Labor Law Review
Dean Salvador Poquiz
PRELIMS
SEPTEMBER 16, 2020
GENERAL PRINCIPLES AND CONCEPTS
Labor
- It is a physical or mental exertion of effort
- This may refer to the work force, labor force
- Under the Labor Code of the Philippines, labor may
also refer to “manpower”
Manpower
- It is the portion of population of the state that is
capable of producing goods or services.
Labor Law
- This is a law, rule or regulation that defines the
relationship between the employer (ER) and the
employee (EE)
o The ER have control and supervision over
the EE, and the EE is entitled to his
compensation
- It encompasses every type of labor and social
legislation
- The juridical foundation of labor law is the
existence of ER-EE relationship
Two (2) Tests to Determine the ER-EE Relationship:
1. Control Test
2. Payment of Wages Test/Salaries Test
Four-Fold Test in Determining ER-EE Relationship
(a.k.a. Four-Way Test)
- In one case decided by the Supreme Court, this test
was also referred to as “indicia of determination”
1. Selection and engagement of putative employee
- It is the ER the hires/selects/chooses the EE
2. Payment of wages or salaries test
- There is an exception to this rule. In one article
under the Labor Code, with or without
compensation, still there is an employment
relationship (Sir: this will be discussed later on)
- But as a rule, if the ER hires an EE, the latter should
be paid his compensation
3. Presence or absence of power of dismissal
4. Control test
- This test is the most crucial and most important in
determining ER-EE relationship
- It assumes “primacy” over all other considerations
- When you talk of two-tiered test, this refers to the
control test and the economic test in determining
ER-EE relationship
o Between labor and capital, labor is
economically dependent upon capital
o So primarily, the EE depends upon the ER
economically
- Even without the other test, you can determine ER-
EE relationship under control test
- If you analyze this aspect , indeed, there is only one
test – control test
- Control test encompasses all test
- If the ER hires an EE, the former is required to pay
the wages of the latter. EE, on the other hand,
should comply with the rules and regulations of the
company. If the EE commits and infraction or
violates the company rules and regulations, he
could be disciplined or dismissed.
Economic Relations Test
- It was actually in America where they introduced
this economic relations test
- In this test, you have to consider, even if there is no
contract of employment
- GR: if there is no contract of employment, there is
no ER-EE relationship
XPN: Economic Relations Test (i.e. Even if there is
no contract of employment, but you receive your
salary, your name was submitted with SSS, Pag-
Ibig, PhilHealth, BIR, etc. – these are instances that
will prove the ER-EE relationship)
There must be an ER-EE relationship for an EE to be
covered under the Labor Code of the Philippines. Without
such relationship, labor tribunals have no jurisdiction, but
instead it is the regular courts.
Types of Labor Law:
1. Labor Standards Law
2. Social Legislation
3. Labor Relations Law
Additional Types:
4. Protective Legislation
5. Welfare or Social Legislations
6. Diplomatic Legislations
Protective Legislation
- This is a type of labor law which is designed to
protect certain types of EEs who are usually
unfairly treated in employment contract (ex.
Women EEs, child EEs, disables/incapacitated EEs)
Examples:
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1. Anti-Sexual Harassment Law (protection for
male/female EEs against sexual harassment)
- Sexual harassment is a form of serious misconduct
which considered as a just cause for dismissal
- This is designed to protect EEs from oversex
superiors
- Two (2) Types of Sexual Harassment: (a) quid pro
quo sexual harassment (“I give so you may give”);
and (b) hostile work environment
- Quid Pro Quo: A superior officer told his secretary,
“I want to have sexual contact with you”. Hindi siya
pinabigyan ng secretary. Thus, the officer
dismissed the secretary. In this case, there’s an
ADVERSE TANGIBLE ACTION.
o If she was transferred unreasonably to
another branch which makes it hard for
her to perform her duties and functions to
the point that she quits her job, then there
is a CONSTRUCTIVE DISMISSAL in this
case. Although she resigned, there is
constructive dismissal because continued
employment has become impossible,
unbearable, unreasonable, or unlikely
under the circumstances. It includes
diminution in pay,
unreasonable/inconvenient/prejudicial
transfer.
o Constructive dismissal is illegal dismissal
because the ER has an intention to dismiss
the EE but the ER does not want to take the
initiative of dismissing an EE. So ER does
acts that would compel the EE to resign
(forced/involuntary resignation).
o Constructive dismissal is also called as
dismissal in disguise.
- Hostile Work Environment: Here, the victim is
placed in an intimidating hostile offensive (IHO)
work environment through sexual remarks.
o Ex 1. “Alam mo ang ganda ganda mo. Na-
inlove ako sayo kasi ang puti puti ng hita
mo.” (not sexual harassment)
o Ex 2. “Ang ganda ganda mo. Kapag nakikita
ko yang hita mo, nililib*gan ako” (there is
sexual remarks/utterances)
2. Other laws that protect EEs to certain types of
discrimination:
a. Discrimination in pay
b. Discrimination in work opportunity (equal
work opportunity)
c. Discrimination in hiring
d. Discrimination in dismissal
e. Discrimination in sex
Labor Law Review
Dean Salvador Poquiz
Example:
i. Woman EE is dismissed because
she got pregnant;
ii. She was already employed but she
was dismissed because she might
get pregnant again;
iii. The woman EE was required to
sign a contract of adhesion that
should she get pregnant she will
be dismissed
In PAL case, the SC stated that getting
married does not necessarily mean getting
pregnant. One can get married without
getting pregnant, in the same manner as
one can get pregnant without getting
married.
Q: Where to file a case of illegal dismissal?
A: Regional Arbitration Branch of the NLRC having
territorial jurisdiction over the workplace of the
complainant
- Ex. If the EE is working in Manila but she is a
resident of Cebu, file the illegal dismissal case with
the Regional Arbitration Branch-NCR of the NLRC.
o In this case, the Labor Arbiter should not
conduct hearing on the merits right away.
o There is a requirement a “conference”
should be conducted between two parties
without the presence of their lawyer. The
purpose is to reach amicable settlement.
o If after such conference has been
conducted, no settlement was reached,
that’s the only time that the case will be on
the level of the Labor Arbiter.
o In the office of the Labor Arbiter, the LA
will notify the parties for the two
preliminary conferences.
Q: Can you settle under the preliminary conferences?
A: Yes.
o After two preliminary conferences were
conducted and no settlement has been
reached, you can move for additional
preliminary conference even if not stated
in the rules. The purpose is for the speedy
disposition of cases. Also, Art. 227 of the
Labor Code states that technical rules are
not binding but prior resort to amicable
settlement is encouraged.
Q: What are other laws that protect EEs:
a. Proper seating facilities
b. Law that provides for a nursery
c. Law that provides for breast-feeding facilities
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 Labor Law Review
Dean Salvador Poquiz

- Any act that provides comfort or convenience to

Labor Standards Law the human body which results in injury or death is
- It is a law that provides standards as to wages, compensable
hours of work, cost of living allowances including - Personal comfort doctrine
health, safety, dental, medical and compensation - Ex. In the working area under the heat of the sun,
benefits there is no portable water. An EE wanted to quench
- Primarily, when we talk of labor standards law, it his thirst so he crossed the street. While crossing
provides for economic benefits to a worker while the street, he was run over by a speeding jeepney
the worker is actually working resulting to death/injury – compensable because
- Provided under Book 3 of the Labor Code, including the act of quenching his thirst is an act of
Book 6 law on dismissal) ministration
- Cobra doctrine (concocted doctrine by Dean
Social Legislation (a.k.a. Welfare Legislation) Poquiz)
- A law that provides economic benefits to a worker o EE was attacked by a cobra while urinating
while the worker is NOT at work because of the
hazards of employment Q: What are the kinds of injury/death which are NOT
- Provided under Book 4 state insurance fund and compensable?
employee’s compensation law A:
a. Intoxication
Q: What are the hazards of employment? - Not mere drunkenness; it should be severe
A:
drunkenness, it should be over and above his
a. Compensable disease
b. Compensable injury (injury is a sudden change in drunkenness to the point that the worker is
the body brought about by an accident) entirely out of himself
c. Compensable disability b. Self-Inflicted Injury
i. Temporary total disability - GR: Not compensable
ii. Permanent total disability XPN: compensable in case of:
iii. Permanent partial disability i. Insanity
d. Compensable death
ii. Uncontrollable impulse (beyond the
Q: What are the three (3) main part of the Labor Code? nervous system to regulate or control;
A: beyond the human control to prevent
a. Pre-Employment something)
b. State of Employment Ex. Epileptic attack; EE in the state
c. Post-Employment delirium/tabula rasa
c. Notorious Negligence
Q: What are some of the principles applied in hazards
- Worker deliberately disregarded his own personal
of employment?
A: safety
a. Principle of peculiar risk – in the performance of
his duties and functions, risk is inherent in the
nature of the work of EE
- If there is injury or death in the performance of the
duties and functions, it is compensable
- Ex. Street workers
b. Act of God
- Ex. Seamen died because the vessel capsized –
compensable
c. Acts for the benefit of the company/ER
- Although it’s not EE’s duty to perform the activity,
if it is for the benefit of the ER and there is resulting
injury or death, it is compensable
- Ex. A security guard who is not yet on duty but
protected the company from burglar
d. Act of ministration

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SEPTEMBER 23, 2020
TAXONOMY OF LABOR LAWS
LABOR RELATIONS
Concerns employee organization, concerted activities, or
collective bargaining/negotiation activities including
unfair labor practices committed by the employer union.
- Springs from the very constitutional right of a worker:
right to self-organization embodied under the
Constitution.
- This includes the jurisdictional aspects of all labor
bodies:
• Office of the President
• DOLE
• Regional Offices of DOLE
• NLRC
• Regional Arbitration Branches of NLRC
• National Conciliation and Mediation Board
• Regional Arbitration Board
• Bureau of Labor Relations
- Covers also jurisdiction of Regional Directors of the
DOLE such as Visitorial and Inspection Powers (Art.
128) and the Adjudicatory Power (Art. 129) of the
Regional Director/Regional Office of the DOLE.
ADMINISTRATIVE LEGISLATION
This has something to do with laws that create
administrative bodies for administrative purposes. There
are labor bodies, although for administrative purposes,
they perform quasi-judicial functions, like the NLRC, the
Labor Arbiters.
DIPLOMATIC LEGISLATION
This is not from the point of international law and
diplomacy, but this refers actually to laws that provide for
machineries of amicable settlement, like conciliation,
mediation, grievance machinery, voluntary arbitration,
AIDA powers.
- Administrative Intervention for Dispute Avoidance
(AIDA) Powers: Power of the Secretary of the DOLE;
this is a mode of amicable settlement.
- EVA Powers (ex-officio Volunary Arbitration powers):
exercised by the Regional Directors, Undersecretaries
of the DOLE. They are deputized as ex-officio voluntary
arbitrators, part of the grievance machineries.
- Conclusive Arbitration Clause: needed for the CBA to be
effective. This is simply one referring to grievance
machinery and voluntary arbitration procedures. If this
is incorporated in the CBA, that is already the law
Labor Law Review
Dean Salvador Poquiz
between the parties. The union cannot stage a strike, or
file a notice of strike, without passing through the
procedure. If they do not comply, the union can be
liable for unfair labor practice. The employer should
also comply with this clause. The ER, through his
lawyer, can have the notice of strike dismissed if there
is no compliance with this clause.
Q: Assuming that there is a conclusive arbitration
clause in the CBA, may the parties agree that instead of
availing the grievance machinery, they should instead
resolve their dispute through voluntary arbitration?
A: YES. There is no legal prohibition for them to avail for
voluntary arbitration right way if so agreed by the practice.
The aim of the labor law is for speedy labor justice.
Technical rules of procedure and evidence are relaxed in
labor proceedings.
Q: Assuming that there is a conclusive arbitration
clause in the CBA, may a grievance be resolved even
without the machinery?
A: YES. A shop steward is a union officer who tries to assist
for the resolution of a grievance. If not resolved on this
level, that’s the time when the matter will be elevated to the
appellate level, which is management—to be decided by
either the general manager or manager or superintendent
or vice-president or any responsible officer of the company
as the case may be. If still not resolved, the Labor Code sets
in. The grievance machinery is the first step in the Labor
Code. There are steps in the grievance machinery. These are
steps that are provided in the CBA or by way of company
policy. The law however does not provided the process of
going through the grievance machinery. Labor Code says
that within 7 days, and the grievance is not resolved
through the machinery, the matter has to be automatically
transmitted for voluntary arbitration.
Q: What is the nature of the transition from machinery
to voluntary arbitration?
A: This is some sort of an appeal—from grievance
machinery to voluntary arbitration procedure.
Q: Who will resolve this grievance? Who has
jurisdiction to decide this?
A: The voluntary arbitrator, who is different from the labor
arbiter (the latter is for purposes of compulsory
arbitration). It has to be decided by the voluntary
arbitrator.
Q: Upon receipt of the decision of the voluntary
arbitrator (VA), can its decision be contested by an
aggrieved party?
A: YES. Under the old provisions of the Labor Code, the
decision of the voluntary arbitrator can be brought to the
CA within 10 days. Under the latest doctrine, the 10 day
period to bring the same to the CA was transformed
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into 10 day period to file a motion for reconsideration
(MR). If the MR is denied, from receipt of this denial, the
aggrieved party is given 15 days to elevate it to the CA
under Rule 43 (you call this rule, 10 & 15 Day Rule on
Decision of VA). Appeal of the decision of the NLRC should
be filed with the CA (St. Martin Funeral Homes Doctrine).
CONSTITUTIONAL AND STATUTORY BACKGROUNDS
POLICE POWER
Police Power: state has inherent power to make
legislations for the welfare of the people, through Congress.
It is the power to enact wholesome and reasonable laws not
repugnant of the Constitution, catering to the common good
(common good clause).
Q: Why common good and not general welfare?
A: Because in the preamble, the State shall promote the
common good. The difference is that general welfare
admits an exception. Caters only to the interest of a certain
sector of society. Common good promotes the welfare of
ALL the people.
- Art. 12, Sec. 6: The use of property bears a social
function, and all economic agents shall contribute to
the common good. Individuals and private groups,
including corporations, cooperatives, and similar
collective organizations, shall have the right to own,
establish, and operate economic enterprises, subject to
the duty of the State to promote distributive justice and
to intervene when the common good so demands
(Principle of Distributive Justice).
- PDJ is similar to eminent domain. An example is R.A.
6657 (Comprehensive Agrarian Reform Law)—to
promote the common good; to promote the welfare of
all the people.
- Two underlying principles of police power:
• Social Justice: in effecting this principle, it is
important that you should not impair, trample
upon the rights of other people (sic utere tuo ut
alienum non laedas).
o EX: You are a squatter. You have lived
there for so long already. You are now
claiming that you cannot be removed from
that place, in the name of social justice.
This is wrong. The application is
misplaced. You cannot violate impair,
trample upon the rights of other people.
o EX: You have the right to clean your house.
But do you have the right to dump your
trash unto other people’s property? NO.
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• Use your own so as not to injure another. In
asserting your right, you should not impair the
right of other people.
Q: Preamble is not a necessity but it is important. Why?
A: You can do away with preamble because it does not
create any right, it does not create any office, does not
impose any obligation to perform a duty or function. But it
is important because the preamble can be resorted to in
interpreting ambiguous and vague provisions of the
Constitution.
DOCTRINE OF INCORPORATION
Doctrine of Incorporation Clause: adoption of generally
accepted principles of international law as part of the law
of the land. We adhere to the International Labor
Organizations (ILO). We adhere to the ECOSOC, CRPCR
rights under the United Nations
- Relation to Labor: conventions of ILO are now sources
of labor law (J. Nachura).
- ILO conventions on the protection of children
- Protection of women
- Convention on the right to form associations/right to
self-organization
- These are now in the Constitution, and in the
legislations enacted by Congress.
PROTECTION TO LABOR
Protection to Labor Clause (Sec. 3, Art. 13, CONSTI): The
rights contemplated here are as follows:
1. Full protection to labor, full employment, and
equality of employment of opportunities for all to
be afforded by the State
2. Guarantee rights of workers to collective
organization/bargaining/negotiation
3. Security of tenure
4. Just and humane conditions of work
5. Right to a living wage
6. Participation in policy and decision-making
processes
7. Voluntary modes of settling disputes to foster
industrial peace
8. Regulation of relations between ER-EE, entitling
the latter to share in fruits of production.
- This is the basis of the liberal construction in favor of
labor (Art. 3 of Labor Code of the PH).
Q: What is the declaration of policy in the Labor Code?
A: Answer using Art. 3 of the Labor Code.
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THE STATE SHALL AFFORD PROTECTION TO LABOR, PROMOTE
FULL EMPLOYMENT, ENSURE EQUAL WORK OPPORTUNITIES
REGARDLESS OF SEX, RACE OR CREED AND REGULATE THE
RELATIONS BETWEEN WORKERS AND EMPLOYERS . THE STATE
SHALL ASSURE THE RIGHTS OF WORKERS TO SELF-
ORGANIZATION, COLLECTIVE BARGAINING, SECURITY OF
TENURE, AND JUST AND HUMANE CONDITIONS OF WORK .
Q: Why?
A: It is aimed at equality of opportunity, rights, and equality
before the law. Labor as a factor of production is weak,
helpless, and disadvantaged so the law aims to uplift their
status. Labor is at the mercy of capital. Labor is
economically dependent upon capital. Labor is perishable;
labor cannot wait to survive—he must immediately sell his
labor otherwise he starves, perishes, dies. Since it is weak
and helpless, it needs protection from the state. Without
such protection, he can be easily unceremoniously
dismissed anytime. Without such protection, they have
nothing to feed their mouths, they are easily persuaded or
convinced by ideological radicals. This will lead to Filipinos
fighting Filipinos. There will be a civil law. This will eat out
the bones and meat of the government.
As you protect labor, you should also protect the rights of
capital. The relationship is supplementary and
complementary. They are considered as equal partners to
economic development.
- When an employee commits an infraction, and still the
Labor Arbiter decides in his favor and orders his
reinstatement, the Supreme Court has held that this is
oppression, and this will lead to the self-destruction of
capital. Labor and capital are partners for national and
economic development.
Q: What is full employment?
A: It does not mean that everybody is employed. Those who
want (able and willing) to find work at the prevailing rates
of pay can find work without undue difficulty. There are
more job openings than job applicants.
Q: What is the requirement if there is full employment?
A: Constitution requires that those who are employed
should be provided with a decent wage. These workers
should be provided with a living wage.
Q: Distinguish living wage from minimum wage.
A: Not a mere subsistence wage; right to a wage sufficient
to enable the worker to live in reasonable comfort; a wage
that can provide him and his family a decent standard of
living. As opposed to minimum wage, which is a wage that
provides the minimum—the marking line, the imaginary
line that wages may not fall. You cannot bargain for wages
below the minimum.
FREEDOM FROM POVERTY
Labor Law Review
Dean Salvador Poquiz
Freedom from Poverty Clause: four letter definition:
missing much in life. The state is mandated to free people
from poverty by providing adequate social services,
promote full employment, a rising standard of living, and an
improved quality of life for all.
- Poverty: low status, with little to lose, little to respect,
little to be proud of, little to sustain efforts to improve.
It is a feeling of missing much in life, because of the lack
of satisfaction of the fundamental wishes.
SOCIAL JUSTICE CLAUSE
Social Justice Clause (Sec. 10, Art. 2, CONSTI) – Calalang v.
Williams: Social justice is "neither communism, nor
despotism, nor atomism, nor anarchy," but the humanization
of laws and the equalization of social and economic forces by
the State so that justice in its rational and objectively secular
conception may at least be approximated. Social justice
means the promotion of the welfare of all the people, the
adoption by the Government of measures calculated to insure
economic stability of all the competent elements of society,
through the maintenance of a proper economic and social
equilibrium in the interrelations of the members of the
community, constitutionally, through the adoption of
measures legally justifiable, or extra-constitutionally,
through the exercise of powers underlying the existence of all
governments on the time-honored principle of salus populi
est suprema lex. Social justice, therefore, must be founded
on the recognition of the necessity of interdependence
among divers and diverse units of a society and of the
protection that should be equally and evenly extended to all
groups as a combined force in our social and economic life,
consistent with the fundamental and paramount objective
of the state of promoting the health, comfort, and quiet of
all persons, and of bringing about "the greatest good to the
greatest number.".
- It is not for the scoundrels, but for those who do good.
- In the application of this principle, you have to invoke
this with clean hands.
Q: Should the employee be entitled to receive all his
salaries (payroll reinstatement) pending appeal?
A: NO. There should be no refund. The principle of social
justice renders inapplicable or ineffective the civil law
doctrine of unjust enrichment (Garcia v. PAL).
- The object is the common man, since the rich can
already stand through their own efforts. The target is
those among the lower brackets of society, so that
those who have less in life should have more in law
(Prof. Thomas Reid Powell).
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September 30, 2020
LAW ON DISMISSAL
No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be
denied the equal protection of the laws. (Art. III, Sec 1 of
1987 Constitution)
The one that is more related to labor is the right to
property. In a sense that, in one case the Supreme Court
said that a worker may not have any other property
except his labor. That is why the right to labor is treated
as property within the mantle of constitutional protection.
*Possible Bar Q: Why do you consider right to labor as
property?
A: It is because of the pronouncement of the Supreme Court
that a worker may not have any other property except his
labor. Therefore, the right to labor is treated as property
within the mantle of constitutional protection.
DUE PROCESS
it hears first before it condemns, it proceeds from inquiry
before rendition of a final judgement
based on the latin maxim 'audi alteram partem', which
means no one shall be condemned unheard
Different Types of Due Process
Due process as observed in criminal proceeding,
administrative, labor proceeding or civil proceeding
TYPES OF DUE PROCESS
1. Constitutional Due Process
Due process as applied against the government. This
encompasses all civil, criminal, administrative proceeding
2. Statutory Due Process
As provided by the SC in Agabon v. NLRC, this refers to due
process as observed in labor proceedings under the Labor
Code.
3. Contractual
Brought about by latest jurisprudence where the steps in
the observance or application of due process are provided
for either in a company policy or in an employment
contract.
Say for instance in a company policy it provides for the
steps before an employee is dismissed or in an employment
contract or in the rules and regulation of the company. If the
company fails to comply with these requirements provided
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in the company rules, policy or regulation or employment
contract then the employer is liable for violation of
contractual due process.
If there is a violation of the statutory or contractual due
process, then the employer is still liable for the normal
consequences of illegal dismissal.
*Possible Bar Q: What are the normal consequences of
illegal dismissal?
A: Reinstatement, Back wages, Damages, Attorney's fees
and 6% legal interest pursuant to BSP Circular
TYPES OF DISMISSAL IN RELATION TO DUE PROCESS
1. Dismissal for a just cause with due process
2. Dismissal for authorized cause with due process
3. Dismissal for health reasons with due process
4. Dismissal without just/authorized cause with due
process
5. Dismissal for a just/authorized cause without due
process (*BAR)
Dismissal for a just/authorized cause without due process
is actually the Wenphil Doctrine which was abandoned in
Serrano v. NLRC. Later on, the Serrano v. NLRC doctrine
was abandoned in Agabon v. NLRC.
The dismissal for a just/authorized cause without due
process is actually the Agabon v. NLRC which is also known
as Belated Due Process Rule.
Possible Bar Q: What is Belated Due Process Rule?
A: It is dismissal for a just/authorized cause without due
process.
Non-compliance with due process requirement in just
cause dismissal
Employer liable to pay indemnity or nominal damages
which is tempered in the amount of P30,000 (Agabon Case)
Non-compliance with due process requirement in
authorized cause dismissal
Employer is liable to pay indemnity or nominal damages
which is stiffer in the amount of P 50,000
Although this is the settled formula in nominal damages in
belated due process. There were cases decided by the SC
where the amount was tone down or reduced reasonably
considering the plight of the employer or company. (Ex:
employer on the verge of economic meltdown). SC said that
it would be better that rather than imposing the nominal
damages it would be better to impose only P 5,000 in lieu of
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 Labor Law Review
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P30,000 nominal damages. But still the settled formula is
P30,000 and P50,000.
Dismissal for Non-existent Cause (*BAR)
Example: An employee happens to be a suspected insurgent
or rebel. He was arrested, incarcerated without any charges
filed against him at all. In the meantime, he languishes in jail
and it was found out that he is a mere suspect so there is no
basis for his incarceration. So, he was released without any
criminal charges filed against him. It was found out that
indeed he is not a rebel or insurgent. He was dismissed
because of a non-existent cause. The cause for his arrest
was non-existent because in the first place he was not an
insurgent or a rebel. He was arrested for a cause which was
later found out that it was non-existent.
Hierarchy of evidentiary value
*BAR Q: Why is there no Doctrine of Perpetual
Employment?
A: If that would be the case, then any employee who
committed an infraction or violated a company rule or
regulation cannot be dismiss. That is a violation of
management prerogative to control, supervise, manage all
aspects of employment. That would be violative of the
Principle of Non-oppression.
Principle of Non-oppression
Neither capital nor labor shall act oppressively against each
other.
But if an employee was validly dismissed and he filed a case
of illegal dismissal. LA ruled that he was illegally dismissed.
In one case the SC said that that is an oppression against the
employer and that will lead to the self-destruction of
capital.

