct Lalor, l1e
CamissDt, l1e Lalor ArbiiJ (J ~ ~ 1o i'q.lre iiiD the
frlardal aciMies ct leglimafe laiKr OlgMzaOOns ~ lhe fiVJ d a ~ lJider oath
ArbiiJ lr6f e!jli'IIJTf or a1 acts iMlMlg or !1isiYJ tom IJTf case ~ befiJe
IJTf d sail ofti:es or olfdcis vmi:h i not and ddt supportEd by lhe
~Witten coosent d at least twentt perceli (20%) d lhe blal ~ cllle IOOor
orga1izalion
~ btrMtttlr6f caJSe grave or lrepaable lliiT8;Ie kl IJTf ct the paties tllhe
case or serioosty ailed social cr concerned and b examine !heir
books d imllllts and otler recads Ill delemi1e COflllicllce cr ~Mil lhe
eali100i: sllility.'
lim a1d b proseru1e aey ltiolalions of the law and the IJ1ion oonsllu1ion and byw:
Pr<Mded, That such ilquiry cr
729
The decision toe whether there is majority support by the members of the
bargaining unit to the
Labor Relations DMs«ln il f1e regilnal office denyi'g registrabl mat be appecied
by lle ~ lriln kllle BlleaJ requesting union. Once the majority
support is confirmed and the requesting union
Yttil ten (10) days from~ d notk:e tiered.'
. does not fail to complete the
requirements for SEBA certification during the
3 Referri1g kl ildeperdent lllions, local chaplels llld \'Krl:ers' associcfu\s, as
~llshed from federations, nalional
trials, ilciJsby tllia'ls, tade lllion cenll!ls !lld V1eir klcal
chaplers/cll<nllo::as, iliEs In! rnerrber agaizations validation
conference, the requesting union is immediately certified by the DOLE
Yttlose appica1m fa registration as wei as defial or CII1Cellalion or revocalil1
d regislr.iion Is cognizlille by lle BI.R Regional Director as the SEBA without
conducting a certification election.
Dilicilr il til ~ilallnl exckJsM! )JI'slicioo fllfla).
4 Spedicaly died as exa!plil1 kl Med-Mlie's )Jistiln is cmcelation d lriJn
registibl, IMJ' Section 1~. RUe I, B<xi: As a consequence of
this latest change in the Rules, it may be said that the
v, rues kl ~lle Labor Code, as armded by~Jepam~l~Onler No. 40-03, Series d 2003,
feb. 17, 2003!. DOLE Regional Director, in a way, is
now empowered · to rule on a
s Section 3, Rule Jl rJ. 11e Med-Arblralioo Rules. S~Vc~; See a1so Sedion 4, rue
XI, Book vct 111e rues kl ~ 11e
Labor Code, as anerKied l7j OepmentORler No. 40f.03, Saiesd2008 p:tM 31, m).
"representation" issue which, technically speaking, fulls under and is covered by
the
' ~~from cases tM:lM'g ~CBAs Yttiil fallllderlle01Vi'8Pistiln dllellROim.
general class of "inter-union disputes" that falls within the jurisdiction of the
1 secuoo 4 ~ Sedbl51. Rule XI, B<D: v,~U~sm~toe t.mCode. as anended b'f{)epalmelt
Oller ttl.
40-m, SEries d 2003,lfeb. 17, 2003J, In! as rerurbered b'f Depa1mert QtEr No.
«<f..J, SEries d 2008 [Ott 30, Mediator-Arbiter. In fact, the very
Request itself speaks of"SEBA Certification," a
2008J.
relief that is not the consequence of "Voluntary Recognition"- the original remedy
a Sedion 4, Rue VII, DepaVnent Older No. 40-1-15, SEries d 2015 ~07. ~5}.lhlertlis
sAailn, tile DOLE intended to be replaced by this
Request mode.
Regooa Dmttlr, bebe v.t1om 111e ReQue& fa SEBA Cril::atioo is lied, shcxit
'*
more than one (1) legitimate union, in which event, the DOLE Regional Director
exclusive jurisdiction to issue a "SEBA Certification" under any of the modes3 of·
is required to refer the Request directly to the Election Officer for the conduct
of a
selecting a SEBA, it is not surprising if the issue of the validity of the
exercise of
certification election3 which should be in accordance with the Rules4 that state,
in its
similar power to issue the SEBA Certification by the DOLE Regional Director
Section 2, Rule VIII, that the "(Request) shall be heard and resolved by the
would be raised in an appropriate proceeding.
case, the Regional Director should refer the same to the Mediator-Arbiter for the
only one (1) legitimlite union, and the requesting union or localfliils to
complete
the requirements for SEBA certificution during the validation conference bt:fore
the
· DOLE Regioncl Directoi", in which event, such Request should be referred to the
Election Officer4 for the conduct of certification election5 which necessarily
would
mean that such certification election should now be conducted under the
jurisdiction
Ii
DIRECTOR
At the outset, it must be stressed that reference in the law and pertinent
of the Mediator-Arbiter to whom the Election Officer is duty-bound to report the
i' rules to "BLR", as fur as the issue of jurisdiction is concerned, should
appropriately
outcome of the election proceeding.6 Certainly, the ensuing certification
election mean "BLR Director."
This is as it should be because "BLR" is a generic term that
includes not only the Med-Arbiters and DOLE Regional Directors but the BLR
The BLR Director exercises two (2) kinds ofjurisdiction, namely: original
provisions of the federation's constitution and by-laws. It agreed with the
following
9
Verceles, 8 is relevant Petitione? here claimed that under the Implementing Rules!
violation of or disagreement over any provision of its constituti:m and by-
laws."1
it is the DOLE Regional DirectOr and not the BLR (DirectOr} who has jurisdiction
over intra-union disputes involving federations which, in this ~. pertains to the
election protests in connection with the election of officers of the federation
t IV.
may be appealed to the BLR DirectOr and those that may be appealed tO the DOLE
1 The~~ d lhe BlR Dim' is disaJssed i1 i:ldlerseclixl bela«.
Secretaiy, both of whom, based on law and jurisprudence, are possessed of exclusive
2 As cisti'glitoed from -petibls b' ccn:elatkln d legislratioo d Rlependent
lrilns. b3 ~ 8ld v.ake!S' appellate jurisdiction over certain
cases decided by the Med-Arbiters, DOLE
assa:ia1cns, a; proWled i1 Sedm3, RUe Hdlhe Medllrlllr.miRUes ~tal slales:
"SEC. 3. Juisdicloo d lhe Reglooal
lhcb'.· The Reglooal {il!Cb' sha'l exen:ise ~.. 8ld exciJsNe )Jicltirl OlfS
applcalon b' lriln regisetion,
jurisdiction. The DOLE Secretaiy has no jurisdiction over decisions of the BLR
s Sedioo 5, lUI IV, BOO\ V, Rules b ~lheLaborCode,m ll11l!llded
byOepcrtirentOrderNo. .mJ, Series d Director rendered in
the exercise of his appellate jurisdiction over decisions made by
2003, lfoo.17, 2003) lrldz lH1henrnended by Depa111'eltOtderNo. 40005,
Series'OI2005, Sept 13,2005. Med-Arbiters and DOLE Regional
Directors in the exercise of their respective
6 As~ tan cases iMMrJ si"gle-enlerpri CBAs ~tal fal \Rierlle j.lisditOOn
d.theOO!.E Regiooal Diecb'.
7 Sedioo 4, ~ XI, Boat Vd lle ~ b mpenent lhe Labor COOe, m ii1Blded by Oepment
Order No. 40f.Q3,
original and exclusive jurisdictions, the reason being that such decisions are
final and
Series d 2008~0ctlbB' 30, 2008].
inappealable.
GR No. 168583, Jutt 26, 2010.
Petitioner was eecel lie Natiooa VK:e Plesidert a! FFW ilthe NalXm CooYerdiln
held at SIJJi: kli!maOOnal Hole!
<mJ~ (ly OlfS lhe sftliYJ qJpOSitkxllrld 1Xote5t of respoll(!ootAitf. Emesb
c. Veroeles, a delegale '> 11e ~
ll1d presldentaflklivefsily oflhe East En1Jioyees Association (IJEEA-
Ff'll)v.tlk:h is 111 aftiliale llliln ofFFW. 1 ~suppled.
are appealable directly to the DOLE Secretary by virtue of Article 272 [259] 1 of
the .
Decisions in the cases falling under the original and
etclusivejurisdiction LaborCode.
·
of the Med-Aibiters are appealable as follows:
may be appealed to the DOLE Secretary within ten (10) calendar days
relevant and related to labor relations, are appealable to the BLR Director:
d 1he elediln have been Wllaled. &K:h ~ shal be deciled Ylillil tifi!en (15)
c3erdcr days.' POOr b l1e anendmen!
ct Ar1i:ie m 125Q1 byRA No. 6715,1he d9::isioos ctthe MidArtliU i1 c:edifk:aioo
etedi:ln cases ae ~ b the (I) Visitorial
cases under Article 289 [274], involving examination of
llR Na.¥, lley ae ~ b 1he DOLE Seaellly. (A' Pline Seariy SeM:es, nc. v. Hoo.
Secreay cl Lalcr, G.R. books of
accounts of independent unions, local chapters/chartered
No. 91987, .u; 17, 1995). I nu;t be er¢asimd llat as tr as~· displals n cooamed,
lle decisklns d fle locals and
workers' associations;4
Me6A1biers 11ereoo ranci1 appeaable b the BlR (See Sdl11 111 Rule Ul, t£Ml Mmil
cl f'roceda'es fer
Ccrdaioo llid Pr8veniMl Midalon Cases).
(2) Union registration-related cases, such as:
2 il case lhe ~is made ila~lllCiga'iled eslablisl '! :l:!l lid1'•mll el l'l nh'Vih
oott ooe{1) leglinale lri.:rl, ll1d l1e ~ m cr a) Denial of
applications1 for union registration of independent
kx:al fais b c:aJ1111* 11e ~ tJr SEBA adi:alix11bi111he Yllli*1 CCI'Ifaena! beb'e
fie OOlf Regma unions,
local chapters and workers' associations;
lletb', ., wti:h evert, uh ~ sln*:l be Rifenal b l1e Elecbl ()ffioer b' l1e caW:t
cl adicatioo eledioo
(Secbl4, lUI VII clfle Rules b krcJ1ement lle Lalor Code. a>llll'lel'lded by
{)epcltmert Otler No. 40+15, Series cl
zt15 [Sepmber07, 3l15J.lhe eledioo stnil beCOII!Uild il tmlllllllceMh IU!
IXUlered.), l'lf1i11 necessatjw:xij
1111911\at such ISIIi3ixl e1ec1oo shoUd now be c:oocbBIII'Ider 11e )lisdicbl
cite Mdalor-Arbie' tl vron t1e
8ectioo Ollicer is clJiy-bru1d tl report 1he outane d lhe eledil1 ~· Celtny, lhe
ensui"G crik:alioo elediln 1 SUpra
l3'd"d be cmb:ted l.llilerlhe didoe cllle DOLE Reg«m DiedDr M!loot the~ d te
t.'edialor-AibEr W1o, 2 Sedioo 18 ~ Sdoo 171
Rule VIII, Book V, ct lhe RUes tl ~ lle l.alxrCode, as ;mended byOepatment
lllderllelaw, is lle ooe possessed cl1he OO;Jilal Mel erd.Sie ~ !Mlr aiftiication
elecbl cases, ilckJdivJ lhe Older No. 40-F-03, Seresd2008
[Odllber30, 2008l
proc:lillQioo cllle Mrilg SEBA. (See Sectkl1 21, IU! DC, Book V, RUes tl ~ l1e
Lalcr Code, as cxdered 3 ld.
reruOOered bySedioo 17, Depmoot Order No. 40+15, Seres ct2015 JSeplenter07,
2015). Tlis sectioo was OO;J~ ~ The BLR arm, not 11e
oo..E Seaeay, has lhe awe~ate aJI1aiy CMll' decRins rJ 11e DOLE RegilM lillCDs
ruriJered Secb1 3l, pa- Oepment Older No. ~.Seres d 2003, [Feb. 17, 2003], but 1
was~ re- i"MM'g examams m rJ
accrurts 8'l prooided under Rule 11 cite Rules ct Procedtre oo ~.
rurllered tl Sedioo 19, pa-Oepa1mentO!derNo.40.f.@, Seriesof2008 (Oct 30,
2008)). issued 00 Apfi
10,1992. '>It 'SEC. 3.Jurisdiclon tithe Regional Diectl:!'.• TheRegionaiiAredcrs!
