2023 HERNANDO LABOR LAW LAST MINUTE TIPS

Important Items Lifted from Dean Ada’s Pre-Week notes

COMPLETED 18 SEPT 2023

LAST MINUTE TIPS FOR

2023 HERNANDO SEPTEMBER
LABOR BAR EXAMINATIONS
From the notes of Adamson Dean Ada D. Abad

For 2023 Bar Examinations:

2nd day (Wednesday), 20 September 2023, 2:00 – 6:00 p.m.
Including decisions of Bar Chairman SC Justice
Ramon Paul L. Hernando in Labor Law. 1

1. BURDEN OF PROOF IS ALWAYS UPON EMPLOYER to show validity of its exercise of

management prerogatives, especially as regards termination of employment.

TWO EXCEPTIONS when burden of proof is initially placed upon EMPLOYEE:

a) Fact of hiring.
b) Fact of firing/dismissal.

J. HERNANDO. Tacis vs. Shields Security Services, Inc. G.R. No. 234575, [ July 7, 2021; see
also: J. HERNANDO cases of Systems and Plan Integrator and Development Corp.
vs.Ballesteros, G.R. No. 217119 | April 25, 2022] and Efren Santos vs. King Chef et al. G.R.
No. 211073 [November 25, 2020].. -- Settled is the rule that before the employer must bear
the burden of proving that the dismissal was legal, the employee must first establish by
substantial evidence the fact of his dismissal from service. If there is no dismissal, then
there can be no question as to its legality or illegality. Bare allegations of constructive
dismissal, when uncorroborated by the evidence on record, cannot be given credence.

Rodriguez v. Sintron Systems, Inc., G.R. No. 240254, [July 24, 2019] -- As an
allegation is not evidence, it is elementary that a party alleging a critical fact must support
his allegation with substantial evidence. Bare allegations of dismissal, when
uncorroborated by the evidence on record, cannot be given credence. Moreover, the
evidence to prove the fact of dismissal must be clear, positive and convincing.

ADA’S NOTES ON RECENT TRENDING OF THE SUPREME COURT CASES:

 Complainant must prove fact of hiring or firing
 There must be substantial and corroborative evidence to support
the fact of actual hiring or firing.

 It is thus incumbent upon complainant-employee to proffer evidence to prove the

existence of employer-employee relationship between them.

 Where the complainant has shown the fact of hiring, and of the existence of
employer-employee relationship, employer company must then show the
contrary, e.g., independent contractor, stockholder or partnership if it wishes
to avoid liability

1
With special thanks to my Ablelaw associate Atty. Nico Nunez, former Adamson Law student
Erikha Araneta, and the Adamson Bar Ops Team headed by Prof. Guiller Asido and Joie Monedo
for the some of the digests and encoding.
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2. IN CASES OF DOUBT OR AMBIGUITY, INTERPRET OR RULE IN FAVOR OF LABOR.

J. HERNANDO. Jovero v. Cerio, G.R. No. 202466, [June 23, 2021]. -- While this Court is
mindful that procedural lapses have been previously disregarded and appeals filed beyond
the reglementary period have been given due course, it necessitates strong and compelling
reasons to do so.

J. HERNANDO. Reyes v. Rural Bank of San Rafael (Bulacan), Inc., G.R. No. 230597,
[March 23, 2022]. -- Relaxed and liberal interpretation of LABOR PROCEDURES —
mainly for the benefit of employee, and not the employer. In this regard, the Court
emphasized the policy that although in labor cases, strict adherence to the technical rules of
procedure is not required, this liberal policy should still be subject to rules of reason and fair
play. The liberality of procedural rules is qualified by two requirements:
 a party should adequately explain any delay in the submission of evidence; and
 a party should sufficiently prove the allegations sought to be proven.

J. HERNANDO. Regala v. Manila Hotel Corp., G.R. No. 204684, [October 5, 2020]) -
Belated submission of evidence on appeal cannot be countenanced, especially where the
company seeks to change its theory from actual dismissal to non-dismissal.

3. EMPLOYER-EMPLOYEE RELATIONSHIP
Vis-à-vis Issues of Jurisdiction

TWO ELEMENTS TO DETERMINE JURISDICTION OF LABOR COURTS:

(a) There exists an employer-employee relationship

(b) There must be a REASONABLE CAUSAL CONNECTION between the parties’
employer-employee relations, as well as the claim asserted, in order for labor courts
to have jurisdiction.

 In the absence of such nexus, it is the regular courts that have jurisdiction. J. HERNANDO,
Esico v. Alphaland Corp., G.R. No. 216716, [November 17, 2021]) citing San Miguel
Corporation vs. NLRC, 244 Phils 741 (1988)
 ADA’S NOTES: In short, aside from the existence of an ER-EE relationship, the claim or
relief prayed for can be answered by referring to the Labor Code or other labor laws, in order
for Labor Courts to have jurisdiction,
In determining the nature of the case, check the principal relief sought by the complainant.
That is the main factor that determines jurisdiction.