1. Proof beyond reasonable doubt TWO ASPECTS OF DUE PROCESS

2. Clear and Convincing Evidence
3. Preponderance of evidence 1. Substantive
4. Substantial Evidence - that relevant evidence It refers to the legality or illegality of the act of dismissal
which a reasonable mind might accept as adequate Simply means that no employee shall be dismiss except for
to prove or justify a conclusion. causes provided by law.

There were cases decided by the SC where the decisions of 2. Procedural

different divisions of the SC are at odds with each other. I It refers to the legality or illegality of the manner of
am inclined with the doctrine laid down by the SC in the dismissal.
case of Duty-Free Philippines (2012) decided by the SC
through Justice Peralta. . In labor proceeding it is DIFFERENCE BETWEEN JUST AND AUTHORIZED
substantial evidence. But in dismissal proceeding it is clear CAUSES ( *Take note ! Binibigay daw sa exam)
and convincing evidence in order to give flesh and blood to
the security of tenure clause. JUST CAUSES AUTHORIZED CAUSES
Labor proceedings- Substantial Evidence The dismissal process is The dismissal process is
Dismissal Proceedings- Clear and Convincing Evidence initiated by the employee initiated by the employer
(*Take note: in order to give flesh and blood to the security There is no payment of The law mandates the
of tenure clause) separation pay. payment of separation pay
XPN: total closure of
SECURITY OF TENURE business grounded on
Simply means that no employee shall be dismiss except for serious business losses
a valid cause. For non-compliance with For non-compliance with
the due process the due process
No employee shall be dismissed except for causes provided requirement the employer requirement the employer
by law. is liable for indemnity or is liable for indemnity or
nominal damages which is nominal damages which is
VALID CAUSES: tempered P30,000 tempered P50,000
• JUST CAUSES
• AUTHORIZED CAUSES Toyota Ruling- SC declared that in a just cause
dismissal there is no payment of separation pay.
Q: Is there such thing as Doctrine of Permanent XPN: If reinstatement is not possible the
Employment? employee will be paid separation pay in lieu of
A: There is no such thing.
reinstatement as a form of compromise.

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*Note: Take note of the exceptions. Iyan yung binibigay
sa bar. Just Causes and Authorized Causes are areas of
the bar and given every year.
SERIOUS MISCONDUCT
The law speaks about misconduct that is serious
It is a form of misconduct that is committed in an
aggravated or serious manner. This is a form of misconduct
that will justify dismissal.
Q: If it were a mere minor misconduct, is dismissal
proper?
A: Dismissal is not proper. If it were a mere minor
misconduct, dismissal is too harsh a penalty.
CASES OF SERIOUS MISCONDUCT
• Sexual harassment of a superior officer over
the victim employee .
The law on sexual harassment according to the supreme
court is enacted to protect employees from over sex
superiors.
• Gambling in company premises.
Because of its pernicious effect. If you were caught gambling
in company premises you can be validly dismissed. Why?
You have to consider that this is a social problem. Why?
Because of its pernicious effects upon the society, upon the
employee and his family.
Case: Yung general manager diyan sa paranaque kinuha
niya yung pera sa volt sinugal sa casino and talo. What
happened? Hindi niya na maibalik. He jumped over Pasig
River. Patay.
• Drug use in company premises.
If the employers would really want to dismiss an employee
for example because he was caught in flagrante walang
problema yon. But the employer can conduct drug test to its
employee. It is required as per jurisprudence ng supreme
court there are two tests to be complied with: the
preliminary test and the confirmatory test. It should be
confirmed kung talagang drug user siya. If there was no
confirmatory test conducted and he was dismissed there is
violation of due process. Test can be conducted by the
employer but if you were caught in flagrante of course you
can be dismissed but still the employer has to comply with
the due process required.
• Fighting in company premises.
Labor Law Review
Dean Salvador Poquiz
If there is fighting in company premises that disturbs the
peace of the workplace. If there is fighting in company
premises in the meantime the workers stop working. Bakit?
Magpupustahan yan kung sa pula o sa puti.
Q: If they do not perform their work it will violate what
principle in labor law? (*BAR)
A: Principle of no work no pay. That is the usual doctrine
pero ano yung may impact na doctrine na ibig sabihin din no
work no pay? Equal pay for equal work. Pwede rin. But it is
Fair day's wage for a fair day's labor.
• Drinking liquor inside company premises.
Drinking liquor may spawn disorder. It will also spawn
fighting in company premises.
• Sexual intercourse in company premises.
There is a place for sexual intercourse. Not in company
premises. It should be done in a privacy. Company is a place
where conduct business transactions. Sexual intercourse is
sacrosanct. It is sacred. It is only through this medium for
procreation otherwise there will be no civilization. But it
should be done in a manner within the bounds of legality
and morality.
Q: If it was done in decent and moral manner for
instance, a teacher married who married a male
teacher having an affair with an unmarried female
teacher. Is there immorality?
A: Yes, there is immorality.
Q: An unmarried male teacher, 50 years of age, having
an affair with his student who is 18 years of age. Both of
them have the capacity to marry each other Is there
immorality?
A: The supreme court said no. Both of them have the
capacity to marry each other. Age does not matter when it
comes to love affair. The heart has its own reason which
reason does not know.
St. Vincent Case
- it is a charitable organization. Both of them have
the capacity to marry each other but they do sexual
intercourse within the bounds of morality. They do
it privately. Nagkaanak sila. But Supreme Court
there is no immorality. Both of them have the
capacity to marry each other. Because if you are
going to base this on what do you call ecclesiastical
grounds you can be validly dismiss. But our law in
morality is secular in nature. That is why there is
no immorality.
• Theft (Basis of Dean's question in the 2019 Bar).
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 Labor Law Review
Dean Salvador Poquiz

In the case of theft, it is a just cause for dismissal. Why? That
is an act of dishonesty. That justify dismissal. But we are
going to discuss in a manner which reflects all aspects of the
step-in relation to dismissal.
Ex: In the case of a panadero, he has been employed in the
bakery for 15 years already. Fiance want to eat hot
pandesal. Baker get 15 pcs of pandesal. He gets out of
company premises. He was stopped by the security guard.
There is no receipt shown. He was reported by the
management and finally he was dismissed. He was in the
service for 15 years and during his stint of employment no
infraction committed. But for allegedly stealing 15 pcs of
pandesal, he was dismissed.
Q: 15 years of service. Allegedly stole 15 pcs of
pandesal. He was dismissed. Is the dismissal valid?
A: No, dismissal is not proper. Dismissal is too harsh a
penalty considering that value of the property taken is
negligible. You have to consider the value of the property
taken. If the value of the property taken is negligible,
dismissal is too harsh a penalty.
A: Dismissal is too harsh for penalty considering his length
of service.
A: Dismissal is too harsh considering it was his first offense
in his 15 years of service in the company under the First
offense Rule.
In this case although stealing is an act of dishonesty
dismissal is too harsh for penalty considering those factors:
length of service, value of property taken negligible and
under the First offense rule.
Q: If he is reinstated, is he entitled to payment for back
wages?
A: No. He is not entitled to back wages. In order not to give
premium to an act of dishonesty. (*Ito daw ilagay sa bar
booklet)
Q: So, the SC coined a rule that will a guide them in
opposing the penalty of dismissal. And this is known as
what rule?
A: This is known as the proportionality rule or the doctrine
of commensurate penalty.
Q: What is proportionality rule?
A: That the penalty to be impose must be proportional,
proportionate or commensurate to the degree of the offense
committed. If the offense committed is so serious or
aggravated, then the supreme economic death penalty
dismissal shall be imposed. On the other hand, if the offense
committed is light or not so serious, then the proper penalty
to be impose should be lighter also. Lighter penalty should
be imposed for a light offense.
DIFFERENT FACTORS:
1. Length of service
2. First offense rule - 1 and 2 cannot be applied
against another factor, gravity if the offense.
3. Gravity of the offense
4. Nature of employment.
The position of an employee in the company also
determines the type of penalty that can be impose.
Ex: Managerial employees, fiduciary employees.
The different classes of employees under the Labor
Code shall also determine the penalty to be impose.
Like in the case of managerial employee.
Q: Who is a managerial employee?
A: A managerial employee is alter ego of the management.
He is the extension of the person of management. Indeed, a
managerial employee is an employer. These positions
determine imposition of the penalty.

Dismissal is too harsh a penalty considering his length of

service. That is tenable if the value of the property taken is
negligible or if it was his first offense etc. But for instance,
he stole company property the value of which is 2 million
pesos. He has been in the service for 25 years. Do you think
he should not be dismissed? He should be validly dismissed
considering the value of property taken. In the words of the
Supreme Court, length of service is overshadowed by the
gravity of offense. You cannot apply length of service
and First offense rule as against gravity of the offense.
Meaning to say that in the imposition of the penalty of
dismissal there are certain factors and principles applied by
the Supreme Court.

Page 10 of 55

October 7, 2020
Dean P: So actually yung diniscuss natin sa proportionality
rule, gaya nung mga length of service, gravity of defense,
first offense rule, nature of the employment, nature of the
business, totality of infractions rule, principle of charity
compassion understanding in relation to social justice on
the broader ground of substantive justice, compassionate
justice, principle of equity—so pag alam niyo na yun, so at
least you have already certain guidelines, you know already
these factors, principles—usually applied by the Supreme
Court in imposing the penalty in dismissal.
Alam niyo yung mga diniscuss natin mga yan, basta alam
niyo yang mga principles na yan, you can answer any bar
question on dismissal in so far as imposition of penalty is
concerned. At saka wag niyong kakalimutan yung mga
dismissal is too harsh a penalty, yung mga ganyan—Length
of service is overshowed by the gravity of the offense etc.
Tandaan niyo yan.
JUST CAUSES
1. Serious misconduct
2. Willful disobedience or insubordination
3. Fraud or willful breach of trust
4. Gross and habitual neglect of duties
5. Commission of a crime or offense
6. Analogous causes
* Continuation:
2. Willful Disobedience
Willful because there is a deliberate intention to disobey a
reasonable rule or regulation of the company.
Reasonable in the sense that this is issued by the
company and it is reasonable as to its
implementation which should be complied with by
the employee. When there is a deliberate willful
disobedience on the part of the employee that will
justify the dismissal.
Actually, when you talk of willful disobedience, this is also
known as insubordination, but take note that in our study
of serious misconduct, we have taken this first offense
rule, in the case of first offense rule, if the offense is not so
serious, then the dismissal is too harsh a penalty. You have
to consider that, dismissal is too harsh a penalty—if it
was a mere minor offense. So if he is dismissed, the
Labor Law Review
Dean Salvador Poquiz
dismissal is too harsh a penalty. So yung first offense rule
applicable yan sa mga lighter offense where you do not
impose the supreme economic death penalty of dismissal.
Alright, it is a lighter offense but this has been going on for
several times, there is a repeated commission of the same
offense. Repeated commission of the same offense will
actually metamorphose into a form of serious
misconduct kaya kahit na lighter offense yan, ilang beses
mo naman ginagawa, it will amount to serious misconduct
which will justify dismissal.
Repeated commission of the same offense + Repeated
commission of the same irregularity = serious
misconduct
Example: Let’s say for instance in a motor pool of the
company, there is a rule or regulation there, that a driver
cannot take out a motor vehicle without the approval of the
supervisor. So what happened? The driver took out a
Mercedes. Why? He wanted to meet his girlfriend at Mcdo.
So without any approval from his supervisor because he is
not there, he was constraint to get out of the company
premises driving a Mercedes Benz, so they ate together at
Mcdo afterwards he returned to the company premises.
Upon arrival, he was berated by the supervisor alleging that
there was a violation of company rule and regulation which
will justify dismissal. When he was dismissed, he argued
that he cannot be dismissed. Sabi nung driver, “sir, bakit
niyo ko id-dismiss? It was my first offense. Dismissal is too
harsh a penalty.” Sabi nung supervisor, “hindi, dismissed ka
pa rin.”
Well the rule on regulation was valid, it is reasonable. He
was deliberately disobeyed by the employee. Remember
that this is a first offense, it is an isolated offense. He was
dismissed. Is the dismissal proper?
A: Dismissal was not proper. Why? Dismissal is too harsh a
penalty.
Let’s change the facts of the case/problem:
* So, he went at Mcdo to meet his girlfriend, after eating, he
returned to the company premises, while on his way to the
company premises, he met an accident. Why? He was
driving fast and furious. Actually sinumbit ko yan as bar
question last year, hindi lang binigay ni Justice. So he figured
in an accident and the Mercedes Benz was a total wreck and
because of this accident, it cause a tremendous damage to
the company. He was dismissed. Is the dismissal proper?
* Can you argue in your defense the first offense rule? OF
COURSE NOT. Why? You have to consider the amount of
damage done to the company.
Q: So is the dismissal proper?
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A: Yes. As a matter of fact, you are a driver and you are
entrusted with trust and confidence to take care of the
property of the company. That’s your duty and obligation as
a driver. You should be extra careful in driving but you did
not causing tremendous damage to the company. Actually,
that may be considered as a gross neglect of duty.
Alam niyo pag answer sa bar, in the process malalaman niyo
yung applicable principle brought about by the facts of the
problem. Eh alam niyo yung mga principles na ganyan,
pwede niyo nang sagutin kaagad, oh ganyan may trust and
confidence, you have to take care of the vehicles assigned to
you, you are a driver, so dapat maging extra careful in your
driving but you did not, causing damage to the property. Is
the dismissal proper?
A: Of course, yes. There is here what we call total lack of
care, total absence of care on the part of the employee. He
was grossly negligent in the performance of his duties and
functions as a driver. Therefore, the dismissal is proper.
Take note of that.
3. Fraud or Willful Breach of Trust
Failure to perform your legal duty in the performance of
your duties and functions, and there is a violation thereof.
Q: May this be a justifiable circumstance for your
dismissal?
A: Yes.
If there is a willful breach of trust and confidence, you know
when you talk about trust and confidence positions, I have
already discussed this to you, that a position of trust and
confidence has something to do with the protection of
company money and property and there was breach, there
was violation of such trust and confidence reposed upon
you by the employer. Will this justify dismissal?
A: Yes. For breaching such assigned trust and confidence to
you. REMEMBER basta trust and confidence positions
gaya ng auditor, accountant, property officer, teller, etc.
Tungkol sa property or money of the company. Basta
property and money of the company, tandan niyo,
Fiduciary positions yan. Take note of that.
4. Gross and Habitual Neglect of Duty
The Labor Code says “gross AND habitual”. This is enjoined
by the conjunction “AND” it is not “or” so it should be gross
and at the same time habitual. That was the wording of the
Labor Code.
Remember this: Although the Labor Code says gross and
habitual, several cases were already penned by the
Supreme Court where the Supreme Court said, although not
habitual, if it were gross, it will justify the dismissal. Even if
Labor Law Review
Dean Salvador Poquiz
it is not habitual, but the negligence is gross, then it will
justify the dismissal. What does it mean?
A: It simply means, people, the conjunction “AND”
interpreted also by the Supreme Court to mean also “OR”.
Kaya gross negligence OR habitual negligence. Although not
habitual, if it were gross, it will justify dismissal. So take note
of that.
5. Any Criminal Act or Offense by the Employee
against the Employer including Members of his
Family
It includes managerial employee. Kaya if you commit a
criminal offense or act against managerial employees that
will also justify dismissal. It is not confined only to the
employer or his members of the family also managerial
employees as per decisions of the Supreme Court.
6. Analogous Causes
Those causes of infractions inherently connected or related
with what we have taken up as just causes for dismissal
gaya ng serious misconduct, gross habitual neglect of duty.
Example:
a. Abandonment – it is neglect of duty also. Alam
niyo several times nagbigay na sa bar nitong
abandonment. When do they say that there is
abandonment? In abandonment, there is a
deliberate intention on the part of the
employee not to return. In other words, here,
there is an intention on the part of the employee to
cut off employee-employer relationship, his
relationship with the company. For this reason, he
did not return anymore. So he has no intention of
returning but you know to justify dismissal of an
employee who abandoned his boss as per
abandonment provided under the Labor Code, still
the employer is required under the Labor Code to
comply with the due process clause. Yan yung
tinatawag na two-notice rule without a hearing.
Q: Bakit sa abandonment walang hearing?
A: Ano ba kayo, simple lang, abandonee na nga siya eh.
Hindi niyo na makita eh. He already abandoned his post,
kumabaga sa ano, espiritu na lang siya. Oh magconduct ka
ng hearing? Hoy halika espiritu, halika, kasi nag abandon ka
eh. Ganon ba yun??? Kaya nga sabi ng Supreme Court, in
abandonment, employers should comply with the two-
notice rule but without a hearing. But the law says, you
have to comply with due process kahit walang hearing.
So here, there is a willful intention on the part of the
employee not to return.
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Illustration: The employee filed a leave of absence for 1
week. So what happened? After 1 week he did not return,
upon the expiration of leave of absence. It took him about 3
weeks before he returned to the company premises, when
he returned he was met by the security guard, ano sabi ng
security guard? Alam mo to tell you frankly, dismissed ka
na. Naawa man ako sayo, dismissed ka na kasi Nakita ko
yung HRD manager kinuha yung card mo dun sa time rack
tapos Nakita ko pinunit punit. Ikaw pala yun, naawa man
ako sayo pero wala akong magagawa, meron order sakin di
kita pwedeng papasukin dito. Sige na, pwede ko bang
kausapin yung HRD manager? Hindi nga pwede, kasi
imagine 3 weeks na bago ka bumalik dito, nakita ko nga
yung time card mo, pinunit eh.
You know, in 1 case ang sabi ng Supreme Court, tearing of
a time card of an employee is a manifestation that
indeed he was dismissed. What kind of dismissal?
Constructive dismissal. Actual case yan. Kaya kung
halimbawa pinunit yung time card ng employee, that
means constructively dismissed. Take note of that.
So what happened? Sinabihan nung security guard yung
employee, uwi ka na…it so happened yung company is
located in the vicinity of Quezon Ave. Naglalakad lakad siya
kasi wala naman siyang pera pauwi, nakita niya ngayon
“NLRC”, what he did is to drop by the NLRC and he was met
by the pseudo-lawyers, with the assistance of these lawyers,
he filed. So what happened? After filing, he went home.
Now, with the filing of the illegal dismissal or
constructive dismissal, is there abandonment? Pag
binigay sa bar ‘to, remember the cases decided by the
Supreme Court: The fact that the employee or worker filed a
case of illegal dismissal or constructive dismissal, THE FACT
OF FILING OF SUCH ILLEGAL DISMISSAL, negates
abandonment. Usually, ang ginagamit ng Supreme Court sa
abandonment ay yung NEGATE. Yan ang ilalagay niyo ah.
NEGATE. Negates abandonment. So in the case of
abandonment, ano yung sinabi ko? Two-notice rule shall be
complied with.
First notice – shall be addressed to the employee
or shall be sent to the employee’s address. This is
the first notice or what we call pre-notice or
notice of the specific charge. So remember that,
first notice of the specific charge, providing therein
the facts why he was notified on specific charges.
Nakalagay yung factual basis dun. There must be a
presentation of these facts or factual basis for the
first charge or specific charge sent to the
employee’s address. Eh kung halimbawa, wala na
siya dun, if he has already transferred his address,
just the same, he has to be notified.
Q: What is your evidence to the effect that you indeed
notified him under the due process clause?
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Dean Salvador Poquiz
A: Of course, you have to send this notice to registered mail
with return card. That’s an evidence that indeed you have
complied with the first notice requirement.
Now, eh ‘di wala na siya ron, still the employer is required
to notify him of the second notice or the last notice or the
post notice or notice of dismissal.
Last notice – the decision of the employer to
dismiss the employee for his failure to report to
work. In other words, he has already abandoned
his post. For that reason, he should be dismissed.
b. Gross inefficiency - kasi yung gross inefficiency,
actually this is also neglect of duty
c. Numerous unauthorized absences – this is also
inefficiency. Your lackadaisical move not to report
for work, you can be validly dismissed under this
analogous cause
d. Serious insult
e. Unbearable treatment
* Unreasonable prejudicial inconvenient transfer
pursuant to the Blue Dairy Doctrine, alam niyo yung
unreasonable prejudicial inconvenient transfer, under this
doctrine, amounts to constructive dismissal. If you were
transferred in a place where you cannot perform your
duties and functions, there is prejudice. Your transfer is
unreasonable. So what happens? What did you do? Finally,
you decided to resign but that is a form of a forced
resignation or involuntary resignation. (Blue Dairy
Corporation vs. NLRC, G.R. No. 129843)
Anong sabi ng Supreme Court? If there is serious insult, if
there is an unbearable treatment, if there is an
unreasonable transfer – all of these will metamorphose into
a case of constructive dismissal. So if you resign, that is
forced resignation. Oy, ang gamitin niyo
“METAMORPHOSE” kasi ang Supreme Court yan ang
ginagamit, usually hindi na ginagamit yung “it will amount
to constructive dismissal”. METAMORPHOSE. Anong malay
niyo, ako ang bar examiner niyo…
All of these metamorphose into a case of constructive
dismissal. Why? You resign against your will. You resign
because of the acts of the employer, serious insult. There
was a demotion, there was a diminution in pay.
NOTE: When you talk about constructive dismissal, the
most important element is QUITTING FROM THE JOB.
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The employee quits from the job because continued
employment has become impossible, unreasonable,
unlikely or unbearable under these circumstances.
Illustration:
a. Sexual Harassment – because of a request for
sexual favor by the superior officer, hindi siya
pinagbigyan accompanied by some sexual remarks
of the superior officer, the employee resigned
AGAINST HER WILL. This will metamorphose into
a case of constructive dismissal.
Nagfile ng case yung employee. Sabihin niyo, yes, the
woman can file a case of constructive dismissal because
continued employment has become oh mamili ka na:
impossible, unreasonable, unlikely or unbearable under
these circumstances.
Pwede mo piliin: continued employment has become
unbearable, impossible under the circumstances brought
about by the repeated sexual remarks uttered by the
superior officer which constrained the employee to resign.
Therefore, she can file a case of constructive dismissal. You
cannot go wrong, why? Your answer is the very meaning
of constructive dismissal.
b. Dati chief engineer siya, he has under him 100
people, he was assigned of an office full of
amenities, nandun na lahat, may refrigerator, may
TV, coffee maker, meron comfort room,
airconditioned pa, may jacuzzi pa, meron pang sofa
bed which can be used for any emergency.
Naka aircon, he caught the eye of the employer, nagalit yung
employer ngayon, dati chief engineer siya, ngayon ginawa
na lang siyang chief janitor… So he resigned, can he file a
case of constructive dismissal? Of course, yes.
Pag mga ganitong example, maiisip niyo na oh there is
serious insult. It wounds the feeling of a person not
necessarily physical. Unbearable treatment, not necessarily
physical.
Q: Itong bang constructive dismissal, illegal dismissal?
A: Yes. Constructive dismissal is illegal dismissal. Bakit? The
employer wanted to dismiss an employee, but he does not
want to take the initiative to dismiss him. So anong gagawin
ng employer? He will do some acts in order to compel the
employee to resign.
I gave a question in the bar last year, regarding constructive
dismissal also, actually it’s in your book, kaya yung mga may
sumagot sa bar na merong win-win solution, pinasa ko lahat
yun.
Labor Law Review
Dean Salvador Poquiz
Resignation – that is a voluntary undertaking, meaning to
say, it is voluntary in nature. In resignation, the employee
submits his resignation letter for personal reasons which
cannot be sacrificed over the exigency of the service
Resignation is a voluntary act of an employee whose
personal reasons cannot be sacrificed over the exigency of
the service.
Q: In resignation, what is more important, employment
services or personal reasons?
A: Personal reasons.
Q: When do you say that a resignation is complete?
A: Resignation is complete when it has already been
accepted by the employer, which should be in writing and
the acceptance MUST also be in writing.
Q: Can the employee resigning withdraw his
resignation BEFORE ACCEPTANCE?
A: Yes.
Q: AFTER ACCEPTANCE by the employer, can he
withdraw it?
A: No. Hindi na pwede i-withdraw pag na-accept na ng
employer. With the acceptance of the resignation, there is
already what we call termination of employer-employee
relationship. Tapos na.
NOTE: So if you WANTED TO WITHDRAW IT, it should be
BEFORE THE ACCEPTANCE.
The law says that it should be in writing. It has to be
accepted by the employer.
Illustration: What the employee did is that he tendered his
resignation NOT IN WRITING but verbally.
Q: Is there such thing as verbal resignation?
A: The Supreme Court said, there is no legal prohibition for
an employee to resign verbally. When the same is accepted,
resignation is complete.
* Bar Question given by Dean in the bar exam regarding
constructive dismissal:
The stolen company property of the employee, of course,
since he stole company property, what happened? He can
be charged criminally. When he was about to be charged
criminally with the prosecutor’s office, the employee was
summoned by the employer. What do you want? We will
charge you in court or you will resign?
Issue: Whether or not the invitation by the employer to the
employee so that the criminal charge will not push through
anymore, that he has to resign. Would you consider this as
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a form or constructive dismissal if he resigned against his
will upon the invitation of the employer?
A: Win-win solution. It is in your book. Here, there is no
constructive dismissal. It is indeed a win-win solution to
both parties, the employer and the employee. On the part of
the employee, he’s employment record will not be tainted
by the criminal charge of theft and that it will be his
passport to future employment opportunities. On the part
of the employer, it will save the employer from protracted
costly litigation, kasi pag may kaso na, pwedeng tumagal
yan nang mahabang panahon which will sap the energy of
the company, in what manner? Pera and efforts.
AUTHORIZED CAUSES
1. Introduction of labor-saving
device/automation
2. Retrenchment
3. Redundancy
4. Disease
5. Closure of business
6. Analogous causes
NOTE: In authorized causes, you have to MEMORIZE ALL
THE REQUIREMENTS FOR EACH AND EVERY AUTHORIZED
CAUSE.
1. Introduction of labor-saving device
This is also known as automation. Here in automation, there
is a replacement of workers by machines which results in
technological unemployment for management and
efficiency purposes. Why? With the introduction of labor-
saving device, although this may cause so much but in the
final analysis, it would redound to the welfare of the
employer.
Example: San Miguel Corporation Case
Dun sa dating plant nila, yung machine only produces very
few bottles of the machine but they have replaced this with
a machine that can produce several, hundreds of bottles in
a minute kaya marami ang nap-produce na bottles of beer,
definitely, if you are going to introduce this machine you
have to discharge, dismiss some of employees. Halimbawa,
100 employees with the introduction of labor-saving
device, 10 na lang kailangan. 90 shall be discharged
resulting in what? For purposes of economy and for
purposes of management efficiency. Bakit? Dati 100
people you are going to supervise them. Now, 10 na lang.
Q: The law provides requirements to validate
automation. What are they?
A:
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a. Two separate notice rule (in just cause, two-
notice rule)
▪ 30-day notice to the DOLE
▪ 30-day notice to the employees to
be dismissed or discharged.
b. Fair and reasonable criteria
c. It must be done in good faith
d. Payment of separation pay
• Dito sa automation, the company is
NOT LOSING. So magkano ang
separation pay? 1 month pay for
those who have less than 1 year of
service or at least 1 month pay for
every year of service for those who
have rendered services beyond 1
year.
a. Two Separate Notice Rule
Yung sa notice of discharge, actual cases ‘to, ang ginawa ng
employer, just notified the employees to be discharged
brought about automation, the names of the employees to
be discharged are posted in the bulletin board of the
company premises.
Q: Is there a valid notice of termination?
A: The notice shall not be posted in bulletin boards and
other places of the company because the Supreme Court
said, notice the employees to be discharged under
authorized cause dismissal must be given an INDIVIDUAL
NOTICE OF TERMINATION OR DISMISSAL.
If the employer failed to comply with this requirement, the
Supreme Court said, if some of the requirements on
authorized causes dismissal are not complied with or any
one requirement is lacking, THERE IS NO VALID
AUTHORIZED CAUSE DISMISSAL. It will metamorphose
into a case of constructive dismissal.
b. Fair and Reasonable Criteria
The criteria to be complied with should be reasonable.
These criteria are not provided under the law, they are
perhaps provided in the company rule or policy or these are
the criteria as already agreed by the parties between the
employer and the union in the respective collective
bargaining.
Example:
1. Age requirement
2. Last in – first out
c. It must be done in good faith
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Q: Ano ang sabi ng Supreme Court sa partial closure of