I51 exertise OO;Jilal
3 Secbl5, lUI VII, il rela&ln b Rt*ls VIII Mel IX, Depa1melt0nler No. om15, Series
d 2015{Septe!mer 07, 2015].
n-
CIIAmRVIll
liAR REVIEWER ON lABOR lAW
)URISDicnON AND REMEDIES
737
736
b. Cases not appealable to the BLR Director but to some other labor
b) Revocation or cancellation2 of registration of said unions;
officials.
(3) Notice of merger, consolidation, affiliation and change of name
of said
unions and or petition for denial thereoe
For greater clarity in presentation and to avoid any confusion, it is worthy
(4) CBA-related cases, such as:
to mention that the decisions of the DOLE Regional Directors in the following cases
a) Application for registration of single-enterprisl CBAs or
petition which are not related to labor relations
are appealable to the DOLE Secretary and
for deregistration thereof; 5
not to the BLR Director:
b) Petition for denial of registration of single-enterprise CBAs
or (a) Visitorial (inspection)
cases under Article 37;1
denial of petition deregistration thereof.
(b) Visitorial (inspection) and enforcement cases2 under Article 128,
As far as No. 1 above is concerned, appellate authority over decisions of
(either routine or initiated through a complaint);3
the DOLE Regional Directors involving examinations of union accounts is
(c) Occupational safety and health violations;4
expressly conferred on tlle BLR Director tmder the Rules of Procedure on
(d) Cases related to private recruitment and placement agencies (PRPAs)
Mediation-Arbitration, 6 to wit:
for local employmen~ such as:
administrative offenses;
"SEC. 3. Jurisdiction of the Regional Director. - The
Regional 3) Complaints for
illegal recruitment; a.11d
Director shall exercise original and exclusive jurisdiction over
application for 4) Petition for closure
of agenC"/
union registration, petitions for cancellation of union registration
and
complaints (or examination ofunion books ofaccounts.
Additionally, their decisions on small money claims cases arising from
SEC. 4. Jurisdiction ofthe Bureau.-
labor standards violations in an amount not exceeding P5,000.00 and not
accompanied with a claim for reinstatement under Article 129 are appealable to the
XXX
"(b) The Bureau shall exercise appellate jurisdiction over
all cases NLRC.
originating from the Regional Director involving union registration
or
cancellation of certificates of union registration and complaints
fOr
1
examination o(union books o(accounts."
1 'Ar1k:le 37. VSbial Power.- The Secreay d Lim II' his dllf aJhJrized
represenla1M!s may, ct atrj line, ilspect lie
The language of the law is categorical Any additional explanation on
the prerrises, lxxisd ;mxns Md rerordsd
atrJpe!SCII crerlliy covered by lis Tl!, requie I tl Slbritrepats regulcl1y oo
matter is superfluous. It is thus dear then that the DOLE Secretary has no
appellate presailed loom, Md a::t oo
Wllali:x1 d atrJ prrMsix1s ct t1is Tile.' (Referriv tl Tie I [Re<:niiJnB1I Md
PB:ement d
· jurisdiction over decisions of DOLE Regional Directors involving petitions for
WOO<E!ISL Bod< I, Lim Code).
8
2
VJSiiDrial cases IMWe i1spedioo d~ tl deenW1e et:Jl1llcm Ytilllim stnfads; IW1Ie
rixtementcases
examinations -of union accounts.
iwcMl issualoed~ ordefsald rdsrlexeaDil.
Based oo 81e ~ ~ d MDe 128(b), Labor Qxle, whidl stales: 'M ooiiJ Issued by lle
dllf llllhorized
relation t1 Sedb13(a), rue Book HId the RUes tl ~lie Labor Code).
.
• As disliYJuiSf1ed tan cases i'Mlt.b;lf~Uti.en'c>bfer CB.As v.tiD lit IIller lie
~ilal jJistiJn dlle aR Diectlr. 4 soom a 6(8) Rue VI [Hea'lh end
SlietfCasesl dlte Rules mthe llspostioodl.rW SliJ1datls Cases nile
Regiooal
s Sedioo 4[fonnerly Section 5], Rule XI, BOOt v, Rules~ ~Ileum Code, as crneOOed
by Depa1ment oroer No. Offices v.ttiil piMJes: Sectioo 6.
Review by l1e Seaelily. -{a) The Secretary ct his 0\\11 illialvecr~ lle requestd
40-m, Series d 2003, feb. 17, 20031111d as re-I1Uil'tlered byDepment OnlerfolQ.
4Q.f.o3, Series a 2008 [Ocl30, the~ R1'll' ~. may r!M3wthe aderd the
Regi:xlal Diecb'v.ti:h shal be itmediall!oY filalllld exeJJk:l:y
2008]..
uness slir{ed by l1e Secret:ry upoo JlOSiil:l by l1e ~ cl a I8ISlMlle cash oc ~
bond as hed lrf lhe
6 Issued (11 ~~~ 10, 1992.
Regi:xlal Dim.' See also the~ parlfOl~ of Arlk:le 128(b), L.abcr Code.
7 ltaics ll1d 111deritilg supplied.
5 Section 62,1Jepa1ment 01ller No. 141-14, Seriesof2014, tm. 20,2014.
a Bftsv.~.GR.No.120220,June16, 1999.
738 BAR REviEWER ON lABOR lAW
CHAPTER VIII 739
being the filing of an original special civil action for certiorari under Rule 65
of the
3.2. VALIDITY OFREFERRAL TO BLR OF AN APPEAL
Rules of Court5 In the case of decisions rendered by the BLR Director in his
ERRONEOUSLY FILED WITH DOLE SECRETARY.
Court and that is, through Rule 45 petition for review on certiorari.
4. APPEALS FROM DECISIONS OF BLR DIRECTOR RENDERED IN HIS
ORIGINAL JURISDICTION.
VL
Decisions in the cases falling under the original and exclusive
jurisdiction ADMINISTRATIVE FUNcriONS
OF THE BLR AND LRDs
of the BLR Director are all appealable to the DOLE Secretary, to wit:
The BLR and the Labor Relations Divisions (LRDs) in the DOLE
(a) Complaints and petitions involving the application for
registration, Regional Offices have concurrent
jurisdiction over the following administrative
revocation or cancellation of registration of federations,
national functions:
unions, industry unions, trade uniQn centers and their local
chapters/chartered locals, affiliates and member organizations;
2 ld.
+- 4 lhe person 4tdged illhct ~bylle Bl.ROim'may appeal bile DOLE Seae!ay.{See
Seciln 1, Rule XXII~
3
,.
CHAmRVIll 741
1
5. Copies of orders and decisions of Voluntary Arbitrators. 1
discretion of a judicial nature.
submit the case for voluntary arbitration because the bargaining union of which
F.
they are members, refused to join them in the preventive mediation case they
NATIONAL CONCILIATION AND MEDIATION BOARD3
filed with the NCMB. The bargaining union, being the party to the CBA, is
2
1. NCMB IS NOT A QUASI-JUDICIAL AGENCY.
were all absorbed by the NCMB under the law which created it.
2IXJ7, 514 SCRA 346. ~ paMlf has been desailed by tie ~ Ccut iltle b'II:MirJ nmner.
'Quasi-
effect. His opinion is based on the facts and the law involved in the controversy
2. CONCILIATION AND MEDIATION, MEANING.
before him.
Both the terms "conciliation" and "mediation" refer to a process
It may thus be observed that conciliation is more formal than mediation
whereby a third person usually called Conciliator (in case of conciliation) or
in the sense that the Conciliator's opinion, unlike the Mediator's, may be
Mediator (in case of mediation), intervenes in a dispute involving two or more
binding on the parties, although it may be merely temporary in character.
conflicting patties for the purpose of reconciling their differences or persuading
them into adjusting or settling their dispute. The Conciliator or Mediator
4.PRIVILEGED NATURE OF THE INFORMATION IN
normally does not make or render any decision, his role being confmed to the
CONCILIATION AND MEDIATION PROCEEDINGS.
functions afore-described.
Any information· and statements made at conciliation proceedings
3. DISTINCTION BETWEEN CONCILIATION AND MEDIATION.
should be treated as a privileged coinmunication and thus may not be used as an
1
mediation. The reason is that in both cases, a neutral third party (called
matters taken up at conciliation proceedings conducted by them.
Conciliator or Mediator) is tasked to assist two or more opposing parties in
finding appropriate resolution to a dispute.
The privileged nature of the communication applies not only in cases of
conciliation and mediation proceedings before the BLR, its Med-Arbiters or any
Philippine law and jurisprudence do not embody any specific
of its hearing officers but also in similar proceedings conducted by other labor
distinctions between these two as in fact, there appears to be no universal
officials, such as the Conciliators-Mediators of the NC:MB as well as the Labor
definition of these widely accepted altemative modes of dispute resolution.
Arbiters a.'ld the Commissioners of the ~'LRC.
In the NCMB, the hearing officer is called Conciliator-Mediator. There
For instance, in modifying the award of annual salary increases given
is no separate classification between conciliators and mediators. When the
by the DOLE Secretary to the employees under the CBA in the case of Nissao
Conciliator-Mediator performs his task, he does not ma.l<e any distinction when
Motors Philippines, Inc. v. Secretary of Labor and Employment/ the
he is acting as Conciliator or as Mediator.
Supreme Court pointed out that it cannot sanction the award made by the public
Administrator that was sourced from the confidential position given to him by
mediation lies on the extent of the power and authority granted to the neutral
petitioner company. The reason for this is simple. Article 239 {233] of the Labor
third party.
Code prohibits the use in evidence of any confidential infonnation given during
In mediation, the Mediator normally facilitates a deliberation or
conciliation proceedings. The NCMB Administrator clearly breached this
discussion of the issues between the parties. He may or may not offer any
provision of law.
opinions on the strength and .weaknesses of each party's positions and
arguments. Thu:s, mediation may be classified into two, namely:
3.
PREVENTIVE MEDIATION
I. Facilitative Mediation where the Mediator does not make or offer
any opinion;· or
1. PREVENTWE MEDIATION AS A REMEDY.
2. Evaluative Mediation where the Mediator offers an opinion which
"Preventive mediation," as a remedy, is not found in the Labor Code.
is not binding on the parties.
But under the law which created the NCMB, it is expressly stated that one of its
3
It bears stressing, however, that regardless of which of the 2 methods
functions is to provide preventive mediation to disputing parties. It covers
above is chosen, the Mediator is not empowered to impose his will on the
potential labor disputes that are the subject of a formal or informal request for
parties.
In conciliation, the Conciliator is given more power and authority in
, Miele 239 {2331 Lalor Code; Sedion 2, Rule XXII, 8ooll V, ~ ID kfcllemenllle
Labor Code, as emended by
of lockout, the NCMB may, motu proprio, convert the same into a preventive
The term "preventive mediation case" refers to the potential or
CHAPTER VIII
747
(3) The written recommendation must be formally endorsed to the
It is clear, according to San Miguel Corporation v. NLRC/ that the
Regional Branch Director ll for approval.
moment the NCMB orders the preventive mediation in a strike case, the union
(4) The conversion must be done before the cooling-off period expires
thereupon loses the notice of strike it had filed. Consequently, if it still
defiantly
or before the union conducts its strike balloting.
proceeds with the strike while mediation is on-going, the strike is illegal.
(5) Parties concerned must be formally notified of the action taken by
In the case of NUWHRAIN v. NLRC,z where the petitioner-union
the Regional Branch Director through a letter signed by the
therein similarly defied a prohibition by the NCMB, the Supreme Court said:
Conciliator-Mediator handling the case and approved by the
"Petitioners should have complied with the prohibition to strike
Director U.
ordered by the NCMB when the latter dismissed the notices of strike. after
(6) The notice should be dropped from the docket of notices of
fmding that the alleged acts of discrimination of the hotel were not ULP
strike/lockout and to be renumbered as a preventive mediation
case hence not 'strikeable.' The refusal of the
petitioners to heed said
and a conference thereon should be set on specific date/s. 1
proscription of the NCMB is reflective of bad faith."
See Section 3, Rule 1. Rides on 111e Disposition al.liJa Sfandads cases i1 the
RegiJnal Oftices [Sept 16, 1987); Alml v.
4 G.R No.88210,Ji11.23,1991, 193 SCRA223.
De laW, <3.R No. 82488, Feb. 28, 1990, 182 SCRA886; Sal Mguel Colporation v. The
Hon:CA, G.R. No. 146775, JM.
