FUNDAMENTAL PRINCIPLES AND POLICIES
LABOR LAW
3.
Q: What is labor?
A: It is the exertion by human beings of physical or
mental efforts, or both, towards the production of
goods and services.
Social legislation – It includes laws that
provide particular kinds of protection or
benefits to society or segments thereof in
furtherance of social justice.
e.g. GSIS Law, SSS Law, Philhealth benefits
Q: Is there any distinction between labor
legislation and social legislation? Explain.
Q: What is labor law?
A: The law governing the rights and duties of the
employer and employees with respect to:
1.
2.
The terms and conditions of employment
and
Labor disputes arising from collective
bargaining (CB) respecting such terms and
conditions.
Q: What is the purpose of labor legislation?
A: Labor legislation is an exercise of police power.
The purpose of labor legislation is to regulate the
relations between employers (Ers) and employees
(Ees) respecting the terms and conditions of
employment, either by providing for certain
standards or for a legal framework within which
better terms and conditions of work could be
negotiated through CB. It is intended to correct the
injustices inherent in Er‐Ee relationship. (2006 Bar
Question)
A: Labor legislation is sometimes distinguished from
social legislation by the former referring to labor
statutes, like Labor Relations Law and Labor
Standards, and the latter to Social Security Laws.
Labor legislation focuses on the rights of the worker
in the workplace.
Social legislation is a broad term and may include
not only laws that give social security protection,
but also those that help the worker secure housing
and basic necessities. The Comprehensive Agrarian
Reform Law could also be considered a social
legislation. All labor laws are social legislation, but
not all social legislation is labor law. (1994 Bar
Question)
Q: What are the sources of labor laws?
A:
1.
2.
3.
4.
5.
Q: What are the classifications of labor law?
Labor Code and other related special
legislation
Contract
Collective Bargaining Agreement
Past practices
Company policies
A:
1.
Labor standards – The minimum terms
and conditions of employment prescribed
by existing laws, rules and regulations
relating to wages, hours of work, cost‐of‐
living allowance and other monetary and
welfare benefits. (Batong Buhay Gold
Mines, Inc. v. Dela Serna, G.R. No. 86963,
August 6,1999)
th
e.g. 13 month pay
2. Labor relations – Defines and regulates
the status, rights and duties, and the
institutional mechanisms, that govern the
individual and collective interactions of
Ers, Ees, or their representatives. It is
concerned with the stabilization of
relations of Er and Ees and seek to
forestall and adjust the differences
between them by the encouragement of
collective bargaining and the settlement
of labor disputes through conciliation,
mediation and arbitration.
e.g. Additional allowance pursuant to
CBA
A.
FUNDAMENTAL PRINCIPLES AND POLICIES
1.CONSTITUTIONAL PROVISIONS
Q: What are the constitutional mandates with
regard labor laws?
A:
1.
Sec. 3, Art. XIII – The State shall afford full
protection to labor, local and overseas,
organized and unorganized, and promote
full employment and equality of
employment opportunities for all.
It shall guarantee the rights of all workers
to self‐organization, collective bargaining
and negotiations, and peaceful concerted
activities, including the right to strike in
accordance with law. They shall be
entitled to security of tenure, humane
conditions of work, and a living wage.
They shall also participate in policy and
decision‐making processes affecting their
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
1
UST GOLDEN NOTES 2011
rights and benefits as may be provided by
law.
provides
incentives
investments.
The State shall promote the principle of
shared responsibility between workers
and employers and the preferential use of
voluntary modes in settling disputes,
including conciliation, and shall enforce
their mutual compliance therewith to
foster industrial peace. The State shall
regulate the relations between workers
and employers, recognizing the right of
labor to its just share in the fruits of
production and the right of enterprises to
reasonable returns to investments, and to
expansion and growth.
2.
Sec. 10, Art II ‐ The State shall promote
social justice in all phases of national
development.
4.
Sec. 11, Art II ‐ The State values the
dignity of every human person and
guarantees full respect for human rights.
Sec. 14, Art. II ‐ The State recognizes the
role of women in nation‐building, and
shall ensure the fundamental equality
before the law of women and men.
7.
Sec. 18, Art. II – The State affirms labor as
a primary social economic force. It shall
protect the rights of workers and
promote their welfare.
8.
2
Sec. 20, Art. II ‐ The State recognizes the
indispensable role of the private sector,
encourages private enterprise, and
Sec. 1, Art. III ‐ 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.
11. Sec. 8, Art. III – The right of the people,
including those employed in the public
and private sectors, to form unions,
associations, or societies for purposes not
contrary to law shall not be abridged.
12. Sec. 1, Art. XIII ‐ The Congress shall give
highest priority to the enactment of
measures that protect and enhance the
right of all the people to human dignity,
reduce social, economic, and political
inequalities,
and
remove
cultural
inequities by equitably diffusing wealth
and political power for the common good.
To this end, the State shall regulate the
acquisition,
ownership,
use,
and
disposition of property and its
increments.
Sec. 13, Art. II ‐ The State recognizes the
vital role of the youth in nation‐building
and shall promote and protect their
physical, moral, spiritual, intellectual, and
social well‐being. It shall inculcate in the
youth patriotism and nationalism, and
encourage their involvement in public and
civic affairs.
6.
needed
10. Sec. 4, Art. III ‐ No law shall be passed
abridging the freedom of speech, of
expression, or of the press, or the right of
the people peaceably to assemble and
petition the government for redress of
grievances.
Sec. 9, Art. II – The State shall promote a
just and dynamic social order that will
ensure the prosperity and independence
of the nation and free the people from
poverty through policies that provide
adequate social services, promote full
employment, a rising standard of living,
and an improved quality of life for all.
3.
5.
9.
to
13. Sec. 2, Art. XIII ‐ The promotion of social
justice shall include the commitment to
create economic opportunities based on
freedom of initiative and self‐reliance.
14. Sec. 14, Art. XIII – The State shall protect
working women by providing safe and
healthful working conditions, taking into
account their maternal functions, and
such facilities and opportunities that will
enhance their welfare and enable them to
realize their full potential in the service of
the nation.
Q: What is the State policy on labor as found in the
constitution (Sec. 3, Art. XIII)?
A:
1.
2.
3.
Afford full protection to labor
Promote full employment
Ensure
equal
work
opportunities
regardless of sex, race, or creed
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
FUNDAMENTAL PRINCIPLES AND POLICIES
4.
5.
Assure the rights of workers to self
organization, security of tenure, just and
humane conditions of work, participate in
policy and decision‐making processes
affecting their right and benefits
Regulate the relations between workers
and employers
d.
2.
Revised Penal Code
Art. 289 – Formation, maintenance and
prohibition of combination of capital or
labor through violence or threats. – Any
person who, for the purpose of
organizing, maintaining or preventing
coalitions or capital or labor, strike of
laborers or lock‐out of employees, shall
employ violence or threats in such a
degree as to compel or force the laborers
or employers in the free and legal
exercise of their industry or work, if the
act shall not constitute a more serious
offense in accordance with the provisions
of the RPC.
3.
Special Laws
a. GSIS Law
th
b. 13 Month Pay Law
c. Retirement Pay Law
d. SSS Law
e. Paternity Leave Act
f. Anti – Child Labor Act
g. Anti – Sexual Harassment Act
h. Magna Carta for Public Health
Workers
i.
Solo Parents Welfare Act of 2000
j.
National Health Insurance Act as
amended by R.A. 9241
k. Migrant Workers and Overseas
Filipinos Act of 1995 as amended by
RA 10022
l.
PERA Act of 2008
m. Home Development Mutual Fund
Law of 2009
n. The Magna Carta of Women
o. Comprehensive Agrarian Reform Law
as amended by R.A. 9700
Q: What are the basic rights of workers
guaranteed by the Constitution (Sec. 3, Art. XIII)?
A:
1.
2.
3.
4.
5.
6.
7.
8.
Security of tenure
Receive a living wage
Humane working conditions
Share in the fruits of production
Organize themselves
Conduct
collective
bargaining
or
negotiation with management
Engage in peaceful concerted activities
including strike
Participate in policy and decision making
processes
Q: What is the principle of non‐oppression?
A: The principle mandates capital and labor not to
act oppressively against each other or impair the
interest and convenience of the public. The
protection to labor clause in the Constitution is not
designed to oppress or destroy capital. (Capili v.
NLRC, G.R. No. 117378, Mar. 26, 1997)
2.NEW CIVIL CODE AND OTHER LAWS
Q: What are other related laws to labor?
A:
1.
Civil Code
a. Art. 1700 – The relations between
capital and labor are not merely
contractual. They are so impressed
with public interest that labor
contracts must yield to the common
good. Therefore, such contracts are
subject to the special laws on labor
unions, collective bargaining, strikes
and lockouts, closed shop, wages,
working conditions, hours of labor
and similar subjects.
b. Art. 1701 – Neither capital nor labor
shall act oppressively against the
other, or impair the interest or
convenience of the public.
c. Art. 1702 – In case of doubt, all labor
legislation and all labor contracts
shall be construed in favor of the
safety and decent living for the
laborer.
Art. 1703 – No contract which
practically amounts to involuntary
servitude,
under
any
guise
whatsoever, shall be valid.
3.LABOR CODE
Q: What is the aim of labor laws?
A: The justification of labor laws is social justice.
Social justice is “neither communism, nor
despotism, nor atomism, nor anarchy,” but the
humanization of laws and the equalization of social
and economic force 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
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
3
UST GOLDEN NOTES 2011
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. (Calalang v. Williams, G.R. No. 47800, Dec. 2,
1940)
A: No, the Constitution provides that the State shall
afford full protection to labor. Furthermore, the
State affirms labor as a primary economic force. It
shall protect the rights of workers and promote
their welfare. (1998 Bar Question)
a.Art. 3. Declaration of Basic Policy
Q: What is the policy of the State as regards labor
as found in the Labor Code (Art. 12)?
A:
1.
Q: What is “compassionate justice”?
A: It is disregarding rigid rules and giving due weight
to all equities of the case.
2.
e.g: Employee validly dismissed may still be given
severance pay.
3.
Q: How should doubts in the implementation and
interpretation of the Labor Code (LC) and its
Implementing Rules and Regulations (IRR) be
resolved?
4.
A: They should be resolved in favor of labor.
5.
Q: What is the concept of liberal approach in
interpreting the LC and its IRR?
6.
A: The workers' welfare should be the paramount
consideration in interpreting the LC and its IRR.
This is rooted in the constitutional mandate to
afford full protection to labor. (PLDT v. NLRC, G.R.
No. 111933, July 23, 1997). It underscores the
policy of social justice to accommodate the
interests of the working class on the humane
justification that those who have less in life shall
have more in law. (PAL v. Santos, G.R. No. 77875,
Feb. 4, 1993). (2006 Bar Question)
Q: Art. 4 of the LC provides that in case of doubt in
the implementation and interpretation of the
provisions of the LC and its IRR, the doubt shall be
resolved in favor of labor. Art. 1702 of the Civil
Code also provides that in case of doubt, all labor
legislation and all labor contracts shall be
construed in favor of the safety and decent living
of the laborer.
Mica‐Mara Company assails the validity of these
statutes on the ground that they violate its
constitutional right to equal protection of the
laws. Is the contention of Mica Mara Company
tenable? Discuss fully.
4
7.
Promote and maintain a State of full
employment
through
improved
manpower training, allocation and
utilization;
Protect every citizen desiring to work
locally or overseas by securing for him the
best possible terms and conditions of
employment;
Facilitate a free choice of available
employment by persons seeking work in
conformity with the national interest;
Facilitate and regulate the movement of
workers in conformity with the national
interest;
Regulate the employment of aliens,
including the establishment of a
registration and/or work permit system;
Strengthen the network of public
employment offices and rationalize the
participation of the private sector in the
recruitment and placement of workers,
locally and overseas, to serve national
development objectives;
Ensure careful selection of Filipino
workers for overseas employment in
order to protect the good name of the
Philippines abroad.
Q: What are the reasons for affording greater
protection to employees?
A:
1.
2.
Greater supply than demand for labor;
and
Need for employment by labor comes
from vital and desperate necessity.
(Sanchez v. Harry Lyons Construction Inc.,
G.R. L‐2779, Oct. 18, 1950)
Q: Are all labor disputes resolved in favor of labor?
A: No. The law also recognizes that management
has rights which are also entitled to respect and
enforcement in the interest of fair play. (St. Lukes
Medical Center Ees Ass’n v. NLRC, G.R. No. 162053,
Mar. 7, 2007)
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
FUNDAMENTAL PRINCIPLES AND POLICIES
1.
b.Art. 5. Rules and Regulations
2.
Q: Who is given the “rule‐making power”?
3.
A: The Department of Labor and other gov’t
agencies charged with the administration and
enforcement of the Labor Code or any of its parts
shall promulgate the necessary implementing rules
and regulations. Such rules and regulations shall
become effective 15 days after announcement of
their adoption in newspapers of general circulation.
Q: What are the limitations to the “rule‐making
power” given to the Secretary of Labor and
Employment and other gov’t agencies?
A: It must:
1. Be issued under the authority of the law
2. Not be contrary to law and the
Constitution
c.Art. 6. Applicability
Q: To whom shall all rights and benefits under the
LC apply?
A: GR: All rights and benefits granted to workers
under the LC shall apply alike to all workers,
whether agricultural or non‐agricultural.
XPN:
1. Government employees (Ees)
2. Ees of government corporations created
by special or original charter
3. Foreign governments
4. International agencies
5. Corporate
officers/
intra‐corporate
disputes which fall under P.D. 902‐A and
now fall under the jurisdiction of the
regular courts pursuant to the Securities
Regulation Code (SRC).
6. Local water district except where NLRC’s
jurisdiction is invoked.
7. As may otherwise be provided by the LC
Q: What is the test in determining whether a GOCC
is subject to the Civil Service Law?
A: It is determined by the manner of their creation.
Gov’t corporations that are created by special
(original) charter from Congress are subject to Civil
Service rules, while those incorporated under the
General Corporation Law are covered by the LC.
Q: Who is an agricultural/farm worker?
A:
One employed in an agricultural or farm
enterprise,
Performs tasks which are directly related
to agricultural activities of the Er, and
Any activities performed by a farmer as
an incident to farming operations.
d.Art. 211. Declaration of Policy
Q: What are the policy objectives of our labor
relations law?
A: The state aims to promote:
1. Free collective bargaining (CB) and
negotiations,
including
voluntary
arbitration, mediation and conciliation as
modes of settling labor or industrial
disputes;
2. Free trade unionism;
3. Free and voluntary organization of a
strong and united labor movement;
4. Enlightenment of workers concerning
their rights and obligations as union
members and as Ees;
5. Adequate administrative machinery for
the expeditious settlement of labor or
industrial disputes;
6. Stable but dynamic and just industrial
peace;
7. Participation of workers in the decision‐
making processes affecting their rights,
duties and welfare;
8. Truly democratic method of regulating
the relations between the Ers and Ees by
means of agreements freely entered into
through CB, no court or administrative
agency or official shall have the power to
set or fix wages, rates of pay, hours of
work or other terms and conditions of
employment, except as otherwise
provided under the LC.
e.Art. 212. Definitions
Q: Who is an employer (Er)?
A: Any person acting in the interest of an Er,
directly or indirectly. The term does not include a
labor organization (LO) or any of its officers and
agents, except when acting as an Er. (Art.212[e])
An Er is defined as any person or entity that
employs the services of others; one for whom work
and who pays their wages of salaries; any person
acting in the interest of an Er; refers to the
enterprise where the LO operates or seeks to
operate. (Sec.1[s], Rule I, Book V, IRR)
Q: When is a labor organization deemed an Er?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
5
UST GOLDEN NOTES 2011
or representation of persons
negotiating, fixing, maintaining
changing terms or conditions
employment.
A: When it is acting as such in relation to persons
rendering services under hire, particularly in
connection with its activities for profit or gain.
Note: The mere fact that respondent is a labor union
does not mean that it cannot be considered an Er for
persons who work for it. Much less should it be
exempted from labor laws. (Bautista v. Inciong, G.R.
No. L‐52824, Mar. 16, 1988)
Q: Who is an employee (Ee)?
Q: What are the kinds of labor disputes?
A:
1.
Labor standard disputes
a. Compensation – E.g. Underpayment
of minimum wage; stringent output
quota; illegal pay deductions
b. Benefits – E.g. Non‐payment of
holiday pay, OT pay or other benefits
c. Working Conditions – E.g. Unrectified
work hazards
2.
Labor relations disputes
A:
1.
2.
3.
Any person in the employ of the Er
Any individual whose work has ceased as
a result of or in connection with any
current labor dispute or because of any
unfair labor practice if he has not
obtained
any
other
substantially
equivalent and regular employment
One who has been dismissed from work
but the legality of dismissal is being
contested in a forum of appropriate
jurisdiction. (D.O. No. 40‐03, Mar. 15,
2003)
a.
Note: The term shall not be limited to the Ees of a
particular Er unless the LC explicitly states.
Any Ee, whether employed for a definite period or not,
shall, beginning on the first day of service, be
considered an Ee for purposes of membership in any
labor union. (Art. 277[c], LC)
b.
Q: What is a labor dispute?
A: Includes any controversy or matter concerning:
1.
2.
3.
Terms and conditions of employment, or
The association or representation of
persons
in
negotiating,
fixing,
maintaining, changing or arranging the
terms and conditions of employment
Regardless of whether the disputants
stand in the proximate relation of Er and
Ee. (Art.212[l])
c.
d.
Q: What are the tests on whether a controversy
falls within the definition of a labor dispute?
A:
6
e.
1.
As to nature – It depends on whether the
dispute arises from Er‐Ee relationship,
although disputants need not be
proximately “Er” or “Ee” of another.
2.
As to subject matter – The test depends
on whether it concerns terms or
conditions of employment or association
in
or
of
Organizational right disputes/ULP –
E.g.
Coercion,
restraint
or
interference in unionization efforts;
reprisal or discrimination due to
union activities; company unionism;
ULP, strike or lockout; union
members’ complaint against union
officers
Representation disputes – E.g.
Uncertainty as to which is the
majority union; determination of
appropriate CB unit; contests for
recognition by different sets of
officers in the same union
Bargaining disputes – E.g. Refusal to
bargain; bargaining in bad faith;
bargaining deadlock; economic strike
or lockout
Contract administration or personnel
policy disputes – E.g. Non‐
compliance with CBA provision (ULP
if gross non compliance with
economic provisions); disregard of
grievance
machinery;
non
observance of unwarranted use of
union security clause; illegal or
unreasonable
personnel
management policies; violation of
no‐strike/no‐lockout agreement
Employment tenure disputes – E.g.
Non‐regularization of Ees; non‐
absorption of labor only contracting
staff; illegal termination; non‐
issuance of employment contract
Q: Who are the parties to a dispute?
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
FUNDAMENTAL PRINCIPLES AND POLICIES
A:
1.
2.
Primary parties are the Er, Ees and the
union.
Secondary parties are the voluntary
arbitrator, agencies of DOLE, NLRC,
Secretary of Labor and the Office of the
President.
Q: What is an inter‐union dispute?
A: Any conflict between and among legitimate labor
unions involving representation questions for the
purposes of CB or to any other conflict or dispute
between legitimate labor unions.
Q: What is an intra‐union dispute?
A: Any conflict between and among union
members, grievances arising from any violation of
the rights and conditions of membership, violation
of or disagreement over any provision of the
union’s constitution and by‐laws, or disputes from
chartering or affiliation of union.
Q: What are rights disputes?
A: They are claims for violations of a specific right
arising from a contract, i.e. CBA or company
policies.
Q: What are interest disputes?
A: They involve questions on “what should be
included in the CBA”. Strictly speaking, the parties
may choose a voluntary arbitrator to decide on the
terms and conditions of employment, but this is
impracticable because it will be a value judgment of
the arbitrators and not of the parties.
Q: What are contract–negotiation disputes?
A: These are disputes as to the terms of the CBA.
Q: What are contract–interpretation disputes?
A: These are disputes arising under an existing CBA,
involving such matters as the interpretation and
application of the contract, or alleged violation of
its provisions.
f.Art. 255. Exclusive Bargaining Representation
(EBR) and Worker’s Participation in Policy and
Decision Making
Q: Who shall be the bargaining representative of
the Employees for purposes of collective
bargaining?
A: The Labor Organization designated or selected
by the majority of the employees in an appropriate
collective bargaining unit shall be the exclusive
representative of the employees in such unit for the
purpose of collective bargaining. However, an
individual employee or group of employees shall
have the right at any time to present grievances to
their employer. (As amended by Sec. 22, R.A. No.
6715, Mar. 15, 1989)
Q: What is the extent of the worker’s right to
participate in policy and decision‐making
processes in a company?
A: Such right refers not only to formulation of
corporate programs and policies but also to
participation in grievance procedures and voluntary
modes of settling disputes.
Q: Explain the extent of the workers’ right to
participate in policy and decision‐making process
as provided under Art. XIII, Sec. 13 of the 1987
Constitution. Does it include membership in the
Board of Directors of a corporation?
A: No. In Manila Electric Company v. Quisumbing,
G.R. No. 127598, January 27, 1999, the SC
recognized the right of the union to participate in
policy formulation and decision making process on
matters affecting the Union members’ rights, duties
and welfare. However, the SC held that such
participation of the union in committees of Er
Meralco is not in the nature of a co‐management
control of the business of Meralco. Impliedly,
therefore, workers’ participatory right in policy and
decision‐making processes does not include the
right to put a union member in the Corporation’s
Board of Directors. (2008 Bar Question)
Q: May an Er solicit questions, suggestions and
complaints from Ees even though the Ees are
represented by a union?
A: Yes, provided:
1.
2.
The CB representative executes an
agreement waiving the right to be present
on any occasion when Ee grievances are
being adjusted by the Er; and
Er acts strictly within the terms of his
waiver agreement.
Q: The hotel union filed a Notice of Strike with the
NCMB due to ULP against the Diamond Hotel who
refused to bargain with it. The hotel advised the
union that since it was not certified by the DOLE as
the exclusive bargaining agent, it could not be
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
7
UST GOLDEN NOTES 2011
recognized as such. Whether the Union may
bargain collectively?
A: No. Art. 255 of the LC declares that only the
labor organization designated or selected by the
majority of the Ees in an appropriate collective
bargaining (CB) unit is the exclusive representative
of the employees (Ees) in such unit for the purpose
of CB. The union is admittedly not the exclusive
representative of the majority of the Ees of the
hotel, hence, it could not demand from the hotel
the right to bargain collectively in their behalf.
(Manila Diamond Hotel v. Manila Diamond Hotel
Ees Union, G.R. No. 158075, June 30, 2006)
Q: Are probationary Ees allowed to vote at the
time of the certification elections?
A: Yes. Under Art. 255 of the LC the “labor
organization designated or selected by the majority
of the Ees in an appropriate bargaining unit shall be
the exclusive representative of the Ees in such unit
for purposes of CB.” CB covers all aspects of the
employment relation and the resultant CBA
negotiated by the certified union binds all Ees in the
bargaining unit. Hence, all rank and file Ees,
probationary or permanent, have a substantial
interest in the selection of the bargaining
representative. The LC makes no distinction as to
their employment status as basis for eligibility in
supporting the petition for certification election.
The law refers to "all" the Ees in the bargaining unit.
All they need to be eligible to support the petition is
to belong to the "bargaining unit." The provision in
the CBA disqualifying probationary Ees from voting
cannot override the constitutionally‐protected right
of workers to self‐organization, as well as the
provisions of the LC and its implementing rules on
certification elections and jurisprudence. A law is
read into, and forms part of, a contract. Provisions
in a contract are valid only if they are not contrary
to law, morals, good customs, public order or public
policy. (NUWHRAIN‐MPHC v. SLE, G.R. No. 181531,
July 31, 2009)
8
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
B.
1.
RECRUITMENT AND PLACEMENT
3.
RECRUITMENT OF LOCAL AND MIGRANT
WORKERS
4.
5.
6.
7.
8.
a.Recruitment and Placement
Q: Who is a worker?
9.
A: Any member of the labor force, whether
employed or unemployed. (Art. 13 [a], LC)
Q: What is recruitment and placement?
A:
1.
2.
Any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring
or procuring workers; and
Includes referrals, contact services,
promising or advertising for employment,
locally or abroad, whether for profit or
not. (Art. 13 [b],LC)
Q: What are the essential elements in determining
whether
one
is
engaged
in
recruitment/placement?
A: It must be shown that:
1.
2.
The accused gave the complainant the
distinct impression that she had the
power or ability to send the complainant
for work,
Such that the latter was convinced to part
with his money in order to be so
employed. (People v. Goce, G.R. No.
113161, Aug. 29, 1995)
Q: Who is deemed engaged in recruitment and
placement?
A: Any person or entity which, in any manner,
offers or promises for a fee employment to 2 or
more persons. (Art. 13[b], LC)
Q: What is the rule in recruitment and placement?
A: GR: No person or entity other than the public
employment offices, shall engage in the
recruitment and placement of workers
Members of the diplomatic corps (but
hiring must go through POEA)
Public employment offices
Private recruitment offices
Private employment agencies
POEA
Shipping or manning agents or
representatives
Name hires
Q: Who are name hires?
A: They are individual workers who are able to
secure contracts for overseas employment on their
own efforts and representations without the
assistance or participation of any agency. Their
hiring, nonetheless, shall pass through the POEA for
processing purposes. (Part III, Rule III, POEA Rules
Governing Overseas Employment as amended in
2002)
Q: What if employment is offered to only one
person?
A: Immaterial. The number of persons dealt with is
not an essential ingredient of the act of recruitment
and placement of workers. The proviso merely lays
down a rule of evidence that where a fee is
collected in consideration of a promise or offer of
employment to 2 or more prospective workers, the
individual or entity dealing with them shall be
deemed to be engaged in the act of recruitment
and placement. The words "shall be deemed"
create that presumption. (People v. Panis, G.R. L‐
58674‐77, July 11, 1986)
Q: What is a private employment agency?
A: Any person or entity engaged in the recruitment
and placement of workers for a fee which is
charged, directly or indirectly, from the workers or
employers or both.
Q: What is a private recruitment agency?
A: It is any person or association engaged in the
recruitment and placement of workers without
charging any fee, directly or indirectly, from the
workers or employers.
Q: Who is a seaman?
XPN:
1. Construction contractors if authorized by
the DOLE and Construction Industry
Authority
2. Other persons or entities as may be
authorized by the SLE
A: Any person employed in a vessel engaged in
maritime navigation.
Q: What is overseas employment?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
9
UST GOLDEN NOTES 2011
A: It is employment of a worker outside the
Philippines.
2.
3.
Q: Who is an overseas Filipino worker (OFW)?
A: A person who is to be engaged, is engaged or has
been engaged in a remunerated activity in a State
of which he or she is not a citizen or on board a
vessel navigating the foreign seas other than a
government ship used for military or non‐
commercial purposes or on an installation located
offshore or on the high seas; to be used
interchangeably with migrant worker. (Sec.2, R.A.
10022 amending R.A. 8042)
4.
and executory orders within the period of
validity of its license
Violations of the conditions of license
Engaging in acts of misrepresentation for
the purpose of securing a license or
renewal
Engaging in the recruitment or placement
of workers to jobs harmful to the public
health or morality or to the dignity of the
country. (Sec. 3, Rule I, Book VI, Rules and
Regulations
Governing
Overseas
Employment)
Q: What are the grounds for suspension or
cancellation of license?
Q: Who is an emigrant?
A:
A: Any person, worker or otherwise, who emigrates
to a foreign country by virtue of an immigrant visa
or resident permit or its equivalent in the country
of destination.
1.
2.
3.
b.Illegal Recruitment, Art. 38 (Local), Sec. 6, Migrant
Workers Act, RA 8042
4.
(a)License v. Authority
5.
Q: What is a license?
A: It is issued by DOLE authorizing a person or
entity to operate a private employment agency.
Prohibited acts under Art. 34
Publishing job announcements w/o
POEA’s approval
Charging a fee which may be in excess of
the authorized amount before a worker is
employed
Deploying workers w/o processing
through POEA
Recruitment in places outside its
authorized area. (Sec. 4, Rule II, Book IV,
POEA Rules)
Q: Is the license or authority transferable?
A: No, they are non‐transferable. (Art. 29)
Q: What is an Authority?
A: It is a document issued by the DOLE authorizing
a person or association to engage in recruitment
and placement activities as a private recruitment
entity.
Q: Who is a non‐licensee / non‐holder of
authority?
A: Any person, corporation or entity:
1.
2.
Which has not been issued a valid license
or authority to engage in recruitment and
placement by the Secretary of Labor and
Employment (SLE) or
Whose license or authority has been
suspended, revoked or cancelled by the
POEA or the SLE
Q: What are the grounds for revocation of license?
A:
1.
10
Incurring an accumulated 3 counts of
suspension by an agency based on final
Q: A Recruitment and Placement Agency declared
voluntary bankruptcy. Among its assets is its
license to engage in business. Is the license of the
bankrupt agency an asset which can be sold in
public auction by the liquidator?
A: No, because of the non‐transferability of the
license to engage in recruitment and placement.
The LC (Art. 29) provides that no license to engage
in recruitment and placement shall be used directly
or indirectly by any person other than the one in
whose favor it was issued nor may such license be
transferred, conveyed or assigned to any other
person or entity. It may be noted that the grant of
a license is a governmental act by the DOLE based
on personal qualifications, and citizenship and
capitalization requirements. (Arts.27‐28, LC). (1998
Bar Question)
Note: Change of ownership or relationship of a single
proprietorship licensed to engage in overseas
employment shall cause the automatic revocation of
the license.
Q: Concerned Filipino contract workers in the
Middle East reported to the DFA that XYZ, a
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
private recruitment and placement agency, is
covertly transporting extremists to terrorist
training camps abroad. Intelligence agencies of the
gov’t allegedly confirmed the report. Upon being
alerted by the DFA, the DOLE issued orders
cancelling the licenses of XYZ, and imposing an
immediate travel ban on its recruits for the Middle
East. XYZ appealed to the Office of the President
to reverse and set aside the DOLE orders, citing
damages from loss of employment of its recruits,
and violations of due process including lack of
notice and hearing by DOLE. The DOLE in its
answer claimed the existence of an emergency in
the Middle East which required prompt measures
to protect the life and limb of OFWs from a clear
and present danger posed by the ongoing war
against terrorism. Should the DOLE orders be
upheld or set aside?
(b)Illegal Recruitment
Q: What are the elements of Illegal Recruitment?
A:
1.
2.
Offender is a non‐licensee or non‐holder
of authority to lawfully engage in the
recruitment/placement of workers
Offender undertakes:
a. Any act of canvassing, enlisting,
contracting, transporting, utilizing,
hiring or procuring workers, and
includes referrals, contact services,
promising
or
advertising
for
employment, locally or abroad,
whether for profit or not (Art. 13[b]);
or
b. Any of prohibited practices under
Art. 34
A:
1.
2.
The DOLE order cancelling the licenses of
XYZ is void because a report that an
agency is covertly transporting extremists
is not a valid ground for cancellation of a
Certificate of Registration (Art. 239, LC
and there is failure of due process as no
hearing was conducted prior to the
cancellation (Art. 238, LC).
The DOLE order imposing the travel ban is
valid because it is a valid exercise of
police power to protect the national
interest (Sec. 3, Art. XIII, Constitution on
full protection to labor safety of workers)
and on the rule making authority of the
SLE. (Art. 5, LC; Phil. Ass’n. of Service
Exporters v. Drilon, G.R. No. 81958, June
30, 1988). (2004 Bar Question)
Q: Who are the persons prohibited from engaging
the business of recruiting migrant workers?
A:
1.
2.
Unlawful for any official or Ee of the:
a. DOLE
b. POEA
c. Overseas
Workers
Welfare
Administration (OWWA)
d. DFA
e. Other gov’t agencies involved in the
implementation of this Act
th
Their relatives within the 4 civil degree
of consanguinity or affinity, to engage,
directly or indirectly in the business of
recruiting migrant workers. (Sec. 8, R.A.
8042)
Q: When is there Simple Illegal Recruitment?
A: It is considered simple illegal recruitment when
it involves less than three (3) victims or recruiters.
Q: Larry Domingo was accused of the crime of
illegal recruitment. He argued that he issued no
receipt or document in which he acknowledged as
having received any money for the promised jobs.
Hence, he should be free him from liability. Was
Larry engaged in recruitment activities?
A: Yes. Even if at the time Larry was promising
employment no cash was given to him, he is still
considered as having been engaged in recruitment
activities, since Art.13(b) of the LC states that the
act of recruitment may be for profit or not. It
suffices that Larry promised or offered employment
for a fee to the complaining witnesses to warrant
his conviction for illegal recruitment. (People v.
Domingo, G.R. No. 181475, April 7, 2009, J. Carpio‐
Morales)
Q: What is the difference between the LC and R.A.
8042 or the Overseas Filipinos and Overseas
Migrant Workers Act?
A:
LC (Art. 38)
R.A. 8042, as amended by RA
10022
Local recruitment
Applies to recruitment for
overseas employment
Illegal recruitment
under Art. 38 means
any
recruitment
activity
including
prohibited
acts
under
Art.
34
committed by non‐
Illegal recruitment under Sec. 6
means any recruitment activity
committed by non‐licensees/
non‐holders of authority or
prohibited acts (same as Art.
34, LC)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
11
UST GOLDEN NOTES 2011
licensees or non‐
holders of authority.
Added to the following in the
list of prohibited acts:
1. Failure to actually deploy
without valid reason;
2. Failure to reimburse
expenses incurred by the
worker in connection with
his/her
documentation
and
processing
for
purposes of deployment;
3. To allow a non‐Filipino
citizen to head or
manage
a
licensed
recruitment/
manning
agency.
Q: How does one prove illegal recruitment?
A: It must be shown that the accused gave the
distinct impression that he had the power or ability
to send complainants abroad for work such that the
latter were convinced to part with their money in
order to be deployed.
Q: May a licensee or holder of authority be held
liable for illegal recruitment?
A: Yes, any person (whether non‐licensee, non‐
holder of authority, licensee or holder of authority)
who commits any of the prohibited acts, shall be
liable for Illegal recruitment. (R.A. 8042)
Q: When is illegal recruitment considered as
economic sabotage?
A: When it is committed:
1.
2.
By a syndicate – carried out by 3 or more
persons conspiring/confederating with
one another or
In large scale – committed against 3 or
more persons individually or as a group.
(Sec. 6, 10022)
Q: While her application for renewal of her license
to recruit workers for overseas employment was
still pending Maryrose Ganda recruited Alma and
her 3 sisters, Ana, Joan, and Mavic, for
employment as housemates in Saudi Arabia.
Maryrose represented to the sisters that she had a
license to recruit workers for overseas
employment
and demanded and received
P30,000.00 from each of them for her services.
However, her application for the renewal of her
license was denied, and consequently failed to
employ the 4 sisters in Saudi Arabia. The sisters
charged Maryrose with large scale illegal
recruitment. Testifying in her defense, she
declared that she acted in good faith because she
12
believed that her application for the renewal of
her license would be approved. She adduced in
evidence the Affidavits of Desistance which the
four private complainants had executed after the
prosecution rested its case. In the said affidavits,
they acknowledge receipt of the refund by
Maryrose of the total amount of P120,000.00 and
indicated that they were no longer interested to
pursue the case against her. Resolve the case with
reasons.
A: Illegal recruitment is defined by law as any
recruitment activities undertaken by non‐licenses
or non‐holders of authority. (People v. Senoron,
G.R. No. 119160, Jan. 30,1997) And it is large scale
illegal recruitment when the offense is committed
against 3 or more persons, individually or as a
group. (Art. 38[b], LC) In view of the above,
Maryrose is guilty of large scale illegal recruitment.
Her defense of GF and the Affidavit of Desistance as
well as the refund given will not save her because
R.A. No. 8042 is a special law, and illegal
recruitment is malum prohibitum. (People v. Saulo,
G.R. No. 125903, Nov. 15, 2000). (2005 Bar
Question)
Q: Sometime in the month of March 1997, in the
City of Las Piñas, Bugo by means of false pretenses
and fraudulent representation convinced Dado to
give the amount of P 120,000.00 for processing of
his papers so that he can be deployed to Japan.
Dado later on found out that Bugo had
misappropriated, misapplied and converted the
money to her own personal use and benefit. Can
Dado file the cases of illegal recruitment and
estafa simultaneously?
A: Yes, illegal recruitment and estafa cases may be
filed simultaneously or separately. The filing of
charges for illegal recruitment does not bar the
filing of estafa, and vice versa. Bugo’s acquittal in
the illegal recruitment case does not prove that she
is not guilty of estafa. Illegal recruitment and estafa
are entirely different offenses and neither one
necessarily includes or is necessarily included in the
other. A person who is convicted of illegal
recruitment may, in addition, be convicted of estafa
under Article 315, par. 2(a) of the RPC. In the same
manner, a person acquitted of illegal recruitment
may be held liable for estafa. Double jeopardy will
not set in because illegal recruitment is malum
prohibitum, in which there is no necessity to prove
criminal intent, whereas estafa is malum in se, in
the prosecution of which, proof of criminal intent is
necessary. (Sy v. People, G.R. No. 183879, April 14,
2010)
Q: Distinguish Illegal Recruitment from Estafa
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
A:
ILLEGAL RECRUITMENT
Malum prohibitum, thus:
1. Criminal intent is NOT
necessary
2. it is a crime which involves
moral turpitude
It is not required that it be
shown that the recruiter
wrongfully
represented
himself as a licensed
recruiter
NOTE: It is enough that the
victims were deceived as they
relied
on
the
misrepresentation and scheme
that caused them to entrust
their money in exchange of
what they later discovered was
a vain hope of obtaining
employment abroad
ESTAFA
Malum in se,
thus:
1. criminal intent is
necessary
2. crime
which
involves
moral
turpitude
Accused
defrauded
another by abuse of
confidence, or by
means of deceit
NOTE: It is essential
that
the
false
statement
or
fraudulent
representation
constitutes the very
cause or the only
motive which induces
the complainant to part
with the thing of value
Illegal recruitment and estafa cases may be filed
simultaneously or separately. The filing of charges for
illegal recruitment does not bar the filing of estafa, and
vice versa.
Double jeopardy will not set
(c) Liabilities
Q: What is the liability of the private employment
agency and the principal or foreign‐based
employer?
A: They are jointly and severally liable for any
violation of the recruitment agreement and the
contracts of employment.
agent at the time of the transaction or acquired by
him before its completion, is deemed to be the
knowledge of the principal, at least so far as the
transaction is concerned, even though in fact the
knowledge is not communicated to the principal at
all. (Leonor v. Filipinas Compania, 48 OG 243)
Q: Sunace International Management Services
(Sunace), deployed to Taiwan Montehermozo as a
domestic helper under a 12‐month contract
effective Feb. 1, 1997. The deployment was with
the assistance of a Taiwanese broker, Edmund
Wang, President of Jet Crown International Co.,
Ltd. After her 12‐month contract expired on Feb.
1, 1998, Montehermozo continued working for her
Taiwanese employer for two more years, after
which she returned to the Philippines on Feb. 4,
2000. Shortly after her return she file before the
NLRC against Sunace, one Perez, the Taiwanese
broker, and the employer‐foreign principal alleging
that she was jailed for three months and that she
was underpaid. Should Sunace be held liable for
the underpayment for the additional two years
that she worked for her Taiwanese employer
under the theory of imputed knowledge?
A: No, the theory of imputed knowledge ascribes
the knowledge of the agent, Sunace, to the
principal Taiwanese employer, not the other way
around. The knowledge of the principal‐foreign
employer cannot, therefore, be imputed to its
agent Sunace.
There being no substantial proof that Sunace knew
of and consented to be bound under the 2‐year
employment contract extension, it cannot be said
to be privy thereto. As such, it and its owner
cannot be held solidarily liable for and of
Montehermozo’s claims arising from the 2‐year
employment extension. (Sunace v. NLRC, G.R. No.
161757, Jan. 25, 2006)
(d)Pretemination of contract of migrant worker
Note: This joint and solidary liability imposed by law
against recruitment agencies and foreign Ers is meant
to assure the aggrieved worker of immediate and
sufficient payment of what is due him. If the
recruitment/placement agency is a juridical being, the
corporate officers and directors and partners as the
case may be, shall themselves be jointly and solidarily
liable with the corporation or partnership for the
claims and damages. (Becmen Service Exporter and
Promotion v. Cuaresma, G.R. Nos. 182978‐79, April 7,
2009)
Q: What is the theory of imputed knowledge?
A: A rule in insurance law that any information
material to the transaction, either possessed by the
Q: Serrano, a seafarer, was hired by Gallant
Maritime and Marlow Navigation Co. for 12
months as Chief Officer. On the date of his
departure, he was constrained to accept a
downgraded employment contract for the position
of Second Officer, upon the assurance that he
would be made Chief Officer after a month. It was
not done; hence, he refused to stay on as Second
Officer and was repatriated to the Phils. He had
served only 2 months & 7 days of his contract,
leaving an unexpired portion of 9 months & 23
days.
Serrano filed with the LA a Complaint against
Gallant Maritime and Marlow for constructive
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
13
UST GOLDEN NOTES 2011
dismissal and for payment of his money claims.
The LA rendered a favorable decision to Serrano
awarding him $8,770.00, representing his salary
for 3 months of the unexpired portion of his
contract of employment applying R.A. 8042, Sec
10, par 5:
Money Claims. ‐ In case of termination of overseas
employment without just, valid or authorized
cause as defined by law or contract, the workers
shall be entitled to the full reimbursement of his
placement fee with interest of 12% per annum,
plus his salaries for the unexpired portion of his
employment contract or for 3 months for every
year of the unexpired term, whichever is less.
the POEA or entities authorized by the Secretary of
Labor.
Q: What is the ban on direct‐hiring?
A: GR: An Er may only hire Filipino worker for
overseas employment through POEA or
entities authorized by DOLE.
XPN:
Direct hiring by
1. International organizations
2. Name hires
3. Members of the diplomatic organizations
4. Other Ers as may be allowed by DOLE
Is the subject clause constitutional?
Q: Why is direct‐hiring prohibited?
A: No. The subject clause contains a suspect
classification in that, in the computation of the
monetary benefits of fixed‐term employees who
are illegally discharged, it imposes a 3‐month cap
on the claim of OFWs with an unexpired portion of
one year or more in their contracts, but none on
the claims of other OFWs or local workers with
fixed‐term employment. The subject clause singles
out one classification of OFWs and burdens it with a
peculiar disadvantage.
A:
1.
2.
3.
To ensure the best possible terms and
conditions of employment for the worker.
To assure the foreign Er that he hires only
qualified Filipino workers.
To ensure full regulation of employment
in order to avoid exploitation.
2. REGULATION AND ENFORCEMENT
a. Remittance of foreign exchange earnings
The clause is a violation of the right of Serrano and
other OFWs to equal protection and right to
substantive due process, for it deprives him of
property, consisting of monetary benefits, without
any existing valid governmental purpose.
Furthermore, prior to R.A. 8042, all OFWs,
regardless of contract periods or the unexpired
portions thereof, were treated alike in terms of the
computation of their monetary benefits in case of
illegal dismissal. Their claims were subjected to a
uniform rule of computation: their basic salaries
multiplied by the entire unexpired portion of their
employment contracts. The same applies local
workers with fixed‐term employment.
Q: What is the rule on remittance of foreign
exchange earnings?
A: GR: It shall be mandatory for all OFWs to remit a
portion of their foreign exchange earnings
to their families, dependents, and/or
beneficiaries ranging from 50% ‐ 80%
depending on the worker’s kind of job.
(Rule VIII, Book III, POEA Rules)
XPN:
1. The worker’s immediate family members,
beneficiaries and dependents are residing
with him abroad
2. Immigrants and Filipino professionals and
employees working with the UN agencies
or specialized bodies
3. Filipino servicemen working in U.S.
military installations. (Resolution No. 1‐
83,
Inter‐Agency
Committee
for
Implementation of E.O. 857)
Thus, Serrano is entitled to his salaries for the
entire unexpired period of nine months and 23 days
of his employment contract, pursuant to law and
jurisprudence prior to the enactment of RA 8042.
(Serrano v. Gallant Maritime Services & Marlow
Navigation Co., Inc., G.R. No. 167614, Mar.24, 2009)
c.Direct Hiring
Q: What is Direct‐hiring?
Q: What is the effect of failure to remit?
A:
1.
A: It is when an employer hires a Filipino worker
for overseas employment without going through
14
Workers – Shall be suspended or removed
from the list of eligible workers for
overseas employment.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
2.
Employers – Will be excluded from the
overseas employment program. Private
employment
agencies
shall
face
cancellation or revocation of their
licenses or authority to recruit. (Sec. 9,
E.O. 857)
processing
of
pending
workers'
applications; and
15. For a recruitment/manning agency or a
foreign principal/ Er to pass on the OFW
or deduct from his or her salary the
payment of the cost of insurance fees,
premium or other insurance related
charges, as provided under the
compulsory worker's insurance coverage
16. Imposing a compulsory and exclusive
arrangement whereby an OFW is required
to:
a. Avail a loan only from specifically
designated institutions, entities or
persons
b. To undergo health examinations only
from specifically designated medical,
entities or persons, except seafarers
whose medical examination cost is
shouldered by the shipowner
c. To undergo training of any kind only
from designated institutions, entities
or
persons,
except
for
recommendatory
trainings
mandated by principals/shipowners.
(Sec. 6, R.A. 10022)
b. Prohibited Activities
Q:
What
are
prohibited
practices
recruitment/placement (Art. 34.)?
in
A:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Furnishing or publishing any false
notice/information/document related to
recruitment/employment
Failure to file reports required by SLE
Inducing or attempting to induce a worker
already employed to quit his employment
in order to offer him another unless the
transfer is designed to liberate a worker
from oppressive terms and conditions
Recruitment/placement of workers in
jobs harmful to public health or morality
or to the dignity of the country
Engaging directly or indirectly in the
management of a travel agency
Substituting or altering employment
contracts without approval of DOLE
Charging or accepting any amount greater
than that specified by DOLE or make a
worker pay any amount greater than
actually received by him
Committing any act of misrepresentation
to secure a license or authority
Influencing or attempting to influence any
person/entity not to employ any worker
who has not applied of employment
through his agency
Obstructing or attempting to obstruct
inspection
by
SLE
or
by
his
representatives
Withholding or denying travel documents
from applicant workers before departure
for monetary considerations other than
authorized by law
Granting a loan to an OFW which will be
used for payment of legal and allowable
placement fees
Refusing to condone or renegotiate a loan
incurred by an OFW after his employment
contract
has
been
prematurely
terminated through no fault of his or her
own
For a suspended recruitment/manning
agency to engage in any kind of
recruitment activity including the
c. Regulatory and Visitorial Powers of the Labor
Secretary
Q: What are the regulatory powers of the
Secretary of Labor and Employment (SLE)?
A:
1.
2.
Restrict and regulate the recruitment and
placement activities of all agencies
Issue orders and promulgate rules and
regulations
Q: What constitute visitorial power?
A:
1.
2.
3.
Access to employer’s records and
premises at any time of the day or night,
whenever work is being undertaken
To copy from said records
Question any employee and investigate
any fact, condition or matter which may
be necessary to determine violations or
which may aid in the enforcement of the
Labor Code and of any labor law, wage
order, or rules and regulation issued
pursuant thereto.
Q: Give 4 instances where the visitorial power of
the SLE may be exercised under the Labor Code.
A: Power to:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
15
UST GOLDEN NOTES 2011
provisions
1.
2.
3.
4.
Inspect books of accounts and records of
any person or entity engaged in
recruitment and placement, require it to
submit reports regularly on prescribed
forms and act in violations of any
provisions of the LC on recruitment and
placement. (Art. 37)
Have access to employer’s records and
premises to determine violations of any
provisions of the LC on recruitment and
placement. (Art. 128)
Conduct industrial safety inspections of
establishments. (Art. 165)
Inquire into the financial activities of
legitimate labor organizations (LLO) and
examine their books of accounts upon the
filing of the complaint under oath and
duly supported by the written consent of
at least 20% of the total membership of
the LO concerned.
Q: Can SLE issue search warrants or warrants of
arrest?
or both
Non‐licensee/non‐
holder of authority
violates provisions
Corporation,
partnership,
association, or entity
Alien
In every case
4‐8 yrs imprisonment; or
Fine: P20K ‐ P100K
or both
Penalty imposed upon
officer/s responsible for
violation
Penalties prescribed under RA
10022,
+
Deportation without further
proceedings
Automatic revocation of
license or authority and all
permits and privileges of the
recruitment or manning
agency, lending institutions,
training school or medical
clinic
Q: What are the remedies under the Migrant
Workers Act and how may they be enforced?
A:
CRIMINAL ACTIONS
A: No. Only a judge may issue search and arrest
warrants. Art 38 (c) of the Labor Code is
unconstitutional inasmuch as it gives the SLE the
power to issue search or arrest warrants. The labor
authorities must go through the judicial process.
d. Penalties for Illegal Recruitment
Q: What is the consequence of conviction of illegal
recruitment (IR)?
A:
PENALTIES (under R.A. 10022)
Offender / Offense
IR as economic
sabotage
Provided:
1. If person illegally
recruited is below
18 years of age or
2. Illegal
recruitment is
committed by a
non‐licensee/non‐
holder
Any person found
guilty of illegal
recruitment
Any person found
guilty of the
prohibited acts
Licensee/holder of
authority violates
16
Penalty
Life imprisonment +
fine of P2M‐P5M
Maximum penalty shall
be imposed
RTC
Province or city:
1. Where the offense was committed or
2. Where the offended party actually resides at the
same time of the commission of the offense
MONEY CLAIMS
NLRC
Original and exclusive jurisdiction to hear and decide
claims arising out of an Er‐Ee relationship or by virtue
of any law or contract involving Filipino workers for
overseas deployment including claims for actual,
moral, exemplary and other forms of damages.
• The liability of the principal/ Er and the recruitment/
placement agency for any and all claims shall be
joint and several.
• The performance bond to de filed by the
recruitment/ placement agency shall be answerable
for all money claims or damages that may be
awarded to the workers.
• If the recruitment/placement agency is a juridical
being, the corporate officers and directors and
partners as the case may be, shall themselves be
jointly and solidarily liable with the corporation or
partnership for the claims and damages.
ADMINISTRATIVE ACTIONS
12 yrs and 1 day ‐ 20 yrs
imprisonment; or
Fine: P1M‐P2M
6 yrs and 1 day ‐ 12 yrs
imprisonment; or
Fine of P500K ‐ P1M
2‐5 yrs imprisonment; or
Fine: P10K ‐ P50K;
POEA
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
Original and exclusive jurisdiction to hear and decide:
1. All cases which are administrative in character,
involving or arising out of violations of rules and
regulations relating to licensing and registration of
recruitment and employment agencies or entities
and
2. Disciplinary action (DA) cases and other special cases
which are administrative in character, involving Ers,
principals, contracting partners and Filipino migrant
workers.
a. It may be filed with the POEA Adjudication Office
or the DOLE/POEA regional office of the place
where the complaint applied or was recruited at
the option of the complainant. The office with
which the complaint was first filed shall take
cognizance of the case.
b. DA cases and other special cases, as mentioned
in the preceding Section, shall be filed with
POEA Adjudication Office.
PERIODS
Mandatory Period for Resolution of Illegal
Recruitment Cases
The preliminary investigations (PI) of cases under R.A.
10022 shall be terminated within a period of 30
calendar days from the date of their filing.
If the PI is conducted by a If the PI is conducted by
prosecution officer and a
a judge and a prima
prima facie case is
facie case is found to
established
exist
Prosecution officer
Information shall be filed
within 48 hours from the
in court within 24 hours
date of receipt of the
from the termination of
records of the case. (Sec.
the investigation
11)
Prescriptive Period for Illegal Recruitment Cases
Simple Illegal Recruitment
Economic Sabotage
Within 5 yrs from the time
illegal recruitment has
happened
Within 20 yrs from the
time illegal recruitment
has happened. (Sec.
12,R.A. 8042)
Do OT and leave pay form part of the salary basis
in the computation of the monetary award?
A: No. The word “salaries” in Sec. 10(5) does not
include overtime and leave pay. For seafarers,
DOLE Department Order No. 33, series 1996,
provides a Standard Employment Contract of
Seafarers, in which salary is understood as the basic
wage, exclusive of OT, leave pay and other bonuses;
whereas OT pay is compensation for all work
“performed” in excess of the regular 8 hours, and
holiday pay is compensation for any work
“performed” on designated rest days and holidays.
(Serrano v. Gallant Maritime Services & Marlow
Navigation Co., Inc., G.R. No. 167614, Mar. 24,
2009)
3.OTHER RELATED TOPICS
Philippine Overseas Employment Administration
Q: What are the principal functions of the POEA?
A:
1.
2.
3.
4.
5.
Q: Is compromise agreement on money claims
allowed?
A: Yes. Consistent with the policy encouraging
amicable settlement of labor disputes, Sec. 10 of
R.A. 8042 allows resolution by compromise of cases
filed with the NLRC.
6.
Q: When shall compromise agreements on money
claims be paid?
A: Any compromise/amicable settlement or
voluntary agreement on money claims inclusive of
damages shall be paid within 4 months from the
approval of the settlement by the appropriate
authority.
Protection of the right of Filipino workers
to fair and equitable employment
practices
Regulation of private sector participation
in the recruitment and overseas
placement of workers by setting up a
licensing and registration system
Deployment of Filipino workers through
gov’t to gov’t hiring
Formulation,
implementation,
and
monitoring of overseas employment of
Filipino workers taking into consideration
their welfare and domestic manpower
requirements
Shall inform migrant workers not only of
their rights as workers but also of their
rights as human beings, instruct and guide
the workers how to assert their rights and
provide the available mechanism to
redress violation of their rights. (Sec. 14,
R.A. 10022)
Implementation, in partnership with
other law‐enforcement agencies, of an
intensified program against illegal
recruitment activities. (Sec. 14, R.A.
10022)
Q: May the POEA, at any time terminate or impose
a ban on employment of migrant workers?
A: Yes, in consultation with the DFA based on the
ff. grounds:
2.
In pursuit of the National Interest or
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
17
UST GOLDEN NOTES 2011
3.
When public welfare so requires. (Sec. 4
R.A. 10022)
Q: What are the minimum conditions/ provisions
of overseas employment contracts?
A:
1.
2.
3.
4.
Guaranteed wages for regular hours and
overtime, not lower than the minimum
wage prescribed in all of the ff:
a. The host country
b. Bilateral agreements or international
conventions ratified by the host
country and the Philippines
c. The Philippines
Free transportation to and from the
worksite or offsetting benefit
Free food and accommodation or
offsetting benefit
Just/authorized causes of termination of
the contract or services of the worker
Note: An agreement that diminishes the Ees pay and
benefits as contained in a POEA‐approved contract is
void, unless such subsequent agreement is approved
by the POEA.
3.
It has concluded a bilateral agreement or
arrangement with the government on the
protection of the rights of OFWs. . (Sec. 3,
R.A. 10022 amending R.A. 8042)
Provided, that the receiving country is taking
positive, concrete measures to protect the rights of
migrant workers in furtherance of any of the
guarantees.
Note: In the absence of a clear showing that any of the
guarantees exists in the country of destination of the
migrant workers, no permit for deployment shall be
issued by the POEA.
Q: What is the rule on repatriation?
A: GR: The repatriation of the:
1. Worker and the transport of his personal
belongings ‐ shall be the primary
responsibility of the agency which
recruited or deployed the worker
overseas.
2. Remains and transport of the personal
belongings of a deceased worker and all
costs attendant thereto ‐ shall be borne
by the principal and/or the local agency.
Q: What is the rule on deployment of OFWs?
A: The State shall allow the deployment of OFWs:
1.
2.
3.
Only in countries where the rights of
Filipino migrant workers are protected.
To vessels navigating the foreign seas or
to installations located offshore or on
high seas whose owners/Ers are
compliant with international laws and
standards that protect the rights of
migrant workers.
To companies and contractors with
international operations: Provided, That
they are compliant with standards,
conditions
and
requirements,
as
embodied in the employment contracts
prescribed by the POEA and in accordance
with internationally‐accepted standards.
(Sec. 3, R.A. 10022 amending R.A. 8042)
Q: What are the guarantees of the receiving
country for the protection of the rights of OFWs?
A:
1.
2.
18
It has existing labor and social laws
protecting the rights of workers, including
migrant workers;
It is a signatory to and/or a ratifier of
multilateral conventions, declarations or
resolutions relating to the protection of
workers, including migrant workers; and
XPNs:
1. If the termination of employment is due
solely to the fault of the worker, the
principal/ Er or agency shall not be
responsible for the repatriation of the
former and/or his belongings
2. In cases of war, epidemic, disaster or
calamities, natural or man‐made, and
other similar event, and where the
principal or recruitment agency cannot be
identified, the Overseas Workers Welfare
Administration, in coordination with
appropriate international agencies, shall
take charge of the repatriation. (Sec.15,
R.A. 8042)
Q: What is the rule on mandatory repatriation of
underage migrant workers?
A: Upon discovery or being informed of the
presence of migrant workers whose ages fall below
the minimum age requirement for overseas
deployment, the responsible officers in the foreign
service shall without delay repatriate said workers
and advise the DFA through the fastest means of
communication available of such discovery and
other relevant information. The license of a
recruitment/manning agency which recruited or
deployed an underage migrant worker shall be
automatically revoked and shall be imposed a fine
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
of not less than P500,000 but not more than
P1,000,000. (Sec. 9, R.A. 10022)
Q: What are the regulatory and adjudicatory
functions of the POEA?
A:
1.
2.
Regulatory – It regulates the private
sector participation in the recruitment
and overseas placement of workers
through its licensing and registration
system.
Adjudicatory
a. Administrative
cases
involving
violations of licensing rules and
regulations and registration of
recruitment
and
employment
agencies or entities
b. Disciplinary action cases and other
special
cases
which
are
administrative in character involving
employers, principals, contracting
partners and Filipino migrants.
Q: What are the grounds for disciplinary action of
OFW’s?
A: Under R.A. 8042, these are:
1. Prostitution
2. Unjust refusal to depart for the worksite
3. Gunrunning or possession of deadly
weapons
4. Vandalism or destroying company
property
5. Violation of the laws and sacred practices
of the host country and unjustified breach
of employment contract
6. Embezzlement of funds of the company
or fellow worker entrusted for delivery to
relatives in the Phils.
7. Creating trouble at the worksite or in the
vessel
8. Gambling
9. Initiating or joining a strike or work
stoppage where the laws of the host
country prohibits strikes or similar actions
10. Commission of felony punishable by
Philippine laws or by the host country
11. Theft or robbery
12. Drunkenness
13. Drug addiction or possession or trafficking
of prohibited drugs
14. Desertion or abandonment
Q: What is the distinction between the jurisdiction
of the LA and POEA?
JURISDICTION
Labor Arbiter
Original and exclusive
jurisdiction over all
claims arising out of
Er‐Ee relationship or
by virtue of any law or
contract
involving
OFWs including claims
for:
1. Actual
2. Moral
3. Exemplary
4.Other forms of
damages. (Sec. 10,
R.A. 8042)
POEA
Original
and
exclusive
jurisdiction over:
1. All cases which are
administrative in character
relating to licensing and
registration of recruitment
and employment agencies
2. Disciplinary Action cases
and other special cases,
which are administrative in
character, involving Ees,
principals,
contracting
partners and Filipino migrant
workers. (Rule VII, Book VII,
POEA Rules)
Q: A seafarer was prevented from leaving the
port of Manila and refused deployment without
valid reason. His POEA‐approved employment
contract provides that the employer‐employee
relationship shall commence only upon the
seafarer’s actual departure from the port in the
point of hire. Is the seafarer entitled to relief
under the Migrant Workers’ Act, in the absence of
an employer‐employee relationship?
A:
Yes. Despite the absence of an employer‐
employee relationship, the NLRC has jurisdiction
over the seafarer’s complaint. The jurisdiction of
labor arbiters is not limited to claims arising from
Er‐Ee relationships. Sec. 10 of the Migrant Workers
Act provides that the labor arbiters shall have
jurisdiction over claims arising out of an Er‐Ee
relationship or by virtue of any law or contract
involving Filipino workers for overseas deployment
including claims for actual, moral, exemplary and
other forms of damages. Since the present case
involves the employment contract entered into by
petitioner for overseas employment, his claims are
cognizable by the labor arbiters of the NLRC.
(Santiago v. CF Sharp Crew Management,G.R. No.
162419, July 10, 2007)
Q: What matters fall outside the jurisdiction of the
POEA?
A:
1.
2.
Foreign judgments – such claim must be
brought before regular courts. POEA is
not a court; it is an administrative agency,
exercising adjudicatory or quasi‐judicial
functions.
Torts – falls under the provisions of the
Civil Code.
A:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
19
UST GOLDEN NOTES 2011
Employment of Non‐Resident Aliens
Q: What is required in the employment of non‐
resident aliens?
A: Any alien seeking admission to the Phil. for
employment purposes and any domestic or foreign
employer (Er) who desires to engage an alien for
employment in the Philippines:
1. Shall obtain an employment permit from
the DOLE
2. The permit may be issued to a non‐
resident alien or to the applicant Er after
a determination of the non‐availability of
a person in the Phil. who is competent,
able and willing at the time of application
to perform the services for which the
alien is desired
3. For an enterprise registered in preferred
areas of investments, said permit may be
issued upon recommendation of the gov’t
agency charged with the supervision of
said registered enterprise
Q: The DOLE issued an alien employment permit
for Earl Cone, a U.S. citizen, as sports consultant
and assistant coach for GMC. Later, the Board of
Special Inquiry of the Commission on Immigration
and Deportation approved Cone’s application for a
change of admission status from temporary visitor
to pre‐arranged employee. A month later, GMC
requested that it be allowed to employ Cone as
full‐fledged coach. The Dole Regional Director
granted the request. The Basketball Association of
the Phils. appealed the issuance of said permit to
the SLE who cancelled Cone’s employment permit
because GMC failed to show that there is no
person in the Philippines who is competent and
willing to do the services nor that the hiring of
Cone would redound to the national interest. Is
the act of SLE valid?
A: Yes. GMC’s claim that hiring of a foreign coach is
an Er’s prerogative has no legal basis. Under Art. 40
of the LC, an Er seeking employment of an alien
must first obtain an employment permit from the
DOLE. GMC’s right to choose whom to employ is
limited by the statutory requirement of an
employment permit. (GMC v. Torres, G.R. No. 9366,
April 22, 1991)
Art. 41. Prohibition Against Transfer of Employment
XPNS:
1. Diplomatic services and foreign gov’t
officials
2. Officers and staff of int’l organizations
and their legitimate spouses
3. Members of governing board who has
voting rights only
4. Those exempted by special laws
5. Owners and representatives of foreign
principals
who
interview
Filipino
applicants for employment abroad
6. Aliens whose purpose is to teach, present
and/or conduct research studies
7. Resident aliens. (D.O. 75‐06, May 31,
2006)
Q:
May the non‐resident alien transfer
employment after issuance of the employment
permit?
A: After the issuance of an employment permit, the
alien shall not transfer to another job or change his
employer without prior approval of the Secretary of
Labor.
Q: What is required for immigrants and resident
aliens?
A: An Alien Employment Registration Certificate.
Q: What is the duration of the employment
permit?
A: GR: Minimum of 1 year
XPN: Unless revoked and subject to renewal
Q: May aliens be employed in entities engaged in
nationalized activities?
A: GR: No.
XPNs:
1. Sec. of Justice specifically authorizes the
employment of technical personnel
2. Aliens are elected members of the board
of directors or governing body of
corporations or associations or
3. Enterprises registered under the Omnibus
Investment Code in case of technical,
supervisory or advisory positions, but for
a limited period.
Q: Who are required to obtain an employment
permit?
A: GR: Only non‐resident aliens;
20
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
Art. 25. Private Sector Participation in the
Recruitment and Placement of Workers
Q: What are the entities in the private sectors that
can participate in recruitment and placement of
workers?
Q: Is a corporation, 70% of the authorized and
voting capital of which is owned and controlled by
Filipino citizens, allowed to engage in the
recruitment and placement of workers, locally or
overseas? Explain briefly.
A: No. It is because Art. 27 of the Labor Code
requires at least 75%. (2002 Bar Question)
A:
1.
2.
3.
4.
5.
6.
Shipping or manning agents or
representatives
Private recruitment offices
Public employment offices
Construction contractors if authorized by
the DOLE and Construction Industry
Authority.
Persons that may be authorized by the
SLE
Private employment agencies. (Sec. 1,
Rule VII, Book I, IRR)
Q: Who are disqualified to engage in the business
of recruitment and placement of workers?
A:
1.
2.
3.
Q: What are the qualifications for participation in
recruitment and placement of workers?
A:
1.
2.
3.
4.
5.
Filipino
citizens,
partnerships
or
corporations at least 75% of the
authorized capital stock of which is
owned and controlled by Filipino citizens;
(Art. 27, LC)
Capitalization
a. Single proprietorship or partnership
‐A minimum capitalization of P2
million
b. Corporation
‐A minimum paid‐up capital of P2
million
Provided, that those with existing licenses
shall, within 4 yrs from the effectivity
hereof, increase their capitalization or
paid up capital, as the case may be, to P2
million at the rate of P250,000.00 every
year. (Art. 28, LC)
Not otherwise disqualified by law or other
government regulations to engage in the
recruitment and placement of workers for
overseas employment. (Rule I, Part II,
POEA Rules)
Payment of registration fees
Posting of surety/cash bonds
Q: How will POEA regulate private sector
participation in the recruitment and overseas
placement of workers?
A: By setting up a licensing and registration system.
(Sec. 14, R.A. 10022)
4.
5.
6.
Travel agencies and sales agencies of
airline companies; (Art. 26, LC)
Officers or members of the board of any
corporation or members in a partnership
engaged in the business of a travel
agency;
Corporations and partnerships, when any
of its officers, members of the board or
partners, is also an officer, member of the
board or partner of a corporation or
partnership engaged in the business of a
travel agency;
Persons, partnerships or corporations
which have derogatory records, such as
but not limited to those:
a. Certified to have derogatory record
or information by the NBI or by the
Anti‐Illegal Recruitment Branch of
the POEA;
b. Against whom probable cause or
prima facie finding of guilt for illegal
recruitment or other related cases
exists;
c. Convicted for illegal recruitment or
other related cases and/or crimes
involving moral turpitude; and
d. Agencies whose licenses have been
previously revoked or cancelled by
the POEA for violation of R.A. 8042,
P.D. 442 as amended and their
implementing rules and regulations
as well as these rules and
regulations.