Ground for dismissal Amount of business?
Separation Pay A: That is to be treated as a form of retrenchment. Kaya
liable pa rin ang ABS-CBN to pay separation pay despite the
Introduction of labor- 1 month pay for
1 fact that the closure of the entire radio network is grounded
saving device those who have less on economic losses. Pero, pag total closure yan, talagang
than 1 year of nawala na, hindi liable ang ABS-CBN to pay separation pay
service or at least 1 as per mandate of the Labor Code kasi pag serious business
month pay for every losses, walang separation pay.
2 Redundancy year of service for
those who have In payment of separation pay, 1 month pay for those who
have less than 1 year of service or ½ month pay for every
rendered services
year of service for those who have rendered services
beyond 1 year. beyond 1 year.
3 Retrenchment 1 month pay for NOTE: The computation of separation pay is based on the
those who have less ground on which it is based.
4 Disease than 1 year of
service or ½ month Q: What does the phrase “to prevent losses”
pay for every year of contemplate?
service for those A: The Supreme Court said, if the employer can perceive
5 Closure of Business that sooner or later its economy will go down to the drain,
who have rendered
then the employer should do something. He should not wait
services beyond 1 for that period or time that he incurs actual losses. So “to
year. prevent losses” does not only contemplate actual losses. It
also contemplates impending or anticipated losses. The law
Basta in good faith, valid. Again, if in bad faith, it will does not require na meron na actual losses.
metamorphose into a constructive dismissal.
NOTE: kaya nga yung separation pay sa retrenchment ay
2. Retrenchment ½ month pay lang kasi pa-bagsak na nga yung company.

This is a form of an authorized cause dismissal. The word
“retrench” mean reduce, reduction. You reduce company
personnel to prevent losses.
The Supreme Court held that in retrenchment, the purpose
is to prevent the eventual economic catastrophe that will
lead to the downfall of the employer or the company.
* Submitted bar question last year: ABS-CBN, because of
serious economic losses or financial reverses closed down
its entire radio network in the entire Philippines. Those
affected by the closure, filed charges against ABS-CBN and
demanded among others, payment of separation pay.
During the hearing, sabi ng ABS-CBN, we are not liable
because we closed down the radio network due to economic
losses. Is the argument of ABS-CBN tenable?
A: No. ABS-CBN Is still liable to pay separation pay. Despite
the fact that the closure of the entire radio network is
grounded on economic losses. Why? Remember, what has
been embarked by ABS-CBN is not a total closure of
business but a mere partial closure of business. Nandyan pa
yung TV Network. Ang nawala lang yung radio network so
that is partial closure of business.
Ang importante sa retrenchment yung partial closure of
business. Wag niyo yan kakalimutan.
Q: Does the law provide for partial closure of business?
A: Yes. The Labor Code provides that closure of a particular
division, department, closure of a particular economic
activity of the employer not necessarily closing the whole
company.
There are 2 types of closure: partial and total
3. Redundancy
Q: In redundancy, is there duplication of work
functions?
A: The Supreme Court said that in redundancy, not
necessarily that there is a duplication of work functions. A
position is redundant when it is superfluous, and
superfluity is the outcome of some factor such as:
a. over-hiring of workers
b. closure of a particular line of
economic activity
c. decrease in the volume of business

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So, if there are additional surplus worker that are not

needed any more economically by the employer, they
should be dismissed or that there are workers who are in
excess of the requirements of the company kaya may over-
hired workers.

Q: How do you go about this decline of volume of

business?
A: If there is a decline in the volume of business, this may be
brought about by lack of raw materials, there is a decrease
of production.

Example: In a company, there are several departments.

Halimbawa, department A, department B. The employees of
department A’s responsibilities were transferred to the
employees of department B. In effect, the employees of
department A cannot anymore pursue rendition of their
services because their functions have already been
absorbed by the employees of department B. This is one
case where the Supreme Court said, this results in
redundancy on the part of the employees of department A
therefore, they should be dismissed.

NOTE: ginagamit ng Supreme Court minsan,

“redundadated”. Pero ang popular na ginagamit,
“redundant”. Kaya ilagay niyo sa bar exam, “redundant”
baka di alam ng bar examiner yung “redundadated”.

4. Closure of Business

It must be done in good faith.

If the total closure of business is not grounded on serious

business losses, the employer is still required to pay
separation pay: ½ month pay for every year of service but if
it were grounded on a serious business losses, no payment
of separation pay but if it were a mere partial closure of
business, then this will be treated as a form of
retrenchment. Therefore, the employer is liable to pay
separation pay. Tandaan niyo yan.

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OCTOBER 14, 2020 There is no more need on the part of the prevailing
employee to file a motion for the issuance of a writ of
execution for purposes of reinstatement.
DIFFERENT TYPES OF EMPLOYMENT
Instances when reinstatement is not proper, barred, or
Q: What are the normal consequences of illegal
not feasible:
dismissal for violation of both Procedural and
Substantive Due Process? ***
1. Dismissal for a Cause
SC: Reliefs in Illegal Dismissal
2. Laches
3. Waiver
1. Reinstatement
➢ restoration of the dismissed employee to his
The prescriptive period for reinstatement is 4 years. If there
former position.
is an Order of Reinstatement and the employee did not
➢ It is immediately executory and at the same
assert his right or claim for reinstatement, it is deemed a
time self-executory. There is no more need of
waiver on his part. If there is an undue delay on the part of
for the issuance of a writ of execution to
the employee to assert his claim, the claim will become
implement the reinstatement order by virtue
stale. Stale claim amounts to laches.
of the decision of the LA.
Q: When there is an Order of Reinstatement by the LA
The employer is given two options, whether to reinstate
but in the meantime the employee is lucratively
the employee:
employed in other companies, is this a manifestation of
▪ Physically
waiver of reinstatement?
▪ Pay Roll
A: No, the employee can continue on his employment but for
the employee to claim such right of reinstatement, he must
The employer can choose. It is given to the employer. If the
do it within period of prescriptive period. But in the
employer does not want to reinstate him physically, he can
meantime, the employee can still get employed in other
reinstate him in the payroll. The employee reinstated in the
companies when waiting for the outcome of the case
payroll receives his salaries pending appeal.
because the employee have to earn out living in order to
feed himself and mouth of his family. That is not considered
Payroll Reinstatement is only applicable in LA level. There
as laches.
is no such thing as payroll reinstatement in the NLRC, CA
and SC level.
4. Principle of Strained Relationship
Q: Why does the employer reinstate the employee in the
The employer cannot say “Oh, we cannot reinstate you
payroll?
because you filed a case of Illegal Dismissal against us and
because of that we already have strained relationship.”
1. The employer believes that the dismissal is valid;
and
But if in the meantime, with the employer and the employee
2. The purpose is to prevent a situation where the
there is already what we call severe antagonism. Then
actual reinstatement of the employees will cause
reinstatement is not feasible anymore.
demoralization to other co-employees.
If reinstatement is not any more feasible/possible, then the
The LA shall issue an order for the reinstatement of the
EE shall be paid separation pay as form of compromise to
employee. It is already provided in the decision of the LA.
reinstatement.
Q: If there is a stubborn refusal on the part of the
In lieu of reinstatement, he should be paid separation
Employer to reinstate the employee and you were the
pay as a form of compromise to reinstatement.
lawyer of the prevailing employee, what should you do?
5. The position has already been abolished/ filled up.
1. File a Motion to cite in contempt the employer;
2. File a Motion for the payment of wages or
Q: What is the remedy?
monthly salaries;
A: The employee should be reinstated in a substantially
3. Under the Labor Code, Motu proprio, the LA
equivalent position.
even without any motion can issue writ of
execution only for purposes of reinstatement.