4. IMPORTANT J. HERNANDO CASE: DOCTRINE OF PROMISSORY ESTOPPEL vis-a-vis

Corporate officer termination or resignation. (Philippine National Bank v). Bulatao, G.R. No.
200972, [December 11, 2019])

The situation calls for the application of the doctrine of promissory estoppel, which is
"an exception to the general rule that a promise of future conduct does not constitute
an estoppel.” In some jurisdictions, in order to make out a claim of promissory estoppel, a
party bears the burden of establishing the following elements: (1) a promise reasonably
expected to induce action or forbearance; (2) such promise did in fact induce such action or
forbearance[;] and (3) the party suffered detriment as a result."

In the case at bench, Bulatao was constrained to apply for early retirement due to the
announcement of its availability and because of the unfavorable future working conditions he

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would face after the supposed JVA with the "Indian" group and the conduct of the International
Competitive Test. As the CA ruled, the circumstances in which the bank expected Bulatao to
work impelled him to apply for retirement, and not because he actually wished to sever his
employment ties with PNB.

Bulatao withdrew his application for early retirement since Mr. Tan purportedly asked him to
work in a different capacity in the bank. Hence, he manifested such withdrawal through a
Memorandum three days before PNB's Board released Resolution No. 38 accepting his
supposed resignation. In effect, the Board did not have any basis for its resolution since
Bulatao already withdrew his application.

The Court finds without justification PNB's treatment of Bulatao's letter as one for resignation
and its subsequent "acceptance" of the same to ultimately terminate his employment. Neither
was there any basis to charge him with abandonment for his failure to report for work. (J.
Hernando. Philippine National Bank v. Bulatao, G.R. No. 200972, [December 11, 2019]).

5. LIABILITY OF CORPORATE OFFICERS (Montealegre v. Spouses De Vera, G.R. No.

208920, [July 10, 2019])

6. DOCTRINE OF PIERCING VEIL OF CORPORATE FICTION

 J. HERNANDO. Esico v. Alphaland Corp., G.R. No. 216716, [November 17, 2021]. –
In labor cases, the corporate veil may be lifted only if it has been used to shield fraud,
defend crime, justify a wrong, defeat public convenience, insulate bad faith or perpetuate
injustice. Where an employee was rendering services to several corporations under a
group of companies, the veil of corporate fiction may be pierced considering the strong
ambiguity in the three employment contracts as to which among in the respondent’s group
of companies will compensate him for the services he had rendered.

7. EFFECT OF LABOR-ONLY CONTRACTING AND VALID JOB CONTRACTING

AGREEMENTS -- San Miguel Corp. vs. MAERC Integrated Systems, 405 SCRA 579 [10 July 2003]

 If labor only contracting: ILLEGAL.

The employer is deemed the DIRECT employer and is made liable to the employees
of the contractor for a more comprehensive purpose (wages, monetary claims, and
all other benefits in the Labor Code such as SSS/Medicare/Pag-Ibig). The labor-only
contractor is deemed merely an agent.

 If job-contracting: LEGAL.
The employer is considered an INDIRECT EMPLOYER, and is made solidarily liable
with the contractor to the employees of the latter for a more limited purpose, viz.:
payment of unpaid wages and other monetary claims, including 13th Month pay, service
incentive leave pay (New Golden Builders case).

8. IMPORTANT CASE ON FLOATING STATUS

Ada’s notes: Floating status is allowed in two instances:

(a) for a maximum period of six (6) months as a result of temporary cessation of operations
of the business under Article 301, Labor Code, OR

(b) for a period of three (3) months under Dept Order No. 174 s 2017, where the contract
between the principal and the independent contractor had expired, and the independent
contractor/employer is under obligation to look for alternative employment for its regular
employees.
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J. HERNANDO. TELUS INTERNATIONAL PHILIPPINES, INC. V. DE GUZMAN, G.R. NO.

202676, [December 4, 2019]

ON FLOATING STATUS. -- Contrary to the stance of Telus, the floating status principle does
not find application in the instant case. While it may be argued that the nature of the call
center business is such that it is subject to seasonal peaks and troughs because of client
pullouts, changes in clients' requirements and demands, and a myriad other factors, still,
the necessity to transfer De Guzman to another practice/account does not depend on
Telus' third party-client/contracts.

When the controversy arose, Telus had several clients in its roster to which it can
easily assign De Guzman as Quality Analyst without any hindrance. As earlier admitted
by Telus, profiling interviews were not a condition precedent to the transfer. Moreover, as
established before the Labor Arbiter, after the lifting of the preventive suspension of De
Guzman by Telus, the company had several job vacancy postings for the position of Quality
Analysts, the very position previously occupied by De Guzman.(Telus International
Philippines, Inc. v. De Guzman, G.R. No. 202676, [December 4, 2019])

9. CLASSIFICATION OF EMPLOYMENT. –

9.1 The employment status of a person is defined and prescribed by law and not by what the
parties say it should be. --J. HERNANDO, Regala v. Manila Hotel Corp., G.R. No. 204684,
[October 5, 2020]).