5 Per DOLE we11sae at http:/ftMw.dOO.gov.phlpagesMew/7; Last ca:essed: .b1e 30,
2014. 30,2002.
are in charge of the administration and enforcement of labor standards within their
4) Petition for closure of agency;'
respective territorial jmisdictions.1
(g) Cases submitted for voluntary arbitration in their capacity as Ex-
2. JURISDICfiON OF THE DOLE REGIONAL DIRECTORS.
Officio Voluntary Arbitrators (EVAs) under Department Order No.
unions; 7
Placement of Workers], Book I, Labor Code.
(b) Visitorial (inspection) and enforcement cases3 under Article
128,4 (i) Notice of
merger, consolidation, affiliation and change of name of said
(eitherroutine or initiated through a complaint);
unions and or petition for denial thereof,8
l
(d) Occupational safety and health violations; 6
T l9,}isbalion Clld ~ for exMila1bl olllins txm ci ~:See aso SecOOn 1, RUe II,
Rules ci l'locelllreoo
MediaOOn-Aibitl.
4 See Miele 24312361 <I lie l.alxr Code v.ti:h pMies: 'M 243 [236].ll1rill ci
regi;1rc6Jn; appe;t The deds01 <I fie
pesailed bms, Clld lK:t oo violmi ci IITf plrMsions <I llis life.' (Relenh.l tl
Tie I ~ ll1d F\mnenl ci regisr.m1 ct ant leglinale
laba agcrizalkrl, .net~er nalkJnal or local, siial be amled by lie EUeau n has
reason to
wakelsl. Book I, t.mCode).
beieYe, a1er dJ! lmilg, lhlt lie said liixr ag<l'lilalioo oo kJrGer lllllllt CXIe a
IOOI'e rl fie mqtianen1s hereil
3 lflsbial cases iMWe ilspedion ci estltistmertl b deBni1e ~ wlh labaslinl!rds;
v.f1ile enbr8nent cases presai)ed."
7 Section 3, RE n fllle ~ 1U!s. Sl,..a; See aso Sedkrl4, ftOO XI, 6odt Vd 118
Rules b ~ lle
mwe lssuillce riC001Jia1Caordels n1 n «execution.
4 Ar1i:le 128 is riled 'VisUialnl Enfatement Paover.'
Lalor Code, asanended 111 DepaitmertOnfdl.~-00. Seriesof2008p:tblr 30, 2006).
5 Ar1i:le 289[2741 is entitled 'VISbial f'a.oier.'
e Section s. IU! N, Book v. Rules m~ lle t..ctxr Code, as llllellded 111 Depatment
Onler ttl. ~. Series ct
6 Sedkrl6 ct RUe VI JHeallh n1 Sarety CasesJ c1 11e Rules oo 11e Disposition r1
t.m Sla1dads cases nile Regiln<i 2003,tf'eb. 17, 2fiJ3) ll1d
as b1herll'!leOOedbyDepcnnei110!der No. 40Mi, Seriesct2005, Sept 13,2005.
tftes.
9 As a!Sti1gulshed from .cases ~ ~ C8As IMi::h fallllderlle •
j.risdiclion <1 fie BIRib:lor.
=
1 As~ from reauiment ll1d placement ci 'MXkers tJr !M!1SeiiS Eflllloyment v.ti:h
fals under the j.Jiisdictioo of 1o Section 4ttxmertf Sedkrl5),
Rule XI, llc:d V,IU!s to t11Jiemeii lie Lm Cole, as anended by l:lepamR Older No.
the Ph~ Overseas ErrcJiatment Admi1islraOOn (POEA).
40-m, Series <t 2Jl03, {Feb. 17, 2003]. and as I&OOITbered by Oepmelt Older No. ~.
Series r1 m (Oct 30,
SecOOn 8, Oepa1ment Ord!J No. 141·14. Series ci 2014 (Revised Rules Cl1d
RegulatirJs GoYemilg ReauiiJnent Clld
~for
6
Placement tJr local EII1lklyme.11), Nov. 20, 2014; See previxJs piO'visiln oo
this matter il Sedioo 36, Rule VII, Rules And 11 t1is si!ua1oo, 11e
OOLE Regiooal Diecir, before \\born lhe SEBA Certification is led,
s1oi1 Iefer f1e
Reg~SDJns ~ PMte RecnitmentM<I Plmnent¥qulocal ~Jooes. 1997. See aso NaOOM
Request fer SEllA Cel1ifx:atiorl " lie Mlci<U-Mlilel' lor lie dell!mi1abl cllle
propriety d conc1Jdi"Q a oerlificabl
FederlMiolt.mv.Laguesma,G.R No.123426,M<Itil10,1999.
elildioo, ill'ltik:hGSe,l1e Medialor-Aibiit ll(M hilstle jJrisdiction b
decideflecertifi:alicrleledirl issue. (Secioo 6, Rule
9 SecOOn 54, il relation to SecOOn 51, Depatment Order No. 141-14, Series ci
2014, llil. VII, i1 relaliln b 1U!s
VlH ald IX, Depa1mert0nler No. 4G+15, Series ci 2015 {Sepleniler 07, 2015D.
ttllefiiJS! be
10 Sedioo 45, Oepa1ment Ord!J No. 141-14, Series ci 2014,1lid.
11100e that v.ilen fie Request b' SEBA Cel1i:aiD1 is made il oo lllaQOOillld
estabflshment Mh mcxe llan one (1)
CHAI'TER VI II 751
750 BAR REVIEWER ON lABOR lAW
JURISDICfiON AND REMEDIES
L
Pursuant to their visitorial power under Article 128(a), the DOLE
(a) access to employer's records and premises at any time of the day
1. LABOR STANDARDS.
or night, whenever work is being undertaken therein; and
"Labor standards" refer to the minimum requirements prescribed by
(b) the right:
existing laws, rules and regulations and other issuances relating to wages, hours
(1) to copy from said records;
of work, cost of living allowances and other monetary and welfare benefits,
(2) to question any employee and investigate any fact, condition
including those set by occupational safety and health standards. 1
or matter which may be necessary to determine violations or
2. SUBJECT OF THE VISITORIAL AND ENFORCEMENT POWERS:
which may aid in the enforcement of the Labor Code and of
THE ESTABLISHMENT AND NOT THE EMPLOYEES THEREIN.
any labor law, wage order, or rules and regulations issued
pursuant thereto. 1
At the outset, it bears to stress that the subject of the visitorial and
enforcement powers granted to the DOLE Secretary or his duly authorized
5. ENFORCEMENT POWER OF REGIONAL DIRECTORS UNDER
representatives under Article 128 is the establishment which is under
ARTICLE 128(b).
inspection and not the employees thereof.
The statutory basis of_ the authority of the DOLE Regional Directors to
•
Consequently, according to Maternity Children's Hospital v.
administer and enforce labor standards is found in Article 128(b) of the Labor
Secretary of Labor/ any awards granted are not confrned to employees who
I Code, as amended. 2
signed the complaint inspection but are equally applicable to all those who were
employed by the establishment concerned at the time the complaint was flied,
I Pursuant thereto, the DOLE Regional Director, in cases where
the
4
following:
to whom it should be endorsed by the Regional Director.
MK:1e 128{a], tm Code; Section 1, ~ X. Book Ill, PJJies Ill ~ fle Lalor Code, as
anended by llepatnent
(Enforcement Power).
Order No. 7-A. Series a 1995; Section 4, fUll, RUes oo 81e Dispooi1b1 d tm
St:ndanls cases nt.e RegkM 01li:es
labor 81d ~ See also SeciKxl 2, Rule I, Rules CX1 fle DisposiOOn of labor Standclds
Cases il the Regional
legitnale liixr agillizatkxl, 11e Meci-Aibiter lites a.oer from the DOLE
Regiooal Oiecb' In 11e ma!fer a hea1i1g ald Oflk:es.
rescMl;l the issue a certifK:a1ion electioo.
· Article 128[b], t.axJCode.
1 Section 7, 1U! I, Rules oolle Disposition of labor Standards Cases i1 the
Regional Offms [Sept 16, 1987]. Section 1' Rule
Ill, Rules 00 the Disposition of labor Sllr1dMis Cases i1 fle Regional Offices
[Sepl16, 1987].
2 G.R No. 78909, .ble 30, 1989.
··--·!l;J·<-.
I
For the valid exercise of the visitorial and enforcement powers
On No.3 above:
provided under Article 128, the following three (3) requisites should concur:
I) The employer-employee relationship still exists at the time of the
initiation ofthe action;
3
I
inspection; and
3) The employees have not yet initiated any claim or complaint with
applies after the amendment of Article 128(b) by R.A. No.
the DOLE Regional Director under Article 129 (Small money
7730. This means that the visitorial and enforcement powers of
. claims not exceeding P5,000.00), or the Labor Arbiter, under
Article the DOLE
Regional Director to order and enforce compliance
224 [217] (Money claims exceeding P5,000.00).
with labor standard laws can be exercised even where the
money claims cases arising from labor standards violations in the amount not
1 Arti;le 128 Icl.lbid.;Sedioo 3(a] Md 131 Rule X. Book Ill, Ruk!s tllmplement
fle UblrCode.
2 Article 128 ro. UblrM.
3 Rizal Security &Protective Se!vices, Inc. v. Hon. Malaan, G.R No.124915, Feb.
18, 2008. 1 People's Broadcasting
Service (Bomba Radyo Phils., Inc.) v. The SecrelaJY of the Department of Labor and
4 See the 2012 En Bane Resolution in People's Broadcasting Se!vice (llontlo Radyo
Phils., Inc.) v. The Seaela!y of ~loyment supra.
the Oepartroonl of Labor and Employment, GR No. 179652, Meith 6, 2012, 'Mlich
modified its earlier May 8, 2009 2 ld.
decision.
3 Cirtneo Bowling Plaza, Inc. v. Sensilg, G.R No. 146572, Jiri.14, 2005,448 SCRA
175, 186.
s Batoog Buhay Gold Mines, Inc. v. Sec. Dela Serna, G.Rt«l. 86963, Aug.6, 1999,
37{)f'IU72. 4 V.L. Enterprtses v. Hon.
CA, G.R No. 167512, Marth 12, 2007.
..........
"""'
755
exceeding P5,000.00 and not accompanied with a claim for reinstatement under
• If the employment relationship no longer exists, the complaint
Article 129 of the Labor Code.
falls under Article 129 for as long as the terminated employee
Article 129 contemplates the recovery of wages and other monetary
does not raise the issue of legality of his dismissal or asserts any
claims and benefits, including legal interest, owing to an employee or domestic
WOrker Or kasambahay, I arising from employer-employee relations provided the
On No. 3 above:
reinstatement; and
• When claim does not exceed PS,OOO.OO but employee prays for
DOLE Regional Directors), Article 129 refers to the adjudication power of the
of the complaint, the case necessarily falls under the coverage
of
with labor standards, wage orders and other labor laws and regulations; thus, the
1
2
This i; naN the propEJ aid leg8 Wllf d ~ a"peeson l!fl1lk7ied i1 ~ llousellad
servioe IX' househelpel" per
RA No. 10361, oll1erMse 1ula.wl as '!loolestk:Worke:s Pd <r"Batts~.· ~on .!nay
18, 2013.
ld.
I i
CHAITER VIII
adjudicatory power by said labor officers but to the exercise of their visitorial
757
other hand, Article 129 confers upon the DOLE Regional Directors adjudicative
power, that is, the power to hear and decide any claim for recovery of wages,
I and enforcement powers under Article 128.
simple (small) money claims, and other benefits. The said provision deals with
small money claims of employees or persons employed in domestic or
m.
household service arising from severed employer-employee relations. 1
1. JURISDICTION OF DOLE REGIONAL DIRECTORS.
4. DOLE REGIONAL DIRECTORS WEAR TWO (2) HATS: ONE, FOR
The DOLE Regional Director has original jurisdiction to issue the
ARTICLE 128 AND ANOTHER, FOR ARTICLE 129.
following:
It is obvious from a reading of Articles 128 and 129 that the DOLE
( 1) Order ofstoppage of work; and
Regional Directors wear two (2) hats thereby giving rise to the confusion as to
when they exercise their adjudicatory power under Article 129 and when they
(2) Order to suspend operation of any unit or department or the
exercise their twin visitorial and enforcement powers under Article 128 as the
establishment if there exists in the workplace a condition that poses
duly authorized representatives of the DOLE Secretary.
grave and imminent danger to the healthand safety of the workers
t:
a. Definiiion.