Any official or Ee of the DOLE, POEA,
OWWA, DFA and other government
agencies directly involved in the
implementation of R.A. 8042 and/or any
th
of his/her relatives within the 4 civil
degree of consanguinity or affinity; and
Persons or partners, officers and directors
of corporations whose licenses have been
previously cancelled or revoked for
violation of recruitment laws. (Sec. 2, Rule
I, 2002 Rules and Regulations on the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
21
UST GOLDEN NOTES 2011
Recruitment and Employment of Land‐
Based Workers)
Art. 26. Travel Agencies Prohibited to Recruit
Q: What is the rule on recruitment of travel
agencies and sales agencies of airline companies?
A: They are prohibited from engaging in the
business of recruitment and placement of workers
for overseas employment whether for profit or not.
Q: WTTA is a well‐known travel agency and an
authorized sales agent of the PAL. Since majority
of its passengers are overseas workers, WTTA
applied for a license for recruitment and
placement activities. It stated in its application
that its purpose is not for profit but to help
Filipinos find employment abroad. Should the
application be approved?
A: The application should be disapproved, as it is
prohibited by Art. 26 of the LC, to wit: "Art 26.
Travel agencies and sales agencies of airline
companies are prohibited from engaging in the
business of recruitment and placement of workers
for overseas employment whether for profit or
not." Rule I, Part II POEA Rules and Regulations
Governing the Recruitment and Employment of
Land‐Based Workers (2002) disqualifies any entity
having common director or owner of travel
agencies and sales agencies of airlines, including
any business entity from the recruitment and
placement of Filipino workers overseas, whether
they derive profit or not. (2006 Bar Question)
Art. 32. Fees to be Paid by Workers
Q: When may a worker be charged any fee?
A: Only when:
1.
2.
He has obtained work through recruiter’s
efforts, and
The worker has actually commenced
working
Note: A land based agency may charge and collect
from its hired workers a placement fee in an amount
equivalent to 1 month salary, exclusive of
documentation costs.
Q: What are the only authorized payments that
may be collected from a hired worker?
A:
1.
2.
22
Placement fee in an amount equivalent
to one month’s salary of the worker and
Documentation costs.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
C. LABOR STANDARDS
1. HOURS OF WORK
a. Coverage/ Exclusions
Q: Who determines working conditions?
A: Generally, they are determined by the employer,
as he is usually free to regulate, according to his
discretion, all aspects of employment.
Q: Who are managerial Ees?
A: Those whose primary duty consists of the
management of the establishment in which they
are employed or a department or subdivision
thereof, and other officers or members of the
managerial staff.
They must meet all of the ff. conditions, namely:
1.
Q: What is the limitation on the employer’s power
to regulate working conditions?
2.
A: It must be done in good faith and not for the
purpose of defeating or circumventing the rights of
the employees. Such are not always absolute and
must be exercised with due regard to the rights of
labor.
Note: One’s employment, profession, trade or calling
is a property right and the wrongful interference
therewith is an actionable wrong.
3.
4.
Q: When does the condition on employment under
the Labor Code apply?
5.
A: Only if an Er‐Ee relationship exists.
6.
Q: Who are the employees that are covered by the
conditions of employment?
Primary duty: management of the
establishment in which they are
employed or of a department or sub‐
division thereof;
Customarily or regularly direct the work
of 2 or more Ees
Has the authority to hire or fire other Ees
of lower rank; or their suggestions and
recommendations as to the hiring and
firing and as to the promotion or any
change of status of other Ees are given
particular weight.
Execute under general supervision work
along specialized or technical lines
requiring special training, experience, or
knowledge
Execute under general supervision special
assignment and tasks; and
Do not devote more than 20% of their
hours worked to activities which are not
directly
and
closely
related
to
performance of the work described. (Art.
82[2])
A: GR: It applies to all Ee’s in all establishments.
Q: Why are managerial Ees not covered?
XPN:
1.
2.
3.
4.
5.
6.
Gov’t employees
Managerial employees
Field personnel
The employers family members who
depend on him for support
Domestic helpers and persons in the
personal service of another, and
Workers who are paid by results as
determined under DOLE regulations
Q: Who are government employees (Ees)?
A: They are Ees of the:
1.
2.
3.
National Government
Any of its political subdivisions
Including those employed in GOCCs with
original charters.
A: They are employed by reason of their special
training, expertise or knowledge and for positions
requiring the exercise of discretion and
independent judgment. Value of work cannot be
measured in terms of hours.
Q: Who are field personnel?
A: They are:
1.
2.
3.
4.
non‐agricultural employees
who regularly perform their duties
away from the principal place of business
or branch office of the employer; and
whose actual hours of work in the field
cannot be determined with reasonable
certainty.
Q: Who are workers paid by results?
Q: What law governs government Ees?
A: They are:
A: The Civil Service Law, rules and regulations.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
23
UST GOLDEN NOTES 2011
1.
2.
3.
paid based on the work completed; and
not on the time spent in working
including those who are paid on piece‐
work, “takay”, “pakiaw”, or task basis if
their output rates are in accordance with
the standards prescribed.
A:
Q: Who are domestic helpers and persons in the
personal service of another?
1.
All time during which an Ee is required to
be:
a. On duty, or
b. At the Ers premises, or
c. At a prescribed workplace
2.
All time during which an Ee is suffered or
permitted to work. (Sec. 3, Rule I, Book III,
IRR)
A: Those who:
1.
2.
perform services in the employers (Er)
home which are usually necessary or
desirable for the maintenance or
enjoyment thereof; or
minister to the personal comfort,
convenience or safety of the Er as well as
the members of his Ers household.
Q: What are the principles in determining hours
worked?
A:
1.
2.
Q: A house personnel was hired by a ranking
company official to maintain a staff house
provided for the official. The personnel is being
paid by the company itself. Is the house personnel
a domestic servant of the company official?
A: No, the personnel is not a domestic helper but a
regular employee of the company.
3.
Q: What are the 3 groups of employees (Ees)
under the LC?
A:
1.
2.
3.
Managerial Ee ‐ One who is vested with
the powers or prerogatives to lay down
and execute management policies and/or
to hire, transfer, suspend, lay‐off, recall,
discharge, assign or discipline Ees.
Supervisory Ee ‐ those who in the interest
of the Er, effectively recommend such
managerial actions if the exercise of such
authority is not merely routinary or
clerical in nature but requires the use of
independent judgment.
Rank‐and‐File Ee ‐ all Ees not falling within
any of the above definitions. (Art. 212[m])
b. Normal hours of work
Q: What are the normal hours of work of an Ee?
A: It should not exceed 8 hours in a general working
day.
4.
All hours which the Ee is required to give
to his Er regardless of whether or not
such hours are spent in productive labor
or involve physical or mental exertion.
Rest period is excluded from hours
worked, even if Ee does not leave his
workplace, it being enough that:
a. He stops working
b. May rest completely
c. May leave his workplace, to go
elsewhere, whether within or
outside the premises of the
workplace
All time spent for work is considered
hours worked if:
a. The work performed was
necessary
b. If it benefited the Er
c. Or the Ee could not abandon his
work at the end of his normal
working hours because he had
no replacement
d. Provided, the work was with the
knowledge of his Er or
immediate supervisor
The time during which an Ee is inactive by
reasons of interruptions in his work
beyond his control shall be considered
working time:
a. If the imminence of the
resumption of the work
requires the Ees presence at
the place of work or
b. If the interval is too brief to be
utilized effectively and gainfully
in the Ees own interest. (Sec. 4,
Rule I, Book III, IRR)
Note: Normal hours of work may be shortened or
compressed.
Q: What are considered hours worked?
24
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
(a) Exceptions: Health Personnel & Compressed
Work Week
Health Personnel
Q: What are the hours of work of health
personnel?
A:
GR: 8 hours/5 days (40‐hour work week),
exclusive of time for meals.
XPN: Where the exigencies of the service
require that such personnel work for 6 days or
48 hours, they shall be entitled to an additional
compensation of at least 30% of their regular
wage for work on the 6th day.
Note: 40‐hour work week does not apply if there is a
training agreement between the resident physician
and the hospital and the training program is duly
accredited or approved by appropriate government
agency.
Q: Who are covered by the 40‐hour work week?
consultations with the workers and supervisors, a
consensus is reached on how to deal with
deteriorating economic conditions and it is
sufficiently proven that the company was suffering
from losses. Under the Bureau of Working
Conditions’ bulletin, a reduction of the number of
regular working days is valid where the
arrangement is resorted to by the employer to
prevent serious losses due to causes beyond his
control, such as when there is a substantial slump in
the demand for his goods or services or when there
is lack of raw materials. There is one main
consideration in determining the validity of
reduction of working hours – that the company was
suffering from losses. A year of financial losses
would not justify a reduced workweek.
(Linton
Commercial v. Hellera, G.R. No. 163147, October 10,
2007)
Q: Under what conditions may a "compressed
work week" schedule be legally authorized as an
exception to the "8‐hour a day" requirement
under the LC?
A:
1.
2.
A:
1.
2.
Health
personnel
in
cities
and
municipalities with a population of at
least 1 million; or
Hospitals and clinics with a bed capacity
of at least 100
3.
4.
Note: Art. 83(2) do not require hospitals to pay the
Ees a full weekly salary with paid 2 days off. (San
Juan de Dios Ees Assoc.‐AFW et al. vs. NLRC, G.R.
No. 126383, Nov.28, 1997)
5.
Compressed Workweek
6.
Q: What is a compressed workweek?
A: The normal workweek is reduced to less than 6
days but the total number of work‐hours of 48
hours per week shall remain. The normal workday is
increased to more than 8 hours but not to exceed
12 hours, without corresponding overtime
premium. The concept can be adjusted accordingly
depending on the normal workweek of the
company. (Department Advisory Order No. 2, Series
of 2009)
Q: When is the implementation of a compressed
work week valid?
A: The validity of the reduction of working hours
can be upheld when the arrangement is temporary,
it is a more humane solution instead of a
retrenchment of personnel, there is notice and
The Ee voluntarily agrees to it
There is no diminution in their weekly or
monthly take home pay or fringe benefits
The benefits are more than or at least
commensurate or equal to what is due
the Ees without the compressed work
week
OT pay will be due and demandable when
they are required to work on those days
which should have ceased to be working
days because of the compressed work
week schedule.
No strenuous physical exertion or that
they are given adequate rest periods.
It must be for a temporary duration as
determined by the DOLE. (2005 Bar
Question)
Q: What are the requisites for adoption of
compressed workweek?
A:
1.
2.
3.
The Er shall notify the DOLE through the
Regional Office which has jurisdiction
over the workplace, of the adoption of
compressed workweek.
The notice shall be in Report Form
attached to the advisory.
The Regional Office shall conduct an
ocular visit to validate whether the
adoption
of
the
flexible
work
arrangements is in accordance with this
issuance. (Department Advisory Order No.
2, Series of 2009)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
25
UST GOLDEN NOTES 2011
c. Work interruption due to brownoutS
Q: What are
interruptions?
the
guidelines
on
power
A:
1.
2.
3.
4.
Brownouts of short duration but not
exceeding 20 minutes shall be treated as
worked or compensable hours whether
used productively by the employees (Ees)
or not.
Brownouts running for more than 20
minutes may not be treated as hours
worked provided any of the following
conditions are present:
a. The Ees can leave their workplace or
go elsewhere within or without the
work premises; or
b. The Ees can use the time effectively
for their own interest.
In each case, the Er may extend the
working hours of his Ees outside the
regular schedules to compensate for the
loss of productive man‐hours without
being liable for OT pay.
Note: Where during meal period, the laborers are
required to stand by for emergency work, or where the
meal hour is not one of complete rest, such is
considered OT. (Pan Am vs. Pan Am Ees Association,
G.R. No. L‐16275, Feb. 23, 1961)
Rest periods or coffee breaks running from 5 to 20
minutes shall be considered as compensable working
time. (Sec. 7, Rule I, Book III, IRR)
Q: Are meal periods provided during OT work
compensable?
A: Yes, since the 1 hour meal period (non‐
compensable) is not given during OT work because
the latter is usually for a short period and to deduct
from the same would reduce to nothing the Ees OT
work. Thus, the 1 hour break for meals during OT
should be treated as compensable.
Q: What are the instances where meal periods
shortened to not less than 20 minutes is
compensable or not compensable?
A:
1.
Compensable – At the instance of
Employer, when:
a. Work is non‐manual in nature or
does not involve strenuous physical
exertion;
b. Establishment regularly operates less
than 16 hours a day;
c. Work is necessary to prevent serious
loss of perishable goods.
d. Actual or impending emergency or
there is urgent work to be performed
on machineries and equipment to
avoid serious loss which the Er would
otherwise suffer. (Sec. 7, Rule I, Book
III, IRR)
2.
Not Compensable – Ee requested for the
shorter meal time so that he can leave
work earlier than the previously
established schedule. Requisites:
a. Ees voluntarily agree in writing and
are willing to waive OT pay for the
shortened meal period;
b. No diminution in the salary and
other fringe benefits of the Ees
which are existing before the
effectivity of the shortened meal
period;
c. Work of the Ees does not involve
strenuous physical exertion and they
are provided with adequate coffee
breaks in the morning and
afternoon;
Industrial enterprises with one or two
work shifts may adopt any of the work
shift prescribed for enterprises with 3
work shifts to prevent serious loss or
damage to materials, machineries, or
equipment that may result case of power
interruptions. (Policy Instruction No. 36)
d. Meal Break
Q: What is the duration of the meal period?
A: Every Er shall give his Ees not less than 60
minutes or 1 hour time‐off for regular meals.
Q: Is the meal period compensable?
A: Being time‐off, it is not compensable. Employee
must be completely relieved from duty.
Q: When is
compensable?
the
meal
period
considered
A: It is compensable where the lunch period or
meal time:
1.
2.
26
Is predominantly spent for the employers
benefit; or
Where it is less than 20 minutes
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
d.
e.
f.
Value of the benefits derived by the
Ees from the proposed work
arrangements is equal to or
commensurate
with
the
compensation due them for the
shortened meal period as well as the
OT pay for 30 minutes as determined
by the Ees concerned;
OT pay will become due and
demandable after the new time
schedule
Arrangement is of temporary
duration.
b.
c.
d.
2.
Travel that is all in a day’s work – time
spent in travel as part of the employees
(Ees) principal activity
e.g. travel from job site to job site during
the work day, must be counted as
working hours.
3.
Travel away from home
GR:
a. Travel that requires an overnight
stay on the part of the Ee when it
cuts across the Ees workday is clearly
working time.
b. The time is not only hours worked on
regular workdays but also during
corresponding working hours on
non‐working days. Outside of these
regular working hours, travel away
from home is not considered
working time.
e. Idle time, waiting time, commuting time/ travel
time, whether part of hours of work or not
Q: When is an Ee considered working while on
call?
A: When Ee is required to remain on call in the Ers
premises or so close thereto that he cannot use the
time effectively and gainfully for his own purpose.
Q: When idle time is considered working time?
A: When the employee is idle or inactive by reason
of interruptions beyond his control shall be
considered working time.
Q: When is waiting time considered working time?
A:
1.
2.
If waiting is an integral part of his work, or
The Ee is required or engaged by the Er to
wait (engaged to wait)
Note: The controlling factor is whether waiting time
spent in idleness is so spent predominantly for the Er’s
benefit or for the Ee.
Q: When is waiting time not considered working
time?
A: When the Ee is waiting to be engaged: idle time
is not working time; it is not compensable.
Q: When is travel time considered working time?
to travel to his regular place of
business or some other work site.
Done
through
a
conveyance
provided by the employer (Er).
Done under the supervision and
control of the Er.
Done under vexing and dangerous
circumstance.
XPN: During meal period or when Ee is
permitted to sleep in adequate facilities
furnished by the Er.
Q: What are the conditions in order for lectures,
meetings and training programs to be not
considered as working time?
A: All of the ff. conditions must be present:
1. Attendance is outside of the employers
regular working hours
2. Attendance is in fact voluntary and
3. The employee does not perform any
productive work during such attendance.
f. Overtime work: Undertime offset by overtime,
Waiver of overtime
Q: What is overtime work (OT)?
A:
1.
Travel from home to work
GR: Normal travel from home to work is
not working time.
XPNS:
a. Emergency call outside his regular
working hours where he is required
A: Work performed beyond 8 hours within the
worker’s 24 hour workday.
Note: Express instruction from the employer (Er) to
the employee (Ee) to render OT work is not required
for the Ee to be entitled to OT pay; it is sufficient that
the Ee is permitted or suffered to work. However,
written authority after office hours during rest days
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
27
UST GOLDEN NOTES 2011
and holidays are required for entitlement to
compensation.
Q: What is a work day?
Rate of the first 8 hours worked on
plus at least 30% of the regular wage (RW):
if done on a special holiday OR rest day:
30% of 130% of RW
A: The 24‐hour period which commences from the
time the employee regularly starts to work
e.g. If the worker starts to work 8 am today, the
workday is from 8 am today up to 8 am tomorrow.
Note: Minimum normal working hours fixed by law
need not be continuous to constitute the legal working
day.
If done on a special holiday AND rest day:
30% of 150% of RW
if done on a regular holiday:
30% of 200% of RW
Q: What is the basis of computing the OT pay and
additional remuneration?
Q: What is the rationale behind OT pay?
A: Employee is made to work longer than what is
commensurate with his agreed compensation for
the statutory fixed or voluntarily agreed hours of
labor he is supposed to do. (PNB vs. PEMA and CIR,
G.R. No. L‐30279, July 30, 1982)
Discourages the employer (Er) from requiring such
work thus protecting the health and well‐being of
the worker, and also tend to remedy
unemployment by encouraging Ers to employ
others workers to do what cannot be accomplished
during the normal hours of work.
Q: Distinguish Overtime pay from premium pay.
A:
OVERTIME PAY
Additional
compensation for
work performed
beyond 8 hours
on ordinary days
(within
the
worker’s 24‐hour
workday)
PREMIUM PAY
Additional compensation for work
performed within 8 hours on days
when normally he should not be
working (on non‐working days,
such as rest days and special
days.)
But additional compensation for
work rendered in excess of 8
hours during these days is also
considered OT pay.
Q: What are the OT pay rates?
A:
PAY RATES
OT during a regular working day
Additional compensation of 25% of the regular wage
OT during a holiday or rest day
28
A: Regular wage which includes the cash wage only,
without deduction on account of facilities provided
by the employer. (Art. 90)
Q: In lieu of OT pay, the employee was given
permission to go on leave on some other day, is
that valid?
A: No. Permission given to the employee (Ee) to go
on leave on some other day of the week shall NOT
exempt the employer from paying the additional
compensation required because it would prejudice
the Ee, for he will be deprived of the additional pay
for the OT work he has rendered and which is
utilized to offset the undertime he may have
incured. Undertime could be charged against the
Ees accrued leave.
Q: Socorro is a clerk‐typist in the Hospicio de San
Jose, a charitable institution dependent for its
existence on contributions and donations from
well wishers. She renders work 11 hours a day but
has not been given OT pay since her place of work
is a charitable institution. Is Socorro entitled to OT
pay? Explain briefly.
A: Yes. Socorro is entitled to OT compensation. She
does not fall under any of the exceptions to the
coverage of Art. 82, under the provisions of hours
of work. The Labor Code is equally applicable to
non‐profit institutions. A covered Ee who works
beyond 8 hours is entitled to OT compensation.
(2002 Bar Question)
Q: Flores applied for the position of driver in the
motor‐pool of Gold Company, a multinational
corporation. Danilo was informed that he would
frequently be working OT as he would have to
drive for the company's executives even beyond
the ordinary 8‐hour work day. He was provided
with a contract of employment wherein he would
be paid a monthly rate equivalent to 35 times his
daily wage, regular sick and vacation leaves, 5 day‐
leave with pay every month and time off with pay
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
when the company's executives using the cars do
not need Danilo's service for more than eight
hours a day, in lieu of OT. Are the above provisions
of the contract of employment in conformity with,
or violative of, the law?
A: Except for the provision that Danilo shall have
time off with pay when the company's executives
using the cars do not need Danilo's service for more
than 8 hours a day, in lieu of OT, the provisions of
the contract of employment of Danilo are not
violative of any labor law because they instead
improve upon the present provisions of pertinent
labor laws.
Q: May an employee be compelled to render OT
work?
A: GR: No. OT work is voluntary.
XPN: Compulsory OT work in any of the
following situations:
1.
2.
3.
4.
5.
6.
7.
Urgent work to be performed on
machines and installations in order to
avoid serious loss or damage to the Er or
some other cause of similar nature
Work is necessary to prevent loss or
damage to perishable goods
In case of imminent danger to the public
safety due to an actual or impending
emergency in the locality caused by
serious accidents, fire, flood, typhoon,
earthquake, epidemic or other disaster or
calamity
Country is at war
Completion or continuation of the work
started before the 8th hour is necessary
to prevent serious obstruction or
prejudice to the business operations of
the Er
Any other national or local emergency has
been declared
Necessary to prevent loss of life or
property.
Note: There should be payment of additional
compensation. Ees refusal to obey the order of the Er
constitutes insubordination for which he may be
subjected to disciplinary action.
Q: The employment contract requires work for
more than 8 hours a day with a fixed wage
inclusive of OT pay. Is that valid?
2.
(a)Undertime not offset by Overtime
Q: Can undertime (UT) offset OT?
A: Where a worker incurs undertime hours during
his regular daily work, said undertime hours should
not be offset against the overtime hours on the
same day or on any other day. It is both prohibited
by the statute and by jurisprudence.
(b)Waiver of Overtime pay
Q: Can the right to OT pay be waived?
A: GR: The right to OT pay cannot be waived as it
is governed by law and not merely by the
agreement of the parties.
XPN:
1. If the waiver is done in exchange for
certain valuable benefits and privileges,
which may even exceed the OT Pay,
waiver may be permitted.
2. Compressed work week
g.Nightwork
Q: What is nightwork?
A: Any and all work rendered between 6:00 pm
and 6:00 am. (National Rice & Corn Corp. v. NARIC,
105 Phil 891)
Q: What is night work prohibition with regard to
women workers?
A: GR: No woman regardless of age shall be
employed or permitted to work, with or
without compensation in any:
1.
A: It depends.
1.
When the contract of employment
requires work for more than 8 hours at
specific wages per day, without providing
for a fixed hourly rate or that the daily
wages include OT pay, said wages cannot
be considered as including OT
compensation. (Manila Terminal Co. vs.
CIR, et al., 91 Phil., 625)
However, the employment contract may
provide for a “built‐in” OT pay. Because of
this, non‐payment of OT pay by the
employer is valid. (Eng’g Equipment vs.
Minister of Labor, G.R. No. L‐64967, Sep.
23, 1985)
2.
Industrial undertaking or branch thereof
between 10pm and 6am of the following
day.
Commercial or non‐industrial undertaking
or branch thereof, other than agricultural,
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
29
UST GOLDEN NOTES 2011
3.
between midnight and 6am of the
following day.
Agricultural undertaking at nighttime
unless she is given period of rest not less
than 9 consecutive hours.
XPNS:
1. Actual or impending emergencies
a. Caused by serious accident, fire,
flood,
typhoon,
earthquake,
epidemic, other disasters, or
calamity
b. To prevent loss of life or property or
c. In case of force majeure or
d. Imminent danger to public safety
2. Urgent work
a. To be performed on machineries,
equipment or installations,
b. To avoid serious loss which the Er
would otherwise suffer
3. Work is necessary to prevent serious loss
to perishable goods
4. Woman Ees
a. Holds a responsible position of
managerial or technical nature, or
b. Has been engaged to provide health
and welfare services
5. Nature of the work
a. Requires the manual skill and
dexterity of women workers and
b. The same cannot be performed with
equal efficiency by male workers
6. Women Ees are immediate members of
the establishment or undertaking
7. In analogous cases exempted by the SLE
in appropriate regulations. (Art. 131)
Note: The operation of Call Contract Centers which
provides offshore case solutions to US based clients
who phone in to conduct product inquiries and
technical support, operating for 24/7, has been
exempted from the prohibition considering the
inevitable time difference between the US and the
Phils. and the peak time for its operation is between
8:00 pm to 10:00 am Manila time, thereby making it
necessary for 80% of its Ees, including women, to work
during graveyard shift. (BWC‐WHSD Opinion No. 491, s.
2003)
Q: What is night shift differential (NSD)?
A: It is additional compensation of not less than
10% of an Ees regular wage for every hour worked
between 10:00 pm to 6:00 am, whether or not such
period is part of the worker’s regular shift.
Q: Who are entitled to NSD?
A: GR: NSD applies to all employees (Ees).
30
XPN:
1. Ees of the Gov’t and any of its political
subdivisions, including GOCC’s.
2. Retail and service establishments
regularly employing not more than 5
workers.
3. Includes task and contract basis
4. Domestic helpers and persons in the
personal service of another.
5. Field personnel and Ees whose time and
performance is unsupervised by the
employer
6. Managerial Ees
Q: May an employee waive the right to NSD?
A: GR: No, such waiver is against public policy.
(Mercury Drug Co., Inc. vs. Dayao, et al., G.R.
No. L‐30452, Sep. 30, 1982)
XPN: Higher/better benefits
h.CBA provision vis‐à‐vis overtime work
Q: May the overtime rate be subject to stipulation
of the Ee and Er?
A: Generally, the premium for work performed on
the employee’s rest days or on special days or
regular holidays are included as part of the regular
rate of the employee in the computation of
overtime pay for any overtime work rendered on
said days especially if the employer pays only the
minimum overtime rates prescribed by law. The
employees and employer, however, may stipulate
in their collective agreement the payment of
overtime rates higher than those provided by law
and exclude the premium rates in the computation
of overtime pay.
Such agreement may be
considered valid only if the stipulated overtime pay
rates will yield to the employees not less than the
minimum prescribed by law.
2.WAGES
Q: What is a wage?
A: It is the remuneration or earnings, however
designated, capable of being expressed in terms of
money, whether fixed or ascertained on a time,
task, piece, or commission basis, or other method
of calculating the same, payable by an employer
(Er) to an employee (Ee) under a written or
unwritten contract of employment:
1.
For work done or to be done, or for
services rendered or to be rendered; and
includes
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
2.
Fair and reasonable value of board,
lodging, or other facilities customarily
furnished by the Er to the Ee as
determined by SLE.
c.Facilities and Supplements
Q: Distinguish between facilities and supplement
A:
FACILITIES
Q: What do you mean by customary?
A: It is founded on long‐established and constant
practice connoting regularity.
Q: What do you mean by fair and reasonable
value?
A: It shall not include any profit to the employer (Er)
or to any person affiliated with the Er.
a.No work, No pay principle
Q: What does a “fair day’s wage for a fair day’s
labor “mean (no work no pay)?
A: GR: If there is no work performed by the Ee,
without the fault of the Er, there can be no
wage or pay.
XPN: The laborer was able, willing and ready to
work but was:
1. Prevented by management;
2. Illegally locked out;
3. Illegally suspended;
4. Illegally dismissed
5. Otherwise illegally prevented from
working. (Aklan Electric Coop. v. NLRC,
G.R. No. 129246, Jan. 25, 2000)
b.Coverage and Exclusions
Q: To whom does the title on wages apply?
Items
of
expenses
necessary for the laborer’s
and his family’s existence
and subsistence
Note: Does not include tools
of trade or articles / services
primarily for the benefit of
the Er or necessary to the
conduct of the Er’s business.
Forms part of the wage
Deductible from wage
For the benefit of the
worker and his family.
SUPPLEMENT
Extra remuneration or
special privileges or
benefits given to or
received by the laborers
over and above their
ordinary earnings or
wages (Atok Big Wedge
Mining Co. v. Atok Big
Wedge Mutual Benefit
Assoc, G.R. No. L‐7349,
July 19, 1955) .
Independent of wage
Not wage deductible
Granted
for
the
convenience of the Er.
Q: What is the criterion in determining whether an
item is a supplement or facility?
A: The criterion is not so much with the kind of the
benefit or item (food, lodging, bonus or sick leave)
given, but its purpose. (State Marine v. Cebu
Seamen’s Ass’n., G.R. No. L‐12444, Feb. 28, 1963)
Q: When can the cost of facilities furnished by the
Er be charged against an Ee?
A: In order that the cost be charged against the Ee,
the latter’s acceptance of such facilities must be
voluntary.
Q: What are the requirements for deducting values
for facilities?
A: GR: It applies to all employees
A:
XPN:
1. Farm tenancy or leasehold;
2. Household or domestic helpers, including
family drivers and persons working in the
personal service of another;
3. Home workers engaged in needlework or
in any cottage industry duly registered in
accordance with law;
4. Workers in duly registered cooperatives
when so recommended by the Bureau of
Cooperative Development and upon
approval of the Secretary of Labor and
Employment.
5. Workers of a barangay micro business
enterprise (R.A. 9178)
1.
2.
3.
Proof must be shown that such facilities
are customarily furnished by the trade
The provision of deductible facilities must
be voluntarily accepted in writing
The facilities must be charged at fair and
reasonable value (Mabeza v. NLRC, G.R.
No. 118506, April 18, 1997)
Q: Are food and lodging, or the electricity and
water consumed by a hotel worker, considered
facilities?
A: No. These are supplements. Considering,
therefore, that hotel workers are required to work
different shifts and are expected to be available at
various odd hours, their ready availability is a
necessary matter in the operations of a small hotel.
Furthermore, granting that meals and lodging were
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
31
UST GOLDEN NOTES 2011
provided and indeed constituted facilities, such
facilities could not be deducted without the Er
complying first with certain legal requirements.
(Mabeza v. NLRC, G.R. No. 118506, April 18, 1997)
A: The Er and the union shall negotiate to correct
the distortions. If there is no union, the Er and the
workers shall endeavor to correct such distinctions.
Q: What are the basic principles in WD?
d.Wages v. Salaries
Q: Distinguish between wage and salary?
A:
1.
A:
WAGE
SALARY
(Gaa vs.CA, G.R. No. 44169, Dec. 3, 1985)
Paid to “white collared
Compensation for manual
workers” and denotes
labor (skilled or unskilled)
higher degree of
also known as “blue
employment or a
collared workers”, paid at
superior grade of services
stated times and
and implies a position in
measured by the day,
office.
week, month or season.
Considerable pay for a
Out gesture of a larger
lower and less
and more important
responsible character of
service
employment.
GR: Not subject to
execution
XPN: Debts incurred for
food, shelter, clothing and
medical attendance.
2.
3.
Subject to execution.
4.
e.Wage Distortion
Q: What is wage distortion (WD)?
A: A situation where an increase in wage results in
the elimination or severe contraction of intentional
quantitative differences in wage or salary rates
between and among the Ee‐groups in an
establishment as to effectively obliterate the
distinctions embodied in such wage structure based
on skills, length of service or other logical bases of
differentiation.
Q: What are the elements of WD?
A:
1.
2.
3.
4.
An existing hierarchy of positions with
corresponding salary rates.
A significant change or increase in the
salary rate of a lower pay class without a
corresponding increase in the salary rate
of a higher one;
The elimination of the distinction
between the 2 groups or classes; and
The WD exists in the same region of the
country. (Alliance Trade Unions v. NLRC,
G.R. No. 140689, Feb. 17, 2004)
Q: Is the Er legally obliged to correct WD?
32
The concept of WD assumes an existing
group or classification of Ees which
establishes distinctions among such Ees
on some relevant or legitimate basis. This
classification is reflected in a differing
wage rate for each of the classes of Ees
Often results from gov’t decreed
increases in minimum wages.
Should a WD exist, there is no legal
requirement that, in the rectification of
that distortion by re‐adjustment of the
wage rates of the differing classes of Ees,
the gap which had previously or
historically existed be restored in
precisely the same amount. In other
words, correction of a WD may be done
by reestablishing a substantial or
significant gap (as distinguished from the
historical gap) between the wage rates of
the differing classes of Ees.
The re‐establishment of a significant
difference in wage rates may be the result
of resort to grievance procedures or
collective bargaining negotiations. (Metro
Transit Org., Inc. v. NLRC, G.R. No.
116008, July 11, 1995)
Q: Distinguish the process for correction of WD of
organized establishments and unorganized
establishments?
A:
Organized
Establishment
(with union)
The Er and the union
shall negotiate to
correct distortion.
Any dispute shall be
resolved through a
grievance procedure
under the CBA.
If it remains unresolved,
it shall be dealt with
through voluntary
arbitration.
The dispute will be
resolved within 10 days
from the time the
dispute was referred to
voluntary arbitration.
Unorganized
Establishments
(without union)
The Er and the workers
shall endeavor to correct
the distortion.
Any dispute shall be
settled through the NCMB.
If it remains unresolved
within 10 days it shall be
referred to the NLRC.
The NLRC shall conduct
continuous hearings and
decide the dispute within
20 days from the time the
same was referred.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
Q: Can the issue of WD be raised in a notice of
strike?
A: No. WD is non‐strikeable. (Ilaw at Buklod ng
Manggagawa v. NLRC, G.R. No. 91980, June 27,
1991.) WD is neither a deadlock in collective
bargaining nor ULP.
Moreover, compliance with a collective bargaining
agreement is mandated by the expressed policy to
give protection to labor. Unless otherwise provided
by law, said policy should be given paramount
consideration. (Meycauayan College v. DRILON, G.R.
No. 81144, My 7, 1990).
g.Non‐ diminution of benefits
f.CBA provision vis‐à‐vis Wage Order CBA Credibility
Q: Distinguish CBA and Wage Order.
A:
CBA
Not
an
ordinary
contract.
It can be
entered into only by an
exclusive
bargaining
agent or unit.
If the CBA provides
better benefits then the
employees shall be
entitled to the same.
WAGE ORDER
Administrative issuance
which results from a
statute (RA 6727)
Q: What is the concept of non‐diminution (ND) of
benefits?
A: GR: Benefits being given to employees (Ees)
cannot be taken back or reduced unilaterally by
the employer (Er) because the
benefit has
become part of the employment contract,
whether written or unwritten.
XPN: To correct an error, otherwise, if the error is
not corrected for a reasonable time, it ripens into
a company policy and Ees can demand it as a
matter of right.
Only sets the minimum
Q: Can a CBA provision regarding wages prevail
over a Wage Order?
Q: When is ND of benefits applicable?
A: It is applicable if it is shown that the grant of
benefit:
A: Yes, where the CBA provides a wage or salary to
be received by the employees which is more than
the amount set by the Wage Order, whether issued
prior to or after the conclusion of the CBA, it is
incumbent upon the employer to compensate the
employees according to the provisions of the CBA
with respect to wages.
Q: Meycauayan College Faculty and Personnel
Association as the employees union in
Meycauayan College, admits that its members
were paid all the increases in pay as mandated
law. It appears however that in 1987, shortly after
union President Joy Bugo turned over the
presidency, she discovered that Art. IV of the CBA,
which provides for higher salary increase was not
implemented. May the union claim the difference
between their old salaries and those provided by
said CBA provision?
A: Yes, the terms and conditions of a collective
bargaining contract constitute the law between the
parties. Beneficiaries thereof are therefore, by
right, entitled to the fulfillment of the obligation
prescribed therein. Consequently, to deny binding
force to the CBA would place a premium on a
refusal by a party thereto to comply with the terms
of the agreement. Such refusal would constitute an
unfair labor practice.
1.
2.
Is based on an express policy of the law;
or
Has ripened into practice over a long
period of time and the practice is
consistent and deliberate and is not due
to an error in the construction/
application of a doubtful or difficult
question of law.
h.Worker’s preference in case of bankruptcy
Q: What is bankruptcy?
A: “Bankruptcy” is referred to in the Philippines as
“Insolvency”. It denotes the state of an entity or
person that has liabilities greater than its assets.
Q: What happens if the Er business experiences
bankruptcy or liquidation?
A: His workers shall enjoy first preference as
regards their wages and monetary claims, any
provision of the law to the contrary
notwithstanding.
Q: What are the principles underlying the
preference?
A:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
33
UST GOLDEN NOTES 2011
1.
2.
3.
4.
Declaration of bankruptcy or judicial
liquidation before enforcement of the
worker’s preferential right;
Filing of claims by workers;
The right does not constitute a lien to the
property of the insolvent debtor in favor
of workers. (DBP vs. NLRC, G.R. No. 82763
Mar. 19, 1990 and G.R. No. 97176, Mar.
18, 1993);
The preference in favor of the Ees applies
to discharge of funds. The preference
does not only cover unpaid wages, it also
extends to termination pay and other
monetary claims;
Note: Termination pay, after all, is
considered as additional remuneration for
services rendered to the employer for a
certain period of time; it is computed on the
basis of length of service. (PNB vs. Cruz, G.R.
No. 80593, Dec. 18, 1989)
5.
Applicable only to ordinary preferred
credit, hence, must yield to special
preferred credits.
Q: Are workers preferred than the tax claims of
the Gov’t?
A: No. Art. 110 did not sweep away the overriding
preference accorded under the scheme of the Civil
Code to tax claims of the government.
Q: Is worker preference applicable if the Er
corporation is under rehabilitation?
A: No. Suspension of payments order by the SEC
mandates the holding in abeyance the filing or the
proceedings on labor cases against an Er who is
under rehabilitation to give the Er the chance to
concentrate on how to revive his business and not
be distracted in trying to defend itself in labor cases
filed against it. (Rubberworld, Inc. v. NLRC, G.R. No.
126773, April 14, 1999)
Q: Premiere Bank, being the creditor‐mortgagee of
XYZ & Co., a garment firm, foreclosed the
hypothecated assets of the latter. Despite the
foreclosure, XYZ & Co. continued its business
operations. A year later, the bank took possession
of the foreclosed property. The garment firm's
business operations ceased without a declaration
of bankruptcy. Caspar, an employee of XYZ & Co.,
was dismissed from employment due to the
cessation of business of the firm. He filed a
complaint against XYZ & Co. and the bank. The
Labor Arbiter, after hearing, so found the company
liable, as claimed by Caspar, for separation pay.
Premiere Bank was additionally found subsidiarily
liable upon the thesis that the satisfaction of labor
benefits due to the Ee is superior to the right of a
34
mortgagee of property. Was the Labor Arbiter
correct in his decision?
A: No. The preference of credits established in Art.
110 of the LC cannot be invoked in the absence of
any insolvency proceedings, declaration of
bankruptcy, or judicial liquidation. (DBP v.
Santos, G.R. No. 75801, March 20, 1991). (2003 Bar
Question)
Q: Distinguish the mortgage created under the
Civil Code from the right of 1st preference created
by the LC as regards the unpaid wages of workers.
Explain.
A: A mortgage directly subjects the property upon
which it is imposed, whoever the possessor may be,
to the fulfillment of the obligation for which it was
constituted. It creates a real right which is
enforceable against the whole world. It is therefore
a lien on an identified real property.
Mortgage credit is a special preferred credit under
the Civil Code in the classification of credits. The
preference given by the LC when not attached to
any specific property is an ordinary preferred credit.
(1995 Bar Question)
i.Labor Code provisions for wage protection
Q: What are the Labor Code provisions for wage
protection
A:
Art. 112. Non‐Interference in Disposal of Wages‐No
employer shall limit or otherwise interfere with the
freedom of any employee to dispose of his wages.
He shall not in any manner force, compel or oblige
his employees to purchase merchandise,
commodities or other properties from the employer
or from any other person, or otherwise make use of
any store or service of such employer or any other
person.
Art. 113 Wage Deduction‐No employer in his own
behalf or in behalf of any person, shall make any
deduction from the wages of his employees,
except:
(a) In cases where the worker is insured with
his consent by the employer, and the
deduction is to recompense the employer
for the amount paid by him as premium
on the insurance;
(b) For union dues, in cases where the right
of the worker or his union to check‐ off
has been recognized by the employer or
authorized in writing by the individual
worker concerned; and
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
(c) In cases where the employer is authorized
by law or regulations issued by the
Secretary of Labor.
worker concerned (Art. 113). Art. 241(o)
provides that special assessments may be
validly checked‐off provided that there is
an individual written authorization duly
signed by every employee (Ee).
3. Deductions for SSS, Medicare and Pag‐ibig
premiums
4. Taxes withheld pursuant to the Tax Code
5. Deductions under Art. 114 for loss or
damage to tools, materials or equipments
6. Deductions made with the written
authorization of the Ee for payment to a
third person. (Sec 13, Rule VIII, Book III of
the IRR)
7. Deductions as disciplinary measures for
habitual tardiness (Opinion dated March
10, 1975 of the SLE)
8. Agency fees under Art. 248(e)
9. Deductions for value of meals and
facilities freely agreed upon
10. In case where the Ee is indebted to the Er
where such indebtedness has become
due and demandable. (Art. 1706, Civil
Code)
11. In court awards, wages may be subject of
execution or attachment, but only for
debts incurred for food, shelter, clothing,
and medical attendance. (Art. 1703, Civil
Code)
12. Salary deduction of a member of a legally
established cooperative. (R.A. 6938, Art.
59)
Art. 114 No employer shall require his worker to
make deposits from which deductions shall be
made for the reimbursement of loss of or damage
to tools, materials or equipments supplied by the
employer; except when the employer is engaged in
such trades, occupations or business where the
practice of making deductions or requiring deposits
is a recognized one, or is necessary, or desirable as
determined by the Secretary of Labor in
appropriate rules and regulations.
Art. 115 Limitations‐No deduction from the
deposits of an employee for the actual amount of
the loss or damage shall be made unless the
employee has been heard thereon, and his
responsibility has been clearly shown.
Art 116 Withholding of Wages and Kickbacks
Prohibited‐It shall be unlawful for any person,
directly or indirectly, to withhold any amount from
the wages of a worker or induce him to give up any
part of his wages by force, stealth, intimidation,
threat or by any other means whatsoever without
the worker’s consent.
Art 117 Deduction to Ensure Employment‐It shall be
unlawful to make any deduction from the wages of
any employee for the benefit of the employer or his
representative or intermediary as consideration of
a promise of employment or retention in
employment or retention in employment.
Art. 118 Retaliatory Measures‐It shall be unlawful
for an employer to refuse to pay or reduce the
wages and benefits, discharge or in any manner
discriminate against any employee who has filed
any complaint instituted any proceeding under this
Title or has testified or is about to testify in such
proceedings.
j. Allowable deductions without employee’s
consent
k.Attorney’s fees
Q: What are the limitations to the assessment of
attorney’s lien against the culpable party?
A:
1.
2.
In case of unlawful withholding of wages
– 10% of the amount of wages to be
recovered.
It shall be unlawful for any person to
demand or accept, in any judicial or
administrative proceedings for the
recovery of wages, atty’s fees that exceed
10% of the amount of wages recovered.
Q: What is the rule in wage deductions?
A:
GR: It is strictly prohibited
XPN:
1.
2.
Deductions under Art. 113 for insurance
premiums
Union dues in cases where the right of the
worker or his union to check off has been
recognized by the employer (Er) or
authorized in writing by the individual
Note: The prohibition on atty’s lien refers to
proceedings for recovery of wages and not to services
rendered in connection with CBA negotiations. In the
latter case, the amount of atty’s fees may be agreed
upon by the parties and the same is to be charged
against union funds as provided for in Art. 222 of the
Labor Code. (Pacific Banking Corp.v. Clave, G.R. No.
56965, Mar. 7, 1984)
Q: What is ordinary attorney’s fee?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
35
UST GOLDEN NOTES 2011
A: It is the reasonable compensation paid to a
lawyer by his client for the legal services he has
rendered.
Q: What is extraordinary attorney’s fee?
A: It is the indemnity for damages ordered by the
court to be paid by the losing party in litigation and
is not to be paid to the lawyer but to the client,
unless they have agreed that the award shall
pertain to the lawyer as an additional
compensation or as a part thereof. (Traders Royal
Bank Ee’s Union‐Independent v. NLRC, G.R. No.
120592, Mar. 14, 1997)
Note: Art.111 of the LC deals with the extraordinary
concept of attorney’s fees. It may not be used as the
standard in fixing the amount payable to the lawyer by
his client for the legal services he rendered. (Masmud
v. NLRC, G.R. No. 183385, Feb. 13, 2009)
Q: Santiago, a project worker, was being assigned
by his Er, Bagsak Builders, to Laoag, Ilocos Norte.
Santiago refused to comply with the transfer
claiming that it, in effect, constituted a
constructive dismissal because it would take him
away from his family and his usual work
assignments in Metro Manila. The Labor Arbiter
(LA) found that there was no constructive
dismissal but ordered the payment of separation
pay due to strained relations between Santiago
and Bagsak Builders plus atty’s fees equivalent to
10% of the value of Santiago's separation pay.
Is the award of atty's fees valid? State the reasons
for your answer.
A: No, the award of atty’s fees is not valid.
According to the LC (Art. 111 [a]), atty’s fees may be
assessed in cases of unlawful withholding of wages
which does not exist in the case. The worker
refused to comply with a lawful transfer order, and
hence, a refusal to work. Given this fact, there can
be no basis for the payment of atty's fees.
Could the LA have validly awarded moral and
exemplary damages to Santiago instead of atty's
fees? Why?
A: No, moral and exemplary damages can be
awarded only if the worker was illegally terminated
in an arbitrary or capricious manner. (Nueva Ecija
Electric Cooperative Inc., Ees’ Ass’n., vs. NLRC, G.R.
No. 116066, Jan. 24, 2000; Cruz vs. NLRC, G.R. No.
116384, Feb. 7, 2000; Phil. Aeolus etc., vs. NLRC,
G.R. No. 124617, April 28, 2000). (2001 Bar
Question)
Q: When can attorney’s fees and damages be
awarded in an illegal dismissal case?
A: For attorney’s fees, moral and exemplary
damages to be granted, the plaintiff must prove
that the facts of his case fall within the enumerated
instances in the Civil Code. Thus, moral damages
may only be recovered where the dismissal or
suspension of the employee was attended by bad
faith or fraud, or constituted an act oppressive to
labor, or was done in a manner contrary to morals,
good customs or public policy. In other words, the
act must be a conscious and intentional design to
do a wrongful act for a dishonest purpose or some
moral obliquity. Exemplary damages, on the other
hand, may only be awarded where the act of
dismissal was effected in a wanton, oppressive or
malevolent manner. (Chaves v. NLRC,G.R. No.
166382, June 27, 2006)
Q: What is union service fee?
A: The appearance of labor federations and local
unions as counsel in labor proceedings has been
given legal sanction under Art.222 of the LC, which
allows non‐lawyers to represent their organization
thereof. The said labor federations and local unions
have a valid claim to atty’s fees which is called the
Union Service Fee.
l.Criteria/ Factors for Wage Setting
Q: What are the standards or criteria for minimum
wage setting?
A: In the determination of such regional minimum
wages, the Regional Board shall, among other
relevant factors consider the following:
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
The demand for living wages
Wage adjustment vis‐a‐vis the consumer
price index
The cost of living and changes or
increases therein
The needs of workers and their families
The need to induce industries to invest in
the countryside
Improvements in standards of living
The prevailing wage levels
Fair return of the capital invested and
capacity to pay of employers
Effects on employment generation and
family income
The equitable distribution of income and
wealth along the imperatives of economic
and social development
Q: What is salary ceiling method?
36
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
A: A method of minimum wage adjustment
whereby the wage adjustment is applied to Ees
receiving a certain denominated ceiling. In other
words, workers already being paid more than the
existing minimum wage are also to be given a wage
increase. (ECOP v. NWCP, G.R. No. 96169, Sep. 24,
1991)
(MBTC v NWPC Commission, G.R. NO. 144322, Feb.
6, 2007)
Q: What is a floor wage method?
Q: What is the right to weekly rest day (WRD)?
A: It involves the fixing of a determinate amount to
be added to the prevailing statutory minimum wage
rates.
A: Every employer shall give his employees a rest
period of not less than 24 consecutive hours after
every 6 consecutive normal work days. (Sec. 3, Rule
III, Book III, IRR)
Q: The Regional Wage Board of Region II issued a
Wage Order granting all Ees in the private sector
throughout the region an across‐the‐board
increase of P15.00 daily. Is this Wage Order valid?
A: The Wage Order is valid insofar as the mandated
increase applies to Ees earning the prevailing
minimum wage rate at the time of the passage of
the Wage Order and void with respect to its
application to Ees receiving more than the
prevailing minimum wage rate at the time of the
passage of the Wage Order. Pursuant to its
authority, the Regional Wage Boards may issue
wage orders which set the daily minimum wage
rates. In the present case, the Regional Wage
Board did not determine or fix the minimum wage
rate. It did not set a wage level nor a range to which
a wage adjustment or increase shall be added.
Instead, it granted an across‐the‐board wage
increase of P15.00 to all Ees in the region. In doing
so, the Regional Wage Board exceeded its authority
by extending the coverage of the Wage Order to
wage earners receiving more than the prevailing
minimum wage rate, without a denominated salary
ceiling. The Wage Order granted additional benefits
not contemplated by R.A. No. 6727. (MBTC v NWPC
Commission, G.R. No. 144322, Feb. 6, 2007)
Q: Since the Wage Order was declared void with
respect to its application to employees receiving
more than the prevailing minimum wage rate at
the time of the passage of the Wage Order, should
these Ees refund the wage increase received by
them?
A: No. The Ees should not refund the wage increase
that they received under the invalidated Wage
Order. Being in good faith, the employees need not
refund the benefits they received.
Since they
received the wage increase in good faith, in the
honest belief that they are entitled to such wage
increase and without any knowledge that there was
no legal basis for the same, they need not refund
the wage increase that they already received.
3.REST DAY
a.Right to weekly rest day, Preferemce of the
employee, when work on rest day authorized
Q: What is the scope of WRD?
A: It shall apply to all employers whether operating
for profit or not, including public utilities operated
by private persons. (Sec. 1, Rule III, Book III, IRR)
Q: Who determines the WRD?
A: GR: Er shall determine and schedule the WRD of
his Ee.
XPNs:
1. CBA
2. Rules and regulations as the SLE provides
3. Preference of employee (Ee) based on
religious grounds – Ee shall make known
his preference in writing at least 7 DAYS
before the desired effectivity of the initial
rest day so preferred. (Sec. 4(1), Rule III,
Book III, IRR)
XPN to XPN no. 3: Employer (Er) may
schedule the WRD of his choice for at
least 2 days in a month if preference of
the employee will inevitably result in:
a. serious prejudice to the operations
of the undertaking and
b. the Er cannot normally be expected
to resort to other remedial
measures. (Sec. 4(2), Rule III, Book III,
IRR)
Q: When should employees (Ees) be informed of
their schedule of WRD?
A: Er shall make known rest period by means of:
1. Written notice
2. Posted conspicuously in the workplace
3. At least 1 week before it becomes
effective. (Sec.5, Rule III, Book III. IRR)
Q: Can an Ee be compelled to work on his rest
day?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
37
UST GOLDEN NOTES 2011
A: GR: No.
Work on a scheduled
rest day
XPN:
1. Urgent work to be performed on the
machinery, equipment or installation, to
avoid serious loss which the Er would
otherwise suffer;
2. Nature of work requires continuous
operations for 7 days in a week or more
and stoppage of the work may result in
irreparable injury or loss to the Er;
3. Abnormal pressure of work due to special
circumstances, where the Er cannot be
ordinarily expected to resort to other
measures;
4. Actual or impending emergencies (serious
accident, fire, flood, typhoon, earthquake,
etc.)
5. Prevent loss or damage to perishable
goods;
6. Analogous or similar circumstances as
determined by the SLE;
7. Work is necessary to avail of favorable
weather or environmental conditions
where performance or quality of work is
dependent thereon.
Q. What is the rule when an Ee volunteers to work
on his rest day under other circumstances?
A: He shall express it in writing subject to additional
compensation. (Sec. 6[2], Rule III, Book III, IRR)
Q: What is premium pay?
A: It is the additional compensation for work
rendered by the employee on days when normally
he should not be working such as special holidays
and weekly rest days.
Q: Can the Er and Ee agree on the rate of premium
pay other than that provided by law?
A: Yes. Nothing shall prevent the Er and his Ee or
their representatives from entering into any
agreement with terms more favorable to the Ees
Provided: It shall not be used to diminish any
benefit granted to the Ees under existing laws,
agreements and voluntary Er practices. (Sec. 9, Rule
III, Book III, IRR)
Q: What are the rates of compensation for rest
day, Sunday or holiday work?
A:
INSTANCES
38
RATES OF ADDITIONAL
COMPENSATION
Work has no regular
workdays and rest days
(If performed on
Sundays and Holidays)
Work on a Sunday
(If Ee’s scheduled rest
day)
Work performed on any
Special Holiday
Work performed on a
Special Holiday and
same day is the
scheduled rest day
Work performed on a
Special Working Holiday
+ 30% Premium Pay (PP)
of 100% regular wage
(RW). (Sec. 7, Rule III, Book
III, IRR)
+ 30% PP of 100% RW .
(Sec. 7, Rule III, Book III,
IRR
+ 30% PP of 100% RW.
(Sec. 7, Rule III, Book III,
IRR)
1st 8 hrs: + 30% PP of
100% RW
Excess of 8 hrs: + 30% of
hourly rate on said date.
(M.C. No. 10, Series of
2004)
1st 8 hrs: + 50% PP of
100% regular wage
Excess of 8 hrs: + 30% of
hourly rate on said date.
(M.C. No. 10, Series of
2004)
Ee is only entitled to his
basic rate. No PP is
required.
Reason: Work performed
is considered work on
ordinary working days.
(Sec. 7, Rule III, Book III,
IRR)
Note: Holiday work provided under Art.93 pertains to
special holidays or special days.
Q: Jose applied with Mercure Drug Company for
the position of Sales Clerk. Mercure Drug Company
maintains a chain of drug stores that are open
everyday till late at night. Jose was informed that
he had to work on Sundays and holidays at night
as part of the regular course of employment. He
was presented with a contract of employment
setting forth his compensation on an annual basis
with an express waiver of extra compensation for
work on Sundays and holidays, which Jose signed.
Is such a waiver binding on Jose? Explain.
A: As long as the annual compensation is an
amount that is not less than what Jose should
receive for all the days that he works, plus the extra
compensation that he should receive for work on
his weekly rest WRD and for night differential pay
for late night work, considering the laws and wage
orders providing for minimum wages, and the
pertinent provisions of the LC, then the waiver that
Jose signed is binding on him for he is not really
waiving any right under Labor Law. It is not contrary
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
to law, morals, good customs, public order or public
policy for an Er and Ee to enter into a contract
where the Ees compensation that is agreed upon
already includes all the amounts he is to receive for
OT work and for work on weekly rest days and
holidays and for night differential pay for late night
work. (1996 Bar Question)
4.HOLIDAYS
a.Right to Holiday Pay
considered
regular
Proclamation No. 18)
REGULAR HOLIDAYS
New Year’s Day
Maundy Thursday
Good Friday
Eid’l Fitr
Araw ng Kagitingan
Labor Day
Independence Day
National Heroes Day
Q: What is holiday pay (HP)?
A: It is a premium given to employees (Ees)
pursuant to law even if he has not been suffered to
work on a regular holiday. It is limited to the 11
regular holidays, also called legal holidays listed by
law. The employee (Ee) should not have been
absent without pay on the working day preceeding
the regular holiday.
Bonifacio Day
Christmas Day
Rizal Day
holidays.
(Presidential
DATE
January 1
April 21
April 22
Movable Date
April 9
May 1
June 12
Aug. 29 (last Monday of
August)
Nov. 30
December 25
Dec. 30
Q: What are the classes of special days (SD)?
Note: RA 9492 has already been superseded by
Presidential Proclamation No. 18 issued by President
Benigno C. Aquino III placing the observance of regular
holidays and national special days according to their
respective dates in the calendar.
A:
Q: What are Muslim Holidays (MH)?
1.
National Special Public Holiday
GR: Non working days
XPN: Otherwise declared by the
President
2.
Local Special Public Holiday – Regular
working day. (LOI 814 as amended by LOI
1087)
NATIONAL SPECIAL DAYS
All Saints Day
Last Day of the Year
Ninoy Aquino Day
Other days declared by law
1. Special Non‐working
days
2. Special Public Holidays
3. Special National
Holiday
4. Special Holiday ( for all
schools)
a. Edsa Revolution
Anniversary
LOCAL SPECIAL DAYS
Those declared by:
1. Law or
2. Ordinance
DATE
November 1
December 31
August 21
A: The MHs, except Eid’l Fitr, are observed in
specified Muslim areas. All private corporations,
offices, agencies and entities or establishments
operating within the designated Muslim provinces
and cities are required to observe MH.
Q: When shall Eid’l Fitr and/or Eid’l Adha be
declared a national holiday?
A: The proclamation declaring a national holiday for
the observance of Eid’l Fitr and/or Eid’l Adha shall
be issued:
1.
December 24
2.
February 25
e.g. Manila day (in
Manila only)
Q: What are regular holidays (RH)?
A: They are compensable whether worked or
unworked subject to certain conditions. They are
also called legal holidays. The following are
After the approximate date of the Islamic
holiday has been determined in
accordance with the:
a. Islamic Calendar (Hijra) or
b. Lunar Calendar or
c. Upon astronomical calculations
d. Whichever is possible or convenient
The Office of Muslim Affairs shall inform
the Office of the President on which day
the holiday shall fall. (Sec.2, Proc. No.
1841)
Q: Can a Christian employee (Ee) working within
the Muslim area be compelled to work during MH?
A: No. Christians working within the Muslim areas
may not report for work during MH. Not only
Muslim but also Christian Ee in the designated
provinces and cities are entitled to HP on the MH.
(SMC v. CA, G.R. 146775, Jan. 30, 2002)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
39
UST GOLDEN NOTES 2011
Q: Can a Muslim Ee working outside the Muslim
area be compelled to work during the observance
of the MH?
A: GR: No. Muslim Ees shall be excused from work
during MH without diminution of salary or
wages.
XPN: Those who are permitted or suffered to
work on MH are entitled to at least 100% basic
pay + 100% as premium of their basic pay. (SMC
v. CA, G.R. No. 146775, Jan. 30, 2002)
Note: RH falling within temporary or periodic
shutdown and temporary cessation of work are
compensable. However, if the temporary or periodic
shutdown and cessation of work is due to business
reverses, the employer may not pay the RHs during
such period.
8.
Ee paid fixed amount for performing work
irrespective of the time consumed in the
performance thereof. (Sec. 1, Rule IV,
Book III, IRR)
Q: What are retail establishments?
A: They are engaged in the sale of goods to end
users for personal or household use. (e.g. Grocery)
Q: What are service establishments?
A: They are engaged in the sale of services to
individuals for their own or household use. (e.g. TV
repair shop)
Q: Is an exercise of profession retail or service?
A: It is neither retail nor service.
Q: Distinguish RH from SD.
Q: May an Er require an Ee to work on RH?
A:
A: Yes. But Ee shall be compensated twice his
regular rate.
REGULAR HOLIDAY
SPECIAL HOLIDAY
If Unworked
Regular pay
(subject
to
certain
No Pay
conditions for daily paid
Ee’s)
If worked
+ 30% premium pay of
2x regular pay (200%)
100% regular wage
Other matters
Set by law
Set by proclamation
Limited to those provided
Not exclusive
under Art. 94, LC
Q: Who are entitled to HP?
A: GR: All employees (Ees) are entitled. (Sec.1, Rule
IV, Book III, IRR)
XPNS:
1. Gov’t Ees and any of its political
subdivisions, including
GOCCs (with
original charter)
2. Retail and service establishments
regularly employing less than 10 workers
3. Domestic helpers and persons in the
personal service of another
4. Ee engaged on task or contract basis or
purely commission basis
5. Members of the Family of the Er who are
dependent on him for support
6. Managerial Ee and other member of the
managerial staff
7. Field personnel and other Ee whose time
and performance are unsupervised by the
Er
40
Q: What are the rates of compensation for RH on
Ees regular workday and RH on Ees rest day?
A:
FORMULAS TO COMPUTE WAGES ON
REGULAR HOLIDAYS (RH)
(M.C.No.10, Series of 2004)
RH on Ee’s regular
RH on Ee’s rest day
workday
If unworked
100%
100%
e.g. 300 Php regular wage
e.g. 300 Php (RW)
(RW)
If worked (1st 8 hrs)
+ 30% of 200%
200%
e.g 600(200% of RW)
e.g. 300(RW)
X 0.3
+ 300
180
600 = Total Wage (TW)
180+600= 780 (TW)
If worked (OT)(excess of 8 hrs)
230%
230% + 30% of hourly
200% + 30% of hourly rate rate on said date
on said date
Q: What is an important condition that should be
met in order to avail/receive the single HP?
A: The Ee should not have been absent without pay
on the working day preceding the RH.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
Q: Distinguish between monthly paid and daily
paid Ees.
A:
Monthly Paid Ees
One who is paid his wage or
salary for everyday of the
month, including rest days,
Sundays, regular or special
days, although he does not
regularly work on these days.
Not excluded from benefit of
HP.
Daily Paid Ees
One who is paid his
wage or salary only
on those days he
actually
worked,
except in cases of
regular or special
days, although he
does not regularly
work on these days.
Q: What is the effect if a legal holiday falls on a
Sunday?
A: A legal holiday falling on a Sunday creates no
legal obligation for the Er to pay extra to the Ee
who does not work on that day, aside from the
usual HP to its monthly paid Ee. (Wellington v.
Trajano, G.R. 114698, July 3, 1995)
(1)In Case of Absences
cleaning of machineries
is undertaken
Due to business reverses
(cessation as authorized by
the Sec. of Labor)
Q: What are the HPs of certain employees?
A:
EMPLOYEES
Private
school
teachers (Faculty
members
of
colleges
and
universities)
Ee paid by:
1. results or
2. output
(Piece
work
payment)
Seasonal Workers
ABSENCES
LOA with pay on the day
LOA without pay on the
immediatley preceding
day immediately
RH.
preceding a RH.
GR: An Ee may not be
paid the required HP
if he has not worked
on such RH.
XPN: Where the day
immediately
GR: All covered Ees are
preceding
the
entitled to HP.
holiday is a:
1. Non‐working
day
(NWD)
in
the
establishment or
2. The scheduled rest
day (RD) of the Ee.
(2)In Case of Temporary Cessation of Work
Q: What is the effect in case there is a temporary
or periodic shutdown and temporary cessation of
work?
A:
1.
2.
TEMPORARY OR PERIODIC SHUTDOWN and
TEMPORARY CESSATION OF WORK
(Sec. 7, Rule IV, Book III, IRR)
Instances
Rule:
Yearly inventory or
RH falling within the
When the repair or period
shall
be
RH may not be paid
by the Er
(3)Holiday Pay of Teachers, Piece workers,
seafarers, seasonal workers
Q: Discuss the concept of absences.
A:
compensated.
Workers having no
regular work days
Seafarers
RULE
RH
during
semestral
vacations
Not entitled to HP
2. RH
during
Christmas
vacation
Shall be paid HP
HP shall not be less than his
average daily earnings for the
last 7 actual work days
preceding the RH.
Provided: HP shall not be less
than the statutory minimum
wage rate.
May not be paid the required HP
during offseason where they are
not at work.
1.
Shall be entitled to HP
Shall be entitled to HP
Q: Are the school faculty who according to their
contracts are paid per lecture hour entitled to
unworked HP?
A:
1. If during regular holiday – No. Art. 94 of
LC is silent with respect to faculty members
paid by the hour who because of their teaching
contracts are obliged to work and consent to
be paid only for work actually done (except
when an emergency or a fortuitous event or a
national need calls for the declaration of
special holidays). RH specified as such by law
are known to both school and faculty members
as "no class days" certainly the latter do not
expect payment for said unworked days, and
this was clearly in their minds when they
entered into the teaching contracts. (Jose Rizal
College v. NLRC, G.R. No. 65482, Dec. 1, 1987)
2. If during special public holidays – Yes. The
law and the IRR governing HP are silent as to
payment on Special Public Holidays. It is
readily apparent that the declared purpose of
the HP which is the prevention of diminution
of the monthly income of the Ees on account
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
41
UST GOLDEN NOTES 2011
of work interruptions is defeated when a
regular class day is cancelled on account of a
special public holiday and class hours are held
on another working day to make up for time
lost in the school calendar. Otherwise stated,
the faculty member, although forced to take a
rest, does not earn what he should earn on
that day. Be it noted that when a special public
holiday is declared, the faculty member paid
by the hour is deprived of expected income,
and it does not matter that the school calendar
is extended in view of the days or hours lost,
for their income that could be earned from
other sources is lost during the extended days.
Similarly, when classes are called off or
shortened on account of typhoons, floods,
rallies, and the like, these faculty members
must likewise be paid, whether or not
extensions are ordered. (Jose Rizal College v.
NLRC, G.R. No. 65482, Dec.1, 1987)
Q: Lita, a full time professor in San Ildefonso
University, is paid on a regular monthly basis. She
teaches for a period of 10 months in a school year,
excluding the 2 month summer‐break. During the
semestral break, the University did not pay her
emergency Cost of Living allowance (ECOLA)
although she received her regular salary since the
semestral break was allegedly not an integral part
of the school year and no teaching service were
actually rendered by her. In short, the University
invoked the principle of "no work, no pay". She
seeks your advice on whether or not she is entitled
to receive her ECOLA during semestral breaks.
How would you respond to the query?
A: There is no longer any law making it the legal
obligation of an employer to grant an Emergency
Cost of Living Allowance (ECOLA). Effective 1981,
the mandatory living allowances provided for in
earlier Presidential Decrees were integrated into
the basic pay of all covered employees. Thus,
whether the ECOLA will be paid or not during the
semestral break now depends on the provisions of
the applicable wage order or contract which may be
a CBA, that many grant said ECOLA. (1997 Bar
Question)
Q: What is the concept of double HP?
A: 2 RH on same day.
Present
LOA w/pay
MAUNDY
THURSDAY & ARAW
NG KAGITINGAN
unworked
unworked
LOA w/ pay
worked
WED
42
Authorized
absence
worked
Same
Worked and day is
Rest Day
300%
(at least)
390%
(+30% of
each 3
100%)
Q: Is double HP applicable at present?
A: No, because Araw ng Kagitingan is moved to
Monday nearest April 9. (R.A. 9242)
Q: What is the concept of successive RH?
A:
WED
Worked
LOA
w/pay
LOA w/o
pay
LOA w/o
pay
MAUNDY
THURS
RH
GOOD
FRIDAY
RH
ENTITLED
TO HP
Yes. Both
RH
RH
Yes. Both
RH
RH
No. Both
Worked
RH
Yes. Only to
HP on
Friday
Q: What are the conditions so that an Ee may be
entitled to 2 successive HP?
st
A: On the day immediately preceding the 1 RH, he
must be:
1.
2.
Present (worked), or
On LOA with pay. (Sec. 10, Rule IV, Book
III, IRR)
Q: What if the conditions are not met?
A: He must work on the 1st RH to be entitled to HP
on the 2nd RH. (Sec. 10, Rule IV, Book III, IRR)
5.LEAVES
a.Service Incentive Leave Pay
Q: What is service incentive leave (SIL)?