9.2 Burden of proof that the employee was duly notified of the nature of the engagement as
a non-regular employee (whether probationary, project, etc). is placed upon the employer.
-J. HERNANDO, Engineering & Construction Corporation of Asia v. Palle, G.R. No. 201247, [July
13, 2020]; See also:. J. HERNANDO. Jovero v. Cerio, G.R. No. 202466, [June 23, 2021]

10. ART. 110, LABOR CODE. WORKER’S PREFERENCE IN CASE OF

BANKRUPTCY. (FOR POSSIBLE BAR QUESTION THIS YEAR. HAD NOT BEEN ASKED
SINCE THE LAST DECADE).

10.1 What Article 110 of the Labor Code establishes is not a lien, but a preference of credit
in favor of employees.

Unlike a lien, a preference of credit does not create a charge upon any particular
property of the debtor. This simply means that during bankruptcy or insolvency
proceedings against the properties of the employer, the employees have the
advantage of having their unpaid wages satisfied ahead of certain claims which may
be proved therein. (DBP vs. Secretary, ibid.; See also DBP vs. NLRC, 222 SCRA 264 [1993];
DBP vs. NLRC, 229 SCRA 350 [1994]; Hautea vs. NLRC, 230 SCRA 119 [1994]).

10.2 Bankruptcy proceedings must first be instituted for Article 110 to apply.

 Likewise, the abovementioned articles of the Civil Code on concurrence and

preference of credits properly come into play only in cases of insolvency.

 Since there is no bankruptcy or insolvency proceeding to speak of, much less a

liquidation of the assets of DWUT, the Union cannot look to said statutory provisions
for support. (Associated Labor Unions v. Court of Appeals, G.R. No. 156882, [October 31,
2008], 591 PHIL 316-331)

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11. PROHIBITION ON DISCRIMINATORY PRACTICES AGAINST:

11.1 WOMEN WORKERS. --

11.2 OLD AGE, under ANTI-AGE DISCRIMINATION LAW REPUBLIC ACT NO. 10911 [10 June
2016]

11.3 TELECOMMUTING EMPLOYEES. -- TELECOMMUTING ACT, Rep. Act No.11165 [20

December 2018], in conjunction with ||| the Implementing Rules and Regulations of Republic Act
No. 11165, DOLE Department Order No. 202, s. 2019, [March 26, 2019]).

11.4 CHILD DISCRIMINATION. -- Article 140 Labor Code. No employer shall

discriminate against any person in respect to terms and conditions of employment
on account of his age.

11.5 DISABLED WORKERS

 No disabled person shall be denied access to opportunities for suitable employment.

[R.A. 7277, Sec. 5: Magna Carta for Disabled Persons]. Qualified disabled employees
shall be subject to the same terms and conditions of employment and the same
compensation, privileges, benefits, fringe benefits, incentives or allowances as a
qualified able-bodied person. NOTE: A worker is not necessarily considered as a
handicapped worker if he is capable, as an able-bodied worker, to function suitably in
relation to the work to which he was hired. (i.e. one-legged transcriptionist)

11.6. SOLO PARENT UNDER REPUBLIC ACT NO. 8972, Solo Parents’ Welfare Act of 2000 cf
Expanded Solo Parents Welfare Act, Republic Act No. 11861, [June 4, 2022].

12. BONA-FIDE OCCUPATIONAL QUALIFICATION (BFOQ) as an exception to

discriminatory hiring and/or retention practices

12.1 BFOQ: When the employer can prove that the reasonable demands of the business
require a distinction based on a qualification, and there is no better available or
acceptable policy which would better accomplish the business purpose, then this is a
bona fide occupational qualification. (Star Paper Corp. v. Simbol, G.R. No. 164774,
[April 12, 2006], 521 PHIL 364-379)

Ada’s definition: You can put a qualification (BFOQ) for hiring when the same is
reasonably necessary for the performance of the job for which he/she is hired

12.2 Contra: when not BFOQ because it is considered discriminatory employment policy
• Disparate treatment analysis: an employment policy is discriminatory on its face.
• Disparate impact analysis: a facially neutral employment policy has a
disproportionate effect on a particular class

13. REQUIREMENTS FOR VOLUNTARY CANCELLATION OF UNION

REGISTRATION - 2/3 VOTE OF GENERAL MEMBERSHIP

“ART. 248. Voluntary Cancellation of Registration. - The registration of a legitimate labor

organization may be cancelled by the organization itself. Provided, That at LEAST TWO-
THIRDS of its general membership votes, in a meeting duly called for that purpose
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to dissolve the organization: Provided, further, That an application to cancel registration is

thereafter submitted by the board of the organization, attested to by the president thereof.”