But if the decision of the DOLE Regional Director is made in accordance with
ir
be expected to cause death or serious physical harm before abatement under the
made to the NLRC.
enforcement procedures can be accomplished. 2
Illustrative of this point is a case decided by the Court of Appeals
b. Correction in imminent danger cases.
entitled Storck Product Manufacturing Corporation v. Hon. Secretary of
Labor and Employment2 Petitioner in this case contends that although the
f Where the employer is willing to make the necessary
rectification, the
issues raised stemmed from an inspection case, the appeal should be made to the
~ where the conditions obtaining in the workplace pose grave and imminent
NLRC and not to the DOLE Secretary because the appeal itself specifically
stated that it is being elevated to the NLRC. Finding this contention untenable,
the Court of Appeals declared that the order of the Regional Director, being an
I danger to the lives and health of the workers and/or property of the
employer,
e.g., boiler tube leakage; defective safety valves; pressure gauges and water
offshoot of an inspection complaint, is appealable to the office of public
column; weak machinery foundations; and other analogous circumstances.3
respondent DOLE Secretary. The provisions of Article 129 of the Labor Code
3. NON-IMMINENT DANGER CASES.
find no application in the present case considering that the instant case stemmed
Where the conditions are not of the types falling under "imminent
from an inspection complaint duly filed with the DOLE Regional Office for
danger" as descnbed above, e.g., poor ventilation, housekeeping, inadequate
alleged violations of labor standards. Article 129, as amended, refers to the
personnel protective equipment and other analogous circumstances, a reasonable
adjudicatory power of the DOLE Regional Directors or any duly authorized
hearing officers of DOLE so much so that any decision/~rder of said
representatives, in the exercise of their adjudicatory power, should be appealed
to the NLRC. But the instant case does not pertain to the exercise of
' Section 4(b), il relatioo iJ Seclkxls 2and 3, Rule VI (Heath and Safety Cases),
RlEs on toe llsposiOOn a1 lltJor Stand<l'ds
' lliti<enshi'e Memxia Hospital, klc. ~.The Hon. Mrilslerd lalxr cn!En1Jioymeni.-
G.R. No. 74621, Feb. 7, 1990, 182 cases ilBle ReJklna~Offols [Sept
16, 1987).
SCRA 5; See also Sbck Product~ Colpoolbl v. tioo. Secrelily« Lalxrand ~ CA-G.R SP
No. 2 Rule 10.12.02, Occupational f'd1 and
Safely Sla1daTJs, as amended
92164,hlg.31, 2006.
3 Section 2, ~ VI (Hd and Safely Cases), Rules on lle Disposlion of Labor
SliniMls Cases il the Regional O!lices
2 CAGR.SPNo.92164,kiQ.31,2003.
[Sept 16, 1987].
give workplace parties real and practical alternatives in the voluntary arbitration
of disputes.
!
ry,
2. JURISDICTION.
COMPLAINTS AGAINST PRIVATE RECRUITMENT
1
AND PLACEMENT AGENCIES (PRPAsl FOR LOCAL
EMPLOYMENT
f
As EVAs, the DOLE Regional Directors and their Assistants have
1 theCBA;
1. JURISDICTION OF DOLE REGIONAL DIRECTORS.
f
(d) Upon agreement of the parties, any other labor dispute may be
acquires jurisdiction over the case shall do so to the exclusion of the others. •
~ submitted to the EVAs for voluntary arbitration.
:
It must be emphasized that this jurisdiction of the DOLE Regional
3. HOW INITIATED.
Directors covers only complaints against PRPAs engaged in local recruitment.
Complaints against PRPAs engaged in overseas employment fall under the
Where a grievance remains unresolved despite bipartite efforts, either
I or both parties may voluntarily bring the grievance to an EVA who has
jurisdiction ofthe POEA.
jurisdiction over the region where the parties operate or work, through a written
v.
I request indicating the following:
CASES SUBMITTED TO REGIONAL DIRECTORS
AND ASSISTANT REGIONAL DIRECTORS FOR
VOLUNTARY ARBITRATION IN THEIR CAPACITY
(c) Such other information that the parties deem vital in the
AS EX-OFFICIO VOLUNTARY ARBITRATORS lEVAs)
immediate resolution of the dispute.
1. LACK OF APPLICABLE PROVISION IN THE LABOR CODE.
4. POWER TO HOLD HEARINGS, RECEIVE EVIDENCE AND ISSUE·
DOLE Regional Directors and Assistant Regional Directors are neither
WRIT OF EXECUTION.
expressly authorized to act as Voluntary Arbitrators under the Labor Code nor
The EVA shall have the power to hold hearings, receive evidence and
explicitly prohibited from acting as such. This is a void in the law which was
take the necessary actions to resolve the dispute. The EVA may conciliate or
appropriately addressed by Department Order No. 83-07, Series of 2007, 3
mediate to obtain a voluntary settlement of the dispute.
designating all DOLE Regional Directors and Assistant Regional Directors as
Ex-Officio Voluntary Arbitrators (EVAs). Its issuance was made in line with the
The decision or award of the EVA shall be final and executory after ten
Constitutional principle on the preferential use of voluntary modes in settling
(10) calendar days from the parties' receipt of the copy of the decision or award.
. disputes and the mandate of the DOLE to promote voluntary arbitration as an
A motion for reconsideration may be filed before the decision/award lapses to
finality and shall stop the running of the 10-day period for finality. No second
DOLE SECRETARY
H.
I 1) Visitorial power;3
topic of on "G. DOLE REGIONAL DIRECTORS, supra. Hence. the same will no
1.
longer be touched in the discussion below.
VISITORIAL AND ENFORCEMENT POWERS
DOLE Secretary in respect to any decision, order or award issued by the DOLE
Regional Directors. -
~
three (3) kinds of power which the DOLE Secretary and/or the Regional
3. NATURE OF THE VISITORIAL AND ENFORCEMENT POWERS.
I and the DOLE Regional Directors who are his duly authorized representatives,
a
repesenlatM!s shal M.oe te pcMI!I" to issue CXXI1llm! orders 10 gt.e
erea mlhe 100or slll1da'ds prrNisOls lis Directors under Article 128 is the
employer-establishment and not the
Code ll1d cMler lcDlr legislatill based on lhe fn:qs ct lcDlr ~ Md
enb"oemenl·ofbls cr ~
SliftoJ qileefs made illhe OOise r1 ilspedion. The Seaelay cr his ~
aJI1orV2d ~ Slal issue employees thereof. Consequently,
in case of a finding of violation of the labor
Mils r1 exeaJioo 10 lhe ~ ilJthoriy b' l1e erDament d lhei" crdels.
exaifi1 i1 cases Y.tlere lhe ool*¥J standards, the awards granted in
the inspection case are not confined to
contest; t.e DfiY,IS rille lcDlr ~ ll1d rimmert oftb1r ll1d llli>es
issues SI.W<*d by dotunently
prtdsVIIlk:h wem notamilered illhe ame rl i1specioo.
hl<Xllerissued byllecll¥ aJihorized ~ctlle Seaelay ctl.m ll1d
~lllderllls Article IIVf (e) Mt perrment ~
blld py of vQation ct, cr muse ct alflcriV, lllder tis Article H.* !ippi'C4lriale
be appealed tJ lle laller. kl case S!lkl ordlr iMMs arooneliry
IIWCIII.Iil. by 11e l!ll{lloyer rmy be perilcBI ~ ilvestigalkln,
beS!Jljec!ID s.mraylisrrissaltanflesel'li:e.
~ 141001le ~ d a cash or suety bond issued by a ~ boodiQ cxxqmy iUt
8IDellled by l1e (f) The SecreBy d L.ax:t ll1d
~may, by 8AJIOilliale ragUabls,. ~ il keep In! maillai1
Seaelaydl.ax:tlrld ~ illhe 1110111~tlllenmelaryamlillleader IQl8llled
tan. such~ recads as
rn<rfbeneteSSaiY il ad of his visi!OOalllld erlorcementpaMliS IJldertris Code.
(c) The SeaeBy ct Lalor ll1d ~ rncrt t.ev.ise CRier stwage II 1\Gk 1r suspn;m
d.opsabls d Blrf IIi!
1 The OOl.E Regionalllied!xs ae 11e tiJ "aJhxizzO ~ d fle DOLE Seaetry refen8l il
il Article 128 C'l
or depment ol111 esttJislment v.f1en ~ dl the law cr ~ nJes ll1d
regulimlS pa;es t.e Lalor Code. They ae il
dage d l1e adn'inist<\tion ll1d enfo!tement d liDlr slllldMis IMI1illleir
respectt.oe
poe ll1d imilertcBiger 10 lhe hdlllld safety dv.at.en; illhe ~- wm
~heirs, a heimJ Bri1Ixial jlisdicOOns. Under
!he amendaDy prrM;ionsdRA No. 6715,1hevisiblalllld enlort:Emintpa.~US of the DOlE
WI be corWdsd bdeEnlile r.t1e1t1er 111 crder b' l1e stwage d\\Gk
orsuspn;kln II ClpEJlltions shal be lEd cr Re'JioM Diecbs were
retained. (See SecOOn 3, rue I,!Uls on lhe Disposiion ct t.ax:t S1a1dcrtls Cases
illle Regional
not. kl case llevillatn is~ b llef!ddtle ~,heshal payfle ~concemed
llei'soms 011ices !Sept 16, 1987);
Atilano v. De Ia Cruz, G.R No. 82488, Feb. 28, 1900, 182 SCRA 886; Sall.tjuel
Colpolation v.
« ww:res ctm:llhe paiod ct such sqJpa!Je ct 1\Gk crSJSpenSioo
cloperalial. The lbl. CA. G.R No.
146n5, .fat 30, 2002).
2 SeepnJraph [aJilereof.
"(d) It shall be IDcrNNI b' 9/rf petSon cr entity il OOsM, il1lede. delay-or
<M1eMte render i1eKedM! t.e ordels d lhe
Seaetay ct t.ax:t inl ~or his GJiy ~ representat;les issued JQSU«ttllle
aJthaily Qflr1Ed
3 This is entxxled n~(a) tlereOI.
763
employees who signed the complaint inSpection but are equally applicable to all
f (a) Article 37 treats of the visitorial power of the DOLE
Secretary and
those who were employed by the establishment concerned at the time the
~
....
to inquire into the financial activities of legitimate labor
organizations or department of an establishment when
non-compliance with t.1e
11pon the filing of a complaint under oath and duly supported by the
law or implementing rules and regulations poses grave and
written consent of at least twenty percent {20%) of the total
membership imminent danger to the health and safety
of workers in the
of the labor organimtiun concerned and to examine their books of
workplace. 2
accounts and other records to determine compliance or non-compliance
with the law and to prosecute any violations of the law and the union
d) To require employers to keep and maintain such employment
constitution and by-laws: Provided, That such inquiry or examination
records as may be necessary in aid of his visitorial and enforcement
shall not be conducted during the sixty (60)-day freedom period nor
within "" powers under the Labor Code.3
the thirty (30) days immediately preceding the date. of election of
union
officials.'.'4
(NOTE: For more discussion on this topic, please refer to the comments
In the instances contemplated under Articles 37, 128 and 289 {274], it
While Article 128 dwells on the visitorial and enforcement power of
is the DOLE Regional Directors, the DOLE Secretary's duly authorized
the DOLE Secretary to inquire into the employer's compliance with labor
representatives commonly referred to in these three (3) articles, who have the
standards prescribed under labor laws and social legislations, the purposes of the
original jurisdiction to exercise the visitorial power granted therein.
other articles are different, thus:
.~~.
Il
DISMISSAL CASE.
pending resolution of the case may thus be issued by the DOLE Secretary
the exercise of the visitorial and enforcement powers belongs to the DOLE
T pursuant to this power. 1
Regional Directors, as the duly authorized representatives of the DOLE
Secretary. The role of the DOLE Secretary is confined to the exercise of his
5. THE TERMINATION NEED NOT BE RELATED TO UNIONISM.
appellate jurisdiction over the decisions, orders and awards of the DOLE
The tennination contemplated under Article 292(b) [277(b)] need not
Regional Directors in cases brought before them for adjudication under Articles
be related to the exercise of the right to self-organization by the employees so
128 and 289 [274]. (See the discussion on the appellate jurisdiction of the DOLE
terminated. Hence, the employees need not be officers or members of a union in
Secretary, infra, which includes this topic).
order to invoke or apply this power to suspend the effects of termination of the
(NOTE: The discussion on the DOLE Ragional Directors' original
DOLE Secretary. It is not a pre-requisite to the valid exercise of this power that
jurisdiction is made and presented under the topic of "E. DOLE
the employees so terminated should be officers or members of a union or that
Regional Directors, 1. Jurisdiction," supra).
the cause of their tennination be related to the exercise of their right to self-
l. LEGAL BASIS.