A: It is 5 days leave with pay for every employee
who has rendered at least 1 yr of service. It is
commutable to its money equivalent if not used or
exhausted at the end of year.
Q: What do you mean by at least 1 year of service?
RATE
200%
200%
300%
(at least)
A: Service for not less than 12 months, whether
continuous or broken reckoned from the date the
employee started working, including authorized
absences and paid regular holidays unless the
working days in the establishment as a matter of
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
practice or policy, or that provided in the
employment contract is less than 12 months, in
which case said period shall be considered as one
year. (Sec. 3, Rule V, Book III, IRR)
the SIL may be on a pro‐rata basis. (No. VI(c), DOLE
Handbook on Worker’s Statutory Monetary Benefit)
Q: Are part‐time workers entitled to the full
benefit of the yearly 5 day SIL?
Q: Who are entitled to SIL?
A: GR: Applies to every Ee who has rendered at
least 1 year of service. (Art. 95[a])
XPNS:
1. Government Ees and any of its political
subdivisions including GOCCs
2. Those already enjoying the benefit
3. Domestic helpers and persons in the
personal services of another
4. Those already enjoying vacation leave with
pay of at least 5 days
5. Managerial Ees
6. Field personnel and other Ees whose
performance is unsupervised by the Er
7. Employed in establishments regularly
employing less than 10 workers
8. Exempt establishments
9. Engaged on task or contract basis, purely
commission basis, or those who are paid in
a fixed amount of performing work
irrespective of the time consumed in the
performance thereof. (Art. 95[b])
A: Yes. Art. 95 of Labor Code speaks of the number
of months in a year for entitlement to said benefit.
(Bureau of Working Conditions Advisory Opinion to
Phil. Integrated Exporter’s, Inc.)
Q: Are piece‐rate workers entitled to the full
benefit of the yearly 5 day SIL?
A: It depends.
1.
2.
Yes. Provided:
a. They are working inside the premises
of the employer (Er) and
b. Under the direct supervision of the
Er.
No. Provided:
a. They are working outside the
premises of the Er
b. Hours spent in the performance of
work cannot be ascertained with
reasonable certainty
c. The are not under the direct
supervision of the Er
Q: Are teachers of private schools on contract
basis entitled to SIL?
Q: Does it apply to Ees with salaries above
minimum wage?
A: Yes. The phrase "those who are engaged on task
or contract basis" should, however, be related with
"field personnel" applying the rule on ejusdem
generis that general and unlimited terms are
restrained and limited by the particular terms that
they follow. Clearly, Cebu Institute of Technology
teaching personnel cannot be deemed as field
personnel which refers "to non‐agricultural Ees who
regularly perform their duties away from the
principal place of business or branch office of the Er
and whose actual hours of work in the field cannot
be determined with reasonable certainty. (Par. 3,
Art. 82, LC). (CIT vs. Ople, G.R. No. 70203, Dec. 18,
1987)
A: No. The difference between the minimum wage
and the actual salary received by the Ees cannot be
deemed as their 13th month pay and SIL pay as such
difference is not equivalent to or of the same
import as the said benefits contemplated by law.
(JPL Marketing Promotions v. CA, G.R. No. 151966,
July 8, 2005.)
Q: Is SIL commutable to its monetary equivalent if
not used or exhausted at the end of the year?
A: Yes. It is aimed primarily at encouraging workers
to work continuously and with dedication to the
company.
Q: What is the basis for cash conversion?
Q: Explain the entitlement of terminated Ees to
SIL.
A:
1.
2.
Illegally dismissed Ees ‐ entitled to SIL
until actual reinstatement. (Integrated
Contractor and Plumbing Works, Inc. v.
NLRC, G.R.No. Aug.9, 2005)
Legally dismissed Ees – the Ee who had
not been paid of SIL from outset of
employment is entitled only of such pay
after a year from commencement of
service until termination of employment
or contract. (JPL Marketing Promotions v.
CA, G.R. No. 151966, July 8, 2005)
A: The basis shall be the salary rate at the date of
commutation. The availment and commutation of
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
43
UST GOLDEN NOTES 2011
said Ee would otherwise have been
entitled to, and the SSS shall in turn pay
such amount to the Ee concerned.
b.Maternity Leave
Q: What is maternity leave benefit?
A: A covered female employee (Ee) is entitled to a
daily maternity benefit equivalent to 100% of her
present basic salary, allowances and other benefits
or the cash equivalent of such benefits for 60 days
or 78 days in case of caesarian delivery.
Q: What are the requirements in order that
maternity benefits may be claimed?
A:
1.
2.
There is childbirth, abortion or
miscarriage
She has paid at least 3 monthly
contributions
Q: What are the conditions?
A:
1.
The Ee shall have notified her employer
(Er) of her pregnancy and the probable
date of her childbirth which notice shall
be transmitted to the SSS
2.
The payment shall be advanced by the Er
in 2 equal installments within 30 days
from the filing of the maternity leave
application
3.
In case of caesarian delivery, the Ee shall
be paid the daily maternity benefit for 78
days
c.Paternity Leave
Q: What is the concept of paternity leave benefits?
A: Notwithstanding any law, rules and regulations
to the contrary, every married male employee in
the private and public sectors shall be entitled to a
paternity leave of 7 days with full pay for the first 4
deliveries of the legitimate spouse with whom he is
cohabiting.
Q: What is paternity leave?
A:
It refers to the benefits granted to a
married male employee allowing him not to report
for work for 7 days but continues to earn the
compensation therefore, on the condition that his
spouse has delivered a child or suffered
a miscarriage for purposes of enabling him to
effectively lend support to his wife in her period of
recovery and/or in the nursing of the newly‐born
child.
Q: What are the requirements in order to avail
paternity leave?
A: The male employee (Ee) applying for paternity
leave shall:
1.
2.
4.
5.
Payment of daily maternity benefits shall
be a bar to the recovery of sickness
benefits for the same compensable
period of 60 days for the same childbirth,
abortion, or miscarriage
The maternity benefits provided under
Section 14‐A shall be paid only for the
first four deliveries
6.
The SSS shall immediately reimburse the
Er of 100% of the amount of maternity
benefits advanced to the Ee by the Er
upon receipt of satisfactory proof of such
payment and legality thereof; and
7.
If an Ee should give birth or suffer
abortion or miscarriage without the
required contributions
having been
remitted for her by her Er to the SSS, or
without the latter having been previously
notified by the Er of the time of the
pregnancy, the Er shall pay to the SSS
damages equivalent to the benefits which
44
Notify his employer (Er) of the pregnancy
of his legitimate spouse and
The expected date of such delivery.
Q: What are the conditions for entitlement to
paternity leave?
A: The male Ee is;
1. Legally married to, and is cohabiting with
the woman who delivers the baby
2. Ee of private or public sector;
3. Only for the first 4 deliveries of legitimate
spouse with whom he is cohabiting; and
4. Notify his Er of the pregnancy of his
legitimate spouse and the expected date
of such delivery
Note: For purposes of this Act, delivery shall include
childbirth or any miscarriage.
Q: Jemuel is a bank employee of BPI. He is
cohabiting with Paula for straight five years with
whom he has four children. On the fifth year of
their cohabitation, Paula had her miscarriage.
Jemuel is availing himself of his paternity leave. Is
he entitled to paternity leave?
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
A:
No. Jemuel is not entitled to paternity
leave because the facts of the case only show that
he is only cohabiting with Paula. The law expressly
provides that the male must be legally married to
the woman with whom he is cohabiting as a
condition for entitlement of paternity leave. Even
assuming that Jemuel is legally married to Paula, he
cannot avail also of the paternity leave because the
law limits the deliveries only to four which include
childbirth or miscarriage. Based on the facts, it is
already the fifth delivery of the woman.
d.Parental Leave
Q: What is parental leave?
A: Leave benefits granted to a solo parent to enable
him/her to perform parental duties and
responsibilities ‐ where physical presence is
required.
In addition to leave privileges under existing laws,
parental leave of not more than 7 working days
every year shall be granted to any solo parent Ee
who has rendered service of at least 1 year. (Sec. 8)
Q: What are the conditions for entitlement of
parental leave?
A:
1. He or she must fall among those referred to as
solo parent
2. Must have the actual and physical custody of
the child or children
3. Must have at least rendered service of one
year to his or her employer
4. He or she must remain a solo parent
he/she is entrusted with the custody
of the children;
e. Nullity or annulment of marriage as
decreed by a court or by a church as
long as he/she is entrusted with the
custody of the children;
f. Abandonment of spouse for at least 1
yr;
3.
Unmarried mother/father who has
preferred to keep and rear his or her
child/children instead of:
a. having others care for them or
b. give them up to a welfare institution;
4. Any other person who solely provides:
a. parental care and
b. support to a child or children;
5. Any family member who assumes the
responsibility of head of family as a result
of the:
a. death,
b. abandonment,
c. disappearance or
d. prolonged absence of the parents or
solo parent.
Note: A change in the status or circumstance of the
parent claiming benefits under this Act, such that
he/she is no longer left alone with the responsibility of
parenthood, shall terminate his/her eligibility for these
benefits. (Sec.3)
e.Leaves for victims of violence against women
Q: What is the leave for victims of violence against
women or otherwise known as battered woman
leave?
Q: Who are those referred to as solo parent
entitled to parental leave?
A: A female employee who is a victim of violence
(physical, sexual, or psychological) is entitled to a
paid leave of 10 days in addition to other paid
leaves. (R.A. 9262, Anti‐ VAWC Act)
A: Any individual who falls under any of the ff.
categories:
6.SERVICE CHARGES
1. A woman who gives birth as a result of rape
and other crimes against chastity even
without a final conviction of the offender,
provided, That the mother keeps and
raises the child;
2.
Parent left solo or alone with the
responsibility of parenthood due to:
a. Death of spouse;
b. Detention or service of sentence of
spouse for a criminal conviction for at
least 1 yr;
c. Physical and/or mental incapacity of
spouse
d. Legal separation or de facto separation
from spouse for at least 1 yr as long as
a.Coverage and Exclusion
Q: What are service charges (SC)?
A: These are charges collected by hotels,
restaurants and similar establishments and shall be
distributed at the rate of:
COVERED Ees
MANAGEMENT
85%
15%
Equally
distributed
1.
2.
To answer for losses and
breakages and
Distributed to Ees receiving
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
45
UST GOLDEN NOTES 2011
among them
Provided, that they have worked for at least 1
month, during a calendar year. (Revised
th
Guidelines on the Implementation of the 13
Month Pay Law)
more than P2000 a month at
the
discretion
of
the
management.
Q: Who are covered Ees?
XPN:
1.
2.
3.
4.
A: GR: All Ees are covered, regardless of their
position,
designation,
employment
status,
irrespective of the method by which their wages are
paid.
Note: Applies only to hotels, restaurants and similar
establishment collecting service charges.
XPN: Managerial Ees. (Sec. 2, Rule VI, Book III, IRR)
b.Distribution
Q: When is the share of employee distributed and
paid to them?
A: Not less than once every 2 weeks or twice a
month at intervals not exceeding 16 days.
c.Integration
Q: What happens if the Service Charge is
abolished?
A: The share of the covered Ees shall be considered
integrated in their wages on the basis of the
average monthly share of each Ees for the past 12
months immediately preceding the abolition.
Note: Service charges form part of the award in illegal
dismissal cases.
7.13th MONTH PAY AND OTHER BONUSES
a.Coverage, Exclusion/ exemptions from coverage
Q: What would be your advice to your client, a
manufacturing company, who asks for your legal
opinion on whether or not the 13th Month Pay
Law covers a casual Ee who is paid a daily wage?
A: I will advise the manufacturing company to pay
the casual Ee 13th Month Pay if such casual Ee has
worked for at least 1 month during a calendar year.
The law on the 13th Month Pay provides that Ees
are entitled to the benefit of said law regardless of
their designation or employment status.
The SC ruled in Jackson Building‐Condominium
Corp. v. NLRC, G.R. No. 112546, March 13, 1996,
interpreting P.D.851, as follows: Ees are entitled to
the 13th month pay benefits regardless of their
designation and irrespective of the method by
which their wages are paid. (1998 Bar Question)
Note: An Er, may give to his Ees ½ of the required 13th
Month pay before the opening of the regular school yr.
and the other half on or before the Dec. 24.
Q: Is 13th Month Pay legally demandable?
A: Yes. It is a statutory obligation, granted to
covered Ees, hence, demandable as a matter of
right. (Sec 1, P.D. 851)
b.Nature of 13th Month Pay
th
Q: What is 13 month pay or its equivalent?
A: Additional income based on wage required by
P.D. 851 Requiring all Employers to pay their
Employees a 13th month pay which is equivalent to
1/12 of the total basic salary earned by an
employee (Ee) within a calendar year.
Q: In what form is the 13th month pay paid or
given?
A: It is given in the form of:
1.
2.
3.
4.
Q: Who are covered by P.D. 851?
A: GR: All rank‐and‐file Ees regardless of the
amount of basic salary that they receive in a
month, if their employers (Er) are not otherwise
exempted from paying the 13th month pay. Such
th
Ees are entitled to the 13 month pay
regardless of said designation of employment
status, and irrespective of the method by which
their wages are paid.
Christmas Bonus
Midyear Bonus
Profit Sharing Scheme
Other Cash bonuses amounting to not
less than 1/12 of its basic salary
Note: It must always be in the form of a legal tender.
Q: What are not proper substitutes for 13th Month
pay?
A:
1.
46
Government Ees
Household helpers
Ees paid purely on commission basis
Ees already receiving 13th month pay
Free rice
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
2.
3.
4.
Electricity
Cash and stock dividends
COLA (Sec. 3)
last 2 years, subject to the provision
of Sec. 7 of P.D. 851;
2.
Q: Concepcion Textile Co. included the OT pay,
night‐shift differential pay, and the like in the
computation of its Ees’ 13th‐month pay.
Subsequently, with the promulgation of the
decision of the SC in the case of SMC vs. Inciong
(103 SCRA 139) holding that these other monetary
claims should not be included in the computation
of the 13th month pay, Concepcion Textile Co.
sought to recover under the principle of solutio
indebiti the overpayment of the Ees’ 13th‐month
pay, by debiting against future 13th‐month
payments whatever excess amounts it had
previously made.
3.
4.
Its equivalent shall include:
a. Christmas bonus
b. Mid‐year bonus
c. Profit‐sharing
payments
and
d. Other
cash
bonuses
amounting to not less than
1/12th of the basic salary
but
5.
It shall not include:
a. cash and stock dividends,
b. COLA
c. all
other
allowances
regularly enjoyed by the
Ee, as well as non‐
monetary benefits.
6.
Ers of household helpers and persons in
the personal service of another in relation
to such workers; and
7.
Ers of those who are paid on purely
commission, boundary, or task basis, and
those who are paid a fixed amount for
performing a specific work, irrespective of
the time consumed in the performance
thereof, except where the workers are
paid on piece‐rate basis in which case the
employer shall be covered by this
issuance insofar as such workers are
concerned.(Sec 3, P.D. 851)
(1) Is the Company's action tenable?
(2) With respect to the payment of the 13th‐
month pay after the SMC ruling, what
arrangement, if any, must the Company make in
order to exclude from the 13th‐month pay all
earnings and remunerations other than the basic
pay?
A: The Company's action is not tenable. The
principle of solutio indebiti which is a civil law
concept is not applicable in labor law. (Davao Fruits
Corp. vs. NLRC, et al., G.R. No. 85073 August 24,
1993). After the 1981 SMC ruling, the High Court
decided the case of Philippine Duplicators Inc. vs.
NLRC, GR 110068, Nov. 11, 1993. Accordingly,
management may undertake to exclude sick leave,
vacation leave, maternity leave, premium pay for
regular holiday, night differential pay and cost of
living allowance. Sales commissions, however,
should be included based on the settled rule as
earlier enunciated in Songco vs. NLRC, G.R. No. L‐
50999, March 23, 1990. (1994 Bar Question)
Q: Are all Ers required to pay 13th Month Pay
under P.D. 851?
A:
GR: Yes. It applies to all Ers,
XPN:
1.
The Government and any of its political
subdivisions, including GOCCs, except
those corporations operating essentially
as
private
subsidiaries
of
the
Government;
Ers already paying their Ees 13‐month pay
or more in a calendar year of its
equivalent at the time of this issuance:
Q: What are the options of covered Ers?
A:
Distressed Ers:
a. Currently incurring substantial losses
or
b. In the case of non‐profit institutions
and organizations, where their
income, whether from donations,
contributions, grants and other
earnings from any source, has
consistently declined by more than
40% of their normal income for the
1.
2.
Pay one‐half of the 13th‐month pay
required before the opening of the
regular school year and the other half on
or before the 24th day of December of
every year.
In any establishment where a union has
been recognized or certified as the
collective bargaining agent of the Ee, the
periodicity or frequency of payment of
the 13th month pay may be the subject of
agreement.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
47
UST GOLDEN NOTES 2011
Manggagawa sa Honda, G.R. No. 145561, June
15, 2005)
Q: How are claims adjudicated?
A: Non‐payment of the 13th month pay provided by
P.D. 851 and the rules of NLRC shall be treated as
money claims cases.
XPN: Ees who are paid a guaranteed minimum
wage or commissions earned are entitled to 13th
month pay based on total earnings. (Philippine
Agricultural Commercial and Industrial Workers
Union v. NLRC, G.R. No. 107994, Aug. 14, 1995)
Q: Are the following Ees entitled to 13th month
pay?
a.
b.
c.
d.
A:
1.
Ees who are paid by results
Ees with multiple Ers
Private school teachers
Resigned or separated Ees
Ee paid by results – entitled to 13th month
pay.
Note: Ees paid a fixed or guaranteed wage
plus commission are also entitled to the
mandated 13th month pay, based on their
total earnings during the calendar year, i.e.
on both their fixed or guaranteed wage and
commission
2.
Those with Multiple Ers – Government Ees
working part time in a private enterprise,
including private educational institutions,
as well as Ees working in 2 or more
private firms, whether full or part time
th
basis, are entitled to the required 13
month pay from all their private Ers
regardless of their total earnings from
each or all their Ers.
3.
Private School Teachers, including faculty
members of universities and colleges –
entitled regardless of the number of
months they teach or are paid within a
year, if they have rendered service for at
least 1 month within a year.
4.
Resigned or Separated Ees ‐ If resigned or
separated from work before the time of
th
payment of 13 month pay, entitled to
monetary benefit in proportion to the
length of time he started working during
the calendar year up to the time of
resignation or termination of service.
th
(Pro‐rated 13 month pay)
th
Q: When does pro‐ration of 13 Month Pay apply?
A: GR: Pro‐ration of this benefit applies only in
cases of resignation or separation from work;
computation should be based on length of
service and not on the actual wage earned by
the worker (Honda Phils. v. Samahan ng
48
th
Q: Is 14 Month Pay legally demandable?
th
A: No. The granting of 14 month pay is a
management prerogative and is not legally
demandable. It is basically a bonus and is gratuitous
in nature. (Kamaya Point Hotel v. NLRC, G.R. No.
75289, Aug. 31, 1989)
c.Commissions vis‐à‐vis 13th month pay
Q: What is commission in relation to 13th month
pay?
A:
1.
The salesman’s commissions, comprising
a pre‐determined percent of the selling
price of the goods sold by each salesman,
were properly included in the term basic
salary for purposes of computing their
13th month pay.
2.
The so called commission paid to or
received by medical representatives of
BoieTakeda Chemicals or by the rank and
file Ees of Phil. Fuji Xerox were excluded
from the term basic salary because these
were paid as productivity bonuses. Such
bonuses closely resemble profit sharing,
payments and have no clear, direct,
necessary relation to the amount of work
actually done by each individual
employee.
d.CBA vis‐à‐vis 13th month pay
Q: What is CBA in relation to 13th month pay?
A: The absence of an express provision in the CBA
obligating the employer to pay the members of a
union thirteenth month pay is immaterial.
Notwithstanding therefore the absence of any
contractual agreement, the payment of a thirteenth
month pay being a statutory grant, compliance with
the same is mandatory and is deemed incorporate
in the CBA.
8.WOMEN WORKERS
a.Discrimination (Art. 135. LC); Prohibited Acts (Art.
137. LC)
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
Q: What are the unlawful acts against women Ee?
A:
1.
2.
Discrimination with respect to the terms
and conditions of employment solely on
account of sex
a. Payment of lesser compensation to a
female Ee as against a male Ee for
work of equal value
b. Favoring a male Ee with respect to
promotion, training opportunities,
study and scholarship grants on
account of gender. (Art. 135)
c. Favoring a male applicant with
respect to hiring where the
particular job can equally be handled
by a woman
d. Favoring a male Ee over a female Ee
with respect to dismissal of
personnel.
Stipulating, whether as a condition for
employment
or
continuation
of
employment:
a. That a woman Ee shall not get
married, or
b. That upon marriage, such woman Ee
shall be deemed resigned or
separated. (Art. 136)
Note: A woman worker may not be
dismissed on the ground of dishonesty for
having written ‘’single” on the space for civil
status on the application sheet, contrary to
the fact that she was married. (PT&T Co. v.
NLRC, G.R. No. 118978, May 23, 1997)
3.
4.
5.
6.
7.
Dismissing, discriminating or otherwise
prejudice a woman Ee by reason of her
being married. (Art. 136)
Denying any woman Ee benefits provided
by law. (Art. 137)
Discharge any woman for the purpose of
preventing her from enjoying any of the
benefits provided by law. (Art. 137)
Discharging such woman on account of
her pregnancy, or while on leave or in
confinement due to her pregnancy. (Art.
137)
Discharging or refusing the admission of
such woman upon returning to her work
for fear that she may again be pregnant.
(Art. 137)
Note: Discrimination in any form from pre‐
employment to post employment, including hiring,
promotion or assignment, based on the actual,
perceived or suspected HIV status of an individual is
unlawful. (Philippine AIDS Prevention and Control Act
of 1998, [R.A. 8504])
Under Sec. 2 of R.A. 9710 or the Magna Carta of
Women, the State condemns discrimination against
women in all its forms and pursues by all appropriate
means and without delay the policy of eliminating
discrimination against women in keeping with the
Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) and other
international instruments consistent with Philippine
law. The State shall accord women the rights,
protection, and opportunities available to every
member of society.
The State shall take steps to review and, when
necessary, amend and/or repeal existing laws that are
discriminatory to women within three (3) years from
the effectivity of this Act. (Sec. 12, R.A. 9710)
Q: Can an individual, the sole proprietor of a
business enterprise, be said to have violated the
Anti‐Sexual Harassment Act of 1995 if he clearly
discriminates against women in the adoption of
policy standards for employment and promotions
in the enterprise? Explain.
A: When an employer (Er) discriminates against
women in the adoption of policy standards for
employment and promotion in his enterprise, he is
not guilty of sexual harassment. Instead, the Er is
guilty of discrimination against women Ees which is
declared to be unlawful by the LC.
For an Er to commit sexual harassment, he – as a
person of authority, influence or moral ascendancy
– should have demanded, requested or otherwise
required a sexual favor from his Ee whether the
demand, request or requirement for submission is
accepted by the object of said act. (2003 Bar
Question)
Q: At any given time, approximately 90% of the
production workforce of a semiconductor
company are females. 75% of the female workers
are married and of child‐bearing years. It is
imperative that the Company must operate with a
minimum number of absences to meet strict
delivery schedules. In view of the very high
number of lost working hours due to absences for
family reasons and maternity leaves, the company
adopted a policy that it will employ married
women as production workers only if they are at
least 35 yrs of age. Is the policy violative of any
law?
A: Yes, it is violative of Art. 140 of the LC which
provides that no employer shall discriminate
against any person in respect to terms and
conditions of employment on account of his age.
(1998 Bar Question)
b.Stipulation Against Marriage (Art. 136, LC)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
49
UST GOLDEN NOTES 2011
Q: What is the no‐spouse employment policy?
A: GR:
1. Policy banning spouses from working in
the same company.
2. May not facially violate Art. 136 of the LC
but it creates a disproportionate effect
and the only way it could pass judicial
scrutiny is by showing that it is reasonable
despite
the
discriminatory
albeit
disproportionate effect.
XPN: Bona fide occupational qualification rule
(BFOQ)
Q: What is the BFOQ rule?
A: There must be a finding of any BFOQ to justify an
Ers no spouse rule. There must be a compelling
business necessity for which no alternative exist
other than the discriminating practice.
To justify a BFOQ the employer must prove two
factors:
1.
2.
That the employment qualification is
reasonably related to the essential
operation of the job involved; and
That there is a factual basis for believing
that all or substantially all persons
meeting the qualification would be
unable to properly perform the duties of
the job. (Star Paper v. Simbol, G.R. No.
164774, April 12, 2006)
Q: What is the importance of the BFOQ Rule?
Glaxo does not impose an absolute prohibition
against relationships between its Ees and those of
competitor companies. Its Ees are free to cultivate
relationships with and marry persons of their own
choosing. What the company merely seeks to avoid
is a conflict of interest between the Ee and the
company that may arise out of such relationships.
Furthermore, the prohibition forms part of the
employment contract and Tecson was aware of
such restrictions when he entered into a
relationship with Bettsy. (Duncan Asso. of
Detailman‐PTGWO v. Glaxo Wellcome Phil. Inc.,
G.R. No. 162994, Sep.17, 2004)
c.Classification of Certain Women Workers (Art.
138, LC)
Q: Who are covered under this Title?
A: Any women who is permitted or suffered to
work:
1.
2.
3.
4.
With or without compensation
In any night club, cocktail lounge,
massage
clinic,
bar
or
similar
establishment
Under the effective control or supervision
of the Er for a substantial period of time
Shall be considered as an Ee of such
establishment for purposes of labor and
social legislation.
d.Anti‐ Sexual Harrasment Act
RA 7877
Q: What is the policy of the State in enacting the
Anti‐Sexual Harassment law?
A:
1.
2.
To ensure that the Ee can effectively
perform his work
So that the no‐spouse rule will not impose
any danger to business.
Q: Tecson was employed by Glaxo as medical
representative who has a policy against Ees having
relationships against competitor’s Ees. Tecson
married Bettsy, a Branch coordinator of Astra,
Glaxo’s competitor. Tecson was transferred to
another area. Tecson did not accept such transfer.
Is the policy of Glaxo valid and reasonable so as to
constitute the act of Tecson as willful
disobedience?
A: The prohibition against personal or marital
relationships with Ees of competitors companies
upon Glaxo’s Ees is reasonable under the
circumstances because relationships of that nature
might compromise the interest of the company.
50
A: The State shall:
1.
2.
3.
4.
Value the dignity of every individual
Enhance the development of it human
resources
Guarantee full respect for human rights
and
Uphold the dignity of workers, Ee,
applicants for employment, students or
those undergoing training, instruction or
education. (Sec. 2)
Q: Who may be held liable for sexual harassment?
A: In a work, education or training‐related
environment sexual harassment may be committed
by an:
1.
2.
3.
Ee
Manager
Supervisor
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
4.
5.
6.
7.
Agent of the (Er)
Teacher, instructor, professor
Coach, trainer, or
Any other person who, having authority,
influence or moral ascendancy over
another in a work or training or education
environment:
a. Demands
b. Requests or
c. Requires
any sexual favor from the other,
regardless of whether the demand,
request
or
requirement
for
submission is accepted by the object
of R.A. 7877. (Sec. 3)
b.
c.
2.
Q: How is sexual harassment committed?
A: Generally, a person liable demands, requests, or
otherwise requires any sexual favor from the other,
regardless of whether the demand, request or
requirement for submission is accepted by the
latter.
Q: Under the Sexual Harassment Act, does the
definition of sexual harassment require a
categorical demand or request for sexual favor?
A: No. It is true that the provision calls for a
“demand, request or requirement of a sexual
favor.” But it is not necessary that the demand,
request or requirement of a sexual favor be
articulated in a categorical manner. It may be
discerned, with equal certitude, from the acts of
the offender.
Likewise, it is not essential that the demand,
request or requirement be made as a condition for
continued employment or for promotion to a
higher position. It is enough that the respondent’s
acts result in creating an intimidating, hostile or
offensive environment for the employee. (Domingo
v. Rayala, G.R. No. 155831, Feb. 18, 2008)
Q: When is sexual harassment committed?
A: Specifically:
1.
In a work‐related or employment
environment:
a. The sexual favor is made as a
condition in the hiring or in the
employment, re‐employment or
continued employment of said
individual, or in granting said
individual favorable compensation,
terms, conditions, promotions, or
privileges; or the refusal to grant the
sexual favor results in limiting,
segregating or classifying the Ee
which in a way would discriminate,
deprive or diminish employment
opportunities or otherwise adversely
affect said Ee;
The above acts would impair the Ees’
rights or privileges under existing
labor laws; or
The above acts would result in an
intimidating, hostile, or offensive
environment for the Ee.
In an education or training environment:
a. Against one who is under the care,
custody or supervision of the
offender;
b. Against one whose education,
training, apprenticeship or tutorship
is entrusted to the offender;
c. Sexual favor is made a condition to
the giving of a passing grade, or the
granting of honors and scholarships,
or the payment of a stipend,
allowance or other benefits,
privileges, or considerations; or
d. Sexual advances result in an
intimidating, hostile or offensive
environment for the student, trainee
or apprentice.
Q: What are the duties of the Er or head of office
in a work‐related, education or training
environment?
A:
1.
2.
Prevent or deter the commission of acts
of sexual harassment and
Provide the procedures for the resolution,
settlement or prosecution of acts of
sexual harassment.
Towards this end, the Er or head of office shall:
1.
Promulgate appropriate rules and
regulations in consultation with the jointly
approved by the Ees or students or
trainees, through their duly designated
representatives,
prescribing
the
procedure for the investigation or sexual
harassment cases and the administrative
sanctions therefore. (Sec. 4)
Note: Administrative sanctions shall not be
a bar to prosecution in the proper courts for
unlawful acts of sexual harassment.
The said rules and regulations issued shall
include, among others, guidelines on proper
decorum in the workplace and educational
or training institutions.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
51
UST GOLDEN NOTES 2011
2.
3.
Create a committee on decorum and
investigation of cases on sexual
harassment.
The Er or head of office, education or
training institution shall disseminate or
post a copy of this R.A. 7877 for the
information of all concerned
Q: What is the liability of the Er, head of office,
educational or training institution?
A: Ee shall be solidarily liable for damages arising
from the acts of sexual harassment committed in
the
employment,
education
or
training
environment provided:
1.
2.
The Er or head of office, educational or
training institution is informed of such
acts by the offended party; and
No immediate action is taken thereon.
(Sec. 5)
Q: Can an independent action for damages be
filed?
A: Yes. Nothing under R.A. 7877 shall preclude the
victim of work, education or training‐related sexual
harassment from instituting a separate and
independent action for damages and other
affirmative relief. (Sec. 6)
Q: What is the three‐fold liability rule in sexual
harassment cases?
A: An act of sexual harassment may give rise to civil,
criminal and administrative liability on the part of
the offender, each proceeding independently of the
others.
Q: When does the action prescribe?
A: Any action shall prescribe in 3 years.
Q: A Personnel Manager, while interviewing an
attractive female applicant for employment,
stared directly at her for prolonged periods, albeit
in a friendly manner. After the interview, the
manager accompanied the applicant to the door,
shook her hand and patted her on the shoulder.
He also asked the applicant if he could invite her
for dinner and dancing at some future time. Did
the Personnel Manager, by the above acts, commit
sexual harassment? Reason.
A: Yes, because the Personnel Manager, is in a
position to grant or not to grant a favor (a job) to
the applicant. Under the circumstances, inviting the
applicant for dinner or dancing creates a situation
52
hostile or unfriendly to the applicant's chances for a
job if she turns down the invitation. [Sec. 3(a)(3),
R.A. No. 7877, Anti‐Sexual Harassment Act]. (2000
Bar Question)
Q: In the course of an interview, another female
applicant inquired from the same Personnel
Manager if she had the physical attributes
required for the position she applied for. The
Personnel Manager replied: "You will be more
attractive if you will wear micro‐mini dresses
without the undergarments that ladies normally
wear." Did the Personnel Manager, by the above
reply, commit an act of sexual harassment?
Reason.
A: Yes. The remarks would result in an offensive or
hostile environment for the Ee. Moreover, the
remarks did not give due regard to the applicant’s
feelings and it is a chauvinistic disdain of her honor,
justifying the finding of sexual harassment
(Villarama v. NLRC, G.R. No. 106341, Sep. 2, 1994)
Q: Pedrito Masculado, a college graduate from the
province, tried his luck in the city and landed a job
as utility/maintenance man at the warehouse of a
big shopping mall. After working as a casual Ee for
6 months, he signed a contract for probationary
employment for 6 months. Being well‐built and
physically attractive, his supervisor, Mr. Hercules
Barak, took special interest to befriend him. When
his probationary period was about to expire, he
was surprised when one afternoon after working
hours, Mr. Barak followed him to the men’s
comfort room. After seeing that no one else was
around, Mr. Barak placed his arm over Pedrito’s
shoulder and softly said: “You have great potential
to become a regular Ee and I think I can give you a
favorable recommendation. Can you come over to
my condo unit on Saturday evening so we can
have a little drink? I’m alone, and I’m sure you
want to stay longer with the company.” Is Mr.
Barak liable for sexual harassment committed in a
work‐related or employment environment?
A: Yes, the elements of sexual harassment are all
present. The act of Mr. Barak was committed in a
workplace. Mr. Barak, as supervisor of Pedrito
Masculado, has authority, influence and moral
ascendancy over Masculado.
Given the specific circumstances mentioned in the
question like Mr. Barak following Masculado to the
comfort room, etc. Mr. Barak was requesting a
sexual favor from Masculado for a favorable
recommendation
regarding
the
latter's
employment. It is not impossible for a male, who is
a homosexual, to ask for a sexual favor from
another male. (2000 Bar Question)
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
9.MINOR WORKERS
a.Regulation of working hours of a child,
Employment of the child in public entertainment,
Prohibition of employing minors in certain
undertakings and in certain advertisements
Q: What are the general prohibitions?
A: GR:
1.
2.
No person under 18 years of age will be
allowed to be employed in an undertaking
which is hazardous or deleterious in
nature.
No Er shall discriminate against any
person in respect to terms and conditions
of employment on account of his age.
XPN:
A. Below 15 yrs. Old
1. The child works directly under the
sole responsibility of his parents, or
guardians who employ members of
his family, subject to the following
conditions:
a. Employment does not endanger
the child’s safety, health and
morals
b. Employment does not impair
the child’s normal dev’t
c. Er‐parent or legal guardian
provides the child with the
primary
and/or
secondary
education prescribed by the
Dept. of Education
2. The
child’s
employment
or
participation in public entertainment
or information through cinema,
theater, radio or television is
essential provided:
a. Employment
contract
is
concluded by the child’s parents
or legal guardian,
b. With the express agreement of
the child concerned, if possible,
and
c. The approval of DOLE, the
following must be complied
with:
i. The employment does not
involve advertisement or
commercials
promoting
alcoholic
beverages,
intoxicating drinks, tobacco
and its by‐products or
exhibiting violence
ii. there is a written contract
approved by DOLE
the conditions provided in
the first instance are met.
Above 15 but below 18 – may be
employed in any non‐hazardous work
Above 18 – no prohibition
iii.
B.
C.
Q: What is the duty of the Er before engaging child
into work?
A: The Er shall first secure a work permit from the
DOLE which shall ensure observance of the
requirements. (Sec. 12, R.A. 7160)
Q: What is the rule regarding the issuance of work
certificates/ permits for children at least 15 but
below 18 years of age?
A: The issuance of a DOLE Certificate to youth aged
15 to below 18 years of age is not required by law.
No employer shall deny opportunity to any such
youth applying for employment merely on the basis
of lack of work permit or certificate of eligibility for
employment. Any young person aged 15 to below
18 years of age may present copy of this DOLE
advisory to any employer, job provider, government
authority, or his/her representative when seeking
employment or anytime during employment. (DOLE
Department Advisory No. 01‐08)
Q: What is a non‐hazardous work?
A: It is any work or activity in which the Ee is not
exposed to any risk which constitutes an imminent
danger to his safety and health.
Q: What are hazardous workplaces?
A:
1. Nature of work exposes the workers to
dangerous
environmental
elements,
contaminants or work conditions
2. Workers are engaged in construction work,
logging, fire‐fighting, mining, quarrying,
blasting, stevedoring, dock work, deep‐sea
fishing, and mechanized farming
3. Workers are engaged in the manufacture or
handling of explosives and other pyrotechnic
products
4. Workers use or are exposed to heavy or
power‐driven tools
Q: You were asked by a paint manufacturing
company regarding the possible employment as a
mixer of a person, aged 17, who shall be directly
under the care of the section supervisor. What
advice would you give? Explain briefly.
A: I will advise the paint manufacturing company
that it cannot hire a person who is aged 17. Art 139
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
53
UST GOLDEN NOTES 2011
(c) of the LC provides that a person below 18 yrs of
age shall not be allowed to work in an undertaking
which is hazardous or deleterious in nature as
determined by the SLE. Paint manufacturing has
been classified by the SLE as a hazardous work.
(2002 Bar Question)
Q: What are the prohibitions on the employment
of children in certain advertisements?
A: No employment of child models in all
commercial advertisements promoting:
1.
2.
3.
4.
Violence
Alcoholic beverages
Intoxicating drinks
Tobacco and its by products
Q: A spinster school teacher took pity on one of
her pupils, a robust and precocious 12‐year old
boy whose poor family could barely afford the cost
of his schooling. She lives alone at her house near
the school after her housemaid left. In the
afternoon, she lets the boy do various chores as
cleaning, fetching water and all kinds of errands
after school hours. She gives him rice and P30.00
before the boy goes home at 7:00 every night. The
school principal learned about it and charged her
with violating the law which prohibits the
employment of children below 15 years of age. In
her defense, the teacher stated that the work
performed by her pupil is not hazardous, and she
invoked the exception provided in the Department
Order of DOLE for the engagement of persons in
domestic and household service. Is her defense
tenable? Reason?
A: No, her defense is not tenable. Under Art. 139 of
the LC on “minimum employable age”, no child
below 15 years of age shall be employed except
when he works directly under the sole
responsibility of his parents or guardian, the
provisions of the alleged DO of DOLE to the
contrary notwithstanding. A mere DO cannot
prevail over the express prohibitory provisions of
the LC. (2004 Bar Question)
Q: Determine whether the following minors
should be prohibited from being hired and from
performing their respective duties indicated
hereunder:
1. A 17‐year old boy working as miner at the
Walwadi Mining Corporation.
A: Yes, he should be prohibited from being hired
and from performing the duties of a miner because
such constitutes hazardous work under D.O. No. 04
Series of 1999. Art. 139 (c) of LC expressly prohibits
54
the employment of persons below 18 years of age
in an undertaking which is hazardous or deleterious
in nature as determined by the SLE.
2. An 11‐year old boy who is an accomplished
singer and performer in different parts of the
country.
A: No, he should not be prohibited from being hired
and from performing as a singer. Under Art. VIII Sec.
12 par. 2 of R.A. 7619 as amended by R.A. 7658, this
constitutes an exception to the general prohibition
against the employment of children below 15 years
of age, provided that the following requirements
are strictly complied with:
1.
2.
3.
The Er shall ensure the protection, health
safety and morals of the child
The Er shall institute measures to prevent
the child’s exploitation or discrimination
taking into account the system and level
of remuneration, and the duration and
arrangement of working time; and
The Er shall formulate and implement,
subject to the approval and supervision of
competent authorities, a continuing
program for training and skill acquisition
of the child. Moreover, the child must be
directly under the sole responsibility of
his parents or guardian and his
employment should not in any way
interfere with his schooling.
3. A 15‐year old girl working as a library assistant
in a girls' high school.
A: No, she should not be prohibited from working
as a library assistant because the prohibition in the
LC against employment of persons below 18 years
of age merely pertains to employment in an
undertaking which is hazardous or deleterious in
nature as identified in the guidelines issued by the
SLE working as a library assistant is not one of
undertakings identified to be hazardous under D.O.
No 04 Series of 1999.
4. A 16‐year old girl working as model promoting
alcoholic beverages.
A: Yes, she should be prohibited from working as a
model promoting alcoholic beverages. R.A. 7610
categorically prohibits the employment of child
models in all commercials or advertisements
promoting alcoholic beverages and intoxicating
drinks, among other things.
5. A 17‐year old boy working as a dealer in a
casino.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
A: Yes, he should be prohibited from working as a
dealer in casino, because Art. 140 of the LC
prohibits the employment of persons below 18
years of age in an undertaking which is hazardous
or deleterious in nature identified in the guidelines
issued by the SLE. Working as a dealer in a casino is
classified as hazardous under D.O. No. 04 Series of
1999 as it exposes children to physical,
psychological or sexual abuses. (2006 Bar Question)
-
2.
Not allowed to work between 8:00
pm – 6:00 am
At least 15 years of age but below 18
years of age – will not exceed 8 hours a
day or 40 hours a week
Not allowed to work between 10:00
pm – 6:00 am
Q: What are the worst forms of labor?
b.Act Against Child Labor (RA 9231) and Child Abuse
Law (RA 7610)
A:
1.
Q: What is child labor?
A: Any work or economic activity performed by a
child that subjects him or her to any form of
exploitation or is harmful to his or her health and
safety or physical, mental or psychosocial
development.
2.
Q: Who is a working child?
3.
A: Any child engaged as follows:
1.
2.
When the child is below 18 years of age in
a work or economic activity that is not
child labor; or
When the child is below 15 years of age:
a. In work where he/she is directly
under the responsibility of his/her
parents or legal guardian and where
only members of the child’s family
are employed; or
b. In
public
entertainment
or
information
Q: When may the State intervene in behalf of the
child?
4.
5.
All forms of slavery (Anti‐Trafficking of
Persons Act of 2003) or practices similar
to slavery such as sale and trafficking of
children, debt bondage and serfdom and
forced or compulsory labor, including
recruitment of children for use in armed
conflict;
The use, procuring, offering or exposing
of a child pornography or for
pornographic performances;
The use, procuring, offering or exposing
of a child for illegal or illicit activities,
including the production and trafficking of
dangerous drugs and volatile substances
prohibited under existing laws;
Employing child models in all commercials
or advertisements promoting alcoholic
beverages, intoxicating drinks, tobacco
and its byproducts and violence; and
Work which, by its nature or
circumstances in which it is carried out, is
hazardous or likely to be harmful to the
health, safety or morals of children.
Q: Who can file a complaint for unlawful acts
committed against children?
A:
A:
1.
2.
The parent, guardian, teacher or person
having care or custody of the child fails or
is unable to protect the child against
abuse, exploitation and discrimination; or
When such acts are committed against
the child by the said parent, guardian,
teacher or person having care and
custody over the child
Q: What is the limitation on the hours of work of a
working child?
A: If the child is:
1.
Below 15 years of age – not more than 20
hours a week and not more than 4 hours
a day
1.
2.
3.
4.
5.
6.
7.
Offended party
Parents or guardians
Ascendants or collateral relatives within
rd
the 3 degree of consanguinity
Officer, social worker or representative of
a licensed child‐caring institution
Officer or social worker of DSWD
Barangay chairman of the place where
the violation occurred, where the child is
residing or employed
At least 3 concerned, responsible citizens
where the violation occurred
Q: Which courts have jurisdiction over offenses
punishable under R.A. 9231?
A: The Family Courts shall have original jurisdiction
over all cases involving offenses punishable under
this Act
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
55
UST GOLDEN NOTES 2011
5.
Non‐assignment to a work in a
commercial, industrial or agricultural
enterprise at a wage or salary rate lower
than that provided for agricultural or non‐
agricultural workers. (Art. 145)
6. Ees under 18 years of age shall be given
opportunity for at least elementary
education. The cost of education shall be
part of the HH’s compensation, unless
otherwise stipulated. (Art 146)
7. Should be treated in a just and humane
manner. (Art. 147)
8. Not to be treated with physical violence
(Art. 147)
9. Suitable and sanitary living headquarters
as well as adequate food and medical
attendance. (Art. 148)
10. Termination of employment should be
a. upon expiration of term of
employment, or
b. based on just cause (Art. 149)
11. Indemnity for unjust termination of
service
12. Employment certification as to nature and
duration of service and efficiency and
conduct of househelper.
10.EMPLOYMENT OF HOUSEHELPERS
a.Definition
Q: What is domestic or household service?
A:
1. Services in the Ers home
2. Usually necessary or desirable
3. For the maintenance and employment
thereof
4. Includes ministering to the personal
comfort and convenience of the members
of the Ers household
5. Including services of family drivers.
Q: Who is a househelper?
A: A househelper is synonymous to domestic
servant
1. Any person, male or female;
2. Who renders services in and about the Ers
home and;
3. Services are usually necessary or Desirable
for the maintenance and enjoyment
thereof, and
4. Ministers exclusively to the personal
comfort and enjoyment of Ers family
Note: The children and relatives of a househelper who
live under the Ers roof and who share the
accommodations provided for the househelper by the
Er shall not be deemed as househelper’s if they are not
otherwise engaged as such and are not required to
perform any substantial household work. (Sec 3, Rule
XII, Book III, IRR)
The definition of a househelper cannot be interpreted
to include househelp or laundry women working in
staffhouses of a company. (APEX Mining CO., Inc., v.
NLRC, G.R. No. 94951, April 22, 1991)
b.Benefits accorded househelpers
Q: What are the rights of househelpers?
A:
1.
2.
3.
4.
56
Original contract of domestic service shall
not last for more than 2 years but it may
be renewed by the parties. (Art. 142)
Entitled to minimum wage in addition to
lodging, food, and medical attendance.
(Art. 144)
Employment contract should be reviewed
every 3 years with the end view of
improving the terms and conditions of
employment. (Art. 143)
SSS benefits for those who are receiving
at least P1,000 per month. (Art. 143)
Q: What is the minimum wage for househelpers?
A:
1. Meto Manila‐P 800 / month
2. Other Chartered Cities or First Class
Municipalities‐P 650 / month
3. In other Municipalities‐P 550 / month
Note: The minimum cash wage rates shall be paid to
the househelpers in addition to lodging, food and
medical attendance.
Q: Is there an OT Pay for househelpers?
A: No. The LC is silent on the grant of OT pay, HP,
Premium Pay and SIL to those engaged in the
domestic or household service. Moreover Art. 82 of
LC expressly excludes domestic helpers from its
coverage. (Ultra Villa Food Haus v. Geniston, G.R.
No. 120473, June 23, 1999)
Q: Erlinda worked as a cook, preparing the lunch
and merienda of the Ees of Remington Industrial
Sales Corp. She worked at the premises of the
company. When Erlinda filed an illegal dismissal
case, Mr. Tan, the managing director of Remington
Corp. claimed that Erlinda was a domestic helper,
and not a regular Ee of Remington Corp. Mr. Tan
argued that it is only when the househelper or
domestic servant is assigned to certain aspects of
the business of the Er that such househelper or
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
d. Reliefs for Unjust Termination
domestic servant may be considered as such an
employee. Is Erlinda a domestic or househelper?
Q: What are the rules for indemnity?
A: No, Erlinda is clearly not a househelper. A
“househelper” or “domestic servant” under the
Implementing Rules of the LC is one who is
employed in the Er’s home to minister exclusively
to the personal comfort and enjoyment of the Er’s
family. A househelper, domestic servant or
laundrywoman in a home or in a company
staffhouse is different in the sense that in a
corporation or a single proprietorship engaged in
business or industry or any agricultural or similar
pursuit, service is being rendered in the staffhouses
or within the premises of the business of the Er. In
such instance, they are Ees of the company or Er in
the business concerned, entitled to the privileges of
a regular Ee. The mere fact that the househelper or
domestic servant is working within the premises of
the business of the employer and in relation to or in
connection with its business, as in its staffhouses
for its guest or even for its officers and Ees,
warrants the conclusion that such househelper or
domestic servant is and should be considered a
regular Ee and not a househelper. (Remington
Industrial v. Castaneda, G.R. Nos. 169295‐96,
Nov.20, 2006)
Q: NBC has a resthouse and recreational facility in
the highlands of Tagaytay City for the use of its top
executives and corporate clients. The resthouse
staff includes a caretaker, two cooks and a
laundrywoman. All of them are reported to the
SSS as domestic or household Ees of the resthouse
and recreational facility and not of NBC. Can NBC
legally consider the caretaker, cooks and
laundrywoman as domestic Ee’s of the resthouse
and not of NBC?
A: No, they are not domestic Ees. They are NBC’s
Ees because the resthouse and recreational facility
are business facilities as they are for use of the top
executives and clients of NBC. (Traders Royal Bank
v. NLRC, G.R. No. 127864, Dec. 22. 1999). (2000 Bar
Question)
c.Termination
Q: What is the proper procedure in the
termination of a househelper?
A:
1.
If the period for household service is
fixed, neither the Er nor the househelper
may terminate the contract before the
expiration of the term except for just
cause.
2. If the househelper is unjustly dismissed, he
or she shall be paid the compensation
already earned plus that for the 15 days
by way of indemnity.
3. If the househelper leaves without
justifiable reason, he or she shall forfeit
any unpaid salary due him or her not
exceeding 15 days.
Q: When can the HH demand for employment
certification?
A: Upon the severance of the household service
relationship, the househelper may demand from
the Er a written statement of the nature and
duration of the service and his/ her efficiency and
conduct as househelper.
11.EMPLOYMENT OF HOMEWORKERS
a.Defintion
Q: Who are homeworkers?
A: They are those who perform in or about his own
home any processing or fabrication of goods or
materials, in whole or in part, which have been
furnished directly or indirectly, by an Er and sold
thereafter to the latter.
Q: Who is the Er of Homeworker?
A: Includes any person, natural or artificial who, for
his account or benefit, or on behalf of any person
residing outside the country, directly or indirectly,
or through an Ee, agent contractor, subcontractor
or any other person:
1.
A: The termination of the employment of a
househelper should be:
a.
b.
Upon expiration of the
employment, or
Based on just cause (Art. 149)
term
of
2.
Delivers or causes to be delivered, any
goods, articles or materials to be
processed or fabricated in or about a
home and thereafter to be returned or to
be disposed of or distributed in
accordance with his directions.
Sells any goods, articles or materials to be
processed or fabricated in or abut a home
and then rebuys them after such
processing or fabrication, either by
himself or through some other person.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
57
UST GOLDEN NOTES 2011
4.
b.Rights and benefits accorded homeworkers
The deduction is made at such rate that
the amount deducted does not exceed
20% of the HW’s earnings in a week.
Q: What is the duty of the Er in case he contracts
with another the performance of his work?
Q: Distinguish househelpers from homeworkers.
A: It shall be the duty of the Er to provide in such
contract that the Ees or HWs of the contractor and
the latter’s subcontractor shall be paid in
accordance with the LC.
Q: What is the liabilty of the Er if the contractor or
subcontractor fails to pay the wages or earnings of
his Ees?
A: Er shall be jointly and severally liable with the
contractor or sub‐contractor to the workers of the
latter to the extent that such work is performed
under such contract, in the same manner as if the
Ees or HWs were directly engaged by the Er.
Q: Can Homeworkers form labor organizations?
A: Yes. DO No. 5, replacing Rule XIV of the IRR Book
3 of the LC, authorizes the formation and
registration of labor organization of industrial HWs.
It also makes explicit the Ers duty to pay and remit
SSS, Philhealth and ECC premiums.
Q: What are the prohibitions against homework?
A: No homework shall be performed on:
1.
2.
3.
Explosives, fireworks and similar articles;
Drugs and poisons; and
Other articles, the processing of which
requires exposure to toxic substances.
(Sec. 13, Rule XIV, Book III, IRR)
c.Conditions for deduction from homeworker’s
earnings
Q: Can the Er make deductions on homeworker’s
earnings?
A: GR: No Er, contractor or subcontractor shall
make any deduction from the HWs earnings
for the value of materials which have been lost,
destroyed, soiled or otherwise damage.
XPN: Unless the ff. conditions are met:
1. The HW is clearly shown to be responsible
for the loss or damage
2. The Ee is given reasonable opportunity to
show cause why deductions should not be
made;
3. The amount of such deduction is fair and
reasonable and shall not exceed the
actual loss or damages; and
58
A:
HOUSEHELPERS
Minister to the personal
needs and comfort of his
Er in the latter’s home
HOMEWORKERS
Performs in or about his
own home any processing
or fabrication of goods or
materials, in whole or in
part, which have been
furnished directly or
indirectly, by an Er and
sold thereafter to the
latter.
Q: Josie is the confidential secretary of the
Chairman of the Board of the bank. She is
presently on maternity leave. In an arrangement
where the Chairman of the Board can still have
access to her services, the bank allows her to work
in her residence during her leave. For this purpose,
the bank installed a fax machine in her residence,
and gave her a cellphone and a beeper. Is Josie a
homeworker under the law? Explain.
A: No, she is actually an office worker. She is not an
industrial homeworker who accepts work to be
fabricated or processed at home for a contractor,
which work, when finished, will be returned to or
repurchased by said contractor. (Art. 155, LC) (2000
Bar Question)
12.APPRENTICES AND LEARNERS
a.Apprentices
Q: Who is an apprentice?
A: Any worker who is covered by a written
apprenticeship agreement with an individual
employer or any of the entities recognized under
the LC.
Q: What is apprenticeship?
A: It is practical training on the job supplemented
by related theoretical instruction.
Q: What is an apprenticeable occupation?
A: That which requires more than 3 months of
practical training with theoretical instruction
Q: What is on the job training (OJT)?
A: It is practical work experience through actual
participation in productive activities given to or
acquired by an apprentice.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
Q: What are highly technical industries?
Q: What is the employment status of apprentices?
A: Those which are engaged in the application of
advanced technology.
A: They are contractual workers whose length of
service depends on the term provided for in the
apprenticeship agreement. Thus, the employer is
not obliged to employ the apprentice after the
completion of his training.
Q: What are related theoretical instructions?
A: Technical information based on apprenticeship
standards approved by the Bureau.
Note: Prior approval by TESDA (formerly DOLE) of the
proposed apprenticeship program is a condition sine
qua non. Otherwise, apprentice becomes a regular Ee.
(Nitto Enterprises v. NLRC, G.R. No. 114337, Sep. 29,
1995).
Q: What are the qualifications of an apprentice?
Q: What is the period of apprenticeship?
A: Must not exceed 6 months:
1.
2.
A:
1.
At least 15 years of age
Note: Those below 18 years of age shall not
work in hazardous occupations
2.
3.
4.
5.
Physically fit for the occupation
Possess vocational aptitude and capacity
Possess:
a. The ability to comprehend, and
b. Follow oral and written instructions
The
company
must
have
an
apprenticeship program duly approved by
the DOLE.
Note: Trade and industry associations may
recommend to the SLE appropriate educational
requirements for different occupations.
Q: When is an occupation deemed hazardous?
Q: What is the status of an apprentice hired after
such term?
A: He is deemed a regular Ee. He cannot be hired as a
probationary Ee since the apprenticeship is deemed
the probationary period.
Q: What is the wage rate of an apprentice?
A: Start at not less than 75% of the statutory
minimum wage for the 1st 6 months (except OJT);
thereafter, shall be paid in full minimum wage,
including the full COLA.
Note: GR: Apprenticeship programs shall be primarily
voluntary
A:
1.
2.
3.
4.
Nature of work exposes worker to
dangerous environmental elemental
contaminants or work conditions
Workers are engaged in construction
work, logging, firefighting, mining,
quarrying, blasting, stevedoring, deep‐sea
fishing, and mechanized farming
Workers are engaged in the manufacture
or handling of explosives and other
pyrotechnic products
Workers use, or are exposed to heavy or
power‐driven machinery or equipment.
Q: Who may employ apprentices?
A:
1.
2.
Only employers in highly technical
industries and
Only in apprenticeable occupations
approved by SLE
2 months/400 hours: Trades or occupations
which normally require 1 year or more for
proficiency
1 month/200 hours: Occupations and jobs
which require more than 3 months but less
than 1 year for proficiency. (Sec. 19, Rule VI,
Book II, IRR)
XPN: Compulsory apprenticeship:
1. National
security
or
economic
development so demand, the President
may require compulsory training
2. Services of foreign technicians are
utilized by private companies in
apprenticeable trades.
Q: What are the rules regarding apprenticeship
agreements?
A: Apprenticeship agreements, including the wage
rates of apprentices, shall:
1.
2.
3.
Conform to the rules issued by SLE.
The period of apprenticeship shall not
exceed 6 months.
Apprenticeship agreements providing for
wage rates below the legal minimum
wage, which in no case shall start below
75% of the applicable min. wage, may be
entered into only in accordance with
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
59
UST GOLDEN NOTES 2011
4.
apprenticeship programs duly approved
by the SLE.
The DOLE shall develop standard model
programs of apprenticeship. (Sec. 18, Rule
VI, Book II, IRR)
Q: Who signs the apprenticeship agreement?
A: Every apprenticeship agreement shall be signed
by:
1.
2.
3.
The employer or his agent, or
An authorized representative of any of
the recognized organizations, associations
or groups, and
The apprentice.
A: Gomburza College is not liable for the acts of
Padilla because there is no Er‐Ee relationship
between them. As provided in the Rules and
Regulations Implementing the LC "there is no Er‐Ee
relationship between students on one hand, and
schools, colleges, or universities on the other,
where students work with the latter in exchange for
the privilege to study free of charge, provided the
students are given real opportunity, including such
facilities as may be reasonable and necessary to
finish their chosen courses under such
arrangement." (1997 Bar Question)
Q: Who may
agreement?
terminate
an
apprenticeship
A:
Q: Who will sign if the apprentice is a minor?
1.
A: An apprenticeship agreement with a minor shall
be signed in his behalf by:
2.
1.
2.
His parent or guardian, or if the latter is
not available,
An authorized representative of the
DOLE.
Q: May apprentices
compensation?
be
hired
without
Either party may terminate an agreement
after the probationary period but only for
a valid cause.
It may be initiated by either party upon
filing a complaint or upon DOLE’s own
initiative.
Q: Who may appeal the decision of the authorized
agency of the DOLE?
A: It may be appealed by any aggrieved person to
the SLE within 5 days from receipt of the decision.
A: Required:
Note: The decision of the SLE shall be final and
executory.
1.
2.
3.
4.
Q: What is Exhaustion of Administrative Remedies
(EAR)?
By school
By the training program curriculum
For Graduation
For board examinations
Q: What are the rules on working scholars?
A: There is no Er‐Ee relationship between students
on one hand, and schools, where there is written
agreement between them under which the former
agree to work for the latter in exchange for the
privilege to study free of charge. The student is not
considered an Ee. (Sec. 14, Rule IX, Book III, IRR)
Q: Padilla entered into a written agreement with
Gomburza College to work for the latter in
exchange for the privilege of studying in said
institution. His work was confined to keeping clean
the lavatory facilities of the school. One school
day, he got into a fist fight with a classmate,
Monteverde, as a result of which the latter
sustained a fractured arm. Victor filed a civil case
for damages against him, impleading Gomburza
College due to the latter's alleged liability as his Er.
Under the circumstances, could Gomburza College
be held liable by Victor Monteverde as an Padilla’s
Er?
60
A: It is a condition precedent to the institution of
action. (Sec. 32b, Rule VI, Book II, IRR)
Q: How is the principle of Exhaustion of
Administrative Remedies applied in case of breach
of apprenticeship agreement?
A: No person shall institute any action for the
enforcement of any apprenticeship agreement or
damages for breach of any such agreement, unless
he has exhausted all available administrative
remedies.
Q: Who shall settle differences arising out of
apprenticeship agreement?
A: The plant apprenticeship committee shall have
the initial responsibility for settling differences
arising out of apprenticeship agreement. (Sec. 32b,
Rule VI, Book II, IRR)
Q: What is the procedure for the termination of
apprenticeship?
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
A: The party terminating shall:
1.
2.
3.
Serve a written notice on the other at
least 5 days before actual termination,
Stating the reason for such decision; and
A copy of said notice shall be furnished
the Apprenticeship Division concerned.
b.Learners
Q: Who are learners?
A: Only employers in semi‐skilled and other
industrial
occupations
which
are
non‐
apprenticeable.
Q: What is the status of learners who have been
allowed or suffered work during the first 2
months, if training is terminated by the Er before
the end of the stipulated period through no fault
of the learner?
A: They are deemed regular employees. (Sec. 4,
Rule VII, Book II, IRR)
A:
1.
2.
3.
4.
5.
They are persons hired as trainees in
semi‐skilled
and
other
industrial
occupations
Which are non‐apprenticeable and
Which may be learned through practical
training on the job in a relatively short
period of time
Which shall not exceed 3 months
Whether or not such practical training is
supplemented by theoretical instructions.
(Sec. 1a, Rule VII, Book II, IRR)
Q: When may learners be employed?
A:
1.
2.
3.
When no experienced worker is available
It is necessary to prevent curtailment of
employment opportunities; and
Employment does not create unfair
competition in terms of labor costs or
impair or lower working standards.
Q: What is a learnership agreement?
A: Any employer desiring to employ learners shall
enter into a learnership agreement with them,
which agreement shall include:
1.
2.
3.
4.
The names and addresses of the learners;
The duration of the learnership period,
which shall not exceed 3 months;
The wages or salary rates of the learners
which shall begin at not less than 75% of
the applicable minimum wage; and
A commitment to employ the learners if
they so desire, as regular employees upon
completion of the learnership.
Q: What is the qualification of a learner?
A: Must be at least 15 years of age.
c.Distinctions between Learnership and
Apprenticeship
Q: Distinguish Learnership from Apprenticeship.
A:
Learnership
Apprenticeship
Nature
Training on the job in semi‐
skilled and other industrial
occupation or trades which
are non‐apprenticeable
and which may be learned
thru practical training on
the job in a relatively short
period of time.
Training in trades which
are apprenticeable, that
is, practical training on
the job supplemented
by related theoretical
instruction for more
than 3 months.
Duration of training
Min: 3 months
Max: 6 months
Commitment to employ
With commitment to
employ the learner as a
No commitment to hire
regular Ee if he desires
upon completion of
learnership
In case of pretermination of contract
Considered a regular Ee if
pre‐termination occurs
Worker not considered
after 2 months of training
as regular employee.
and the dismissal is
without fault of the
learner.
Coverage
Highly technical
Semi‐skilled/Indus‐trial
industries and only in
occupations
industrial occupation
There is a list of learnable
No list
trades by TESDA
Written agreement
Require Learnership
Requires Apprenticeship
Agreement
Agreement
Max: 3 months
Note: Those below 18 years of age shall not work in
hazardous occupations.
Q: Who may employ learners?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
61
UST GOLDEN NOTES 2011
13.HANDICAPPED WORKERS (RA 9277)
13.
a.Definition
disability he can still efficiently perform his work, he
cannot be classified as handicapped; he would be
considered a qualified disabled worker entitled to the
same treatment as qualified able‐bodied workers.
Q: Who are handicapped workers (HW)?
A: Those whose earning capacity is impaired by:
1.
2.
3.
4.
5.
6.
Physical deficiency
Age
Injury
Disease
Mental deficiency
Illness
b.Rights of disabled workers
Q: What are the rights and privileges of disabled
workers?
A:
1.
2.
Q: What is the duration of the employment period
of handicapped workers?
3.
4.
A: There is no minimum or maximum duration. It
depends on the agreement but it is necessary that
there is a specific duration stated.
5.
Equal opportunity for employment
Sheltered employment (the gov’t shall
endeavour to provide them work if suitable
employment for disabled persons cannot
be found through open employment)
Apprenticeship
Vocational rehabilitation (means to develop
the skills and potentials of disabled workers
and enable them to compete in the labor
market)
Vocational guidance and counselling
Q: May handicapped workers be hired as
apprentices or learners?
c.Prohibitions on discrimination against disabled
persons
A: Yes, if their handicap is not such as to effectively
impede the performance of job operations in the
particular occupations for which they are hired.
(Art. 81)
Q: What is the prohibition on discrimination
against disabled workers?
Q: Can a handicapped workers acquire the status
of a regular Ee?
A: Yes, if work is usually or necessarily or desirable
to the business. (Bernardo v. NLRC, G.R No.
122917, July 12, 1999)
A: No disable person shall be denied access to
opportunities for suitable employment. A qualified
disabled employee 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.
A: Employers in all industries. Provided, the
handicap is not such as to effectively impede the
performance of job operations in the particular
occupations for which they are hired
Five percent (5%) of all casual emergency and
contractual positions in the Departments of Social
Welfare and Development; Health; Education,
Culture and Sports; and other government
agencies, offices or corporations engaged in social
development shall be reserved for disabled
persons.
Q: When can handicapped workers be employed?
d.Incentives for employers
Q: Who may employ handicapped workers?
A:
1.
2.
When their employment is necessary to
prevent curtailment of employment
opportunities and
When it will not create unfair competition
in labor costs or lower working standards.
(Art. 79)
Q: Does the mere fact that a worker has a disability,
make him a handicapped worker?
A: No, because his disability may not impair his
efficiency or the quality of his work. If despite his
62
Q: What are the incentives provided for employers
in employing disabled workers?
A: 1. Entitled to an additional deduction, from their
gross income, equivalent to twenty‐five percent
(25%) of the total amount paid as salaries and
wages to disabled persons: Provided, however, That
such entities present proof as certified by the
Department of Labor and Employment that
disabled persons are under their employ: Provided,
further, That the disabled employee is accredited
with the Department of Labor and Employment and
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
the Department of Health as to his disability, skills
and qualifications
2. Private entities that improve or modify their
physical facilities in order to provide reasonable
accommodation for disabled persons shall also be
entitled to an additional deduction from their net
taxable income, equivalent to fifty percent (50%) of
the direct costs of the improvements or
modifications
Q: Distinguish handicapped from disabled?
A:
Handicapped
Disabled
(Differently Abled)
Earning capacity is
impaired by age, or
physical or mental
deficiency or injury.
Refers to all suffering from
restriction of different abilities
as a result of mental, physical
or sensory impairment to
perform an activity in the
manner or within range
considered normal for a
human being.
Covers only workers.
Covers all activities or
endeavors.
Basis: loss/impairment
of earning capacity.
Basis: range of activity which
is normal for a human
being.
Loss due to injury or
physical or mental
defect or age.
Restriction due to impairment
of mental/physical/ sensory
defect .
If hired, entitled to 75%
of minimum wage.
Subject to definite
periods of
employment.
Employable only when
necessary to prevent
curtailment of
employment
opportunity.
If qualified, entitled to all
terms and conditions as
qualified able‐bodied person.
No restrictions on
employment.
Must get equal opportunity
and no unfair competition.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
63
UST GOLDEN NOTES 2011
D. TERMINATION OF EMPLOYMENT
1.EMPLOYER‐EMPLOYEE RELATIONSHIP
Q: What determines the
employment relationship?
existence
of an
A: It is determined by law and not by contract.