14. CERTIFICATION ELECTION

14.1. General Rule: The employer is not a party in a certification election, which activity is
the sole concern of the workers. IT IS MERELY A BYSTANDER.
Exception: Where the employer has to file a petition for certification election pursuant
to Art. 258 of the Labor Code because it was requested to bargain collectively. Even
then, it becomes a neutral bystander.

14.2 Other modes of certifiying exclusive bargaining agent.

 Consent Election. (Dept. Order No. 40, Rule 8, Section 10. Consent Election;
Agreement). - In case the contending unions agree to a consent election, the Med-
Arbitershall not issue a formal order calling for the conduct of certification election,
but shall enter the fact of the agreement in the minutes of the hearing. The
minutes of the hearing shall be signed by the parties and attested to by the Med-
Arbiter.
 SOLE AND EXCLUSIVE BARGAINING AGENT (SEBA), to be recognized by
Regional Director

ELEMENTS FOR SEBA

 Unorganized establishment and there is ONLY ONE legitimate labor organization
operating within the bargaining unit
 Request for recognition filed by the LLO containing the following:
1. Names and addresses of the LLO and the company
2. Bargaining unit sought to be represented
3. Approximate number of employees in bargaining unit
4. MAJORITY of #3 support the certification as SEBA of the petitioning
union
5. No other legitimate labor organization operating within the
bargaining unit
6. Documents duly certified by union president

14.3 CERTIFICATION ELECTION PROPER

 Remember that in any event, registration of union cannot be attacked
collaterally during the certification election proceedings

 HOW TO CHALLENGE A PETITION FOR CERTIF ELECTION; Grounds.

– The Med-Arbiter may dismiss the petition on any of the following grounds:
a. the PETITIONER UNION IS NOT LISTED in the Department’s registry of legitimate
labor unions or that ITS LEGAL PERSONALITY HAS BEEN REVOKED OR
CANCELLED WITH FINALITY in accordance with Rule XIV of these Rules;
b. in case of an organized establishment, FAILURE TO SUBMIT THE TWENTY-
FIVE PERCENT (25%) support requirement for the filing of the petition for
certification election.
c. CONTRACT BAR RULE: the petition was filed before or after the freedom period of
a duly registered collective bargaining agreement; provided that the sixty-day
period based on the original collective bargaining agreement shall not be affected
by any amendment, extension or renewal of the collective bargaining agreement;
(for more detailed discussion, see notes below, page 91)
d. ONE YEAR BAR RULE: the petition was filed within one (1) year from entry of
voluntary recognition or a valid certification, consent or run-off election and no
appeal on the results of the certification, consent or run-off election is pending; (see
notes below)
e. o DEADLOCK BAR RULE: a duly certified union has commenced and
sustained negotiations with the employer in accordance with Article 250 of the
Labor Code within the one-year period referred to in Section 14.cof this Rule, or
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there exists a bargaining deadlock which had been submitted to conciliation or

arbitration or had become the subject of a valid notice of strike or lockout to
which an incumbent or certified bargaining agent is a party.

 REQUIREMENTS FOR VALID CERTIFICATION ELECTION

(Dept. Order No.9, Section 12, Rule XIII; Dept Order No. 40-03 Rule 9)

1) REMEMBER: DOUBLE MAJORITY RULE

TO FIND OUT IF THERE IS A VALID ELECTION: To have a valid
election, a majority of all eligible voters in the appropriate bargaining
unit must have CAST their votes (FIRST MAJORITY RULE -- JUST
COUNT HOW MANY VOTED).
TO FIND OUT WHO WON THE ELECTIONS: The Union obtaining a
majority of
ALL VALID VOTES cast shall be certified as sole and exclusive
bargaining representative of the workers in the appropriate
bargaining unit. (SECOND MAJORITY RULE – JUST COUNT IF THERE
IS A UNION THAT GARNERED A MAJORITY OF THE VALID VOTES CAST)

2) RUN-OFF ELECTION, REQUISITES (Dept. Order No. 9, Rule XIII):

a) Between three or more choices
b) There is a valid election ( FIRST MAJORITY RULE COMPLIED).
c) No choice receiving a majority of the valid votes cast (SECOND
MAJORITY RULE NOT COMPLIED);
d) The total number of votes for all contending unions is at least
50% of the number of votes cast
e) Between the two labor unions receiving the two highest number of
votes.

15. IMPT.; NOT ASKED IN THE BAR SINCE 2012

DISAFFILIATION FROM MOTHER FEDERATION
15.1 What is the nature of the relationship between the legitimate labor
organization and the federation to which it is affiliated?

• LOCAL CHAPTER OR LEGITIMATE LABOR ORG: PRINCIPAL

• MOTHER FEDERATION: AGENT

15.2 What happens to existing CBAs in case of disaffilation?

Answer: Substitutionary doctrine will apply.