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If there is NO substantially equivalent position, then the
employee should be paid separation pay as a form of
compromise to reinstatement.
6. If there is closure of business, then reinstatement is
a legal and physical impossibility.
It is legally and physically impossible to reinstatement
an employee due to closure of business.
7. The employee has become over-age.
Example, nung irereinstate na siya, the employee is already
65 years old. 65 is the compulsory retirement age.
8. Physical Disability
Perhaps, before reinstatement he figured in an accident
causing the amputation of both legs and hands.
9. Prescription
Q: What is the prescriptive period for Reinstatement?
A: 4 years.
Q: Why 4 years?
A: Following the prescription in dismissal because in
dismissal, it is 4 years. We do not follow the Labor Code but
follow the Civil Code provision.
10. Reinstatement is not conducive to working
harmony.
This is related to strained relationship.
11. The Employee does not want to be reinstated.
Q: Is that an absolute right of an employee?
A: Yes, the employee can reject reinstatement. This is a
personal matter on his part. Perhaps, because of fear of
reprisal. Baka siya patayin, the Employer will harass him,
will make it hard for him to perform his duties and
functions, for a little mistake he will be disciplined.
He does not want to be reinstated for fear of his life, baka
sobra talaga alitan nung ER at EE, ayaw na niyang bumalik.
Pwede siya itransfer sa malalayong lugar.
It is the discretion of the employee not to be reinstated.
12. As per mandate of the law.
Examples:
A. RA 8042 as amended by RA 10022, in the case of
OFW/Seaman.
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Dean Salvador Poquiz
Why? Because they are employed in a fixed term or
contractual basis even if he was illegally dismissed or
prematurely repatriated that will amount to Constructive
Dismissal (that will metamorphose to a case of Constructive
Dismissal).
But the voluntary repatriation, voluntary in nature that is
treated as voluntary resignation.
A. Kasambahay law. Nature of relationship is
fiduciary.
Babawi ako, pinagsaing mo ng kanin ang nilagay na tubig ay
tubig sa inidoro or pinagprito mo ng hamburger tapos ano
ginawa, kumuha ng hamburger ng patty tapos suminga ng
suminga, tapos nilagay sa hamburger. “HAMBOOGER ”;
ginawang motel ang bahay mo.
NOTES
There can be Illegal Dismissal but there is no reinstatement.
Q: Where should the case be filed?
A: Walang jurisdiction ang LA kahit na Illegal Dimissal ng
kapitbahay, ang may jurisdictiron Regional Director ng DOLE
*** exception yan sa Illegal Dismissal cases na dapat sa
Regional Arbitration Branch ng NLRC sa LA.
3. Full Backwages
➢ Restoration of the lost income due to Illegal
Dismissal.
➢ It is not subject to qualification or deduction from
income derived from other sources.
So income earned from other sources or derived from other
sources cannot be deducted from the backwages, kaya
tinawag na full backwages without qualification or
deduction.
The cut-off date of the full backwages doctrine which is
March 21, 1989 must also be considered. If the cause of
action transpired prior to March 21, 1989, the
prevailing doctrine is Mercury Drug Doctrine,
otherwise known as the ‘Teehankee Formula’ which is
3 years backwages without qualification or deduction.
Instances when there is no award of backwages or little
backwages:
a. ER is in good faith in dismissing an
employee.
b. Dismissal is too harsh a penalty.
4. Damages
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In Illegal Dismissal, there is a violation of the constitutional
right of the worker which is the right to labor - a property.
Q: What kind of damages can be awarded?
A: Not only damages under the Labor Code, but also
damages in Civil Code may be awarded by the LA.
i. Actual Damages [Full Backwages]
ii. Moral Damages
iii. Exemplary Damages
Because the dismissal was done in a wanton, oppressive or
despotic manner it entitles the employee to the award of
moral damages. While in exemplary, to set an example.
In moral and exemplary damages, the factual and legal basis
must be discussed by the LA in the text of the decision itself.
Otherwise, if it is just awarded in the dispositive portion
without any explanation or dissection as to the basis factual
or legal, it is not proper and should be deleted.
If there is no basis for the award of moral damages, then
there is no basis for the award of exemplary damages. And
if there is no basis for the award of moral and exemplary
damages, then there is no basis for the award of attorney
fees. (OJON Electric Company Case)
Note: Sorry, di ko po makita tong case na to.
Damages should be proven by way of substantial damages.
Q: Can the moral and exemplary damages be equal in
amount (pantay)?
A: Yes.
Ex. Moral – 100k; Exemplary – 100k;
5. Attorney’s Fees
Art. 111, LC is Attorney’s fees in the form of damages. It is
awarded to the employee.
Q: Why is it awarded to the employee?
A: Because these are damages awarded to the employee for
having been compelled to litigate his case and in the
process, he incurs litigation expenses. Litigation expenses
are covered by attorney’s fees. Attorney’s fees in its
extraordinary concept.
Ordinary concept is that agreed upon by the lawyer and his
client-employee.
Ex: 10%, 20%. If no contract, apply the principle of
Quantum Meruit.
6. Legal Interest of 6%
Labor Law Review
Dean Salvador Poquiz
Pursuant to the BSP Circular, award 6% legal interest to the
monetary awards.
TYPES OF EMPLOYMENT
1. REGULAR EMPLOYMENT
As a rule, there are two types of Regular Employment:
I. As to the nature of work
➢ The employee performs job that is usually
necessary and desirable in the usual business of the
employer.
The law uses the word ‘USUAL’ twice.
II. As to years of service
➢ The employee has rendered services for at least 1
year whether continuous, broken or intermittent.
o 555 Doctrine
- More than 1 year [5 x 3 = 15];
➢ Initial 5 months, later on dismissed. Hired again for
5 months, dismissed. Another 5 months, rehired.
Then hindi na siya hinire ulit. This amounts to
regular employment. NOTE: ‘at least one year’
➢ Constant rehiring;
Constant renewal of contract is a badge of regular
employment. ** (basta one year and above, kahit pahinto
hinto basta pag tinotal mo one year and above = regular)
XPN: Millares Case
MILLARES VS. NLRC
It is clear that seafarers are considered contractual
employees. They cannot be considered as regular
employees under Article 280 of the Labor Code. Their
employment is governed by the contracts they sign every
time they are rehired, and their employment is terminated
when the contract expires. Their employment is
contractually fixed for a certain period of time. They fall
under the exception of Article 280 whose employment has
been fixed for a specific project or undertaking the
completion or termination of which has been determined at
the time of engagement of the employee or where the work
or services to be performed is seasonal in nature and the
employment is for the duration of the season.
• Despite constant rehiring, an OFW including a
seaman will never attain regular employment
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because they are employed for a fixed term or fixed
period, contractual basis.
Example: *** An Auto-repair shop, covering 1-hectare
lot. It hired the services of a mechanic. Is a mechanic a
regular employee?
A: Yes, because he performs job that is usually necessary
and desirable to the usual business of the employer which
is an auto-repair shop. The principal business is that of
auto-repair. Mechanic is usually necessary in relation to the
principal business of the employer which is an auto-repair
shop.
Q: The auto-repair shop was devastated by typhoon; it
hired the services of a carpenter. Is the carpenter a
regular employee?
A: Consider the meaning of regular employment as to years
of service.
1st Answer: A carpenter is not a regular employee because
he performs job that is not usually necessary and desirable
to the usual business of the employer which is an auto-
repair shop.
2nd answer: A carpenter is not a regular employee because
he only performs INCIDENTAL work in relation to the
principal activity of the employer which is an auto-repair
shop.
Q: Since it is a 1-hectare lot, the carpenter is the only
one hired. He was able to repair the auto-repair shop
for 10 years. Is the carpenter a regular employee?
A: Can now use regular employment as to years of service.
Yes, because he has already rendered service for at least one
year. In the case at bar, 10 years.
2. CASUAL EMPLOYMENT
3. PROBATIONARY EMPLOYMENT
➢ Probationary period is training period. It is the
period when the worker has to learn the skills of
the job. It is the preparatory period for regular
employment.
➢ General probationary period is 6 months. That is
the rule.
XPN:
• Employer and Employee agreed for a probationary
period below 6 months for the benefit of the
employee.
• It can also be beyond 6 months.
Ex:
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Dean Salvador Poquiz
a. The Manual of Department of Education
requires 3 years probationary period for
teachers. A teacher with a full-time
satisfactory service.
b. If the nature of the job requires extensive
training.
Ex: Company is engaged in the
manufacture of atomic bomb.
➢ Can also be related with the study of the special
types of workers:
✓ In this special types of workers, upon the
expiration of their training period, they can become
regular employees.
A. Apprentice
▪ In case of the expiration of the apprenticeship
contract, the employer is not compelled to employ
him but there is no legal prohibition to employ him.
If he is employed, then he becomes a regular
employee.
▪ Another instance, where Apprentice becomes a
regular employee is when there is an
Apprenticeship contract signed between the
parties but is it not approved by the TESDA. Is this
valid? Considering that there is no apprenticeship
program as approved by TESDA covering such
apprenticeship training program.
What is the legal consequence?
A: The apprenticeship contract is unenforceable.
Null and void. Apprentice becomes a regular
employee.
B. Learner
▪ Employer is compelled to employ him/her upon
expiration of training period. He is automatically
considered as a regular employee.
▪ In case of premature termination of learnership
contract, a learner becomes automatically a regular
employee. Provided, he has already been trained
for 2 months.
If not yet trained for 2 months and there is pre-
termination, he does not become regular employee.
C. Handicapped/ Disabled Worker/Person with
Disability
4. PROJECT EMPLOYMENT
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➢ Employed for a project or undertaking;
➢ Constant rehiring amounts to regular employment.
XPN: Despite constant rehiring, if the company
providing services is a construction company,
such employee will never become a regular
employee. Because the workers already
acquired the necessary skills of the trade. The
employer will not anymore hire workers to be
trained again. Dating workers, yun na din
ieemploy.
➢ For every project terminated, it requires a report to
be submitted to the nearest DOLE office. Several
projects terminated, several reports to be made.
What is the consequence if not reported?
A: The so called project employees cease to become
as such and they become regular employees.
➢ Upon end of the project, ER- EE relationship is
terminated. Related/Akin to fixed-term, no need
for a notice of termination.
When the worker is employed for project to project, it is a
BADGE of regular employment.
5. FIXED TERM
➢ The law allows this, the Labor Code even the Civil
Code.
➢ Provided that the fixed period/fixed term is
consensual in nature that the employee so hired
knew beforehand that he is being employed for a
fixed term/period that upon expiration or arrival
of the day certain there is already automatic
termination of ER-EE relationship without any
need of notice of termination.
In fixed term, upon arrival of the day certain the
contract terminates by itself.
As an example, those contract between the government and
a franchisee. Can it be modified by Congress? Yes, in the
form of a law. But it is also in the form of a contract, so the
contract terminates by itself.
6. SEASONAL EMPLOYMENT
➢ An employee was only hired for a particular
season.
Q: An employee who was employed for several seasons.
Is he covered under the SSS?
A: An employee who has already been hired or employed
for season to season performing the same task is considered
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as a regular employee, therefore, such worker is covered
under the SSS.
When a worker is employed for season to season, such
worker is a regular employee.
7. NON-PROJECT EMPLOYMENT
➢ Employed without regard to a specific
undertaking/ project;
Q: Can they be considered as regular employees? (Also
applicable to project employees)
A: Yes. They may be members of a work pool; When you are
a member of a work pool, the employer at any time can pull
you out and assign you to different projects; from one
project to another project; from one phase of a project to
another phase of the same project; and not allowed to
render services to another company/ employer, then you
are treated as a regular employee.
PRESCRIPTIVE PERIOD
THREE YEARS
Purely Money Claims under the Labor Code
Jurisprudence: Incremental Proceeds out of Tuition Fee
Hikes [UE Case; Manuel Quezon University Case]
Employees Compensation Claims (State Insurance Fund,
Compensable Diseases, Compensable Injuries,
Compensable Death, Compensable Disabilities)
Service Incentive Leave
➢ The reckoning period should start from the
receipt of the denial of the claim of the service
incentive leave.
Criminal Cases
➢ As a rule, criminal cases under the LC is 3 years.
XPN:
▪ Unfair Labor Practice = 1 year
▪ Simple Illegal Recruitment = 5 years
▪ Illegal Recruitment constituting Economic
Sabotage (Syndicated/Large Scale) = 20 years
▪ Criminal aspect of the SSS Law = 4 years; but the
prescriptive period in SSS claims = 10 years
FOUR YEARS
Illegal Dismissal = 4 years
➢ (Callanta vs Carnation Phil)
- Why do we follow 4 years, in illegal
dismissal? We do not follow the Labor Code
provision because there is injury to the
constitutional right of the worker which is
the right to security of tenure or the right to
property. The right to labor is considered by
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the Supreme Court as a property. That is the
reason why the prescriptive period is 4
years and why there is an of damages.
Reinstatement, Full Backwages, Damages, Attorney’s
Fees (Normal Consequences of Illegal Dismissal) = 4
years
GSIS Claims = 4 years
o XPN: A government retired employee but
instead of filing his retirement claim went to the
US. After 10 years, he came back to the
Philippines, he filed a retirement claim with the
GSIS, but it was denied on the ground that it has
prescribed. Will the claim prosper? Yes. Under
the GSIS Law, there are two claims that does not
prescribe which are retirement and insurance
claims. Therefore, the claim is tenable.
UNIVERSITY OF THE EAST vs. UNIVERSITY OF THE
EAST EMPLOYEES’ ASSOCIATION
RULING: The Court agrees with UE and holds that UEEA’s
right to question the distribution of the incremental
proceeds for SY 1994-1995 has already prescribed. Article
291 of the Labor Code provides that money claims arising
from an employer-employee relationship must be filed
within three (3) years from the time the cause of action
accrued. In the present case, the cause of action accrued
when the distribution of the incremental proceeds based on
percentage of salary of the covered employees was
discussed in the tripartite meeting held on June 19, 1995.
UEEA did not question the manner of its distribution and
only on April 27, 1999 did it file an action based therein.
Hence, prescription had set in.
MANUEL L. QUEZON UNIVERSITY ASSOCIATION vs.
MLQ UNIVERSITY
The petitioners contend that the prescriptive period on
their claims for salary differentials for the school years
1974-1975 and 1975-1976 was interrupted by their
written demand on the University and the latter's
admission of the obligation. Indeed, Article 1155 of the Civil
Code provides that "the prescription of actions is
interrupted when they are filed before the court, when
there is a written extrajudicial demand by the creditors, and
when there is any written acknowledgment of the debt by
the debtor."
However, the argument will avail them nothing for the
records shows that their written demand, as well as the
University president's reply thereto were both written on
November 4, 1974. Thereafter, the three-year prescriptive
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period resumed running and expired on November 4, 1977.
It was not interrupted by the complaint which they wrote to
President Marcos on August 8, 1977, for, as provided in
Article 1155, the claim should be filed "before the court," or
addressed to the debtor, the University. To recover their
salary differentials for the school years 1974-75 and 1975-
76, the petitioners should have filed their claims on or
before November 4, 1977. Regional Director Pucan did not
err in holding that their claims had already prescribed when
their complaint was filed on April 24,1979.
The ten-year prescriptive period fixed in Article 1144 of the
Civil Code may not be invoked by the petitioners for the
Civil Code is a law of general application, while the
prescriptive period fixed in Article 292 of the Labor Code
(now Art. 291) is a special law applicable to claims arising
from employer-employee relations.
CALLANTA vs. CARNATION PHILIPPINES
It is a principle in American jurisprudence which,
undoubtedly, is well-recognized in this jurisdiction that
one's employment, profession, trade or calling is a
"property right," and the wrongful interference therewith is
an actionable wrong. The right is considered to be property
within the protection of a constitutional guaranty of due
process of law. Clearly then, when one is arbitrarily and
unjustly deprived of his job or means of livelihood, the
action instituted to contest the legality of one's dismissal
from employment constitutes, in essence, an action
predicated "upon an injury to the rights of the plaintiff," as
contemplated under Art. 1146 of the New Civil Code, which
must be brought within four [4] years.
In the instant case, the action for illegal dismissal was filed
by petitioners on July 5, 1982, or three [3] years, one [1]
month and five [5] days after the alleged effectivity date of
his dismissal on June 1, 1979 which is well within the four
[4]-year prescriptive period under Article 1146 of the New
Civil Code.
Even on the assumption that an action for illegal dismissal
falls under the category of "offenses" or "money claims"
under Articles 291 and 292, Labor Code, which provide for
a three-year prescriptive period, still, a strict application of
said provisions will not destroy the enforcement of
fundamental rights of the employees. As a statutory
provision on limitations of actions, Articles 291 and 292 go
to matters of remedy and not to the destruction of
fundamental rights. As a general rule, a statute of limitation
extinguishes the remedy only. Although the remedy to
enforce a right may be barred, that right may be enforced
by some other available remedy which is not barred.
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 Labor Law Review
Dean Salvador Poquiz

POINTERS PRELIMS
✓ General Principles and Concepts
✓ Art. II, 1987 Constitution
✓ Art. XIII [Constitutional Rights of a Worker]
✓ Social Justice Clause
✓ Art. IX-B, Sec. 2(1),(5)
✓ Test of Employer-Employee Relationship
✓ BAR QUESTIONS 2019
✓ St. Martin Funeral Homes vs. NLRC Case

ST. MARTIN FUNERAL HOMES vs. NLRC

Therefore, all references in the amended Section 9 of B.P.

No. 129 to supposed appeals from the NLRC to the Supreme
Court are interpreted and hereby declared to mean
and refer to petitions for certiorari under Rule 65.
Consequently, all such petitions should henceforth be
initially filed in the Court of Appeals in strict observance of
the doctrine on the hierarchy of courts as the appropriate
forum for the relief desired.