Whether or not an Er‐Ee relationship exists
between the parties is a question of fact. In this
regard, the findings of the NLRC are accorded not
only respect but finality if supported by evidence.
Note: Taxi or jeepney drivers under the “boundary”
system are Ee’s of the taxi or jeepney
owners/operators; so also the passenger bus drivers
and conductors. (Jardin vs. NLRC and Goodman Taxi,
G.R. No. 119268, Feb. 23, 2000)
Q: The employment contract stipulates that there
is no Er‐Ee relationship between the parties. Is
that valid?
A: No. The existence of an Er‐Ee relation is a
question of law and being such, it cannot be made
the subject of agreement. (Tabas v. California
Manufacturing Co., G.R. No. L‐80680, Jan. 26, 1989)
Q: Banco de Manila and the Ang Husay Janitorial
and Pest Control Agency entered into an
Independent Contractor Agreement with the usual
stipulations: specifically, the absence of Er‐Ee
relationship, and the relief from liability clauses.
Can the bank, as a client, and the agency, as an
independent contractor, stipulate that no Er‐Ee
relationship exists between the bank and the Ees
of the Agency who may be assigned to work in the
Bank? Reason.
A: Yes, they can stipulate provided the relationship
is job contracting. However the stipulation cannot
prevail over the facts and the laws. The existence of
Er‐Ee relationship is determined by facts and law
and not by stipulation of the parties. (Insular Life
Assurance Co.. Ltd. v. NLRC, G.R. No. 119930, March
12,1998)
Q: ASIA executed a 1‐year contract with the Baron
Hotel (BARON) for the former to provide the latter
with 20 security guards to safeguard the persons
and belongings of hotel guests, among others. The
security guards filled up Baron application form
and submitted the executed forms directly to the
Security Department of Baron. The pay slips of the
security guards bore BARON's logo and showed
that Baron deducted therefrom the amounts for
SSS premiums, medicare
contributions and
withholding taxes. Assignments of security guards,
who should be on duty or on call, promotions,
64
suspensions, dismissals and award citations for
meritorious services were all done upon approval
by BARON's chief security officer. After the
expiration of the contract with ASIA, BARON did
not renew the same and instead executed another
contract for security services with another agency.
ASIA placed the affected security guards on
"floating status" on "no work no pay" basis.
Having been displaced from work, the ASIA
security guards filed a case against the BARON for
illegal dismissal, overtime pay, minimum wage
differentials, vacation leave and sick leave
benefits, and 13th month pay. BARON denied
liability alleging that ASIA is the employer of the
security guards and therefore, their complaint for
illegal dismissal and payment of money claims
should be directed against ASIA. Nevertheless,
BARON filed a Third Party Complaint against ASIA.
Is there an Er‐Ee relationship between the BARON,
on one hand, and the ASIA security guards, on the
other hand? Explain briefly.
A: As a general rule, the security guards of a private
security guard agency are the employees of the
latter and not of the establishment that has entered
into a contract with the private security guard
agency for security services. But under the facts in
the question, Baron Hotel appear to have hired the
security guards, to have paid their wages, to have
the power to promote, suspend or dismiss the
security guards and the power of control over
them, namely, the security guards were under
orders of Baron Hotel as regard their employment.
Because of the above‐mentioned circumstances,
Baron Hotel is the Er of the security guards.
Q: Assuming that ASIA is the Er, is the act of ASIA
in placing the security guards on "floating status"
lawful? Why?
A: It is lawful for a private security guard agency to
place its security guard on a "floating status" if it
has no assignment to give to said security guards.
But if the security guards are placed on a "floating
status" for more than 6 months, the security guards
may consider themselves as having been dismissed.
(1999 Bar Question)
Q: Lacson was one of more than 100 Ees who were
terminated from employment due to the closure
of LBM Construction Corporation. LBM was a sister
company of Lastimoso Construction, Inc. and RL
Realty & Dev’t Corp. All 3 entities formed what
came to be known as the Lastimoso Group of
Companies. The 3 corporations were owned and
controlled by members of the Lastimoso family;
their incorporators and directors all belonged to
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
the Lastimoso family. The 3 corporations were
engaged in the same line of business, under one
management, and used the same equipment
including manpower services. Lacson and his co‐
Ees filed a complaint with the Labor Arbiter
against LBM, RL Realty and Lastimoso Construction
to hold them jointly and severally liable for
backwages and separation pay. Lastimoso
Construction, Inc. RL Realty & Development
Corporation interposed a Motion to Dismiss
contending that they are juridical entitles with
distinct and separate personalities from LBM
Construction Corporation and therefore, they
cannot be held jointly and severally liable for the
money claims of workers who are not their Ees.
Rule on the motion to dismiss. Should it be
granted or denied? Why?
A: It is very clear that even if LBM Construction
company, Lastimoso Construction Company, Inc.
and RL Realty & Dev’t Corp. all belong to the
Lastimoso family and are engaged in the same line
of business under one management and used the
same equipment including manpower services,
these corporations were separate juridical entities.
Thus, only the LBM Construction Corp. is the Er of
Teofilo Lacson. The other corporation do not have
any Er‐Ee relations with Lacson. The case in
question does not include any fact that would
justify piercing the veil of corporate fiction of the
other corporations in order to protect the rights of
workers. In a case (Concept Builders, Inc. v. NLRC,
G.R. No. 108734, May 29, 1996) the SC ruled that it
is a fundamental principle of corporation law that a
corporation is an entity separate and distinct from
its stockholders and from other corporations to
which it may be connected. But this separate and
distinct personality of a corporation is merely a
fiction created by law for convenience and to
promote justice. So, when the notion of separate
juridical personality is used to defeat public
convenience, justify wrong, protect fraud or defend
crime, or is used as a device to defeat the labor
laws, this separate personality of the corporation
maybe disregarded or the veil of corporate fiction
pierced. (1999 Bar Question)
a.Four‐ fold test
Q: What factors determine the existence of an Er‐
Ee relationship?
A: The “four–fold test”:
1.
2.
3.
Selection and engagement
employee;
Payment of wages;
Power of dismissal; and
of
the
4.
Power of control. (The Labor Code with
Comments and Cases 2007, Azucena, Vol
I, p.158)
Q: What is control test?
A: The person for whom the services are performed
reserves a right to control not only the end to be
achieved but also the means to be used in reaching
such end.
Note: However, in certain cases the control test is not
sufficient to give a complete picture of the relationship
between the parties, owing to the complexity of such a
relationship where several positions have been held by
the worker. The better approach is to adopt the two‐
tiered test. (Francisco vs. NLRC, G.R. No. 170087, Aug.
31, 2006)
Q: Genesis entered into a Career’s Agent
Agreement with EmoLife Insurance Company, a
domestic corporation engaged in insurance
business. In the Agreement, it provides that the
agent is an independent contractor and nothing
therein shall be construed or interpreted as
creating an employer‐ employee relationship. It
further provides that the agent must comply with
three requirements: (1) compliance with the
regulations and requirements of the company; (2)
maintenance of a level of knowledge of the
company's products that is satisfactory to the
company; and (3) compliance with a quota of new
businesses. However, EmoLife insurance company
terminated Genesis’ services. Genesis filed an
illegal dismissal complaint alleging therein that an
employer‐employee relationship exists and that he
was illegally dismissed. Is he an employee of the
insurance company?
A: Genesis is not an employee of EmoLife Insurance
Company. Generally, the determinative element is
the control exercised over the one rendereing the
service. The concept of “control” in Labor Code has
to be compared and distinguished with “control”
that must necessarily exist in a principal‐agent
relationship. The employer controls the employee
both in the results and in the means and manner of
achieving this result. The principal in an agency
relationship, e.g. insurance agent, on the other
hand, also has the prerogative to exercise control
over the agent in undertaking the assigned task
based on the parameters outlined in the pertinent
laws. In the present case, the Agreement fully
serves as grant of authority to Genesis as EmoLife’s
insurance agent. This agreement is supplemented
by the company’s agency practices and usages, duly
accepted by the agent in carrying out the agency.
Foremost among these are the directives that the
principal may impose on the agent to achieve the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
65
UST GOLDEN NOTES 2011
assigned tasks, to the extent that they do not
involve the means and manner of undertaking
these tasks. The law likewise obligates the agent to
render an account; in this sense, the principal may
impose on the agent specific instructions on how an
account shall be made, particularly on the matter of
expenses and reimbursements. To these extents,
control can be imposed through rules and
regulations without intruding into the labor law
concept of control for purposes of employment.
(Gregorio Tongko v. ManuLife Insurance Company,
G.R. No. 167622, Jun. 29, 2010)
b.Two‐ tiered Test
just cause, when he fails to qualify as a regular Ee in
accordance with reasonable standards prescribed
by the Er.
Q: Michelle Miclat was employed on a
probationary basis as marketing assistant by
Clarion Printing House but during her employment
she was not informed of the standards that would
qualify her as a regular employee (Ee). 30 days
after, Clarion informed Miclat that her
employment contract had been terminated
without any reason. Miclat was informed that her
termination was part of Clarion’s cost‐cutting
measures. Is Miclat considered as a regular Ee and
hence entitled to its benefits?
Q: What is the two‐tiered test?
A:
1.
2.
The putative Er’s power to control the Ee
with respect to the means and methods
by which the work is to be accomplished;
and
The underlying economic realities of the
activity or relationship.
Note: This two‐tiered test would provide us with a
framework of analysis, which would take into
consideration the totality of circumstances
surrounding the true nature of the relationship
between the parties. This is especially appropriate in
this case where there is no written agreement or
terms of reference to base the relationship on and due
to the complexity of the relationship based on the
various positions and responsibilities given to the
worker over the period of the latter’s employment.
(Francisco vs. NLRC, G.R. No. 170087, Aug. 31, 2006)
Q: What is the proper standard for economic
dependence?
A: The proper standard is whether the worker is
dependent on the alleged employer for his
continued employment in that line of business
c.Probationary employment
Q: What is probationary employment?
A: Employment where the employee (Ee), upon his
engagement:
1.
2.
3.
Is made to undergo a trial period
During which the Er determines his fitness
to qualify for regular employment,
Based on reasonable standards made
known to the Ee at the time of
engagement. (Sec 6, Rule I, Book VI, IRR)
Note: The services of an Ee who has been engaged
on probationary basis may be terminated only for
66
A: Yes. Probationary employment shall be governed
by the following rules: (d) In all cases of
probationary employment, the Er shall make known
to the Ee the standards under which he will qualify
as a regular Ee at the time of his
engagement. Where no standards are made known
to the Ee at that time, he shall be deemed a regular
Ee”. In the case at bar, she was deemed to have
been hired from day one as a regular Ee. (Clarion
Printing House Inc., vs. NLRC, G.R. No. 148372, June
27, 2005)
Q: What are the characteristics of probationary
employment?
A:
1.
2.
3.
It is an employment for a trial period;
It is a temporary employment status prior
to regular employment;
It arises through a contract with the
following elements:
a. The employee (Ee) must learn and
work at a particular type of work
b. Such work calls for certain
qualifications
c. The probation is fixed
d. The Er reserves the power to
terminate during or at the end of the
trial period
e. And if the Ee has learned the job to
the satisfaction of the Er, he
becomes a regular Ee.
Q: What is
employment?
the
period
of
probationary
A: GR: It shall not exceed 6 months.
XPNs:
1. Covered by an apprenticeship or
learnership agreement stipulating a
different period
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
2.
3.
4.
5.
Voluntary
agreement
of
parties
(especially when the nature of work
requires a longer period)
The Er gives the(Ee a second chance to
pass the standards set. (Mariwasa
Manufacturing, Inc. v. Leogardo, Jr.,G.R.
No. 74246, Jan. 26, 1989)
When the same is required by the nature
of the work, e.g. the probationary period
set for professors, instructors and
teachers is 3 consecutive years of
satisfactory service pursuant to DOLE
Manual of Regulations for Private Schools.
When the same is established by
company policy.
Note: Period of probation shall be reckoned from the
date the Ee actually started working. (Sec.6 [b], Rule I,
Book VI, IRR)
After the lapse of the probationary period (6 months),
Ee becomes regular.
Probationary Ees may be dismissed before end of the
probationary period.
Q: May the Er and Ee validly agree to extend the
probationary period beyond 6 months?
A: Yes. Such an extension may be lawfully agreed
upon, despite the restrictive language of Art. 281. A
voluntary agreement extending the original
probationary period to give the Ee a second chance
to pass the probation standards constitutes a lawful
exception to the statutory limit. (Mariwasa
Manufacturing, Inc. v. Leogardo, Jr., G.R. No. 74246,
Jan.26, 1989)
According to Alcira’s computation, since Art. 13 of
the Civil Code provides that 1 month is composed
of 30 days, 6 months totaling 180 days, then his
th
180 day would fall on Nov. 16, ‘96 making him a
regular Ee before his termination. Is the
contention of the petitioner in the computation of
6 months correct?
A: No, the computation of the 6‐month
probationary period is reckoned from the date of
appointment up to the same calendar date of the
th
6 month following. In short, since the number of
days in each particular month was irrelevant, Alcira
was still a probationary Ee when Middleby opted
not to “regularize” him on Nov. 20, 1996. (Alcira v.
NLRC, G.R. No. 149859, June 9, 2004)
Note: In Mitsubishi Motors v. Chrysler Phils. Labor
Union, G.R. No. 148738, June 29, 2004, the SC ruled in
this wise:
“Applying Art. 13 of the Civil Code, the probationary
period of 6‐months consists of the 180 days. This is in
conformity with par.1, Art. 13 of the Civil Code. The
number of months in the probationary period, 6,
should then be multiplied by the number of days
within a month, 30; hence, the period of 180 days. As
clearly provided for the in last par. of Art. 13, in
computing a period, the first day shall be excluded and
the last day included. Thus, the 180 days commenced
on May 27, 1996, and ended on Nov. 23, 1996. The
termination letter dated Nov. 25, 1996 was served on
Paras only on Nov. 26, 1996. He was, by then already a
regular Ee of the company under Art. 281 of the LC.”
How to resolve the conflict between the Alcira and
Mitsubishi Motors case
1.
Note: By voluntarily agreeing to such an extension, the
Ee waived any benefit attaching to the completion of
the period if he still failed to make the grade during
the period of extension. (Mariwasa Mfg. Inc. v. Hon.
Leogardo, G.R. No. 74246, Jan.26, 1989)
2.
Q: Is double or successive probation allowed?
A: No. The evil sought to be prevented is to
discourage scheming employers from using the
system of double or successive probation to
circumvent the mandate of the law on
regularization and make it easier for them to
dismiss their employees. (Holiday Inn Manila v.
NLRC, G.R. No. 109114, Sep. 14, 2003)
Q: Middleby Phils. Corp. hired Alcira as eng’g
support services supervisor on a probationary
basis for 6 months. Apparently unhappy with
Alcira’s performance, Middleby terminated his
services. Alcira contends that he was already a
regular employee (Ee) when he was terminated.
Statutory Construction – The latter case
prevails (Mitsubishi Motors); or
Rule more favorable to the Ee – use the
computation which would amount to
granting the subject Ee regular employment
status (based on Constitutional and
statutory provisions for the liberal
interpretation of labor laws)
Q: What is the purpose of the period?
A: To afford the employer an opportunity to
observe the fitness of a probationary employee at
work.
Q: In what instances is a probationary employee
(Ee) deemed a regular Ee?
A:
1.
If he is allowed to work after a
probationary period. (Art. 281)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
67
UST GOLDEN NOTES 2011
2.
If no standards, under which he will
qualify as a regular Ee, are made known
to him at the time of his engagement.
(Sec. 6 [d], Rule I, Book VI, IRR)
Q: What are the grounds for terminating
probationary employment?
A:
1.
2.
Just/authorized causes
When he fails to qualify as a regular Ee in
accordance with reasonable standards
made known by the employer (Er) to the
Ee at the time of his engagement (ICMC v.
NLRC, G.R. No. 72222, Jan. 30, 1989)
Note: While probationary Ees do not enjoy permanent
status, they are afforded the security of tenure
protection of the Constitution. Consequently, they
cannot be removed from their positions unless for
cause. Such constitutional protection, however, ends
upon the expiration of the period stated in their
probationary contract of employment. Thereafter, the
parties are free to renew the contract or not. (CSA v.
NLRC, G.R. No. 87333, Sep. 6, 1991)
Q: What are the limitations on the employer’s
(Er’s) power to terminate a probationary
employment contract?
A:
1.
2.
3.
4.
The power must be exercised in
accordance with the specific req’ts of the
contract
If a particular time is prescribed, the
termination must be within such time and
if formal notice is required, then that
form must be used
The Er’s dissatisfaction must be real and
in good faith, not feigned so as to
circumvent the contract or the law
There must be no unlawful discrimination
in the dismissal
Note: The probationary employee is entitled to
procedural due process prior to dismissal from service.
Q: R.L. Cruz was employed as gardener by Manila
Hotel on “probation status” effective Sep. 22, ‘76.
The appointment signed by Cruz provided for a 6
month probationary period. On Mar. 20, ‘77, or a
day before the expiration of the probationary
period, Cruz’s was promoted to lead gardener
position. On the same day Cruz’ position was
“abolished” by Manila Hotel allegedly due to
economic reverses or business recession, and to
salvage the enterprise from imminent danger of
collapse. Was Cruz illegally dismissed?
68
A: Yes, there is no dispute that as a probationary
employee (Ee), Cruz had but limited tenure.
Although on probationary basis, however, Cruz still
enjoys the constitutional protection on security of
tenure. During his tenure of employment, therefore,
or before his contract expires, Cruz cannot be
removed except for cause as provided for by law.
What makes Cruz’ dismissal highly suspicious is that
it took place at a time when he needs only but a
day to be eligible as a regular Ee. That he is
competent finds support in his being promoted to a
lead gardener in so short span of less than 6
months. By terminating his employment or
abolishing his position with but only one day
remaining in his probationary appointment, the
hotel deprived Cruz of qualifying as a regular Ee
with its concomitant rights and privileges. (Manila
Hotel Corp. v. NLRC, G.R. No. L‐53453, Jan. 22,
1986)
Q: Colegio San Agustin (CSA) hired the Gela Jose as
a grade school classroom teacher on a
probationary basis for SY ‘84 – ‘85. Her contract
was renewed for SY’s ‘85‐‘86 and ‘86‐‘87. On Mar.
24, ‘87, the CSA wrote the Gela that "it would be
in the best interest of the students and their
families that she seek employment in another
school or business concern for next school year".
Notwithstanding the said notice, the CSA still paid
Gela her salary for April 15 to May 15, 1987. On
April 6, ‘87, Gela wrote the CSA and sought
reconsideration but she received no reply.
Thereafter, she filed a complaint for illegal
dismissal. Was Gela illegally dismissed?
A: No. The Faculty Manual of CSA underscores the
completion of 3 years of continuous service at CSA
before a probationary teacher acquires tenure.
Hence, the Gela cannot claim any vested right to a
permanent appointment since she had not yet
achieved the prerequisite 3‐year period under the
Manual of Regulation for Private Schools and the
Faculty Manual of CSA.
In the instant case where the CSA did not wish to
renew the contract of employment for the next
school year, the Gela has no ground to protest. She
was not illegally dismissed. Her contract merely
expired. (CSA v. NLRC, G.R No. 87333, Sep. 6, 1991)
Q: During their probationary employment, 8 Ees
were berated and insulted by their supervisor. In
protest, they walked out. The supervisor shouted
at them to go home and never to report back to
work. Later, the personnel manager required
them to explain why they should not be dismissed
from employment for abandonment and failure
to qualify for the positions applied for. They filed
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
a complaint for illegal dismissal against their Er.
As a LA, how will you resolve the case?
A: As a LA I will resolve the case in favor of the 8
probationary Ees due to the ff::
1.
2.
3.
4.
5.
Probationary Ees also enjoy security of
tenure. (Biboso v. Victoria Milling, G.R.
No. L‐44360, Mar. 31, 1977)
In all cases involving Ees on probationary
status, the Er shall make known to the
Ee at the time he is hired, the standards
by which he will qualify for the
positions applied for.
The filing of the complaint for illegal
dismissal effectively negates the Ers
theory of abandonment. (Rizada v.
NLRC, G.R. No. 96982, Sep. 21, 1999)
The order to go home and not to return
to work constitutes dismissal from
employment.
The 8 probationary Ees were terminated
without just cause and without due
process
Regular employment does not mean permanent
employment. A probationary Ee becomes a regular Ee
after 6 months. A regular Ee may only be terminated
for just/authorized causes.
The practice of entering into employment contracts
which would prevent the workers from becoming
regular should be struck down as contrary to public
policy and morals. (Universal Robina Corp. v.
Catapang, G.R. No. 164736, Oct. 14, 2005)
(a)Reasonable connection rule
Q: What is the test to determine regular
employment?
A:
1.
In view of the foregoing, I will order
reinstatement to their former positions without
loss of seniority rights with full backwages, plus
damages and atty’s fees. (2006 Bar Question)
Note: The connection can be determined by
considering the nature of the work
performed and its relation to the scheme of
the particular business or trade in its
entirety. (Highway Copra Traders v. NLRC,
G.R. No. 108889, July 30, 1998)
d.Kinds of employment
(1)Regular employment
Q: What is regular employment?
A:
1. An employment shall be deemed to be
regular where the Ee has been engaged to
perform activities which are usually
necessary or desirable in the usual
business or trade of the Er, the provisions
of written agreements to the contrary
notwithstanding and regardless of the
oral agreements of the parties. (Sec. 5 [a],
Rule I, Book VI, IRR)
2.
Any Ee who has rendered at least one
year of service, whether such service is
continuous or broken, shall be considered
a regular Ee with respect to the activity in
which he is employed and his
employment shall continue while such
activity exists. (Sec. 5 [b], Rule I, Book VI,
IRR)
Note: Regularization is not a management prerogative;
rather, it is the nature of employment that determines
it. It is a mandate of the law. (PAL v. Pascua, G.R. No.
143258, Aug. 15, 2003)
The primary standard of determining
regular employment is the reasonable
connection between the particular
activity performed by the employee (Ee)
to the usual trade or business of the
employer. The test is whether the former
is usually necessary or desirable in the
usual business or trade of the Er. (De Leon
v. NLRC, G.R. No. 70705, Aug. 21, 1989)
2.
Also, the performance of a job for at least
a year is sufficient evidence of the job’s
necessity if not indispensability to the
business. This is the rule even if its
performance is not continuous and
merely intermittent. The employment is
considered regular, but only with respect
to such activity and while such activity
exists. (Universal Robina Corp. v.
Catapang, G.R. No. 164736, Oct. 14,
2005).
Note: The status of regular employment attaches to
the casual Ee on the day immediately after the end of
his first year of service. The law does not provide the
qualification that the Ee must first be issued a regular
appointment or must first be formally declared as such
before he can acquire a regular status. (Aurora Land
Projects Corp. v. NLRC, G.R. No. 114733, Jan. 2, 1997)
Q: Is the mode of compensation determinative of
regular employment?
A: No, while the Ees mode of compensation was on
a “per piece basis” the status and nature of their
employment was that of regular Ees. (Labor
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
69
UST GOLDEN NOTES 2011
Congress of the Phils v. NLRC, G.R. No. 123938, May
21, 1998)
Q: When does Art. 280 not apply?
A: It does not apply in case of OFWs.
Note: Seafarers cannot be considered as regular Ees.
Their employment is governed by the contracts they
sign everytime they are hired and their employment
terminated when the contract expires. Their
employment is fixed for a certain period of time.
(Ravago v. Esso Eastern Maritime Ltd., G.R. No.
158324, Mar. 14, 2005)
Q: Moises was employed by La Tondeña at the
maintenance section of its Eng’g Dep’t paid on a
daily basis through petty cash vouchers. His work
consisted mainly of painting company building and
equipment and other odd jobs relating to
maintenance. After a service of more than 1 year,
Moises requested that he be included in the
payroll of regular workers, instead of being paid
through petty cash vouchers. Instead La Tondeña’s
dismissed Moises and claimed that Moises was
contracted on a casual basis specifically to paint
certain company buildings and that its completion
terminated Moises’ employment. Can Moises be
considered as a regular Ee?
A: Yes, the law demands that the nature and
entirety of the activities performed by the Ee be
considered. Here, the painting and maintenance
work given Moises manifests a treatment
consistent with a maintenance man and not just a
painter, for if his job was only to paint a building
there would be no basis for giving him other work
assignments in‐between painting activities.
It is not tenable to argue that the painting and
maintenance work of Moises are not necessary in
La Tondeña’s business of manufacturing liquors;
otherwise, there would be no need for the regular
maintenance section of the company’s eng’g dep’t.
(De Leon v. NLRC, G.R. No. 70705, Aug. 21, 1989)
Q: Honorio Dagui was hired by Doña Aurora
Suntay Tanjangco in 1953 to take charge of the
maintenance and repair of the Tanjangco
apartments and residential bldgs. He was to
perform carpentry, plumbing, electrical and
masonry work. Upon the death of Doña Aurora
Tanjangco in ‘82 her daughter, Teresita Tanjangco
Quazon, took over the administration of all the
Tanjangco properties, and dismissed Dagui. Is
Honorio Dagui a regular employee (Ee)?
A: Yes. The jobs assigned to Dagui as maintenance
man, carpenter, plumber, electrician and mason
70
were directly related to the business of the
Tanjangco’s as lessors of residential and apartment
bldgs. Moreover, such a continuing need for his
services by the Tanjangcos is sufficient evidence of
the necessity and indispensability of his services to
their business or trade.
Dagui should likewise be considered a regular Ee by
the mere fact that he rendered service for the
Tanjangcos for more than one year, that is,
beginning ‘53 until ‘82, under Doña Aurora; and
then from 1982 up to June 8, ‘91 under the
daughter, for a total of 29 and 9 years respectively.
Owing to Dagui's length of service, he became a
regular Ee, by operation of law, one year after he
was employed in ‘53 and subsequently in ‘82.
(Aurora Land Projects Corp. v. NLRC, G.R. No.
114733, Jan. 2, 1997)
Q: A total of 43 Ees who are deaf‐mutes were
hired and re‐hired on various periods by Far East
Bank and Trust Co. as money sorters and counters
through a uniformly worded agreement called
“Employment Contract for Handicapped Workers.”
The company disclaimed that these Ees were
regular Ees and maintained among others that
they are a special class of workers, who were hired
temporarily under a special employment
arrangement which was a result of overtures
made by some civic and political personalities to
the Bank. Should the deaf‐mute Ees be considered
as regular Ees?
A: Yes. The renewal of the contracts of the
handicapped workers and the hiring of others leads
to the conclusion that their tasks were beneficial
and necessary to the bank. It also shows that they
were qualified to perform the responsibilities of
their positions; their disability did not render them
unqualified or unfit for the tasks assigned to them.
The Magna Carta for Disabled Persons mandates
that a qualified disabled Ee should be given the
same terms and conditions of employment as a
qualified able‐bodied person. The fact that the Ees
were qualified disabled persons necessarily
removes the employment contracts from the ambit
of Art. 80. Since the Magna Carta accords them the
rights of qualified able‐bodied persons, they are
thus covered by Art. 280 of the LC. (Bernardo v.
NLRC, G.R. No. 122917, July 12, 1999)
Q: Coca‐Cola Bottlers Phils, Inc., (CCBPI) engaged
the services of the workers as “sales route
helpers” for a period of 5 months. After 5 months,
the workers were employed by the company on a
day‐to‐day basis. According to the company, the
workers were hired to substitute for regular route
helpers whenever the latter would be unavailable
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
or when there would be an unexpected shortage
of manpower in any of its work places or an
unusually high volume of work. The practice was
for the workers to wait every morning outside the
gates of the sales office of the company, if thus
hired, the workers would then be paid their wages
at the end of the day. Should the workers be
considered as regular employees (Ees) of CCBPI?
A: Yes, the repeated rehiring of the workers and the
continuing need for their services clearly attest to
the necessity or desirability of their services in the
regular conduct of the business or trade of the
company. The fact that the workers have agreed to
be employed on such basis and to forego the
protection given to them on their security of
tenure, demonstrate nothing more than the serious
problem of impoverishment of so many of our
people and the resulting unevenness between labor
and capital. (Magsalin & Coca‐Cola v. N.O.W.M.,
G.R. No. 148492, May 9, 2003)
Q: Metromedia Times Corp. entered, for the fifth
time, into an agreement with Efren Paguio,
appointing him to be an account executive of the
firm. He was to solicit advertisements for “The
Manila Times,”. The written contract between the
parties provided that, “You are not an Ee of the
Metromedia Times Corp. nor does the company
have any obligations towards anyone you may
employ, nor any responsibility for your operating
expenses or for any liability you may incur. The
only rights and obligations between us are those
set forth in this agreement. This agreement cannot
be amended or modified in any way except with
the duly authorized consent in writing of both
parties.” Is Efren Paguio a regular employee of
Metromedia Times Corporation?
(2)Project Employment
Q: What is project employment?
A: Employment that has been fixed for a specific
project or undertaking the completion for which
has been determined at the time of engagement of
the employee (Ee). (Sec.5 [a], Rule I, Book VI, IRR).
The period is not the determining factor, so that
even if the period is more than 1 year, the Ee does
not necessarily become regular.
Note: Where the employment of a project Ee is
extended long after the supposed project has been
finished, the Ees are removed from the scope of
project Ees and considered as regular Ees.
Repeated hiring on a project‐to‐project basis is
considered necessary and desirable to the business of
the Er. The Ee is regular (Maraguinot v. NLRC, G.R. No.
120969, Jan. 22, 1998 ). However, repeated hiring does
not necessarily mean regular employment. (Filipinas
Pre‐Fabricated Building Systems (FILSYSTEMS), Inc. v.
Puente, G.R. No. 153832,. March 18, 2005 )
(a)Indicators of project employment
Q: What are
Employment?
Indicators
of
Project
A:
Either one or more of the following
circumstances, among others, may be considered as
indicators that an employee is a project employee.
(Hanjin v. Ibañez, G.R. No. 170181, June 26, 2008)
a.
The duration of the specific/identified
undertaking for which the worker is
engaged is reasonably determinable
b.
Such duration, as well as the specific
work/service to be performed, is defined
in an employment agreement and is
made clear to the employee at the time of
hiring.
A: Yes, he performed activities which were
necessary and desirable to the business of the Er,
and that the same went on for more than a year.
He was an account executive in soliciting
advertisements, clearly necessary and desirable, for
the survival and continued operation of the
business of the corp.
The corporation cannot seek refuge under the
terms of the agreement it has entered into with
Efren Paguio. The law, in defining their contractual
relationship, does so, not necessarily or exclusively
upon the terms of their written or oral contract, but
also on the basis of the nature of the work of Efren
has been called upon to perform. A stipulation in
an agreement can be ignored as and when it is
utilized to deprive the Ee of his security of tenure.
(Paguio v. NLRC, G.R. No. 147816, May 9, 2003)
the
Note: Absent any other proof that the
project employees were informed of their
status as such, it will be presumed that they
are regular employees.
c.
The work/service performed by the
employee is in connection with the
particular project/undertaking for which
he is engaged
d.
The employee, while not employed and
awaiting engagement, is free to offer his
services to any other employer
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
71
UST GOLDEN NOTES 2011
e.
f.
The termination of his employment in the
particular project/undertaking is reported
to the Department of Labor and
Employment Regional Office having
jurisdiction over the workplace within 30
days following the date of his separation
from work, using the prescribed form on
employees’
termination/dismissal/suspensions
An undertaking in the employment
contract by the employer to pay
completion bonus to the project
employee as practiced by most
construction companies
Q: What are the requisites in determining whether
an employee (Ee) is a project Ee?
projects. These facts are the basis in considering them
as regular Ees of the company. (Maraguinot v. NLRC,
G.R. No. 120969, Jan. 22, 1998)
Members of a work pool from which a construction
company draws its project Ees, if considered Ees of the
construction company while in the work pool, are non‐
project Ees or Ees for an indefinite period. If they are
employed in a particular project, the completion of the
project or any phase thereof will not mean severance
of Er‐Ee relationship. Unless the workers in the work
pool are free to leave any time and offer their services
to other Ers. (L.T. Datu & Co., Inc. v. NLRC, G.R. No.
113162, Feb. 9, 1996)
Q: What is the “day certain” rule?
A: It states that a project employment that ends on
a certain date does not end on an exact date but
upon the completion of the project.
A:
1.
2.
3.
4.
The project Ee was assigned to carry out a
specific project or undertaking, and
The duration and scope of which were
specified at the time the Ee was engaged
for that project. (Imbuido v. NLRC, G.R.
No. 114734, Mar. 31, 2000)
The Ee must have been dismissed every
after completion of his project or phase
Report to the DOLE of Ee’s dismissal on
account of completion of contract (Policy
Inst. No. 20; D.O. 19 [1997])
Q: Are project Ees entitled to separation pay?
A: GR: Project Ees are not entitled to separation
pay if they are terminated as a result of the
completion project.
XPN: If the projects they are working on have
not yet been completed when their services are
terminated; project Ees also enjoy security of
tenure during the limited time of their
employment. (De Ocampo v. NLRC, G.R. No.
81077, June 6, 1990)
Q: What is a project?
A: A "project" has reference to a particular job or
undertaking that may or may not be within the
regular or usual business of the Er. In either case,
the project must be distinct, separate and
identifiable from the main business of the Er, and
its duration must be determined or determinable
(PAL v. NLRC, G.R. No. 125792, Nov. 9, 1998).
Q: Can a project employee (Ee) or a member of a
work pool acquire the status of a regular Ee?
A: Yes, when the following concur:
1.
2.
There is a continuous rehiring of project
Ee’s even after cessation of a project; and
The tasks performed by the alleged
“project Ee” are vital, necessary and
indispensable to the usual business or
trade of the employer (Er).
Note: The length of time during which the Ee was
continuously re‐hired is not controlling, but merely
serves as a badge of regular employment. Enero and
Maraguinot have been employed for a period of not
less than 2 years and have been involved in at least 18
72
Q: Roger Puente was hired by Filsystems, Inc.,
initially as an installer and eventually promoted to
mobile crane operator, and was stationed at the
company’s premises.
Puente claimed in his
complaint for illegal dismissal, that his work was
continuous and without interruption for 10 years,
and that he was dismissed from his employment
without any cause. Filsystems on its part averred
that Puente was a project Ee in the company’s
various projects, and that after the completion of
each project, his employment was terminated, and
such was reported to the DOLE. Is Roger Puente a
regular Ee?
A: No, Puente is a project Ee. The contracts of
employment of Puente attest to the fact that he
was hired for specific projects. His employment was
coterminous with the completion of the projects for
which he had been hired. Those contracts expressly
provided that his tenure of employment depended
on the duration of any phase of the project or on
the completion of the construction projects.
Furthermore, the company regularly submitted to
the labor dep’t reports of the termination of
services of project workers. Such compliance with
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
the reportorial req’t confirms that Puente was a
project Ee.
The mere rehiring of Puente on a project‐to‐project
basis did not confer upon him regular employment
status. “The practice was dictated by the practical
consideration that experienced construction
workers are more preferred.” It did not change his
status as a project Ee. (Filipinas Pre‐Fabricated
Building Systems (FILSYSTEMS), Inc. v. Puente, G.R.
No. 153832, Mar. 18, 2005)
(3)Seasonal employment
Q: What is seasonal employment?
A: Employment where the job, work or service to
be performed is seasonal in nature and the
employment is for the duration of the season.
(Sec.5 [a], Rule I, Book VI, IRR)
An employment arrangement where an employee
(Ee) is engaged to work during a particular season
on an activity that is usually necessary or desirable
in the usual business or trade of the employer (Er).
Note: For seasonal Ees, their employment legally ends
upon completion of the project or the season. The
termination of their employment cannot and should
not constitute an illegal dismissal. (Mercado v. NLRC,
G.R. No. 79869, Sept. 5, 1991)
One year duration on the job is pertinent in deciding
whether a casual Ee has become regular or not, but it
is not pertinent to a seasonal or project Ee. Passage of
time does not make a seasonal worker regular or
permanent. (Mercado v. NLRC, G.R. No. 78969, Sep. 5,
1991)
During off‐season, the relationship of Er‐Ee is not
severed; the seasonal Ee is merely considered on LOA
without pay. Seasonal workers who are repeatedly
engaged from season to season performing the same
tasks are deemed to have acquired regular
employment. (Hacienda Fatima v. National Federation
of Sugarcane Workers‐Food and General Trade, G.R.
No. 149440, Jan. 28, 2003)
duration of the season does not detract from
considering them in regular employment. Seasonal
workers who are called to work from time to time
and are temporarily laid off during off‐season are
not separated from service in that period, but
merely considered on leave until re‐employed.
If the Ee has been performing the job for at least a
year, even if the performance is not continuous and
merely intermittent, the law deems repeated and
continuing need for its performance as sufficient
evidence of the necessity if not indispensability of
that activity to the business. Hence, the
employment is considered regular, but only with
respect to such activity and while such activity
exists. (Benares v. Pancho, G.R. No. 151827, April
29, 2005)
Q: Carlito Codilan and Maximo Docena had been
working for the rice mill for 25 years, while
Eugenio Go, Teofilo Trangria and Reynaldo Tulin
have been working for 22, 15, and 6 years
respectively. The operations of the rice mill
continue to operate and do business throughout
the year even if there are only two or three
harvest seasons within the year. This seasonal
harvesting is the reason why the company
considers the workers as seasonal Ees. Is the
company correct in considering the Ees as seasonal
Ees?
A: No, the fact is that big rice mills such as the one
owned by the company continue to operate and do
business throughout the year even if there are only
two or three harvest seasons within the year. It is a
common practice among farmers and rice dealers
to store their palay and to have the same milled as
the need arises. Thus, the milling operations are
not seasonal. Finally, considering the number of
years that they have worked, the lowest being 6
years, the workers have long attained the status of
regular Ees as defined under Art. 280. (Tacloban
Sagkahan Rice Mill v. NLRC, G.R. No. 73806, Mar. 21,
1990)
(4)Casual employment
Q: Are seasonal Ees entitled to separation pay?
Q: What is casual employment?
A: When the business establishment is sold which
effectively terminates the employment of the
seasonal Ees, the latter would be entitled to
separation pay.
A:
1. It is an employment where the Ee is engaged in
an activity which is not usually necessary or
desirable in the usual business or trade of the Er,
provided: such employment is not project nor
seasonal (Art. 281).
Q: Can seasonal employees (Ees) be considered as
regular Ees?
A: Yes. The fact that seasonal Ees do not work
continuously for one whole year but only for the
Note: But despite the distinction between regular
and casual employment, every Ee shall be
entitled to the same rights and privileges, and
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
73
UST GOLDEN NOTES 2011
shall be subject to the same duties as may be
granted by law to regular Ees during the period of
their actual employment.
2.An Ee is engaged to perform a job, work or service
which is merely incidental to the business of the Er,
and such job, work or service is for a definite period
made known to the Ee at the time of engagement
(Sec. 5 [b], Rule I, Book VI, IRR)
Note: If he has rendered at least 1 year of service,
whether such service is continuous or broken, he
is considered as regular Ee with respect to the
activity in which he is employed and his
employment shall continue while such activity
exists.
A Casual Ee is only casual for 1 year, and it is the
passage of time that gives him a regular status.
(KASAMMA‐CCO v. CA, G.R. No. 159828, April 19,
2006)
The purpose is to give meaning to the
constitutional guarantee of security of tenure and
right to self‐organization. (Mercado v. NLRC, G.R.
No. 79868, Sep. 5, 1991)
Q: Yakult Phils. is engaged in the manufacture of
cultured milk. The workers were hired to cut
cogon grass and weeds at the back of the factory
building used by Yakult. They were not required
to work on fixed schedule and they worked on any
day of the week on their own discretion and
convenience. The services of the workers were
terminated by Yakult on less than 1‐year after.
May casual or temporary Ees be dismissed by the
Er before the expiration of the 1‐year period of
employment?
A: Yes, the usual business or trade of Yakult Phils. is
the manufacture of cultured milk. The cutting of
the cogon grasses in the premises of its factory is
hardly necessary or desirable in the usual business
of the Yakult.
The workers are casual Ees. Nevertheless, they may
be considered regular Ees if they have rendered
services for at least 1 year. When, as in this case,
they were dismissed from their employment before
the expiration of the 1‐year period they cannot
lawfully claim that their dismissal was illegal.
(Capule, et al. v. NLRC, G.R. No. 90653, Nov. 12,
1990)
Q: How is the project worker different from a
casual or contractual worker? Briefly explain your
answers.
74
A:
PROJECT WORKER
Used to designate
workers
in
the
construction industry,
hired to perform a
specific undertaking for
a fixed period, co‐
terminus with a project
or
phase
thereof
determined at the time
of the engagement of
the Ee
To be considered a true
project worker, it is
required
that
a
termination report be
submitted
to
the
nearest
public
employment
office
upon the completion of
the
construciton
project. (Aurora Land
Projects Corp. v. NLRC,
G.R. No. 114733, Jan.
2, 1997)
CASUAL or
CONTRACTUAL
WORKER
Generic term used to
designate any worker
covered by a wrtitten
contract to perform a
specific undertaking for
a fixed period
There is no such
requirement for an
ordinary
contractual
worker
(5)Fixed term employment; Requisites for validity
Q: What is the nature of term employment?
A: A contract of employment for a definite period
terminates by its own terms at the end of such
period. (Brent School v. Zamora, G.R. No. L‐48494,
Feb. 5, 1990)
Q: What is the decisive determinant in term
employment?
A: It is the day certain agreed upon by the parties
for the commencement and the termination of
their employment relation.
Q: What is a fixed‐term employment?
A: It is an employment where a fixed period of
employment was agreed upon:
1.
2.
3.
4.
Knowingly and voluntarily by the parties,
Without any force, duress or improper
pressure being brought to bear upon the
employee (Ee) and
Absent any other circumstances vitiating
his consent, or
Where it satisfactorily appears that the Er
and Ee dealt with each other on more or
less equal terms with no moral
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
dominance whatever being exercised by
the former over the latter. (Brent School,
Inc. v. Zamora, G.R. No. 48494, Feb. 5,
1990)
Q: Does the “Reasonable Connection Rule” applies
in fixed‐ term employment for a fixed‐ term
employee be eventually classified as regular
employee?
Note: A fixed‐period Ee does not become a regular Ee
because his employment is co‐terminus with a specific
period of time.
A: No. It should be apparent that this settled and
familiar notion of a period, in the context of a
contract of employment, takes no account at all of
the nature of the duties of the employee; it has
absolutely no relevance to the character of his
duties as being usually necessary and desirable to
the usual business of the employer, or not.
Ee hired on a fixed‐term is regular if job is necessary
and desirable to the business of Er. (Philips
Semiconductor v. Fadriquela, G.R. No. 141717, April
2004)
Q: Is “term employment” a circumvention of the
law on security of tenure?
A: No, it is not a circumvention of the law if it
follows the requisites laid down by the Brent ruling.
(Romares v. NLRC, G.R. No. 122327, Aug. 19, 1998)
Q: Rene was hired as an athletic director in
ChristOmarDiviva School for a period of five years.
As such, he oversees the work of coaches and
related staff involved in intercollegiate or
interscholastic athletic programs. However, he
was not rehired upon the expiration of said period.
Rene questions his termination alleging that he
was a regular employee and could not be
dismissed without valid cause. Is he a regular
employee?
A: No. Rene was not a regular employee but an
employee under a fixed‐ term contract. While it can
be said that the services he rendered were usually
necessary and desirable to the business of the
school, it cannot also be denied that his
employment was for a fixed term of five years. The
decisive determinant in fixed‐ term employment
should not be the activities that the employee is
called upon to perform, but the day certain agreed
upon by the parties for the commencement and
termination of their employment relation (Brent
School Inc. v. Zamora, G.R. No. 48494, Feb. 5, 1990).
Q: Dean Jose and other employees are holding
administrative positions as dean, dep’t heads and
institute secretaries. In the implementation of the
Reorganization, Retrenchment and Restructuring
program effective Jan. 1, 1984, Dean Jose and
other employees were retired but subsequently
rehired. Their appointment to their administrative
positions as dean, dep’t heads and institute
secretaries had been extended by the company
from time to time until the expiration of their last
appointment on May 31, 1988. Were Dean Jose
and other employees illegally dismissed?
A: No. Petitioners were dismissed by reason of the
expiration of their contracts of employment.
Petitioners' appointments as dean, dep’t heads and
institute secretaries were for fixed terms of definite
periods as shown by their respective contracts of
employment, which all expired on the same date,
May 31, 1988. The validity of employment for a
fixed period has been acknowledged and affirmed
by the SC. (Blancaflor v. NLRC, G.R. No. 101013, Feb.
2, 1993)
e.Job contracting and labor‐ only contracting
Q: When is there “job contracting”?
A: Specifically, there is “job contracting” where:
1.
The contractor carries on an
independent
business
and
undertakes the contract work on his
own account under his own
responsibility according to his own
manner and method, free from the
control and direction of his employer
or principal in all matters connected
with the performance of the work
except as to the results thereof; and
2.
The contractor has substantial
capital or investment in the form of
tools, equipment, machineries, work
premises, and other materials which
Q: In the above‐ mentioned facts, will Rene
automatically become a regular employee if he is
rehired by the school for another definite period
of employment?
A: No. The decisive determinant in term
employment is the day certain agreed upon by the
parties for the commencement and termination of
their employment relationship, a day certain being
understood to be that which must necessarily come,
although it may not be known when and not
whether the work is usually necessary and desirable
to the business of the employer.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
75
UST GOLDEN NOTES 2011
are necessary in the conduct of his
business.
Q: When is there “labor‐only” contracting?
A: A person is deemed to be engaged in “labor‐
only” contracting where:
Phils., Inc., G.R. No. 179807, July 31, 2009,
J. Carpio‐Morales)
Q: What are the factors to consider in determining
whether contractor is carrying on an independent
business?
A:
1.
The person supplying workers to an
employer does not have substantial
capital or investment in the for of
tools, equipment, machineries, work
premises, among others; and
2.
The workers recruited and placed by
such person are performing activities
which are directly related to the
principal business of such employer.
(Baguio v. NLRC, G.R. No. 79004‐08,
Oct. 4, 1991)
Q: What is a permissible job contracting or
subcontracting?
A: It refers to an arrangement whereby a principal
agrees to farm out with a contractor or
subcontractor the performance of a specific job,
work, or service within a definite or predetermined
period, regardless of whether such job, work or,
service is to be performed or completed within or
outside the premises of the principal.
Q: What are the conditions that must be met in
order to be considered as permissible job
contracting or subcontracting?
A: The following conditions must be met:
1.
The contractor carries on a distinct and
independent business and undertakes the
contract work on his account under his
own responsibility according to his own
manner and method, free from the
control and direction of his employer or
principal in all matters connected with the
performance of his work except as to the
results thereof;
2.
The contractor has substantial capital or
investment; and
3.
The agreement between the principal and
contractor or subcontractor assures the
contractual employees entitlement to all
labor and occupational safety and health
standards, free exercise of the right to
self‐organization, security of tenure, and
social welfare benefits. (Gallego v. BAYER
76
1.
2.
3.
4.
5.
6.
7.
8.
9.
Nature and extent of work
Skill required
Term and duration of the relationship
Right to assign the performance of
specified pieces of work
Control and supervision of worker
Power of employer to hire, fire and pay
wages
Control of the premises
Duty to supply premises, tools,
appliances, materials and labor
Mode, manner and terms of payment.
(Vinoya v. NLRC, G.R. No. 126286, Feb 2,
2000)
Note: Individuals with special skills, expertise or talent
enjoy the freedom to offer their services as
independent contractors. An individual like an artist or
talent has a right to render his services without any
one controlling the means and methods by which he
performs his art or craft. (Sonza vs. ABS‐CBN, G.R. No.
138051, June 10, 2004)
Q: Who are the parties in contracting and
subcontracting?
A:
1. Contractor/subcontractor – Refers to any
person engaged in a legitimate contracting or
subcontracting arrangement.
2. Contractual Ee – One who is employed by a
contractor or subcontractor to perform or
complete a job, work, or service pursuant to an
arrangement between the latter and a
principal. (D.O. 18‐02)
3. Principal – Any Er who puts out or farms out a
job, service, or work to a contractor or
subcontractor.
Q: Describe the relationship
contractual arrangements.
arising
from
A: There is a trilateral relationship between the
principal, contractor and Ee. There exists a
contractual relationship between the principal and
the contractor or subcontractor to its Ees.
Q: What are the rights of a contractual Ee (CEe)?
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
A: They shall be entitled to all the rights and
privileges due to a regular Ee as provided in the LC,
as amended to include the ff:
1.
2.
3.
4.
5.
Safe and healthful working conditions
Service Incentive Leave, rest days, OT pay,
holiday pay, 13th month pay and
separation pay
Social security and welfare benefits;
Self‐organization, CBA and peaceful
concerted actions
Security of tenure (Sec. 8, DO 18‐02)
Q: What are the effects of termination of CEe to
separation pay and other benefits?
A:
1.
If prior to the expiration of the
employment contract between the
principal and the contractor or
subcontractor – The right of CEe to
separation pay or other related benefits
shall be governed by the applicable laws
and jurisprudence on termination of
employment
2.
If the termination results from the
expiration of the contract between the
principal and the contractor or
subcontractor – The Ee shall not be
entitled to separation pay. However, this
is w/o prejudice to completion bonuses or
other emoluments including retirement
pay as may be provided by law or in the
contract between the principal and the
contractor.
Q: When is the principal deemed the employer of
the contractual employee?
A: Where:
1.
2.
There is labor‐only contracting
The contracting arrangement falls within
the prohibited acts
Q: May the Er or indirect Er require the contractor
or subcontractor to furnish a bond equal to the
cost of labor under contract to answer for the
wages due to Ees in case the contractor or
subcontractor fails to pay the same?
A: Yes. The Er or indirect Er may require the
contractor or subcontractor to furnish a bond that
will answer for the wages due to the Ees.
Q: What is the liability of the principal?
A: The principal shall be solidarily liable with the
contractor in the event of any violation of any
provision of the LC, including the failure to pay
wages. This will not prevent the principal from
claiming reimbursement from the contractor.
Q: What does substantial capital or investment
mean?
A: It refers to the capital stocks and subscribed
capitalization in case of corporations, tools,
equipments, implement, machineries and work
premises, actually and directly used by the
contractor or subcontractor in the performance or
completion of the job, work or service contracted
out. (D.O. 18‐02)
Note: The law does not require both substantial capital
and investment in the form of tools, equipments,
machineries, etc. This is clear from the use of
conjunction “or”. If the contention was to require the
contractor to prove that he has both capital and
requisite investment, then the conjunction “and”
should have been used. (Virginia Neri v. NLRC, G.R.
No. 97008, July 21, 1993)
Q: What does the right to control mean?
A: It refers to the right reserved to the person for
whom the services of the contractual workers are
performed, to determine not only the end to be
achieved, but also the manner and means to be
used in reaching that end. (D.O. 18‐02)
Q: SMC and Sunflower Cooperative entered into a
1‐yr Contract of Services, to be renewed on a
month to month basis until terminated by either
party. Pursuant to the contract, Sunflower
engaged private respondents to render services at
SMC’s Bacolod Shrimp Processing Plant. The
contract was deemed renewed by the parties
every month after its expiration on Jan. 1, ‘94 and
respondents continued to perform their tasks until
Sep. 11, ‘95. In July ‘95, private respondents filed a
complaint before the NLRC, praying to be declared
as regular Ees of SMC, with claims for recovery of
all benefits and privileges enjoyed by SMC rank
and file Ees. Respondents subsequently filed an
Amended Complaint to include illegal dismissal as
additional cause of action following SMC’s closure
of its Bacolod Shrimp Processing Plant on which
resulted in the termination of their services. SMC
filed a Motion for Leave to File Attached Third
rd
Party Complaint to implead Sunflower as 3 ‐Party
Defendant. Are private respondents Ees of the
independent cooperative contractor (Sunflower)
or of the SMC?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
77
UST GOLDEN NOTES 2011
A: The contention of SMC holds no basis. Using the
“substantial capital” doctrine and the “right of
control test”, the Court found that the Sunflower
had no substantial capital in the form of tools,
equipment, machineries, work premises and other
materials to qualify itself as an independent
contractor. The lot, building, machineries and all
other working tools utilized by private respondents
in carrying out their tasks were owned and
provided by SMC. In addition, the shrimp
processing company was found to have control of
the manner and method on how the work was
done. Thus, the complainants were deemed Ees not
of the cooperative but of the shrimp processing
company. Since respondents who were engaged in
shrimp processing performed tasks usually
necessary or desirable in the aquaculture business
of SMC, they should be deemed regular Ees of the
latter and as such are entitled to all the benefits
and rights appurtenant to regular employment.
(SMC vs. Prospero Aballa, et al., G.R. No. 149011,
June 28, 2005, J. Carpio‐Morales)
Q: What are the conditions before permitting job
contracting?
A:
1.
2.
The labor contractor must be duly
licensed by the appropriate Regional
Office of the DOLE
There should be a written contract
between the labor contractor and his
client‐Er that will assure the Ees at least
the minimum labor standards and
benefits provided by existing laws.
Note: The Ees of the contractor or subcontractor shall
be paid in accordance with the provisions of the LC.
(Art. 106)
Q: What is labor‐only contracting?
A: It refers to an arrangement where the following
conditions concur:
1.
2.
3.
The person supplying workers to an Er
does not have substantial capital or
investment in the form of tools,
equipment, machineries, work, premises,
among others, or
Even if such person has substantial assets,
the same are not actually or directly used
by the Ees contracted out;
The workers recruited and placed by such
person are performing activities which are
directly related to the principal business
of such Er.
Q: Why is labor only contracting prohibited?
78
A: It gives rise to confusion as to who is the real Er
of the workers and who is liable to their claims. It
also deprives workers of the opportunity to become
regular Ees.
Q: How do we determine if one is engaged in
labor/job only contracting?
A: The test to determine whether one is a job/labor
only contracting is to look into the elements of a job
contractor. If all the elements of a job contractor
are present, then he is a job contractor. Absent one
of the elements for a job contractor, then the
person is a labor‐only contractor.
Note: It is the opinion of Dean Antonio H. Abad, Jr.
that the decisive determinant in job contracting should
not be the fact that the contracted workers are
“performing activities which are directly related to the
main business of the principal,” but that the principal
has no right to control the conduct of the employees
as to the means employed to achieve an end; not the
character of the activities as being “usually necessary
or desirable in the usual business of the employer.”
It cannot be gainsaid that the activities of the
contracted workers are always necessary or desirable;
even that they are directly related to the main
business of the principal. The primordial consideration
should be the “control test.” Hence, if the
arrangement passes the control test, it is “job‐
contracting.” If it fails, it is “labor‐only contracting.”
Q: Distinguish between job contracting and labor
only contracting
A:
JOB CONTRACTING
Liability is limited (shall be
solidarily liable with Er
only when the Er fails to
comply with req’ts as to
unpaid wages and other
labor standards violations)
Permissible, subject only
to certain conditions
The
contractor
has
substantial capital or
investment
LABOR‐ONLY
CONTRACTING
Liability extends to all
those provided under
the Labor Standards law
Prohibited by Law
Has
no
substantial
capital or investment
Q: SMPC entered into a contract with Arnold for
the milling of lumber as well as the hauling of
waste wood products. The company provided the
equipment and tools because Arnold had neither
tools and equipment nor capital for the job.
Arnold, on the other hand, hired his friends,
relatives and neighbors for the job. Their wages
were paid by SMPC to Arnold, based on their
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
production or the number of workers and the time
used in certain areas of work. All work activities
and schedules were fixed by the company.
A: Substantive Due Process provides the ground for
disciplinary action, i.e. corrective or retributive
(a)Just causes
1. Is Arnold a job contractor? Explain briefly
2. Who is liable for the claims of the workers hired
by Arnold? Explain briefly.
Q: What are the just causes for termination (Art.
282, LC)?
A:
A:
1.
2.
No. In the problem given, Arnold did not
have sufficient capital or investment for
one. For another, Arnold was not free
from the control and direction of SMPC
because all work activities and schedules
were fixed by the company. Therefore,
Arnold is not a job contractor. He is
engaged in labor‐only contracting.
SMPC is liable for the claims of the
workers hired by Arnold. A finding that
Arnold is a labor only contractor is
equivalent to declaring that there exist an
Er‐Ee relationship between SMPC and
workers hired by Arnold. This is so
because Arnold is considered a mere
agent of SMPC (Lim v. NLRC, G.R. No.
124630, Feb. 19, 1999); 2002 Bar
Question)
1.
2.
3.
4.
5.
Serious
misconduct
or
willful
disobedience by the employee (Ee) of the
lawful orders of his employer (Er) or
representative in connection with his
work
Gross and habitual neglect by the Ee of
his duties
Fraud or willful breach by the Ee of the
trust reposed in him by his Er or duly
organized representative
Commission of a crime or offense by the
Ee against the person of his Er or any
immediate member of his family or his
duly authorized representative.
Other causes analogous to the foregoing
Note: The burden of proving that the termination was
for a valid or authorized cause shall rest on the Er. (Art.
277[b])
Q:
What are the grounds for delisting of
contractors or subcontractors?
1.Serious Misconduct
Q: What is serious misconduct?
A:
1.
2.
3.
4.
Non‐submission of contracts between the
principal and the contractor or
subcontractor when required to do so;
Non‐submission of annual report;
Findings through arbitration that the
contractor or subcontractor has engaged
in labor‐only contracting and other
prohibited activities;
Non‐compliance with labor standards and
working conditions. (Sec. 16, D.O. 18‐02)
Q: What are the effects of finding that there is
labor‐only contracting?
A: It is an improper or wrong conduct; the
transgression of some established and definite rule
of action, a forbidden act, a dereliction of duty,
willful in character, and implies wrongful intent and
not mere error in judgment. To be serious within
the meaning and intendment of the law, the
misconduct must be of such grave and aggravated
character and not merely trivial or unimportant.
(Villamor Golf Club v. Pehid, G.R. No. 166152, Oct.
4, 2005)
Q: What are the elements of serious misconduct?
A:
1.
A: A finding that a contractor is a “labor‐only”
contractor is equivalent to declaring that there is an
employer‐employee relationship between the
principal and the employees of the “labor‐only”
contractor. (Assoc. Anglo‐American Tobacco Corp.
v. Clave, G.R. No. 50915, Aug. 30, 1990)
2.
3.
2.TERMINATION OF EMPLOYMENT
a.Substantive due process
Q: What is Substantive due process?
It must be serious or of such a grave and
aggravated character;
Must relate to the performance of the
employees (Ee) duties;
Ee has become unfit to continue working
for the employer. (Philippine Aeolus
Automotive United Corp. v. NLRC, G.R.
No. 124617, April 28, 2000)
Q: Give some examples of serious misconduct.
A:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
79
UST GOLDEN NOTES 2011
1.
2.
3.
4.
5.
Sexual harassment
Fighting within the company premises
Uttering obscene, insulting or offensive
words against a superior
Falsification of time records
Gross immorality
Q: Escando, upset at his transfer to the washer
section, repeatedly uttered “gago ka” and
threatened bodily harm to his superior Mr.
Andres. Is the utterance of the obscene words and
threats of bodily harm gross and willful
misconduct?
A: Yes. The repeated utterances by Escando of
obscene, insulting or offensive words against a
superior were not only destructive of the morals of
his co‐employees (Ees) and a violation of the
company rules and regulations, but also constitute
gross misconduct which is one of the grounds
provided by law to terminate the services of an Ee.
(Autobus Workers Union v. NLRC, G.R. No. 11753,
June 26, 1998)
Q: Samson made insulting and obscene utterances
towards the General Manager saying “Si EDT
bullshit yan, sabihin mo kay EDT yan” among
others during the Christmas party. Are the
utterances towards the General Manager gross
misconduct?
A: The alleged misconduct of Samson when viewed
in its context is not of such serious and grave
character as to warrant his dismissal. Samson made
the utterances and obscene gestures at an informal
Christmas gathering and it is to be expected during
this kind of gatherings, where tongues are more
often than not loosened by liquor of other alcoholic
beverages, that employees (Ees) freely express their
grievances and gripes against their employers (Ers).
Ees should be allowed wider latitude to freely
express heir grievances and gripes against their Er.
Ees should be allowed wider latitude to freely
express their sentiments during these kinds of
occasions which are beyond the disciplinary
authority of the Er. (Samson v. NLRC, G.R. No.
121035, April 12, 2000)
2.Willful Disobedience
Q: When is willful disobedience of the Er’s lawful
orders a just cause for termination?
A: 2 requisites must concur:
1.
80
The employees (Ees) assailed conduct
must have been willful or intentional, the
willfulness being characterized by a
wrongful and perverse attitude.
2.
The disobeyed orders, regulations or
instructions of the Er must be:
a. Reasonable and lawful
b. Sufficiently made known to the Ee
c. Must pertain to or be in connection
with the duties which the Ee has
been engaged to discharge. (Cosep V.
NLRC, G.R. No. 124966 June 16,
1998)
Note: There is no law that compels an Ee to accept a
promotion for the reason that a promotion is in the
nature of a gift or reward, which a person has the right
to refuse. The exercise of the Ee of the right to refuse a
promotion cannot be considered in law as
insubordination or willful disobedience. (PT&T Corp. v.
CA, G.R. No. 152057, Sep. 29, 2003)
Q: The company vehicle was brought out of the
company premises without authorization twice. In
the first instance the company opted not to
implement any action against Dioks and instead
issued a memorandum reiminding Dioks as well as
the security guards of the proper procedure.
However, in the second instance the vehicle met
an accident. Is Dioks guilty of willful disobedience
even though he was not the one who personally
brought the company vehicle out of the company
premises and was merely a passenger in the
second incident?
A: Yes. A rule prohibiting Ees from using company
vehicles for private purpose without authority from
management is a reasonable one. When Dioks rode
the company vehicle he was undoubtedly aware of
the possible consequences of his act and taking into
consideration his moral ascendancy over the
security guards it was incumbent upon him not only
to admonish them but also to refrain from using the
company car himself. (Family Planning Org. of the
Phil. v. NLRC, G.R. No. 75907, Mar. 23, 1992)
Q: Escobin’s group were security guards based in
Basilan. They were placed in floating status and
were asked to report for reassignment in Metro
Manila by PISI. Upon failure to report or respond
to such directives they were ordered dismissed
from employment by PISI for willful disobedience.
Did the failure to report to Manila amount to
willful disobedience?
A: The reasonableness of the rule pertains to the
kind of character of directives and commands and
to the manner in which they are made. In this case,
the order to report to the Manila office fails to
meet this standard. The order to report to Manila
was inconvenient, unreasonable, and prejudicial to
Escobin’s group since they are heads of families
residing in Basilan and they were not given
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
transportation money or assurance of availability of
work in Manila. (Escobin v. NLRC, G.R. No. 118159.
April 15, 1998)
3.Negligence
Q: When is
termination?
negligence
a
just
cause
for
A: When it is gross and habitual.
Q: When is there Gross Negligence?
A: Gross negligence implies a want or absence of or
failure to exercise slight care of diligence of the
entire absence of care it evinces thoughtless
disregard of consequences without exerting any
effort to avoid them. However, such neglect must
not only be gross but habitual in character. (Judy
Phils. v. NLRC, G.R. No. 111934, April 29, 1998)
Q: When is there Habitual Neglect of duties?
A: Habitual Neglect implies repeated failure to
perform one’s duties over a period of time,
depending upon the circumstance. (JGB and
Associates v. NLRC, GR No. 10939, Mar. 7, 1996)
Q: Antiola, as assorter of baby infant dress as for
Judy Phils. erroneously assorted and packaged
2,680 dozens of infant wear. Antiola was
dismissed from employment for this infraction.
Does the single act of misassortment constitute
gross negligence?
A: No. Such neglect must not only be gross but also
habitual in character. Hence, the penalty of
dismissal is quite severe considering that Antiola
committed the infraction for the first time. (Judy
Phils. v. NLRC, G.R. No. 111934. April 29, 1998)
Q: Does the failure in performance evaluations
amount to gross and habitual neglect of duties?
A: As a general concept “poor performance” is
equivalent to inefficiency and incompetence in the
performance of official duties. The fact that an
employee’s (Ee’s) performance is found to be poor
or unsatisfactory does not necessarily mean that
the Ee is grossly and habitually negligent of his
duties. Gross negligence implies a want or absence
of or failure to exercise slight care of diligence or
the entire absence or care. He evinces a thoughtless
disregard of consequences without exerting any
effort to avoid them. (Eastern Overseas
Employment Center Inc. v. Bea, G.R. 143023,
Nov.29, 2005)
Q: Is inefficiency a just cause for dismissal?
A: Yes, failure to observe prescribed standards of
work, or to fulfill reasonable work assignments due
to inefficiency may constitute just cause for
dismissal. Such inefficiency is understood to mean
failure to attain work goals or work quotas, either
by failing to complete the same within the allotted
reasonable period, or by producing unsatisfactory
results. (Buiser v. Leogardo, G.R. No. L‐63316, July
31, 1984)
This ground is considered analogous to those
enumerated under Art. 282. (Skippers United Pacific
v. Magud, G.R. No. 166363, Aug. 15, 2006)
Q: Gamido was a quality control inspector of VH
Manufacturing. Gamido was allegedly caught by
the company Pres. Dy Juanco of sleeping and was
dismissed from employment. Did Gamido’s act of
sleeping on the job constitute a valid cause of
dismissal?
A: Sleeping on the job as a valid ground for
dismissal only applies to security guards whose duty
necessitates that they be awake and watchful at all
times. Gambido’s single act of sleeping further
shows that the alleged negligence or neglect of
duty was neither gross nor habitual. (VH
Manufacturing v. NLRC, G.R. No. 130957, Jan. 19,
2000)
Q: Give some forms of neglect of duty.
A:
1.
2.
Habitual tardiness and absenteeism
Abandonment:
a. Failure to report for work or absence
without justifiable reason
b. Clear intention to sever Er‐Ee
relationship manifested by some
overt acts. (Labor et. al v. NLRC, GR
No. 110388, Sep.14, 1995)
4.Abandonment
Q: What is abandonment as a just cause for
termination?
A: It means the deliberate, unjustified refusal of an
employee to resume his employment.
Q: What are the requirements for a valid finding of
abandonment?
A: For a valid finding of abandonment, 2 factors
must be present:
1. The failure to report for work, or absence
without valid or justifiable reason; and
2. A clear intention to sever Er‐Ee
relationship, with the 2nd element as the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
81
UST GOLDEN NOTES 2011
more determinative factor, being
manifested by some overt acts. (Sta.
Catalina College s. NLRC, G.R. No.
144483, Nov. 19, 2003)
money or property – to this class
belong cashiers, auditors, property
custodians, etc., or those who, in the
normal and routine exercise of their
functions,
regularly
handle
significant amounts of money or
property. (Mabeza v. NLRC, G.R. No.