T DOLE Secretary may validly suspend the effects of such termination by
Arbitrators, as the case may be, are the "appropriate officials" referred to in
2.GROUNDS.
Article 292(b) {277(b)] who may make the preliminary detennination of the
The DOLE Secretary may suspend the effects of termination pending
existence of a prima facie evidence that the termination will cause a serious
resolution of the dispute in the event of a prima facie finding by the
appropriate labor dispute
or is being made in implementation of a mass lay-off. Such prima
official of the DOLE before whom the dispute is pending that:
facie finding will then become the basis for the issuance by the DOLE Secretary
1 Article 292(b} !277(b)J, labor Code, as MlE!Ilded by Section 33, RA. No.
6715; No. 30, NCMl Pliner on Sl!ike, l'tketing 1 No. 12. Brie1iYJ Paper
on RA 6715.
ir1d l..ockool, 2nd Edition, Dec. 1995.
involves only the issue of termination of employment which may cause a serious
prima facie showing that the termination was causing a serious labor dispute,
labor dispute or is in implementation of a mass lay-off; while the power to
certified the matter to the DOLE Secretary for a possible suspension of the
assume or certify labor disputes is applicable to all labor disputes, irrespective
of effects of termination. On this basis, DOLE Secretary Franklin Drilon issued
an
the grounds therefor, provided such labor disputes will cause or likely to caus!!
order suspending the effects of the termination of the union officers and
strikes or lockouts in industries indispensable to the national interest.
directors and directing the university «to accept them back to work under the
Second, the former requires the conduct of preliminary determination
same terms and conditions prevailing prior to their dismissal." Later, on the
of the existence of prima facie evidence that the termination may cause a serious
basis of a petition for assumption or certification filed by the university,
labor dispute or is in implementation of a mass lay-off to be conducted by the
Secretary Drilon modified said order by certifying the labor dispute to the
appropriate official of the DOLE before whom the termination dispute is
NLRC for compulsory arbitration pursuant to Article 278(g) {263(g)] of the
pending; while the latter does not require such preliminary prima facie
Labor Code. He accordingly ordered the university to readmit all its faculty
determination. In fact, prior notice and hearing are not required before the
members, including the 16 union officers and directors, under the same terms
DOLE Secretary may issue an assumption or certification order as held in
and conditions prevailing prior to the dispute.
Capitol Medical Center, Inc. v. Trajano.1
Based on the foregoing, it may be said that suspension of the effects of
Third, the "serious labor dispute" contemplated under the former may
termination has the same effect as assumption or certification as far as the
or may not involve a strike or lockout; while the labor dispute referred to in the
reinstatement of the affected employees is concerned.
latter will cause or likely to cause a strike or lockout.
8. PRELIMINARY DETERMINATION OF PRIMA-FACIE EVIDENCE.
Fourth, the former may be exercised in cases of termination of
The determination of whether a prima facie evidence exists tha: the
employment for as long as any of the two (2) grounds mentioned in Article
termination may cause a serious labor dispute or is L'l implementation of a mass
292(b) [277{b)] exists, irrespective of the nature of the business ofthe employer;
lay-off as would justify the suspension of the effects of termination should be
while the latter may only be exercised in industries indispensable to ti.e national
made at the inception of the labor proceedings. Thus, evidence on this particular
interest.
point may be presented prior to the presentation of evidence in the main case.
Fifth, the remedy under the former is immediate reinstatement pending
The only purpose of such presentation is to ascertain and establish whether the
resolution of the termination case; while in the latter, the remedy is the
termination may caiJSe a serious labor dispute or is in implementation of a mass
automatic return to work of the strikers or locked-out employees, if the strike or
lay-off. Once evidence is presented upon which the appropriate official before
lock-out is on-going at the time of the issuance of the assumption/certification
whom the termination dispute is pending may reasonably and sufficiently make
order or the enjoining of the strike or lockout, if one has not taken place,
out a prima facie finding of such fact, a recommendation to the DOLE Secretary
pending the resolution of the issues raised in the notice of strike or lockout.
for the suspension of the effects of termination may then be properly made.
i.
In the case of University of Sto. Tomas v. NLRC and UST Faculty
Union/ all the sixteen (16) officers and directors of the faculty union were
JURISDICTION
terminated on the grounds of grave misconduct, serious disrespect to a superior
1. TWO (2) KINDS OF JURISDICfiON
and conduct unbecoming a faculty member. As a result of said dismissal, some
i-1.
1 G.R. No. 155690, June 30, 2005.
ORIGINAL JURISDICTION
2 G.R No. 89920, Oct 18, 1990.
The DOLE Secretary has original jurisdiction over the following cases:
CHAPTER VI [[
769
bargaining agent) may voluntarily bring to the Office of the DOLE Secretary,
Nos. 1, 2 and 3 above have been discussed earlier. Nos. 4 and 5
through a Request for Intervention, any potential or ongoing dispute defined
will be discussed below.
below. 2
i-1-A.
4. POTENTIAL OR ON-GOING DISPUTE.
ADMINISTRATIVE INTERVENTION
FOR DISPUTE AVOIDANCE (AIDA)
A potential or on-going dispute refers to:
(b) that may lead to a strike or lockout or to massive labor ur.rest; and
SECRETARY.
5. PROCEDURE.
Intervention for Dispute Avoidance (AIDA), this is a new administrative
procedure for the volunta.ry settlement of labor disputes in line with the
Ail Requests for Intervention should be in writing and filed with the
objectives of R.A. No. 9285,8 Executive Order No. 523 9 and the mandate of the
Office ofthe DOLE Secretary. A Request for Intervention shall state:
DOLE to promote industrial peace.
Upon receipt of the Request, the Office of the DOLE· Secretary $hould
1 See Jln.lfi¢ (g) of Artie 278 [263L l.allor eooe.
forthwith notify the parties and invite them for conference. The conference for
2 ld.
Requests coming from the National Capital Region, Regions Ill, IV-A or IV-B
3 See~ (b) of Artie 292 [2n), l.allorCode.
4 Th6 Is a new foon cllispu!e selllemert i1troduoed by the DOlE Secrelay U1der
DOlE Ciair No. 1, Series cl2006, shall be held at the Office of the DOLE
Secretary unless the Secretary otherwise
Issued oo August 11, ZXl611f bmer OOlE Secretay MLJro D. Blbl, naN
ad"ISIT9lished l1lE!lter cl the Hghest Coli!. directs. The conference for
Requests coming from the other. regions shall be
Th6 was Issued illile l1ilh the OOjecWes d RA No. 9285, olherMse knat.n as the
'AiemaiM! llspille RisiJb1 NJ. c1 conducted by the appropriate Regional
Directors for and on behalfofthe DOLE
2004' (approved 00 Ap112, 20041 ExeaJWe Qder No. 523 daEd Apt 07' 2006 Md the
I1'I<JidcE cllle OOlE tl pnmote
i'ldustial peace.
Secretary. 5
s As nmdaEd under OOLE Cim No.1, Seriesd2006, lbkl.
. 6 As pro.tled ll1der Altide 231 [2251 M1itl states: Altide 231 [2251. Coolefr4ll
pcwe!S cllhe Seaelay d labor. In lhe
exercise d his pcMeiS tnier ills Code, the Secrelaly of lldlor may hold !rTf
pernoo il di"ect or i1direct oonlenllt Md No.1, OOlECi"allarNo.1,
Seriesof2006.
i'11X9! the~ penaties llerefor.
ld.
7 Issued oo August 11, 2006 by bmer OOlE Secretly ArtJro D. BOOn, now
adlstn]uistled merrber cl the Hi;lhest Court. 3 ld.
e Olhelwise kro.Nn as the 'AiemaWe Dispute Resolution Ad. ci 2004' (apprtNed oo
Apri12, 2004J. ~ No.2,1bid.
9 DaledApril07, 2006.
5 No.3,1bid.
reconsideration. The DOLE Secretary took the position that when he assumed
All agreements settling the dispute should be in writing and signed by
jurisdiction over the labor dispute, he was acting as a Voluntary Arbitrator.
1
the parties as weli as the official who mediated the dispute. .
Petitioner subsequently filed a Rule 65 certiorari petition with the CA. Tne CA,
7. PROHIBITION ON DISCLOSlJRE OF INFORMATION.
however, dismissed petitioner company's Rule 65 certiorari petition on the
ground, among others, that the decision of the DOLE Secretary, having been
The parties and the officials or empioyees of the Department of Labor
rendered by him in his capacity as Voluntary Arbitrator, is not subject to a Rule
and Employment who took part in the intervention proceedings are not allowed
65 certiorari petition but to a Rule 43 petition for review which properly covers
to testify in any court or body regarding the disclosures, submissions or
decisions ofVoluntary Arbitrators. 6 ·
positions made by the parties therein?
Before the Supreme Court, petitioner asserted that, contrary to the CA' s
ruling, the case7 is not a simple volunta..ry arbitration case. The character of
the
i-1-B.
case, which involves an impending strike by petitioner's employees; the nature
VOLUNTARY ARBITRATION BY DOLE SECRETARY
of petitioner's business as a public transportation company, which is imbued
with public interest; the merits of its case; and the assumption of jurisdiction by
l. VOLUNTARY ARBITRATION AFTER AIDA.
the DOLE Secretary - all these circumstances removed the case from the
If the intervention through AIDA fails, either or both parties may
avail
themselves· of the remedies provided under the Labor Code. Alternatively, the
parties may submit their dispute to the Office of the DOLE Secretary for
1 GR. No. 1m962, Feb. 26, 2014. AllixxiJh llis case i'l\d.6 ailedsion d lhe DOLE
Seaelay, the pliqlle eiUicialed
relefs.
The Office of the DOLE Secretary is mandated to resolve the dispute within
s See Sedix17 fmey d Aw<rd4Jecisi:Jn), ~XIX (GIWcn;e Madlilely a"MI Vokmy
Mli1ratioo1 Depmelt Order No.
3
sixty (60) days from the parties' submission of the dispute for resolution.
40-03, Se!iesd~issued m~ 17,3Xl3 bybmer"OOLE Secrelayl'a!OOaA Sto. Tomas. kp!
Mies:"Section
7. Fllaity of Awani>Uedsbl. · The dedsiln, mler, resWti:ln a awa"d d lhe vWltaly
afili!aiir a pcroel d volntlly
llllirabs sha1 be li1al iV1d exeamry aiEr Ell (10) calenda" days from ~ d l1e copy
d the iJolllld a decisi:ln by the
"GGideines Ill be{)bserved i1 Appeals Ill the CCIII d Appeals IIlii to lle ~ Crut,
v.tich pn:Nides th<i: '4.Erroneous
Appeals. -Ni appeal taken ~lhe ~Coolta"lle Court .Aweals by lhe M1ll"g a~ mOOe shal
be
1 No.4,1Hd.
disrrissed. "IIi:
2 No.5, 1*!.
7 Rde!ri1g 1D the case docke!ed as NCM3-0CR CAS£ No. NS-02..()28-07.
3 No.6, llid.
CHAPTER Vlll
772 BAR REviEWER ON lABOR lAW
713
5
applicable, lilY representation to the ~ontrary or that he is
deciding the as the president may direct.
These modes of appeal, however, have been completely
case in his C1J13City as a voluntary arbitrator notwithstanding."
eliminated. Heoc.e, there is no more appeal from the NLRC to the DOLE Secretary
Conseque!ltiy, the Supreme Court reversed and set aside the CA ruling
and subsequently to the Office of the President. The current rule is that there is
no
and reinstated the case and directed the CA "to resolve the same with deliberate
appeal from the NLRC's decisions. The only way to elevate the decisions of the
Though appeals from the NLRC to the DOLE Secretary were eliminated,
l. DECISIONS NOT APPEALABLE TO THE DOLE SECRETARY.
presently, there are several instances in the Labor Code and its implementing and
At the outset, it is important to emphasize the decisions, awards or
orders related rules where appeals to,
and exercise of appellate jurisdiction by, the Office of
that are not appealable to the Office of the DOLE Secretary, to wit:
the DOLE Secretary are allowed.6 Unfortunately, there is no single provision in the
RBaiDls eoomssm Mlk:h s11a1 ~eSCWe lhe awea Mho len (10) caleOOa'days ttm the
Slbrissiln aile lastpleactlg
jmisdiction since they can be brought directly to the CA under
Rule 65 reqli'ed or abellnler ils
rules.'
certiorari petition;
2 nacallltn:e v.ill RE 43 rJ. the Rev$!d Alles rJ. Coot. as l!fllllCialed il
L.uzoo Oeveqlmert Sri v. Asrocialioo d
L.uzoo~BriEmpbyees,G.RNo. 120319,0ct6,1995.