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FINALS
November 4, 2020
BOOK V – Labor Relations Law
Q: Who are the main actors in Book V?
• Office of the President
• Department Of Labor and Employment
• Regional Directors of the DOLE
• NLRC
• Regional Arbitration Branches
• Bureau of Labor Relations
• National Conciliation and Mediation Board
NATIONAL LABOR RELATIONS COMMISSION
Q: * Possible Bar Q: What is the nature and composition
of the NLRC?
A: This is a tripartite tri-sectoral body. The composition of
such body comes from different sectors. The tri sectors are:
government, management, and labor sectors. This is to
democratize the composition of NLRC. This is a collegial
body which requires the consultation of other sectors as
found in the Constitution to prevent one man decision.
Q: Why the tri-sectoral?
A: Because this is in accord with the principle of tripartism.
Whatever policies of labor it shll be crafted by a tripartite
body.
Q: How does NLRC sits?
A: It sits en banc or in 8 divisions.
It sits 8 divisions. 8 divisions times 3 commissioners = 24
commissioners, with one chairman. But the chairman of the
commission shall always come from the government sector.
It sits en banc for purposes of policy determination and
promulgation of rules and regulations that will govern each
procedure.
But siting in different division is for the purpose of
exercising quasi-judicial functions. But the decision of the
division is the decision of the NLRC.
Q: What are the qualifications of a commissioner?
A: Always remember the qualifications of the NLRC “15-5”
For Labor Arbiter : 10-5
Q: What is 15-5 qualifications of NLRC
A: First, Member of the Philippine Bar
Second, must be in the practice of law for 15 years
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Dean Salvador Poquiz
Third, he has experienced labor relations management
matters for a period of 5 years.
Q: What is 10-5 qualifications of Labor Arbiter
A: First, Member of the Philippine Bar
Second, must be in the practice of law for 10 years
Third, he has experienced labor relations management
matters for a period of 5 years.
If he is from Visayas and he was appointment for such
commissioner, he shall be assigned in Cebu. If in Mindanao,
in Cagayan de Oro. If you were appointed in Luzon, you may
be assigned in any divisions. But, di nasusunod yan. There
are some cases where you are from Mindanao and you are
being assigned here in Manila.
POWERS AND FUNCTIONS OF THE NLRC
1. Administrative Functions
2. Investigatory
3. Inquisitorial
4. Rule-Making Power
BUT, the following are the most important powers of
the NRLC which are BAR areas *
1. Contempt Power
2. Injunctive Function
3. The power to resolve vital industry disputes
CONTEMPT POWER
As you all know contempt may be direct or indirect.
Purpose: to maintain the dignity and reputation from any
utterances which will undignified the commission.
INJUNCTIVE FUNCTION
MOST Important: The power to issue Temporary
Restraining Order (TRO) or Writ of Preliminary Injunction
(WPI.) This is indeed an extraordinary remedy which in
essence is a preservative remedy. Preservative in the sense
that it is designed to preserve the status quo. That is why
TRO is sometimes called as Status quo order ante.
Submitted Bar Question of Dean: Q: Can TRO be issues
ex-parte?
A: A hearing must be conducted. So due process must be
observed. But don’t you know that a hearing may not be
conducted in the issuance of a TRO, the same Labor Code
requires that the TRO can be issued ex-parte.
Q: What is the philosophy why a TRO may be issued ex
parte or in the absence of the other party?
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A: Kasi pag WPI de parte, in the presence of both parties.
TRO can be ex-parte. The Supreme Court held in a case that
a TRO is a mere interlocutory order prior to the issuance of
a writ of injunction. Kaya it can be issued ex-parte
Submitted Bar Q: In the case of issuance of Injunction,
can it be delegated to a labor arbiter?
A: NO.
Q: But, as to the reception of evidence, can it be
delegated by the NLRC to a particular LA?
A: Yes.
The Power to Resolve Vital Industry Disputes
involving National Interest Cases Certified Either by
President of the Philippine or Secretary of Labor
and Employment (SOLE)
Q: What is this power?
A: The power of Assumption Power also known as pre-
emptive power. A power to assume labor disputes in an
industry indispensable to national interest that may trigger
a strike or lockout. The pre-emptive power of Pres or SOLE
in order for preventive these labor dispute from becoming
a full blown labor dispute that may affect national interest.
Old labor code, vital industries are enumerated. But in the
new, they are not enumerated, but there are pertinent labor
orders which enumerates it.
Q: May a SOLE issue an Assumption order over a labor
dispute although it is not perceived as vital industry?
Example: bagoong factory. The sole issued an assumption
order over a labor dispute in a Bagoong factory. Counsel for
the company argues that the issuance is not proper
considering that the factory is not a vital industry.
A: Yes, it may be from the perception of others that the
Bagoong factory is not a vital industry.
Q: Possible Bar Q: But can you fault the president or
SOLE to issue an assumption order? It is now a part of
knowledge that some bagoong company exports its product
to other foreign country that in turn boosts up the economy
of the Philippines. But, it you will consider, it is not really a
vital industry.
A: You cannot fault the SOLE. You have to consider the very
nature of an assumption power. By nature, assumption
power is plenary, whole, complete and at the same time
discretionary.
Take note that under the Labor Code, the vital industries are
not enumerated thereby giving the President or SOLE a
wider latitude or discretion to them.
Q: Given an instance that SOLE released an assumption
order, can the SOLE resolve such case?
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Dean Salvador Poquiz
A: Yes.
Possible Bar Q: The SOLE issued an assumption order,
then, pending resolution of the assumed case tinamad
ang SOLE, then he issued a Certification order to the
NLRC. Who will now resolve the assumed case?
A: The NLCR because it is now certified to the NLRC for
purposes of compulsory arbitration.
Possible Bar Q: Enumerate who can resolve an assumed
order of labor dispute in a vital industry.
1. President
2. SOLE
3. NLRC as per certification order of the SOLE.
4. Voluntary Arbitrators (VA)
Submitted Bar Q: May a Voluntary Labor Arbitrators or
Panel of Arbitrators resolve/s a vital industry dispute
pursuant to Article 273 G of the labor code?
A: Yes. Example: The SOLE issued an assumption order.
Pending resolution, the Employer and the Union agreed
between themselves to transmit this industry dispute for
purpose of voluntary arbitration. Note: Sa NLRC
compulosory arbitration.
Q: What is the legal anchored why it is allowed?
A: By agreement of the parties, they deemed it to transmit
their vital industry dispute to be resolved by an impartial
VA.
Potent Area of the Bar: What are the legal consequences
of an issuance of Assumption Order?
A: It has the effect of a writ of injunction. This is the case
where there is an issuance of writ of injunction without
compliance with the requirement for the issuance of writ of
injunction. An A.O. in effect a writ of injunction itself.
Q: Are striking workers obliged to return to work?
A: Yes. It is a matter of obligation on the part of the striking
workers to return to work.
Q: if they were defiant in returning to work, may the ER
validly dismiss them?
A: Yes.
Q: On the part of the ER, what kind of reinstatement
should he do?
A: ER should immediately reinstate them actually and not in
the payroll. In order words, an assumption power
contemplates only actual reinstatement.
Q: If the SOLE issued an A.O. accompanied by payroll
reinstatement, this is an actual case, is this proper?
A: NO. The Supreme Court held that it is grave abuse of
discretion because the law contemplates only actual
reinstatement.
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Q: What is the exception to actual reinstatement?
A: Special circumstances UST Faculty Union case.
Stakeholders are the students. When faculty went to strike,
UST faculties, at the meantime, were replaced by new
teachers. Note: that during strike, there is no legal
prohibition on the part of the employers to continue with its
business undertaking in order to cushion the impact of
economic. Kaya, the ER can still continue its operation. UST
hired new teachers. At the middle of the semester, the SOLE
issued an A.O., so the striking teachers must return to work.
But UST cannot reinstate them actually because they were
already replaced by new teachers. So what is the remedy
under the circumstances, in the words of the SC: “under
special circumstances, they shall be reinstated in the
Payroll. Because it will be physically impossible to
reinstatement.
Q: What is another legal effect of Assumption Order?
Should there be a need of another order which is an
order to return to work?
A: NO. The Supreme Court held that there is no more need
for another return to work (RTW) order issued by SOLE
because RTW order is already deemed absorbed by the
issuance of AO. In order words, RTW is deemed written into
the AO. Kaya hindi na kailangan ang separate RTW order.
Yung ibang kaso, sinasabi ng mga union, oo may A.O. nga
pero wala naming return to work order.
There are some case where although not perceived as a vital
industry, the assumption order issued by sole where upheld
valid by the SC. Legal anchor: nature an assumption power
is treated as plenary, whole, complete and at the same time
discretion.
APPELLATE POWER OF NLRC
Area of the BAR.
Q: What are those cases appealable to the NLRC?
1. Under Article 224, the Decisions of the LA
pursuant of article 128 of the LC.
DECISION OF THE LA, under Art. 128. The
visitorial and enforcement power of LA
where the amount is beyond 5k. When
amount of claim is more than 5k and it was
contested and it cannot be verified in the
ordinary course of inspection. Therefore,
the Jurisdiction is in LA. Kaya decisions
under 128 appealable to NLRC.
2. Regarding wage distortion problem in non-
unionized establishment LA (Kaya appealable sa
NLRC). Kung unionized and may Jurisdiction ay VA.
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Dean Salvador Poquiz
3. Decision of the RD under Article 129.
Adjudicatory power of RD.
What is this? The complaint filed by house
helper, there no more ER-EE relationship,
no more reinstatement, aggregate amount
claim does not exceed 5k. Small claim
decision is appealable directly to NLRC.
BUT if the amount of claim is 5k before and
there is a claim for reinstatement, then it is
converted into a case of Illegal dismissal.
Hence, LA has jurisdiction.
Possible Bar Q: Note: Aa a rule, in illegal dismissal,
Labor Arbiter has Jurisdiction. EXP: Kasambahay. Under
the fiduciary relationship, pag illegal dismissal ng
househelper or domestic servant, walang reinstatement.
Ang may jurisdiction RD of the DOLE. POSSIBEL BAR Q. Bar
to, kasi pag illegal dismissal automatic LA appealable to
NRLC.
Article. 217. Jurisdiction of the Labor Arbiters and the
Commission. - (a) Except as otherwise provided under
this Code, the Labor Arbiters shall have original and
exclusive jurisdiction to hear and decide, within thirty
(30) calendar days after the submission of the case by the
parties for decision without extension, even in the
absence of stenographic notes, the following cases
involving all workers, whether agricultural or non-
agricultural:
1. Unfair labor practice cases;
2. Termination disputes;
3. If accompanied with a claim for reinstatement, those
cases that workers may file involving wages, rates of pay,
hours of work and other terms and conditions of
employment;
4. Claims for actual, moral, exemplary and other forms of
damages arising from the employer-employee relations;
5. Cases arising from any violation of Article 264 of this
Code, including questions involving the legality of strikes
and lockouts; and
6. Except claims for Employees Compensation, Social
Security, Medicare and maternity benefits, all other
claims arising from employer-employee relations,
including those of persons in domestic or household
service, involving an amount exceeding five thousand
pesos (P5,000.00) regardless of whether accompanied
with a claim for reinstatement.
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Q: Under Article 224 (217) What is the jurisdiction of the
LA?
A: 1. Unfair labor practice cases
2. Temination Disputes
3. Big money claims, expect, Philhealth insurance and
employees compensation claim.
Bar area: Employees compensation claims sa
Philippines, Insurance claims, Philhealth, take note
walang jurisdiction and LA. Pero ang ECC under Book
IV, may Jurisidtion ang LA. What law? Yung migrant
workers Act.
Bar area: Under Article 224 or (217) What are those
considered as “EXCEPT AS OTHERWISE PROVIDED IN
THIS CODE” Ano mga to?
A:
1. Assumption Order of the Pres or SOLE.
2. Certification Order of Pres or SOLE to the NLRC
3. Money claims beyond the Jurisdiction of LA. Kahit
5 million pa yan basta in the exercise of visitorial or
enforcement powers of the RD. Kasi yung RD may
Jurisdiction sa money claims in relation to visitorial
and enforcement powers.
4. Unfair Labor Practice because Labor arbiter has
Jurisdiction.
UNFAIR LABOR PRACTICE
Possible Bar Q: Explain the concept of ULP?
A: Complete definition: acts of the ER or the union or their
agents which violates the rights of the works to self-
organization, which includes ____ (sorry disconnected)___ to
collective bargaining and negotiations, and to engaged to
peaceful concerted activities and mutual help and
protection.
Possible Bar Q: What is the nature of ULP?
A: Is not a mere administrative or civil offense but is also a
criminal offense. However, the criminal aspect of ULP can
only be filed after there is a final decision of the arbiter the
administrative or civil aspects of such ULP.
Q: It is settled that labor arbiter has J over ULP cases. Is
it correct to say or contend with that LA has also
Jurisdiction over the criminal aspect of ULP?
A: NO. LA has no jurisdiction over the criminal aspect of ULP
But only as part of the administrative and civil aspects are
concerned.
Q: In ULP, must there exists ER-EE relationship?
A: Yes. It is settled that ER-EE is a prerequisite.
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Dean Salvador Poquiz
Q: What are the exceptions to the requirement of the
existing ER-EE relationship?
A:
1. Acts of their agents which can be not their EE. (In
the definition)
2. The doctrine of innocent bystander.
3. In the case of yellow dog contract.
Q: What is a yellow dog contract?
A: It is committed by an ER against a non-EE. Ganito yun.
You applied for a job. ER asks you, do you have a union? Yes.
But ER says that it will employ you provided that you
disaffiliate with your union. Another instance. Are you a
member of union? No. Then you can start now. Yellow Dog
contract is not committed by an employee because he is still
an applicant. Why? An EE renounce his right to self-
organization because he is scared that if not renounced, he
might not be employed. He is afraid. He is frightened. He
acts a cowardly dog with its tail behind his leg. Why yellow?
Yellow is a colloquial term for being scared.
Q: What are the types of ULP committed?
A:
1. by Employer
2. by Union
3. by their agents
ULP COMMITTED BY ER
Q: What are those committed by ER?
A: Interference, restrain coercion, yellow dog contract,
refusal to bargain collective. Giving out of testimony in
judicial, quasi-judicial, or administrative bodies. Gross
flagrant violation of CBA. Contracting out of services.
If you try to analyze the provisions in the Labor code in ULP,
all acts of the ER which violates the rights of the workers to
self-organization, all of these acts are actually forms of
interference. Interference to what? To the right to self-
organization. If asked in the Bar to explain in one sentence
the acts constitution ULP Committed by ER, just say
interference
There are several forms of interference. The three
approaches where interference is exemplified. Economic
physical, and psychological interference.
ECONOMIC INTERFERENCE
Economic always remember it refers to money. Ano ginawa
ng ER? ER biginyan pera yung union. Yung, officers ng
union, ung active members of the union. For what purpose?
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Remember the purpose of these approaches is to silence the
union. To discourage union. Worse, to annihilate or kill the
union. Economic.
EG: In order to captivate the hearts and emotions of the
union. Emotions include “kalibugan nila.” Dinala ngayon sa
Pegasus to engage in sexual commerce. After that each of
leaders of the union thewere given with 25k. Union officers
say “Wag na nating banatan kasi may utang na loob tayo.”
The next day is the collective bargaining process/table. Nag
submit ng proposal. Oh article 3 sobra na hinihingi niyo sa
increase of wages. Sobra na 50, dapat 10 lang. Ngayon, di na
5 representatives ng union sa bargaining table, 1 nalang.
Their hearts and emotions where already captivated. They
now became a captive union. A company dominated union.
So the CBA is an incomplete and inadequate CBA. WHY?
Because ER and union became sweethearts.
Kaya ang incomplete and inadequate CBA is called
sweetheart contract. While the ER and the union became
sweethearts because of economic approach. Pera. Dati
militant and active ngayon, passive union. Worse dormant
union.
In one case, 4 years na existing yung company, wala man
CBA. Supreme Court held that it is a badge of passivity of the
union. Passivity of union is company unionism.
PHYSICAL INTERFERENCE
The ER wanted to intimidate, coerce not only active union
member and officers, in the process, the company included
family members of these union.
Sometimes under surveillance by some demonic agents of
the ER. Or Just because the president of the union is so hard,
bigyan niyo ng lection. Bayagin niyo. The next day, can no
longer join the bargaining table. Lay-low muna si president.
Dati active militant. Now, passive and non-militant. Worse
pinatay union officer.
PSYCHOLOGICAL INTERFERENCE
Called the wife of the president of the union. “Huling gabi na
ng asawa mo ngayon” – lay-low muna ako. Ano pa. refusal
to bargain collective. You cannot understand the refusal to
bargain collectively unless you know the duty to bargain
collectively.
COLLECTIVE BARGAINING
Q: what is the duty to bargain collectively?
A: It is the mutual obligation of the ER to EE to promptly and
expeditiously come into reasonable terms and conditions of
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Dean Salvador Poquiz
employment and in good faith provide the machineries of
settlement such as grievances and VA. In other words, the
essential elements of an effective collective bargaining are:
1. Mutual Bargaining in GF;
2. Reasonable bargaining;
3. Prompt and expeditious bargaining .
Area of the Bar:
Q: Who shall initiate collective barraging process: Can
the ER?
A: YES. Anyone of them can initiate. But usually, or often
than not it is initiated by the union. There is no legal
prohibition to imitate the bargaining process by the
employer
Q: How is it done?
A: The union will submit a CBA proposal.
Why CBA proposal? A complete CBA na. ER is required
under the law to submit a counter CBA proposal within 10
ten days from receipt of the CBA proposal of the union.
If the ER delays the submission of the counter CBA proposal,
that would constitute refusal to bargain collectively which
is ULP. ULP kasi the law states that parties must conform
promptly and expeditiously bargaining.
Q: Assuming ER did not submit of the counter CBA
proposal. What is the consequence?
A: There is a penalty imposed by the SC to defiant ER. What
is the penalty? The CBA proposal of the union stop lack and
barrel becomes the CBA in the bargaining unit. The CBA in
the company premises. Kawawa ang ER.
Q: Assuming ER submitted a counter CBA proposal on a
basis of a take it or leave it barraging approach. Is this
allowed?
A: NO. This is a ULP. Supreme Court held that a take it or
leave it bargaining approach is not bargaining in Good faith.
This is violation of GF Bargaining. Because this is the
essence of damn if you do, damn if you don’t. – introduced
by Lemuel Boulware. Boulwarism. Dapat boulwareism
because family name is the root word.
Possible Bar Q:
Why is it ULP?
A: It is ULP because a take it and leave it approach is a
violation of good faith bargaining.
SURFACE BARGAINING
During the bargaining process, there are counter issues. The
ER did, to delay, introduced unrelated matters. In simple
term, the ER introduced off tangent matters for the purpose
of delay. Because the Labor code requires ER to act
expeditiously and promptly, they appear to negotiate but
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they don’t have the intention of signing the agreement. This
is called Surface Bargaining.
RUNAWAY SHOP
During the bargain process, the ER does not want to comply
with bargaining process. ER wanted to evade the bargaining
process. In what manner? The ER sold the stocks (kunware)
to another company that is wholly owned by the one
employer – a dummy corporation. The ER transferred the
operation of the company in another area or the company
established a shop in another are. Doon linpat yung mga
tools and equipment ng company. In other words, the ER
wanted to evade its obligation or run away from its
bargaining process. This was called RUNAWAY SHOP.
Possible Bar Q: Now, union knew na lumipat na, di na
makita kasi ang ER nasa malayong lugar na. Now, the union
staged a strike doon sa malayong lugar. Is the strike legal?
What is your legal anchor, why can a bargaining union
can stage a strike in an area where the ER transferred
in order to avoid the bargaining process?
A: The union can validly stage a strike because under the
labor code, strike area includes runaway shop.
PREVENTING EE TO TESTIFY
Ano pa, the ER dissuaded an employee member of the union
to testify on matters involving labor relations like issue on
certification of election.
DISCRIMINATION
Another, the discriminatory practice. Discrimination is an
equal treatment per se in order to discourage or annihilate
the union. While a union member is discriminated against
the purpose is to annihilate a union.
Q: In discriminatory practices how is it done?
A: In the form of hiring, dismissal, promotion,
retrenchment, transfer.
LABOR-ONLY CONTRACTING
Ano pa, in the case of contracting out of services. To farm
out services. Remember, contracting out of services is legal
and valid under the law. It is a form of management
prerogative. But in order to be valid, the contracting out
should be made to an independent contractor and not to a
labor-only contract.
LOC is treated as a mere agent or intermediary of the owner
of the project. The employee of the LOC are considered as
Direct Employee of the principal-ER or the owner of the
project.
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To be valid, it should also be done within the period of 6
months. If beyond or indefinite, then, that will
metamorphose into a constructive dismissal and at the
same time a ULP.
GROSS FLAGRANT VIOLATION OF THE CBA
Another. Gross flagrant violation of the CBA. This refers to
the violation of the Economic provision in the CBA. Leave
credits. Increase of wages. Benefits. Bonuses. An economic
provision in the CBA violated by the ER constitutes a gross
violation of the CBA which is an ULP.
STOP-LOCK-GATE CLAUSE
ANO PA. This was asked in the bar: Is the violation of the
er of the stop-lock-gate clause an ULP?
A: Yes. Because gross violation of the CBA.
Q: Explain Stop-lock-gate clause?
A: Any increase of wages, any benefits provided in the CBA
are exclusive of other benefits that may be given out later
on or decree upon the government. In other words, increase
of wages provided by the CBA cannot be charged or credited
against future benefits that may be given out by the
government.
Kaya nga exclusive. Kung may benefits na binigay ng
government, then, ibigay. Kung meron din agreed by the
parties, them ibigay. Both benefits should be given because
they are exclusive of others. Also known as NON-
CHARGEABILITY CLAUSE.
UNLESS YUNG stop-lock-gate clause ay mayroong
credibility clause”, then, pwedeng I charge. Pero in the
absence of such, it is exclusive.
ULP COMMITTED BY THE UNION
BLUE SKY BARGAINING
The Labor code provides that the parties should bargain on
reasonable terms and conditions of employment. A ULP
committed by the union is when it submitted a CBA
proposal with economic demands which are unreasonable;
too excessive; or exaggerated demands. These are economic
demands beyond the economic reach or capability of the ER
to give. Cannot be reached. It is high as the sky kaya it was
called “Blue sky bargaining”
DISCRIMINATION
Discriniateion, eg: union collaborated with the ER.
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 Labor Law Review
Dean Salvador Poquiz

Mr. Employer itong member na ito ayaw sumals sa amin sa

union baka pwede mon a i-dismss. This is a form of ULP by
union. Requesting the ER to dismiss or transfer in far-flung
areas.

FEATHER-BEDDING ACTIVITY

Violation of the CBA also. GRAY AREA IN BAR AREAS AND

IN LAW STUDENTS: Feather-bedding activity.

The union compels the ER to pay for services rendered or

not rendered at all. This is a ULP committed by the union.
This is a form of extortion. In simple words, this is a make-
work or prolong-the-work provision in the CBA for them to
earn money at the expense of the ER.

EG: UST had a decision to renovate a building with shocking

colors to attract millennials. They hired the services of
Union A. The union decided not to use a high-tech
equipment or a roller-brush , so long to prolong the work;
Extreme example use watercolor brush.

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November 25, 2020
ILLEGAL DISMISSAL
Q: Who has jurisdiction?
A: Labor Arbiter
Q: Where to file the case?
A: Regional arbitration branch
• As to form: There is no form provided by the law – it
can be a complaint, pro forma complaint but it should
be verified by either the notary public or the
administrating officer in the arbitration branch.
PROCESS:
1. Legal entry approach proceeding: There should
be an amicable settlement.
2. If no settlement is reached, pass it to the labor
arbiter.
3. Position paper proceeding: Parties will submit
simultaneous position paper
Q: Is position paper a violation of due process?
A: NO. Labor cases can be decided on the basis of
position papers and other documents submitted by the
contending parties without resorting to the technical
rules of evidence observed in the court of justice.
However, it is required for the parties to attach all
documentary evidence to their position papers for
there is no need of a formal trial. A trial is discretionary
on the LA. By submitting their position paper and reply
thereto the parties have been given an opportunity to
be heard.
4. Last pleadings will be submitted for a
resolution.
Note: Must be resolved within 30 days. (Art. 224,
LC)
XPN: Cases involving Migrant Workers (OFWs) -
Must be resolved within 90 days (Sec. 10, R.A. No.
8042)
5. Decision rendered by the LA finding illegal
dismissal
6. Appeal
Requirements:
a. Payment of docket fee/ appeal fee/ filing fee
(otherwise, fatal to appeal)
b. Submission of the memorandum of appeal
copy furnished the prevailing employee.
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c. Posting of appeal bond
GR: Cash / surety bond only
XPN: The SC said that the part of the bond can
be posted provided that the amount and value
of the property is substantial enough to cover
the monetary award. (UERMMMC Case; G.R.
No. 110419; March 3, 1997)
Q: Can the employer post an irrevocable bank
guaranty as a substitute?
A: NO because the law provides for 2 types only
except the property bond pursuant to UER Case.
Q: How much should the employer-appellant
post?
A: Full amount is better. But partial bond is allowed
under the existing jurisprudence. (ie. 20% and
above)
Q: Can the employer-appellant post 10%?
A: Qualify. 10% can be posted only for purposes of
filing a motion to reduce bond. Not to perfect an
appeal. (McBurnie doctrine; G.R. Nos. 178034 &
178117 G R. Nos. 186984-85 )
NOTE: If the Motion to Reduce Bond was denied by
the NLRC, the employer is given 10 days fresh period
to post the full amount of the bond otherwise the
appeal will not be perfected.
Personal service to the other party is necessary. If
cannot be effected or if the employer failed to
personally serve the memorandum, he/it should
make an explanation as to the reason thereto (must
be a valid explanation, ie. The distance where the
employee lives / there will be no person to serve the
memo)
7. All the requirements of an appeal should be
submitted to the Labor Arbiter, who, in turn, shall
submit all the records including the fallo /
decision of the case, to the division of the NLRC
that has acquired appellate jurisdiction.
8. NLRC – before it is assigned to the ponente
commissioner, there should first be a consultation
to prevent a one man decision.
Q: May the ponente commissioner, before
resolving the issues or the merit of the case,
notify the parties for the purposes of amicable
settlement?
A: Yes, although not provided in the Rules, there is
no prohibition for the commissioner to do that.
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Basis pag tinanong sa bar: Doctrine of speedy labor
justice. Technical rules on evidence are relaxed in
labor proceedings. (Article 227, LC)
9. Decision of NLRC affirming the illegal dismissal in
toto.
10. The employer may file a Motion for
Reconsideration which is a condition sine qua non
before a certiorari may be filed with the CA under
the Doctrine of Hierarchy of courts.
Q: When filed?
A: Within 10 days after the decision of the NLRC
denying the appeal (St. Martin case)
Q: Purposes of MR:
A:
a. To rectify the error committed by the NLRC;
b. To comply with the Doctrine of Exhaustion of
Administrative Remedies; and
c. It is a condition sine qua non before one can
file a petition for certiorari.
11. If the MR is denied, the decision will be submitted
to the raffling decision of the CA.
During the raffling day, 1 justice of the CA should
be present to observe the raffling of the case.
Before the case will be assigned to a ponente, the
shall be another consultation pursuant to the
Constitution in order to prevent a one man
decision.
Note: If there are other pertinent documents that
are not certified, without necessarily giving due
course to the petition, the parties will be notified to
submit such documents. The party concerned must
comply with the order of the court asking for the
documents.
11A. If it is a labor case with a monetary award,
there will be an internal procedure where there
will be an arbitration (1k arbitration fee) to talk
about the monetary award.
If in case the monetary award agreed upon by the
parties was settled by the employer, then that will
arbitrate the proceeding pursuant to the Doctrine
of Speedy labor justice.
However, if the monetary award will not be settled,
it will be resolved on the merits.
Labor Law Review
Dean Salvador Poquiz
12. If CA denied the petition, the losing party may file a
MR and if denied, an appeal by certiorari before the
SC. (Rule 45, ROC)
Q: When filed?
A: Within 15 days. Motion to file an extension with
leave of court is allowed.
Q: On what ground?
A: Only on pure questions of law because factual
findings belong to the lower courts.
Exceptions:
(1) When the conclusion is a finding grounded
entirely on speculation, surmises or conjectures;
(2) When the inference made is manifestly
mistaken, absurd or impossible;
(3) Where there is a grave abuse of discretion;
(4) When the judgment is based on a
misapprehension of facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its
findings, went beyond the issues of the case and the
same is contrary to the admissions of both
appellant and appellee;
(7) The findings of the Court of Appeals are
contrary to those of the trial court;
-decisions of LA, NLRC and CA are in
collision / contrary / diametrically
opposed to each other.
(8) When the findings of fact are conclusions
without citation of specific evidence on which they
are based;
(9) When the facts set forth in the petition as well
as in the petitioner’s main and reply briefs are not
disputed by the respondents; and
(10) The finding of fact of the Court of Appeals is
premised on the supposed absence of evidence and
is contradicted by the evidence on record.
13. Decision by the Supreme Court.
Q: Before the entry of judgement are you
allowed to file a MR?
A: Yes. If your MR is still denied, you can still file
another MRs until you are required to stop filing
further motions.
Note: If after the notice to stop filing further
motions, you still continued to file one, such will
not be entertained and you may be cited for
contempt.
14. The decision of the SC will go down to the lowest
level (LA). The issuance of the writ is not automatic.
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The prevailing party should file a Motion for the
issuance of the writ of execution.
15. The prevailing party will be notified for the pre
execution conference.
Pre-execution conference – hearing for the purpose
of determining w/n the LA should execute a writ of
execution.
Here, the parties may still haggle.
• 5 year bar rule – the writ of execution should be
implemented within 5 years.
Q: Can you still implement the writ of execution
after 5 years?
A: Yes, by way of filing an independent action with the
LA of origin.
This independent action may be filed within 10 years
from the finality of the decision of the LA.
Q: Who has jurisdiction?
A:
Money claims
➢ more than P5,000 – LA
XPN: The LA have NO jurisdiction over:
a. PhilHealth
b. Social Security
c. Employees Compensation Claims (ECC)
XPN to XPN: The LA have jurisdiction over
ECC if it involves OFW’s including seamen
(RA 8042 as am. by RA 10022)
➢ less than P5,000 w/ a claim for reinstatement – LA
➢ less than P5,000 w/o a claim for reinstatement –
Regional director of the DOLE (Art 129, LC)
Damages
All matter involving ER-EE relationship – LA
If no ER-EE relationship – regular courts
Violation of concerted activities (Art. 279, LC) – LA
Take note of the definition:
Grievance – any dissatisfaction, complaint or
misunderstanding of an employee, arising from the
interpretation or implementation of the CBA and
those arising from interpretation or enforcement
of personnel policies.
Labor Law Review
Dean Salvador Poquiz
Grievance machinery clause in the CBA – for the
purpose of settling labor –management disputes
arising from its interpretation or implementation
or interpretation or enforcement of company
personnel policies.
STRIKES
- temporary stoppage of work by the concerted
action of employees as a result of an industrial or
labor dispute.
Requirements for a strike to be valid:
1. It must be based ONLY the following grounds:
a. Bargaining deadlocks; and
b. Unfair labor practices
Strike voting – it must be approved by a majority of the
total membership of the union obtained by secret ballot
in meeting called for the purpose;
2. Strike or lockout NOTICE shall be filed with the NCMB
at least (mandatory cooling-off periods):
a. 15 days from the intended date thereof – for
ULP;
b. 30 days from intended thereof – for bargaining
deadlock
Copy furnished the adverse party; failure to serve
notice is a violation of due process.
PURPOSE (Mandatory cooling-off period):
a. To afford the parties the opportunity to
amicably resolve the dispute with the
assistance of the NCMB.
NOTE: In the event the result of the
strike/lockout vote ballot is filed within
the cooling-off period, the 7-day
requirement shall be counted from the day
following the expiration of the cooling-off
period.
NOTE: In case of union busting, the time
requirement for the filing of the Notice of
Strike shall be dispensed with but the
strike vote requirement, being mandatory
in character, shall in every case be
complied with. The 7 days should be
added to the 15- day or 30-day cooling-
off periods.
During the cooling-off periods, the strike may be
prevented by:
Page 34 of 55