118506 April 18, 1997)
Q: How to prove abandonment?
A: To prove abandonment, the Er must show that
the Ee deliberately and unjustifiably refused to
resume his employment without any intention of
returning. There must be a concurrence of the
intention to abandon and some overt acts from
which an Ee may be deduced as having no more
intention to work. The law, however, does not
enumerate what specific overt acts can be
considered as strong evidence of the intention to
sever the Ee‐Er relationship. (Sta. Catalina College
v. NLRC, G.R. No. 144483. Nov. 19, 2003)
2.
Note: A breach is willful if it is done
intentionally, knowingly, and purposely
without justifiable excuse, as distinguished
from an act done carelessly, thoughtlessly,
heedlessly, or inadvertently (De la Cruz v.
NLRC, G.R. No. 119536, Feb. 17, 1997)
Q: Mejila a barber at Windfield Barber Shop, had
an altercation with a fellow barber which resulted
in his subsequent turning over the duplicate keys
of the shop to the cashier and took away all his
belongings there from and worked at different
barbershop. Mejila then filed an illegal dismissal
case but did not seek reinstatement as a relief. Did
Mejila commit abandonment?
A: Mejila’s acts such as surrendering the shop’s
keys, not reporting to the shop anymore without
any justifiable reason, his employment in another
barber shop, and the filing of a complaint for illegal
dismissal without praying for reinstatement clearly
show that there was a concurrence of the intention
to abandon and some overt acts from which it may
be inferred that the Ee concerned has no more
interest in working. (Jo v. NLRC, G.R. No. 121605,
Feb. 2, 2000)
5.Fraud; Breach of Trust / Loss of Confidence
Q: When is breach of trust/loss of confidence a
just cause for termination?
A:
1.
82
It applies only to cases involving:
a. Employees (Ees) occupying positions
of trust and confidence (confidential
and managerial Ee’s) – to this class
belong managerial Ees, i.e., those
vested with the powers or
prerogatives
to
lay
down
management policies and/or to hire,
transfer, suspend, lay‐off, recall,
discharge, assign or discipline Ees or
effectively
recommend
such
managerial actions
b. Ees routinely charged with the care
and custody of the employer’s (Er’s)
The loss of trust and confidence must be
based on willful breach.
3.
The act constituting the breach must be
“work‐related” such as would show the
Ee concerned to be unfit to continue
working for the Er. (Gonzales V. NLRC,
G.R. No. 131653, Mar. 26, 2001)
4.
It must be substantial and founded on
clearly established facts sufficient to
warrant the Ee’s separation from
employment. (Sulpicio Lines Inc. V. Gulde,
G.R. No. 149930, Feb. 22, 2002)
5.
Fraud must be committed against the Er
or his representatives, e.g.:
a. Falsification of time cards
b. Theft of company property
c. Unauthorized use of company
vehicle
Note: The treatment of rank and file personnel and
managerial Ees in so far as the application of the
doctrine of loss of trust and confidence is concerned is
different. As regards managerial Ees, such as Caoile,
mere existence of a basis for believing that such Ee has
breached the trust of his Er would suffice for his
dismissal. (Caoile v. NLRC, G.R. No. 115491, Nov. 24,
1998)
Q: What are the guidelines for the doctrine of loss
of confidence to apply?
A:
1.
2.
3.
Loss of confidence should not be
simulated (reasonable basis for loss of
trust and confidence)
Not used for subterfuge for causes which
are improper and/or illegal and
unjustified
Not arbitrarily asserted in the face of
overwhelming evidence to the contrary
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
4.
5.
Must be genuine, not a mere
afterthought to justify earlier action taken
in bad faith and
The Ee involved holds a position of trust
and confidence
Note: The breach of trust must rest on substantial
grounds and not on the Er’s arbitrariness, whims,
caprices, or suspicion; otherwise, the Ee would
eternally remain at the mercy of the Er. It should be
genuine and not simulated, nor should it appear as a
mere afterthought to justify earlier action taken in bad
faith of a subterfuge for causes which are improper,
illegal, or unjustified. It has never been intended to
afford and occasion for abuse because of its subjective
nature. There must, therefore, be an actual breach of
dully committed by the employee which must be
established by substantial evidence. (Dela Cruz v.
NLRC, G.R. No. 119536, Feb. 17, 1997)
Q: Mabeza a chambermaid at Hotel Supreme was
terminated from employment because of her
refusal to sign an affidavit attesting to their
employer’s (Er’s) compliance with minimum wage
and other labor standards. Mabeza filed a
complaint for illegal dismissal against Hotel
Supreme. As a defense, Hotel Supreme claimed
that she abandoned her work and belatedly
claimed loss of confidence as the ground for the
dismissal of Mabeza because she stole some of the
properties of her Er. Is loss of confidence a valid
ground for dismissal of a hotel chambermaid?
A: No. Loss of confidence as a just cause for
dismissal was never intended to provide Ers with a
blank check for terminating their Ees. Evidently, an
ordinary chambermaid who has to sign out for linen
and other hotel property from the property
custodian each day and who has to account for
each and every towel or bed sheet utilized by the
hotel's guests at the end of her shift would not fall
under any of these two classes of Ees for which loss
of confidence, if ably supported by evidence, would
normally apply. (Mabeza v. NLRC, G.R. No. 118506,
April 18, 1997)
Q: Abelardo Abel was first hired by Philex Mining
Corp. in Jan. ’88. He was later assigned to the
company’s Legal Dep’t as a Contract Claims Asst.,
and held the position for 5 yrs prior to his transfer
to the Mine Eng’g and Draw Control Dep’t wherein
he was appointed Unit Head. In ‘02, he was
implicated in an irregularity occurring in the
subsidence area of the company’s mine site at
Benguet. His co‐worker Danilo, executed an
affidavit known as the “Subsidence Area
Anomaly”. The incidents in Lupega’s affidavit
supposedly took place when Abel was still a
Contract Claims Asst. at the company’s legal dep’t.
An investigation was promptly launched by the
company’s officers. Abel attended the meetings
but claimed that he was neither asked if he
needed the assistance of counsel nor allowed to
properly present his side. By memo, the company
found Abel guilty of (1) fraud resulting in loss of
trust and confidence and (2) gross neglect of duty,
and was meted out the penalty of dismissal from
employment. Was Abel validly dismissed for any
of the causes provided for in Art. 282 of the LC?
A: No. The 1st requisite for dismissal on the ground
of loss of trust and confidence is that the Ee
concerned must be holding a position of trust and
confidence. Abel was a contract claims assistant at
the time he allegedly committed the acts which led
to its loss of trust and confidence. It is not the job
title but the actual work that the Ee performs. It
was part of Abel’s responsibilities to monitor the
performance of the company’s contractors in
relation to the scope of work contracted out to
them.
The 2nd requisite is that there must be an act that
would justify the loss of trust and confidence. Loss
of trust and confidence, to be a valid cause for
dismissal, must be based on a willful breach of trust
and founded on clearly established facts. The basis
for the dismissal must be clearly and convincingly
established but proof beyond reasonable doubt is
not necessary. The company’s evidence against
Abel fails to meet this standard. Its lone witness,
Lupega, did not support his affidavit and testimony
during the company investigation with any piece of
evidence at all. It could hardly be considered
substantial evidence. (Abel v. Philex Mining Corp.,
G.R. No. 178976, July 31, 2009, J. Carpio‐Morales)
6.Termination of Employment pursuant to Union
Security Clause
Q: MSMG was a local union affiliated with ULGWP
a national federation. MSMG had a dispute with
ULGWP over an imposition of a fine prompting
MSMG to declare independence from ULGWP.
Because of the dispute, ULGWP asked for the
dismissal from employment of the officers of
MDMG from the company by virtue of a union
security clause in the CBA. The company dismissed
the officers. Does a union security clause absolve
the company form observing the requirement of
due process?
A: Although union security clauses embodied in the
CBA may be validly enforced and dismissals
pursuant thereto may likewise be valid, this does
not erase the fundamental requirement of due
process. An employer cannot merely rely upon a
labor federation’s allegations in terminating union
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
83
UST GOLDEN NOTES 2011
officers expelled by the federation for allegedly
committing acts of disloyalty and/or inimical to the
interest of the federation and in violation of its
constitution and by laws.
The right of an Ee to be informed of the charges
against him and to be given a reasonable
opportunity to present his side in a controversy
with either the company or his own union is not
wiped away by a union security clause in a CBA.
Even assuming that a federation had valid grounds
to expel union officers, due process requires that
these union officers be accorded a separate hearing
by the company. (MSMG v. Ramos, G.R. No.
113907, Feb. 28, 2000)
9.Analogous Cases
Q: What is required for an act to be included in
analogous cases of just causes of termination?
A: Must be due to the voluntary and/or willful act
or omission of the employee (Nadura v. Benguet
Consolidated, G.R. No. L‐17780, Aug. 24, 1962), e.g.:
1.
2.
3.
4.
5.
7.Totality of Infractions doctrine
6.
Q: What is the totality of infractions doctrine?
A: It is the totality, not the compartmentalization of
company infractions that the Ee has committed,
which justifies the penalty of dismissal. (MERALCO
v. NLRC, G.R. No. 114129, Oct. 24, 1996)
Note: Where the Ee has been found to have
repeatedly incurred several suspensions or warnings
on account of violations of company rules and
regulations, the law warrants their dismissal as it is
akin to “habitual delinquency”. (Villeno v. NLRC, G.R.
No. 108153, Dec. 26, 1995)
Q: What are the guidelines to determine the
validity of termination?
A: Gravity of the offense
1. Position occupied by the employee
2. Degree of damage to the employer
3. Previous infractions of the same offense
4. Length of Service
Q: What is the doctrine of incompatibility?
A: Where the employee has done something that is
contrary or incompatible with the faithful
performance of his duties, his employer has a just
cause for terminating his employment. (Manila
Chauffeur’s League v. Bachrach Motor Co., G.R. No.
L‐47071, June 17, 1940 )
(b).Authorized Causes
Q: What are the authorized causes of termination
by the employer (Er)?
A:
1.
Installation of labor‐saving
(automation/robotics)
2.
Redundancy
(superfluity
in
the
performance of a particular work) – exists
where the services of an employee (Ee)
are in excess of what is reasonably
demanded by the actual req’ts of the
enterprise. (Wiltshire File Co., Inc. v. NLRC,
G.R. No. 82249, Feb. 7, 1991)
8.Commission of a Crime
Q: What do you mean by “commission of a crime
or offense” as a just cause for termination of an
Ee?
A: It refers to an offense by the Ee against the
person of his employer or any immediate member
of his family or his duly authorized representative
and thus, conviction of a crime involving moral
turpitude is not analogous thereto as the element
of relation to his work or to his employer is lacking.
Note: A criminal case need not be actually filed.
Commission of acts constituting a crime itself is
sufficient.
84
Violation of company rules and
regulations
Drunkenness
Gross inefficiency
Illegally diverting employer’s products
Failure to heed an order not to join an
illegal picket
Violation of safety rules and code of
discipline
devices
Note: The redundancy should not have been
created by the Er.
3.
Reorganization
Note: An Er is not precluded from adopting
a new policy conducive to a more
economical and effective management, and
the law does not require that the Er should
be suffering financial losses before he can
terminate the services of the employee on
the ground of redundancy (DOLE Phil., Inc. v.
NLRC, G.R. No. L‐55413, July 25, 1983)
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
4.
Retrenchment – cutting of expenses and
includes the reduction of personnel; It is a
management prerogative, a means to
protect and preserve the Er’s viability and
ensure his survival. To be an authorized
cause it must be affected in good faith
(GF) and for the retrenchment, which is
after all a drastic recourse with serious
consequences for the livelihood of the
Ee’s or otherwise laid‐off.
Purpose: To enable it to ascertain the
verity of the cause of termination.
2.
Written notice to Ee concerned 30 days
prior the intended date of termination.
3.
Payment of separation pay ‐ Serious
business losses do not excuse the Er from
complying with the clearance or report
required in Art. 283 of the LC and its IRR
before terminating the employment of its
workers. In the absence of justifying
circumstances, the failure of the Er to
observe the procedural req’ts under Art.
284 taints their actuations with bad faith
if the lay‐off was temporary but then
serious business losses prevented the
reinstatement of respondents, the Er’s
should have complied with the req’ts of
written notice.
Note: The phrase “to prevent losses” means
that retrenchment or termination from the
service of some Ees is authorized to be
undertaken by the Er sometime before the
anticipated losses are actually sustained or
realized. Evidently, actual losses need not
set in prior to retrenchment. (Cajucom VII v.
TP Phils Cement Corp., et al, G.R. No.
149090, Feb. 11, 2005)
5.
6.
Closing or cessation of operation of the
establishment or undertaking – must be
done in good faith and not for the
purpose of circumventing pertinent labor
laws.
Disease – must be incurable within 6
months and the continued employment is
prohibited by law or prejudicial to his
health as well as to the health of his co‐
Ees with a certification from the public
health officer that the disease is incurable
within 6 months despite due to
medication and treatment
Q: What are other authorized causes?
A:
1.
2.
3.
Total and permanent disability of Ee
Valid application of union security clause
Expiration of period in term of
employment
4. Completion of project in project
employment
5. Failure in probation
6. Relocation of business to a distant place
7. Defiance of return‐to work‐order
8. Commission of Illegal acts in strike
9. Violation of contractual agreement
10. Retirement
Q: What are the procedural steps required in
termination of an employee for authorized
causes?
A:
1.
Written Notice to DOLE 30 days prior to
the intended day of termination.
Redundancy
Q: What are the requisites of a valid redundancy?
A:
1.
2.
3.
4.
Written notice served on both the
employees (Ees) and the DOLE at least 1
month prior to separation from work
Payment of separation pay equivalent to
at least 1 month pay or at least 1 month
pay for every year of service, whichever is
higher
Good faith in abolishing redundant
position
Fair
and
reasonable
criteria
in
ascertaining what positions are to be
declared redundant:
a. Less preferred status, e.g. temporary
Ee
b. Efficiency and
c. Seniority
Q: Ong, a Sales Manager of Wiltshire File Co., Inc.,
was informed of the termination of his
employment due to redundancy upon returning
from a trip abroad. Ong maintains that there can
be no redundancy since he was the only person
occupying his position in the company.
Is there redundancy even though Ong was the only
one occupying his position.
A: Redundancy in an employer’s (Er’s) personnel
does not necessarily or even ordinarily refer to
duplication of work. The characterization ofOng’s
services as no longer necessary or sustainable and
therefore properly terminable, was an exercise of
business judgment on the part of Wiltshire.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
85
UST GOLDEN NOTES 2011
Furthermore, a position is redundant where it is
superfluous, and superfluity of a position or
positions may be the outcome of a number of
factors, such as over hiring of workers, decreased
volume of business, or dropping of a particular
product line or service activity previously
manufactured or undertaken by the enterprise. The
Er has no legal obligation to keep in its payroll more
employees that are necessary for the operation of
its business. (Wiltshire File Co., Inc. v. NLRC, G.R. No.
82249, Feb. 7, 1991)
Retrenchment is a means of last resort.
Q: What are
retrenchment?
A:
1.
The losses expected should be substantial
and not merely de minimis in extent ‐ If
the loss purportedly sought to be
forestalled by retrenchment is clearly
shown to be insubstantial and
inconsequential in character, the bona
fide nature of the retrenchment would
appear to be seriously in question.
2.
The substantial loss apprehended must be
reasonably imminent ‐ as such imminence
can be perceived objectively and in good
faith by the employer (Er). There should
be a certain degree of urgency for the
retrenchment.
3.
It must be reasonably necessary and likely
to prevent the expected losse ‐ The Er
should have taken other measures prior
or parallel to retrenchment to forestall
losses such as cutting other costs than
labor costs.
4.
The alleged losses if already realized, and
the expected imminent losses sought to
be forestalled, must be proved by
sufficient and convincing evidence ‐ The
reason for requiring this quantum of
proof is readily apparent: any less
exacting standard of proof would render
too easy the abuse of this ground for
termination of services of employees.
(Lopez Sugar Corp. v. Federation of Free
Workers, G.R. No. 75700‐01, Aug. 30,
1990)
Note: The losses which the company may suffer or is
suffering may be proved by financial statements
audited by independent auditors (Asian Alcohol
Corporation v. NLRC, G.R. No. 131108, Mar. 25, 1999)
86
requisites
of
a
valid
A:
1.
2.
Retrenchment
Q: What are the circumstances that must be
present for a valid retrenchment?
the
3.
4.
5.
Written notice served on both the Ee and
the DOLE at least 1 month prior to the
intended date of retrenchment
Payment of separation pay equivalent to
at least one month pay or at least 1/2
month pay for every year of service,
whichever is higher
Good faith
Proof of expected or actual losses
The employer used fair and reasonable
criteria in ascertaining who would be
retained among the Ees, such as status,
efficiency, seniority, physical fitness, age,
and financial hardship of certain workers
(Asian Alcohol Corp. v. NLRC, G.R. No.
131108, Mar. 25, 1999).
Q: What are the criteria in selecting employees
(Ees) to be retrenched?
A: There must be fair and reasonable criteria to be
used in selecting Ees to be dismissed such as:
1. Less preferred status;
2. Efficiency rating;
3. Seniority. (Phil. Tuberculosis Society, Inc.
v. National Labor Union, G.R. No. 115414,
Aug. 25, 1998)
Q: What is the “last in first out (LIFO)” rule?
A: It applies in the termination of employment in
the line of work. What is contemplated in the LIFO
rule is that when there are two or more Ees
occupying the same position in the company
affected by the retrenchment program, the last one
employed will necessarily be the first one to go.
(Maya Farms Ees’ Organization v. NLRC, G.R. No.
106256, Dec. 28, 1994)
Q: Is the seniority rule or "last in first out"
policy to be strictly followed in effecting a
retrenchment or redundancy program?
A: Again, in Asian Alcohol Corp., the SC stated
that with regard the policy of "first in, last out"
in choosing which positions to declare as
redundant or whom to retrench to prevent further
business losses, there is no law that mandates
such a policy. The reason is simple enough. A host
of relevant factors come into play in determining
cost efficient measures and in choosing the Ees
who will be retained or separated to save the
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
company from
closing shop.
In
determining these issues, management plays a
pre‐eminent role. The characterization of positions
as redundant is an exercise of business judgment
on the part of the Er. It will be upheld as long
as it passes the test of arbitrariness. (2001 Bar
Question)
Q: What is the difference between redundancy
and retrenchment?
A: In redundancy, company has no financial
problems, unlike in retrenchment where the
company will suffer financial losses.
Q: Philippine Tuberculosis Society, Inc. retrenched
116 Ees after incurring deficits amounting to 9.1
million pesos. Aside for retrenching some of its
Ees, the company also implemented cost cutting
measures to prevent such losses for increasing and
minimizing it. The NLRC ruled that the
retrenchment was not valid on the ground that the
Society did not take seniority into account in their
selection. Was the retrenchment done by the
Society not valid for its failure to follow the
criteria laid down by law?
A: No. The Society terminated the employment of
several workers who have worked with the Society
for great number of years without consideration for
the number of years of service and their seniority
indicates that they had been retained for such a
long time because of loyal and efficient service. The
burden of proving the contrary rest on the Society.
(Phil. Tuberculosis Society, Inc. v. National Labor
Union, G.R. No. 115414, Aug. 25, 1998)
Q: Due to mounting losses the former owners of
Asian Alcohol Corporation sold its stake in the
company to Prior Holdings. Upon taking control of
the company and to prevent losses, Prior Holdings
implemented a reorganization plan and other cost‐
saving measures and one of them is the
retrenchment of 117 employees (Ees) of which
some are members of the union and the majority
held by non‐union members. Some retrenched
workers filed a complaint for illegal dismissal
alleging that the retrenchment was a subterfuge
for union busting activities.
Was the retrenchment made by Asian Alcohol
valid and justified?
A: Yes. Even though the bulk of the losses were
suffered under the old management and continued
only under the new management ultimately the
new management of Prior Holdings will absorb such
losses. The law gives the new management every
right to undertake measures to save the company
from bankruptcy. (Asian Alcohol Corp. v. NLRC, G.R.
No. 131108, Mar. 25, 1999)
Closure
Q: What are the requisites of a valid closure?
A:
1.
2.
3.
4.
5.
Written notice served on both the
employees (Ees) and the DOLE at least 1
month prior to the intended date of
closure
Payment of separation pay equivalent to
at least one month pay or at least 1/2
month pay for every year of service,
whichever is higher, except when closure
is due to serious business losses
Good faith
No circumvention of the law
No other option available to the Er
Q: What is the test for the validity of closure or
cessation of establishment or undertaking?
A: The ultimate test of the validity of closure or
cessation of establishment or undertaking is that it
must be bona fide in character. And the burden of
proving such falls upon the Er. (Capitol Medical
Center, Inc. vs. Dr. Meris, G.R. No. 155098, Sep. 16,
2005, J. Carpio‐Morales)
Q: When is separation pay required in case of
closure?
A: Only where closure is not due to serious business
losses nor due to an act of gov’t. (North Davao
Mining Corp v. NLRC, G.R. No. 112546, Mar. 13,
1996; NFL v. NLRC, G.R. No. 127718, Mar. 2, 2000)
Q: Galaxie Steel Corp. decided to close down
because of serious business loses. It filed a written
notice with the DOLE informing its intended
closure and the termination of its employees (Ees).
It posted the notice of closure on the corporate
bulletin board.
Q: Does the written notice posted by Galaxie on
the bulletin board sufficiently comply with the
notice req’t under Art. 283 of the LC?
A: No. In order to meet the purpose, service of the
written notice must be made individually upon each
and every Ee of the company. However, the Court
held that where the dismissal is for an authorized
cause, non‐compliance with statutory due process
should not nullify the dismissal, or render it illegal,
or ineffectual. Still, the employer should indemnify
the Ee, in the form of nominal damages, for the
violation of his right to statutory due process.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
87
UST GOLDEN NOTES 2011
(Galaxie Steel Workers Union v. NLRC, G.R. No.
165757, Oct. 17, 2006)
damages and claim for employment benefits.
Were the losses incurred by the company enough
to justify closure of its operations?
Are Ees entitled to separation pay?
A: No. Galaxie had been experiencing serious
financial losses at the time it closed business
operations. Art. 283 of the LC governs the grant of
separation benefits "in case of closures or cessation
of operation" of business establishments "not due
to serious business losses or financial reverses."
Where, the closure then is due to serious business
losses, the LC does not impose any obligation upon
the employer to pay separation benefits. (Galaxie
Steel Workers Unin v. NLRC, G.R. No. 165757, Oct.
17, 2006)
Q: Rank‐and‐file workers of SIMEX filed a petition
for direct certification and affiliated with Union of
Filipino Workers (UFW). Subsequently, 36 workers
of the company’s “lumpia” dep’t and 16 other
workers from other dep’ts were effectively locked
out when their working areas were cleaned out.
The workers through UFW filed a complaint for
unfair labor practices against the company. SIMEX
then filed a notice of permanent shutdown/total
closure of all units of operation in the
establishment with the DOLE allegedly due to
business reverses brought about by the enormous
rejection of their products for export to the United
States.
Was the closure warranted by the alleged business
reverses?
A: The closure of a business establishment is a
ground for the termination of the services of any
employee unless the closing is for the purpose of
circumventing the provisions of the law. But, while
business reverses can be a just cause for
terminating employees, they must be sufficiently
proved. In this case, the audited financial statement
of SIMEX clearly indicates that they actually derived
earnings. Although the rejections may have reduced
their earnings they were not suffering losses. There
is no question that an employer may reduce its
work force to prevent losses but it must be serious,
actual and real otherwise this ground for
termination would be susceptible to abuse by
scheming employers who might be merely feigning
business losses or reverses in their business
ventures to ease out employees. (Union of Filipino
Workers v. NLRC, G.R. No. 90519, Mar. 23, 1992)
Q: Carmelcraft Corporation closed it business
operations allegedly due to losses of P1, 603.88
after the Carmelcraft Ees Union filed a petition for
certification election. Carmelcraft Union filed a
complaint for illegal lockout and ULP with
88
A: The determination to cease operations is a
prerogative of management that is usually not
interfered with by the State as no business can be
required to continue operating at a loss simply to
maintain the workers in employment. That would
be a taking of property without due process of law
which the employer has a right to resist. But where
it is manifest that the closure is motivated not by a
desire to avoid further losses but to discourage the
workers from organizing themselves into a union
for more effective negotiations with management,
the State is bound to intervene. The losses of less
than P2,000 for a corporation capitalized at P3
million cannot be considered serious enough to call
for the closure of the company. (Carmelcraft Corp.
v. NLRC, G.R. No. 90634‐35, June 6, 1990)
Q: Is the transferee of the closed corporation
required to absorb the employees (Ees) of the old
corporation?
A:
GR: There is no law requiring a bona fide purchaser
of assets of an on‐going concern to absorb in its
employ the Ee’s of the latter except when the
transaction between the parties is colored or
clothed with bad faith (BF). (Sundowner Dev’t Corp.
v. Drilon, G.R. No. 82341, Dec. 6, 1989)
XPNs:
1.
2.
Where the transferee was found to be
merely an alter ego of the different
merging firms. (Filipinas Port Services, Inc.
v. NLRC, G.R. No. 97237, Aug. 16, 1991)
Where the transferee voluntarily agrees
to do so. (Marina Port Services, Inc. v.
Iniego, G.R. No. 77853, Jan. 22, 1990)
Q: Marikina Dairy Industries, Inc. decided to sell its
assets and close operations on the ground of
heavy losses. The unions alleged that the financial
losses were imaginary and the dissolution was a
scheme maliciously designed to evade its legal and
social obligations to its employees (Ees). The
unions want the buyers of the corporations assets
restrained to operate unless the members of the
unions were the ones hired to operate the plant
under the terms and conditions specified in the
collective bargaining agreements.
Is the buyer of a company’s assets required to
absorb the Ees of the seller?
A: There is no law requiring that the purchaser of a
company’s assets should absorb its Ees and the
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
2.
most that can be done for reasons of public policy
and social justice was to direct that buyers of such
assets to give preference to the qualified separated
Ees in the filling up of vacancies in the facilities of
the buyer. (MDII Supervisors & Confidential Ees
Ass’n (FFW) v. residential Assistant on Legal Affairs,
G.R. Nos. L‐45421‐23, Sep. 9, 1977)
Note: The req’t for a medical certification cannot
be dispensed with; otherwise, it would sanction
the unilateral and arbitrary determination by the
Er of the gravity or extent of the Ee’s illness and
thus defeat the public policy on the protection of
labor. (Manly Express v Payong, G.R. No. 167462,
Oct.25, 2005)
Q: What is the difference between closure and
retrenchment?
A:
CLOSURE
Is the reversal of
fortune of the Er
whereby there is a
complete cessation of
business operations to
prevent further financial
drain upon an Er who
cannot pay anymore his
Ees since business has
already stopped.
One of the prerogatives
of management is the
decision to close the
entire establishment or
to close or abolish a
department or section
thereof for economic
reasons, such as to
minimize expenses and
reduce capitalization.
Does not obligate the Er
for the payment of
separation package if
there is closure of
business due to serious
losses.
RETRENCHMENT
Is the reduction of
personnel for the purpose
of cutting down on costs of
operations in terms of
salaries
and
wages
resorted to by an Er
because of losses in
operation of a business
occasioned by lack of work
and considerable reduction
in the volume of business.
As in the case of
retrenchment, however,
for the closure of a
business or a department
due to serious business
losses to be regarded as an
authorized
cause
for
terminating Ees, it must be
proven that the losses
incurred are substantial
and actual or reasonably
imminent; that the same
increased through a period
of time; and that the
condition of the company
is not likely to improve in
the near future.
LC provides for the
payment of separation
package in case of
retrenchment to prevent
losses.
Disease
Q: When is disease a ground for dismissal?
A: Where the Ee suffers from a disease, and:
1. His continued employment is prohibited
by law or prejudicial to his health or to
the health of his co‐Ees. (Sec.8, Rule I,
Book VI, IRR)
With a certification by competent public
health authority that the disease is
incurable within 6 months despite due
medication and treatment. (Solis v. NLRC,
GR No. 116175, Oct. 28,1996)
Termination of services for health reasons must
be effected only upon compliance with the above
requisites. The req’t for a medical certificate
under Art. 284 of the LC cannot be dispensed
with; otherwise, it would sanction the unilateral
and arbitrary determination by the Er of the
gravity or extent of the Ee’s illness and thus
defeat the public policy on the protection of
labor. (Sy et. al v. CA, G.R. No. 142293, Feb. 27,
2003)
Q: What is the procedure in terminating an
employee (Ee) on the ground of disease?
A:
1.
The employer (Er) shall not terminate his
employment unless:
a. There is a certification by a
competent public health authority
b. That the disease is of such nature or
at such a stage that it cannot be
cured within a period of 6 months
even with proper medical treatment.
2.
If the disease or ailment can be cured
within the period, the Er shall not
terminate the Ee but shall ask the Ee to
take a leave. The Er shall reinstate such Ee
to his former position immediately upon
the restoration of his normal health. (Sec.
8, Rule I, Book VI, IRR)
Q: Is an employee suffering from a disease entitled
to reinstatement?
A: Yes, provided he presents a certification by a
competent public health authority that he is fit to
return to work. (Cebu Royal Plant v. Deputy
Minister, G.R. No. L‐58639, Aug. 12, 1987)
Q: Is the requirements of a medical certificate
mandatory?
A: Yes, it is only where there is a prior certification
from a competent public authority that the disease
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
89
UST GOLDEN NOTES 2011
afflicting the employee sought to be dismissed is of
such nature or at such stage that it cannot be cured
within 6 months even with proper medical
treatment that the latter could be validly
terminated from his job. (Tan v. NLRC, G. R. No.
116807, April 14, 1997)
Note: Termination from work on the sole basis of
actual perceived or suspected HIV status is deemed
unlawful. (Sec. 35, R.A. 8504 HIV/AIDS Law)
Q: Anna Ferrer has
been
working
as
bookkeeper at Great Foods, Inc., which operates a
chain of high‐end restaurants throughout the
country, since 1970 when it was still a small
eatery at Binondo. In the early part of the year
2003, Anna, who was already 50 years old,
reported for work after a week‐long vacation in
her province. It was the height of the SARS scare,
and management learned that the first confirmed
SARS death case in the Phils, a “balikbayan” nurse
from Canada, is a townmate of Anna.
Immediately, a memorandum was issued by
management terminating the services of Anna on
the ground that she is a probable carrier of SARS
virus and that her continued employment is
prejudicial to the health of her co‐Ees. Is the
action taken by the employer (Er) justified?
A: The Er’s act of terminating the employment of
Anna is not justified. There is no showing that said
employee is sick with SARS, or that she associated or
had contact with the deceased nurse. They are
merely town mates. Furthermore, there is no
certification by a competent public health authority
that the disease is of such a nature or such a stage
that it cannot be cured within a period of 6 months
even with proper medical treatment. (Implementing
Rules, Book VI, Rule 1, Sec. 8, LC) (2004 Bar
Question)
Q: Discuss the rules on separation pay with regard
to each cause of termination.
A:
CAUSE OF
TERMINATION
Automation
Redundancy
Retrenchment
90
SEPARATION PAY
Equivalent to at least 1 month
pay or at least 1 month pay
for every year of service,
whichever is higher
Equivalent to at least 1 month
pay or at least 1 month pay
for every year of service,
whichever is higher
Equivalent to 1 month pay or
at least ½ month
pay for
every year or service
Closures or cessation
of operation not due
to
serious
business
losses/financial
reverses
Disease
Equivalent to at least 1 month
pay or at least 1 month pay
for every year of service (if
due to severe financial losses,
no separation pay
Equivalent to at least 1 month
pay or at least ½ month pay
for every year of service,
whichever is higher
Note: A fraction of at least 6 months shall be
considered 1 whole year.
There is no separation pay when the closure is due to
an act of the gov’t.
Q: What is the purpose of the 2 notices served to
the Ee and DOLE 1 month prior to termination?
A:
1.
2.
To give the Ees some time to prepare for
the eventual loss of their jobs and their
corresponding income, look for other
employment and ease the impact of the
loss of their jobs.
To give DOLE the opportunity to ascertain
the verity of the alleged cause of
termination. (Phil. Telegraph & Telephone
Corp. v. NLRC, G.R. No. 147002, April 15,
2005)
Note: Notice to both the Ees concerned and the DOLE
are mandatory and must be written and given at least
1 month before the intended date of retrenchment –
and the fact that the Ees were already on temporary
lay‐off at the time notice should have been given to
them is not an excuse to forego the 1‐month written
notice. (Sebuguero v. NLRC, G.R. No.115394, Sep. 27,
1995)
Q: DAP Corp. ceased its operation due to the
termination of its distribution agreement with Int’l
Distributors Corp. which resulted in its need to
cease its business operations and to terminate the
employment of its Ees. Marcial et al. filed a
complaint for illegal dismissal and for failure to
give the Ees written notices regarding the
termination of their employment. On the other
hand, DAP claims that their Ees actually knew of
the termination therefore the written notices
were no longer required. Are written notices
dispensed with when the Ees have actual
knowledge of the redundancy?
A: The Ees’ actual knowledge of the termination of
a company’s distributorship agreement with
another company is not sufficient to replace the
formal and written notice required by law. In the
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
written notice, the Ees are informed of the specific
date of the termination, at least a month prior to
the date of effectivity, to give them sufficient time
to make necessary arrangements. In this case,
notwithstanding the Ees knowledge of the
cancellation of the distributorship agreement, they
remained uncertain about the status of their
employment when DAP failed to formally inform
them about the redundancy. (DAP Corp. v. CA, G.R.
No. 165811, Dec. 14, 2005)
1.
2.
b.Procedural due process
The req’t of notice is intended to inform
the Ee concerned of the Er’s intent to
dismiss him and the reason for the
proposed dismissal
On the otherhand the req’t of hearing
affords the Ee the opportunity to answer
his Er’s charges against him and
accordingly to defend himself there from
before dismissal is effected. (Salaw v.
NLRC G.R. No. 90786 Sep. 27, 1991)
Note: Failure to comply with the req’t of the
2 notices makes the dismissal illegal. The
procedure is mandatory. (Loadstar Shipping
Co. Inc. v. Mesano, G.R. No. 138956, Aug. 7,
2003)
Q: What are the 2‐fold requirements of a valid
dismissal for a just cause?
A:
1.
2.
Substantive – it must be for a just cause
Procedural – there must be notice and
hearing
Q: What is the process to be observed by the
employer (Er) for termination of the employment
based on any of the just causes for termination?
A:
1.
A written notice should be served to the
Ee specifying the ground/s for
termination and giving the said Ee
reasonable opportunity to explain.
Note: This first written notice must apprise
the Ee that his termination is being
considered due to the acts stated in the
notice. (Phil. Pizza Inc. v. Bungabong, G.R.
No. 154315, May 9, 2005)
2.
3.
A hearing or conference should be held
during which the Ee concerned, with the
assistance of counsel, if the Ee so desires,
is given the opportunity to respond to the
charge, present his evidence and present
the evidence presented against him.
A written notice of termination – If
termination is the decision of the Er, it
should be served on the Ee indicating that
upon due considerations of all the
circumstance, grounds have been
established to justify his termination, at
least one month prior to his termination.
Q: While it may be true that the Er enjoys wider
latitude of discretion in terminating employees
(Ees) should there exists valid and just cause,
would this be sufficient for the Er to depart from
giving the Ee the right to be heard?
A: Art. 277(b) of the LC mandates that an Er who
seeks to dismiss an Ee must “afford the latter ample
opportunity to be heard and to defend himself with
the assistance of his representative if he so desires.”
Expounding on this provision, the SC held that
“ample opportunity” connotes every kind of
assistance that management must accord the Ee to
enable him to prepare adequately for his defense
including legal representation. (U‐BIX Corp. vs.
Bravo, G.R. No. 177647, Oct. 31, 2008)
Q: What is included in the opportunity to be
heard?
A: The issue was addressed in an en banc decision
rendered by the Supreme Court. With a 14‐1 vote
the Court through Chief Justice Corona held as
follows:
a)
b)
Note: Single notice of termination does not
comply with the requirements of the law.
(Aldeguer & Co., Inc. vs. Honeyline Tomboc,
G.R. No. 147633, July 28, 2008)
Q: What is the purpose of notice and hearing?
A:
c)
“Ample opportunity to be heard” in an
employee dismissal case means any
meaningful opportunity (verbal or
written) given to the employee to answer
the charges against him or her and submit
evidence in support of the defences,
whether in a hearing, conference or some
other fair, just and reasonable way.
A formal hearing or conference becomes
mandatory only when requested by the
employee in writing or substantial
evidentiary disputes exist or a company
rule or practice requires it, or when
similar circumstance justify it.
The “ample opportunity to be heard”
standard in the Labor Code prevails over
the “hearing or conference” requirement
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
91
UST GOLDEN NOTES 2011
in the implementing rules and
regulations. (Perez v. PT&T, G.R. No.
152048, Apr. 7, 2009)
Q: Who has the burden of proof?
A: The burden of proof rests upon the employer to
show that the dismissal of the employee is for a just
cause, and failure to do so would necessarily mean
that the dismissal is not justified, consonant with
the constitutional guarantee of security of tenure.
Note: Due process refers to the process to be
followed; burden of proof refers to the amount of
proof to be adduced.
In money claims, the burden of proof as to the amount
to be paid the Ees rests upon the Er since he is in
custody of documents that would be able to prove the
amount due, such as the payroll.
Q: What is the degree of proof?
A: In administrative or quasi‐judicial proceedings,
substantial evidence is considered sufficient in
determining the legality of an employer’s dismissal
of an employee. (Pangasinan III Electric
Cooperative, Inc. v. NLRC, G.R. No. 89878, Nov. 13,
1992)
Q: Perez and Doria were employed by PT&T. After
investigation, Perez and Doria were placed on
preventive suspension for 30 days for their alleged
involvement in anomalous transactions in the
shipping section. PT&T dismissed Perez and Doria
from service for falsifying documents. They filed a
complaint for illegal suspension and illegal
dismissal. The LA found that the 30‐day extension
of suspension and the subsequent dismissal were
both illegal. The NLRC reversed the LA’s decision, it
ruled that Perez and Doria were dismissed for just
cause, that they were accorded due process and
that they were illegally suspended for only 15 days
(without stating the reason for the reduction of
the period of petitioners’ illegal suspension). On
appeal, CA held that they were dismissed without
due process. Whether petitioners were illegally
dismissed?
A: Yes. The Er must establish that the dismissal is
for cause in view of the security of tenure that Ees
enjoy under the Constitution and the LC. PT&T
failed to discharge this burden. PT&T’s illegal act of
dismissing Perez and Doria was aggravated by their
failure to observe due process. To meet the req’ts
of due process in the dismissal of an Ee, an Er must
furnish the worker with 2 written notices: (1) a
written notice specifying the grounds for
termination and giving to said Ee a reasonable
92
opportunity to explain his side and (2) another
written notice indicating that, upon due
consideration of all circumstances, grounds have
been established to justify the Er's decision to
dismiss the Ee.
There is however, no need for a hearing or
conference. “To be heard” does not mean verbal
argumentation alone inasmuch as one may be
heard just as effectively through written
explanations, submissions or pleadings. In other
words, the existence of an actual, formal “trial‐
type” hearing, although preferred, is not absolutely
necessary to satisfy the employee’s right to be
heard. (Perez. v. Phil. Telegraph and Telephone
Company, G.R. No. 152048, April 7, 2009)
Q: What are the guidelines in determining
whether penalty imposed on Ee is proper?
A:
1.
2.
3.
4.
5.
Gravity of the offense
Position occupied by the Ee
Degree of damage to the employer (Er)
Previous infractions of the same offense
Length of service (ALU‐TUCP v. NLRC, G.R.
No. 120450, Feb. 10, 1999; PAL v. PALEA,
G.R. No.L‐24626, June 28,1974)
Q: Felizardo was dismissed from Republic Flour
Mills‐Selecta ice cream Corporation for dishonesty
and theft of company property for bringing out a
pair of boots, 1 piece aluminum container and 15
pieces of hamburger patties. Is the penalty of
dismissal commensurate with the offense
committed?
A: There is no question that the employer has the
inherent right to discipline its Ees which includes
the right to dismiss. However this right is subject to
the police power of the State. In this case the Court
finds that the penalty imposed upon Felizardo was
not commensurate with the offense committed
considering the value of the articles he pilfered and
the fact that he had no previous derogatory record
during his 2 years of employment in the company.
Moreover, it should also be taken into account that
Felizardo was not a managerial or confidential Ee in
whom greater trust is reposed by management and
from whom greater fidelity to duty is
correspondingly expected. (ALU‐TUCP v. NLRC, G.R.
No. 120450, Feb. 10, 1999)
(1) Agabon Doctrine
Q: If the dismissal is for a just or authorized cause
but the requirement of due process of notice and
hearing were not complied with should the
dismissal be held illegal?
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
A: No, In Agabon v. NLRC, G.R. No. 158693, Nov.
17, 2004, it was held that when dismissal is for just
or authorized cause but due process was not
observed, the dismissal should be upheld.
However, the employer (Er) should be held liable
for non‐compliance with the procedural req’ts of
due process (e.g. damages). The Agabon ruling was
modified by JAKA Food Processing v. Pacot (G.R. No.
515378, Mar. 28, 2005) where it was held that:
1.
2.
If based on just cause (Art. 282) but the Er
failed to comply with the notice req’t, the
sanction to be imposed upon him should
be tempered because the dismissal
process was, in effect, initiated by an act
imputable to the Ee; and
If based on authorized causes (Art. 283)
but the Er failed to comply with the notice
req’t, the sanction should be stiffer
because the dismissal process was
initiated by Er’s exercise of his
management prerogative.
c.Reliefs for illegal dismissal
(1)Reinstatement aspect
Q: What are the remedies available to an illegally
dismissed employee (Ee)?
A: An Ee who is unjustly dismissed from work shall
by entitled to:
1. Reinstatement without loss of seniority
rights and
2. Full backwages. (Sec. 3, Rule I, Book VI,
IRR)
3. Separation pay in lieu of reinstatement, if
the latter is no longer feasible
Q: What is reinstatement?
A: It is the restoration of the employee to the state
from which he has been unjustly removed or
separated without loss of seniority rights and other
privileges.
(a)Immediately executory: actual reinstatement and
payroll reinstatement
Q: What are the forms of reinstatement?
A:
1.
2.
Actual or physical – the employee (Ee) is
admitted back to work
Payroll – the Ee is merely reinstated in the
payroll
Note: An order of reinstatement by the LA is not the
same as actual reinstatement of a dismissed or
separated Ee. Thus, until the Er continuously fails to
actually implement the reinstatement aspect of the
decision of the LA, their obligation to the illegally
dismissed Ee, insofar as accrued backwages and other
benefits are concerned, continues to accumulate. It is
only when the illegally dismissed Ee receives the
separation pay (in case of strained relations) that it
could be claimed with certainty that the Er‐Ee
realtionship has formally ceased thereby precluding
the possibility of reinstatement. In the meantime, the
illegally dismissed Ees entitlement to backwages, 13th
month pay, and other benefits subsists. Until the
payment of separation pay is carried out, the Er should
not be allowed to remain unpunished for the delay, if
not outright refusal, to immediately execute the
reinstatement aspect of the LA’s decision.
Further, the Er cannot refuse to reinstate the illegally
dismissed Ee by claiming that the latter had already
found a job elsewhere. Minimum wage earners are left
with no choice after they are illegally dismissed from
their employment, but to seek new employment in
order to earn a decent living. Surely, we could not fault
them for their perseverance in looking for and
eventually securing new employment opportunities
instead of remaining idle and waiting the outcome of
the case. (Triad Security & Allied Services, Inc. et al v.
Ortega, G.R. No. 160871, Feb. 6, 2006).
Q: Distinguish Arts. 223 from 279 of the LC?
A:
Art. 279
Presupposes that the
judgment has already
become
final
and
executory.
Consequently, there is
nothing left to be done
except the execution
thereof.
Art. 223
May be availed of as soon
as the labor arbiter
renders
a
judgment
declaring
that
the
dismissal of the Ee is
illegal and ordering said
reinstatement. It may be
availed of even pending
appeal
Note: An award or order for reinstatement is self‐
executory. It does not require the issuance of a writ of
execution. (Pioneer Texturizing Corp. v. NLRC, G.R. No.
118651, Oct. 16, 1997)
Q: PAL dismissed Garcia, for violating PAL’s Code
of Discipline for allegedly sniffing shabu in PAL’s
Technical Center Toolroom Section. Garcia then
filed for illegal dismissal and damages where the
Labor Arbiter (LA) ordered PAL to immediately
reinstate Garcia. On appeal, the NLRC reversed
the decision and dismissed Garcia’s complaint for
lack of merit. Garcia’s motion for reconsideration
was denied by the NLRC. It affirmed the validity of
the writ and the notice issued by the LA but
suspended and referred the action to the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
93
UST GOLDEN NOTES 2011
Rehabilitation Receiver for appropriate action.
Whether Garcia may collect their wages during the
period between the LA’s order of reinstatement
pending appeal and the NLRC decision overturning
that of the LA?
A: Par. 3 of Art. 223 of the LC provides that the
decision of the LA reinstating a dismissed or
separated Ee, insofar as the reinstatement aspect is
concerned, shall immediately be executory,
pending appeal.
Even if the order of reinstatement of the LA is
reversed on appeal, it is obligatory on the part of
the Er to reinstate and pay the wages of the
dismissed Ee during the period of appeal until
reversal by the higher court. On the other hand, if
the Ee has been reinstated during the appeal period
and such reinstatement order is reversed with
finality, the Ee is not required to reimburse
whatever salary he received for he is entitled to
such, more so if he actually rendered services
during the period.
In other words, a dismissed Ee whose case was
favorably decided by the LA is entitled to receive
wages pending appeal upon reinstatement, which is
immediately executory. Unless there is a restraining
order, it is ministerial upon the LA to implement the
order of reinstatement and it is mandatory on the
Er to comply therewith. (Garcia vs. PAL, G.R. No.
164856, Jan.20, 2009)
Q: What is the effect of the reversal of LA’s
decision to the reinstated employee (Ee)
A: If the decision of the LA is later reversed on
appeal upon the finding that the ground for
dismissal is valid, then the Er has the right to
require the dismissed Ee on payroll reinstatement
to refund the salaries he/she received while the
case was pending appeal, or it can be deducted
from the accrued benefits that the dismissed Ee
was entitled to receive from the employer under
existing laws, CBA provisions, and company
practices. However, if the Ee was reinstated to work
during the pendency of the appeal, then the Ee is
entitled to receive the compensation received for
actual services rendered without need of refund
(Citibank v. NLRC, G.R. No. 142732‐33, Dec. 4,
2007).
Q: May a court order the reinstatement of a
dismissed employee (Ee) even if the prayer of the
complaint did not include such relief?
not include a prayer for reinstatement, unless, of
course the Ee has waived his right to reinstatement.
By law, an Ee who is unjustly dismissed is entitled to
reinstatement among others. The mere fact that
the complaint did not pray for reinstatement will
not prejudice the Ee, because technicalities of law
and procedure are frowned upon in labor
proceedings (Pheschem Industrial Corp. v. Moldez,
G.R. No. 1161158, May 9, 2005).
Q: What happens if there is an Order of
Reinstatement but the position is no longer
available?
A: The employee (Ee) should be given a
substantially equivalent position. If no substantially
equivalent position is available, reinstatement
should not be ordered because that would in effect
compel the employer to do the impossible. In such
a situation, the Ee should merely be given a
separation pay consisting of 1‐month salary for
every year of service (Grolier Int’l Inc. v. ELA, G.R.
No. 83523, Aug. 31, 1989)
(2)Separation pay in lieu of reinstatement
Q: How can separation pay be viewed?
A: Under present laws and jurisprudence,
separation pay may be viewed in 4 ways:
1.
2.
3.
4.
Q: Is an illegally dismissed employee entitled to
reinstatement as a matter of right?
A: GR: Yes.
XPNS: Proceeds from an illegal dismissal
wherein reinstatement is ordered but cannot be
carried out as in the following cases:
1.
2.
A: Yes. So long as there is a finding that the Ee was
illegally dismissed, the court can order the
reinstatement of an Ee even if the complaint does
94
In lieu of reinstatement in illegal dismissal
cases, where Ee is ordered reinstated but
reinstatement is not feasible.
As Er’s statutory obligation in cases of
legal termination due to authorized
causes under Art. 283 and 284 of the LC.
As financial assistance, as an act of social
justice and even in case of legal dismissal
under Art. 282 of the LC.
As employment benefit granted in CBA or
company policy. (Poquiz, 2005)
Reinstatement cannot be effected in view
of the long passage of time or because of
the realities of the situation.
It would be inimical to the employers’
interest.When reinstatement is no longer
feasible.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
3.
4.
5.
6.
7.
When it will not serve the best interest of
the parties involved.
Company will be prejudiced by
reinstatement.
When it will not serve a prudent purpose.
When there is resultant strained relation
(applies to both confidential and
managerial employees (Ees) only).
When the position has been abolished
(applies to both managerial, supervisory
and rank‐and‐file Ees).
Note: In such cases, it would be more prudent to order
payment of separation pay instead of reinstatement.
(Quijano v. Mercury Drug Corporation, G.R. No.
126561, July 8, 1998)
Q: Respondents are licensed drivers of public
utility jeepneys owned by Moises Capili. When
Capili assumed ownership and operation of the
jeepneys, the drivers were required to sign
individual contracts of lease of the jeepneys. The
drivers gathered the impression that signing the
contract was a condition precedent before they
could continue driving. The drivers stopped plying
their assigned routes and a week later filed with
the Labor Arbiter a complaint for illegal dismissal
praying not for reinstatement but for separation
pay. Are the respondents entitled to separation
pay?
A: No. When drivers voluntarily chose not to return
to work anymore, they must be considered as
having resigned from their employment. The
common denominator of those instances where
payment of separation pay is warranted is that the
employee was dismissed by the employer. (Capili v.
NLRC, G.R. 117378, Mar. 26, 1997)
Q: Two groups of seasonal workers claimed
separation benefits after the closure of Phil.
Tobacco processing plant in Balintawak and the
transfer of its tobacco operations to Candon,
Ilocos Sur. Phil. Tobacco refused to grant
separation pay to the workers belonging to the
first batch (Lubat group), because they had not
been given work during the preceding year and,
hence, were no longer in its employ at the time it
closed its Balintawak plant. Likewise, it claims
exemption from awarding separation pay to the
second batch (Luris group), because the closure of
its plant was due to "serious business losses," as
defined in Art. 283 of the LC. Both labor agencies
held that the Luris and Lubat groups were entitled
to separation pay equivalent to 1/2 month salary
for every of service, provided that the Ee worked
at least 1 month in a given year. Is the separation
pay granted to an illegally dismissed Ee the same
as that provided under Art. 283 of the LC in case of
retrenchment to prevent losses?
A: No. The separation pay awarded to employees
due to illegal dismissal is different from the amount
of separation pay provided for in Art. 283 of the LC.
Prescinding from the above, Phil. Tobacco is liable
for illegal dismissal and should be responsible for
the reinstatement of the Lubat group and the
payment of their backwages. However, since
reinstatement is no longer possible as Phil. Tobacco
have already closed its Balintawak plant, members
of the said group should instead be awarded
normal separation pay (in lieu of reinstatement)
equivalent to at least one month pay, or one month
pay for every year of service, whichever is higher. It
must be stressed that the separation pay being
awarded to the Lubat group is due to illegal
dismissal; hence, it is different from the amount of
separation pay provided for in Article 283 in case of
retrenchment to prevent losses or in case of closure
or cessation of the Er’s business, in either of which
the separation pay is equivalent to at least one (1)
month or one‐half (1/2) month pay for every year
of service, whichever is higher. (Phil. Tobacco Flue‐
Curing & Redrying Corp. v. NLRC, G.R. No. 127395,
Dec. 10, 1998)
(a)Strained relation rule
Q: What is the doctrine of strained relations?
A: When the Er can no longer trust the Ee and vice
versa, or there were imputations of bad faith to
each other, reinstatement could not effectively
serve as a remedy. This doctrine applies only to
positions which require trust and confidence (Globe
Mackay v. NLRC, G.R. No. 82511, March 3, 1992).
Note: Under the circumstances where the
employment relationship has become so strained to
preclude a harmonious working relationship and that
all hopes at reconciliation are naught after
reinstatement, it would be more beneficial to accord
the Ee backwages and separation pay.
Q: What must be proven before the principle of
strained relations can be applied to a particular
case?
A:
1.
2.
The Ee concerned occupies a position
where he enjoys the trust and confidence
of his Er; and
That it is likely that if reinstated, an
atmosphere of antipathy and antagonism
may be generated as to adversely affect
the efficiency and productivity of the Ee
concerned. (Globe Mackay Cable & Wire
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
95
UST GOLDEN NOTES 2011
Corp. v. NLRC G.R. No. 82511, Mar. 3,
1992)
Q: Does the doctrine of strained relationship
always bar reinstatement in all cases?
A: No. The doctrine should be applied on a case to
case basis, based on each case’s peculiar conditions
and not universally. Otherwise, reinstatement can
never be possible simply because some hostility is
invariably engendered between the parties as a
result of litigation. That is human nature. (Anscor
Transport v. NLRC, G.R. No. 85894, Sept. 28, 1990)
Besides, no strained relations should arise from a
valid and legal act of asserting one's right;
otherwise an Ee who shall assert his right could be
easily separated from the service, by merely paying
his separation pay on the pretext that his
relationship with his employer (Er) had already
become strained. (Globe Mackay Cable & Wire
Corp. v. NLRC, G.R. No. 82511, Mar. 3, 1992)
Q: Differentiate Art. 279 of the LC from Sec. 7 of
R.A. 10022.
A: The payment of backwages is generally granted
on the ground of equity. It is a form of relief that
restores the income that was lost by reason of the
unlawful dismissal; the grant thereof is intended to
restore the earnings that would have accrued to the
dismissed Ee during the period of dismissal until it is
determined that the termination of employment is
for a just cause. It is not private compensation or
damages but is awarded in furtherance and
effectuation of the public objective of the LC. Nor is
it a redress of a private right but rather in the
nature of a command to the employer to make
public reparation for dismissing an Ee either due to
the former’s unlawful act or bad faith. (Tomas
Claudio Memorial College Inc., v. CA, G.R. No.
152568, Feb. 16, 2004)
Q: What is the period covered by the payment of
backwages?
A: The backwages shall cover the period from the
date of dismissal of the employee up to the date of:
1.
2.
A:
Art. 279, LC (Local
Workers)
Reinstatement
Full backwages from the
time of his compensation
was withheld from him
up to the time of his
actual reinstatement.
Sec. 7, RA 10022
(Migrant Workers)
Full Reimbursement of his
placement fee with
interest of 12% per
annum.
Actual reinstatement, or if reinstatement
is no longer feasible
Finality of judgment awarding backwages
(Buhain v. CA, G.R. 143709, July 2, 2002)
Note: The backwages to be awarded should not be
diminished or reduced by earnings elsewhere during
the period of his illegal dismissal. The reason is that
the Ee while litigating the illegality of his dismissal
must earn a living to support himself and his family.
(Bustamante v. NLRC, G.R. No. 111651, Mar. 15, 1996;
Buenviaje v. CA, G.R. No. 147806, Nov. 2002)
(a)Components of the amount of backwages
(3)Backwages
Q: What is included in the computation of
backwages?
A: They cover the following:
Q: What are backwages?
A: It is the relief given to an employee (Ee) to
compensate him for the lost earnings during the
period of his dismissal. It presupposes illegal
termination.
Note: Entitlement to backwages of the illegally
dismissed Ee flows from law. Even if he does not ask
for it, it may be given. The failure to claim backwages
in the complaint for illegal dismissal is a mere
procedural lapse which cannot defeat a right granted
under substantive law. (St. Michael’s Institute v.
Santos, G.R. No. 145280, Dec. 4, 2001)
Q: What is the basis of awarding backwages to an
illegally dismissed employee (Ee)?
1.
2.
3.
Transportation
and
emergency
allowances
Vacation or service incentive leave and
sick leave
th
13 month pay
Note: Facilities such as uniforms, shoes, helmets and
ponchos should not be included in the computation of
backwages because said items are given for free, to be
use only during official tour of duty not for private or
personal use.
The award of backwages is computed on the basis of
30‐day month. (JAM Trans Co. v. Flores, G.R. No. L‐
63555, Mar. 19, 1993)
Q: What does the term “full backwages” mean?
96
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
A: The Labor Code as amended by R.A. 6715 points
to "full backwages" as meaning exactly that, i.e.,
without deducting from backwages the earnings
derived elsewhere by the concerned Ee during the
period of his illegal dismissal. (Buenviaje v. CA, G.R.
147806, Nov. 12, 2002)
The underlying reason for this ruling is that the
employee, while litigating the legality (illegality) of
his dismissal, must still earn a living to support
himself and family, while full backwages have to be
paid by the employer as part of the price he has to
pay for illegally dismissing his Ee. (Bustamante v.
NLRC, G.R. No. 111651, Mar. 15, 1996)
Q: Is an Ee entitled to backwages even after the
closure of the business?
A: Yes. The closure of the business rendered the
reinstatement of complainant to her previous
position impossible but she is still entitled to the
payment of backwages up to the date of dissolution
or closure. An employer found guilty of unfair labor
practice in dismissing his Ee may not be ordered to
pay backwages beyond the date of closure of
business where such closure was due to legitimate
business reasons and not merely an attempt to
defeat the order of reinstatement. (Pizza Inn v.
NLRC, G.R. No. 74531, June 28, 1988)
Q: What are the circumstances that prevent award
of backwages?
A:
1.
2.
3.
4.
Dismissal for cause
Death, physical or mental incapacity of
the employee
Business reverses
Detention in prison
(4)Constructive Dismissal
Q: What is constructive dismissal?
A: An involuntary resignation resorted to when:
1.
2.
3.
continued
employment
becomes
impossible, unreasonable, or unlikely
there is a demotion in rank or diminution
in pay or
clear discrimination, insensibility or
disdain by an Er becomes unbearable to
the Ee. (Leonardo v. NLRC, G.R.
No.125303, June 16, 2000)
Note: There is no formal dismissal. The Ee is placed in
a situation by the Er such that his continued
employment has become unbearable. Abandonment is
incompatible with constructive dismissal.
Q: Reynaldo was hired by Geminilou Trucking
Service (GTS) as a truck driver to haul and deliver
products of San Miguel Pure Foods Company, Inc.
He was paid P 400 per trip and made 4 trips a day.
He claimed that he was requested by GTS to sign a
contract entitled “Kasunduan Sa Pag‐Upa ng
Serbisyo” which he refused as he found it to alter
his status as a regular Ee to merely contractual. He
averred that on account of his refusal to sign the
Kasunduan, his services were terminated
prompting him to file a complaint before the NLRC
for constructive dismissal against the GTS. Would
Reynaldo’s refusal to sign the Kasunduan
adequately support his allegation of constructively
dismissal?
A: No. The test of constructive dismissal is whether
a reasonable person in the employee’s (Ee's)
position would have felt compelled to give up his
job under the circumstances. In the present case,
the records show that the lone piece of evidence
submitted by Reynaldo to substantiate his claim of
constructive dismissal is an unsigned copy of the
Kasunduan. This falls way short of the required
quantum of proof which is substantial evidence, or
such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
Reynaldo was not dismissed, but that he simply
failed to report for work after an altercation with a
fellow driver. (Madrigalejos vs. Geminilou Trucking
Service, G.R. No. 179174, Dec. 24, 2008)
Q: Flores, a conductor of JAM Transportation Co.,
Inc., had an accident where he had to be
hospitalized for a number of days. Upon reporting
back to the company he was told to wait. For
several days this continued and he was promised a
route assignment which did not materialize. Upon
speaking to Personnel Manager Medrano, he was
told that he will be accepted back to work but as a
new employee. Flores rejected the offer because it
would mean forfeiture of his 18 years of service to
the company. Is the offer for reinstatement as a
new employee (Ee) a constructive dismissal?
A: Yes. Flores’ re‐employment as a new Ee would
be very prejudicial to him as it would mean a
demotion in rank and privileges, retirement
benefits as his previous 18 years of service with the
company would simply be considered as non‐
existent. It amounts to constructive dismissal. (JAM
Transportation Co., Inc. v. Flores, G.R. No. 82829,
Mar. 19, 1993)
Q: Quinanola was transferred from the position of
Executive Secretary to the Executive Vice
President and General Manager to the Production
Dep’t as Production Secretary. Quinanola rejected
the assignment and filed a complaint for illegal
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
97
UST GOLDEN NOTES 2011
dismissal due to constructive dismissal. Did the
transfer of Quinanola amount to constructive
dismissal?
This period is intended only for the purpose of
investigating the offense to determine whether he
is to be dismissed or not. It is not a penalty.
A: No. Quinanola’s transfer was not unreasonable
since it did not involve a demotion in rank nor a
change in her place of work nor a diminution in pay,
benefits and privileges. It did not constitute a
constructive dismissal. Furthermore, an employee’s
security of tenure does not give him a vested right
in his position as would deprive the company of its
prerogative to change his assignment or transfer
him where he will be most useful. (Philippine Japan
Active Carbon Corp. v. NLRC, G.R. No. 83239, Mar.
8, 1989)
Note: The Er may continue the period of preventive
suspension provided that he pays the salary of the Ee.
Q: Sangil was a utility man/assistant steward of
the passenger cruise vessel Crown odyssey under a
one‐year contract. Sangil suffered head injuries
after an altercation with a Greek member of the
crew. He informed the captain that he no longer
intends to return aboard the vessel for fear that
further trouble may erupt between him and the
other Greek crewmembers of the ship. Was Sangil
constructively dismissed?
A: Yes. There is constructive dismissal where the act
of a seaman in leaving ship was not voluntary but
was impelled by a legitimate desire for self‐
preservation or because of fear for his life
Constructive dismissal does not always involve
diminution in pay or rank but may be inferred from
an act of clear discrimination, insensibility or
disdain by an Er may become unbearable on the
part of the Ee that it could foreclose any choice by
him except to forego his continued employment.
(Sunga Ship Management Phils., Inc. v. NLRC, G.R.
No. 119080, April 14, 1998)
(5)Preventive Suspension
If more than 1 month, the Ee must actually be
reinstated or reinstated in the payroll. Officers are
liable only if done with malice.
Q: Cantor and Pepito were preventively suspended
pending application for their dismissal by Manila
Doctor’s Hospital after being implicated by one
Macatubal when they refused to help him when
he was caught stealing x‐ray films from the
hospital. Was the preventive suspension of Cantor
and Pepito proper?
A: Where the continued employment of an Ee
poses a serious and imminent threat to the life and
property of the employer or on his co‐Ees, the Ees’
preventive suspension is proper. In this case, no
such threat to the life and property of the Er or of
their co‐Ee’s is present and they were merely
implicated by the Macatubal. (Manila Doctors
Hospital v. NLRC, G.R. No 64897, Feb. 28, 1985)
(6)Quitclaim
Q: What is a quitclaim?
A: It is a document executed by an employee in
favor of the employer preventing the former from
filing any further money claim against the latter
arising from employment.
Q: What are the elements of a valid quitclaim?
A:
1.
Q: What is preventive suspension?
A: During the pendency of the investigation, the Er
may place the Ee under preventive suspension
leading to termination when there is an imminent
threat or a reasonable possibility of a threat to the
lives and properties of the Er, his family and
representatives as well as the offender’s co‐workers
by the continued service of the Ee.
Q: What is the duration of preventive suspension?
A: It should not last for more than 30 days. The Ee
should be made to resume his work after 30 days. It
can be extended provided the Ee’s wages are paid
after the 30‐day period.
98
2.
Voluntarily entered into with full
understanding of what the employee is
doing
Represents a reasonable settlement
Q: What constitutes reasonable settlement?
A: Reasonable settlement requires that the
consideration for the quitclaim is credible and
reasonable. (Periquet v. NLRC, G.R. No. 91298, June
22, 1990)
Q: Is “dire necessity” a ground to nullify a
quitclaim?
A: Dire necessity is not an acceptable ground for
annulling the releases, especially since it has not
been shown that the employees had been forced to
execute them. It has not even been proven that the
considerations
for
the
quitclaims
were
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
unconscionably low and that the petitioners had
been tricked into accepting them. Furthermore, no
deception has been established on the part of the
employer that would justify the annulment of the
employees’ quitclaim. (Veloso v. DOLE, G.R. No.
87297, August 5, 1991.)
A: It is the result of a bilateral act of the parties, a
voluntary agreement between the employer and
the employees whereby the latter after reaching a
certain age agrees and/or consents to sever his
employment with the former. (Soberano v. Sec. of
Labor, G.R. Nos. L‐43753‐56 and L‐50991, Aug. 29,
1980)
(7)Termination of employment by employee
Q: What are the kinds of retirement schemes?
Q: How can an employee (Ee) terminate his service
with his employer (Er)?
A:
1.
2.
A:
1.
2.
Without just cause – by serving written
notice on the Er at least 1 month in
advance. The Er upon whom no such
notice was served may hold the Ee liable
for damages.
With just cause – an Ee may put an end to
employment without serving any notice
on the Er for any of the following just
causes:
a. Serious insult by the Er or his
representative on the hour and
person of the Ee
b. Inhuman and unbearable treatment
accorded the Ee by the Er or his
representative
c. Commission of a crime or offense by
the Er or his representative against
the person of the Ee or any of the
immediate members of his family
d. Other causes analogous to any of the
foregoing
Q: When is employment not deemed terminated?
A:
1.
2.
Bona fide suspension of the operation of
a business or undertaking for a period not
exceeding 6 months, or
The fulfillment by the Ee of a military or
civic
duty
shall
not
terminate
employment.
Note: In all such cases, the Er shall reinstate the Ee to
his former position without loss of seniority rights if he
indicates his desire to resume his work not later than 1
month from the resumption of operations of his Er or
from his relief from the military or civic duty. (Art. 286)
3.RETIREMENT PAY LAW
a.Coverage, Exclusions from coverage, Components
of retirement pay
Q: What is retirement?
3.
Compulsory and contributory in nature;
One set up by the agreement between
the employer (Er) and employees (Ees) in
the CBA or other agreements between
them (other applicable employment
contract);
One that is voluntarily given by the Er,
expressly as announced company policy
or impliedly as in the failure to contest
the Ee’s claim for retirement benefits.
(Marilyn Odchimar Gertach v. Reuters
Limited, Phils., G.R. No. 148542, Jan. 17,
2005)
Q: Who are covered by the LC provisions on
retirement?