Substitutionary doctrine is a principle in labor law which states that even during the
effectivity of a collective bargaining agreement executed between the employer and
employees thru their agent, the employees can change said agent but the contract
continues to bind them up to its expiration date. They may bargain however for the
shortening of said expiration date. The principle applies to a situation when there
occurs a shift in employees’ union allegiance after the execution of a collective
bargaining contract. (Benguet Consolidated, Inc. vs. BCI Employees & Workers Union,
23 SCRA 471 [1968]; Cited In Philippine Law Dictionary By Moreno, 2nd Edition.)

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15.3 J. Martires. Ergonomic Systems Philippines, Inc. v. Enaje, G.R. No. 195163,
[December 13, 2017]) -

Issue: Whether Federation may invoke union security clause in demanding for dismissal
of the union officers who initiated and actually disaffiliated with the Federation?
Supreme Court: Only the local union may invoke the union security clause in the CBA.|
Federation cannot use the union security clause to terminate the union officers.
Disaffilation does not divest local union of its personality. The local union does not owe
its existence to the federation with which it is affiliated. It is a separate and distinct
voluntary association owing its creation to the will of its members. Mere affiliation does
not divest the local union of its own personality, neither does it give the mother
federation the license to act independently of the local union. It only gives rise to a
contract of agency, where the former acts in representation of the latter. Hence, local
unions are considered principals while the federation is deemed to be merely their agent.

16. CHECK-OFF OF UNION DUES, SPECIAL

ASSESSMENTS AND AGENCY FEES:

16.1. Requisites for validity of union dues and/or special assessment. (ABS- CBN
Supervisors Employees Union Members vs. ABS-CBN Broadcasting Corp., 304
SCRA 489 [1999]).
a) authorization by a written resolution of the majority of all the members at
the general membership meeting duly called for the purpose;
b) secretary’s record of the minutes of the meeting; and
c) individual written authorization for check-off duly signed by the employee
concerned.
16.2. Agency fees defined: The collection of agency fees in an amount equivalent to
union dues and fees, from employees who are not union members, is recognized by
Article 248 (e) of the Labor Code, thus:
Employees of an appropriate collective bargaining unit who are not
members of the recognized collective bargaining agent may be
assessed reasonable fees equivalent to the dues and
other fees paid by the recognized collective bargaining
agent, if such non- union members accept the benefits under the
collective bargaining agreement. Provided, That the individual
authorization required under Article 241, paragraph (o) of this Code shall
not apply to the non-members of recognized collective bargaining agent.

 Requisites for assessment of Agency fee: (Art. 259[e], Labor Code).

a) The employee is part of the bargaining unit;
b) He is not a member of the union; and
c) He partook of the benefits of the CBA.

 Individual written authorization is not necessary for the collection of agency

fees. This is to avoid free-riders who will unjustly enrich themselves by the
acceptance of benefits negotiated by the bargaining agent.

J. Perlas-Bernabe, Peninsula Employees Union v. Esquivel, G.R. No. 218454,

[December 1, 2016], 801 PHIL 667-679) -- The recognized collective bargaining
union which successfully negotiated the CBA with the employer is given the right to
collect a reasonable fee called "agency fee" from non-union members who are
employees of the appropriate bargaining unit, in an amount equivalent to the dues

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and other fees paid by union members, in case they accept the benefits under the
CBA.

In the present case, PEU-NUWHRAIN's right to collect agency fees is not disputed.
However, the rate of agency fees it seeks to collect from the non-PEU members is
contested, considering its failure to comply with the requirements for a valid increase
of union dues, rendering the collection of increased agency fees unjustified.

Having failed to establish due deliberation and approval of the increase in

union dues from one percent (1%) to two percent (2%), as well as the
deduction of the two percent (2%) union dues during PEU-NUWHRAIN's 8th
General Membership Meeting on October 28, 2008, there was nothing to
confirm, affirm, or ratify through the July 1, 2010 GMR. Contrary to the ruling of
the OSEC in its March 6, 2012 Order, the July 1, 2010 GMR, by itself, cannot
justify the collection of two percent (2%) agency fees from the non-PEU
members beginning July 2010. The Assembly was not called for the purpose of
approving the proposed increase in union dues and the corresponding check-off,
but merely to "confirm and affirm" a purported prior action which PEU-NUWHRAIN,
however, failed to establish.