➢ A Preventive Mediation Order (PMO) to be
issued by the NCMB to convert the notice of strike
into a preventive mediation case. When converted,
the notice of strike is deemed dismissed or
dropped from the dockets of notices of strike.
Once the dispute has been converted into a
preventive mediation case, the notice of strike is
deemed dropped from the dockets as if no notice of
strike has been filed. Since there is no more notice
of strike, any strike subsequently stage by the
union or locking out by the employer is deemed not
to have complied with the requirements of a valid
strike.
No strike could be legally declared during the
pendency of preventive mediation proceeding
➢ Improved offer balloting
In case of a strike, the regional branch of the NCMB
shall, at its own initiative or upon the request of any
affected party, conduct a referendum by secret
balloting on the improved offer of the employer on or
before the 30th day of strike.
When at least a majority of the union members vote to
accept the improved offer, the striking workers shall
immediately return to work and the employer shall
thereupon re-admit them upon signing of the
agreement.
➢ Reduce offer balloting
In case of a lockout, the regional branch of the NCMB
shall also conduct a referendum by secret balloting on
the reduced offer of the union on or before the 30th day
of lockout.
When at least a majority of the board of directors or
trustees or the partners holding the controlling interest
in the case of partnership vote to accept the reduced
offer, the workers shall immediately return to work and
the employer shall thereupon re-admit them upon
signing of the agreement.
Q: If there is a union busting during a cooling-off
period, can the union immediately stage a strike?
A: NO. The SC declared that the despite the union
busting, the strike is still subject to the 7 days strike ban
or the 7 days cooling-off period, which in every case
should be complied with.
Q: Can the notice of strike and strike vote report be
submitted simultaneously?
Labor Law Review
Dean Salvador Poquiz
A: YES because the strike vote report may be submitted
during the cooling-off period.
3. Compliance with the 24-hour prior notice rule on
strike voting – the union is mandated to notify the
NCMB of the meeting for the conduct of strike vote, at
least 24 hours prior to such meeting;
PURPOSES (24-hour prior notice rule):
a. To inform the NCMB of the intent of the union
to conduct a strike vote;
b. Give the NCMB ample time to decide whether
or not there is a need to supervise the conduct
of the strike vote to prevent any acts of
violence and/or irregularities attendant
thereto; and
c. Should the NCMB decide motu proprio or upon
the request of an interested party including the
employer, to supervise the strike vote, to give
ample time to prepare for the deployment of
the requisite personnel.
PURPOSES (Strike Vote):
a. To ensure that the decision to strike rests with
majority of the union members in general and
not with a mere minority; and
b. To discourage wildcat strikes, union bossism
and even corruption.
c.
4. A strike or lockout VOTE shall be reported to the NCMB-
DOLE Regional Branch at least 7 days before the
intended strike or lockout subject to the cooling-off
period (mandatory 7-day strike ban).
5. If strike is staged by a hospital, there must be an
effective skeletal workforce of medical and health
personnel.
NOTE: If there are terroristic acts or violent acts
committed during the strike, the strike may be declared
as illegal even if it is initially legal.
Q: What is only gateway principle?
A: There was blockading of the ingress-egress of the
premises by the union.
o Libelous, scandalous or scurrilous statements
made by the ee-strikers will make the strike
illegal.
NOTE: In order to have a valid and effective strike there
must be a picketing.
Page 35 of 55

*Picketing can be staged without a strike but there can be
no strike without picketing.
*Picketing may be staged even if there is no er-ee
relationship because it is a right guaranteed by the
Constitution. (Thornhill v. Alabama)
Q: May a ULPs be committed during a strike?
A: YES.
Q: May a ULPs be committed during a strike against a
non-employer?
A: YES. Doctrine of innocent bystander.
Kinds of strikes
1. According to basis of initiation
a. Authorized – strikes called upon a union’s consent.
b. Unauthorized (wildcat) – strikes called without the
majority approval of the union members in the bargaining
unit; they take the form of rebellion by the rank-and-file
members against the union leadership or part of the
membership against the total membership.
2. According to basis of scope
a. General (extended sympathetic strike) – most
extensive type covering a wide range of industries or a large
part of the country, in order to wrest power and change the
economic system; (ie. Welga ng Bayan, transportation
strike, reducing tuition fees).
- it is a political type of strike because it involves redress
and grievances against the government. Thus this affects a
wider region or territory of the state.
b. Particular – only limited in scope as it covers only a
particular plant or a single occupation or trade; usually
carried by a single-union group.
- also known as an ordinary type of strike
c. Quickie – characterized by an impromptu, brief work
stoppage in the plant but stoppage is for a period of few
minutes of hours.
-most the workers are outside the company’s premises /
plant. They do nothing but the duration is for a brief period
of time.
d. Slowdown (strike on installment plan) – activity by
which workers, without a complete stoppage of work,
retard production or their performance of duties and
functions to compel management to grant their demands; it
is an ILLEGAL STRIKE.
- purpose is to reduce production violating fair day's wage
for a fair day's labor principle.
Labor Law Review
Dean Salvador Poquiz
e. Sitdown – the workers remain in the plant but refuse to
work and their machines and tools remain idle; the
stoppage period is much longer than quickie strike.
f. Ordinary – common type of strike that involves a
withdrawal on the part of the workers from their place of
employment; it is carried out to attain the objectives
intimately related to the strikers themselves.
g. Sympathetic – carried on by workers in sympathy to
another group of workers who are on strike; the workers
have no direct grievances against their employer; it is an
ILLEGAL STRIKE.
-it is staged against a non-employer (no er-ee relationship)
h. Political – resembles that of general strike; to exert
pressure upon government.
i. Legal – if the purpose/s are legal and the means used in
the course of the strike are legal.
- strikes was staged complying with all the legal
requirements.
NOTE: Strike may be legal at the start, however, in the
course of the strike, strikers may do acts of violence which
may make the strike illegal.
j. Illegal – takes place when there is a law prohibiting it or
when certain requirements were not complied with.
k. ULP – strike is staged as a result of the employer’s or
union’s ULP; arises out of violation of the right of workers
to self- organization like union busting.
l. Economic – strike staged to force wage or other
concessions from the employer which he is not required by
law to grant; one arising from deadlock or standstill in
collective bargaining process.
NOTE: A no-strike clause prohibition in a CBA is applicable
only to economic strikes, not ULP strikes.
m. Temporary (concise) stoppage of work – temporary
stoppage of work by the union during the working period;
it is an ILLEGAL STRIKE.
n. Union recognition strike – designed to compel the
employer to recognize one’s union as the employees’
bargaining agent to work out a CBA despite the union’s
doubtful majority status to merit voluntary recognition and
lack of formal certification as the exclusive representative
in the bargaining unit.
-illegal because here the union compels the ER to recognize
them as the bargaining agent. Such is not allowed because
strike is not one of the modes of representation (modes in
determining the bargaining agent)
Page 36 of 55

o. Lightning strike – sudden stoppage of work by the
concerted action of the workers without compliance with
the requirements for declaring a lawful strike; it is an
ILLEGAL STRIKE.
-impromptu strike
p. Good faith strike
- here, the union stage a strike without compliance with the
requirements of the law believing that the employer is
committing ULP. However, later on it was found out that the
employer was not committing ULP.
- it is an ILLEGAL STRIKE based on the Capitol Medical
Center case and Grand Boulevard Hotel v. Dacanay where the
SC ruled that good faith is not an excuse to stage a strike. To
be valid, a strike should comply with all the requirements of
law.
As a GR, government employees cannot stage a strike
because of sovereignty. SC stated that a strike staged by
government officials is a form of insurrection against the
government. And if a strike is staged by government
agencies providing services (AFP, PNP, firefighters) it will
affect the delivery of the services to the people.
Although they can unionized, what are granted to them is
not the right to collective bargaining but the right to a
collective negotiations.
XPN: GOCC’s without original charters can stage a strike
because they are governed by the Labor Code.
Q: Does LA jurisdiction over his decision that is already
final and executory?
A: No. Once the decision has become F&E, it is already
beyond his jurisdiction.
XPN: If the backwages is not yet paid by the
employes, the prevailing employee can file a
Motion for Re-computation of Backwages and the
LA can still take cognizance of this case for a
computation. But as to the issue of finality, not
allowed on the basis of Doctrine of Immutability of
Final Judgement.
Q: Does LA over intra-corporate cases?
A: NONE.
Q: Can the board of a corporation issue a resolution
creating a corporate office?
A: NO. Corporate officers are only those enumerated in the
Labor Code and in the by-laws (Matling case)
Labor Law Review
Dean Salvador Poquiz
Q: Is there an illegal dismissal if the employee
appointed for such office is dismissed?
A: Yes. From the point of view of law, he is not a corporate
officer. Consequently, he can validly file a case of illegal
dismissal with the Regional Arbitration branch – NLRC.
Q: Does the LA have jurisdiction over the secular
officers (chaplain, etc)?
A: Yes. But as purely ecclesiastical people, it is beyond the
LA’s jurisdiction.
Q: Does the LA have jurisdiction over third party
complaints filed by a non-party in a writ of execution?
A: Yes.
Q: Does the LA have jurisdiction over money claims of
members of a cooperative?
A: Yes.
Q: Does the LA have jurisdiction over local water
districts?
A: None. They are government instrumentalities.
Q: Does the LA have jurisdiction over members of the
diplomatic corps (minister, etc)?
A: None, because of their enjoyment of diplomatic
immunities.
Q: Does the LA have jurisdiction over international
organizations?
A: None, because they enjoy functional immunities. (DFA v.
NLRC)
Q: Does the LA have jurisdiction over violation of
training agreements?
A: None, regional office of DOLE have jurisdiction.
Q: Does the LA have jurisdiction over collateral
matters?
A: If the LA have jurisdiction over the main case, all other
matters incidental or related thereto can be validly resolved
by the LA.
Q: Does the LA have jurisdiction over criminal cases?
A: None.
Q: Does the LA have jurisdiction over violations of
company personnel policy?
A: None. Initially, grievance machinery then voluntary
arbitration.
Q: Does the LA have jurisdiction over wage distortion
problem?
A:
Unionized – None, jurisdiction is vested to the
voluntary arbitrator
Page 37 of 55

Non-unionized – LA
Q: Does the LA have jurisdiction over government
agencies on money claims cases?
A: None. Claims against government agencies should be
directly filed before the Commission on Audit. (DAR v.
NLRC)
RIGHT TO SELF-ORGANIZATION
Contemplates a legitimate labor organization which is
registered either with the BLR (federations) or with the
regional office of the DOLE (independent unions).
Comply with all the requirements of the registration. Once,
submitted with BLR/DOLE, it is ministerial on the part of
the BLR/DOLE to issue a certificate of registration
compellable by mandamus.
Q: What are the legal effects of the registration?
A: Effects of registration (rights of a labor union)
1. Right of representation
This refers to the right of the labor union to act as
representative of its individual members for the purpose of
collective bargaining, which includes the authority to
represent them for purposes of enforcing the provisions of
the CBA, and to file an action for their benefit and behalf
without joining them as separate parties.
-applies only to union members
2. Right to be certified as the exclusive bargaining
agency within the premises (Doctrine of Union Monopoly
or Exclusive Right Rule)
It refers to the right to represent the entire employees in the
bargaining unit. It gives the union the right to collectively
bargain with the management to the exclusion of other
minority or competing unions.
-applies to all employees
3. Right to acquire and dispose of property, real or
personal, pursuant to the purpose embodied in its
constitution
GR: The authority belongs to the President with the
approval of the Board of Directors (BOD).
XPN:
a. If the constitution and by-laws are silent, the
approval of the majority of the members in a
general membership meeting is necessary for the
acquisition or disposition of property.
Labor Law Review
Dean Salvador Poquiz
b. If the constitution and by-laws authorized the
BOD to appoint a person to exercise the right, then
a mere Board resolution will suffice.
4. Right to sue and be sued in its own registered name
5. Right to engage in activities which would redound to
the welfare and benefit of the members of the union
The labor union may engage in activities such as
cooperativism, housing projects, business and others
provided they are not contrary to law. This is strengthen the
union in the bargaining table.
6. Right to be exempted from taxes
The labor union’s incomes and property shall be exempted
to taxes, duties and other assessments, including gifts or
donations they receive, except earnings or benefits derived
for purely business activities.
7. Right to be furnished a copy of employer’s audited
financial statements
Upon written request, the union has the right to be
furnished by the employer of annual audited financial
statements, on the basis of the workers’ constitutional right
to have a just share in the fruits of production.
NOTE: Refusal to furnish requested information is in itself
an unfair labor practice and may lend support to the
inference of surface bargaining.
Q: Should the parties (er and union) conclude an agency
shop?
A: No because it is expressly stated under the Labor code
that a non-union member should be assessed fees
equivalent to the amount of union dues in order to support
the union that makes the benefits possible.
But an agreement between the non-union ee and the er
involving agency shop is not prohibited.
Q: What are the modes of representation?
A:
1. SEBA (sole and exclusive bargaining agent)
Certification
- Any union can file a SEBA party certification.
* wala na yung voluntary recognition. It was already
replaced by SEBA certification.
2. Consent election
- It is the election voluntarily agreed upon by the parties,
with our without the intervention of the DOLE or the BLR,
to determine the issue of majority representation of all the
workers in the appropriate collective bargaining unit.
- Two or more unions agree between/by/among
themselves to select the bargaining agent.
Page 38 of 55

3. Certification election
- is the process of determining through secret ballot, the
sole and exclusive bargaining agent of the employees in an
appropriate bargaining unit, for purposes of collective
bargaining.
Requirements for a valid certification election; Double
majority rule
1. First majority rule – at least a majority of all
eligible voters in the bargaining unit must have cast
their votes;
2. Second majority rule – the union receiving the
majority of the valid votes shall be certified as the
exclusive bargaining agent;
3. When an election provides of 3 or more choices
results in no choice receiving a majority of the valid
votes cats, a run-off election shall be conducted
between the labor unions receiving the 2 highest
number of votes, provided, that the total number of
votes for all contending unions is at least 50% of
the number of votes cast;
4. In determining the eligible voters who cast their
ballots under the first majority rule, the spoiled
ballots are included. However, under the second
majority rule, in determining the valid votes case
the spoiled ballots are excluded but the challenged
votes are included.
– CE is the sole concern of the workers, thus, the
role of the employer is merely that of a
bystander (Bystander Rule).
Q: Before the certification can be conducted, how do
you determine the eligibility of voters?
A: Determined prior certification election done during the
inclusion-exclusion proceeding or the pre-election
conference.
Q: Who are eligible to vote in a certification election?
A:
a. All employees who are members of the appropriate
bargaining unit sought to be represented by the petitioner
at the time of the issuance of the order granting the conduct
of certification election;
b. Employees who did not work during the eligibility period
due to illness, vacation, or temporary lay-off
c. Employees who have been improperly laid- off
d. Employees who have a present, unabandoned right to
expectation of reemployment (including strikers, whether
the strike is economic or the result of the employer’s ULP);
e. Employees who have been dismissed from work but have
contested the legality of the dismissal in a forum of
appropriate jurisdiction at the time of the issuance of the
order for the conduct of certification election, unless the
dismissal was declared valid in a final judgment.
Labor Law Review
Dean Salvador Poquiz
NOTE: In case of disagreement over the voters’ list or over
the eligibility of voters, all contested voters shall be allowed
to vote. But their votes shall be segregated and sealed in
individual envelopes.
Q: May dismissed employees be allowed to vote?
A: Qualify. If dismissed employees filed a case of illegal
dismissal pending with the labor tribunal, they can vote
because they have an unabandoned right to reinstatement.
Whereas, if there is already a final decision where it was
declared that he was legally dismissed, they can no longer
vote.
Q: How many % is required to validate a certification
election?
A: 25%
NOTE:
1. Compliance with 25% consent requirement – mandatory
upon the BLR to order the holding of the
certification election.
2. Petition supported by less than 25% consent
requirement – discretionary upon the BLR to order the
holding of the certification election.
3. 25% consent requirement not met at the time of filing the
petition but the same was thereafter met – valid.
4. Petition totally unsupported by the 25% consent
requirement – the petition should be dismissed.
If 25% is not met, certification election is still the most
expeditious manner in determining the will of the
employees.
Q: What are the instances where although the 25% is
met, CE is still barred?
A: Certification election barred despite compliance with
the jurisdictional 25% requirement (Grounds for denial of
petition for certification election)
5. Contract-bar rule – certification election may not
be conducted during the existence of a CBA except
within the 60-day freedom period immediately
preceding the 5th year of such CBA.
Exceptions:
a. The collective bargaining agreement is not
registered
b. The collective bargaining agreement is incomplete
or inadequate (sweetheart contract)
c. CBA has been prematurely extended or entered
into
* In case of mass disaffiliation you can file a petition for CE
at any time outside the 60 day freedom period.
Page 39 of 55

6. 1-year bar rule/Certification-year bar rule –
certification election may not be held within 1 year
from the date of issuance of a final certification
result (there was an actual conduct of elections).
7. Deadlock-bar rule – certification election may not
be conducted during the existence of a bargaining
deadlock to which an incumbent or certified
bargaining agent is a party and which had been
submitted to conciliation or arbitration or had
become the subject of a valid notice of strike or
lockout that has been filed with the NCMB.
8. Charge-of-company-unionism rule – the pendency
of a formal charge of company unionism is a
prejudicial question that, until decided, bars
proceedings for a certification election because the
votes of the members of the company-dominated
union would not be free. (There is a ULP)
SC: There is a prejudicial question. The ULP shall be
resolved first before initiating or conducting
certification election.
Q : DO-40-03 states that any labor relations
matter shall not affect the certification election,
how would you reconcile?
A: Give 2 answers. Provide the decision of the SC
and the other answer should be introduced by
however.
The SC ruled in its decision that ULP shall be
resolved first before initiating or conducting
certification election. However, under DO-40-03, it
was provided that any labor relations matter shall
not affect the certification election. As between the
two schools of thought, I incline to adopt the
decision of the SC as against DO-40-03.
9. Outside-of-the-freedom period rule – a petition for
certification election or motion for intervention
filed before or after the freedom period shall be
dismissed outright.
10. Negotiation-bar rule – no representation issue may
be entertained, if before the filing of a petition for
certification election, the certified bargaining
union has commenced negotiations with the
employer within 1 year from the date of
certification election, consent election, run-off
election or form the date of voluntary recognition.
11. Appeal-bar rule – the filing of the appeal form the
order/decision of the Med-Arbiter granting the
petition for certification elections stays the holding
of the certification election.
Labor Law Review
Dean Salvador Poquiz
12. Not listed in the registry rule – when the petitioner
is not listed in DOLE’s registry of legitimate labor
unions or that its legal personality has been
revoked or cancelled with finality.
Q: Is it possible that a non-registered union file a
petition for certification election?
A: YES. In case of a local charter (have incomplete/partial
personality) directly created by a federation, national
union, or mother union.
Q: May a local charter become a full legal person like a
legitimate labor organization?
A: Yes. Registration is not necessary. It becomes a full legal
person by submitted the required documents under the
labor code.
> Assuming that the certification election is valid but no one
garnered the majority votes, there will be an automatic
second election (automatic second election rule / run-
off election)
4. Run-off election (the second automatic election rule)
When an election which provides for 3 or more choices
results in no choice receiving a majority of the valid votes
cast, and no objections or challenges have been presented
which, if sustained, can materially change the results, the
election officer shall motu proprio conduct a run- off
election within 10 calendar days from the close of the
election proceedings between the labor unions receiving
the 2 highest number of votes; provided, that the total
number of votes for all contending unions is at least 50% of
the number of votes cast.
“No-union” – shall not be a choice in a run-off election
because it is only conducted between the labor unions
receiving the 2 highest numbers of votes.
Bystander Rule – the employer is a bystander who has no
legal standing in a certification election; while iy may
rightfully be notified or informed of petitions of such
nature, it cannot oppose the petition or appeal the Med-
Arbiter’s orders related thereto.
Double majority rule – for there to be a valid certification
election, the majority of the bargaining unit must have
voted and the winning union must have garnered majority
of the valid votes cast (50% +1 of the total number of
eligible voters).
Assuming that 50% was not met, therefore there is a failure
of certification election as declared by the election officer
and the declaration of the election officer should be
affirmed by the regional director of the med-arbiter.
Consequently, a re-run election should be conducted.
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 Labor Law Review
Dean Salvador Poquiz

Q: Who should be the collective bargaining
agent in the meantime within the period of 1
year under the one year bar rule?
A: None. However, it shall be certified that indeed,
there is no union for that period.
5. Re-run election
- refers to an election conducted to break a tie between
contending unions, including between “no union” and one
of the unions. It shall likewise refer to an election conducted
after a failure of election has been declared by the election
officer and/or affirmed by the mediator-arbiter.
Three types of re-run election:
a. There is a declaration of failure of certification
election by the election officer as affirmed by med-
arbiter;
b. There is a tie between two unions; and
c. There is a tie between a non-union and union
Note: If there are supervisors in a rank and file union they
are deemed excluded from the bargaining unit and from the
union.
Q: What the modes in determining appropriate
bargaining unit?
A:
1. The express will or desire of the employees test
(Globe Election Doctrine/Test)
2. Community or mutuality of interests test (Substantial
interest test)
3. Prior collective bargaining history test
4. Similarity of employment status test

Q: Who can form or join a labor union?