A:
GR: All employees (Ees) in the private sector:
1. Regardless of their position, designation
or status; and
2. Irrespective of the method by which their
wages are paid. (Sec.1, Rule II, Book VI,
IRR)
XPN:
1. Ees of the National Gov’t and its political
subdivisions, including GOCCs (if they are
covered by the Civil Service Law)
2. Domestic helpers and persons in the
personal service of another
3. Ees of retail, service, and agricultural
establishments or operations employing
not more than 10 Ees (Sec.2, Rule II, Book
VI, IRR)
Q: What is the retirement age?
A: It is the age of retirement that is specified in the:
1. CBA; or
2. Employment contract; or
3. Retirement plan (Sec. 3, Rule II, Book VI,
IRR).
4. Optional retirement age for underground
mining employees: 50‐60 years provided
they have at least served for a period of 5
years. (Art.285 as amended by R.A. 8558)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
99
UST GOLDEN NOTES 2011
Q: What is the retirement age in the absence of a
retirement plan or other applicable agreement?
6 months being considered as 1 whole year.
(Sec.5.1, Rule II, Book VI, IRR)
A:
Q: What comprises ½ month salary or retirement
pay?
1.
Optional – 60 years old / 5 years in service
(includes authorized absences, vacations,
regular holidays, mandatory military or
civic service)
Note: The option to retire upon reaching the
age of 60 years or more but not beyond 65
is the exclusive prerogative of the employee
(Ee) if there is no provision on retirement in
a CBA or any other agreement or if the
employer (Er) has no retirement plan. (R.A.
7641; Capili v. NLRC, G.R. No. 117378, Mar.
26, 1997)
2.
Compulsory – 65 years old, regardless of
years of service (company is not bound to
dismiss Ee; it is automatic). (Sec. 4, Rule II,
Book VI, IRR)
Note: Retirement benefits, where not
mandated by law, may be granted by
agreement of the Ees and their Er or as a
voluntary act on the part of the Er.
Retirement benefits are intended to help
the Ee enjoy the remaining years of his life,
lessening the burden of worrying for his
financial support, and are a form of reward
for his loyalty and service to the Er (Aquino
v. NLRC, G.R. No. 87653, Feb. 11, 1992)
Q: Is compulsory retirement age below 60
allowed?
A: Yes. Art. 287 permits Er and Ee to fix the
applicable retirement age at below 60. The same is
legal and enforceable so long as the parties agree to
be governed by such CBA. (Pantranco North Express
v. NLRC, G.R. No. 95940, July 24, 1996)
Q: What is the rule for extension of service of
retiree upon his reaching the compulsory
retirement age?
A: Upon the compulsory retirement of an employee
(Ee) or official in the public or private service, his
employment is deemed terminated. The matter of
extension of service of such Ee or official is
addressed to the sound discretion of the Er. (UST
Faculty Union v. NLRC, G.R. No. 89885, Aug. 6,1990)
Q: What are retirement benefits?
A: In the absence of an applicable agreement or
retirement plan – A retiree is entitled to a
retirement pay equivalent to at least ½ month
salary for every year of service, a fraction of at least
100
A: Unless parties provide for broader inclusions:
1. 15 days salary based on latest salary rate;
2. Cash equivalent of not more than 5 days
of service incentive leaves (22.5/year of
service)
3. 1/12 of the 13th month pay
4. All other benefits as may be agreed upon
by the employer and employee (Ee).
(Sec.5.2, Rule II, Book VI, IRR)
Note: Under Sec. 26 of R.A. No. 4670,otherwise known
as Magna Carta for Public School Teachers, public
school teachers having fulfilled the age and service
req’ts of the applicable retirement laws shall be given
one range salary raise upon the retirement, which
shall be the basis of the computation of the lump sum
of the retirement pay and monthly benefit thereafter.
Q: Can Art. 287 of the LC (on retirement) as
amended by R.A. 7641 be applied retroactively?
A: Yes, provided:
1. The claimant for retirement benefits was
still the employee of the employer at the
time the statute took effect; and
2. The claimant was in compliance with the
req’ts for eligibility under the statute for
such retirement benefits. (PSVSIA v. NLRC,
G.R. No. 115019, April 14, 1997)
Q: Are the provisions of the retirement plan
binding as part of the employment contract?
A: Yes. The retirement plan forms part of the
employment contract since it is made known to the
Ees and accepted by them, and such plan has an
express provision that the company has the choice
to retire an Ee regardless of age, with 20 years of
service, said policy is within the bounds
contemplated by the LC. Moreover, the manner of
computation of retirement benefits depends on the
stipulation provided in the company retirement
plan. (Progressive Dev’t Corporation v. NLRC, G.R.
No. 138826, Oct.30, 2000)
Q: Rivera was employed as senior manufacturing
pharmacist by UNILAB. She later became Director
of UNILAB's Manufacturing Division. UNILAB
adopted a comprehensive retirement plan (the
plan or retirement plan) supported by a
retirement fund. A member is compulsorily
retired upon reaching age 60 or has completed 30
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
years of service, whichever comes first. Rivera
completed 30 years of service and UNILAB retired
her pursuant to the terms of the plan, she received
the benefits in ‘88. At Rivera's request, UNILAB
allowed her to continue working for the company.
She continued working beyond the compulsory
separation from service that resulted from her
retirement. From 1993 to 1994, Rivera served as a
personal consultant under contract for UNILAB’s
sister companies which assigned Rivera to render
service involving UNILAB. In 1992, the company
amended its retirement plan, providing, among
others, for an increase in retirement benefits.
Rivera asked that her retirement benefits be
increased in accordance with the amended
retirement program. Whether Rivera is entitled to
the additional retirement benefits of the amended
retirement plan?
A: No. Whether these terms included renewed
coverage in the retirement plan is an evidentiary
gap that could have been conclusively shown by
evidence of deductions of contributions to the plan
after 1988. Two indicators, however, tell us that no
such coverage took place. The first is that the terms
of the retirement plan, before and after its 1992
amendment, continued to exclude those who have
rendered 30 years of service or have reached 60
years of age. Therefore, the plan could not have
covered her. The second is the absence of evidence
of, or of any demand for, any reimbursement of
what Rivera would have paid as contributions to the
plan had her coverage and deductions continued
after 1988. Thus, the Court concludes that her
renewed service did not have the benefit of any
retirement plan coverage. (Rivera v. United
Laboratories, Inc., G.R. No. 155639, April 22, 2009)
Q: Is a special retirement plan different from those
contemplated under the LC as agreed upon by the
parties valid?
A: Yes. A pilot who retires after 20 years of service
or after flying 20,000 hours would still be in the
prime of his life and at the peak of his career,
compared to one who retires at the age of 60 years
old. Based on this peculiar circumstance that PAL
pilots are in, the parties provided for a special
scheme of retirement different from that
contemplated in the LC. Conversely, the provisions
of Art. 287 of the LC could not have contemplated
the situation of PAL's pilots. Rather, it was intended
for those who have no more plans of employment
after retirement, and are thus in need of financial
assistance and reward for the years that they have
rendered service. (PAL v. Airline Pilots Ass’n of the
Phils., G.R. No. 143686, Jan.15, 2002)
Q: In ‘55, Hilaria was hired as a grade school
teacher at the Sta. Catalina College. In ‘70, she
applied for and was granted a 1 yr LOA without
pay due to the illness of her mother. After the
expiration in ‘71 of her LOA, she had not been
heard from by Sta. Catalina. In the meantime, she
was employed as a teacher at the San Pedro
Parochial School during SY ‘80‐‘81 and at the Liceo
de San Pedro, during SY ’81‐‘82. In ‘82, she applied
anew at Sta. Catalina which hired her. On Mar 22,
st
‘97, during the 51 Commencement Exercises of
Sta. Catalina, Hilaria was awarded a Plaque of
Appreciation for 30 yrs of service and P12,000 as
gratuity pay. On May 31, ‘97, Hilaria reached the
compulsory retirement age of 65. Sta. Catalina
pegged
her
retirement
benefits
at
P59,038.35. Deducted was the amount of P12,000
representing the gratuity pay which was given to
her.
Should the gratuity pay be deducted from the
retirement benefits?
A: No. As for the ruling of the CA affirming that of
the NLRC that the P12,000 gratuity pay earlier
awarded to Hilaria should not be deducted from the
retirement benefits due her, the same is in order.
Gratuity pay is separate and distinct from
retirement benefits. It is paid purely out of
generosity.
Q: What is the difference between gratuity pay
and retirement benefits?
A:
GRATUITY PAY
It is paid to the
beneficiary for the past
services or favor
rendered purely out of
the generosity of the
giver or grantor. It is not
intended to pay a worker
for actual services
rendered or for actual
performance. It is a
money benefit or bounty
given to the worker, the
purpose of which is to
reward Ee’s who have
rendered satisfactory
service to the company.
RETIREMENT BENEFITS
Are intended to help the
Ee enjoy the remaining
years of his life, releasing
him from the burden of
worrying for his financial
support, and are a form of
reward for his loyalty to
the Er. (Sta. Catalina
College and Sr. Loreta
Oranza, vs. NLRC and
Hilaria Tercera, G.R. No.
144483. November 19,
2003, J. Carpio‐Morales)
b. Retirement pay under RA 7641 vis‐à‐vis retireent
benefits under SSS and GSIS laws
Q: What is retirement pay under the LC in relation
to retirement benefits under SSS and GSIS laws?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
101
UST GOLDEN NOTES 2011
A:
Social
Security Law
Revised
Government
Service
Insurance Act
Compulsory
upon all E e s
n o t o v e r 6 0 Compulsory for
years of age all permanent
Ees below 60
and their Ers.
years of age
upon
1.Filipinos
recruited
in appointment to
the Phils. by permanent
foreign ‐ based status, and for
elective
Ers
for all
officials for the
employment
abroad may be duration of their
covered by the tenure.
SSS
on
a
voluntary
1. Any person,
basis.
whether elected
or appointed, in
the service of an
2.
Er is a covered
Compulsory
upon all self‐ Ee if he receives
compensation
employed
for such service.
persons
earning P1,800
or more per
annum.
Employees
Compensation
Act
Compulsory upon
all Ers and their
Ees not over 60
years of age;
Provided, that an
Ee who is over 60
years of age and
paying
contributions to
qualify for the
retirement or life
insurance benefit
administered by
the System shall
be subject to
compulsory
coverage.
Note: The Ees Compensation Commission shall ensure
adequate coverage of Filipino Ees employed abroad,
subject to regulations as it may prescribe. (Art. 170)
Any person compulsorily covered by the GSIS
including the members of the AFP, and any person
employed as casual, emergency, temporary, substitute
or contractual, or any person compulsorily covered by
the SSS are covered by the Ee’s Compensation Program.
(1997 Bar Question)
102
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
MANAGEMENT PREROGATIVE
E. MANAGEMENT PREROGATIVE
Q: What is Management Prerogative?
A:
GR: It is the right of an Er to regulate,
according to his own discretion and judgment,
all aspects of employment, including:
1. Hiring
2. Work assignments
3. Working methods
4. Time, place and manner of work
5. Tools to be used
6. Processes to be followed
7. Supervision of workers
8. Working regulations
9. Transfer of Ees
10. Work supervision
11. Lay‐off of workers
12. Discipline
13. Dismissal
14. Recall of workers
XPNs: Otherwise limited by special laws.
Note: So long as a company’s prerogatives are
exercised in good faith for the advancement of the
Er’sinterest and not for the purpose of defeating or
circumventing the rights of the Ees under special laws
or under valid agreements, the Supreme Court will
uphold them.
Q: 1. An exclusive school for girls, run by a
religious order, has a policy of not employing
unwed mothers, women with live‐in partners, and
lesbians. Is the policy violative of any provision of
the LC on employment of women?
2. The same school dismissed 2 female faculty
members on account of pregnancy out of wedlock.
Did the school violate any provision of the LC on
employment of women?
A:
1.
2.
No, the policy does not violate the LC. The
practice is a valid exercise of management
function. Considering the nature and
reason for existence of the school, it may
adopt such policy as will advance its
laudable objectives. In fact, the policy
accords with the constitutional precept of
inculcating ethical and moral values in
schools. The school policy does not
discriminate against women solely on
account of sex (Art. 135, LC) nor are the
acts prohibited under Art. 137 of the LC.
No, because to tolerate pregnancy out of
wedlock will be a blatant contradiction of
the school's laudable mission which, as
already stated, accords with high
constitutional precepts. This answer does
not contradict the ruling in Chua‐Qua
where the teacher merely fell in love with
a bachelor student and the teacher, also
single, did not get pregnant out of
wedlock. (2000 Bar Question)
Q: Little Hands Garment Company, an unorganized
manufacturer of children's apparel with around
1,000 workers, suffered losses for the 1st first time
in history when its US and European customers
shifted their huge orders to China and Bangladesh.
The management informed its Ees that it could no
longer afford to provide transportation shuttle
services. Consequently, it announced that a
normal fare would be charged depending on the
distance traveled by the workers availing of the
service.
Was the Little Hands Garments Company within its
rights to withdraw this benefit which it had
unilaterally been providing to its Ees?
A: Yes, because this is a management prerogative
which is not due any legal or
contractual
obligation. – The facts of the case do not state the
circumstances through which the shuttle service
may be considered as a benefit that ripened into a
demandable right. There is no showing that the
benefit has been deliberately and consistently
granted, i.e. with the employer’s full consciousness
that despite its not being bound by law or contract
to grant it, it just the same granted the benefit.
(2005 Bar Question)
1.DISCIPLINE
Q: Discuss briefly the Er’s right to discipline his Ees.
A: The Er has the prerogative to instill discipline in
his Ees and to impose reasonable penalties,
including dismissal, on erring Ees pursuant to
company rules and regulations. (San Miguel
Corporation v. NLRC, G.R. No. 87277, May 12, 1989)
Q: Is the power of the Er to discipline his Ees
absolute?
A: No. While management has the prerogative to
discipline its Ees and to impose appropriate
penalties on erring workers, pursuant to company
rules and regulations, however, such management
prerogatives must be exercised in good faith for the
advancement of the Er’s interest and not for the
purpose of defeating or circumventing the rights of
the Ees under special laws and valid agreements.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
103
UST GOLDEN NOTES 2011
(PLDT vs. Teves, G.R. No. 143511, November 10,
2010)
Q: May the Er be compelled to share with its Ees
the prerogative of formulating a code of
discipline? Is a code of discipline unilaterally
formulated by the Er enforceable?
A: The Er has the obligation to share with its Ees its
prerogative of formulating a code of discipline. This
is in compliance with the State’s policy stated in
Article 211 of the Labor Code, to ensure the
participation of workers in decision and policy‐
making processes affecting their rights, duties and
welfare. The exercise of management prerogatives
has, furthermore, never been considered to be
boundless. This obligation is not dispensed with by
a provision in the collective bargaining agreement
recognizing the exclusive right of the Er to make
and enforce company rules and regulations to carry
out the functions of management without having to
discuss the same with the union and much less
obtain the latter’s conformity thereto. A code of
discipline unilaterally formulated and promulgated
by the Er would be unenforceable. (Philippine
Airlines, Inc. vs. NLRC et al., G.R. No. August 13,
1993.)
2.TRANSFER OF EMPLOYEES
Q: Discuss briefly the Er’s right to transfer and
reassign Ees.
A: In the pursuit of its legitimate business interests,
especially during adverse business conditions,
management has the prerogative to transfer or
assign Ees from one office or area of operation to
another provided there is no demotion in rank or
diminution of salary, benefits and other privileges
and the action is not motivated by discrimination,
bad faith, or effected as a form of punishment or
demotion without sufficient cause. This privilege is
inherent in the right of Ers to control and manage
their enterprises effectively.
Note: The right of Ees to security of tenure does not
give them vested rights to their positions to the extent
of depriving management of its prerogative to change
their assignments or to transfer them. (Endico v.
Quantum Foods Distribution Center, G.R. No. 161615,
Jan. 30, 2009)
or a reward, which a person has a right to refuse.
When an Ee refused to accept his promotion, he
was exercising his right and cannot be punished for
it. While it may be true that the right to transfer or
reassign an Ee is an Er’s exclusive right and the
prerogative of management, such right is not
absolute. (Dosch vs. NLRC and Northwest Airlines,
G.R. No. 51182, July 5, 1983)
Q: Who has the burden of proving that the
transfer was reasonable?
A: The Er must be able to show that the transfer is
not unreasonable, inconvenient or prejudicial to the
Ee; nor does it involve a demotion in rank or a
diminution of his salaries, privileges and other
benefits. Should the Er fail to overcome this burden
of proof, the Ee’s transfer shall be tantamount to
constructive dismissal. (Blue Dairy Corporation v.
NLRC, 314 SCRA 401 [1999])
3.PRODUCTIVITY STANDARD
Q: May an Er impose productivity standards for its
workers?
A: Yes. An Er is entitled to impose productivity
standards for its workers, and in fact, non‐
compliance may be visited with a penalty even
more severe than demotion. The practice of a
company in laying off workers because they failed
to make the work quota has been recognized in this
jurisdiction. Failure to meet the sales quota
assigned to each of them constitute a just cause of
their dismissal, regardless of the permanent or
probationary status of their employment. Failure to
observe prescribed standards of work, or to fulfill
reasonable work assignments due to inefficiency
may constitute just cause for dismissal. Such
inefficiency is understood to mean failure to attain
work goals or work quotas, either by failing to
complete the same within the allotted reasonable
period, or by producing unsatisfactory results. This
management prerogative of requiring standards
may be availed of so long as they are exercised in
good faith for the advancement of the Er’s interest.
(Leonardo vs. NLRC, G.R. No. 125303, June 16, 2000)
4.GRANT OF BONUS
Q: What is a bonus?
Q: May the Er exercise his right to transfer an Ee
and compel the latter to accept the same if said
transfer is coupled with or is in the nature of
promotion?
A: It is an amount granted and paid to an Ee for his
industry and loyalty which contributed to the
success of the Ers business and made possible the
realization of profits.
A: No. There is no law that compels an Ee to accept
promotion, as a promotion is in the nature of a gift
Q: Can bonus be demanded?
104
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
MANAGEMENT PREROGATIVE
A:
GR: Bonus is not demandable as a matter of
right. It is a management prerogative given in
addition to what is ordinarily received by or
strictly due to recipient. (Producers Bank of the
Phil. v. NLRC, G.R. No. 100701, March 28, 2001)
XPNs: Given for a long period of time
1. Consistent and deliberate – Er continued
giving benefit without any condition
imposed for its payment
2. Er knew he was not required to give
benefit
3. Nature of benefit is not dependent on
profit
4. Made part of the wage or compensation
agreed and stated in the employment
contract.
Q: The projected bonus for the Ees of Suerte Co.
was 50% of their monthly compensation.
Unfortunately, due to the slump in the business,
the president reduced the bonus to 5% of their
compensation. Can the company unilaterally
reduce the amount of bonus? Explain briefly.
A: Yes. The granting of a bonus is a management
prerogative, something given in addition to what is
ordinarily received by or strictly due the recipient.
An Er cannot be forced to distribute bonuses when
it can no longer afford to pay. To hold otherwise
would be to penalize the Er for his past generosity.
(Producers Bank of the Phil. v NLRC, G.R. No.
100701, March 28, 2001). (2002 Bar Question)
5.CHANGE OF WORKING HOURS
Q: Discuss briefly the Er’s right to change working
hours.
A: Well‐settled is the rule that management retains
the prerogative, whenever exigencies of the service
so require, to change the working hours of its Ees.
Q: May the normal hours fixed in Article 83 be
reduced by the Er? Explain.
A: The present article provides that the normal
hours of work of an Ee shall not exceed eight (8)
hours a day. This implies that the Er, in the exercise
of its management prerogatives, may schedule a
work shift consisting of less than eight hours. And
following the principle of “a fair day’s wage for a
fair day’s labor”, the Er is not obliged to pay an Ee,
working for less than eight hours a day, the wages
due for eight hours. Nonetheless, if by voluntary
practice or policy, the Ee for a considerable period
of time has been paying his Ees wages due for eight
hours work although the work shift less than eight
hours (e.g. seven) it cannot later on increase the
working hours without an increase in the pay of the
employees affected. An Er is not allowed to
withdraw a benefit which he has voluntarily given.
An Er is not allowed to withdraw a benefit which he
has voluntarily given.
6.MARITAL DISCRIMINATION
Q: Is a company policy prohibiting marriage
between co‐workers valid?
A: There must be a finding of a bona fide
occupational qualification (BFOQ) to justify an Er’s
No Spouse Rule. There must be a compelling
business necessity for which no alternative exists
other than the discriminating practice. (Star Paper
vs. Simbol, G.R. No. 164774, April 12, 2006)
Q: What are the factors that the Er must prove
inorder to justify BFOQ?
A: The Er must prove 2 factors:
1. That the employment qualification is
reasonably related to the essential
operation of the job involved; and
2. That there is a factual basis for believing
that all or substantially all persons
meeting the qualification would be
unable to properly perform the duties of
the job. (Star Paper et al. vs. Simbol, G.R.
No. 164774, April 12, 2006)
Q: Peds was employed by Glaxo as medical
representative who has a policy against Ees having
relationships against competitor’s Ees. Peds
married Jali, a Branch coordinator of Astra, Glaxo’s
competitor. Peds was transferred to another area.
Peds did not accept such transfer. Is the policy of
Glaxo valid and reasonable so as to constitute the
act of Peds as willful disobedience?
A: The prohibition against personal or marital
relationships with Ees of competitors‐companies
upon Glaxo’s Ees is reasonable under the
circumstances because relationships of that nature
might compromise the interest of the company.
Glaxo does not impose an absolute prohibition
against relationships between its Ees and those of
competitor companies. Its Ees are free to cultivate
relationships with and marry persons of their own
choosing. What the company merely seeks to avoid
is a conflict of interest between the Ee and the
company that may arise out of such relationships.
Furthermore, the prohibition forms part of the
employment contract and Peds was aware of such
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
105
UST GOLDEN NOTES 2011
restrictions when he entered into a relationship
with Jali. (Duncan Association of Detailman‐PTGWO
v. Glaxo Wellcome Phil. Inc., G.R. No. 162994, Sep.
17, 2004)
7.POST‐EMPLOYMENT BAN
Q: Genesis Fulgencio had been working for
Solidbank Corporation since 1977. He later on
applied for retirement. Solidbank required Genesis
to sign an undated Undertaking where he
promised that "[he] will not seek employment
with a competitor bank or financial institution
within one (1) year from February 28, 1995, and
that any breach of the Undertaking or the
provisions of the Release, Waiver and Quitclaim
would entitle Solidbank to a cause of action
against him before the appropriate courts of law.”
Equitable Banking Corporation (Equitable)
employed Genesis. Is the post‐retirement
employment ban incorporated in the Undertaking
which Genesis executed upon his retirement is
unreasonable, oppressive, hence, contrary to
public policy?
3.
General principles of fair play and justice
Furthermore, a line must be drawn between
management prerogatives regarding business
operations per se and those which affect the rights
of Ees. In treating the latter, management should
see to it that its Ees are at least properly informed
of its decisions and modes of actions. So long as a
company’s prerogatives are exercised in good faith
for the advancement of the Er’sinterest and not for
the purpose of defeating or circumventing the
rights of the Ees under special laws or under valid
agreements, the Supreme Court will uphold them.
(PAL v. NLRC, G.R. No. 85985, Aug. 13, 1993; San
Miguel Brewery Sales v9. Ople, G.R. No. 53515,
February 8, 1989)
Note: It must be established that the prerogative being
invoked is clearly a managerial one
A: No. There is a distinction between restrictive
covenants barring an Ee to accept a post‐
employment competitive employment or restraint
on trade in employment contracts and restraints on
post‐retirement competitive employment in
pension and retirement plans either incorporated in
employment contracts or in collective bargaining
agreements between the Er and the union of Ees,
or separate from said contracts or collective
bargaining agreements which provide that an Ee
who accepts post retirement competitive
employment will forfeit retirement and other
benefits or will be obliged to restitute the same to
the employer. The strong weight of authority is that
forfeitures for engaging in subsequent competitive
employment included in pension and retirement
plans are valid even though unrestricted in time or
geography.
A
post‐retirement
competitive
employment restriction is designed to protect the
Er against competition by former Ee who may retire
and obtain retirement or pension benefits and, at
the same time, engage in competitive employment.
(Rivera vs. Solidbank, G.R. No. 163269, April 19,
2006)
8.LIMITATIONS IN ITS EXERCISE
Q: Is the exercise of management prerogative
unlimited?
A: No. It is circumscribed by limitations found in:
1. Law,
2. CBA, or
106
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION
F. SOCIAL LEGISLATION
A:
Q: What is Social Legislation?
A: It consists of statutes, regulations and
jurisprudence that afford protection to labor,
especially to working women and minors, and is in
full accord with the constitutional provisions on the
promotion of social justice to insure the well being
and economic security of all the people.
Social
Security
Commission
(SSC)
1.SOCIAL SECURITY LAW
(RA 8282)
The enactment of SSS law is a legitimate exercise of
the police power. It affords protection to labor and
is in full accord with the constitutional mandate on
the promotion of social justice. (Roman Catholic
Archbishop of Manila v. SSS, G.R. No. 15045 Jan. 20,
1961)
Q: Are the premiums considered as taxes?
A: No. The funds contributed to the System belong
to the members who will receive benefits, as a
matter of right, whenever the hazards provided by
the law occur. (CMS Estate, Inc., v. SSS, G.R. No.
26298 Sep.28, 1984)
Q: Are benefits received under SSS Law part of the
estate of a member?
A: No. Benefits receivable under the SSS Law are in
the nature of a special privilege or an arrangement
secured by the law pursuant to the policy of the
State to provide social security to the workingman.
The benefits are specifically declared not
transferable and exempt from tax, legal processes
and liens. (SSS v. Davac, et. al., G.R. No.21642, July
30, 1966)
Q: How are disputes settled?
Note: Disputes within the mandatory
period of 20 days after the submission of
evidence. (Sec. 5a)
Decision, in the absence of appeal, shall
be final and executory 15 days after date
of notification. (Sec. 5b)
Q: What is the policy objective in the enactment of
(SSS) Law?
A: It is the policy of the State to establish, develop,
promote and perfect a sound and viable tax‐exempt
SSS suitable to the needs of the people throughout
the Phils., which shall promote social justice and
provide meaningful protection to members and
their beneficiaries against the hazards of disability,
sickness, maternity, old age, death, and other
contingencies resulting in loss of income or financial
burden. (Sec. 2)
DISPUTE SETTLEMENT
Disputes involving:
1. Coverage
2. Benefits
3. Contributions
4. Penalties
5. Any other matter related
thereto.
CA / SC
Execution
of decision
Decisions of SSC shall be appealable to:
1. CA – questions of law and fact (Sec.
5c)
2. SC – questions of law. (Sec. 5c)
SSC may, motu proprio or on motion of
any interested party, issue a writ of
execution to enforce any of its
decisions or awards, after it has
become final and executory. (Sec. 5d)
Q: Can the SSC validly re‐evaluate the findings of
the RTC, and on its own, declare the latter’s
decision to be bereft of any basis?
A: No. It cannot review, much less reverse,
decisions rendered by courts of law as it did in the
case at bar when it declared that the CFI Order was
obtained through fraud and subsequently
disregarded the same, making its own findings with
respect to the validity of Bailon and Alice’s marriage
on the one hand and the invalidity of Bailon and
Teresita’s marriage on the other. In interfering with
and passing upon the CFI Order, the SSC virtually
acted as an appellate court. The law does not give
the SSC unfettered discretion to trifle with orders of
regular courts in the exercise of its authority to
determine the beneficiaries of the SSS. (SSS vs.
Teresita Jarque Vda. De Bailon, G.R. No. 165545,
Mar. 24, 2006, J. Carpio‐Morales)
Q: Who is an employer (Er)?
A: Any person, natural or juridical, domestic or
foreign, who carries into the Phils. any trade,
business, industry, undertaking or activity of any
kind and uses the services of another person who is
under his orders as regards the employment,
except the Government and any of its political
subdivisions, branches or instrumentalities,
including corporations owned or controlled by the
Government: Provided, That a self‐employed
person shall be both Ee and Er at the same time.
(Sec 8[c])
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
107
UST GOLDEN NOTES 2011
Q: Who is an employee (Ee)?
A: Any person who performs services for an Er in
which either or both mental and physical efforts are
used and who receives compensation for such
services, where there is an Er‐Ee relationship:
Provided, That a self‐employed person shall be both
Ee and Er at the same time. (Sec. 8[d])
Q: What is employment?
A: GR: Any service performed by an Ee for his Er.
XPNs:
1. Employment purely casual and not for the
purpose of occupation or business of the
Er;
2. Service performed on or in connection
with an alien vessel by an Ee if he is
employed when such vessel is outside the
Phils;
3. Service performed in the employ of the
Phil. Government or instrumentality or
agency thereof;
4. Service performed in the employ of a
foreign government or international
organization, or their wholly‐owned
instrumentality:
5. Such other services performed by
temporary and other Ees which may be
excluded by regulation of the SSC. Ees of
bona fide independent contractors shall
not be deemed Ees of the Er engaging the
services of said contractors. (Sec. 8[j])
c.
d.
e.
f.
g.
Q: What is a contingency?
A: The retirement, death, disability, injury or
sickness and maternity of the member.
h.
2.
Voluntary
a. Spouses who devote full time to
managing the household and family
affairs, unless they are also engaged
in other vocation or employment
which is subject to mandatory
coverage ; (Sec. 9[b])
b. Filipinos recruited by foreign‐based
Ers for employment abroad may be
covered by the SSS on a voluntary
basis; (Sec. 9[c])
c. Ee separated from employment to
maintain his right to full benefits
d. Self‐employed who realizes no
income for a certain month
3.
By Agreement
Any foreign government, international
organization, or their wholly‐owned
a.Coverage
Q: Who are covered by SSS?
A:
1.
108
Compulsory Coverage
a. All Ees not over 60 years of age and
their Ers;
b. Domestic helpers whose income is
not less than P 1000/month and not
over 60 years of age and their Ers;
Limitations:
a. Any benefit earned by the Ees
under private benefit plans
existing at the time of the
approval of the Act shall not be
discontinued,
reduced
or
otherwise impaired;
b. Existing private plans shall be
integrated with the SSS but if
the Er under such plan is
contributing more than what is
required by this Act, he shall
pay to the SSS the amount
required to him, and he shall
continue with his contributions
less the amount paid to SSS;
c. Any changes, adjustments,
modifications, eliminations or
improvements in the benefits of
the remaining private plan after
the integration shall be subject
to agreements between the Ers
and the Ees concerned; and
d. The private benefit plan which
the Er shall continue for his Ees
shall remain under the Ers
management and control unless
there is an existing agreement
to the contrary
All self‐employed – considered both
an Er and Ee
Professionals;
Partners and single proprietors of
business;
Actors and actresses, directors,
scriptwriters
and
news
correspondents who do not fall
within the definition of the term
“Ee”;
Professional
athletes,
coaches,
trainers and jockeys; AND
Individual farmers and fisherman.
(Sec. 9)
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION
instrumentality employing workers in the
Phils., may enter into an agreement with
the Phil. government for the inclusion of
such Ees in the SSS except those already
covered by their respective civil service
retirement systems.
Q: When is the compulsory coverage deemed
effective?
A: No. It is not necessary, for the enjoyment of
benefits under the SSS Law that the injury is work‐
connected. What is important is membership in the
SSS and not the causal connection of the work of
the Ee to his injury or sickness.
Claims based on work‐connected injuries or
occupational diseases are covered by the State
Insurance Fund.
b.Exclusions from coverage
A:
1.
2.
3.
Employer – on the first day of operation
Employee – on the day of his employment
Compulsory coverage of self‐employed –
upon his registration with the SSS
Q: What is the effect of separation of an employee
from his employment under compulsory coverage?
Q: Enumerate the kinds of employment which are
excepted from compulsory coverage under the SSS
Law.
A: Under Section 8(j) of R.A. 1161, as amended, the
following services or employments are excepted
from coverage:
A:
1.
2.
3.
His Ers obligation to contribute arising
from that employment shall cease at the
end of the month of separation,
But said Ee shall be credited with all
contributions paid on his behalf and
entitled to benefits according to the
provisions of R.A. 9282.
He may, however, continue to pay the
total contributions to maintain his right to
full benefit. (Sec. 11)
1.
Employment purely casual and not for the
purpose of occupation or business of the
employer;
2.
Service performed on or in connection
with an alien vessel by an employee if he
is employed when such vessel is outside
the Philippines;
3.
Service performed in the employ of the
Philippine Government or instrumentality
or agency thereof;
4.
Service performed in the employ of a
foreign government or international
organization, or their wholly‐owned
instrumentality:
Note: The above provision recognizes the “once a
member, always a member” rule.
Q: What is the effect of interruption of business or
professional income?
A: If the self‐employed member realizes no income
in any given month:
1.
2.
3.
He shall not be required to pay
contributions for that month.
He may, however, be allowed to continue
paying contributions under the same rules
and regulations applicable to a separated
Ee member:
Provided, that no retroactive payment of
contributions shall be allowed other than
as prescribed under Sec.22‐A. (Sec. 11‐A)
Q: On her way home from work, Asteria
Benedicta, a machine operator in a sash factory,
enters a movie house to relax. But she is stabbed
by an unknown assailant. Her claim for benefits
under the SSS Law is denied on the ground that
her injury is not work‐connected. Is the denial
legal? Why?
Provided, however, That this exemption
notwithstanding, any foreign government,
international organization or their wholly‐
owned
instrumentality
employing
workers in the Philippines or employing
Filipinos outside of the Philippines, may
enter into an agreement with the
Philippine Government for the inclusion
of such employees in the SSS except those
already covered by their respective civil
service retirement systems:Provided,
further, That the terms of such agreement
shall conform with the provisions of this
Act on coverage and amount of payment
of contributions and benefits: Provided,
finally, That the provisions of this Act shall
be supplementary to any such agreement;
and
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
109
UST GOLDEN NOTES 2011
5.
Such other services performed by
temporary and other employees which
may be excluded by regulation of the
Commission.
Employees
of bona
fide independent contractors shall not be
deemed employees of the employer
engaging the service of said contractors.
c.Benefits
Q: What are the benefits under the SSS Act?
2.
A:
1.
2.
3.
4.
5.
6.
7.
Monthly Pension
Retirement Benefits
Death Benefits
Disability Benefits
Funeral Benefits
Sickness Benefits
Maternity Benefits
Q: What will happen to the monthly pension of a
retiree in case of death?
A:
1.
Q: Are the benefits provided for in the SSS Law
transferable?
A: Benefits provided for in the SSS Law are not
transferable and no power of attorney or other
document executed by those entitled thereto in
favor of any agent, attorney or any other person for
the collection thereof on their behalf shall be
recognized, except when they are physically unable
to collect personally such benefits. (Sec.15, R.A.
1161, as amended)
Q: What are the reportorial requirements of the Er
and self‐employed?
A:
1. Er ‐ Report immediately to SSS the names,
ages, civil status, occupations, salaries and
dependents of all his covered Ees
2. Self‐employed ‐ Report to SSS within 30 days
from the first day of his operation, his name,
age, civil status, occupation, average
monthly net income and his dependents
Monthly Pension
Q: How much is the monthly pension?
A:
1.
110
The monthly pension shall be the highest
of the following amounts:
a. The sum of the following:
ii. P300.00; plus
iii. 20% of the average monthly
salary credit; plus
iv. 2% of the average monthly
salary credit for each credited
year of service in excess of 10
years; or
b. 40% of the average monthly salary
credit; or
c. P1,000.00, provided that the
monthly pension shall in no case be
paid for an aggregate amount of less
than sixty (60) months (Sec. 12 [a])
Minimum Pension
a. P1,200.00 ‐ members with at least
10 credited years of service
b. P2,400.00 for those with 20 credited
years of service. (Sec. [b])
Upon the death of the retired member,
his primary beneficiaries as of the date of
his retirement will get 100% of his
monthly pension plus the dependent's
pension for each child.
Note: The above phrase “primary
beneficiaries (as of the date of his
retirement) was declared unconstitutional
by the SC in Dycaico v. SSS and SSC (G.R. No.
16137, June 6, 2006) because it is in
violation of the equal protection, due
process and social justice.
2.
If he dies within 60 months from the start
of his pension and he has no primary
beneficiaries, his secondary beneficiaries
will receive a lump sum benefit equivalent
to the difference of 60 multiplied by the
monthly pension and the total monthly
pensions paid by the SSS excluding the
dependent's pension. (Sec. 12‐B [d])
Q: Bonifacio and Elena are living together as
husband and wife without the benefit of
marriage. Bonifacio declared Elena and their
children as his primary beneficiaries in his self‐
employed data record in SSS. A few months prior
to his death, Bonifacio married Elena.Is Elena
entitled to the survivor’s pension?
A: Yes, she is considered primary beneficiary of
Bonifacio. The phrase “Upon the death of the
retired member, his primary beneficiaries as of the
date of his retirement will get 100 per cent of his
monthly pension xxx” of Sec. 12‐B d of RA 8282 is
unconstitutional because it violates the: (1) equal
protection clause because it impermissibly
discriminates against dependent spouses whose
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION
respective marriages to the SSS members were
contracted after the latter’s retirement; (2) due
process clause because it outrightly deprives
spouses who married the SSS members after their
retirement of the survivor’s pension, a property
interest, without giving them opportunity to be
heard; and (3) social justice.
Further, the survivorship pension applied for was
classified as death benefits. Hence, the contingency
that gives rise to the entitlement of Elena is the
death of Bonifacio and not his retirement. (Dycaico
v. SSS, G. R. No. 16137, June 6, 2006)
A member
a. At least 60 years old at retirement;
and
b. Does not qualify for pension benefits
under paragraph (a) above ‐ entitled
to a lump sum benefit equal to the
total contributions paid by him and
on his behalf;
c. Must
be
separated
from
employment and is not continuing
payment of contributions to the SSS
on his own. (Sec. 12‐B [b])
Q: When is the monthly pension and dependent’s
pension suspended?
Q: What happens when the retirement pensioner
is re‐employed or resumes self‐employment?
A:
A: The monthly pension of a retirement pensioner
who resumes employment and is less than 65 years
old will be suspended. He and his Er will again be
subject to compulsory coverage. (Sec. 12‐B [c])
1.
2.
3.
Upon the reemployment or resumption of
self‐employment
Recovery of the disabled member from
his permanent total disability
Failure to present himself for examination
at least once a year upon notice by the
SSS. (Sec. 13‐A [b])
Retirement Benefit
Q: What is a retirement benefit?
A: It is a cash benefit paid to a member who can no
longer work due to old age.
Q: What are the types of retirement benefits?
A:
1.
2.
Monthly Pension ‐ Lifetime cash benefit
paid to a retiree who has paid at least 120
monthly contributions to the SSS prior to
the semester of retirement .
Lump Sum Amount ‐ Granted to a retiree
who has not paid the required 120
monthly contributions.
3.
Q: Are the children of a retiree member entitled
to the dependent's pension?
A: Yes (Sec. 12[A]). However, only 5 minor children,
beginning from the youngest, are entitled to the
dependents' pension. No substitution is allowed.
Where there are more than 5 legitimate and
illegitimate children, the legitimate ones will be
preferred.
Q: For how long will the dependent child receive
the pension?
A: Until the child reaches 21 years of age, gets
married, gets employed and earns P300 a month or
more, or dies.
However, the dependent's pension is granted for
life to children who are over 21 years old, provided
they are incapacitated and incapable of self‐support
due to physical or mental defect which is congenital
or acquired during minority.
Q: Who are entitled for retirement benefits?
Death Benefit
A:
1.
2.
A member who
a. has paid at least 120 monthly
contributions prior to the semester of
retirement;
b. at least 60 years old; and
c. already separated from employment
or has ceased to be self‐employed, OR
At least 65 years old, shall be entitled for
as long as he lives to the monthly
pension; (Sec 12‐B [a])
Q: When is a beneficiary entitled to death
benefits?
A:
1.
Upon death of a member, if he has paid at
least 36 monthly contributions prior to
the semester of death:
a. primary beneficiaries shall be
entitled to the monthly pension; or
b. If there are no primary beneficiaries,
secondary beneficiaries shall be
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
111
UST GOLDEN NOTES 2011
2.
entitled to a lump sum benefit
equivalent to 36 times the monthly
pension.
Upon death of a member If he has not
paid
the
required
36
monthly
contributions prior to the semester of
death:
a. Primary or secondary beneficiaries
shall be entitled to a lump sum
benefit equivalent to the monthly
pension multiplied by the number of
monthly contributions paid to the
SSS: or
b. 12 times the monthly pension,
whichever is higher. (Sec. 13)
A: Disability pension shall cease upon his
retirement or death. (Sec 13‐A [j])
Funeral Benefit
Q: What is the funeral benefit?
A: A funeral grant equivalent to P12, 000.00 shall be
paid, in cash or in kind, to help defray the cost of
expenses upon the death of a member or retiree.
(Sec. 13‐B)
Sickness Benefit
Q: What is sickness benefit?
Disability Benefit
A: It is a daily cash allowance paid for the number
of days a member is unable to work due to sickness
or injury.
Q: What is a disability benefit?
A: It is a cash benefit paid to a member who
becomes permanently disabled, either partially or
totally.
Q: What is the difference between death benefits
and Permanent Total Disability benefits?
Q: What are the requirements to be entitled for
sickness benefit?
A:
1.
A:
Death Benefits
PTD Benefits
2.
Requisite
at least 36 monthly contributions
Benefits payable to whom
Primary Beneficiaries
Member
Failure to make 36 monthly payments
Benefits shall be in lump sum equivalent to the
monthly pension times the number of monthly
contributions paid to SSS or 12 times the monthly
pension, whichever is higher.
Q: What is the effect of the death of the PTD
pensioner?
A:
1.
2.
Primary beneficiaries are entitled to
receive monthly pension as of the date of
disability.
No primary beneficiaries and he dies
within 60 months from the start of his
monthly pension ‐ secondary beneficiaries
shall be entitled to a lump sum benefit
equivalent to the total monthly pensions
corresponding to the balance of the 5‐
year guaranteed period excluding the
dependents’ pension. (Sec. 13‐A [c])
Q: What is the effect of retirement or death to
partial disability pension?
112
3.
4.
The member paid at least 3 monthly
contributions in the 12‐month period
immediately preceding the semester of
sickness or injury
Confined for more than 3 days in a
hospital or elsewhere with the approval
of the SSS
He has used all current company sick
leaves with pay for the current year
Notified his Er or the SSS, if he is a
separated, voluntary or self‐employed
member
Q: Who will pay sickness benefits? and how much
is the benefit?
A: The Er shall pay the:
1. Ee for each compensable confinement or
fraction thereof or
2.
SSS if member is self‐employed daily
sickness benefit equivalent to 90% of his
average daily salary credit, subject to the
following conditions:
a. In no case shall the daily sickness
benefit be paid longer than 120 days
in 1 calendar year, nor shall any
unused portion of the 120 days of
sickness benefit granted be carried
forward and added to the total
number of compensable days
allowable in the subsequent year;
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION
b.
c.
3.
4.
Not paid for more than 240 days on
account of the same confinement;
and
Ee member shall notify his Er of the
fact of his sickness or injury within 5
calendar days after the start of his
confinement
unless
such
confinement:
i.
is in a hospital
ii. the Ee became sick or was
injured while working or
within the premises of the Er
(notification to the Er not
necessary);
If the member is unemployed or self‐
employed, he shall directly notify the SSS
of his confinement within 5 calendar days
after the start thereof unless such
confinement is in a hospital in which case
notification is also not necessary;
Where
notification
is
necessary,
confinement shall be deemed to have
started not earlier than the 5th day
immediately preceding the date of
notification. (Sec.14 [b])
Note: The law does not require that sickness must be
related to the duties of the beneficiaries.
Q: When
commence?
will
compensable
confinement
2.
Er shall be reimbursed only for each day
th
of confinement starting from the 10
calendar day immediately preceding the
date of notification to the SSS if the
notification to the SSS is made beyond 5
calendar days after receipt of the
notification from the Ee member. (Sec. 14
[c])
Q: When will reimbursement be made by SSS?
A:GR: SSS shall reimburse the Er or pay the
unemployed member only for confinement
within 1 year immediately preceding the date the
claim for benefit or reimbursement is received by
the SSS
XPN: Confinement in a hospital in which case the
claim for benefit or reimbursement must be filed
within 1 year from the last day of confinement.
(Sec. 14[c])
Maternity Benefit
Q: What is the maternity benefit?
A: The maternity benefit is a daily cash allowance
granted to a female member who was unable to
work due to childbirth or miscarriage.
Q: What are the qualifications for entitlement to
the maternity benefit?
A:
A:
1.
1.
2.
Begins on the 1st day of sickness
Payment of such allowances shall be
promptly made by the Er:
a. every regular payday or on the 15th
and last day of each month,
b. in case of direct payment by the SSS ‐
as long as such allowances are due
and payable. (Sec. 14[b])
Q: What are the requirements in order that Er may
claim reimbursement of the sickness benefit?
A:
1.
100% of daily benefits shall be
reimbursed by SSS if the following
requirements are satisfied:
a. Receipt of SSS of satisfactory proof
of such payment and legality thereof:
b. The Er has notified the SSS of the
confinement within 5 calendar days
after receipt of the notification from
the Ee member:
2.
She has paid at least three monthly
contributions within the 12‐month period
immediately preceding the semester of
her childbirth or miscarriage.
She has given the required notification of
her pregnancy through her employer if
employed, or to the SSS if separated,
voluntary or self‐employed member.
Q: Is the voluntary or self‐employed member also
entitled to the maternity benefit?
A: Yes, A voluntary or a self‐employed member is
entitled to the maternity benefit provided that she
meets the qualifying conditions.
Q: How much is the maternity benefit?
A: The maternity benefit is equivalent to 100 per
cent of the member’s average daily salary credit
multiplied by 60 days for normal delivery or
miscarriage, 78 days for caesarean section delivery.
Q: How is the maternity benefit computed?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
113
UST GOLDEN NOTES 2011
A:
1.
Exclude the semester of contingency
(delivery or miscarriage).
Note: Semester refers to two consecutive
quarters ending in the quarter of
contingency. Quarter refers to three
consecutive months ending March, June,
September or December.
2.
3.
Count 12 months backwards starting from
the month immediately before the
semester of contingency.
any gainful occupation for
a
continuous
period
exceeding
120
days
regardless of whether he
loses the use of any of his
body parts.
d.Beneficiaries
Q: Who are primary beneficiaries?
A:
Identify the six highest monthly salary
credits within the 12‐month period.
Note: Monthly salary credit means the
compensation base for contributions
benefits related to the total earnings for the
month.
4.
5.
6.
Add the six highest monthly salary credits
to get the total monthly salary credit.
Divide the total monthly salary credit by
180 days to get the average daily salary
credit. This is equivalent to the daily
maternity allowance.
Multiply the daily maternity allowance by
60 (for normal delivery or miscarriage) or
78 days (for caesarean section delivery) to
get the total amount of maternity benefit.
Q: What is the difference of compensability under
the Labor Law and the Social Security Law?
A: The claims are different as to their nature and
purpose. (Ortega vs. Social Security Commission,
G.R. No. 176150, June 25, 2008)
LABOR LAW
SOCIAL SECURITY LAW
Purpose
Governs compensability Benefits are intended to
provide insurance or
of :
protection against the
1. work‐related
hazards or risks of
disabilities
2. when there is loss disability, sickness, old
of income due to age or death, inter alia,
irrespective of whether
work‐connected
or
work‐ they arose from or in the
of
the
aggravated injury course
employment.
or illness.
Nature
may
be
A disability is total and Disability
total
or
permanent if as a result of permanent
the injury or sickness the permanent partial.
Ee is unable to perform
114
1.
The dependent spouse until he or she
remarries
2.
The dependent legitimate, legitimated or
legally adopted, and illegitimate children,:
Provided, That the dependent illegitimate
children shall be entitled to 50% of the
share of the legitimate, legitimated or
legally adopted children.
Q: Who are secondary beneficiaries?
A: In the absence of primary beneficiaries, the
dependent parents.
In the absence of all the foregoing, any other
person designated by the member as his or her
secondary beneficiary. (Sec. 8[k])
Q: Who are considered dependents?
A:
1. The legal spouse entitled by law to
receive support from the member;
2. The legitimate, legitimated, or legally
adopted, and illegitimate child who:
a. Is unmarried,
b. Not gainfully employed, and
c. Has not reached 21 years of age, or if
over 21 years of age, he is
congenitally or while still a minor has
been permanently incapacitated and
incapable of self‐support, physically
or mentally.
3. The parent who is receiving regular
support from the member.
Q: What is meant by “dependent for support”?
A: The entitlement to benefits as a primary
beneficiary requires not only legitimacy but also
dependence upon the member Ee. (Gil v. SSC CA‐
GR SP. 37150, May 8, 1996)
If a wife who is already separated de facto from her
husband cannot be said to be "dependent for
support" upon the husband, absent any showing to
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION
the contrary. Conversely, if it is proved that the
husband and wife were still living together at the
time of his death, it would be safe to presume that
she was dependent on the husband for support,
unless it is shown that she is capable of providing
for herself. (SSS v. Aguas, G.R. No. 165546, Feb. 27,
2006)
Q: Who is entitled to the benefits of an SSS
member who was survived not only by his legal
wife, who is not dependent upon the member, but
also by two common‐law wives with whom he had
illegitimate minor children?
A: The illegitimate minor children shall be entitled
to the death benefits as primary beneficiaries
because the legal wife is not dependent upon the
member. The SSS Law is clear that for a minor child
to qualify as a “dependent” the only requirements
are that he/she must be below 21 yrs. of age, not
married nor gainfully employed. (Signey v. SSS, G.R.
No. 173582, Jan.28, 2008)
Q: What is compensation?
A: All actual remuneration for employment,
including the mandated cost of living allowance, as
well as the cash value of any remuneration paid in
any medium other than cash except that part of the
remuneration received during the month in excess
of the maximum salary.
Q: The owners of FALCON Factory, a company
engaged
in the assembling of automotive
components, decided to have their building
renovated. (50)
persons,
composed
of
engineers, architects and other construction
workers, were hired by the company for this
purpose. The work was estimated to be
completed in 3 years. The Ees contended that
since the work would be completed after more
than 1 year, they should be subject to compulsory
coverage under the Social Security Law. Do you
agree with their contention? Explain your answer
fully.
A: No. Under Sec. 8 (j) of R.A. 1161, as amended,
employment of purely casual and not for the
purpose of the occupation or business of the
employer are excepted from compulsory coverage.
An employment is purely casual if it is not for the
purpose of occupation or business of the Er.
In the problem given, Falcon Factory is a company
engaged in the assembly of automotive
components. The 50 persons (engineers, architects
and construction workers) were hired by Falcon
Factory to renovate its building. The work to be
performed by these 50 people is not in connection
with the purpose of the business of the factory.
Hence, the employment of these 50 persons is
purely casual. They are, therefore, excepted from
the compulsory coverage of the SSS law. (2000 Bar
Question)
2.GSIS
(R.A. 8291)
Q: What are the purposes behind the enactment
of the GSIS Act?
A: To provide and administer the following social
security benefits for government employees (Ee):
1.
2.
3.
4.
5.
Compulsory life insurance
Optional life insurance
Retirement benefits
Disability benefits to
contingencies; and
Death benefits
work‐related
Q: Who are considered employers (Er) under the
GSIS Act?
A:
1.
2.
3.
4.
National Government
Its political subdivisions, branches,
agencies, instrumentalities
GOCCs, and financial institutions with
original charters
Constitutional Commissions and the
Judiciary (Sec. 2[c])
Q: Can SSS Ees be covered by GSIS?
A: Yes.
Q: Who is an Employee or member?
A: Any person, receiving compensation while in the
service of an Er, whether by election or
appointment, irrespective of status of appointment,
including barangay and sanggunian officials. (Sec.
2[d])
Q: What is compensation?
A: The basic pay or salary received by an Ee,
pursuant to his or her election or appointment,
excluding per diems, bonuses, OT pay, honoraria,
allowances and any other emoluments received in
addition to the basic pay which are not integrated
into the basic pay under existing laws. (Sec. 2[i])
Q: Baradero is a member of the Sangguniang
Bayan of the Municipality of La Castellana, Negros
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
115
UST GOLDEN NOTES 2011
Occ. and is paid on a per diem basis. On the other
hand, Belo a Vice‐Governor of Capiz is in a hold
over capacity and is paid on a per diem basis. Are
the services rendered by Baradero and Belo on a
per diem basis creditable in computing the length
of service for retirement purposes?
a.Coverage
Q: What government Ees are subject to coverage
under the GSIS?
A:
GR: All Ees receiving compensation who have
not reached the compulsory retirement age,
irrespective of employment status.
A: Yes. The traditional meaning of per diem is a
reimbursement for extra expenses incurred by the
public official in the performance of his duties.
Under this definition the per diem is intended to
cover the cost of lodging and subsistence of officers
and employees when the latter are on a duty
outside of their permanent station. On the other
hand, a per diem could rightfully be considered a
compensation or remuneration attached to an
office.
The per diems paid to Baradero and Belo were in
the nature of compensation or remuneration for
their services as Sangguniang Bayan and Vice‐
Governor,
respectively,
rather
than
a
reimbursement for incidental expenses incurred
while away from their home base.
XPNs:
1. Uniformed members of the:
a. AFP; and
b. PNP.
2. Contractuals who have no Er and Ee
relationship with the agencies they serve.
Q: Who are covered by life insurance, retirement
and other social security protection?
A:
GR: All members of the GSIS shall have life
insurance, retirement, and all other social
security protections such as disability,
survivorship, separation, and unemployment
benefits. (Sec. 3)
If the remuneration received by a public official in
the performance of his duties does not constitute a
mere “allowance for expenses” but appears to be
his actual base pay, then no amount of categorizing
the salary as a “per diem” would take the
allowances received from the term service with
compensation for the purpose of computing the
number of years of service in government. (GSIS v.
CSC, G. R. Nos. 98395 and 102449, June 19, 1995)
Q: What are the sources of funds of the GSIS?
A: It comes from the monthly contributions of the
covered Ees and Ers. (Sec. 5)
XPNs: Members of:
1. The judiciary; and
2. Constitutional commissions who shall
have life insurance only.
b.Exclusions from coverage
Q: Who, under the GSIS, are excluded from the
coverage?
A:
1.
The contributions of the Ees are deducted and
withheld by the Er each month from the monthly
salary of the former and are remitted by the latter,
together with its own share, to the System within
the first 10 days of each calendar month following
the month to which the contributions apply. (Sec. 6)
2.
3.
4.
Q: What is the penalty in case of delayed
remittance or non‐remittance of contributions?
A: The unremitted contributions shall be charged
interests as prescribed by the GSIS Board of
Trustees but shall not be less than 2% simple
interest per month from due date to the date of
payment by the employers concerned.
Q: For the purpose of benefit entitlement, how are
the members classified?
A:
1.
116
Ees who have separate retirement
schemes (members of the Judiciary,
Constitutional Commissions and others
similarly situated)
Contractual Ees who have no Er‐Ee with
the agencies they serve
Uniformed members of the AFP, BJMP,
whose coverage by the GSIS has ceased
effective June 24, 1997
Uniformed members of the PNP whose
coverage by the GSIS has ceased effective
February 1, 1996. (Sec. 2.4, Rule II, IRR)
Active members
a. Still in the service and are paying
integrated premiums.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION
b.
2.
3.
Covered for the entire package
benefits and privileges being
extended by GSIS.
Policyholders
a. Covered for life insurance only
b. Can avail of policy loan privilege only
c. May also apply for housing loans
d. Judiciary
and
Constitutional
Commissions
Separation Benefits
Q: When will a member be entitled to separation
benefits and what comprises these separation
benefits?
A: A member who has rendered a minimum of 3
years creditable service shall be entitled to
separation benefit upon resignation or separation
under the following terms:
Retired Members
a. Former active members who have
retired from the service and are
already enjoying the corresponding
retirement benefits applied for
b. Not entitled to any loan privilege,
except stock purchase loan (Sec. 2.2,
Rules II, IRR)
1.
A member with at least 3 years but less
than 15 years: Cash payment equivalent
to 100% of the AMC for every year of
service
the
member
has
paid
contributions:
a. not less than P12,000.00
b. Payable upon reaching 60 years of
age or upon separation, whichever
comes later.
2.
A member with less than 15 years of
service and less than 60 years of age at
the time of resignation or separation:
a. Cash payment equivalent to 18 times
the basic monthly pension (BMP),
payable at the time of resignation or
separation
b. An old‐age pension benefit equal to
the basic monthly pension, payable
monthly for life upon reaching the
age of 60.
c.Benefits
Q: What are the benefits provided by the GSIS
Act?
A:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Separation
Unemployment or involuntary separation
Retirement
Permanent disability
Temporary disability
Survivorship
Funeral
Life Insurance
Such other benefits and protection as
may be extended to them by the GSIS
such as loans.
Q: What are the benefits under P.D. 1146 (Revised
GSIS Act of 1977) that may be granted to the
separated members of the PNP, BJMP and BFP?
A: GR:
1.
2.
3.
4.
5.
Old‐age benefit
Permanent disability benefit
Survivorship benefit
Funeral benefit
Retirement benefit
XPN: Judiciary (Life insurance only – tax exempt)
Q: What are the reportorial requirements of the
Er?
A: Er must report to GSIS the names, employment
status, positions, salaries of the employee and such
other matter as determined by the GSIS.
Q: What are the effects of separation from service
with regard to membership?
A: A member separated from the service shall
continue to be a member and shall be entitled to
whatever benefits he has qualified to.
Note: A member separated for a valid cause shall
automatically forfeit his benefits, unless the terms of
resignation or separation provide otherwise.
In the case of forfeiture, the separated employee shall
be entitled to receive only ½ of the cash surrender
value of his insurance.
Unemployment Benefits
Q: What are the conditions for entitlement to
unemployment benefits?
A:
1.
2.
The recipient must be a permanent
employee at the time of separation;
His separation was involuntary due to the
abolition of his office or position resulting
from reorganization; and
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
117
UST GOLDEN NOTES 2011
3.
He has been paying the contribution for
at least 1 year prior to separation.
Q: What will consist of an unemployment benefit?
Q: What are the options of the retiree with regard
to his or her retirement benefits?
A: The retiree may get either of the following:
A: It will consists of cash payment equivalent to
50% of the average monthly compensation
1.
Note: A member who has rendered at least 15 years of
service will be entitled to separation benefits instead
of unemployment benefits.
2.
Retirement Benefits
Q: What are the conditions in order to be entitled
to retirement benefits?
A:
1.
2.
3.
A member has rendered at least 15 years
of service;
He is at least 60 years of age at the time
of retirement; and
He is not receiving a monthly pension
benefit from permanent total disability.
(Sec. 13‐A)
Q: What is the rule in case of extension of service
in order to be entitled for retirement benefit?
A: The doctrine in Cena vs. CSC (G.R. No. 97419, July
3, 1992), was modified in Rabor vs. CSC, (G.R. No.
111812, May 31, 1995), where the SC held that: The
head of the government agency concerned is
vested with discretionary authority to allow or
disallow extension of the service of an official or Ee
who has reached 65 years old without completing
the 15 years of government service. However, this
discretion is to be exercise conformably with the
provisions of Civil Service Memorandum Circular
No. 27, series of 1990 which provides that the
extension shall not exceed 1 year.
Q: What is the reason for compulsory retirement?
A: The compulsory retirement of government
officials and Ees upon their reaching the age of 65
years is founded on public policy which aims by it to
maintain efficiency in the government service and
at the same time give to the retiring public servants
the opportunity to enjoy during the remainder of
their lives the recompense, for their long service
and devotion to the government , in the form of a
comparatively easier life, freed from the rigors of
civil service discipline and the exacting demands
that the nature of their work and their relations
with their superiors as well as the public would
impose upon them. (Beronilla v. GSIS, G.R. No.
21723, Nov. 26, 1970)
118
Lump sum equivalent to 6 months of the
basic monthly pension (BMP) payable at
the time of retirement and an old‐age
pension benefit equal to BMP payable for
life, starting upon the expiration of the 5
years covered by the lump sum; or
Cash payment equivalent to 18 times his
BMP and monthly pension for life payable
immediately. (Sec. 13[a])
Permanent Disability Benefits
Q: What is disability?
A: Any loss or impairment of the normal functions
of the physical and/or mental faculty of a member,
which reduces or eliminates his/her capacity to
continue with his/her current gainful occupation or
engage in any other gainful occupation.
Q: What is total disability?
A: Complete incapacity to continue with present
employment or engage in any gainful occupation
due to the loss or impairment of the normal
functions of the physical and/or mental faculties of
the member.
Q: What is permanent total disability (PTD)?
A: Accrues or arises when recovery from
impairment mentioned in Sec.2(q) (defining
disability) is medically remote.
Q: What is permanent partial disability (PPD)?
A: Accrues or arises upon the irrevocable loss or
impairment of certain portions of the physical
faculties, despite which the member is able to
pursue a gainful occupation.
Q: What are the conditions in order to be entitled
for permanent disability benefits?
A: The permanent disability was not due to any of
the ff:
1.
2.
3.
4.
Grave misconduct
Notorious negligence
Habitual intoxication
Willful intention to kill himself or another
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION
Q: What are the two types of permanent
disability?
contribution prior
his disability
He is not receiving
old‐age retirement
pension benefits
e.
A:
1.
2.
Permanent total disability (PTD) ‐ accrues
or arises when recovery from any loss or
impairment of the normal functions of
the physical and/or mental faculty of a
member which reduces or eliminates his
capacity to continue with his current
gainful occupation or engage in any other
gainful occupation is medically remote.
[Section 2 (q) and (s)]
Permanent partial disability (PPD) ‐
accrues or arises upon the irrevocable
loss or impairment of certain portion/s of
the physical faculties, despite which the
member is able to pursue a gainful
occupation. (Sec. 2[u])
PTD
1.
2.
3.
4.
5.
PPD
Causes
and
Complete loss of sight Complete
permanent loss of the
of both eyes
use of:
Loss of 2 limbs at or
above the ankle or
1. Any finger
wrist
2. Any toe
Permanent complete
3. One arm
paralysis of 2 limbs
4. One hand
Brain injury resulting
in incurable imbecility 5. One foot
6. One leg
or insanity
7. One or both ears
Such other cases as
8. Hearing of one or both
may be determined
ears
by the GSIS
9. Sight of one eye
Such other causes as
determined by GSIS
Benefits
1. A member is entitled to A member is entitled to
payment
in
the
monthly
income cash
benefit for life equivalent accordance with the
schedule of disabilities to
to the BMP when:
a. He is in the service be prescribed by GSIS, if
at the time of the he satisfies the given
conditions of either (1)
disability or
b. If separated from or (2) of Sec. 16(a).
service
c. He has paid at
least 36 monthly
contributions
within 5 years
immediately
preceding
his
disability
d. He has paid a total
of at least 180
monthly
2. If the member does not
satisfy the conditions
above but has rendered at
least 3 years service, he
shall be advanced the cash
payment equivalent to
100% of his average
monthly compensation for
each year of service he
has pad contributions but
not less than P12,000.00
which should have been
his separation benefit (he
shall no longer receive
separation benefits)
Q: When will the payment of these benefits be
suspended?
A:
1.
2.
3.
In case a member is re‐employed; or
Member recovers from disability as
determined by the GSIS; or
Fails to present himself for medical
examination when required by the GSIS.
(Sec. 16 [c])
Q: Manioso was suffering from several diseases
from 1959 to 1994 when he worked as Accounting
Clerk I at the Budget Commission up to the time he
was transferred and promoted to the DENR as
Senior
Bookkeeper.
On
‘95,
he
was
hospitalized. The results of his examinations
showed that he was suffering from Acute
Myocardial Infarction and Hypertensive Vascular
Disease. From Jan‐ May ‘95 when he compulsory
retired from government service and after serving
for 36 yrs, he no longer reported for work. His sick
leave covering said period was duly approved. In
the meantime, Manioso filed a claim for income
benefits with the GSIS which found his ailments
work‐related. He was granted Temporary Total
Disability benefits for 2 months. He was later
granted Permanent Partial Disability benefits for 8
months. It appears that he appealed for more
disability benefits with the GSIS which subjected
him to a series of medical tests. In ‘97, he was
brought to the PGH several times due to Chronic
Renal Infection 2˚ to Obstructive Uropathy 2˚ to
Staghorn Calculi (L) and Benign Prostatic
Hypertrophy; Diabetes Mellitus Neprophaty, Stage
IV, and Hypertensive Nephrosclerosis. He then
filed a request with the GSIS for additional
disability benefits, claiming that the ailments for
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
119
UST GOLDEN NOTES 2011
which he was hospitalized several times in ‘97
developed from his work‐related illnesses. The
GSIS disapproved Manioso’s request.
Do Manioso’s ailments which later developed fall
under the category of permanent total disability?
A: Yes. Under Art. 192 (c) of P.D. No. 442, as
amended (the LC), the following disabilities are
deemed total and permanent: (1) Temporary total
disability lasting continuously for more than 120
days. Under Section 2(b), Rule VII of the Amended
Rules on Ee’s Compensation, “[a] disability is total
and permanent if as a result of the injury or
sickness the Ee is unable to perform any gainful
occupation for a continuous period exceeding 120
days, except as otherwise provided under Rule X of
these Rules.” In the case at bar, Manioso was on
sick leave from Jan 11, ‘95 up to his date of
retirement on May 15, ‘95 or for a period of more
than 120 days. Surely, the DENR, in approving his
more than 120 days leave must have passed upon
his Medical Certificate relative to his ailments.
Manioso’s disability having lasted for more than
120 days, he is entitled to PTD benefits. (Manioso,
v. GSIS, G.R. No. 148323, Apr. 29, 2005)
Q: Does Manioso’s retirement from service
prevent him from entitlement to PTD benefits?
A: No. Benefits due an Ee due to work‐related
sickness shall be provided until he becomes
gainfully employed, or until his recovery or death.
None of these are present in Manioso’s case. It
would be an affront to justice if Manioso, a
government Ee who had served for 36 years, is
deprived of the benefits due him for work‐related
ailments that resulted in his Permanent Total
Disability. (Manioso v. GSIS, G.R. No. 148323, Apr.
29, 2005)
Temporary Disability Benefits
2.
Note: A member cannot enjoy the temporary total
disability benefit and sick leave pay simultaneously.
An application for disability must be filed with the GSIS
within 4 years from the date of the occurrence of the
contingency.
Survivorship Benefits
Q: Who are entitled to survivorship benefits?
A: Upon the death of a member or pensioner, his
beneficiaries shall be entitled to survivorship
benefits. Such benefit shall consist of:
1.
2.
A: Upon the death of a member, the primary
beneficiaries shall be entitled to:
1.