Thus, the CA correctly ruled that there is no legal basis to impose union dues
and agency fees more than that allowed in the expired CBA, i.e., at one
percent (1%) of the employee's monthly basic salary. (J. Perlas-Bernabe,
Peninsula Employees Union v. Esquivel, G.R. No. 218454, [December 1, 2016],
801 PHIL 667-679).|

17. May a case for ULP on account of refusal to bargain, be rendered moot by the
voluntary dissolution of the union itself during the pendency of the appeal? -- J.
Lazaro-Javier, New World International Development (Phil.), Inc. v. New World Renaissance Hotel
Labor Union, G.R. No. 197889, [July 28, 2021])

YES. A case becomes moot when it ceases to present a justiciable controversy such that
its adjudication would not yield any practical value or use. It can no longer grant any relief
or enforce any right, and anything it says on the matter will have no practical use or value.
Indeed, the power of the Court to adjudicate is limited to actual ongoing controversies.
Here, the dissolution of respondent union by its own members is a supervening event
which rendered the case moot. For such dissolution deprives these courts of judicial
authority to resolve the case, there being no longer any actual case or controversy since
one of the parties, a real party in interest, has ceased to be. (New World International
Development (Phil.), Inc. v. New World Renaissance Hotel Labor Union, G.R. No. 197889,
[July 28, 2021])

18. STRIKES, PICKETING AND LOCK-OUTS

18.1. Requisites of a valid strike: (a) Must have a lawful purpose; (b) conducted through
lawful means; and (c) must be in compliance with the procedural requirements
under the Labor Code

18.2. Assumption of Jurisdiction by the Secretary of Labor or Certification of the

Labor Dispute to the National Labor Relations Commission for Compulsory
Arbitration; REQUISITES
a) There is a labor dispute
b) The labor dispute is causing or likely to cause a strike or lock-out

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c) The labor dispute involves an industry indispensable to the

national interest
d) Once an assumption or certification order is issued:
d.1) If a strike or lock-out is yet to be conducted, the same shall automatically
be enjoined;
d.2) If a strike or lock-out is already taking place, then:
• The striking or locked-out workers shall immediately return to work;
• The employer shall immediately resume operations, and readmit all
workers back to work under the same terms and conditions status
quo ante.
Nature and Effect of Assumption and Certification
a) Assumption and certification orders are executory in character and are strictly
to be complied with by the parties even during the pendency of any petition
questioning their validity.
b) It automatically results in a return-to-work of all striking workers (if one has
already taken place), or enjoins the taking place of a strike (Union of Filipro
Employees vs. Nestle Philippines, Inc., 192 SCRA 396.)
c) While termination by reason of an illegal strike requires hearing, replacement
by reason of violation of a return-to-work order does not. (Free Telephone
Workers Union vs. PLDT, 113 SCRA 663, 678.)

Effect of Defiance of Assumption or Certification Orders. -- "A Strike that is

undertaken despite the issuance by the Secretary of Labor of an assumption or
certification order becomes a prohibited activity and thus illegal, pursuant to the
second paragraph of Art. 264 of the Labor Code as amended (Zamboanga Wood
Products, Inc. vs. NLRC, G.R. 82088, October 13, 1989; 178 SCRA 482). The
Union, officers and members, as a result, are deemed to have lost their
employment status for having knowingly participated in an illegal act. "
(Union of Filipino Employees vs. Nestle Philippines, Inc. [192 SCRA 396])

18.3. POSSIBLE BAR QUESTION: STRIKES IN HOSPITALS

 CAN THERE BE STRIKES IN HOSPITALS?

Answer: YES, but it is highly discouraged.

Article 278(g), Labor Code. -- In line with the national concern for and the highest
respect accorded to the right of patients to life and health, strikes and lockouts
in hospitals, clinics and similar medical institutions shall, to every extent possible,
be avoided, and all serious efforts, not only by labor and management but
government as well, be exhausted to substantially minimize, if not prevent, their
adverse effects on such life and health, through the exercise, however legitimate,
by labor of its right to strike and by management to lockout. (Labor Code of the
Philippines, Presidential Decree No. 442 (Amended & Renumbered), [July 21, 2015].

 What is the duty and obligation of the striking union, or the lock-
outing employer, if the strike occurs in a hospital?

In labor disputes adversely affecting the continued operation of such

hospitals, clinics or medical institutions, it shall be the duty of the striking union
or locking-out employer to provide and maintain an effective SKELETAL
WORKFORCE of medical and other health personnel, whose movement
and services shall be unhampered and unrestricted, as are necessary to
insure the proper and adequate protection of the life and health of its patients,
most especially emergency cases, for the duration of the strike or lockout. In
such cases, therefore, the Secretary of Labor and Employment may immediately
assume, within twenty four (24) hours from knowledge of the occurrence
of such a strike or lockout, jurisdiction over the same or certify it
to the Commission for compulsory arbitration. (Labor Code of the
Philippines, Presidential Decree No. 442 (Amended & Renumbered), [July 21, 2015])

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19. MATRIX OF FIVE POSSIBLE SITUATIONS IN TERMINATION

20. NEW TREND WHERE EMPLOYEE FAILS TO PROVE DISMISSAL BUT COMPANY
FAILS TO PROVE ABANDONMENT. – J. HERNANDO, Gososo vs. Leyte Lumber, G.R.
No. 205257, [January 13, 2021] citing J. CAGUIOA, Rodriguez v. Sintron Systems, Inc., G.R.
No. 240254, [July 24, 2019])

Indeed, in cases where the parties failed to prove the presence of either dismissal of the employee
or abandonment of his work, the remedy is to reinstate such employee without payment of
backwages. Simply stated, parties to revert to status quo and continue the employment under
same terms and conditions as before.