4 lis prMied IJ1d« Arli:le 229 {2231: 'Arli:le 229 {223). xxx. {a) Wlhere is
aprim facie Mlenre d OOliSe ddisaelixl; (b) H
made pueiy111 q.dxlsd law; and (c) Hllere is a~ that lhe nalkmlsecurily or soda!
and earoric siOOiity is
threciened.
1 Arli:le 275 [262). Jurisdi:lion wer olher labor cispufl!s. • The VoUlfaly
Albitralor or pMel d. Vcilntay Arblrators, upon 5 NaOOnalfederaiXnoflm'v.
laguesma, GR. No. 123426, Ml!dl10, 1999.
cr;Jreemen! of the parties, shal also hea' all decile al ~labor displies
ilckxivJ lllfai' labor JXactices and b8gainilg ~ ld.
deadock.
1 M I!I1UIIleliDxld lhe Wlioos appeas ID lheOOl£ Secre!ay was made illle 1999
cased National Fedelalkln ci labor v.
2 Arli:le Zl61263J is entitled 'Siri<es, Piie&lg and llx:kouS.'
L.aJuesma, ~ HaNeYer, 1his l1l!1doY.Il needs ID be updated il the lgh! rllhe lalest
ameodmenls ID lhe Lrt.or Code as
3 Per Arli:le 224(b) [217 (b)), il relaliln 1D Altide 229 [223] d. the Lalor
Code. Arli:le 224(b) [217 (b)) prMies: 1he well as pronan:ementd the
Supreme-coort il anumber of decisions prorrulgaled il recent cases.
camissiJn shal have exOOsi.'e ~ ~risdm wer a1 cases decided by LIW Albill3!
s.'
)URISOICflON AND.REMEOIES
scattered in various provisions of the Labor Code, its implementing rules and a
· (c) Occupational safety and health violations;1
number of other rules of procedure as well.
(d) Cases related to private recruitment and placement agencies (PRPAs)
1 iTepcrOOie dal'laJeai:liJ!ytofle~'(See
aso x.
Regiooal Dim~ See also lle 2'1 ~d Ali:le 128(b), l..tblr COOe.
, 'Miele 37. VISibial Potoe". - The Seaetay d l..rbJ ex h6 dutf dlaizm ~ may, at
fl'tJ lire, ilspect l1e 2 Seem 62, llepabnent Older
No. 141-14, Series c( 2014, Nov. 20, 2014.
prerrises, boc*s d OCCiliJlls lr1d lecxrds d. fl'tJ pi5SOO a enlily IXM!red by
lisT~ requie l to Slbri repcxt regtDtj oo 3 The BLR Diredi:r, not 11e
OOLE Seae!ay, has lle ~ CllUlority <Her decisiJns of !he DOlE Regkrlallleclas
presailed bms, lr1d a:t oo vkllalioo d. fl'tJ piMsin; of IUs Tille~ (Refl!lliwJ
~ Tie I ~ 11111 Plinlment d. iMMlg exaTi1aOOns d lriln
a::carE as pRMied IJ1der RE Uct lle Rules d Procedle oo ~.
WOOr.ers), Bodd, L!iJcrCode).
issued ooAid 10,1992, bv.t'SEC. 3.•hrisci:ticrullle Regiooal Oiecb".- The
RegiooalllrectrshalexsrciseOiillilal
2 ·'llsibia cases iMWe ilspection d. estallislrnelil ~ delemile ~ .t!IOOor
slaldtlds; v.flile enbtemelt cases and exc.tJsWe Pisdk:tioo
(M!I" appi3iln tr m regisiabl, pelilixls u I3IC8IaOOn of m legisbmlllld ~
BdYe~d~orderslrldYrisdexecukn
iJr exari1alioo ct lrilns bids ct lmlDs. SEC. 4. .bisdicliln ct l1e !beau.- XXX
'(b) The 8Ral shal ecett:ise
3 Based oo f1e ~ pcllV3Ilh d. Al1ide 12B(b), L!iJcr Qxle, villi\ stae: 'M mler
issued by l1e clkf dlaizm appela!e j.l'isdk:lon IM!r
Ill cases ~ tan 11e Regional Dim iMMlg m regisltatioo a cm!latioo of
represertiWe dlle Seaellry d.l..tblr 5111 ~ lnler tlis Micle l1la'J be~ kllhe
*·In cac;e sakl ader cerilicatesof lriln
registlation 1r1<1 ~ ra- exatilaOOi! o1 m txDs ct CIXXXIlt.'
ilVOM!s amonet:ly awad, M ~ by l1e ef11Jk7ter may be ~ oott ~ f1e pos1D;j d
acash ex 5\Jiely bond 4 Micle 129 rille t.m Code
prcM:Ies: 'M{dedsm ex resotJOOn rille Regixlal Diectlr ex hem,! ~ JUU"t ~ lhis
issued by a repulimle llolm;IOOIT1lfl'tJ cktf s:aediiEd by lle Seaelay d.
l..tblr lr1d ~ illle aTXXJ1I provisioo may be appealed
oo the meglllRis pnMied i1 Miele 229 (223] d. !lis Code, v.i1lil fi.1e (5)
caleOO<rdays fian
~ ~ 11e nme~ay awcr11 nlhe m1er ~from.' ~ anended by Reptii: AJ:J. No. n~.
Jooe 2, 1994). ~d. a~ d saki cle!:isbl ex
resOObl, tl fie Natiooal Uixr Rel<mons Cormission whi::h shal resotJe lhe ~
Addiiooatf, ft is proWled il Section 1, RUe IV, d !he R1Jes oo f1e Disposi:ll
d l..tblr SfMdMis Cases illhe Regional Yoilhilten (10) caleOO<rdays
from the Slbmlndlhe lastp~ requied oralowed lllderils rUes.'
Oflices, ltAJs: 'Sedm 1. ~ -The ader d lie Regblal Di"ecilr shal be ilal and
exooJay ll1less ~ kllle 5 namt1a1a M!h ~ 43 of lhe
Revised IM!s ct Court, as S1llldafed ill.uzoo Dewqlment llri v. AsscxiiOOn of
Secretay rt I.!W !l1d ~ wilhin ten (10) caSxkr daysfitm ~ llereof." The
gi'OOlds iJr 1he appeal ae Luzon~ BMk Empklyees,
G.R No. 120319, Oct 6, 1995.1111lS! be noled lhat Depa1ment Onler No. 83-07,
prtMded i1 Sectkxl21lerect, llus: 'Grooods tx lflll8<i- The CJRieve<i pall'
may~ to 1he SecreBy 111e Order of lle Series of 'l!YJ7, does
rKtmen1iJn l1e proa!Cbed elevating the decisioos of111e Blf.s b a hi;lherbixllal.
Certany, ~
~Dim on fl'tJ ctlle tlbWlg groords: (a) 11ere is a(rina me Mlence ct m;e ct
<lscre&xl oo the pat ollhe ro 111e OOLE Seael!ry is not
proper silce lhe DOlE Regional Diecklrs se I!Dlg ~ ct 11e cac;e nlhei" capacity
RegiooallliecU; (b) lle<lrderwas seaJred 1tmJgh !laud, ooeJtiln agrmlln1 ~;
(c) lhe appea is nate purelf as B/f.s. Flltiler, lis
~ed'illle said Depment Older lhat lheir designation as 'e/As is '{tjo C001Jiemenl
the
oo quesOOrls ct law; !l1d (d) serilus EII01S illhe ildi1gs d. fads were
CDllriiEd v.tlich, if rKt arreded, MJUkl cause grave existing roster d.
qualified and Accrediflld Vokmtly Albi1ra1Dis (AVf.s) xxx.·
795
under the jurisdiction and control of the arbitrator subject to such rules of
Note must be made as regards Request for SEBA Certification when
procedures that the parties may jointly prescnbe or those which appropriate
made in an unorganized establishment with only one (1) legitimate union,3 over
agencies like the NCMB may legally require. 2
which the DOLE Regional Director has original jurisdiction to issue the SEBA
7. RELIEFS AND REMEDIES THAT MAY BE GRANTED BY
Certification being requested. The rule, however, becomes different once thll
VOLUNTARY ARBITRATORS.
requesting union fails to complete the requirements for SEBA certification during
the
Arbitrator or panei of Voluntary Arbitrators may grant the same reliefs and
Request should be referred to the Election Officer4 for the conduct of
certification
remedies granted by Labor Arbiters under Article 294 [279] of the Labor Code,
e!ection5 which necessarily would mean that such certification election should now
PRESCRIPTION OF ACTIONS3
3 U\der llis slua1kxl, 11e DOLE Regiala Oi'ec\a", before v.tlom lhe RepSbr SEa-\
CeltifK:alion is &led, sllotil refer lhe
Re<JJeSt roc SEaa. Celtifta1ion ID the M!dattr-Albiter b' lhe detenrilaloo d 11e
prtlXiely ct ~ a cs1ificatioo 1. MONEY CLAIMS CASES.
eledbl, il vilich case,lle MediafDr-Arti:r OOit' has the jJis!ifuliD decile l1e
cdicalion elec&xl issue. (Sectioo 6, Rule
VI~ i1 relalixlto FU!s VIII a1d IX. Depatnent Order No. ~15, Saiesd2015
[Seperller 07, 2015]). Note lllJSI be a.
Prescriptive period is three (3) years under Article 306 [291] of
nale ta when 11e Request br SEBA Certi!ication is 11a1e il Cllllogailed
esiOOiishmenl vidh more 1m ooe (1) the Labor
Code.
le]linaE Iaber agillizalion, lhe MedMliler t<tes CNfJ' tan lhe IXX.E ~ Dim il the
male" ct hem,! a1d
~ tle Issue of cel1ification eledin
The prescriptive period of all money claims and benefits arising from
4 "EEedkln Ofti:el" refelsto ill ~ ri l1e Bueal d. Labor Relalioos cr l1e tmRI!
Iations1JMsial illhe Regkxlal Oflile
Sudl as ResautXxl No. 1, Seriesct 1995 f!\liJus! 11. 1995] ~ lhe Expedited
Plocedlles fn-Voklntly Arbmaoon
iillsni1therecools of lhecase tllle Med-Aibi!erv.tlo shal, YttillleSillll!iiiJiod
fllmreceiptd.llenn.tes llld resulls ct tm Oispu1es. This was lak!r ~
byfEsOO&oo No. 1, Series a! 1997 pansy 00, 1997] illd subsequenttj, by
ct eledm. issue ill cxder proclairiVJ the restJt aile
m
electioo !I'd arifti'g
11e Yot1ich OOiailed lie lmjxity of 11e Resokltiln No.2, Seriesd1999~ 15,
1999.).
vaid \des cast as tle sole illd exd.tsive bafgailirg !rJen1 illle $~.qed
lagai1i1g 111ft. xxx. {The pOIIistJn entitled 2 No. 53,-NCMl
Prineron{300vcm t-khi1ety illd Voklrtay Arbi!aOOn.
'Procllmlli:ln em certifcation alhe re5IJ1 a the election' shoold ·no« be
denorTilated as Sectioo 21, rue IX. Bool< v, 3
Nole fllJSt be made d lhe fact 1ha il bo«llle 2011 arx1 2012 syiOOi fill' Ialor
lcr.v, on~ lhe presa¢.'e periods of l1e
FU!s tJ ~ lhe l.liXJ Code, by m d.lhe feilUI1llelhJ Oldeled by Secbl17. 0epmen1
Order No. ~15, lllbbJ Cle specifK:ally
f191tioned: 'a. Mxley dains; b. Htegal dismissal; c. Unf<ir labor prd;e; d.
Olfenses penaf!Zed by
Saies d 2015 [Sepmber 07, 2015). Tils section was Ol'giJal¥ ~Section 20,
perOepatnent Order No. 40-03, lheuwCode a1d IRR issued
pusuootlhereiD.'In the 2013 illd 2014 sylabi, lhere is no sirTir enwneration.
Henoo, 31e
Seres a! 2003, [Feb. 17, 2003], but l was subseqlJe!ltti ftHllll'bered to
Secbl19, per Depa1ment Order No. .m:.()J, Presa¢.'e periods in ol1er
cases ae ciled i1111e ilsmtdisaJssi:ln.
{';IV
CHAmRVIII 779
(b) Disciplinary action cases against land-based OFWs and seafarers and .