Survivorship pension: Provided, That the
deceased:
a. was in the service at the time of his
death; or
b. if separated from the service, has
rendered at least 3 years of service
at the time of his death and has paid
36 monthly contributions within the
five‐year
period
immediately
preceding his death; or has paid a
total of at least 180 monthly
contributions prior to his death; or
2.
The survivorship pension plus a cash
payment equivalent to 100% of his
average monthly compensation for every
year of service: Provided, That the
deceased was in the service at the time of
A: It accrues or arises when the impaired physical
and/or mental faculties can be rehabilitated and/or
restored to their normal functions. (Sec 2[t])
Q: What benefits are given for temporary
disability?
A:
120
Member is entitled to 75% of his current
daily compensation for each day or
fraction thereof of total disability benefit,
th
to start at the 4 day but not exceeding
120 days in one calendar year when:
The basic survivorship pension which is
50% of the basic monthly pension; and
The dependent children’s pension not
exceeding 50% of the basic monthly
pension
Q: Under what conditions are the primary
beneficiaries entitled to the basic monthly
pension?
Q: When does temporary total disability arises?
1.
a. He has exhausted all sick leaves
b. CBA sick leave benefits
Provided, that:
i. He was in the service at time of
disability; or
ii. If separated, he has rendered at
least 3 years of service and has
paid at least 6 monthly
contributions
in
the
year
preceding his disability
The temporary total disability benefits
shall in no case be less than P70 a day.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION
his death with at least 3 years of service;
OR
3.
A cash payment equivalent to 100% of his
average monthly compensation for each
year of service he paid contributions, but
not less than P12,000.00: Provided, That
the deceased has rendered at least 3
years of service prior to his death but
does not qualify for the benefits under
item (1) or (2) of this paragraph. [Sec. 21
(a)]
2.
Q: What are the benefits that the beneficiaries are
entitled to upon the death of the pensioner?
A:
1.
Q: After the end of the guaranteed 30 months, are
the beneficiaries still entitled to any survivorship
benefits?
A: Yes. The survivorship pension shall be paid as
follows:
1.
When the dependent spouse is the only
survivor, he/she shall receive the basic
survivorship pension for life or until he or
she remarries;
2.
When only dependent children are the
survivors, they shall be entitled to the
basic survivorship pension for as long as
they are qualified, plus the dependent
children’s pension equivalent to 10% of
the basic monthly pension for every
dependent child not exceeding 5, counted
from the youngest and without
substitution;
3.
When the survivors are the dependent
spouse and the dependent children, the
dependent spouse shall receive the basic
survivorship pension for life or until
he/she remarries, and the dependent
children shall receive the dependent
children’s pension. (Sec. 21[b])
Note: The dependent children shall be entitled to the
survivorship pension as long as there are dependent
children and, thereafter, the surviving spouse shall
receive the basic survivorship pension for life or until
he or she remarries.
Q: When are secondary beneficiaries entitled to
survivorship benefits?
A: In the absence of primary beneficiaries, the
secondary beneficiaries shall be entitled to:
1.
The cash payment equivalent to 100% of
his average monthly compensation for
each year of service he paid
contributions, but not less than
P12,000.00: Provided, That the member is
in the service at the time of his death and
has at least 3 years of service; or
In the absence of secondary beneficiaries,
the benefits under this par. shall be paid
to his legal heirs. (Sec. 21[c])
2.
Upon the death of an old‐age pensioner
or a member receiving the monthly
income benefit for permanent disability,
the qualified beneficiaries shall be
entitled to the survivorship pension
defined in Sec. 20 of this Act, subject to
the provisions of par. (b) of Sec.21.
When the pensioner dies within the
period covered by the lump sum, the
survivorship pension shall be paid only
after the expiration of the said period.
Q: Gary Leseng was employed as a public school
teacher at the Marinduque High. On April 27, 1997,
a memorandum was issued by the school principal
designating Gary to prepare the model dam
project, which will be the official entry of the
school in the search for Outstanding Improvised
Secondary Science Equipment for Teachers. Gary
complied with his superior's instruction and took
home the project to enable him to finish before
the deadline. While working on the model dam
project, he came to contact with a live wire and
was electrocuted. The death certificate showed
that he died of cardiac arrest due to accidental
electrocution.
Bella (Gary’s common‐law wife) and Jobo (his
only son) filed a claim for death benefits with the
GSIS which was denied on the ground that Gary’s
death did not arise out of and in the course of
employment and therefore not compensable
because the accident occurred in his house and
not in the school premises. Is Bella entitled to
file a claim for death benefits with the GSIS?
Why?
A: The beneficiaries of a member of the GSIS are
entitled to the benefits arising from the death
of said member. Death benefits are called
survivorship benefits under the GSIS Law. Not
being a beneficiary, Bella is not entitled to receive
survivorship benefits. She is not a beneficiary
because she is a common‐law wife and not a legal
dependent spouse. (1991 Bar Question)
Q: Is the cause of death of Gary (cardiac arrest
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
121
UST GOLDEN NOTES 2011
due to accidental electrocution in his house)
compensable? Why?
A: Yes. To be compensable under the GSIS Law, the
death need not be work connected.
Q: Abraham, a policeman, was on leave for a
month. While resting in their house, he heard two
of his neighbors fighting with each other.
Abraham rushed to the scene intending to
pacify the protagonists. However, he was shot to
death by one of the protagonists. Eva Joy, a
housemaid, was Abraham's surviving spouse
whom he had abandoned for another woman
years back. When she learned of Abraham's
death, Eva Joy filed a claim with the GSIS for
death benefits. However, her claim was denied
because: (a) when Abraham was killed, he was on
leave; and (b) she was not the dependent
spouse of Abraham when he died. Resolve with
reasons whether GSIS is correct in denying the
claim.
Funeral Benefits
Q: What comprises the funeral benefit?
A: Cash not less than P12,000 to be increased to at
least P18,000 after 5 years (specifically year 2002).
The amount shall be determined and specified by
the GSIS through an information circular distributed
to all Ers for posting at their premises. (Sec. 23,
par.1)
Q: When will it be paid?
A: Upon the death of:
1.
2.
3.
4.
A: Yes, because under the law, a dependent is one
who is a legitimate spouse living with the Ee.
(Art. 167 [i], LC) In the problem given, Eva Joy had
been abandoned by Abraham who was then living
already with another woman at the time of his
death.
Moreover, Abraham was on leave when he was
killed. The 24‐hour duty rule does not apply when
the policeman is on vacation leave. (ECC v. CA, G.R.
No. 121545, Nov. 14, 1996) Taking together
jurisprudence and the pertinent guidelines of the
ECC with respect to claims for death benefits,
namely:
1.
2.
3.
That the Ee must be at the place where
his work requires him to be;
That the Ee must have been performing
his official functions; and
That if the injury is sustained elsewhere,
the Ee must have been executing an order
for the Er, it is not difficult to understand
then why Eva Joy's claim was denied by
the GSIS. (Tancinco v. GSIS, G.R. No.
132916, Nov. 16, 2001)
In the present case, Abraham was resting at his
house when the incident happened; thus, he was
not at the place where his work required him to
be. Although at the time of his death Abraham was
performing a police function, it cannot be said
that his death occurred elsewhere other than the
place where he was supposed to be because he
was executing an order for his Er. (2005 Bar
Question)
122
An active member
A member who has been separated from
the service but is entitled to future
separation or retirement benefits
A member who is a pensioner (excluding
survivorship pensioners)
A retiree who is at the time of his
retirement was of pensionable age, at
least 60 years old, who opted to retire
under RA 1616 (An act further amending
Sec.12, C.A. 186, as amended, by
prescribing two other modes of retirement
and for other purposes).
Life Insurance
Q: What are the classes of life insurance coverage?
A:
1.
2.
Compulsory life insurance
Optional life insurance
Note: The plans may be endowment or ordinary life.
Q: When does compulsory life insurance coverage
take effect?
A: All Ees including the members of the Judiciary
and the Constitutional Commissioners except for
Members of the AFP, the PNP, BFP and BJMP, shall,
under such terms and conditions as may be
promulgated by the GSIS, be compulsorily covered
with life insurance, which shall automatically take
effect as follows:
1.
2.
Those employed after the effectivity of
this Act, their insurance shall take effect
on the date of their employment;
For those whose insurance will mature
after the effectivity of this Act, their
insurance shall be deemed renewed on
the day following the maturity or expiry
date of their insurance;
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION
3.
For those without any life insurance as of
the effectivity of this Act, their insurance
shall take effect following said effectivity.
2.
Q: When may a member obtain optional life
insurance coverage?
A:
3.
1.
A member may at any time apply for
himself and/or his dependents an
insurance and/or pre‐need coverage
embracing:
a. Life
b. Memorial plans
c. Health
d. Education
e. Hospitalization
f. Other plans as maybe designed by
GSIS
2.
Any employer may apply for group
insurance coverage for its employees.
Q: Where can GSIS loans be invested in?
Within 15 days from receipt of the notice
of decision or award, the aggrieved party
may appeal the decision of the GSIS Board
of Trustees to the CA. Appeal shall be
taken by filling a verified petition for
review with the CA. (Sec 1 to 5, Rule 43,
Rules of Court)
When no appeal is perfected and there is
no order to stay by the Board, by the CA
or by the SC, any decision or award of the
Board shall be enforced and executed in
the same manner as decisions of the RTC.
Note: The social security benefits shall be
exempt from attachment, garnishment,
execution, levy or other processes issued
by the courts, quasi‐judicial bodies or
administrative agencies including the
Commission on Audit, disallowances, and
from all financial obligations of the
members.
Q: May a member enjoy the benefits provided for
in the Revised GSIS Act simultaneous with similar
benefits provided under other laws for the same
contingency?
A:
1.
2.
In direct housing loans to members and
group housing projects secured by first
mortgage giving priority to the low
income groups
In short and medium term loans to
members such as salary, policy,
educational, emergency stock purchase
plan, and other similar loans
A: Whenever other laws provide similar benefits for
the same contingencies covered by this Act, the
member who qualifies to the benefits shall have the
option to choose which benefits will be paid to him.
However, if the benefits provided by the law chosen
are less than the benefits provided under this Act,
the GSIS shall pay only the difference. (Sec. 55)
d.Beneficiaries
Q: What is the prescriptive period to claim the
benefits?
Q: Who are the considered beneficiaries?
A:
A:
GR: 4 Years from the date of contingency
1.
Primary beneficiaries
a. The legal dependent spouse until
he/she remarries and
b. The dependent children. (Sec. 2[g])
2.
Secondary beneficiaries
a. The dependent parents and
b. Subject to the restrictions on
dependent children, the legitimate
descendants. (Sec. 2[h])
XPN: Life insurance and retirement (Sec. 28)
Q: What is the process for the adjudication of
claims and disputes regarding the GSIS benefits?
A: The quasi‐judicial functions of the GSIS shall be
vested in its Board of Trustees.
1.
The GSIS, in appropriate cases, or any
person whose rights are or may be
prejudiced by the operations or
enforcement of R.A. 8291 and other laws
administered by the GSIS, may file a
petition before the GSIS either personally
or through counsel.
Q: Who are considered dependents?
A:
1.
2.
Legitimate spouse dependent for support
upon the member or pensioner;
Legitimate, legitimated, legally adopted
child, including the illegitimate child,
a. who is unmarried,
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
123
UST GOLDEN NOTES 2011
b.
c.
3.
not gainfully employed,
not over the age of majority, or if
over
the
age
of
majority,
incapacitated and incapable of self‐
support due to a mental or physical
defect acquired prior to age of
majority; and
Parents dependent upon the member for
support. (Sec. 2[f])
3.LIMITED PORTABILITY LAW
(RA 7699)
4.EMPLOYEES’S COMPENSATION
Q: Discuss briefly the Employee’s Compensation
Program (ECP).
A: It is the program provided for in Article 166 to
208 of the Labor Code whereby a fund known as
the State Insurance Fund (SIF) is established
through premium payments exacted from Ers and
from which the Ees and their dependents in the
event of work‐connected disability or death, may
promptly secure adequate income benefit, and
medical or related benefits.
Q: What is the Limited Portability Rule?
Coverage
A: A covered worker who transfers employment
from one sector to another or is employed on both
sectors, shall have creditable services or
contributions on both Systems credited to his
service or contribution record in each of the
Systems and shall be totalized for purposes of old‐
age, disability, survivorship, and other benefits in
either or both Systems. (Sec. 3)
All contributions paid by such member personally,
and those that were paid by his employers to both
Systems shall be considered in the processing of
benefits which he can claim from either or both
Systems. (Sec. 4)
Q: Who are subject to coverage under the ECP?
A: Ers and their Ees not over sixty (60) years of age
are subject to compulsory coverage under this
program.
The Er may belong to either the:
1.
2.
Q: How are the "portability" provisions of R.A. No.
7699 beneficial or advantageous to SSS and GSIS
members in terms of their creditable employment
services in the private sector or the government, as
the case may be, for purposes of death, disability
or retirement?
A: Portability provisions of R.A. No. 7699 shall
benefit a covered worker whose creditable
services or contributions in both systems credited
to his service or contribution record in each of the
system and shall be totalized for purposes of old‐
age, disability, survivorship and other benefits.
(Sec. 3)
Public sector covered by the GSIS, comprising
the National Government, including GOCCs,
Philippine Tuberculoses Society, the Philippine
National Red Cros, and the Philippine Veterans
Bank; and
Private sector covered by the SSS, comprising
all Ers other than those defined in the
immediately preceding paragraph.
The Ee may belong to either the:
1.
2.
Public sector comprising the employed
workers who are covered by the GSIS,
including the members of the AFP, elective
officials who are receiving regular salary and
any person employed as casual emergency,
temporary, substitute or contractual;
Private sector comprising the employed
workers who are covered by the SSS.
Q: When does compulsory coverage take effect?
The "portability" provisions of R.A. 7699 allow the
transfer of funds for the account and benefit of the
worker who transfers from one system to another.
This is advantageous to the SSS and GSIS members
for purposes of death, disability or retirement
benefits. In the event the employees transfer from
the private sector to the public sector, or vice‐versa,
their creditable employment services and
contributions are carried over and transferred as
well. (2005 Bar Question)
124
A:
1.
Employer – on the first day of operation
2.
Employee – on the day of his employment
Q: What is an Occupational Disease?
A: One which results from the nature of the
employment, and by nature is meant conditions
which all Ees of a class are subject and which
produce the disease as a natural incident of a
particular occupation, and attach to that
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION
occupation a hazard which distinguishes it from the
usual run of occupations and is in excess of the
hazard attending the employment in general
To be occupational, the disease must be one
wholly due to causes and conditions which are
normal and constantly present and characteristic of
the particular occupation.
4.
Claim was filed beyond three (3) years
from the time the cause of action accrued
(Art. 201, LC, as amended by P.D. 1921)
Note: Notorious negligence is equivalent to gross
negligence; it is something more than mere
carelessness or lack of foresight.
A: It means any illness definitely accepted as an
occupational disease listed by the Commission or
any illness caused by employment, subject to proof
that the risk of contracting the same is increased by
working conditions (Art. 167(l), LC).
Q: Abraham Dino works as a delivery man in a
construction supply establishment owned by
Abraham Julius. One day, while Dino was making
reports on his delivery, he had an altercation with
Julius; irked by the disrespectful attitude of Dino,
Julius pulled out his gun and shot Dino, hitting him
in the spinal column and paralyzing him
completely. Julius was prosecuted for the act.
Q: Discuss briefly the theory of Increased Risk.
1.
A: The term “sickness” as defined in Article 167(l) of
the Labor Code is a recognition of the theory of
increased risk. To establish compensability under
the same, the claimant must show substantial proof
of work‐connection, but what is required is merely
a reasonable work‐connection and not a direct
causal relation. Proof of actual cause of the ailment
is not necessary. The test of evidence of relation of
the disease with the employment is probability and
not certainty. (Jimenez v. Employees’ Compensation
Commission, G.R. No. L‐58176, March 23, 1984;
Panotes vs. ECC, G.R. No. L‐64802, March 29, 1984)
2.
Q: What is Sickness?
Q: May an illness not listed by the Employees
Compensation Commission as an occupational
disease be compensable?
A: Where the illness is not listed by the Employees
Compensation Commission as an occupational
disease, it must be established that the risk of
contracting the same is increased by working
conditions.
Q: What defenses may be interposed by the State
Insurance Fund (SIF) against a claim for
compensation made by a covered Ee or his
dependents?
A: The following defenses may be set up:
1.
2.
3.
Injury is not work‐connected or the
sickness is not occupational
Disability or death was occasioned by the
Ee’s intoxication, wilful intention to injure
or kill himself or another, or his notorious
negligence (Art. 172, LC)
No notice of sickness, injury or death was
given to the Er (Art. 206, LC)
A:
1.
2.
Is the disability suffered by Abraham Dino
compensable?
If Abraham Dino recovers compensation from
the SIF, can he still recover from Abraham
Julius damages in the criminal case? Why?
Yes. The injury was sustained by Abraham Dino
in his place of work and while in the
performance of his official functions.
No. Under Article 173 of the Labor Code, as
amended by P.D. 1921, the liability of the State
Insurance Fund under the Employee’s
Compensation Program shall be exclusive and
in place of all other liabilities of the Er to the
Ee or his dependents or anyone otherwise
entitled to recover damages on behalf of the
Ee or his dependents.
Q: Socrates Benjie, a truck driver employed by a
local construction company, was injured in an
accident while on assignment in one of his
employer’s project in Iraq. Considering that his
injury was sustained in a foreign country, is
Socrates Benjie entitled to benefits under the ECP?
A: Yes. Filipinos working abroad in the service of an
Er, domestic or foreign, who carries on in the
Philippines any trade, business, industry,
undertaking or activity of any kind, are covered by
the ECP. (Rule 1, Section 5, ECC Rules; Art.169, LC)
Q: What is the “Going and Coming Rule”? Is this
rule absolute?
A: GR: In the absence of special circumstances, an
Ee injured while going to or coming from his place
of work is excluded from the benefits of Workmen’s
Compensation Act.
XPNS:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
125
UST GOLDEN NOTES 2011
1.
2.
3.
4.
Where the Ee is proceeding to or from his
work on the premises of the Er;
Proximity Rule—where the Ee is about to
enter or about to leave the premises of
his Er by way of exclusive or customary
means of ingress and egress;
Ee is charged, while on his way to or from
his place of employment or at his home,
or during this employment with some
duty or special errand connected with his
employment; and
Where the Er as an incident of the
employment provides the means of
transportation to and from the place of
employment.
Q: Who are entitled to benefits under the ECP?
A: The covered Ee, his dependents, and in case of
his death, his beneficiaries.
2.
3.
4.
Disability Benefits
Death Benefits
Funeral Benefits
Medical Benefit
Q: What are the conditions of entitlement to
Medical Services?
A: For an Ee to be entitled to medical services, the
following conditions must be satisfied:
1. He has been duly reported to the System
(SSS or GSIS);
2. He sustains a permanent disability as a
result of an injury or sickness; and
3. The System has been notified of the injury
or sickness which caused his disability.
Disability Benefit
Q: What are disability benefits?
Q: Who are the dependents of the Ee?
A:
1.
2.
3.
Legitimate, legitimated, legally adopted
or acknowledged natural child who is
unmarried, not gainfully employed, and
not over twenty‐one (21) years of age or
over twenty‐one (21) years of age
provided he is incapacitated and
incapable of self‐support due to a physical
or mental defect which is congenital or
acquired during minority;
Legitimate spouse living with the Ee; and
Parents of said Ee wholly dependent upon
him for regular support. (Art.167(i), LC, as
amended by P.D. 1921)
Q: Who are included in the term beneficiaries?
A: "Beneficiaries" means the dependent spouse
until he remarries and dependent children, who are
the primary beneficiaries. In their absence, the
dependent parents and subject to the restrictions
imposed on dependent children, the illegitimate
children and legitimate descendants who are the
secondary
beneficiaries; Provided,
that
the
dependent acknowledged natural child shall be
considered as a primary beneficiary when there are
no other dependent children who are qualified and
eligible for monthly income benefit. (Art. 167, LC, as
amended by Sec. I, P.D. 1921)
Q: What are the benefits which may be enjoyed
under the SIF?
A:
1.
A: They are income benefits in case of temporary
total disability, permanent total disability and
permanent partial disability
Q: What are the disabilities that are considered
total and permanent?
A: The following disabilities shall be deemed total
and permanent:
1. Temporary
total
disability
lasting
continuously for more than one hundred
twenty days, except as otherwise
provided for in the Rules;
3. Complete loss of sight of both eyes;
4. Loss of two limbs at or above the ankle or
wrist;
5. Permanent complete paralysis of two
limbs;
6. Brain injury resulting in incurable
imbecility or insanity; and
7. Such cases as determined by the Medical
Director of the System and approved by
the Commission. (Art.192(c), LC)
Q: May a permanent partial disability be
converted to permanent total disability after the
Ee’s retirement? Why?
A: Yes. This is in line with the social justice provision
in the Constitution. A person’s disability may not
manifest itself fully at one precise moment in time
but rather over a period of time. And disability
should not be understood more on its medical
significance but on the loss of earning capacity.
Medical Benefits
126
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION
Q: May permanent total disability arise although
the Ees does not lose the use of any part of his
body?
A: Yes. Where the Ee is unable, by reason of the
injury or sickness, to perform his customary job for
more than 120 days, permanent total disability
arises. (Ijares vs. CA, G.R. No. 105854, August 26,
1999)
Death Benefit
Q: What are the conditions for entitlement to
death benefits?
A: The beneficiaries of a deceased Ee shall be
entitled to an income benefit if all of the following
conditions are satisfied:
1.
2.
3.
The Ee has been duly reported to the
System;
He died as a result of an injury or
sickness; and
The System has been duly notified of his
death, as well as the injury or sickness
which caused his death.
Q: For how long are the primary beneficiaries
entitled to the death benefits?
A:
1.
2.
3.
Dependent Spouse—until he or she
remarries.
Dependent Children—until they get
married, or find gainful employment, or
reach twenty‐one (21) years of age.
Dependent Child suffering from physical
or mental defect—until such defect
disappears.
Q: If an Ee suffers disability or dies before he is
duly reported for coverage to the System (SSS or
GSIS), who will be liable for the benefits?
A: The Er (Sec.1, Rule X; Sec.1, Rule XI; Sec. 1, Rule
XII; Sec. 1, Rule XIII; ECC Rules )
Funeral Benefit
Q: What is the funeral benefit?
A: A funeral benefit of P10, 000.00 shall be paid
upon the death of a covered Ee or permanently
totally disabled pensioner.
Q: When is an Er liable to pay a penalty to the
State Insurance Fund (SIF)?
A: In case the employee's injury or death was due
to the failure of the employer to comply with any
law, or to install and maintain safety devices, or
take other precautions for the prevention of injury,
said employer shall pay to the State Insurance Fund
a penalty of twenty‐five percent of the lump sum
equivalent of the income benefit payable by the
System to the employee. All employers, especially
those who should have been paying a rate of
contribution higher than required of them under
this Title, are enjoined to undertake and strengthen
measures for the occupational health and safety of
their employee. (Art.200, LC)
Q: Who are required to make contributions to the
SIF?
A: Contributions under this Title shall be paid in
their entirety by the employer and any contract or
device for the deduction of any portion thereof
from the wages or salaries of the employees shall
be null and void. (Art.183(c), LC)
The Republic of the Philippines guarantees the
benefits prescribed under this Title, and accepts
general responsibility for the solvency of the State
Insurance Fund. In case of any deficiency, the same
shall be covered by supplemental appropriation
from the national government. (Art.184, LC)
Q: When does the right to compensation or
benefit for loss or impairment of an Ee’s earning
capacity due to work‐related illness or injury
arise?
A: It arises or accrues upon, and not before, the
happening of the contingency. Hence, an Ee
acquires no vested right to a program of
compensation benefits simply because it was
operative at the time he became employed. (San
Miguel Corporation vs. NLRC, G.R. No. 57473,
August 15, 1988)
Q: Does recovery from the SIF bar a claim for
benefits under the SSS Law? Why?
A: No, as expressly provided for in Article 173 of the
Labor Code, payment of compensation under the
SIF shall not bar the recovery of benefits under the
SSS Law, Republic Act No. 1161, as amended.
Benefits under the SIF accrue to the Ees concerned
due to hazards involved and are made a burden on
the employment itself. On the other hand, social
security benefits are paid to SSS members by
reason of their membership therein for which they
contribute their money to a general fund. (Maao
Sugar Central Co., Inc. vs. CA, G.R. No. 83491,
August 27, 1990)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
127
UST GOLDEN NOTES 2011
G.LABOR RELATIONS LAW
4.
1.RIGHT TO SELF ORGANIZATION
5.
a.Who may unionize for purposes of collective
bargaining
6.
Q: What is the extent of the right to self‐
organization?
A: It includes the right:
1.
2.
To form, join and assist labor
organizations for the purpose of
collective bargaining (CB) through
representatives of their own
choosing; and
To engage in lawful and concerted
activities for the purpose of CB or for
their mutual aid and protection. (Art.
246)
7.
8.
9.
Q: Who are the persons/Ee’s eligible to join a
labor organization (LO) for purposes of CB?
A: The entities covered are all persons employed in:
1. Commercial industrial, and agricultural
enterprises; and
2. In religious, charitable, medical or
educational
institutions
whether
operating for profit or not. (Art. 243)
Q: Who are the persons/Ee’s eligible to join a
labor organization for mutual aid and protection?
A: The following enjoy the right to self‐organization
for mutual aid and protection:
Members of the AFP including the police
officers, policemen, firemen, and jail
guards. (Sec. 4, E.O. 180)
Confidential Employees.
(Metrolab
Industries Inc. v. Confesor, G.R. No.
108855, Feb. 28, 1996)
Employees of cooperatives who are its
members. (Benguet Elec. Coop. v. Ferrer‐
Calleja, G.R. No. 79025, Dec. 29, 1989);
However they may form worker’s
association. (NEECO Ee’s Assoc. v. NLRC,
G.R. No. 16066, Jan. 24, 2000)
Non‐Ee’s. (Rosario Bros. v. Ople, G.R. No.
L‐5390, July 31, 1984)
Gov’t Ee’s, including GOCC’s with original
charters. (Arizala v. CA, G.R. Nos. 43633‐
34, Sep. 14, 1990)
Aliens without a valid working permit or
aliens with working permits but are
nationals of a country which do not allow
Filipinos to exercise their right of self‐
organization and to join or assist labor
organizations. (Art. 269 of LC; D.O. No. 9
[1997], Rule II, Sec. 2)
b.Bargaining Unit
Q: What is a bargaining unit?
A: It is a group of Ee’s of a given Er, comprised of all
or less than all of the entire body of the Ee’s which
the collective interest of all the Ee’s consistent with
equity to the employer, indicate to be best suited to
serve the reciprocal rights and duties of the parties
under the collective bargaining provisions of the
law.
Q: What is an appropriate bargaining unit?
1.
2.
3.
4.
5.
6.
Ambulant workers
Intermittent workers
Itinerant workers
Self‐employed people
Rural workers
Those without and definite Er’s.
243)
A:
1.
2.
3.
4.
(Art.
5.
Q: Who are the persons/Ee’s not granted the right
to self‐organization:
A group of employees (Ees)
Of a given employer
Comprised of all or less than all of the
entire body of Ees
Which the collective interest of all the Ees
consistent with equity to the Er
Indicate to be best suited to serve the
reciprocal rights and duties of the parties
under the collective bargaining provisions
of the law.
A:
1.
2.
3.
High level or Managerial Government
Ee’s. (Sec. 3, E.O. 180)
Ee’s of International organizations with
immunities. (ICMC v. Calleja, G.R. No.
85750, Sep. 28, 1990)
Managerial Employees. (Art. 212 of LC)
(1)Test to determine the constituency of an
appropriate bargaining unit
Q: What are the factors considered in determining
the appropriateness of a bargaining unit?
A:
1.
128
Will of the Ees. (Globe Doctrine)
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
2.
Affinity and unity of the Ees interest, such
as substantial similarity of work and
duties, or similarity of compensation and
working conditions. (Substantial Mutual
Interest Rule)
Prior collective bargaining history
Similarity of employment status. (SMC v.
Laguesma, G.R. No. 100485, Sep. 21,
1994)
Q: What are the factors considered in determining
the substantial mutual interest doctrine?
A: No. While the existence of a bargaining history is
a factor that may be reckoned with in determining
the appropriate bargaining unit, the same is not
decisive or conclusive. Other factors must be
considered. The test of grouping is community or
mutuality of interests. This is so because the basic
test of an asserted bargaining unit’s acceptability is
whether or not it is fundamentally the combination
which will best assure to all Ees the exercise of their
CB rights. (Democratic Labor Ass’n v. Cebu
Stevedoring Company, Inc., G.R. No. L‐10321, Feb.
28, 1958)
A:
Q: What is “one‐union, one‐company” policy?
3.
4.
1.
Similarity in the scale and manner of
determining earnings
2. Similarity in employment benefits, hours
of work, and other terms and conditions
of employment
3. Similarity in the kinds of work performed
4. Similarity in the qualifications, skills and
training of Ees
5. Frequency of contract or interchange
among the Ees
6. Geographical proximity
7. Continuity and integration of production
processes
8. Common supervision and determination
of labor‐relations policy
9. History of CB
10. Desires of the affected Ees or
11. Extent of union organization
Q: A registered labor union in UP, ONAPUP, filed a
petition for certification election (PCE) among the
non‐academic Ees. The university did not oppose,
however, another labor union, the All UP Workers
Union assents that it represents both academic
and non‐academic personnel and seeks to unite all
workers in 1 union. Do Ees performing academic
functions need to comprise a bargaining unit
distinct from that of the non‐academic Ees?
A: Yes. The mutuality of interest test should be
taken into consideration. There are two classes of
rank and file Ees in the university that is, those who
perform academic functions such as the professors
and instructors, and those whose function are non‐
academic who are the janitors, messengers, clerks
etc. Thus, not much reflection is needed to perceive
that the mutuality of interest which justifies the
formation of a single bargaining unit is lacking
between the two classes of Ees. (U.P. v. Ferrer‐
Calleja, G.R. No.96189, July 14, 1992)
Q: Is the bargaining history a decisive factor in the
determination of appropriateness of bargaining
unit?
A: GR: It is the proliferation of unions in an Er unit.
Such is discouraged as a matter of policy unless
there are compelling reasons which would deny
a certain class of Ees to the right to self‐
organization for purposes of collective
bargaining (CB).
XPNs:
1. Supervisory Ees who are allowed to form
their own unions apart from the rank‐
and‐file Ees and
2. The policy should yield to the right of Ees
to form union for purposes not contrary
to law, self‐organization and to enter into
CB negotiations.
Note: Two companies cannot be treated into a single
bargaining unit even if their businesses are related.
Subsidiaries or corporations formed out of former
divisions of a mother company following a re‐
organization may constitute a separate bargaining
unit.
Q: Union filed a PCE among the rank and file Ees
of three security agencies including the Veterans
Security. The latter opposed alleging that the three
security agencies have separate and distinct
corporate personalities. May a single PCE filed by a
labor union in the three corporations instead of
filing 3 separate petitions?
A: Yes. The following are indications that the 3
agencies do not exist and operate separately and
distinctly from each other with different corporate
direction and goals: 1) Veterans Security failed to
rebut the fact that they are managed through the
Utilities Management Corp with all their Ees
drawing their salaries and wages from the said
entity; 2) that the agencies have common and
interlocking incorporators and officers; 3) that they
have a single mutual benefit system and followed a
single system of compulsory retirement. 4) they
could easily transfer security guards of one agency
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
129
UST GOLDEN NOTES 2011
to another and back again by simply filling‐up a
common pro‐forma slip; 5) they always hold joint
yearly ceremonies such as the PGA Annual Awards
Ceremony; and 6) they continue to be represented
by one counsel.
Hence, the veil of corporate fiction of the 3
agencies should be lifted for the purpose of
allowing the Ees of the 3 agencies to form single
union. As a single bargaining unit, the Ees need not
file 3 separate PCE. (Philippine Scout Veterans
Security and Investigation Agency v. SLE, G.R. No.
92357, July 21, 1993)
through the Labor Relations Division shall, within 10
days from receipt of the notice, record the fact of VR in
its roster of legitimate labor unions and notify the
labor union concerned.
Q: What are the three (3) conditions to voluntary
recognition (VR)?
A: VR requires 3 concurrent conditions:
1.
VR is possible only in an unorganized
establishment.
2.
Only one union must ask for recognition. If
there 2 or more unions asking to be
recognized, the Er cannot recognize any
of them; the rivalry must be resolved
through an election.
3.
The union voluntarily recognized should
be the majority union as indicated by the
fact that members of the bargaining unit
did not object to the projected
recognition. If no objection is raised, the
recognition will proceed, the DOLE will be
informed and CBA recognition will
commence. If objection is raised, the
recognition is barred and a certification
election or consent election will have to
take place.
(2)Voluntary Recognition
Q: What are the 3 methods of determining the
bargaining representative?
A:
1.
2.
3.
Voluntary recognition
Certification election with or without run‐
off
Consent election
Q: What is voluntary recognition (VR)?
A: The process by which a legitimate labor union is
recognized by the employer (Er) as the exclusive
bargaining representative or agent in a bargaining
unit, reported with the Regional Office. (Sec. 1
[bbb], Rule I, Book V, IRR)
Q: What are the requirements for VR?
A: The notice of VR shall be accompanied by the
original copy and 2 duplicate copies of the following
req’ts:
1.
Joint statement under oath of VR
2.
Certificate of posting of joint statement
for 15 consecutive days in at least 2
conspicuous places in the establishment
of the bargaining unit
3.
Certificate of posting
4.
Approximate number of Ees in the
bargaining unit and the names of those
who supported the recognition
5.
Statement that the labor union is the only
LLO operating within the bargaining unit.
Note: Where the notice of voluntary recognition is
sufficient in form, number and substance and where
there is no registered labor union operating within the
bargaining unit concerned, the Regional Office,
130
Note: In an organized establishment, voluntary
recognition is not possible. A petition to hold a CE has
to be filed within the freedom period which means the
last 60 days of the 5th year of the expiring CBA. The
petition may be filed by any Legitimate Labor
Organization (LLO), but the petition must have written
support of at least 25% of the Ees in the bargaining
unit.
Q: Where and when to file the petition for VR?
A: Within 30 days from such recognition, Er shall
submit a notice of VR with the Regional Office
which issued the recognized labor union’s
certificate of registration or certificate of creation
of a chartered local.
Q: What are the effects of recording of fact of
voluntary recognition (VR)?
A:
1.
2.
The recognized labor union shall enjoy
the rights, privileges and obligations of an
existing bargaining agent of all the
employees (Ees) in the bargaining unit.
It shall also bar the filing of a petition for
certification election by any labor
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
organization for a period of 1 year from
the date of entry of VR.
(3)Certification Election
Q: What is certification election (CE)?
Note: Some of the Ees may not want to have a union;
hence, “no union” is one of the choices named in the
ballot. If “no union” wins, the company or the
bargaining unit remains un‐unionized for at least 12
months, the period is known as 12‐month bar. After
that period, a petition for a CE may be filed again.
A: It is the process of determining through secret
ballot the sole and exclusive representative of the
Ees in an appropriate bargaining unit, for purposes
of CB or negotiation. (Sec. 1 [h], Rule I, Book V, IRR)
Q: Distinguish the requisites for a petition for
certification election between an organized and an
unorganized establishment.
Note: The process is called CE because it serves as the
official, reliable and democratic basis for the BLR to
determine and certify the union that shall be the
exclusive bargaining representative of the Ees for the
purpose of bargaining with the Er.
Art.256. ORGANIZED
Art.257. UNORGANIZED
Bargaining agent
Present
None
Petition filed
Has to be a verified
No need to be verified
petition
Freedom Period
No petition for CE except
Not applicable. No
within 60 days before the
freedom period. Petition
expiration of the CBA.
can be filed anytime.
(See Art. 253 & 253‐A)
Substantial support rule
Must be duly supported
No substantial support
by 25% of all the
rule.
members of the
appropriate bargaining
Why? Intention of law is
unit (ABU).
to bring in the union, to
implement policy behind
Percentage base: all
Art. 211(a).
members of an ABU.
Q: What is the nature of certification election?
A: A certification election is not a litigation but
merely an investigation of a non‐adversarial fact‐
finding character in which BLR plays a part of a
disinterested investigator seeking merely to
ascertain the desire of the employees as to the
matter of their representation. (Airline Pilots Ass’n
of the Philippines v. CIR, G.R. No. L‐33705, April 15,
1977)
Q: What is the purpose of a certification election?
A: It is a means of determining the worker’s choice
of:
1.
2.
Whether they want a union to represent
them for collective bargaining or if they
want no union to represent them at all.
And if they choose to have a union to
represent them, they will choose which
among the contending unions will be the
sole
and
exclusive
bargaining
representative of the employees in the
appropriate bargaining unit.
Q: What are the issues involved in a certification
proceeding?
A: Certification proceedings directly involve two
issues:
1.
2.
Proper composition and constituency of
the bargaining unit; and
The veracity of majority membership
claims of the competing unions so as to
identity the one union that will serve as
the bargaining representative of the
entire bargaining unit.
A:
Note: The approval of the PCE in an unorganized
bargaining unit is NEVER appealable, the reason being
that the law wants the ununionized to be unionized.
Q: Should the consent signatures of at least 25%
of the Ees in the bargaining unit be submitted
simultaneously with the filing of the petition for
certification election (PCE)?
A: No, the administrative rule requiring the
simultaneous submission of the 25% consent
signatures upon the filing of PCE should not be
strictly applied to frustrate the determination of the
legitimate representative of the workers.
Accordingly, the Court held that the mere filing of a
PCE within the freedom period is sufficient basis for
the issuance of an order for the holding of a CE,
subject to the submission of the consent signatures
within a reasonable period from such filing. (Port
Workers Union of the Phils. v. Laguesma, G.R. Nos.
94929‐30, Mar. 18, 1992)
Q: Who may file a petition for certification
election (PCE)?
A:
1.
Any legitimate labor organization (LLO)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
131
UST GOLDEN NOTES 2011
2.
3.
4.
A national union or federation which has
already issued a charter certificate to its
local chapter participating in the CE
A local chapter which has been issued a
charter certificate
An Er only when requested to bargain
collectively in a bargaining unit where no
registered CBA exists. (Sec. 1, Rule VIII,
Book V, IRR as amended by D.O. 40‐F‐03)
Note: A national union or federation filing a petition in
behalf of its local/chapter shall not be required to
disclose the names of the local/chapter’s officers and
members, but shall attach to the petition the charter
certificate it issued to its local/chapter. (Sec. 1, Rule
VIII, Book V, IRR as amended by D.O. 40‐F‐03)
Q: May an employee intervene in the petition for
certification election (PCE)?
A: Yes, for the purpose of protecting his individual
right. (Sec. 1, Rule VIII, Book V, IRR as amended by
D.O. 40‐03)
Q: Where is PCE filed?
A: It shall be filed with the Regional Office which
issued the petitioning union's certificate of
registration/certificate of creation of chartered
local. (Implementing Rules, as amended by D.O. 40‐
03)
Q: Who shall hear and resolve the PCE?
A: The Mediator‐Arbiter.
Q: When to file PCE?
A: The proper time to file the PCE depends on
whether the Certified Bargaining Unit has a CBA or
not:
1.
2.
If it has no CBA, the petition may be filed
anytime outside the 12‐month bar
(certification year).
If it has CBA, it can be filed only within the
th
last 60 days of the 5 year of the CBA.
by‐laws
Right to vote is enjoyed
only by union members
Winners of union election
become officers and
representatives of the
union only
All Ees whether union or
non‐union members who
belong to the appropriate
bargaining unit can vote
The winner in a CE is an
entity, a union, which
becomes the
representative of the
whole bargaining unit
that includes even the
members of the defeated
unions.
Note: Both in CE and union election, the prescribed
procedures should be followed.
Q: Can a "no‐union" win in a certification Election
(CE)?
A: Yes. Because the objective in a CE is to ascertain
the majority representation of the bargaining
representative, if the Ee’s desire to be represented
at all by anyone. Hence, no union is one of the
choices in a CE. (2006 Bar Question)
Alternative Answer:
No. A no union cannot win in a CE. The purpose of a
CE is to select an excusive bargaining agent and a
no union vote would precisely mean that the voter
is not choosing any of the contending unions. If the
no‐union votes constitute a majority of the valid
votes cast, this fact will all the more mean that no
union won in CE. A one‐year bar will consequently
stop the holding of another CE to allow the Er to
enjoy industrial peace for at least one year.
Q: In what instance may a PCE be filed outside
the freedom period of a current CBA?
A: As a general rule, in an establishment where
there is a CBA in force and effect, a PCE may be
filed only during the freedom period of such CBA.
But to have that effect, the CBA should have been
filed and registered with the DOLE. (Art. 231, 253‐A
and 256, LC). (1997 Bar Question)
Note: At the expiration of the freedom period, the Er
shall continue to recognize the majority status of the
incumbent bargaining agent where no PCE is filed.
Thus, a CBA that has not been filed and registered
with the DOLE cannot be a bar to a CE and such
election can be held outside the freedom period of
such CBA.
Q: Distinguish union election from certification
election.
Alternative Answer:
A:
UNION ELECTION
Held pursuant to the
union’s constitution and
132
CERTIFICATION ELECTION
The process is ordered
and supervised by DOLE
A PCE may be filed outside the freedom period of
a current CBA if such CBA is a new CBA that has
been prematurely entered into, meaning, it was
entered into before the expiry date of the old
CBA. The filing of the PCE shall be within the
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
freedom period of the old CBA which is outside the
freedom period of the new CBA that had been
prematurely entered into.
Q: Are probationary employees (Ees) entitled to
vote in a CE? Why?
A: Yes, in a CE, all rank‐and‐file Ees in the
appropriate bargaining unit (ABU) are entitled to
vote. This principle is clearly stated in Art. 255 of
the LC which states that the "labor organization
designated or selected by the majority of the Ees in
such unit shall be the exclusive representative of
the Ees in such unit for the purpose of collective
bargaining (CB)."
CB covers all aspects of the employment relation
and the resultant CBA negotiated by the certified
union binds all Ees in the bargaining unit. Hence, all
rank‐ and‐file Ees, probationary or permanent, have
a substantial interest in the selection of the
bargaining representative. The LC makes no
distinction as to their employment status as basis
for eligibility to vote in the petition for CE. The
law refers to "all" the Ees in the bargaining unit.
All they need to be eligible to vote is to belong
to the "bargaining unit" (Airtime Specialists, Inc. v.
Ferrer‐Calleja, G.R. No. 80612‐16, Dec. 29, 1989).
(1999 Bar Question)
A: Yes, it is now well‐settled that Ees who have
been improperly laid off but who have at present
an unabandoned right to or expectation of re‐
employment, are eligible to vote in CE’s. Thus, and
to repeat, if the dismissal is under question, as in
the case now at bar whereby a case of illegal
dismissal and/or ULP was filed, the Ee’s concerned
could still qualify to vote in the elections. (Phil.
Fruits & Vegetables Industries v. Torres, G.R. No.
92391, July 3, 1992)
Q: Is direct certification (DC) still allowed?
A: No. Even in a case where a union has filed a
petition for CE, the mere fact that there was no
opposition does not warrant a DC. More so in a
case when the required proof is not presented in an
appropriate proceeding and the basis of the DC is
the union’s self‐serving assertion that it enjoys the
support of the majority of the Ees, without
subjecting such assertion to the test of competing
claims. (Samahang Manggagawa sa Permex v.
Secretary, G.R. No. 107792, Mar. 2, 1998)
Q: What are the grounds for denying the PCE?
A:
1.
Q: What is direct certification?
A: It is the process whereby the Med‐Arbiter
directly certifies a labor organization of an
appropriate bargaining unit (ABU) of a company
after a showing that such petition is supported by
at least a majority of the Ees in the bargaining unit.
2.
3.
Q: Does the failure of SAMAFIL (an independent
union) to prove its affiliation with NAFLU‐KMU
federation affect its right to file a PCE as an
independent union?
A: No, as a LLO, it has the right to file a PCE on its
own beyond question. Its failure to prove its
affiliation with the NAFLU‐KMU cannot affect its
right to file said PCE as an independent union. At
the most, its failure will result in an ineffective
affiliation with NAFLU‐KMU. Despite affiliation, the
local union remains the basic unit free to serve the
common interest of all its members and pursue its
own interests independently of the federation.
(Samahan ng mga Manggagawa sa Filsystems v.
SLE, G.R. No. 128067, June 5, 1998)
Q: May illegally dismissed Ees of the company
participate in the certification election (CE)?
4.
5.
6.
The petitioning union or federation is not
listed in the DOLE’s registry of legitimate
labor unions or that its registration
certificate legal personality has been
revoked or cancelled with finality
Failure of a local chapter or national
union/federation to submit a duly issued
charter certificate upon filing of the
petition
The petition was filed before or after the
FREEDOM PERIOD of a duly registered
CBA; provided that the 60‐day period
based on the original CBA shall not be
affected by any amendment, extension or
renewal of the CBA; (contract bar rule)
The petition was filed within 1 year from
entry of voluntary recognition or within
the same period from a valid certification,
consent or run‐off election and no appeal
on the results of the certification, consent
or run‐off election is pending; (12‐month
bar; certification year bar rule)
A duly certified union has commenced
and sustained negotiations with the Er in
accordance with Art. 250 of the LC within
the 1‐year period. (negotiation bar rule)
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. (deadlock bar rule)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
133
UST GOLDEN NOTES 2011
7.
8.
9.
In case of an organized establishment,
failure to submit the 25% support req’t
for the filing of the PCE.
Non‐appearance of the petitioner for 2
consecutive
scheduled
conferences
before the med‐arbiter despite due
notice, and
Absence of Er‐Ee relationship between all
the members of the petitioning union and
the owner of the establishment where
the proposed bargaining unit is sought to
be represented. (Sec.14[a], Rule VIII, Book
V, IRR, as amended by D.O. 40‐F‐03)
Q: What is a prohibited ground for the
denial/suspension of the petition for certification
election?
A: The inclusion as union members of Ees outside
the bargaining unit. Said Ees are automatically
deemed removed from the list of membership of
said unions.
Q: Does the filing of a petition to cancel the
petitioner’s registration cause the suspension or
dismissal of the petition for certification election?
A: No. To serve as a ground for dismissal of a PCE,
the legal personality of the petitioner should have
been revoked or cancelled “with finality”.
Q: UNIDAD, a labor organization claiming to
represent the majority of the rank and file
workers of BAGSAK Toyo Manufacturing Corp.
(BMTC), filed a petition for CE during the
freedom period obtaining in said corp.
Despite the opposition thereto by SIGAW
Federation on the ground that UNIDAD was not
possessed with all the attributes of a duly
registered union, the Med‐Arbiter issued an order
calling for a CE on July 25, 2001. This order was
promulgated and served on the parties on July
12, 2001. On July 14, 2001, UNIDAD submitted
and served the required documents for its
registration as an independent union, which
documents were approved by the DOLE on July 15,
2001.
During the elections, UNIDAD won over SIGAW.
SIGAW questioned UNIDAD's victory on the
ground that UNIDAD was not a duly registered
union when it filed the petition for a CE. Shall
SIGAW’s case prosper or not? Why?
A: No, SIGAW's case will not prosper. The
application of technicalities of procedural req’ts
in CE disputes will serve no lawful objective or
purpose. It is a statutory policy that no obstacles
should be placed on the holding of a CE, (Samahang
134
ng Manggagawa sa Pacific Plastic vs. Laguesma,
G.R. No. 111245, Jan. 31, 1997) and that the law is
indisputably partial to the holding of a CE. (Western
Agusan vs. Trajano G.R. No. 65833, May 6, 1991)
At any rate, UNIDAD completed all the req’ts for
union registration on July 14, 2001, and legitimate
union status was accorded on July 15, 2000, or at
least 10 days before the scheduled date for holding
the CE. (2001 Bar Question)
Q: What is meant by “contract‐bar rule”?
A: Contract‐bar rule means that while a valid and
registered CBA is subsisting, the BLR is not allowed
to hold an election contesting the majority status of
the incumbent union except during the 60‐day
period immediately prior to its expiration, which
period is called the freedom period.
Note: In the absence of such timely notice or filing of
petition, the contract executed during the automatic
renewal period is a bar to CE.
There shall be no amendment, alteration, or
termination of any of the provisions of the CBA except
to give notice of one party’s intention to amend, alter
and terminate the provisions within the freedom
period.
Q: What are the requirements in order to invoke
the contract bar rule?
A: The existing CBA must:
1.
2.
3.
4.
5.
6.
7.
Be in writing and signed by all contracting
parties
Contain the terms and conditions of
employment
Cover employees in an appropriate
bargaining unit
Be for a reasonable period or duration
Be ratified
Be registered with the BLR; and
The violation of the contract bar rule or
the existence of a duly registered CBA
must be specially pleaded as a defense.
Q: What is the effect of an invalid or unregistered
CBA?
A: There is no bar and therefore a certification
election may be held.
Note: Registration of CBA only puts into effect the
contract‐bar rule but the CBA itself is valid and binding
even if unregistered.
Q: What are the exceptions to the contract bar
rule?
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
A:
1.
2.
3.
The CBA is unregistered
The CBA is inadequate and incomplete
The CBA was hastily entered into
(Doctrine of premature extension)
4. Withdrawal of affiliation from the
contracting union brought about by
schism or mass disaffiliation
5. Contract where the identity of the
representative is in doubt. (ALU v. Ferrer
Calleja, G.R. No. 85085, Nov. 6, 1989)
6. CBA entered into between the Er and the
union during the pendency of a petition
for CE (Vassar Industries Ees Union v.
Estrella, G.R. No. L‐46562, Mar. 31, 1978)
7. CBA conducted between the Er and the
union is not bar to a certification election
filed by another union and said CBA can
be renegotiated at the option of the new
bargaining agent. (ATU v. Hon. Noriel, G.R.
No. L‐48367, Jan. 16, 1979)
8. A CBA registered with falsified supporting
documents
9. CBA was concluded in violation of an
order enjoining the parties from entering
into a CBA until the issue of
representation is resolved
10. Petition is filed during the 60‐day
freedom period.
Note: Basic to the contract bar rule is the proposition
that the delay of the right to select representatives can
be justified only where stability is deemed paramount.
Excepted from the contract bar rule are certain types
of contracts which do not foster industrial stability,
such as contracts where the identity of the
representative is in doubt. Any stability derived from
such contracts must be subordinated to the Ees’
freedom of choice because it does not establish the
type of industrial peace contemplated by law.
(Firestone Tire & Rubber Company Ee’s Union v.
Estrella, G.R. No. L‐45513‐14, Jan. 6, 1978)
Q: Can the BLR certify a union as the exclusive
bargaining representative after showing proof of
majority representation thru union membership
cards without conducting an election?
A: No. The LC (In Arts. 256, 257 and 258) provides
only for a CE as the mode for determining
the exclusive collective bargaining representative
if there is a question of representation in an
appropriate bargaining unit. (1998 Bar Question)
Q: When does deadlock arise?
A: It arises when there is an impasse, which
presupposes reasonable effort at good faith
bargaining which, despite noble intentions, did not
conclude in an agreement between the parties.
Q: What is deadlock bar rule?
A: A petition for certification election (PCE) cannot
be entertained if, before the filing of the PCE, a
bargaining deadlock to which an incumbent or
certified bargaining agent is a party, had been
submitted to conciliation or arbitration or had
become the subject of a valid strike or lockout.
Q: What are the indications of a genuine
deadlock?
A:
1.
2.
The submission of the deadlock to a third
party conciliator or arbitrator; and
The deadlock is the subject of a valid
notice strike or lockout.
Q: Capitol Medical Center Ees’ Association‐Alliance
of Filipino Workers (CMCEA‐AFW) emerged as the
certified representative of the rank‐and‐file Ees at
Capitol Medical Center (CMC). Due to CMC’s
refusal to bargain collectively, CMCEA‐AFW filed a
notice of strike and later on staged the strike after
complying with the other legal req’ts. The SLE
assumed jurisdiction over the case and issued an
order certifying the same to the NLRC for
compulsory arbitration. During all of these events
Capitol Medical Center Alliance of Concerned
employees (Ees)‐Unified Filipino Service Workers
filed a petition for CE among the regular rank‐and‐
file Ees of CMC. The petition for CE was dismissed
and the CMC was directed to negotiate with
CMCEA‐AFW. Was the dismissal of the PCE proper?
A: Yes, if the law proscribes the conduct of a CE
when there is a bargaining deadlock submitted to
conciliation or arbitration, with more reason should
it not be conducted if, despite attempts to bring an
Er to the negotiation table by the certified
bargaining agent, there was "no reasonable effort
in good faith" on the Er to bargain collectively.
The circumstances in this case should be considered
as similar in nature to a "bargaining deadlock"
when no CE could be held. This is also to make sure
that no floodgates will be opened for the
circumvention of the law by unscrupulous Ers to
prevent any certified bargaining agent from
negotiating a CBA. Sec. 3, (Rule VIII), Book V of the
IRR should be interpreted liberally so as to include a
circumstance where a CBA could not be concluded
due to the failure of one party to willingly perform
its duty to bargain collectively. (Capitol Medical
Center Alliance of Concerned Ees v. Laguesma, G.R.
No. 118915, Feb. 4, 1997)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
135
UST GOLDEN NOTES 2011
Q: Should the certification election proceedings be
suspended in view of the pending case for
cancellation of the union’s certificate of
registration?
A: No, the pendency of a cancellation case is not a
ground for the dismissal or suspension of a
representation proceeding considering that a
registered labor organization (LO) continues to be a
legitimate one entitled to all the rights appurtenant
thereto until a final valid order is issued cancelling
such registration.
Once a LO attains the status of a LLO it begins to
possess all of the rights and privileges granted by
law to such organizations. As such rights and
privileges ultimately affect areas which are
constitutionally protected, the activities in which LO,
associations and unions are engaged directly affect
the public interest and should be zealously
protected. (Progressive Dev’t Corp. v. SLE, G.R. No.
115077, April 18, 1997)
Q: What is negotiation bar rule?
A: A PCE cannot be entertained if, before the filing
of the PCE, the duly recognized or certified union
has commenced negotiations with the Er in
accordance with Art. 250 of the LC.
Q: What is certification year rule?
A: No PCE may be filed within one year from the
date of a valid certification, consent, or run‐off
election or from the date of voluntary recognition.
(4)Run‐off Election
Q: What is a run‐off election?
A: An election conducted when:
1.
2.
3.
4.
5.
136
An election which provides for 3 or more
choices results in none of the contending
unions receiving a majority of the valid
votes cast, and
There are no objections or challenges
which if sustained can materially alter the
results, provided
The total number of votes for all the
contending unions is at least 50% of the
number of votes cast. (Sec. 1, Rule X, Book
V, IRR)
Not one of the choices obtained the
majority of the valid votes cast (50%+ 1
second majority);
The two choices which garnered the
highest votes will be voted and the one
which garners the highest number of
votes will be declared the winner
provided they get the majority votes of
the total votes cast.
Q: Who are the choices in a run‐off election?
nd
A: The unions receiving the highest and 2 highest
number of the votes cast. (Sec.2, Rule X, Book V,
IRR)
Note: “No Union” shall not be a choice in the run‐off
election
(5)Re‐run Election
Q: When does Re‐run Election take place?
A:
1. If one choice receives a plurality of the
vote and the remaining choices results in a
tie; or
2. If all choices received the same number
of votes.
Note: In both instances, the no union is also a choice.
(5)Consent Election
Q: What is a consent election?
A: An election voluntarily agreed upon by the
parties, with or without the intervention by DOLE.
(Sec.1 [h], Rule I, Book V, IRR)
Note: To afford an individual employee‐voter an
informed choice where a local/chapter is the
petitioning union, the local/chapter shall secure its
certificate of creation at least 5 working days before
the date of the consent election. (Sec.1, Rule VIII, Book
V, IRR as amended by DO 40‐F‐03)
Q: What are the requisites before a labor union
can be declared a winner (double majority rule)?
A:
1.
2.
Majority of the eligible voters cast their
votes.
Majority of the valid votes cast is for such
union.
Q: How to determine the double majority rule?
A:
1.
2.
In determining the eligible votes cast (first
majority) include spoiled ballots
In determining valid votes (second
majority), eliminate spoiled ballots but
included the challenged votes.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
Q: A certification election was conducted among
the rank‐and‐file Ees of Holiday Inn Manila
Pavilion Hotel. In view of the significant number
of segregated votes, contending unions, National
Union of Workers in Hotels, Restaurants and Allied
Industries—Manila Pavilion Hotel Chapter
(NUWHRAIN‐MPHC) and Holiday Inn Manila
Pavilion Hotel Labor Union (HIMPHLU), referred
the case back to the Med‐Arbiter to decide which
among those votes would be opened and tallied.
11 votes were initially segregated because they
were cast by dismissed Ees, albeit the legality of
their dismissal was still pending before the CA. 6
other votes were segregated because the Ees who
cast them were already occupying supervisory
positions at the time of the election. Still 5 other
votes were segregated on the ground that they
were cast by probationary Ees and, pursuant to
the existing CBA, such Ees cannot vote.
NUHWHRAIN‐MPHC further avers that HIMPHLU,
which garnered 169 votes, should not be
immediately certified as the bargaining unit, as the
opening of the 17 segregated ballots would push
the number of valid votes cast to 338, hence, the
169 votes which HIMPHLU garnered would be 1
vote short of the majority which would then
become 170.
Was HIMPHLU able to obtain the required
majority for it to be certified as the exclusive
bargaining agent?
A: No, it is well‐settled that under the “double
majority rule” for there to be a valid certification
election, majority of the bargaining unit must have
voted and the winning union must have garnered
majority of the valid votes cast.
Following the ruling that all the probationary Ees
votes should be deemed valid votes while that of
the supervisory Ees should be excluded, it follows
that the number of valid votes cast would increase.
Under Art. 256 of the LC, the union obtaining the
majority of the valid votes cast by the eligible voters
shall be certified as the sole exclusive bargaining
agent of all the workers in the appropriate
bargaining unit. This majority is 50% + 1, in this case
at least 170. HIMPHLU obtained 169, clearly it was
not able to obtain a majority vote. (NUWHRAIN ‐
MPHC v. SLE, G.R. No. 181531, July 31, 2009)
Q: Distinguish certification election, consent
election, direct certification, and run‐off and re‐
run elections.
A:
Participation of
Med‐Arbiter
Certification Election
Purpose
To determine the sole
and exclusive bargaining
agent of all the Ees in an
appropriate bargaining
unit for the purpose of
collective bargaining.
Requires petition for CE
filed by a union or Er. A
Med‐Arbiter grants the
petition and an election
officer is designated by
regional director to
supervise the election.
Note: Med‐Arbiter may
determine if there is Er‐Ee
relationship and if the
voters are eligible.
Consent Election
To determine the issue of
majority representation
of all the workers in the
appropriate CB unit
mainly for the purpose of
determining the
Held by agreement of the
administrator of the CBA
unions with or without
the participation of the
when the contracting
Med‐Arbiter.
union suffered massive
disaffiliation and not for
the purpose of
determining the
bargaining agent for
purpose of CB.
Direct Certification
Med‐Arbiter directly
A LO is directly certified
certifies that a labor
as an appropriate
union is the exclusive CB
bargaining unit of a
representative of the Ees
company upon showing
of an appropriate
that petition is supported
bargaining unit without
by at least a majority of
holding a CE, but merely
the Ees in the bargaining
on the basis of evidence
unit.
of in support of the
union’s claim that is the
Note: Direct certification is
choice of the majority of
no longer allowed.
the Ees.
Run‐Off Election
Takes place between the
unions who received the
two highest number of
votes in a CE with 3 or
more choices, where not
one of the unions
obtained the majority of
the valid votes cast,
provided the total union
votes is at least 50% of
the votes cast.
Re‐run Election
Takes
place
in
2
instances:
1. If one choice receives a
plurality of the vote
and the remaining
choices results in a tie;
or
2. If all choices received
the same number of
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
137
UST GOLDEN NOTES 2011
processed by the Labor Relations Division
at the RO.
votes.
In both instances, the no
union is also a choice.
2.
Note: Petition for cancellation of registration is not a
bar to a PCE. No prejudicial question shall be
entertained in a petition for certification election.
(D.O. 40‐03)
(7)Affiliation and Disaffiliation of the Local Union
from the Mother Union
Q: How is a local chapter created?
A: A duly registered federation or national union
may directly create a local/ chapter by issuing a
charter certificate indicating the establishment of a
local/chapter.
1.
2.
3.
The chapter shall acquire legal personality
only for purposes of filing a petition for
certification election from the date it was
issued a charter certificate
The chapter shall be entitled to all other
rights and privileges of a legitimate labor
organization (LLO) only upon the
submission of the following documents in
addition to its charter certificate:
a. Names of the chapter’s officers,
their addresses, and the principal
office of the chapter
b. Chapter’s constitution and by‐laws
c. Where the chapter’s constitution
and by‐laws are the same as that of
the federation or the national union,
this fact shall be indicated
accordingly
The genuineness and due execution of
the supporting requirements shall be:
a. Certified under oath by the secretary
or treasurer of the local/chapter, and
b. Attested to by its president (Sec.2[e],
Rule III, Book V, IRR, as amended by
D.O. 40‐F‐03)
Note: Under the LC and the rules, the power granted
to LOs to directly create a chapter or local through
chartering is given to a federation or national union
only, not to a trade union center. (SMCEU v. San
Miguel Packaging Products Ees Union, G.R. No.
171153, Sep. 12, 2007)
Q: Where is the application for registration filed?
A:
1.
138
Independent labor unions, chartered
locals or worker’s associations – It is filed
with the Regional Office (RO). where the
applicant principally operates. It shall be
Federations, national unions or worker’s
association operating in more than one
region – It is filed with the BLR of the RO,
but shall be processed by the BLR.
Q: What is the duty of the BLR after a LO had filed
the necessary papers and documents for
registration?
A: It becomes mandatory for the BLR to check if the
req’ts under Art. 234 of the LC have been
sedulously complied with. If its application for
registration is vitiated by falsification and serious
irregularities, especially those appearing on the face
of the application and the supporting documents, a
LO should be denied recognition as a LLO.
(Progressive Dev’t Corp.‐Pizza Hut v. Laguesma, G.R.
No. 115077, April 18, 1997)
Q: Within what period should the BLR act on the
applications submitted before it?
A: It shall act on all applications for registration
within 10m days from receipt either by:
1.
2.
Approving the application and issuing the
certificate of registration/acknowledging
the notice/report; or
Denying the application/notice for failure
of the applicant to comply with the
requirements for registration/notice (D.O.
40‐03, Rule IV, Sec.4, series of 2003)
Note: All requisite documents shall be:
1. Certified under oath by the secretary or
treasurer of the organization, as the case
may be and
2. Attested to it by its President.
Q: May the BLR review the issuance of a certificate
of registration?
A: No. The BLR has the duty to review the
application for registration not the issuance of a
certificate of registration.
Q: Why is a lesser requirement imposed for a
chartered local?
A: The intent of the law in imposing lesser req’ts in
the case of branch or local of a registered
federation or national union is to encourage the
affiliation of a local union in order to increase the
local union’s bargaining power respecting terms
and conditions of labor. (Progressive Dev’t Corp v.
SLE, G.R. No. 96425, Feb. 4, 1992)
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
Q: What are the requirements before a federation
can be issued a certificate of registration?
3.
A: The application for registration of federations
and national unions shall be accompanied by the
following documents:
4.
1.
A statement indicating the name of the
applicant labor union, its principal
address, the name of its officers and their
respective addresses;
2.
The minutes of the organizational
meeting(s) and the list of Ees who
participated in the said meeting(s);
3.
The annual financial reports if the
applicant union has been in existence for
1 or more years, unless it has not
collected any amount from the members,
in which case a statement to this effect
shall be included in the application;
4.
The applicant union's constitution and by‐
laws, minutes of its adoption or
ratification, and the list of the members
who participated in it. The list of ratifying
members shall be dispensed with where
the constitution and by‐laws was ratified
or adopted during the organizational
meeting(s). In such a case, the factual
circumstances of the ratification shall be
recorded in the minutes of the
organizational meeting(s);
5.
6.
The resolution of affiliation of at least 10
LLOs, whether independent unions or
chartered locals, each of which must be a
duly certified or recognized bargaining
agent in the establishment where it seeks
to operate; and
The name and addresses of the
companies where the affiliates operate
and the list of all the members in each
company involved. (D.O. 40‐03, Rule, III,
Sec. 2‐B, series of 2003)
Q: What are the requirements for affiliation?
A: The report of affiliation of independently
registered labor unions with a federation or
national union shall be accompanied by the
following documents:
1. Resolution of the labor union's board of
directors approving the affiliation;
2. Minutes of the general membership
meeting approving the affiliation;
5.
The total number of members comprising
the labor union and the names of
members who approved the affiliation;
The certificate of affiliation issued by the
federation in favor of the independently
registered labor union; and
Written notice to the employer
concerned if the affiliating union is the
incumbent bargaining agent. (D.O. 40‐03,
Rule, III, Sec. 7, series of 2003)
Q: What is the effect of affiliation?
A: The labor union that affiliates with a federation is
subject to the laws of the parent body under whose
authority the local union functions. The
constitution, by‐laws and rules of the mother
federation, together with the charter it issues to the
local union, constitutes an enforceable contract
between them and between the members of the
subordinate union inter se. Thus, pursuant to the
constitution and by‐laws, the federation has the
right to investigate and expel members of the local
union. (Villar v. Inciong, G.R. No. L‐50283‐84, April
20, 1983)
Q: May a local union disaffiliate from the
federation?
A:
GR: A labor union may disaffiliate from the
mother union to form an independent union
only during the 60‐day freedom period
immediately preceding the expiration of the
CBA.
XPN: Even before the onset of the freedom
period, disaffiliation may still be carried out, but
such disaffiliation must be effected by the
majority of the union members in the
bargaining unit.
Note: This happens when there is a substantial shift in
allegiance on the part of the majority of the members
of the union. In such a case, however, the CBA
continues to bind the members of the new or
disaffiliated and independent union up to determine
the union which shall administer the CBA may be
conducted.
(ANGLO‐KMU
v.
Samahan
ng
Manggagawang Nagkakaisa sa Manila Bay Spinning
Mills at J.P. Coats, G.R. No.118562, July 5, 1996)
Q: What is the limitation to disaffiliation?
A: Disaffiliation should be in accordance with the
rules and procedures stated in the constitution and
by‐laws of the federation. A local union may
disaffiliate with its mother federation provided that
there is no enforceable provision in the federation’s
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
139
UST GOLDEN NOTES 2011
constitution preventing disaffiliation of a local
union. (Tropical Hut Ees Union v. Tropical Hut, G.R.