A: Everyone except those prohibited by law but there must
be an ER-EE Relationship.

XPN: The following can join a union even if there is

no ER-EE Relationship:

1. Self employed
2. Ambulant workers
3. Confidential employees invested with
confidential info NOT related to labor
relations.
4. Supervisory employees (own union /
supervisory union)
5. Rank and file employees

Q: Who cannot form or join labor unions?

A:
1. Managerial employees – basis: conflict of interest
2. EE’s Members of cooperatives – basis: they are part
owners of the coops so they cannot bargain with or
against themselves.
3. Confidential employees performing managerial
functions.
4. Confidential employees invested with the
confidential labor relations matter – basis:
Doctrine of necessary implication like managerial

Q: Can the supervisory union and the rank and file

union belonging to the same company join the same
federation?
A: YES. RA 9481 says that both union can join the same
federation.

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December 2, 2020
LABOR ORGANIZATION
(Contemplated under the Labor Code)
Legitimate – one that is registered either with the BLR or
RO of the DOLE.
Requirements for registration:
1. Payment for registration fee
2. Submission of the constitutional bylaws
3. Names of officers and members
4. In case of first time registration:
- Minutes of the org meeting by Sec/ Treasurer
of the union requested by President
• If the union is already existing for some time:
- Financial statement of the union
• Upon submission, it is now ministerial on the part of the
RO of the DOLE to issue a certificate of registration
compellable by Mandamus.
DOLE – there is an office there, in the Regional Office (2
offices): Labor Organization and Registration Unit and the
Med Arbitration Unit
Dean: Kaya nga yung mga functions ng BLR and the
functions of the RO both of them interplay. Concurrent yung
iba dyan: registration ng union, submission of all registered
unions, submission of the CBA, keeping of the files of all
CBA, keeping of the files of all registered unions, jurisdiction
over intra-union.
Actually, they are also concurrent with the office of the
DOLE but with some exceptions. Gaya nung dati, yung
conciliation mediation, dati sa BLR, but now, it is with the
Nation Conciliation and Mediation Board.
Legal Effects of Registration (rights of a legitimate labor
organization):
1. Right to representation - this applies ONLY to union
members
2. Right to be certified as the bargaining agent in the
company - applies to ALL employees
3. Right to sue and be sued in its registered name
4. Right to own property
5. Right to tax exemption
6. Right to engage in activities that redounds to the
welfare of the members of the union
7. Right to be copy furnished w/ the audited financial
statement of ER – upon request of union
- Employer will ONLY be liable for ULP (Surface
Bargaining) if there is request coming from the
union.
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Dean Salvador Poquiz
- Audited FS should be prepared by an
independent, credible, external auditor. Not
company auditor otherwise it would be self–
serving.
CORPORATE SPIN-OFF RULE
Q: Can the corporation spin-off into smaller units? Yung
corporation has multiparous functions gaya ng San
Miguel Corporation.
A: Imagine because of these varied functions at San Miguel
Corporation, there is one CBA so it’s very complicated.
That’s why in one case decided by the Supreme Court and
the law allows this corporation to be spun-off into smaller
units. Gaya nung feeds division nagging BMEG pero yung
mga employees ng feeds division shall be transferred to
BMEG Corporation. Who’s the employer unit now? Yung
CBA, (yung composing the employees—that is one CBA)
and there will be one CB process that shall be conducted in
the process so yung BMEG as a corporation and its
employees as an appropriate bargaining unit, there is a
process so there will be a CBA but applicable only as far as
feed division. Di gaya ng dati yung feed division, yung Coca-
cola, under 1 CBA.
So the law ALLOWED and the Supreme Court affirmed it
that a big company creates small units in order to simplify
CB process.
- The transformation of the companies was a
management prerogative and business judgement
must be governed by the policy of good faith.
Of course the one that will bargain with the management is
the collective bargaining union and the collective
bargaining union shall bargain with the management so you
have to consider the Steps in the CB process:
1. Initiatory steps
2. Bargaining period
3. After they have bargained, there will be an
approval of the union and the employer.
4. This will be ratified by the employees (yung
ratification kasi sa employees)
5. Registration with the RO of the DOLE
Parts of the CBA:
1. Preamble
2. Union recognition clause
3. Union prerogatives
4. Management prerogatives
5. Economic clauses
STOP LOCK GATE CLAUSE
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Non chargeability clause
- This is also an economic provision kaya violation yan of
the CBA which is an unfair labor practice.
- This is the clause in the CBA where any increase in wages
or benefits in the CBA are exclusive of other benefits that
may later on be decreed by the government, shall also be
granted to the workers
- CBA benefits are exclusive to other benefits decreed later
on by the government. It cannot be charged in the future.
XPN: Unless the CBA provides for a credibility clause (that
it can be credited against future benefits decreed by the
government)
Q: What is Agency Shop/ Treasury Shop/ Anti-
Hitchhiker Clause / Anti- Free Rider Clause?
A: Requires non-members to pay fees equivalent to the
amount of union dues.
Q: Is there still a need to conclude an agency shop to be
concluded by the parties in the CBA?
A: No more need because law itself provided agency shop.
It’s in the law stating that non-union members who received
CBA benefits are required to pay fees (agency fees)
equivalent to the amount of union dues to support the union
that made the benefits possible.
- Or else there will be unjust enrichment.
Dean: Take note of this. This is very important—yang
agency shop na yan.
CLOSED-SHOP AGREEMENT
Now, remember dito sa union security clauses—
particularly closed shop agreement: if it is valid, the union
can request the employer to dismiss him.
Q: So if you are the employer, will you dismiss him
outright?
A: Of course not. Despite the request of the union to dismiss
him pursuant to union security clause, dapat mag observe
pa rin ng due process because if the employer will not
comply with the due process requirement, it could be liable
for all the normal consequences of illegal dismissal. Pero if
he complies with the due process, he will not be liable to
illegal dismissal. But as to damages, the liable is the union.
JURISDICTIONAL AREAS (ARBITRATION)
* Secretary of Labor – AIDA Power
* Regional Directors and Assistant Regional Directors –
EVA Power
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Dean Salvador Poquiz
The Secretary of Labor has also the power of arbitration
known as AIDA Power (administrative intervention for
dispute avoidance).
- The secretary of labor has the administrative power of
intervention on dispute avoidance.
Dole Regional Directors and Assistant Regional
Directors as Ex- Officio Voluntary Arbitrators (EVA
Power)
- It is allowed on matters of interpretation of
company policies and collective bargaining.
- Whatever matters involving labor dispute under
the administrative intervention of the DOLE, if the
Sec. of Labor will not resolve it, the Sec. may refer
it to the Reg. Director or Assistant Reg. Director of
the DOLE – because they are designated EVA (Ex-
officio VA)
Q: May the employer and the union select the
undersecretary to be the VA? Is there any legal
prohibition?
A: No legal prohibition. So yes, the undersecretary may be
chosen as the VA by the agreement of the parties.
RE-RUN ELECTION
- Subsequent certification election
- 3 instances:
a. There is failure of Certification Election as declared
by the election officer (below 50% votes cast)
b. There is a tie between 2 unions
c. There is a tie between a union and a non-union
RUN-OFF ELECTION
- Automatic second election rule: 50% votes cast but no one
garnered majority vote
- When an election which provides for 3 or more choices,
results in no choice receiving a majority of the valid votes
cast, the election officer shall motu proprio conduct a run-
off election bet. the labor unions receiving the 2 highest
number of votes.
- Provided that the total number of votes for all contending
unions is at least 50% of the number of votes cast.
CERTIFICATION ELECTION
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- The process of determining thru secret ballot, the sole and
exclusive bargaining agent of the employees in an
appropriate bargaining unit, for the purposes of collective
bargaining.
Consent/ subscription requirement to conduct CE:
25% of all the employees in the appropriate bargaining unit
- If met mandatory to conduct CE
- If not met, discretion of RO of DOLE
Vote requirement - 50% majority vote
Q: What if the 25% consent requirement is not
complied with, may a CE be conducted?
A: Discretionary upon the RO of the DOLE to conduct CE.
Reason: Because in conducting CE, even if 25% is not met,
this is the most expeditious manner in determining will of
employees.
Q: If below 50% there is no valid CE – there is failure of
CE. If there is failure, what is the legal effect?
A: Re-run election. If there is failure, w/in 6mos, by motion,
a CE can be filed.
Q: Who declares failure of CE?
A: Election officer
Q: If 50% has been complied with but no one garnered
majority vote, what is the legal effect?
A: Run-off election. Automatic 2 nd election. NO UNION
• Situation wherein there are 3 or more choices but a
“no union” won:
1. A no union may win on account of freedom of
religion. There are religious groups allowed by law
not to form unions (Iglesia ni Cristo)
2. A non-union cannot exist in a run-off election.
Q: Why does the constitution allow certain religious
groups NOT to join labor unions?
A: Because Freedom of religion is freedom of conscience
Q: If a no union won, does the law allow that in a
bargaining unit, there will be no union for some time?
A: No union situation rule will be allowed only for 1 YEAR.
There will be a certification to that effect that in the
meantime for 1 year, there will be no union. Those religious
groups may still vote in CE by voting “no union”.
LABOR STANDARDS & AGRARIAN REFORM LAW
- 5 items about Agrarian Reform Law in the Finals
Bar Areas:
1. Overseas Employment and Development cases
2. Recruitment and Placement cases
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Dean Salvador Poquiz
3. Types and requirements of Illegal Recruitment
4. Doctrine of Imputed Knowledge
5. Doctrine of Processual Presumption – where the
foreign law or decision should be pleaded, if not
pleaded then we adopt our Philippine law in deciding
labor cases.
6. Distinction and Similarity of Apprentice and Learner
7. Exceptions under Art. 82 (MOM-GF-WPD)
8. Overtime - 25%
9. Working period can be reduced under the Compressed
Work Week Rule/Scheme (for economic and health
purposes) in order to trim down the expenses of the
employer in view of certain phenomenon and in order
to protect the health of its workers (example: the
company is engaged in production of chemicals that
may affect the health of workers)
10. Compensable hours worked - worker may not be in the
place of work but working for the benefit of the
employer. Expanded meaning of compensable hours
worked: it includes the period when the worker may
not be working but it is still compensable.
11. Night shift differential - 10% for each hour worked
during the night period (night work is called graveyard
shift because night workers are prone to illness).
12. Principle of non-diminution of benefits - concerned
only with benefits already enjoyed on the date of the
promulgation of the law or of the effectivity of the wage
order, and does not purport to apply to situations
arising thereafter. However, there are cases where the
SC applied non-diminution rule with benefits provided
for after the inception of the Labor Code.
13. Service incentive leave - 5 days leave credits.The Labor
Code only speaks of service incentive leave and not
vacation leave. This can be availed of not during the
year but after the year of service.
14. Service charges - amended to 100%
15. Art. 128. - Visitorial and enforcement power
16. Art. 129. Recovery of wages, simple money claims and
other benefits.
17. Art. 111 - Attorney’s fees
18. Wages
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DECEMBER 9, 2020
EMPLOYER-EMPLOYEE RELATIONSHIP (EER)
We have already taken up the four-fold test, the economic
dependence test, the control test before.
Q: If you were asked in the Bar, does every form of
control establish EER?
A: NO. Not every form of control establishes such
relationship. Only the rules that fix the methods, those
which bind or restrict the party hired with regard to the
utilization of these methods. It is this control that
establishes the EER.
Q: Are working scholars employees?
A: NO. However, for the arrangement to be valid, the
students must be given a real opportunity, including
facilities, to finish their chosen course. For example, if you
will be a working law student, you should be given the
leeway to be able to accomplish your course (without
paying anything). You should not be impended in your
course work, that is the real opportunity.
Q: What if a working scholar was negligent and struck
someone while driving? Will he be considered as an
employee?
A: YES, for purposes of imposing liability for tortious act, he
will be considered as an employee of the school. This same
rule applies for medical consultants, in case of negligence.
Otherwise, there is no EER between them and the hospital.
Q: What about lawyers?
A: YES, if they are in-house lawyers.
Q: What about crew members of boat owners?
A: NO, they just share in the profits or in the catch. It is more
of a joint venture.
Q: Resident Physicians? (hinabol ni Dean sa dulo pero
nilagay ko nalang here)
A: NO, as a general rule. However, there is EER if there is a
training agreement between them, and the training
program duly approved by the appropriate government
agency.
Q: What about in labor-only contracting? Is there EER?
A: In case of labor-only contracting, there exists an EER
between the owner of the project (ER) and EEs of the labor-
only contractor. The labor-only contractor is a mere agent
of the ER. It will be as if such EEs were directly employed by
the ER.
PRE-EMPLOYMENT
Labor Law Review
Dean Salvador Poquiz
Book One, we have recruitment and placement of workers.
We need rules on this because we need to secure the best
terms and conditions of employment. The only way to do
that is to license those employment and placement
agencies, which would in turn recruit and deploy workers,
especially for our Overseas Filipino Workers (OFWs)
Q: What do you mean by recruitment and placement?
A: ART. 13[b]. "Recruitment and placement" refers to any
act of canvassing, enlisting, contracting, transporting,
utilizing, hiring or procuring workers, and includes
referrals, contract services, promising or advertising for
employment, locally or abroad, whether for profit or not:
Provided, That any person or entity which, in any manner,
offers or promises for a fee, employment to two or more
persons shall be deemed engaged in recruitment and
placement. (Dean: ang dami no?)
Q: In recruitment and placement, is the number of
persons relevant? What if they only recruited only one
person, not two or more?
A: NO. It is only a rule of evidence—a presumption. So, when
such entity deals with two or more persons, in
consideration of a fee, with regard to an offer or promise of
employment then there is a presumption that such entity is
engaged in recruitment or placement. It’s in the labor code,
that they shall only be deemed as engaging in recruitment
of placement. So the number doesn’t matter, even if they
only deal with one prospective worker.
Keep in mind that Art. 15 of the Labor Code has already
been amended. The regional offices of the Ministry of Labor
now have the original and exclusive jurisdiction over all
matters or cases involving employer-employee relations
including money claims, arising out of or by virtue of any
law or contracts involving Filipino workers for overseas
employment except seamen.
- If it is with regard to local employment or domestic
employment functions, it is the DOLE that assumed
it.
- If overseas functions, it is the Philippine Overseas
Employment Association.
Q: Who under the rules can engage in recruitment and
placement?
A: As a rule, only public employment offices. But the private
sector may also participate, but it is limited to:
- Employment agencies
- Recruitment entities
- Shipping/manning agencies
- Those authorized by the SOLE
Q: What is the reason for the rule on private
recruitment?
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A: To prevent fly-by-night or private recruiters against
workers who want to work but do not know that they are
being scammed by such fly-by-night recruiters.
*TAKE NOTE OF THE MINIMUM REQUIREMENTS FOR
OVERSEAS EMPLOYMENT CONTRACTS
*TAKE NOTE OF THE DIFFERENCE IN JURISDICTION OF
THE POEA AND THE NLRC
Q: Is direct hiring allowed?
A: NO. As a rule direct hiring is not allowed pursuant to Art.
18 of the Labor Code.
Q: Who are exempted?
A: (1) Members of the diplomatic corps (2) international
organizations (3) such other employers as allowed by the
DOLE.
Q: Example of those employers allowed by the DOLE?
A: Those who hire “name hires”. These are workers who are
able to secure contracts for employment overseas without
the assistance or participation of any agency.
Q: Just like that? Automatic? Or does he need to undergo
any process?
A: He should still undergo processing by the POEA.
Q: What is the purpose of this prohibition?
A: In order to protect the good name of the country by
eliminating poorly trained and incompetent workers.
Q: What is the difference between an authority and a
license? Or are they the same?
A: NO. They are not the same. "License" means a document
issued by the Department of Labor authorizing a person or
entity to operate a private employment agency. "Authority"
means a document issued by the Department of Labor
authorizing a person or association to engage in
recruitment and placement activities as a private
recruitment entity.
Q: What is absolutely necessary for an entity to be
issued a license to engage in recruitment or placement?
A: There needs to be a verified undertaking that the private
recruitment agency would assume joint and solidary
liability with the employer for all claims and liabilities
which might arise in connection with the implementation of
the contract of employment.
Q: What is the purpose?
A: Since, otherwise, a violation of the employment contract
cannot be addressed. The demands of the employees might
not be enforced since the employers are abroad and outside
of Philippine jurisdiction. Hence, if these licensed entities
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Dean Salvador Poquiz
are made to assume joint and solidary liability, then the
legitimate demands of employees can be enforced.
Q: What is the consequence if the employers and
contracting parties do not perform their obligations
under their contracts?
A: They will be blacklisted, meaning, prohibited from
participating form overseas employment program.
*TAKE NOTE OF THE RULES ON BONDS AND ESCROW
DEPOSIT
MANDATORY BENEFITS IN OVERSEAS EMPLOYMENT
1. Personal Accident and Life Insurance
- Mandatory requirement for all land-based
workers.
- Without cost to the worker
- If the death is due to the accident, murder, or
assault, he is entitled to an additional equivalent
amount of life insurance.
- The personal accident insurance shall cover
accidental death, dismemberment, and disability.
2. War-risk Insurance
- Mandatory requirement or all land-based workers
bound for areas declared by the POEA as war-risk
areas shall be provided by the employer at no cost
to the worker
- Addition to the mandatory personal accident and
life insurance
3. War-risk Premium Pay
- Mandatory requirement for all seafarers who sail
on a vessel into areas declared by the POEA as war-
risk trading areas
Q: What about monetary claims of migrant workers?
A: According to R.A. 8042:
If the duration of employment contract is less than 1 year,
the illegally dismissed OFW shall be entitled to all his
salaries for the unexpired portion thereof.
If the duration of employment contract is at least 1 year or
more, the illegally dismissed OFW shall be entitled to
“whichever is less” between his “salaries for the unexpired
portion of his employment contract” or his salaries “for 3
months for every year of the unexpired term.”
However, in the case of Serrano v. Gallant Maritime
Services, the Supreme Court declared unconstitutional the
clause “or for 3 months for every year of the unexpired
term, whichever is less” for being discriminatory. Hence,
such OFW is now entitled to the salaries pertaining to the
unexpired portion of his employment contract, regardless
of the stipulated duration or term.
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This clause was replicated in R.A. 10022 despite being
declared as unconstitutional. But the Supreme Court
declared again the nullity of such clause in the case of
Sameer Overseas Placement Agency v. Cabiles. The salaries
pertaining to the unexpired portion is a form of indemnity
for an OFW who was illegally dismissed.
Q: Who has jurisdiction over an OFW’s monetary and
disability benefits? Death benefits?
A: It is the labor arbiter.
Q: What if it is the OFW and not the placement agency
who commits an offense?
A: The following penalties may be meted:
- Stern warning
- Repatriation at the worker’s expense
- Suspension
- Disqualification from the overseas employment
program
- Delisting from the registry (seamen)
In such cases the complaints shall be filed with the
Adjudication or Regional Office.
*TAKE NOTE OF THE GROUNDS FOR
SUSPENSION/CANCELLATION OF LICENSE (p. 19
REVIEWER)
ILLEGAL RECRUITMENT
Q: What are the types of illegal recruitment?
A:
1. Simple or licensee –committed by a licensee or
holder of authority against one or two persons
only;
2. Non-licensee –committed by any person who is
neither a licensee nor a holder of authority;
3. Syndicated – committed by a syndicate if carried
out by a group of 3 or more persons in conspiracy
or confederation with one another; and
4. Large-scale or Qualified – committed against 3
or more persons, individually or as a group.
Q: What is illegal recruitment?
A: Recruitment activities, including prohibited practices
enumerated under Article 34 undertaken by non-licensees
or non-holders of authority.
*TAKE NOTE OF THE PROHIBITED PRACTICES UNDER
ART. 34 (dami daw sabi ni sir lol, memorize at least 5,
but read all to apply the definition of illegal recruitment
in a problem)
a. To charge or accept, directly or indirectly, any
amount greater than that specified in the
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schedule of allowable fees prescribed by the
Secretary of Labor, or to make a worker pay any
amount greater than that actually received by
him as a loan or advance;
b. To furnish or publish any false notice or
information or document in relation to
recruitment or employment;
c. To give any false notice, testimony, information
or document or commit any act of
misrepresentation for the purpose of securing
a license or authority under this Code.
d. To induce or attempt to induce a worker
already employed to quit his employment in
order to offer him to another unless the
transfer is designed to liberate the worker from
oppressive terms and conditions of
employment;
e. To influence or to attempt to influence any
person or entity not to employ any worker who
has not applied for employment through his
agency;
f. To engage in the recruitment or placement of
workers in jobs harmful to public health or
morality or to the dignity of the Republic of the
Philippines;
g. To obstruct or attempt to obstruct inspection
by the Secretary of Labor or by his duly
authorized representatives;
h. To fail to file reports on the status of
employment, placement vacancies, remittance
of foreign exchange earnings, separation from
jobs, departures and such other matters or
information as may be required by the
Secretary of Labor.
i. To substitute or alter employment contracts
approved and verified by the Department of
Labor from the time of actual signing thereof by
the parties up to and including the periods of
expiration of the same without the approval of
the Secretary of Labor;
j. To become an officer or member of the Board of
any corporation engaged in travel agency or to
be engaged directly or indirectly in the
management of a travel agency; and
k. To withhold or deny travel documents from
applicant workers before departure for
monetary or financial considerations other
than those authorized under this Code and its
implementing rules and regulations.
Q: Is there a difference between simple illegal
recruitment and economic sabotage?
A: YES. In simple illegal recruitment, it can be committed
even against one person. However, for there to be illegal
recruitment as a crime of economic sabotage, it must be
committed by a syndicate or perpetrated on a large scale.
Page 47 of 55