The Court has clarified that "reinstatement," as used in such cases, is merely an affirmation that
the employee may return to work as he was not dismissed in the first place. It should not be
confused with reinstatement as a relief proceeding from illegal dismissal as provided under Article
279 of the Labor Code

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Reinstatement under Art 279 Labor Code restores the employee who was unjustly dismissed to
the position from which he was removed, that is, to his status quo ante dismissal.

In the present case, considering that there has been no dismissal at all, there can be no
reinstatement as one cannot be reinstated to a position he is still holding. Instead, the Court
merely declares that the employee may go back to his work and the employer must then
accept him BECAUSE THE EMPLOYMENT RELATIONSHIP BETWEEN THEM WAS NEVER
ACTUALLY SEVERED

21. ON BACKWAGES - FULL BACKWAGES to be computed from the time of termination

to the time of actual reinstatement.

J. HERNANDO, Angono Medics Hospital, Inc. v. Antonina Q. Agabin , G.R. No. 202542,
(December 09, 2020). -- The Supreme Court reiterated the settled rule that “[t]he twin reliefs
that should be given to an illegally dismissed employee are full backwages and
reinstatement. Backwages restore the lost income of an employee and is computed from the
time compensation was withheld up to actual reinstatement. Anent reinstatement, only when
it is not viable is separation pay given.”

First, when reinstatement is ordered, the general concept under Article [294] of the Labor
Code, as amended, computes the backwages from the time of dismissal until the employee’s
reinstatement. The computation of backwages (and similar benefits considered part of the
backwages) can even continue beyond the decision of the [Office of the Labor Arbiter] or
[National Labor Relations Commission] and ends only when the employee is actually
reinstated.

Second, when separation pay is ordered in lieu of reinstatement (in the event that this aspect
of the case is disputed) or reinstatement is waived by the employee (in the event that the
payment of separation pay, in lieu, is not disputed), backwages is computed from the time
of dismissal until the finality of the decision ordering separation pay.

Third, when separation pay is ordered after the finality of the decision ordering the
reinstatement by reason of a supervening event that makes the award of reinstatement no
longer possible, backwages is computed from the time of dismissal until the finality of the
decision ordering separation pay. The finality of the decision becomes the reckoning point
because in allowing separation pay, the final decision effectively declares that the
employment relationship ended so that backwages and separation pay may be properly
computed.

22. RECRUITMENT AND PLACEMENT

J. HERNANDO. SRL International Manpower Agency v. Yarza, Jr., G.R. No. 207828,
[February 14, 2022]) - Nature of employment as contractual employee; Contract must
pass through POEA, otherwise NOT valid.
Unless the employment contract of an OFW is processed through the POEA, the
same does not bind the concerned OFW because if the contract is not reviewed by
the POEA, certainly the State has no means of determining the suitability of foreign
laws to our overseas workers." Moreover, the "Offer of Employment" states that the rules
and regulations found in UAE's labor laws should apply, which is contrary to our country's
policies concerning labor contracts and security of tenure.
The "Offer of Employment" was perfected when Yarza agreed to the same while he was still
in the Philippines, and then consented to be deployed abroad. In fact, he already commenced
with his duties under the said contract until his sudden repatriation. However, the "Offer of

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Employment" is invalid since it was not approved by the POEA and because it runs contrary
to the Constitution's principles as well as existing labor laws.
Notwithstanding the invalidity of the "Offer of Employment," an employer-
employee relationship exists. As such, the petitioners should accord Yarza
due process, both substantial and procedural, before terminating his
employment.
Termination due to disease is illegal. Akkila did not present any certification from a
competent public health authority citing that Yarza's disease cannot be cured within
six months, or that his employment is prejudicial to his health or that of his co-employees.
Absent this certification, Akkila failed to comply with Article 299 [284] of the Labor Code as
well as Section 8, Title 1, Book Six of the Omnibus Rules Implementing the Labor Code. In
other words, Yarza's dismissal was not based on a just cause. Apart from this, Akkila did
not accord Yarza procedural due process.
Even if the "Offer of Employment" is invalid, the existence of an employer-employee
relationship entitles Yarza to claim for the payment of his salaries for the unexpired
portion of his contract.||| (SRL International Manpower Agency v. Yarza, Jr., G.R. No.
207828, [February 14, 2022])

22.1. ILLEGAL RECRUITMENT; elements:

J. HERNANDO, People vs. Oliver Imperio Y Antonio, G.R. No. 232623. October 5, 2020.
-- Under RA 8042, a non-licensee or non-holder of authority is liable for Illegal Recruitment
when the following elements concur: (1) the offender has no valid license or authority required
by law to enable him to lawfully engage in recruitment and placement of workers; and (2) the
offender undertakes any ofthe activities within the meaning of "recruitment and placement"
under Article13(b) of the Labor Code, or any of the prohibited practices enumerated under
Article 34 of the Labor Code (now Section 6 of RA 8042).