Article 306 [291] contemplates all money claims arising from
is ten (1 0) days in case of appeal to the DOLE Secretary of the Order of the POEA
2. ILLEGAL DISMISSAL CASES.
It must be noted that the POEA ceased tu have any jurisdiction over money
money claims. The prescriptive period of illegal dismissal cases is four (4)
virtue of any law or contract involving Filipino workers for overseas deployment,
3. UNFAIR LAlOR PRACTICE (ULP) CASES.
including claims for actua~ mora~ exemplary and other fonns of damages. The
jurisdiction over these claims was transferred to the Labor Arbiters of ihe NLRC by
a. Prescriptive period ofULP cases is one (1) year.
VOLUNTARY ARBITRATOR
b. Pre-requisite for prosecution of criminal cases.
1. VOLUNTARY ARBITRATION.
Before a criminal action for ULP may be filed, it is a condition sine qua
non that afmal judgment finding that an unfair labor practice act was committed
"Voluntary arbitration" refers to the mode of settling labor·
2 Secful186, IUl VII, PlrtVI, RlMsed POEA Rue; and Regi&Dxls Gaiemi1g
theRecruinenllllf~ofLMd
6 M::le 306 12911. MJney Clains.- AI rroney dains aisi1g from ~.qloyee reiOOons
IKX:IUi'g 001bJ the elfedMiy Based Overseas ~ W<xkers of 2016 and
SecOOn 170, ROO IX, P1rt V, the 2016 Re.oised POEA rues and Regt.datioos
d lhis Qx!e WI be fled wialn 1ree (3) yeas fltm t1e 1me 11e wed cdal a:aued;
o11e1vtte Dley shal be beYer Galemi"g the Reauilmentlni ~of
Seafaels.
bared.
3 Sedioo 92, IUl XI, Part II, Re.ted POEA IUls and Regutmls ~ lle Recnilnetlllf ~
d Lm
7 Crl.rllav. Ctrnation Phiqlpi1es, G.R No. 70615, Feb. 29, 1986; SeealsoPLDTv.
Pi'IJol, G.R No.182622, Sept. 8, 2010; Based Overseas Fqii1o WoXefs ct 2016
and Secful88, RUe X. PM II, l1e 2016 RMed POEA PJJes and Regulatioos
f1JIJs MintadlriYJ, Inc. v. NLRC, GR No. 117963, Feb. 11, 1999; Prerriere
l:leveqment BCilk v. NLRC, G.R No. Governing K1e Reaui1ment Clld ~of
Seafarers.
114695, J14' 23, 1998; Ha;jonoy Rural Balk, Inc. v. NLRC, GR No. 122075, Jan.
28, 1998, 285 SCRA 297. 4 k; !mlllded lalely by RA. No. 10022
[Milt:h 8, 2010~
8 P~ 2, Article 305 !290], labor Qx!e; Section 2, Rue II, Book VII, Rues 1D
ill'jlm.ent the lb Code. 5 Secful1[dj, Rule II, NCM3 RlMsed
ProcedJral Guiderre; il the Conduct of VoUltay Albilrairl Pitx:eEdYdS [Oct. 15,
2004].
CHAPTER VIII
/'81
dispute involving the mutual consent by the representatives of the employer and
1.
a. Who is aVoluntary Arbitrator?
JURISDICTION
A "Voluntary Arbitrator" refers to:
1. ORIGINAL AND EXCLUSM JURISDICTION.
(1) any person who has been accredited by the National Conciliation
a. In generaL
and Mediation Board ("NCMB" or "Board') as such; or
(2) any person named or designated in the CBA by the parties as their
The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have
Voluntary Arbitrator; or
exclusive and original jurisdiction over the following cases:
(3) one chosen by the parties with or without the assistance of the
(I) Unresolved grievances arising from the interpretation or
NCMB, pursuant to a selection procedure agreed upon in the CBA;
implementation of the collective bargaining agreement (CBA). 2
or
(4) orne appointed by the NCMB in case either of the parties to the
(2) Unresolved grievances arising from the interpretation or
OBA refuses to submit to voluntary arbitration.
enforcement of company personnel policies.3
• ludo &Luym Colpaalion v. Saomklo, G.R No. 140960, J;n 20, 2003.
submit to voluntary arbitration.3
2 ~ prtMdOO i1 Al&:le274£261J, liilorCode; No. 44, NCMI Prineroo GrievlllCe
Mlclilely il1d VWntay Artftcmt
3 ld.; ld.
c. Is Voluntary Arbitrator an employee of government?
4
Per Article 274 £261llle em ~· \iolation rllhe CBA me<llS 1'9;illlll oocYor
l11itiXJs refusal t> carc*f v.«ht.e
6 Article 27~) ]263(11)] leMse allows lhe paties ~ ~ Ill sulxrit e.ten lhe so-caled
"nakr1aa i1!elesl rJ!fli!t b
\dJnfay llbitalkxl, bebe cr 'rtf stage ct the ~ asblratOO process prior b lhe
Sltlnissbl d toe rescUin See
1 RA. No. No. fif27 era::at 00 Jltf 7, 1989 also expMded 1he j:Aisd'di:Jn ct
voUlflKy abitration kl ilclude all~YeSdv'ed
LHAmRVIII
782 BAR REVIEWER ON lABOR lAW
783
I.
2.0NCE BROUGHT TO VOLUNTARY ARBITRATION; ADDITIONAL
interrelated to another issue not previously resolved and the resolution of the
(1) A decisilm 10r resolurion was rendered thereon through the various
latter is necessary to the final determination of the grievance. 1
stepsof1heg::·. tn-:~ n: :.:·::~~r> ;md either or both parties is/ar~
not
2 No.47, llid.
1 Allicle 273 {2601, labor Code.
3 GR No.145800, Jal. 22, 2003.
CHAffiRVIil
784 BAR REVIEWER ON lABOR lAW
instead of submitting the issue. for voluntary arbitration after the Grievance
It is of vital importance that the interrelationship of the two
procedures Committee resolved it against him, filed
a case raising the same issue with the
- grievance and arbitration - be borne in mind by those who study and practice
Labor Arbiter. Petitioner here raised before respondent's Union-Management
arbitration. A grievance procedure in which few disputes are settled inevitably
Grievance Committee the determination of his salary increases as provided in
overloads arbitral machinery. Arbitration procedures and awards that undermine
the CBAs. Thus, his case involves the proper interpretation and implementation
the grievance machinery by pennitting serious disregard of its prescribed
of the pertinent provisions of the CBAs. And in accordance with the procedure
procedures can invite more arbitration and fewer settlements by negotiation.
prescribed therein, the said committee made up of representatives of both the
Arbitration that encourages overemphasis on technical procedural requirements
union and the management convened. Unfortunately, it failed to reach an
will thwart settlemmt on the merits so that pressure builds for resort to self-
help. agreement. Petitioner's recourse pursuant· to
the CBA was to elevate his
Obviously the balance to be struck requires judgment, preeminently on the part
grievance to the Board of Arbitrators for fmal decision. Instead, nine (9) months
of the representatives of v· :,ms and management, who have initial and primary
later, he filed a complaint before the Labor Arbiter. Holding that petitioner
responsibility. How !hey discharge their functions may be affected by what
Octavio's recourse to the labor tribunals (Labor Arbiter and NLRC) below as
arbitrators do. Arbitration is a powerfu! tool that can, on occasion, send
well as to the CA, and, fmally, to the Supreme Court, must fail, the High Court
reverberations tluough the larger organism, the grievance procedure and shop
pronounced as follows:
office relatior:s. 2
mandated in the CBA and denied the Board of Arbitrators the opportunity
It is settled that when parties have validly agreed on a procedure for
to pass upon a matter over which it has jurisdiction. Hence, and as correctly
resolving grievances and to submit a dispute to voluntary arbitration then that
held by the CA, Octavio's failure to assail the validity and enforceability of
procedure should be strictly observed.3
the Committee Resolution makes the same binding upon him. On this score
Before· a party is allowed to seek .the intervention of the (;Ourt, it is
a alone, Octavio's recourse to the labor
tribunals below, as well as to theCA,
precondition that he should have availed of all the means of administrative
and, fmally, to this Court, must therefore fail."
processes afforded him. Hence, if a remedy within the administrative machinery
n.
can still be resorted to by giving the administrative officer concerned every
JURISDICTION OVER VIOLATION OF CBA
opportunity to decide on a matter that comes within his jurisdiction, then such
remedy should be exhausted first before the court's judicial power can be
Article 259(i) [248(i)] of the Labor Code mentions violation of a CBA
sought. The premature invocation of the court's judicial intervention is fatal to
by the employer as a form of ULP. Similarly, Article 260(f) [249(t)] thereof:
one's cause of action." 4 Indeed, the underlying principle of the rule on
considers violation of a CBA by the labor organization as ULP. These
exhaustion of administrative remedies rests on the presumption that when the
provisions have been qualified by Article 274 [26lt in that "violations of a
Collective Bargaining Agreement, except those which are gross in. character,
grievances under the CBA. For purposes of this article, "gross violation" of
1 See also Philinare Sh~ &Equ~ &Jpply, ~ v. NIRC, GR No. 126764, Dec. 23, 1999.
2 No. 11, NCM3 Priner oo Grievcr1ce Macti1ely omVokmlaly Mlifratkxl.
1 Rizal Seo.riy & ProiEctNe Se!vices, Ire. v. M<ra<rl, G. R No. 124915, Feb. 18,
2008, 546 SCRA 23, 40; PltMnce of
3 VMm v. CA. GR No. 138938, Oct. 24,aoo. 344 OCRA 268,281.
2'art!oqaDel NOI1ev. CA. G.R No.109853, Oct. 11,2.00l, 396Phi. 709, 72fJ.
4 DOmo. v. Cacdoc, GR No. 168475, July 4, 2007, 526 SCRA 440, 458; ME!tl Dug
Oistrbution, Inc. v. t1e1ro DrUJ 2 OctiMo v. Philppi'le Long Dis!Mce
Telephone Corr4>MY, G.R No.175492, Feb. 27, 2fJ13.
Corpoortioo ~Associalion-FFW, GR No. 142666, Sept. 26, 2005, 508 Phi. 47, 60.
3 Jurisdiclioo d Vduntary Ar1>ilra1Drs or Pa1el d Vduntary Albitralols.
CBA shall mean flagrant and/or malicious refusal to comply with the economic
Consequently, once submitted for voluntary arbitration, it is the
provisions of such agreement." ·
Voluntary Arbitrator who is mandated to resolve the dispute. His decision
In other words, (1) ordinary violation of a CBA which involves non-
rendered therein shall be final and executory ten: (10) calendar days after receipt
economic provisions thereof; and (2) violation of its economic provisions
·thereof by the parties.'
which is dot gross in character, are no longer treated as ULP. Consequently,
v.
they should be resolved as ordinary grievances or grievable issues properly
cognizable under the grievance machinery and voluntary arbitration provisions
VI.
Article 278(g) {263(g)] of the Labor Code which involves the DOLE
JURISDICTION OVER DISPUTES INVOLVING
Secretary's power of assumption of jurisdiction or certification to the NLRC of
THE PRODUCITVITY INCENTIVES PROGRAM
labor disputes affecting industries indispensable to the national interest, also
provides that "[b]efore or at any stage of the compulsory arbitration process,
Disputes and grievances arising from · the interpretation or
the parties may opt to submit their dispute to voluntary arbitration."
implementation of the productivity incentives program under R.A. No. 6971 4
This means that even if the case has already been assumed by the
should first be submitted to the Labor-Management Committee for resolution. If
DOLE Secretary or certified to the NLRC for compulsory arbitration, or even
they remain unresolved within twenty (20} calendar days from the time of their
during its pendency therewith, the parties thereto may still withdraw the case
submission to said Committee, the same should be submitted for voluntary
from the DOLE Secretary or NLRC, as the case may be, and submit it to a
arbitration in line with the pertinent provisions of the Labor Code. Under this
Voluntary Arbitrator for voluntary arbitration purposes.
law, the productivity incentives program is required 1o designate and include the
2.
The Submission Agreement should contain, among others, the
following stipulations:
REMEDIES
Arbitrators;
exercise jurisdiction over a specific case only under the following:
4. NOTICE TO ARBITRATE.
(3) Upon receipt of an appointment or designation as Voluntary
Arbitrator by the NCMB (Board) in either of the following
A "Notice to Arbitrate" refers to a formal demand made by one party to
circumstances:
the other for the arbitration of a particular dispute in the event of refusal by
one
(3.1.) In the event that the parties failed to select a Voluntary
party in a CBA to submit the same to arbitration. 3
Arbitrator; or
If after exhausting the grievance procedure, the grievance remains
(3.2.) In the absence of a named Voluntary Arbitrator in the CBA
unresolved and one party refuses to submit the same to voluntary arbitration,
and the party upon whom the Notice to Arbitrate is served
the following procedure should be observed:
does not favorably reply within seven (7) days from receipt
such appointment. 4
A "Submission Agreement' refers to a written agreement by the parties
submitting their case for arbitration, containing a statement of the issues, the
The Notice to Arl>itrate should contain, among others, the following:
name of their chosen Voluntary Arbitrator and a stipulation and an undertaking
2004).