Q: Is the conviction for illegal recruitment and estafa
one and the same? (asked earlier but dito ko nalang
nilagay hehe)
A: NO. The elements are similar but they are punished by
different laws, hence, there can be two convictions.
Q: Will that not amount to double jeopardy?
A: NO. The filing of a charge for these two may even be filed
separately. It can also be simultaneous. Acquittal in illegal
requirement does not mean acquittal in estafa. Further,
illegal recruitment is malum prohibitum, while estafa is
malum in se.
*TAKE NOTE OF THE PENALTIES AND PRESCRIPTIVE
PERIODS
Simple IR
- Imprisonment: not less than 6 years and 1 day but not
more that 12 years
- Fine: not less than P200,000.00 nor more than
P500,000.00
Economic Sabotage
- Imprisonment: Life imprisonment
- Fine: not less than P500,000.00 not more than
P1,000,000.00
The maximum penalty shall be imposed if the person
illegally recruited is less than 18 years of age by a non-
licensee/holder of authority.
Conviction carries with it the automatic revocation of the
license or authority, forfeiture of the cash and surety bond,
and conviction for the crime of Estafa if found guilty thereof.
A recruitment agency is solidarily liable with a foreign
principal for the unpaid salaries of a worker it recruited for
employment.
Venue of Criminal Action
a. RTC of the province or city where the offense was
committed; or
b. Where the offended party actually resides at the
time of the commission of the offense.
Mandatory periods for resolution of Illegal
Recruitment Cases
1. Preliminary Investigation (PI):
- terminated within 30 days from date of filing
2. Filing of Information in Court:
a. If PI conducted by the Prosecutor: 24 hours from
termination of investigation
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Dean Salvador Poquiz
b. If PI conducted by the Judge: 48 hours from date of
receipt of records of the case
3. Prescriptive Periods:
a. Simple Illegal Recruitment: 5 years
b. Economic Sabotage: 20 years
Q: Is there implied renewal of a seafarer’s contract?
A: NO. It is fixed for a certain period. He may disembark
later since it may be impossible for him to safely disembark
on the date of termination of his contract since the vessel
could still be in the middle of the sea.
XPN: Unless they mutually agree to extend.
Q: What was the doctrine in the case of Agabon? If there
is failure to afford due process, can there be an award
of damages?
A: YES. Where the employer failed to observe the necessary
procedural safeguards prior to the dismissal of an OFW, the
correct award is P30,000 as indemnity in the form of
nominal damages.
APPRENTICES
Q: What is an apprentice?
A: An apprentice is a worker who is covered by a written
apprenticeship agreement with an individual employer or
any of the entities recognized under the law. He is a person
undergoing training for an approved apprenticeable
occupation. Once he has completed an apprenticeship
training, he can qualify for work in a highly-skilled trade.
Q: What is an apprenticeable occupation?
A: It means any trade, form of employment or occupation
approved for apprenticeship by TESDA, which requires for
proficiency more than three (3) months of practical training
on the job supplemented by related theoretical instruction.
Q: What is an apprenticeship program?
A: Any practical training on the job supplemented by
theoretical instructions.
Q: What are the qualifications of an apprentice?
A: a. Be at least fifteen (15) years of age (as amended by Sec.
2 of R.A 9231)
b. Possess vocational aptitude and capacity for
appropriate tests; and
c. Possess the ability to comprehend and follow oral and
written instructions.
Q: What is a highly-technical industry?
A: It refers to a trade, business, enterprise, industry or other
activity which utilized the application of advanced
technology.
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Q: What are the differences between a learner and
apprentice?
A:
Learners Apprentices
trained in non- trained in apprenticeable
apprenticeable occupations.
occupations.
always paid at not less than may be paid the full
75% of minimum wage. minimum wage.
Learners employed in Apprentices may not be
piece or incentive-rate jobs paid in cases specified
are paid in full for the work under Art. 72.
done.
may be employed only may be employed even if
when there are no there are experienced
experienced employees. employees.
Q: When can there be a double probation?
A: If upon completion of the learnership or apprenticeship
period, a leaner or apprentice will undergo a probationary
period.
(Upon completion of the apprenticeship of learnership
period, they may become regular employees. After the
training period, they shall no more undergo a probationary
period for this would amount to double probation
proscribed under the law)
Q: Is there an obligation to hire the apprentice or
learner as a regular worker after the period?
A: In apprenticeship, the enterprise is not obliged to employ
the apprentice unless it is so provided in the apprenticeship
contract that upon completion of the program, he will be
absorbed.
In learnership, the enterprise is obliged to hire the learner
after the training period.
HOURS OF WORK
Q: Who are covered by Title I, Book III?
A:
GR: Covers all employees in establishment.
XPN: not entitled to overtime pay (OTP), premium pay for
rest days and holiday pay (PP), night shift differential pay
(NSD), holiday pay (HP), service incentive leave (SIL), and
service charges.
a. Government Employees;
b. Managerial Employees;
c. Officers and members of the managerial staff;
d. Field personnel;
Labor Law Review
Dean Salvador Poquiz
e. Members of the family of the employer who are
dependent on him for support;
f. Domestic helpers;
g. Persons in the personal service of another; and h.
Workers paid by results.
Q: Who are government employees?
A: Government employees refer to those employed by the
National Government or any of its political subdivisions
including those employed in government-owned or
controlled corporations.
Q: Why are government employees excluded?
A: By express provision of the Constitution and the Labor
Coded, terms and conditions of employment of all
government employees, including employees of
government-owned and controlled corporations shall be
governed by the Civil Service law, rules and regualtions.
Q: Who are managerial employees?
A: They refer to those who meet the following conditions:
1. their primary duty consists of the management of
the establishment in which they are employed or of
a department or sub-division thereof;
2. they customarily and regularly direct the work of
two or more employees therein; and
3. they have the authority to hire or fire employees of
lower rank; or their suggestions and
recommendations as to hiring and firing and as to
the promotion or any other change of status of
other employees, are given particular weight.
Q: Why are managerial employees excluded?
A: They are employed as such by virtue of their special
training or expertise, experience, or knowledge and for
positions which require the exercise of independent
judgment and discretion. They are not subject to the rigid
observance of regular office hours, as the true worth of their
services do not depend so much on the time they spend in
office but more on the results of their accomplishments. For
these type of workers, it is not feasible to provide a fixed
hourly rate of pay or maximum hours of labor.
Q: Who are officers or members of managerial staff?
A: Officers and managers of a managerial staff are exempted
from the coverage if they perform the following duties and
responsibilities.
1. Their primary duty consists of the performance of
work directly related to management policies of
their employer;
2. They customarily and regularly exercise discretion
and independent judgment;
3. They regularly and directly assist a proprietor or a
managerial employee whose primary duty consists
of the management of the establishment in which
he is employed or subdivision thereof; or (ii)
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execute under general supervision work along
specialized or technical lines requiring special
training, experience, or knowledge; or (iii) execute,
under general supervision, special assignments
and tasks; and
4. They do not devote more than 20 percent of their
hours worked in a work week to activities which
are not directly and closely related to the
performance of the work described in paragraphs
(1), (2) and (3) above.
Q: Why are officers or members of managerial staff
excluded?
A: Officers or members of managerial staff are considered
managerial employees for they customarily and regularly
exercise discretion and independent judgement, that is,
their powers are not subject to evaluation, review, and final
action by the department heads and other higher executives
of the company. Thus, it is also not feasible to provide a fixed
hourly rate of pay or maximum hours of work.
Q: Who are domestic servants?
A: They perform such services in the employer's home
which are usually necessary or desirable for the
maintenance and enjoyment thereof, or minister to the
personal comfort, convenience, or safety of the employer as
well as the members of his employer's household
Q: May a househelper be transferred to the business
undertaking of the employer?
A: No, once a househelper is employed, she cannot later on
be transferred to the business undertaking of the employer.
Q: Who are Field personnel?
A: They refer to non-agricultural employees who regularly
perform their duties away from the principal place of
business or branch office of the employer and whose actual
work hours cannot be determined with reasonable
certainty.
Q: Why are field personnel excluded?
A: They are exempted from the coverage due to the nature
of their function which requires performance of service
away from the principal place of business. Hence, they are
free from the personal supervision of their employer
making the latter unable to determine the actual number of
work hours expended for the employer’s interest.
Q: Are bus drivers considered field personnel?
A: No, if required to be at specific place at specific times,
employees including drivers cannot be said to be field
personnel despite the fact that they are performing work
away from the principal office of the employer. Thus, a bus
driver under constant supervision while in the performance
of work cannot be considered as field personnel.
Labor Law Review
Dean Salvador Poquiz
Q: Who are members of the family?
A: Should be dependent upon the employer for support.
Include husband and wife, parents and children, other
ascendants and descendants, brothers and sisters whether
full or half-blood.
Q: Why are members of the family excluded?
A: They are exempted from the coverage, for the support
given by the employer may exceed the benefit for which an
employee is entitled under appropriate labor provisions.
Moreover, to cover them under Art. 82 may create labor
problems that would eventually break-up the family, which
is the evil sought to be prevented.
Q: Who are workers paid by result?
A: Includes those who are paid on piece-work, "takay,"
"pakiao" or task basis.
Q: Why are workers paid by result excluded?
A: Their payment is determined by the results of the work
performed or the number of units produced, not the
number of hours used in the completion of the job or the
time spent in production.
Q: How long is the working hours of an employee?
A: The normal hours of work of any employee shall not
exceed eight (8) hours a day.
Q: If he works beyond that time what do you call that?
A: Overtime work
Q: Is he entitled to anything if he works beyond the
working hours?
A: Yes, the employee is paid for the overtime work, an
additional compensation equivalent to his regular wage
plus at least twenty five percent (25%) thereof.
Q: When is an employee considered as working?
A: Compensable hours worked shall include:
1. All time during which an employee is required to
be on duty or to be at the employer’s premises or
to be at a prescribed workplace; and
2. All time during which an employee is suffered or
permitted to work
The law provides that rest periods of short duration during
working hours shall be counted as hours worked, such as
coffee break or snack time.
Q: What about a 30-minute meal period? Is this
compensable?
A: Yes, employees are entitled to at least 1-hour time-off for
regular meal which can be taken inside or outside the
company premises.
Q: Is Compressed work week (CWW) schedule allowed?
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A: Yes, the 8-hour requirement does not however, preclude

the employer in the exercise of its management
prerogatives to reduce the number of working hours,
provided that there is no diminution of existing benefits. It
is a management prerogative whenever exigencies require,
to change the working hours of its employees as loans as
such prerogative is exercised in good faith.

Q: What is the purpose of limiting the working hours?

A: It is designed not only to safeguard the health and welfare
of the laborer or employee, but in a way to minimized
unemployment by forcing employers, in cases where more
than eight-hour operation is necessary, to utilize different
shifts of laborers or employees working only for eight-
hours each.

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December 16, 2020
CONDITIONS OF EMPLOYMENT
Q: What is holiday?
A: Is a day set apart by the law to commemorate an
important event.
Q: What is a holiday pay?
A: It is a monthly income undisturbed by work interruption.
It is a rest declared by law but you are paid in order to
insure your monthly income is undisturbed by work
interruption.
Q: How many regular holidays?
A: In your book it’s 10, but there are two additional holidays
(eid al fitr and eid al adha). Thus, there are 12 regular
holidays.
Q: How many special holidays?
A: 9
Q: What is the distinction between regular and special
holidays?
A: In case of regular holiday:
a. If you do not report for work - 100% of the regular
pay;
In case of special holiday:
a. If you do not report for work – no work no pay
principle; fair days wage for fair days labor
b. If you report for work – 130%
Q: If there are two (2) holidays in one day, distinguish:
a. Worked – for the first 8 hours = 100%; for the first
holiday = 100%; second holiday = 100%; TOTAL =
300%
b. Unworked - for the first 8 hours = none; for the first
holiday = 100%; second holiday = 100%; TOTAL =
200%
Q: What is the rule on two (2) successive holidays?
A: If you didn’t report the day prior to two (2) successive
holidays, you are not entitled to compensation for the
succeeding holidays. However, if you report for work the
day prior to the two (2) succeeding holidays, then you are
entitled to compensation for the succeeding holidays.
If you are on a leave of absence WITH pay the day prior to
the holiday, you are entitled to compensation during the
two (2) succeeding holidays.
If you are on a leave of absence WITHOUT pay the day prior
to the holiday, you are not entitled to compensation during
the two (2) succeeding holidays.
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Assuming you did not report for work the day prior to the
two (2) succeeding holidays but you reported for work
during the first holiday, then you will receive compensation
for the second holiday.
Q: In 8/11 convenience store, there are eight (8) sale
assistants. Two (2) of them are required for work
during December 25 and December 30. Are they
entitled to the holiday pay?
A: No. 8/11 convenience store is a service establishment
which has below ten employees. Thus, it is exempted from
paying holiday pay. The two (2) employees are there not
entitled to holiday pay.
Q: For work week, how many rest days are you entitled
to?
A: 24 hours after six (6) consecutive work days.
Q: Can you choose you rest day?
A: As a rule, you cannot choose. However, you can choose if
it is based on religious grounds.
Q: What are the exceptions where you can be compelled
to work on rest days?
A: Same exception as adverted to regarding compulsory
overtime work.
Q: What is night shift differential pay? How many
percent for each night hour during the night differential
period?
A: Every employee shall be paid a night shift differential of
not less than ten percent (10%) of his regular wage for each
hour of work performed between ten o’clock in the evening
and six o’clock in the morning.
Q: Why is there a need to grant some sort of incentive to
a person who works at night?
A: Working at night is violative of law of nature for it is the
period for rest and sleep. There may have adverse medical
consequences. The worker might get afflicted with disease
or he might get sick. As such, the worker needs additional
pay to compensate for the hazard of working night shift.
Q: How would you characterize night work?
A: Night shift is treated as graveyard shift.
Q: What is this principle of non-diminution of benefits?
A: Concerned only with benefits granted under the law,
CBA, rules and regulation of the DOLE, employment
contract, and those benefits voluntarily given by the
employer (not contingent on profit/without any condition).
If these benefits are granted for some time, or these are
granted as a company practice, these benefits cannot be
withdrawn.
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Q: When do you say that a benefit becomes a company

practice? Q: Is 13th month pay what kind of benefit?
A: Two (2) years and above. A: It is a mandatory benefit by virtue of PD No. 851.

Q: Is bonus a benefit? Q: When does bonus become part of a wage?

A: Yes. A: (a) If it is given without any condition or it is voluntarily
given not contingent on profit; (b) if it has become a
Q: What is the meaning of bonus? company practice.
A: Benefit granted by employer on account of the fact that
the employer is successful in his business undertaking. It is
a voluntary undertaking and entirely dependent on the WAGES
financial capability of the employer to give it. It is on
account of enlightened generosity. It is an act of liberality,
Q: What is a facility?
benevolence and gratuity.
A: Articles or services for the benefit of the employee or his
family but shall not include tools of trade or articles or
Bonus although voluntarily given can become a company
service primarily for the benefit of the employer necessary
practice. Kaya kung two (2) and above binibigay na yan, it
to conduct of the employer’s business.
cannot be withdrawn by the employer.
Q: What are the three (3) essential requirements of
Q: What is the exception that a bonus/benefit given
facilities?
cannot be subject to withdrawal by the employer?
A:
A: If there is a payment by mistake. There are two types: (a)
a. Customarily furnished by the employer;
mistake in law; and (b) mistake in fact.
b. Voluntary acceptance in writing by the employee;
c. It must be fair and reasonable value
In case of payment by mistake on the part of the employer,
the employer can compel the employee to refund these
Q: What is an example of facility?
benefits. This is because the employee is not entitled to the
A: Monthly rice ratio so long as it complies with the
benefits but he was granted benefits. This is based on the
requisites
legal principle that no one should unjustly enrich himself at
the expense of another (solutio indebiti).
Q: Why is it important to determine whether it is a
facility or a supplement?
Q: What is the period that the employer can compel the
A: Because facilities can be deductible from wages, while
employee to refund?
supplement cannot. Since facility is deductible from wages,
A: Within a reasonable period of time upon period of
therefore facility is part of a wage.
discovery.
Q: What is a supplement?
Q: When can a bonus become a matter of right?
A: Supplement is extra remuneration on the part of the
A:
employee but it is not considered as part of a wage. In other
a. When it is mandated by law;
words, supplements are granted to a worker over and
b. When it has ripened into a company practice;
above his guaranteed wages. Supplements are not part of
c. When the grant is unilaterally imposed by the
wages because the same cannot be deducted from them.
employer.
d. When it is agreed upon by the employer and
Q: Given an example of supplement
employee in the CBA.
A: All over-guaranteed wages, such as:
a. 13th month pay;
Q: Is bonus a part of a wage?
b. Bonuses;
A: No, it is separate and distinct. Because by the very
c. Overtime pay;
definition of bonus, it is payment in excess of regular wage
d. Night shift differential pay;
given to an employee. It is granted to an employee for his
e. Service charges;
tangible contribution to the success of the employer’s
f. Holiday pay
business.
Q: What is the law on 13th month pay?
Q: It is settled that 13th month pay is a bonus. What if the
A: It is called 13th month pay because it is a month pay upon
employer, by his own volition, granted 14th and 15th
the expiration of a 12th month period. 13th month pay is
month pay, can it be done?
equivalent to your monthly pay. (PD No. 851)
A: Yes, because it is beneficial to the employee.
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Q: Is it compulsory to give 13th month pay to the
employees?
A: As a rule, yes. The exception to this rule are as follows:
a. Government employees;
b. If already given bonuses equivalent to a 13th month
pay;
c. Household helpers (Kasambahay Law);
d. Employees who are paid purely on commission,
boundary or task basis
e. Managerial employees
Q: What is the meaning of 13th month pay or its
equivalent?
A: There are benefits that may have already been given by
the employer equivalent to the amount of 13th month pay.
Thus, the employees are no longer entitled to 13th month
pay. To compel the employer to give 13th month pay
although such employer has already given this in its
equivalent would be overburdening the ER.
PRINCIPLE OF NON-DIMINUTION OF BENEFITS
Q: Who are exempted from 13th Month Pay
A:
1. Government Employees and any of its political
subdivisions;
2. Employers of those who are paid on purely
commission, boundary, or task basis;
3. Seafarers because paid for commission basis and
earn more;
4. Employers already paying their employees a
13thmonth pay or its equivalent at the time of
issuance of 13th month pay law
Q: What is a regular wage?
A: A regular wage is one prescribed by law that is mandated
to be paid by the employer in legal tender
Q: What are the forms of payment?
A:
1. Legal tender or cash
2. Checks if it is the practice of company
3. Vouchers
Q: May wages be paid partly in cash and partly in kind?
A: No
Q: May wages be paid in automated machines?
A: Yes provided the requirements are complied with:
1. Consent of employees
2. Given within reasonable time to withdraw
3. There must be a near atm facilities
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Dean Salvador Poquiz
4. There must be no extra charges bear by the
employees
5. There must be a record of payroll
Q: To whom shall the wages be paid?
A: Tt shall be paid directly to the workers to whom they are
due but subject to exceptions:
1. In cases of force majeure, rendering payment
impossible or special situations to be determined
by the secretary of labor and employment;
2. When the employee died, wages shall be given to
the heirs of worker without the need of any
proceeding;
3. Payment can be made to a 3rd person when
authorized by law
Q: May deductions be made in violation of company
rules and regulations?
A: Yes, provided it is fair and reasonable
Q: What is a Check-Off?
A: System by which union dues and other assessments are
deducted from the employee’s wage by the employer upon
authorization from the worker or by mandate of law
Q: When shall be the wages be paid?
A: Wages shall be paid twice a month with intervals not
exceeding 16 days. It can be paid weekly and monthly by
agreement of the parties.
Q:Why the law provides when the employer should give
the salaries?
A: The employee may use it for basic necessities.
INDEPENDENT CONTRACTORSHIP AND LABOR-ONLY
CONTRACTOR
Q: What is labor only contracting?
A: Labor only contracting refers to an arrangement
betwwen a principal and a contractor wherein the
contractor would provide services which is fund by the
principal.
Q: Is there EER between labor only contractor and its
employees?
A: None because labor only contracting is prohibited by
law. These workers become direct employees of the
principal employer. That is why they can join the rank and
file union. Contractor considered as an agent of the
employer
ART. 128- VISITORIAL AND ENFORCEMENT POWER
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Q: How may the employer assume jurisdiction over Q: Regarding the decision of RD under 129, appealable
money claims regardless of the amount of money to whom?
claims provided it is in pursuance of the exercise of A: NLRC
visitorial and enforcement power?
A: It must be established that there is EER and exercised by
the Secretary of Labor or his duly authorized representative WORKER PREFERENCE IN CASE OF BANKRUPTCY

Q: Can this power be taken cognizance by the RD only?
A: Yes, if filed motu proprio and complaint filed on the
ground of labor standards complaint. After receiving of the
complaint and there is no EER, it must be filed with RAB. If
there is EER then it has jurisdiction.
If it has jurisdiction, an inquiry and verification should be
made by the labor regulation officer to inspect the premises
of the employer whether or not there is violation of the
labor standards law and regulation. In the course of
inspection and there is violation, the officer will make an
assessment and inform the RD about the assessment.
Q: Who has jurisdiction over small money claims with
reinstatement?
A: LA. If without reinstatement, it is the Regional office of
the regional director in the exercise of adjudicatory power
under ART.129.
Q: What kind of bankruptcy?
A: There should be a formal declaration of bankcruptcy by
the courts. The workers will enjoy first preference as to
unpaid wages and benefits against 3rd persons including the
government.
If there is no judicial declaration of bankcruptcy, the
applicable is the law in preference or concurrence of credit
under the civil code.
Q: How would you reconcile this with the supreme
power of taxation by the Government?
A: It is mere obiter dictum. The SC upheld the superiority of
Tax principle based on the Constitutional anchor that the
taxes are lifeblood of the nation that without which no
government can exist.

Q: What are the requirements for the exercise of

adjudicatory power?
A:
a. Claim is filed by an employee or person employed
in domestic or household service, or househelper;
b. Claim arises from EER;
c. Claimant, no longer employed, does not seek for
reinstatement; and
d. Aggregate money claim, including legal interest, of
each employee or househelper does not exceed
P5,000.00

Q: Regarding contested cases, any decision shall be

appealable to whom?
A: NLRC

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