In the case of Illegal Recruitment in Large Scale, a third element is added: that the offender
commits any of the acts of recruitment and placement against three or more persons,
individually or as a group. Moreover, "[t]o prove [I]llegal [R]ecruitment, it must be shown that
the accused gave the complainants the distinct impression that [he or she] had the power or
ability to deploy the complainants abroad in [such] a manner that they were convinced to part
with their money for that end."

22.2. Illegal recruitment as distinguished from estafa

J. HERNANDO, People v. Manalang, G.R. No. 198015, [January 20, 2021]). -

Jurisprudence is settled that a person, for the same acts, may be convicted separately
for Illegal Recruitment under RA 8042 (or the Labor Code), and Estafa under Article
315(2)(a) of the RPC. In estafa, damage is essential, but not in the crime of illegal
recruitment. As to the latter, it is the lack of the necessary license or authority, but not the
fact of payment that renders the recruitment activity as unlawful.

23. COMPENSABILITY OF DISABILITY

23.1. General rule: If sickness resulting in death or disability is among those listed in
POEA-SEC Sec 32-A, then this is compensable.

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Exception: If not listed in POEA SEC Sec 32-A, then sickness is disputably
presumed to be work-related. Burden is upon OFW (or heirs) to prove reasonable
causal connection between work and sickness.

23.2. No compensation and benefits are payable for injury, incapacity, disability or death
from OFW’s own willful act.

23.3. GUIDELINES IN DISABILITY CLAIMS:

“The liabilities of the employer when the seafarer suffers work-related injury or
illness during the term of his contract are as follows:

23.3.1. The employer shall continue to pay the seafarer his wages during the time
he is on board the vessel;

23.3.2. If the injury or illness requires medical and/or dental treatment in a foreign
port, the employer shall be liable for the full cost of such medical, serious
dental, surgical and hospital treatment as well as board and lodging until
the seafarer is declared fit to work or to repatriated.

23.3.3. Upon sign-off from the vessel for medical treatment, the seafarer is entitled
to sickness allowance equivalent to his basic wage until he is declared fit to
work or the degree of permanent disability has been assessed by the
company-designated physician but in no case shall this period exceed one
hundred twenty (120) days.

 For this purpose, the seafarer shall submit himself to a post-

employment medical examination by a company-designated physician
within three working days upon his return except when he is physically
incapacitated to do so, in which case, a written notice to the agency
within the same period is deemed as compliance.
 Failure of the seafarer to comply with the mandatory reporting
requirement shall result in his forfeiture of the right to claim the above
benefits.

 If a doctor appointed by the seafarer disagrees with the assessment, a

third doctor may be agreed jointly between the Employer and the
seafarer. The third doctor’s decision shall be final and binding on both
parties.

23.3.4. Those illnesses not listed in Section 32 of this Contract are disputably
presumed as work related.

23.3.5. Upon sign-off of the seafarer from the vessel for medical treatment, the
employer shall bear the full cost of repatriation in the event the seafarer
is declared (1) fit for repatriation; or (2) fit to work but the employer is
unable to find employment for the seafarer on board his former vessel or
another vessel of the employer despite earnest efforts.

J. HERNANDO. Omanfil International Manpower vs. Rolando B.

Mesina, G.R. No. 217169, [November 4, 2020]. -- If the repatriation was
indeed voluntary on his part, he would not have pursued a case of illegal
termination against petitioners which would cost him time and money. As it
is, Mesina's immediate filing of a case of illegal dismissal negates

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petitioners' claim that he voluntarily agreed to his repatriation to seek

medical treatment in his home country. Likewise, petitioners failed to
establish the fact that they provided Mesina a re-entiy visa to support their
argument that they did not dismiss him. In any case, even the existence of
a re-entry visa does not necessarily defeat an illegal dismissal complaint.

23.3.6. In case of permanent total or partial disability of the seafarer caused by

either injury or illness the seafarershall be compensated in accordance
with the schedule of benefits arising from an illness or disease shall be
governed by the rates and the rules of compensation applicable at the time
the illness or disease was contracted.

FOR THE BAR EXAMINEES:

GOOD LUCK AND GOD BLESS YOU ALL!!

ADAMSON FALCONS: SOARING HIGH, DEFYING GRAVITY!

LYCEUM: VERITAS ET FORTITUDO. PRO DEO ET PATRIA!
FEU: FORTITUDE, EXCELLENCE, AND UPRIGHTNESS. BE BRAVE!

ADA D. ABAD, 18 Sept 2023

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