1 Sedioo 4[bJ aid 9, RA. No. 6971; Sedioo 3[oJ, Rule I, !l1d SecOOn 3(eJ, Rule
rl, Rules ~lementirg RA No. 6971. 2 Sectioo~. RuleiV, lbil.
2· Sedioo 4, ~ rl, NCM3 Revised Prtx:edural Gukleliles il U1e CooOJct r1 Voi.JnBy
AlbircDxl Proceedi1gs [Oct 15, 3 Sedkxl1m, Rule II, NCMl ReWed
Procedural Guk!e!i1es it lte CoOOucl-d VWtly M1i1rm ProaledDJ$ [Oct 15,
2004].
2.004j.
3 No. 54, Ncr.B Priner on Grievance Macllile!y Mel Volun1ary Albilraldt
4 Sectioo 6, Rule IV, lbil.
the CBA. 1
5. SUBMISSION AGREEMENT VS. NOTICE TO ARBITRATE.
2) Note must be made that only grievances that are "unresolved" by the
"Submission Agreement' is sometimes called a "stipulation" or an
grievance machinery fall under the "original and exclusive"
"agreement to arbitrate." It is used where there is no previous agreement to
jurisdiction of the Voluntary Arbitrators or panel of Voluntary
arbitrate. The submission agreement which must be signed by both parties,
Arbitrators. If a grievance therefore has not been submitted at the first
describes an· existing dispute. It often names the arbitrator, prescribes the
instance to the grievance machinery, the Voluntary Arbitrators or panel
procedure in the hearing and sometimes contains considerable details of the
of Voluntary Arbitrators do not have jurisdiction to hear and decide it.
arbitrator's authority and other matters which the parties wish to control.
Being mandated by law2 to hear and decide grievances at the first
"original and exclusive" jurisdiction over the same and not the
"Notice to Arbitrate, " is used more in instances where there is an arbitration
resolved within seven (7) calendar days from the date of the submission
from the application or interpretation of the CBA or the interpretation or
for resolution to the last step of the grievqnce machinery." Prior tc the
enforcement of company personnel policies. Thus, it is perfectly valid to
completion of the grievance procedure or grievance machinery, the
stipulate in the CBA on an "agreement io arbitrate" future disputes that may
grievance cannot "automatically be referred to voluntary arbitration
arise under and during the term thereof. If a dispute is covered by such an
prescribed in the CBA."
arbitration clause, arbitration may be initiated unilaterally by one party by
serving upon the other a written demand or notice of intent to arbitrate. 2
3) Cases cognizable by Voluntary Arbitrators in their original
Proceedi1gs {Ott 15, 2004J. TNs procedlle d reqli1lg f1e refem1l d lle issue tllle
grkMI1oe rra:li1ery llld voUtly.
nature of appeal. - Article 274 [261] describes the nature of the
llblralbl is 8so elll1liEd llldEr lle last ~ d Ari:le 224 [217] M1k:h slaEs Ia
'{c)ases •~~ish.! flan lie
jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators
i"iilprelaioo or il'fllelle 1tallln d colledive ~ ~ ll1d 11ose crisi1g tom lie
iEqxelabl orenbr.enEnl
as "original and exclusive" when they exercise their power to hear and
d ~ pers<me1 poldes sha'l be disposed d byte Latxr Mlier by refeniJJ f1e me tllle
grievMce mmey
decide "unresolved" grievances which are elevated to them after the
llld vok!ntry ~as may be proWled il saki a,eement;.'
4 Paagl1!Pl2. Al1i:le 274(261], Lalor Code; Sec&x14, Rule XIX, Book v, RlJies m~te
Lalor Cede, as aneilded
process of the grievance machinery proved unsuccessful. In reality, the
by DepMnent<lrder No.~. Series of 2003, feb. 17, 2003J. The Reglooa IJim"s d f1e
llepatnlrt of lltJor Md
Bqlla,ment ae net liMed tl enlel1ai1 disputes, griiNMces or maters falfrg under f1e
erdusMl Md at,Ji"lal j.Jiiilicbl
tte NCMB, 1he sam stmd il'mediafett be referred kl aVdunt:ry AI1Jib"atlr IOObJal~
accepled by lle prils from f1e list
WO!ker.;,406F 2d 643and Dis1rictCooncilvs.Anderson, 104 LRRM2188,2189.
of NCM3 Aa:rediled Voluntlly Albit!a1ors for~ acli:Jn.
l.
793
PROCEDURE
to defeat the employees' constitutional rights. In affinning the ruling
of
the RIC and Court of Appeals dismissing the complaint, the Supreme
l. PROCEDUil.ES AS PRESCRIBED JN THE LAW,
Court ruled ihat said policy is in the nature of a "company personnel
1
submission agreement to execute tb.e final decision, order or award."
APPEALS FROM MED-ARBITERS
2. NATURE OF PROCEEDINGS.
Among the cases cognizable by the Med-Arbiters in their original and
The proceedings before a Voluntary Arbitrator are non-litigious in
exclusive jurisdiction, only decisions in inter-union disputes (representation or
nature. They are not governed by technical rules applicable to court or judicial
certification election conflicts) are appealable to the DOLE Secretary by virtue of
proceedings but they must, at all times, comply with the requirements of due
Article 272 [259]3 of the Labor Code. All the others are appealable to the BLR
process. 2
Director.4
3. ARBITRATION PROCEDURES.
i-2-C.
As a general rule, the rules governing the proceedings before a
APPEALS FROM BLR DIRECTOR
Voluntary Arbitrator or panel of Voluntary Arbitrators are subject to legal
The decisions of the BLR Director rendered in his original jurisdiction are
requirements, 3 agreement amoag tl-te parties 4 to a labor dispute a.•1d their
chosen all appealable to the DOLE Secretary,
thus:
Arbitrator. In the absence of any agreement on any of the various aspects of the
voluntary arbitration proceedings, the pertinent provisions of the 2004 NCMB
(l) Complaints and petitions involvi.11g the application for registration,
Revised Procedural Guidelines in the Conduct of Voluntary Arbitration
revocation or cancellation of registration of federations, national
Proceedings5 and the Revised Rules of Court shall apply by analogy or in a
unions, industry unions, trade union centers and their local
directory or suppletory character and effect.
6
chapters/chartered locals, affiliates and member arganizations;5
Series d 20011 [Oct ~. 2008l ThG latest 2015 reMteri1g was effecEd trourj1 said
Sectioo 171\ti::h states: "Sedions
5. REVISED EXPEDITED PROCEDURES FOR VOLUNTARY
St.bsequent b ilseiEd new p!tNisilns cni'orA!IlJTilered secb1s are renrrbenld
a:cordilgly.l
0n1er No. 40+15, Series cl2015 [SepERDI"07, 2015). This section was oR.Jilaly!
UOOered Sedion 20, per Depment
In accordance with the State policy of promoting the expeditious
Order No. 40-03, Series cl2003, feb. 17, 2003). bull was~ le-lllmered mSection 19,
perOepmentOnler
settlement of labor disputes and as a r-eSponse to concern5 over delays in case
No. 40f.()3, Series cl2008 [Oct~. 2008].
3 ~-
4 The oilier cases fcfo;j under lle oR.Jm aod exdlsM! jlrisdici:n but we~ tllhe BIR
Di"ecb" we as blkMs: (a)
t As ilcorpOrlEd by Section 26, RA. No. 6715, Milt:h 21, 1969.
hlnrmkxulistxe;(b)Oiherrelaed ~Em" mlablsdisputes; (c) ~cases; llld (d) tawcases.
2 Section 1, Rule Vl,llil.
5 As disti1gtJSled fitm pe(1km lbr amlalkJl d registration d ildependent lllixls,
klcal ~ and worke!S'
3 SOOl as lxlse presalle:hrderRA. No. 6715 Clld ils ~rues.
859Xiams,as prcNiled il Section 3, IU! I dlle Jkd.Arblr.6ln RulesM101 slales: 'SEC.
3. Jurisd"ICii:rl dthe Regional
• SOOl as lle CBA Clld oilier l!!lev.rt agreements.
IJRttr.· The Rsgklnal Di"eckr shal exar.ise oR.Jilal Md excklsNe j.lisdiclixl ever
appicabl b" lriln registation,
5 The NCM3 Revised ProcedlJal Guideliles il the QnU:t d VW!tay Aitlm6x1
Proceedllgs was ~ llld u
u
rendered by the last tribuna~ say the Supreme Court, to which the case was
i-2-D.
elevated should be the reckoning factor.
APPEALS FROM POEA
c. Interruption of prescriptive period of offenses.
1. APPEALABLE CASES.
As far as ULP cases are concerned, the running of the one (1) year
Under the two (2) distinct 2016 Revised POEA Rules for land-based
prescriptive period is interrupted during the pendency of the labor proceeding.2
OFWs5 and seafurers5 and the Omnibus Rules,' the Office of the DOLE Secretary
d. Evidentiary value of the final judgment in the labor case.
has exclusive jurisdiction to act on appeals from the Orders of the Administration
(POEA), in the following cases ov:!r which it has original and exclusive
jurisdiction: In ULP cases, the final
judgment in the labor case cannot be presented
Labor Code and its Implementing Rules is three (3) years from the time of
commission thereof. 4
1 SedXln 5, Rule rl, Book V, Rules Ill ~ t1e Labor Code, as emended by Depment
Older No. 46m, Series rJ
2003, [Feb. 17, 2003]1rd asbUler amended by Depa1mentO!der No. 46-0-05,
Seriesof2005, Sept.13, 2005.
although a violation of the Labor Code and its implementing rules, does not
Labor Code.6
s Sedioo 169, 1U! IX, Pelt V, B1e 2016 Revised POEA RJes 101 Regutatms
GoYelriYollle Recruh!nt all Efr4llcrjment
d Sealaers Issued oo Febnay 26, 2016.
7 Sectkxl11, RUe X, Olmilus Rulesnl Regulai:r1s ~ling lheMgrcrltWakelsali-Overseas
~00;Attol1995,
as .A.!re1ded by RepOOi: Att No. 10022 issued oo J~ 8, 2010; See also{)nllilus
Rules Cl1d Regulations~ ~G proYkled under Alticle 258i247J c1
llel.abor eooe.
t.tycr1t WaXers aliOI'elseas Apinos Att d 1995dc*ld Feb. 29, 1996.
ld.
a Sectioo 138, ~I (J~Ritix!), Part VI (Recruilne1t Vdations iJ1d ~ kbl Cases),
Revised POEA ~les all ld.
RegliD:Xls ~ t1e Reauilrnent 101 EJrclklymenl of l..mtH!ased Ovelseas Rpm WO!
keJS of 2016; Section 118, Article 305 j290]. Offenses. -
otlenses penaflled under this Code and the rules and regulations issued pursuant
~ I(Jl.lisdi:tOO il1d Venue), Part V(Recruilmert VDalix1s all Disciplnay AdD1
Cases), 2016 ReWed POEA Rules thereto shan prescribe in three
(3) )lm.
101 RegWtioos Govemi1g 111e Reauilment all ElT1Jicrtment ~ Seafarefs; Section e.
rue x(Role of DOL£), OnllixiS All unfair labor practices arising from
Book V shall be filed with lhe appropriate agency >Mthin one (1) year from
Rules !Ill Reguatms ~~!he MJ!Dil!Wakels !Ill <Nelseas Fqli1os Attc:l 1995, as
Amended by Repubi:Act accrual j!f such unfair labor
praclice; Olhelwise, they shall be forever barred.
No. 10022 issued 00 Jlij 8; 2010; See also Seclioo 28, Omnilus Rules and
RegWtions lmplemenfing t.'iJilll1l WOO<ers 5 See Artide 305 {290], labor Code.
and <Nerseas fiipilos Ad of 1995 daled Feb. 29, 1996.
See Article 305 [290] thereof; Ccinav. CamaOOn f'hi1Wnes, Inc., G.R No. 70615, Feb.
29,1986.
---oOo----
1
Section 12, RA No. 8042; See also S8:tion 7, ~ IV, Omnilus Rules Md Regulations
~&";J 11e t/igra1t
WorkelsMd Oietseas Fiipilos Act of 1995, as Amended by R A. No. 10022{Mith 08,
2010).
2 ld.; ld.