Nos. L‐43495‐99, Jan. 20, 1990)
Note: A prohibition to disaffiliate in the Federation’s
constitution and by‐laws is valid because it is intended
for its own protection.
Q: What is the effect of cancellation of registration
of a federation or a national union?
A:
GR: It shall operate to divest its locals/chapters
of their status as LLO.
XPN: Locals/chapters retain status as LLO if
they arecovered by a duly registered CBA.
Note Locals or chapters who retained status as LLO
shall be allowed to register as independent unions. If
they fail to register, they shall lose their legitimate
status upon the expiration of the CBA.
Q: PSEA is a local union in Skylander company
which is affiliated with PAFLU. PSEA won the
certification election among the rank and file Ees
of the Skylander company but its rival union PSEA‐
WATU protested the results.
Pending the
resolution of such controversy, PSEA disaffiliated
with PAFLU and hence affiliated with NCW which
was supported by its members. May a local union
disaffiliate with its mother federation pending the
settlement of the status as the sole and exclusive
bargaining agent?
A: Yes. The pendency of an election protest does
not bar the valid disaffiliation of the local union
which was supported by the majority of its
members.
The right of a local union to disaffiliate with the
federation in the absence of any stipulation in the
constitution and by‐laws of the federation
prohibiting disaffiliation is well settled. Local
unions remain as the basic unit of association, free
to serve their own interest subject to the restraints
imposed by the constitution and by‐laws of national
federation and are free to renounce such affiliation
upon the terms and conditions laid down in the
agreement which brought such affiliation to
existence. In the case at bar, no prohibition existed
under the constitution and by‐laws of the
federation. Hence, the union may freely disaffiliate
with the federation. (Philippine Skylanders v. NLRC,
G.R. No. 127374, Jan. 31, 2002)
Q: Distinguish between an independently
registered and unregistered chartered local union.
CHARTERED LOCAL UNION
Independently
Unregistered
Registered
How to affiliate?
By application of with the
federation for the
By signing contract of
issuance of a charter
affiliation
certificate to be
submitted to the BLR
Effect of Disaffiliation to the union (local)
Would cease to be LLO
Would not affect its being
and would no longer
a LLO and therefore it
have the legal personality
would continue to have
and the rights and
legal personality and to
privileges granted by law
posses all rights and
to LLO, unless the local
privileges of LLO.
chapter is covered by its
duly registered CBA.
Effect of Disaffiliation to the CBA
The CBA would continue
An existing CBA would
to be valid. The local
continue to be valid as
chapter will not lose its
the LO can continue
personality, unless it
administering then CBA.
registers a new.
Entitlement to union dues after Disaffiliation
Union dues may no
LO entitled to the union
longer be collected as
dues and not the
there would no longer be
federation from which
any labor union that is
the LO disaffiliated.
allowed to collect such
union dues from the Ees.
Q: What is the form of the decision of the denial of
application for registration?
A: It shall be:
1. In writing
2. Stating in clear terms the reason for the
decision
3. Applicant union must be furnished a copy
of said decision.
Q: Is the denial of registration appealable?
A: Yes.
1.
2.
3.
4.
Decisions of the Regional Office shall be
appealable to the BLR and CA.
The BLR’s decisions on cases appealed
from Regional Director are final and not
appealable to the SLE.
Decisions of the BLR denying the
registration of a LO (federation or
national union) is appealable to the SLE
within 10 days from receipt of the
decision, on grounds of:
a. Grave abuse of discretion; or
b. Gross incompetence.
Decision of SLE appealable to CA.
A:
140
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
Q: How is appeal taken with regard to denial or
cancellation of registration?
a.
A:
b.
DENIAL OR CANCELLATION OF REGISTRATION
By Regional office
By BLR
Transmit records within 24 hours
from receipt of the Memo of Appeal
BLR will decide on the
SLE decides on the matter
matter within 20 days
within 20 days from
from receipt of the
receipt of records
records
Appeal to CA via Rule 65
Note: Appeal is by memo of appeal within 10 days
from receipt of notice.
Q: Who cancels the certificate of registration?
A: The certificate of registration of any LLO,
whether national or local, may be cancelled by the
BLR, after due hearing, only on the grounds
specified in Art. 239. (as amended by R.A. 9481)
Q: What is the effect of a petition for cancellation
or of union registration?
A: It shall not suspend the proceedings for
certification election (CE) nor shall it prevent the
filing of CE.
In case of cancellation, nothing herein shall restrict
the right of the union to seek just and equitable
remedies in the appropriate courts.
Q: Where is a petition for cancellation of
registration or application for voluntary
dissolution filed?
2.
Failure to comply with any of the
req’ts under Art. 234, 237 and 238 of
the LC.
Violation of any provision under Art.
239, LC.
For federations, national or industry
unions, trade union centers – Only
members of the labor organization (LO)
concerned may file if the grounds are
actions involving violations of Art. 241,
subject to the 30% rule.
Q: What is the effect of cancellation of registration
if the cancellation is made in the course of the
proceedings?
A: Where a labor union is a party in a proceeding
and later it loses its registration permit in the
course or during the pendency of the case, such
union may continue as party without need of
substitution of parties, subject however to the
understanding that whatever decision may be
rendered will be binding only upon those members
of the union who have not signified their desire to
withdraw from the case before its trial and decision
on the merits.
Note: Rationale: Principle of agency is applied – the
Ees are the principals, and the LO is merely an agent of
the former, consequently, the cancellation of the
union’s registration would not deprive the consenting
member‐Ees of their right to continue the case as they
are considered as the principals.
Q: What are the grounds for cancellation of union
registration?
A:
A:
1.
2.
For legitimate independent labor unions,
local/chapter and worker’s association –
It shall be filed with the Regional Office
which issued its certificate of registration
or creation.
For federations, national or industry and
trade union centers – It shall be filed with
the BLR. (Sec. 1, Rule XIV, Book V, IRR as
amended by D.O. 40‐F‐03)
1.
Misrepresentation, false statement or
fraud in connection with the:
a. Adoption or application of the
constitution
and
by‐laws
or
amendments thereto
b. Minutes of ratification and
c. List of members who took part in the
ratification;
d. Election of officers
e. Minutes of the election of officers
and
f. List of voters (Art. 239 as amended)
2.
Voluntary dissolution by the members.
(as amended by R.A. 9481)
Q: Who may file a petition for cancellation of
registration?
A:
1.
For legitimate individual labor union,
chartered local and worker’s association –
Any party‐in‐interest may file a petition
for cancellation of registration if the
ground is:
Note: A pronouncement as to the legality of the strike
is not within the meaning of Art. 239 of the LC.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
141
UST GOLDEN NOTES 2011
Q: What are the prohibited grounds for
cancellation of union registration?
A:
1. The inclusion as union member of Ees who
are outside the bargaining unit shall not
be a ground to cancel the union
registration. The ineligible Ees are
automatically deemd removed from the
list of membership of the union as.(Art.
245‐A as amended by RA 9481)
2. The affiliation of the rank‐and‐file and
supervisory unions operating within the
same establishment to the same
federation or national union shall not be a
ground to cancel registration of either
union. (Sec. 6, Rule XIV, Book V, as
inserted by D.O. 40‐F‐03)
Q: How is voluntary cancellation of registration
made?
A: Registration may be
organization itself provided:
1.
2.
cancelled
by
the
At least ⅔ of its general membership
votes to dissolve the organization, in a
meeting duly called for that purpose; and
An application to cancel registration is
thereafter submitted by the board of the
organization, attested by its president.
Q: What are the “reportorial requirements”
required to be submitted by a legitimate labor
organization (LLO) ?
A: The following documents are required to be
submitted to BLR by the LLO concerned:
1.
2.
3.
4.
142
Within 30 days from adoption or
ratification of the constitution and by
laws (CBL) or amendments thereto:
a. CBL or amendments thereto
b. Minutes of ratification
c. List of members who took part in the
ratification of the constitution and
by‐laws;
Within 30 days from date of election or
appointment:
a. List of elected and appointed officers
and agents entrusted with the
handing of union funds
b. Minutes of election of officers
c. List of voters
Annual financial report within 30 days
after the close of every fiscal year
List of members at least once a year or
whenever required by the Bureau. (Sec. 1,
Rule V, Book V, IRR, as amended by D.O.
40‐F‐03)
Note: Failure to submit reportorial requirements is no
longer a ground for cancellation but shall subject the
erring officers or members to suspension, expulsion
from membership, or any appropriate penalty (Art.
242‐A, as inserted by R.A. 9481).
Q: What is the successor‐ in‐interest doctrine?
A:
GR: It is when an Er with an existing CBA is
succeeded by another Er, the successor‐in‐
interest who is the buyer in good faith has no
liability to the Ees in continuing employment
and the bargaining agreement because these
contracts are in personam.
XPNs:
1. When the successor‐in‐interest expressly
assumes an obligation;
2. The sale is a device to circumvent the
obligation; or
3. The sale or transfer is made in bad faith.
(a)Substitutionary Doctrine
Q: What is the substitutionary doctrine?
A: It is where there occurs a shift in the Ees union
allegiance after the execution of a collective
bargaining (CB) contract with the Er, the Ees can
change their agent (labor union) but the CB
contract which is still subsisting continues to bind
the Ees up to its expiration date. They may
however, bargain for the shortening of said
expiration date.
Note: The Er cannot revoke the validly executed CB
contract with their Er by the simple expedient of
changing their bargaining agent. The new agent must
respect the contract. (Benguet Consolidated Inc. v. BCI
Ees and Worker’s Union‐PAFLU, G.R. No. L‐24711, April
30, 1968)
It cannot be invoked to support the contention that a
newly certified CB agent automatically assumes all the
personal undertakings of the former agent‐like the “no
strike clause” in the CBA executed by the latter.
(8)Union Dues and Special Assessments
(a) Union Dues
Q: What are union dues?
A: These are regular monthly contributions paid by
the members to the union in exchange for the
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
benefits given to them by the CBA and to finance
the activities of the union in representing the union.
Q: What is check‐off?
Q: What are the requisites for a valid levy of
special assessment or extraordinary fees?
A:
A: It is a method of deducting from an Ee’s pay at a
prescribed period, the amounts due the union for
fees, fines and assessments.
1.
Deductions for union service fees are authorized by
law and do not require individual check‐off
authorizations.
2.
Q: What is the nature and purpose of check‐off?
A: Union dues are the lifeblood of the union.
All unions are authorized to collect reasonable
membership fees, union dues, assessments and
fines and other contributions for labor education
and research, mutual death and hospitalization
benefits, welfare fund, strike fund and credit and
cooperative undertakings.(Art. 277[a])
Q: What are the requisites of a valid check‐off?
A:
GR: No special assessments, atty’s fees,
negotiation fees or any other extraordinary fees
may be checked off from any amount due to an
employee (Ee) without individual written
authorization duly signed by the Ee.
The authorization should specifically state the:
1. Amount
2. Purpose &
3. Beneficiary of the deduction.
XPNs:
1. For mandatory activities under the LC
2. For agency fees
3. When non‐members of the union avail of
the benefits of the CBA:
a. Non‐members may be assessed
union dues equivalent to that paid by
union members;
b. Only by board resolution approved
by majority of the members in
general meeting called for the
purpose.
3.
Authorization by a written resolution of
the majority of all members at the general
membership meeting duly called for that
purpose;
Secretary’s record of the minutes of the
meeting, which must include the:
a. List of members present
b. Votes cast
c. Purpose of the special assessments
d. Recipient of such assessments;
Individual written authorization to check‐
off duly signed by the Ee concerned – to
levy such assessments.
Q: What is the effect of failure to strictly comply
the requirements set by law?
A: It shall invalidate the questioned special
assessments. Substantial compliance of the
requirements is not enough in view of the fact that
the special assessment will diminish the
compensation of union members. (Palacol v. Ferrer‐
Calleja, G.R. No. 85333, Feb. 26, 1990)
Q: Who has jurisdiction over check‐off disputes?
A: Being an intra‐union dispute, the Regional
Director of DOLE has jurisdiction over check off
disputes.
Q: Distinguish check‐off from special assessments.
A:
Check‐off
Special Assessment
How approved
(Union Dues)
By written resolution
By obtaining the individual
approved by majority of
written authorization duly
all the members at the
signed by the Ee which
meeting called for that
must specify:
purpose.
1. Amount
2. Purpose
3. Beneficiary
Exception to such requirement
(b) Special Assessments
Q: What are special assessments or extraordinary
fees?
A: These are assessments for any purpose or object
other than those expressly provided by the labor
organization’s constitution and by‐laws.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
143
UST GOLDEN NOTES 2011
(Agency fees)
Not necessary when:
1. For mandatory activities
under the LC
2. For agency fees
3. When non‐members of
the union avail of the
benefits of the CBA:
a. Said non‐members
may be assessed
union dues equivalent
to that paid by union
members;
b. Only by Board
resolution approved
by majority of the
members in general
meeting called for the
purpose
Union Dues
Is deducted from
members for the
payment of union dues
No exception; written
resolution is mandatory
in all instances.
May not be deducted
from the salaries of the
union members without
the written consent of
the workers affected.
May be deducted from
the salary of the Ees
without their written
consent.
2.RIGHT TO COLLECTIVE BARGAINING
Q: What is collective bargaining (CB)?
A:
1.
It is the process of negotiation by an
organization or group of workmen, in
behalf of its members, with the employer
(Er), concerning wages, hours of work,
and other terms and conditions of
employment and
2.
The settlement of disputes by negotiation
between an Er and the representative of
his employees (Ee)
3.
It is the obligation to meet and convene
promptly and expeditiously in good faith
for the purpose of negotiating an
agreement with respect to wages, hours
of work and all other terms and
conditions of employment including
proposals for adjusting any grievances or
questions arising under such agreement
and executing a contract incorporating
such agreements if requested by either
party but such does not compel any party
to agree to a proposal or to make any
concession. (Art. 252, LC)
Q: Are Ees who are members of another union
considered free riders?
A: No. When the union bids to become the
bargaining agent, it voluntarily assumes the
responsibility of representing all the Ees.
(9)Agency Fees
Q: What is an agency fee?
A: It is an amount equivalent to union dues, which a
non‐union member pays to the union because he
benefits from the CBA negotiated by the union.
Note: Agency fee cannot be imposed on Ees already in
the service and are members of another union. If a
closed shop agreement cannot be applied to them,
neither may an agency fee, as a lesser form of union
security, be imposed to them. Payment by non‐union
members of agency fees does not amount to an unjust
enrichment basically the purpose of such dues is to
avoid discrimination between union and non‐union
members.
Q: What are the requisites for assessment of Agency
fees (Art. 248 [e], LC)?
A:
1.
2.
3.
Agency Fee
Is deducted from non‐
members of the
bargaining agent (union)
for the enjoyment of the
benefits under the CBA.
The employee is part of the bargaining unit
He is not a member of the union
He partook of the benefits of the CBA
Note:
GR: No court or administrative agency or official
shall have the power to set or fix wages, rates of
pay, hours of work, or other terms and conditions
of employment
XPNs: As otherwise provided under the LC:
1.
Note: The individual authorization required under Art.
242, par. O of the LC shall not apply to the non‐
members of the recognized collective bargaining
agent.
2.
3.
Q: Distinguish union dues from agency fees.
National
Wages
and
Productivity
Commission and RTWPB as to wage fixing.
(Art. 99 and 122, LC)
NCMB and NLRC as to wage distortion.
(Art. 124, LC)
SLE and President of the Philippines as to
certification and assumption of powers
over labor disputes. (Art. 236[g], LC)
A:
144
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
Q: What is the purpose behind this rule?
A: It is to encourage a truly democratic method of
regulating the relations between the employers and
employees by means of agreements freely entered
into through CB.
Q: Who are the parties to a CB?
A:
1.
2.
Employer
Employees, represented by the exclusive
bargaining agent
Q: What are the jurisdictional preconditions in
collective bargaining?
A:
1.
2.
3.
Possession of the status of majority
representation
of
the
employees
representative in accordance with any of
the means of selection or designation
provided for the Labor Code
Proof of majority representation
A demand to bargain under Art. 250 (a) of
the LC. (Kiok Loy v. NLRC, G.R. No. L‐
54334, Jan.22, 1986)
Note: The certification of the CBA by the BLR is not
required to make such contract valid. Once it is duly
entered into and signed by the parties, a CBA becomes
effective as between the parties whether or not it has
been certified by the BLR. (Liberty Flour Mills Ee’s
Association v. Liberty Flour Mills, G.R. Nos. 58768‐70,
Dec. 29, 1989)
Q: What is a zipper clause?
A: It is a stipulation in a CBA indicating that issues
that could have been negotiated upon but not
contained in the CBA cannot be raised for
negotiation when the CBA is already in effect.
A CBA is not an ordinary contract but one impressed
with public interest, only provisions embodied in the
CBA should be so interpreted and complied with.
Where a proposal raised by a contracting party does
not find print in the CBA, it is not a part thereof and
the proponent has no claim whatsoever to its
implementation. (SMTFM‐UWP v. NLRC , G.R. No.
113856, Sept. 7, 1998)
Q: When shall bargaining commence?
A: It commences within 12 months after the
determination and certification of the Ees exclusive
bargaining representative. (certification year)
a.Duty to Bargain Collectively
Q: What is the procedure in CB?
Q: When does the duty of the employer (Er) to
bargain collectively arise?
A: When a party desires to negotiate an agreement:
A: Only after the union requests the Er to bargain. If
there is no demand, the Er cannot be in default.
1.
2.
Note: Where a majority representative has been
designated, it is an ULP for the Er, as a refusal to
collectively bargain, to deal and negotiate with the
minority representative to the exclusion of the
majority representative.
3.
4.
Where there is a legitimate representation issue, there
is no duty to bargain collectively on the part of the Er
(Lakas ng mga Manggagawang Makabayan v. Marcelo
Enterprises, G.R. No. L‐38258, Nov. 19, 1982)
5.
Q: What is a collective bargaining agreement
(CBA)?
A: It is a contract executed upon request of either
the Er or the exclusive bargaining representative of
the Ees incorporating the agreement reached after
negotiations with respect to wages, hours of work,
terms and conditions of employment, including
proposals for adjusting any grievance or questions
under the agreement.
It shall serve a written notice upon the
other party with a statement of proposals
Reply by the other party shall be made
within 10 days with counter proposals
In case of differences, either party may
request for a conference which must be
held within 10 calendar days from receipt
of request
If not settled, NCMB may intervene and
encourage the parties to submit the
dispute to a voluntary arbitrator
If not resolved, the parties may resort to
any other lawful means (either to settle
the dispute or submit it to a voluntary
arbitrator).
Note: During the conciliation proceeding in the NCMB,
the parties are prohibited from doing any act which
may disrupt or impede the early settlement of
disputes. (Art.250[d], LC)
Q: What are the stages in CB?
A:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
145
UST GOLDEN NOTES 2011
1.
2.
3.
4.
5.
6.
7.
8.
Preliminary process: Sending a written
notice for negotiation which must be
clear and unequivocal
Negotiation process.
Execution process: The signing of the
agreement
Publication for at least 5 days before
ratification
Ratification by the majority of all the
workers in the bargaining unit
represented in the negotiation (not
necessary in case of arbitral award)
Registration process.
Administration process: The CBA shall be
jointly administered by the management
and the bargaining agent for a period of 5
years.
Interpretation and Application process.
Q: Does a petition for cancellation of a union’s
certificate of registration involve a prejudicial
question that should first be settled before parties
could be required to collectively bargain?
A: No. A pending cancellation proceeding is not a
bar to set mechanics for collective bargaining (CB).
If a certification election may still be held even if a
petition for cancellation of a union’s registration is
pending, more so that the CB process may proceed.
The majority status of the union is not affected by
the cancellation proceedings. (Capitol Medical
Center v. Trajano, G.R. No. 155690, June 30, 2005)
Q: What is the duty to bargain collectively when
there is no CBA?
A: It is the performance of a mutual obligation:
1.
2.
3.
4.
To meet and convene promptly and
expeditiously in good faith (GF)
For the purpose of negotiating an
agreement with respect to wages, hours
of work and all other terms and
conditions of employment
Including proposals for adjusting any
grievances or questions arising under
such agreement; and
To execute a contract incorporating such
agreements if requested by either party.
(Art. 252)
Q: What are the limitations to the duty to bargain
collectively?
A:
1.
146
Such duty does not compel any party to
agree to a proposal or to make any
concession.
2.
Parties cannot stipulate terms and
conditions of employment which are
below the minimum req’ts prescribed by
law.
Q: May either party bargain to an impasse?
A: It depends:
1.
Where the subject of a dispute is a
mandatory bargaining subject, either
party may bargain to an impasse as long
as he bargains in GF.
2.
Where the subject is non‐mandatory, a
party may not insist in bargaining to the
point of impasse. His instance may be
construed as evasion of duty to bargain.
Q: What is the test of bargaining in bad faith?
A: There is no perfect test of good faith (GF) in
bargaining. The GF or BF is an inference to be
drawn from the facts and is largely a matter for the
NLRC’s expertise. The charge of BF should be raised
while the bargaining is in progress.
Note: With the execution of the CBA, BF can no longer
be imputed upon any of the parties thereto. All
provisions in the CBA are supposed to have been
jointly and voluntarily incorporated therein by the
parties. This is not a case where private respondent
exhibited an indifferent attitude towards CB because
the negotiations were not the unilateral activity of
petitioner union. The CBA is good enough that private
respondent exerted “reasonable effort of GF
bargaining.” (Samahang Manggagawa sa Top Form
Manufacturing‐United Workers of the Phils v. NLRC,
G.R. No. 113856, Sept. 7, 1998)
Q: Does an Er’s steadfast insistence to exclude a
particular
substantive
provision
in
the
negotiations for a CBA constitute refusal to
bargain or bargaining in BF?
A:
No. This is no different from a bargaining
representative’s perseverance to include one that
they deem of absolute necessity. Indeed, an
adamant insistence on a bargaining position to the
point where the negotiations reach an impasse
does not establish bad faith. Obviously, the purpose
of CB is the reaching of an agreement resulting in a
contract binding on the parties; but the failure to
reach an agreement after negotiations have
continued for a reasonable period does not
establish a lack of good faith. The statutes invite
and contemplate a collective bargaining contract,
but they do not compel one. The duty to bargain
does not include the obligation to reach an
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
agreement. While the law makes it an obligation
for the Er and the Ees to bargain collectively with
each other, such compulsion does not include the
commitment to precipitately accept or agree to the
proposals of the other. All it contemplates is that
both parties should approach the negotiation with
an open mind and make reasonable effort to reach
a common ground of agreement. (Union of Filipro
Ees v. Nestle Phils., G.R. Nos. 158930‐31, Mar. 3,
2008)
Q: What is a deadlock?
A: It is synonymous with impasse or a standstill
which presupposes reasonable effort at GF
bargaining but despite noble intentions does not
conclude an agreement between the parties.
Q: In case of deadlock in the renegotiation of the
CBA, what are the actions that may be taken by
the parties?
of the existing agreement during the 60‐
day period and/or until a new agreement
is reached by the parties. (Art. 253, LC)
Q: What is the automatic renewal clause of CBAs?
A: Although a CBA has expired, it continues to have
legal effects as between the parties until a new CBA
has been entered into (Pier & Arrastre Stevedoring
Services, Inc. v. Confessor, G.R. No. 110854,
February 13, 1995). This is so because the law
makes it a duty of the parties to keep the status
quo and to continue in full effect the terms and
conditions of the existing agreement until a new
agreement is reached by the parties. (Art. 253, LC).
(2008 Bar Question)
Q: What may be done during the 60‐day freedom
period?
A:
1.
A: The parties may:
1.
2.
3.
Call upon the NCMB to intervene for the
purpose of conducting conciliation or
preventive mediation;
Refer the matter for voluntary arbitration
or compulsory arbitration;
Declare a strike or lockout upon
compliance with the legal req’ts (This
remedy is a remedy of last resort).
2.
3.
A labor union may disaffiliate from the
mother union to form a local or
independent union only during the 60‐day
freedom period immediately preceding
the expiration of the CBA.
Either party can serve a written notice to
terminate or modify agreement at least
60‐days prior to its expiration period.
A petition for certification election may
be filed.
Q: When to file CBA?
Q: May economic exigencies justify refusal to
bargain?
A: No. An employer is not guilty of refusal to
bargain by adamantly rejecting the union’s
economic demands where he is operating at a loss,
on a low profit margin, or in a depressed industry,
as long as he continues to negotiate. But financial
hardship constitutes no excuse for refusing to
bargain collectively.
A: Within 30 days from execution of CBA.
Q: What are the requirements for registration?
A: The application for CBA registration shall be
accompanied by the original and 2 duplicate copies
of the following req’ts:
1.
2.
Q: What is the duty to bargain collectively when
there is a CBA?
3.
A:
1.
2.
3.
When there is a CBA the duty to bargain
collectively shall also mean that neither
party shall terminate nor modify such
agreement during its lifetime.
Either party can serve a written notice to
terminate or modify the agreement at
least 60 days prior to its expiration date.
It shall be the duty of both parties to keep
the status quo and to continue in full
force and effect the terms and conditions
CBA
A statement that the CBA was posted in
at least 2 conspicuous places in the
establishment concerned for at least 5
days before its ratification
Statement that the CBA was ratified by
the majority of the Ees in the bargaining
unit.
Note: The following documents must be certified
under oath by the representative of the Er and the
labor union. No other document shall be required in
the registration of the CBA.
Q: What is a single enterprise bargaining?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
147
UST GOLDEN NOTES 2011
A: It involves negotiation between one certified
labor union and one Er. Any voluntarily recognized
or certified labor union may demand negotiations
with its Er for terms and conditions of work
covering Ee’s in the bargaining unit concerned.
Q: What is a multi‐Er bargaining scheme?
A: It involves negotiation between and among
several certified labor unions and Ers.
Q: What is the duration of a CBA?
A:
1.
2.
With respect to the representation aspect
(refers to the identity and majority status
of the union that negotiated the CBA as
the exclusive bargaining representative):
5 years
With respect to all other provisions (refers
to the rest of the CBA, economic as well
as non‐economic provisions other than
representational provisions): 3 years after
the execution of the CBA
Q: What are the economic provisions of a CBA?
A:
1.
2.
3.
4.
Wages
Family planning
Effectivity of the agreement
Other terms and conditions
employment
of
Q: What are the non‐economic provisions of a
CBA?
A:
1.
2.
3.
4.
5.
Coverage of the bargaining unit
Union security clauses
Management
prerogatives
and/or
rights/responsibilities of employees
Grievance machinery and voluntary
arbitration
No strike – no lock out provision
Q: What is the effectivity and retroactivity date of
other economic provisions of the CBA?
A:
1.
If the CBA is the very first for the
bargaining unit, the parties have to decide
the CBA effectivity date.
2.
Those made within 6 months after date of
expiry of the CBA are subject to
automatic retroaction to the day
immediately following the date of expiry.
148
3.
Those not made within 6 months, the
parties may agree to the date of
retroaction.
Note: This rule applies only if there is an existing
agreement. If there is no existing agreement, there is
no retroactive effect because the date agreed upon
shall be the start of the period of agreement.
Art. 253‐A on retroactivity does not apply if the
provisions were imposed by the SLE by virtue of
arbitration. It applies only if the agreement was
voluntarily made by the parties.
Q: May the economic provisions of an existing CBA
be extended beyond the 3 year period as
prescribed by law in the absence of a new
agreement?
A: Yes. Under the principle of hold over, until a new
CBA has been executed by and between the parties,
they are duty bound to keep the status quo and
must continue in full force and effect the terms and
conditions of the existing agreement. The law does
not provide for any exception or qualification as to
which of the economic provisions of the existing
agreement are to retain force and effect.
Therefore, it must be encompassing all the terms
and condition in the said agreement. (New Pacific
Timber v. NLRC, G.R. No. 124224, Mar. 17, 2000)
Q: Mindanao Terminal Company and respondent
union has an existing CBA which was about to
expire. Thus, negotiations were held regarding
certain provisions of the CBA which resulted in a
deadlock. Thus the union filed a notice of strike.
During the conference called by the NCMB the
company and the union were able to agree on all
of the provisions of the CBA except for one.
However, the last unresolved provision was
subsequently settled but no CBA was signed.
Hence, in the records of the Mediation Arbiter, all
issues were settled before the lapse of the 6
month period after the expiration of the old CBA.
Does the signing of the CBA determine the date it
was entered into within the 6 month period?
A: No. The signing of the CBA does not determine
whether the agreement was entered into within the
6 month period from the date of expiration of the
old CBA. In the present case, there was already a
meeting of the minds between the company and
the union prior to the end of the 6 month period
after the expiration of the old CBA. Hence, such
meeting of the mind is sufficient to conclude that
an agreement has been reached within the 6 month
period as provided under Art. 253‐A of the LC.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
(Mindanao Terminal and Brokerage Services Inc., v.
Confessor, G.R. No. 111809, May 5, 1997)
Q: When is the effectivity of a CBA arbitral award
concluded beyond 6 months from the expiration of
the old CBA?
A: The CBA arbitral awards granted 6 months from
the expiration of the last CBA shall retroact to such
time agreed upon by both the Er and the union.
Absent such agreement as to retroactivity, the
award shall retroact to the 1st day after the 6 month
period following the expiration of the last day of
the CBA should there be one. In the absence of a
CBA, the SLE’s determination of the date of
retroactivity as part of his discretionary powers
over arbitral award shall control. (Manila Electric
Company v. Quisumbing, G.R. No. 127598, Feb. 22
and Aug. 1, 2000)
Q: PAL was suffering from a worsened financial
condition resulting to a retrenchment which
downsized its labor force by more than 1/3
thereby affecting numerous union members.
Hence, the union went on strike. The PAL offered
that shares of stock be transferred to its Ees but
the union refused. Thus, PAL claimed it has no
alternative left but to close. Hence, the union
PALEA offered that the CBA be suspended for 10
years and to waive some of the economic benefits
in the CBA provided they remain the certified
bargaining agent.
PAL agreed and resumed
operations. Is the agreement to suspend the CBA
for 10 years abdicated the worker’s right to
bargain?
A: No. The primary purpose of a CBA is to stabilize
labor‐management relations in order to create a
climate of a sound and stable industrial peace. The
assailed agreement was the result of the voluntary
CB negotiations undertaken in the light of severe
financial situation faced by PAL.
Q: Is the agreement in conflict with Art. 253‐A of
the LC?
A: No. There is no conflict between the agreement
and Art. 253‐A of the LC for the latter has a 2‐fold
purpose namely: a) to promote industrial stability
and predictability and b) to assign specific time
tables wherein negotiations become a matter of
right and requirement. In so far as the first
purpose, the agreement satisfies the first purpose.
As regard the second purpose, nothing in Art. 253‐A
prohibits the parties from waiving or suspending
the mandatory timetables and agreeing on the
remedies to enforce the same.
Q: Does the agreement violate the 5 year
representation limit as provided under Art. 253‐A
of the LC?
A: No. For under the said article, the representation
limit of the exclusive bargaining agent applies only
when there is an existing CBA in full force and
effect. In this case, the parties agreed to suspend
the CBA and put in abeyance the limit on
representation. (Rivera v. Espiritu, G.R. No. 135547,
Jan. 23, 2002)
b.Mandatory provisions of the CBA
Q: What are the mandatory provisions of the CBA?
A:
1.
2.
3.
4.
5.
6.
7.
Grievance machinery
Voluntary arbitration
Wages
Hours of work
Family planning
Rates of pay
Mutual observance clause
Note: In addition, the BLR requires the CBA should
include a clear statement of the terms of the CBA.
Er’s duty to bargain is limited to mandatory bargaining
subjects; as to other matters, he is free to bargain or
not.
Q: How are cases arising from the
Interpretation or implementation of CBAs
handled and disposed?
A: They are disposed through the grievance
machinery and if not resolved by the grievance
machinery, through voluntary arbitration. (1995 Bar
Question)
Q: What is grievance?
A: It is any question by either the employer or the
union
regarding
the
interpretation
or
implementation of any provision of the CBA or
interpretation or enforcement of company
personnel policies. (Sec.1 [u], Rule I, Book V, IRR)
Q: What provisions must the parties include in a
CBA?
A:
1.
2.
Provisions that will ensure the mutual
observance of its terms and conditions.
A machinery for adjustment and
resolution of grievances arising from the:
a. Interpretation/implementation
of
the CBA and
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
149
UST GOLDEN NOTES 2011
b.
Interpretation/ enforcement of
company personnel policies. (Art.
260, par. 1).
2.
(1)Grievance Procedure
Q: What is grievance machinery?
A: It refers to the mechanism for the adjustment
and resolution of grievances arising from the
interpretation or enforcement of company
personnel policies. It is part of the continuing
process of collective bargaining (CB).
Note: It is a must provision in any CBA and no
collective agreement can be registered in the absence
of such procedure.
Q: How is grievance machinery established?
A:
1.
2.
Agreement by the parties
A grievance committee – composed of at
least 2 representatives each from the
members of the bargaining unit and the
employer, unless otherwise agreed upon
by the parties – shall be created within 10
days from the signing of CBA
Note: Although Art. 260 of the Labor Code mentions
“parties to a CBA”, it does not mean that a grievance
machinery cannot be set up in a CBA‐less enterprise. In
any workplace where grievance can arise, a grievance
machinery can be established.
Q: What is grievance procedure?
A: It refers to the internal rules of procedure
established by the parties in their CBA which usually
consists of successive steps starting at the level of
the complainant and his immediate supervisor and
ending, when necessary, at the level of the top
union and company officials and with voluntary
arbitration as the terminal step.
Q: What will happen to grievances submitted to
the grievance machinery which are not settled
within 7 calendar days from the date of their
submission?
A: They shall automatically be referred to voluntary
arbitration prescribed in the CBA. (Art. 260, par.2,
Labor Code)
Either party may serve notice upon the other of its
decision to submit the issue to voluntary arbitration
(VA):
1. If the party upon whom such notice is
served fails/refuses to respond within 7
150
days from receipt, VA/panel designated in
the CBA shall commence arbitration
proceedings
If the CBA does not designate or if the
parties failed to name the VA/panel, the
regional branch of NCMB appoints
VA/panel
(2)Voluntary Arbitration
Q: What is voluntary arbitration?
A: It refers to the mode of settling labor
management disputes by which the parties select a
competent, trained and impartial third person who
shall decide on the merits of the case and whose
decision is final and executory. (Sec.1 [d], Rule II,
NCMB Revised Procedural Guidelines in the Conduct
of Voluntary Arbitration Proceedings, Oct. 15, 2004)
Q: What is the difference between compulsory
and voluntary arbitration?
A: Compulsory arbitration is a system whereby the
parties to a dispute are compelled by the
government to forego their right to strike and are
compelled to accept the resolution of their dispute
rd
through arbitration by a 3 party. The essence of
arbitration remains since a resolution of a dispute is
arrived at by resort to a disinterested third party
whose decision is final and binding on the parties,
but in compulsory arbitration, such a third party is
normally appointed by the government.
Under voluntary arbitration, on the other hand,
referral of a dispute by the parties is made,
pursuant to a voluntary arbitration clause in their
collective agreement, to an impartial third person
for a final and binding resolution. Ideally,
arbitration awards are supposed to be complied
with by both parties without delay, such that once
an award has been rendered by an arbitrator,
nothing is left to be done by both parties but to
comply with the same. After all, they are presumed
to have freely chosen arbitration as the mode of
settlement for that particular dispute. Pursuant
thereto, they have chosen a mutually acceptable
arbitrator who shall hear and decide their case.
Above all, they have mutually agreed to be bound
by said arbitrator's decision. (Luzon Dev’t Bank v.
Ass’n of Luzon Dev’t Bank Ees, G.R. No. 120319, Oct.
6, 1995)
Q: What is the basis for voluntary arbitration and
its rationale?
A: The State shall promote the principle of shared
responsibility between workers and employers and
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
the preferential use of voluntary modes in settling
disputes, including conciliation, and shall enforce
their mutual compliance therewith to foster
industrial peace (Sec. 3, Art. XIII, 1987 Constitution).
(3)No Strike‐No Lockout Clause
Q: When does the No Strike‐No Lockout clause in
the CBA apply?
A: The “no strike‐no lockout” clause in the CBA
applies only to economic strikes. It does not apply
to ULP strikes. Hence, if the strike is founded on an
unfair labor practice of the employer, a strike
declared by the union cannot be considered a
violation of the no strike clause. (Master Iron Labor
Union v. NLRC, G.R. No. 92009, Feb. 17, 1993)
(4)Labor Management Council
Q: What is the role of the Department of Labor
and Employment in the creation of Labor
Management Councils?
A: The Department shall promote the formation of
labor‐management councils in organized and
unorganized establishments to enable the workers
to participate in policy and decision‐making
processes in the establishment, insofar as said
processes will directly affect their rights, benefits
and welfare, except those which are covered by
collective bargaining agreements or are traditional
areas of bargaining.
The Department shall promote other labor‐
management cooperation schemes and, upon its
own initiative or upon the request of both parties,
may assist in the formulation and development of
programs
and
projects
on
productivity,
occupational safety and health, improvement of
quality of work life, product quality improvement,
and other similar schemes. (Sec. 1, Rule XXI, Book V,
IRR)
Q: How is the representative in the Management
Council Selected?
A: In organized establishments, the workers’
representatives to the council shall be nominated
by the exclusive bargaining representative. In
establishments where no legitimate labor
organization exists, the workers representative shall
be elected directly by the employees at large. (Sec.
2, Rule XXI, Book V, IRR)
c.ULP in Collective Bargaining
Q: What are the forms of ULP in bargaining?
A:
1.
2.
3.
4.
5.
6.
Failure to meet and convene
Evading the mandatory subjects of
bargaining.
Bad faith in bargaining (boulwarism),
including failure to execute the CBA if
requested
Gross violation of the CBA
Surface Bargaining
Blue sky bargaining
Note: Violations of CBA, except those which are gross
in character, shall no longer be treated as ULP but a
grievance under CBA. (Art. 261, LC, Silva v. NLRC, G.R.
No. 110226, June 19 1997)
Q: When is there refusal to bargain?
A: A union violates its duty to bargain collectively by
entering negotiations with a fixed purpose of not
reaching an agreement or signing a contract.
Q: What is featherbedding/ make work activities?
A: It refers to the practice of the union or its agents
in causing or attempting to cause an employer (Er)
to pay or deliver or agree to pay or deliver money
or other things of value, in the nature of an
exaction, for services which are not performed or
not to be performed, as when a union demands
that the Er maintain personnel in excess of the
latter’s requirements.
Note: It is not featherbedding if the work is performed
no matter how unnecessary or useless it may be.
Q: What is the sweetheart doctrine?
A: It is when a LO asks for or accepts negotiations or
atty’s fees from employers as part of the settlement
of any issue in CB or any other dispute.
Note: The resulting CBA is considered as a “sweetheart
contract” – a CBA that does not substantially improve
the employees wages and benefits and whose benefits
are far below than those provided by law.
Q: What is blue‐sky bargaining?
A: It is defined as making exaggerated or
unreasonable proposals.
Note: Whether or not the union is engaged in blue‐sky
bargaining is determined by the evidence presented by
the union as to its economic demands. Thus, if the
union requires exaggerated or unreasonable economic
demands, then it is guilty of ULP. (Standard Chartered
Bank v. Confessor, G.R. No. 114974, June 16, 2004)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
151
UST GOLDEN NOTES 2011
Q: When does boulwarism occur?
1.
A: It occurs when employer (Er) directly bargains
with the employee (Ee) disregarding the union; the
aim was to deal with the labor union through Ees
rather than with the Ees thru the union. Er submits
its proposals and adopts a take‐it‐or‐leave‐it stand.
2.
d.Unfair Labor Practice
(1)ULP of Employers
Q: What are the ULP that may be committed by
Ers?
A:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Interference
Yellow dog condition
Contracting out
Company unionism
Discrimination for or against union
membership
Discrimination because of testimony
Violation of duty to bargain
Paid negotiation
Gross violation of CBA
(a)Interference
Q: What is meant by interference?
A: The act of Er to interfere with, restrain or coerce
Ees in the exercise of their right to self organization.
Q: What is the test of interference?
A: Whether the Er has engaged in conduct which, it
may reasonably be said, tends to interfere with the
free exercise of the Ees right to self‐organization.
Note: Direct evidence that an Ee was in fact intended
or coerced by the statements of threats of the Er is not
necessary if there is a reasonable interference that the
anti‐union conduct of the Er does have an adverse
effect on self‐organization and CB. (The Insular Life
Assurance‐NATU v. The Insular Life Co. Ltd, G.R. No.L‐
25291, Jan. 30, 1971)
Q: What is the totality of conduct doctrine?
A: It states that the culpability of Er’s remarks is to
be evaluated not only on the basis of their
implications, but against the background of and in
conjunction with collateral circumstances.
Under this doctrine, expressions of opinion by an
Er, though innocent in themselves, frequently were
held to be ULP because of:
152
3.
The circumstances under which they were
uttered
The history of the particular Er’s labor
relations or anti‐union bias
Their connection with an established
collateral plan of coercion or interference.
(The Insular Life Assurance‐NATU v. The
Insular Life Co. Ltd, G.R. No.L‐25291, Jan.
30, 1971)
Q: Phil. Marine Officers Guild (PMOG) is a union
representing some of Philsteam’s officers and
Cebu Seamen’s Association (CSA) is another union
representing some of Philsteam’s officers. PMOG
sent a letter to Philsteam requesting for CB but the
company asked the former to first prove it
represents
the
majority.
Simultaneously,
Philsteam interrogated its captains, deck officers
and engineers while CSA likewise sent its demands
to Philsteam. The company recognized CSA as
representing the majority and entered into a CBA.
Hence PMOG declared a strike. PMOG was
subjected to vilification and Philsteam’s pier
superintendent participated in the solicitation of
membership for CSA. Is the company guilty of
ULP?
A: Yes. Although the company is free to make
interrogations as to its Ees’ union, the same should
be for a legitimate purpose and must not interfere
with the exercise of self‐organization otherwise it is
considered as ULP. Moreover, Philsteam’s
supervisory Ees’ statement that PMOG is a “money‐
making” union, which is made to appear to be said
in behalf of the union and the participation of the
company’s pier superintendent in soliciting
membership for the competing union, is ULP for
interfering with the exercise of the right to self‐
organization. (Philsteam and Navigation v.
Philippine Marine Officers Guild, G.R. Nos. L‐20667
and L‐20669, Oct. 29, 1965)
Q: What is a lockout?
A: It means any temporary refusal of an Er to
furnish work as a result of an industrial or labor
dispute. (Art.212[p])
Q: When does lockout or closure amount to ULP?
A: A lockout, actual or threatened, as a means of
dissuading the Ees from exercising their rights is
clearly an ULP. However, to hold an Er guilty, the
evidence must establish that the purpose was to
interfere with the Ees exercise of their rights.
Q: What are
interference?
other examples of acts
of
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
A:
1.
2.
3.
Outright and unconcealed intimidation
In order that interrogation would not be
deemed coercive:
a. The Er must communicate to the Ee
the purpose of questioning
b. Assure him that no reprisal would
take place
c. Obtain Ee participation voluntarily
d. Must be free from Er hostility to
union organization
e. Must not be coercive in nature
Intimidating expressions of opinion by Er
Q: What are the 3 usual provisions under a yellow
dog contract?
A:
1.
2.
3.
A representation by the Ee that he is not a
member of a labor union.
A promise by the Ee not to join a labor
union.
A promise by the Ee that upon joining a
labor union, he will quit his employment.
(c)Contracting Out
Q: What is “contracting out” as a form of ULP?
Note: An Er who interfered with the right to self‐
organization before a union is registered can be held
guilty of ULP. (Samahan ng mga Manggagawa sa
Bandolino‐LMLC v. NLRC, G.R. No. 125195, July 17,
1997)
It is the prerogative of the company to promote,
transfer or even demote its Ees to other positions
when the interests of the company reasonably
demand it. Unless there are circumstances which
directly point to interference by the company with the
Ees right to self‐organization, the transfer of an Ee
should be considered as within the bounds allowed by
law. (Rubberworld Phils. v. NLRC, G.R. No. 75704, July
19, 1989)
(b)Yellow Dog
Q: What is a yellow dog condition?
A: It is to require as a condition of employment that
a person or an Ee shall not join a labor organization
or shall withdraw from one to which he belongs.
Q: What is a yellow dog contract?
A: It is a promise exacted from workers as condition
of employment that they are not to belong to or
attempt to foster a union during their period of
employment.
Q: Is yellow dog contract valid?
A: No. It is null and void because:
1. It is contrary to public policy for it is
tantamount to involuntary servitude.
2. It is entered into without consideration
for Ees in waiving their right to self‐
organization.
3. Ees are coerced to sign contracts
disadvantageous to their family.
Note: This is one of the cases of ULP that may be
committed in the absence of an Er‐Ee relationship.
A: It is to contract out services or functions being
performed by union members when such will
interfere with, restrain or coerce Ees in the exercise
of their rights to self‐organization.
Q: Does it mean that an Er cannot contract out
work?
A:
GR: Contracting out services is not ULP per se.
XPNs: It is ULP only when the ff. exists:
1. The services contracted out are being
performed by union members; and
2. Such contracting out interferes with,
restrains, or coerce Ees in the exercise of
their right to self‐organization.
Note: When the contracting out is being done for
business reasons such as decline in business,
inadequacy of equipment or to reduce cost, then it is a
valid exercise of management prerogative.
Q: Company "A" contracts out its clerical and
janitorial services. In the negotiations of its
CBA, the union insisted that the company may no
longer engage in contracting out these types of
services, which services the union claims to be
necessary in the company's business, without
prior consultation. Is the union's stand valid or
not? For what reason(s)?
A: The union's stand is not valid. It is part of
management prerogative to contract out any
work, task, job or project except that it is an ULP to
contract out services or functions performed
by union members when such will interfere
with, restrain or coerce Ees in the exercise of their
rights to self‐organization. (Art. 248[c] of the LC).
(2001 Bar Question)
Q: What is a run‐away shop?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
153
UST GOLDEN NOTES 2011
A: It is an industrial plant moved by its owners from
one location to another to escape labor regulations
or State laws or to discriminate against Ees at the
old plant because of their union activities.
or other support to it or its organizers or
supporters.
Q: Why is company unionism/captive unionism a
form of ULP?
Q: Is resorting to run‐away shop ULP?
A: Yes. Where a plant removal is for business
reasons but the relocation is hastened by anti‐union
motivation, the early removal is ULP. It is
immaterial that the relocation is accompanied by a
transfer of title to a new employer (Er) who is an
alter ego of the original Er.
A: It is considered ULP because the officers will be
beholden to the Ers and they will not look after the
interest of whom they represent.
(e)Discrimination for or against union membership
Q: What is meant by discrimination as a form of
ULP?
(d)Company Unionism
Q: What is a company union?
A: Any labor organization whose formation,
function or administration has been assisted by any
act defined as ULP. (Art. 212[i])
Q: What are the forms of company unionism?
A:
1.
2.
Initiation of the company union idea by:
a. Outright formation by Er or his
representatives
b. Ee formation on outright demand or
influence by Er and
c. Managerially motivated formation by
Ees
Financial support to the union by:
a. Er defrays union expenses
b. Pays atty’s fees to the attorney who
drafted the Constitution or by‐laws
of the union.
3.
Er
encouragement
assistance
‐
Immediately granting of exclusive
recognition as bargaining agent without
determining
whether
the
union
represents the majority of the employees
4.
Supervisory
assistance‐
Soliciting
membership, permitting union activities
during work time or coercing Ees to join
the union by threats of dismissal or
demotion
Q: What is meant by the act of company‐
domination of union?
A: This is to initiate, dominate, assist or otherwise
interfere with the formation or administration of
any labor organization including giving of financial
154
A: It is to discriminate in regard to wages, hours of
work and other terms and conditions of
employment in order to encourage or discourage
membership in any labor organization.
Q: When is a discharge of an Ee discriminatory?
A: For the test of determining whether or not a
discharge is discriminatory, it is necessary that the
underlying reason for the discharge be established.
The fact that a lawful cause for discharge is
available is not a defense where the Ee is actually
discharged because of his union activities. If the
discharge is actually motivated by lawful reason,
the fact that the Ee is engaged in union activities at
the time will lie against the Er and prevent him from
the exercise of business judgment to discharge an
Ee for cause. (Phil. Metal Foundries Inc. v. CIR, G.R.
Nos. L‐34948‐49, May 15, 1979)
Q: Jobo has 3 hotels, the Taal Vista Lodge, Manila
Hotel and the Pines Hotel. Among the 3, Pines
Hotel had more Ees and the only one with a labor
organization (LO). When the bonus was distributed
among the 3 hotels, Pines Hotel Ees received the
least amount compared to the Ees of Manila Hotel
and Taal Vista Lodge. Did the company commit
ULP?
A: Yes. The sharing of the bonuses is discriminatory
and such constitute ULP. The Pines Hotel Ees would
be receiving fewer bonuses compared to the Ees of
Taal Vista Lodge and Manila Hotel where neither
has a LO nor does the complainant union has a
member. Taking into account that Pines Hotel is
realizing profit compared to that of Taal Vista. Same
analogy applies in the salary increase. (Manila Hotel
Co. v. Pines Hotel Ees’ Ass’n, G.R. No.L‐30139, Sep.
28, 1972)
Q: When can there be a valid discrimination?
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
A: The employer is not guilty of ULP if it merely
complies in good faith with the request of the
certified union for the dismissal of employees
expelled from the union pursuant to the union
security clause in the CBA. (Soriano v. Atienza, G.R.
No. L‐68619, Mar. 16, 1989)
Q: A profit sharing scheme was introduced by the
company for its managers and supervisors who are
not members of the union, hence do not enjoy the
benefits of the CBA. The respondent union wanted
to participate with the scheme but was denied by
the company due to the CBA. Subsequently the
company distributed the profit sharing to the
manager, supervisors and other non‐union
member Ees. As a result the union filed a notice of
strike alleging ULP. Is the non‐extension of the
profit sharing scheme to union members
discriminatory and an ULP?
A: No. There can be no discrimination when the
Ees are not similarly situated. The situation of union
members is different and distinct from non‐union
members because only union members enjoy the
benefit under the CBA. The profit sharing scheme
was extended to those who do not enjoy the
benefits of the CBA. Hence, there is no
discrimination and ULP is not committed. (Wise and
Co., Inc. v. NLRC, G.R. No. L‐87672, Oct. 13, 1989)
Q: Is dismissal of an Ee pursuant to a union
security clause a form of ULP?
A: No. Union security clauses in the CBA, if freely
and voluntarily entered into, are valid and binding.
Thus, the dismissal of an Ee by the company
pursuant to a labor union’s demand in accordance
with a union security agreement does not
constitute ULP. (Malayang Samahan ng mga
Manggagawa sa M. Greenfield v. Ramos, G.R. No.
113907, Feb. 28, 2000)
A union member who is employed under an
agreement between the union and his Er is bound
by the provisions thereof since it is a joint and
several contract of the members of the union
entered into by the union as their agent. (Manalang
v. Artex Dev’t, G.R. No. L‐20432, Oct. 30, 1967)
Notwithstanding the fact that the dismissal was at
the instance of the federation and that it undertook
to hold the company free from any liability resulting
from such dismissal, the company may still be held
liable if it was remiss in its duty to accord the
would‐be dismissed Ees their right to be heard on
the matter.
Q: Mabeza and her co‐Ees were asked by the
company to sign an affidavit attesting to the
latter’s compliance with pertinent labor laws.
Mabeza signed the affidavit but refused to swear
to its veracity before the City prosecutor. Mabeza
then filed a LOA which was denied by
management. After sometime, she attempted to
return to work but the company informed her not
to report for work and continue with her unofficial
leave. Did the company commit ULP?
A: Yes. The act of compelling an Ee to sign an
instrument indicating the Er’s compliance with
Labor laws which the company might have violated
together with the act of terminating or coercing
those Ees to cooperate is an act of ULP. This is
analogous with Art. 248 (f) of the LC which
provides: “to dismiss, discharge or otherwise
prejudice or discriminate against an Ee for having
given or being about to give testimony under this
Code”. For in not giving a positive testimony in
favor of the Er, Mabeza reserved not only her right
to dispute the claim but also to work for better
terms and condition. (Mabeza v. NLRC, G.R No.
118506, April 18, 1997)
(f)Violation of Duty to Bargain
Q: What is violation of the duty to bargain as a
kind of ULP?
A: This is the act of violating the duty to bargain
collectively as prescribed in the LC.
Q: What are the forms of ULP in bargaining?
A:
1.
2.
3.
Q: Is notice and hearing required in case an Ee is
dismissed pursuant to a union security clause?
A: Yes. Although a union security clause in a CBA
may be validly enforced and dismissal pursuant to
thereto may likewise be valid, this does not erode
the fundamental requirement of due process. The
reason behind the enforcement of union security
clauses which is the sanctity and inviolability of
contracts cannot erode one’s right to due process.
4.
Failure or refusal to meet and convene
Evading the mandatory subject of
bargaining
Bad faith (BF) bargaining, including failure
to execute the CBA if requested
Gross violation of the CBA
Note: A company’s refusal to make counter‐proposal,
if considered in relation to the entire bargaining
process, may indicate BF and this is especially true
where the union’s request for a counter proposal is
left unanswered. (Kiok Loy v. NLRC, G.R. No. L‐54334,
Jan. 22, 1986)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
155
UST GOLDEN NOTES 2011
Q: What are the examples of ULP in bargaining?
being a majority union. (1997 Bar Question)
A:
Q: What is surface bargaining?
1.
2.
3.
4.
5.
Delaying negotiations by discussing
unrelated matters
Refusal to accept request to bargain
Rejecting a union’s offer to prove its
majority claim
Shutdown to avoid bargaining
Engaging in surface bargaining
Q: Balmar Farms Ees Association (BFEA) is
affiliated with Associated Labor Union (ALU). ALU
won in the certification election held in the
company. Thus, ALU sent its proposal for a CBA,
but the company refused to act on it alleging that
BEA is the sole and exclusive bargaining
representative and that BFEA through its president
had sent a letter informing the company of its
disaffiliation with ALU. Is the company guilty of
ULP for refusing to bargain collectively?
A: Yes. ALU is the certified exclusive bargaining
representative after winning the certification
election. The company merely relied on the letter
of disaffiliation by BFEA’s president without proof
and consequently refusing to bargain collectively
constitutes ULP. Such refusal by the company to
bargain collectively with the certified exclusive
bargaining representative is a violation of its duty to
collectively bargain which constitutes ULP. (Balmar
Farms v. NLRC, G.R. No.73504, Oct. 15, 1991)
Q: The Kilusang Kabisig, a newly‐formed labor
union claiming to represent a majority of the
workers in the Microchip Corp., proceeded to
present a list of demands to the management for
purposes of collective bargaining (CB). The
Microchips Corp., a multinational corp.engaged in
the production of computer chips for export,
declined to talk with the union leaders,
alleging that they had not as yet presented any
proof of majority status. The Kilusang Kabisig
then charged Microchip Corp. with ULP, and
declared a "wildcat" strike wherein means of
ingress and egress were blocked and remote and
isolated acts of destruction and violence were
committed. Was the company guilty of an ULP
when it refused to negotiate with the Kilusang
Kabisig?
A: No. It is not an ULP not to bargain with a union
which has not presented any proof of its majority
status. The LC imposes on an Er the duty to
bargain collectively only with a legitimate labor
organization designated or selected by the majority
of the Ees in an appropriate CB unit. It is not a ULP
for an Er to ask a union requesting to bargain
collectively that such union first show proof of its
156
A: It is the act of going through the motions of
negotiating without any legal intent to reach an
agreement. It involves the question of whether or
not the Ers conduct demonstrates an unwillingness
to bargain in good faith or is merely hard
bargaining. (Standard Chartered Bank v. Confessor,
G.R. No. 114974, June 16, 2004)
Note: Occurs when the Er constantly changes its
position over the agreement.
(g)Paid Negotiation
Q: What is meant by paid negotiation as a form of
ULP?
A: It is the act of the employer to pay negotiation or
atty’s fees to the union or its officers or agents as
part of the settlement of any issue in collective
bargaining or any other dispute.
(h)Gross Violation of CBA
Q: When is the violation of CBA considered as
ULP?
A: Only when the violation is gross – There must be
a flagrant and/or malicious refusal to comply with
the economic provision of the CBA.
Note: All the ULP acts must have a relation to the Ees
exercise of their right to self‐organization. Anti‐union
or anti‐organization motive must be proved because it
is a definitional element of ULP.
If violation is not gross, it is not ULP but a grievance
under CBA. The “grossly violate” phrase is an
amendment by R.A. 6715.
Q: A complaint for ULP was filed by a prosecutor of
the CIR against Alhambra company, upon the
charges of the union that 15 of its members
employed as drivers and helpers are discriminated
for being deprived of the benefits under the CBA
with no justifiable reason other than union
membership. Is the company guilty of ULP?
A: Yes. The refusal to extend the benefits and
privileges under the CBA to Ees constitutes ULP.
Failure on the part of the company to live up in
good faith to the terms of the CBA is a serious
violation of the duty to collectively bargain which
again amounts to ULP. The 15 drivers and helpers
are found to be Ees of the company, hence, the
benefit and privileges under the CBA should be
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
extended to them. (Alhambra Industries v. CIR, G.R.
No. L‐25984, Oct. 30, 1970)
Q: What are the reliefs available in ULP cases?
5.
A: The following reliefs may be availed of:
1. Cease and desist order
2. Affirmative order
3. Court may order the employer to bargain.
CBA may be imposed.
4. Strike by union members
Note: ULP cases are not subject to compromise in view
of the public interest involve. The relation between
capital and labor is not merely contractual. They are
impressed with public interest that labor contracts
must yield to common good.
Q: Is the commission of an ULP by an employer
subject to criminal prosecution?
A: Yes, because ULPs are not only violations of the
civil rights of both labor and management but are
also criminal offenses against the State which shall
be subject to prosecution and punishment. (Art.
247 LC; See also B.P. Blg. 386 as amended by R.A.
6715). However, the criminal aspect can only be
filed when the decision of the labor tribunals,
finding the existence of ULP, shall have become
final and executory. (2005 Bar Question)
(2)ULP of Labor Organizations
Q: What are the ULP of LOs?
A: It shall be ULP for a LO, its officers, agents or
representatives:
1.
2.
3.
4.
To restrain or coerce Ees in the exercise
of their rights to self‐organization.
However, a LO shall have the right to
prescribe its own rules with respect to the
acquisition or retention of membership
To cause or attempt to cause an Er to
discriminate against an Ee, including
discrimination against an Ee with respect
to
whom
membership
in
such
organization has been denied or to
terminate an Ee on any ground other than
the usual terms and conditions under
which membership or continuation of
membership is made available to other
members
To violate the duty, or refuse to bargain
collectively with the Er, provided it is the
representative of the Ees
To cause or attempt to cause an Er to pay
or deliver or agree to pay or deliver any
money or other things of value, in the
6.
nature of an exaction, for services which
are not performed or not to be
performed, including the demand for fee
for union negotiations
To ask for or accept negotiations or atty’s
fees from Ers as part of the settlement of
any issue in collective bargaining (CB) or
any other dispute or
To violate a CBA.
Q: Is interference by a LO an ULP?
A: No, because interference by a LO in the exercise
of the right to organize is itself a function of self‐
organizing.
Q: What are examples of interference which does
not amount to ULP?
A:
1.
2.
3.
Union campaigns for membership even
among members of another union
Filing by a union of a petition to dislodge
an incumbent bargaining union
A bargaining union, through a union
security clause, requires an incoming
employee to join the union.
Q: May a union coerce Ees to join a strike?
A: No. A union violates the law when, to restrain or
coerce non‐strikers from working during the strike,
it:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Assaults or threatens to assault them
Threatens them with the loss of their jobs
Blocks their ingress to or egress from the
plant
Damages non‐strikers’ automobiles or
forces them off the highway
Physically preventing them from working
Sabotages the Er’s property in their
presence,
thereby
creating
an
atmosphere of fear or violence
Demonstrates loudly in front of a non‐
strikers’ residence with signs and shouts
accusing the non‐striker of “scabbing”
Holding the non striker up to ridicule
Seeking public condemnation of the non‐
striker
Q: What is a case of union induced discrimination
by labor organization (LO)?
A: This pertains to the arbitrary use of union
security clause.
A union member may not be expelled from the
union, and consequently from his job, for personal
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
157
UST GOLDEN NOTES 2011
and impetuous reasons or for causes foreign to the
closed shop agreement. (Manila Mandarin Ees
Union v. NLRC, G.R. No. 76989, Sep. 29, 1987)
Labor unions are not entitled to arbitrarily exclude
qualified applicants for membership and a closed‐
shop applicants provision will not justify the
employer in discharging, or a union in insisting upon
the discharge of an employee whom the union thus
refuses to admit to membership without any
reasonable ground thereof. (Salunga v. CIR, G.R.
No. L‐22456, Sep. 27, 1967)
Q: When is there refusal to bargain?
A: A union violates its duty to bargain collectively by
entering negotiations with a fixed purpose of not
reaching an agreement or signing a contract.
3.RIGHT TO PEACEFUL CONCERTED ACTIVITIES
Q: What is the constitutional basis of strikes,
lockouts and other concerted activities?
A: The State shall guarantee the rights of all
workers to self‐organization, collective bargaining
and negotiations, and peaceful concerted activities,
including the right to strike in accordance with law
(Sec. 3, Art. XIII, 1987 Constitution).
Note: The law does not look with favor upon strikes
and lockouts because of their disturbing and
pernicious effects upon the social order and the public
interests; to prevent or avert them and to implement
Sec. 6, Art. XIV of the Constitution, the law has created
several agencies, namely: the BLR, the DOLE, the Labor
Management Advisory Board, and the CIR. (Luzon
Marine Dev’t Union v. Roldan, G.R. No. L‐2660, May
30, 1950)
Q: What is a concerted action?
A: It is an activity undertaken by 2 or more
employees, by one on behalf of the others.
Q: Are all concerted actions strikes?
A: Not all concerted activities are strikes. They may
only be protest actions – they do not necessarily
cause work stoppage by the protesters. A strike in
contrast is always a group action accompanied by
work stoppage.
Q: The Ees wrote and published a letter to the
bank president, demanding his resignation on the
grounds of immorality, nepotism, favoritism and
discrimination in the appointment and promotion
of bank Ees. The bank dismissed the 8 Ees on the
alleged libelous letter. Were the Ees engaged in a
concerted activity?
158
A: Yes, assuming that they acted in their individual
capacities when they wrote the letter, they were
nonetheless protected, for they were engaged in a
concerted activity, in their right of self‐organization
that includes concerted activity for mutual aid and
protection. Any interference made by the company
will constitute as ULP.
The joining in protests or demands, even by a small
group of Ees, if in furtherance of their interests as
such is a concerted activity protected by the
Industrial Peace Act. It is not necessary that union
activity be involved or that collective bargaining be
contemplated. (Republic Savings Bank v. CIR, G.R.
No. L‐20303, Oct. 31, 1967)
Q: What is a strike?
A: It means any temporary stoppage of work by the
concerted action of employees as a result of an
industrial or labor dispute. (Sec.1 [uu], Rule I, Book
V, IRR)
It shall comprise not only concerted work
stoppages, but also slowdowns, mass leaves,
sitdowns, attempt to damage, destroy or sabotage
plant equipment and facilities, and similar activities.
(Samahang Manggagawa sa Sulpicion Lines v.
Sulpicio Lines, Inc., G.R. No. 140992, Mar. 25, 2004)
Q: What is the purpose of a strike?
A: A strike is a coercive measure resorted to by
laborers to enforce their demands. The idea behind
a strike is that a company engaged in a profitable
business cannot afford to have its production or
activities interrupted, much less, paralyzed. (Phil.
Can Co. v. CIR, G.R. No. L‐3021, July 13, 1950)
Q: What is a lockout?
A: It means any temporary refusal of an employer
to furnish work as a result of an industrial or labor
dispute. (Art. 212 [p])
Q: What is picketing?
A: It is the act of marching to and fro the employers
premises which is usually accompanied by the
display of placard and other signs, making known
the facts involved in a labor dispute.
The right to picket as a means of communicating
the facts of a labor dispute is a phase of the
freedom of speech guaranteed by the Constitution.
If peacefully carried out, it can not be curtailed
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
even in the absence of Er‐Ee relationship. (PAFLU v.
Cloribel, G.R. No. L‐25878, Mar. 28, 1969)
Q: Is the right to picket an absolute right?
A: No, while peaceful picketing is entitled to
protection as an exercise of free speech, the courts
are not without power to confine or localize the
sphere of communication or the demonstration to
the parties to the labor dispute, including those
with related interests, and to insulate
establishments or persons with no industrial
connection or having interest totally foreign to the
context of the dispute. (Liwayway Pub., Inc. v.
Permanent Concrete Workers Union, G.R. No. L‐
25003, Oct. 23, 1981)
The right to peaceful picketing shall be exercised by
the workers with due respect for the rights of
others. No person engaged in picketing shall
commit any act of violence, coercion or
intimidation. Stationary picket, the use of means
like placing of objects to constitute permanent
blockade or to effectively close points of entry or
exit in company premises are prohibited by law.
Q: Who is a strike‐breaker?
A: Any person who obstructs, impedes, or
interferes with by force, violence, coercion, threats,
or intimidation any peaceful picketing affecting
wages, hours or conditions of work or in the
exercise of the right of self‐organization or
collective bargaining. (Art. 212 [r])
Q: What is a strike area?
A: It means the establishment, warehouses, depots,
plants or offices, including the sites or premises
used as runaway shops, of the Er struck against, as
well as the immediate vicinity actually used by
picketing strikers in moving to and fro before all
points of entrance to and exit from said
establishment. (Sec. 1 [vv], Rule I, Book V, IRR)
Q: What is an internal union dispute?
A: It includes all disputes or grievances arising from
any violation of or disagreement over any provision
of the constitution and by laws of a union, including
any violation of the rights and conditions of union
membership provided for in this LC. (Art. 212 [q])
Q: What is a boycott?
A: It is an attempt, by arousing a fear of loss, to
coerce others, against their will to withhold from
one denominated “unfriendly to labor” their
beneficial business intercourse.
Q: What is a slowdown?
A: It is a method by which one’s employees,
without seeking a complete stoppage of work,
retard production and distribution in an effort to
compel compliance by the employer with the labor
demands made upon him.
Q: Does an “overtime boycott” or “work
slowdown” by the employees constitute a strike
and hence a violation of the CBA’s “No strike, no
lockout” clause?
A: Yes, the concept of a slowdown is a "strike on
the installment plan." It is a willful reduction in the
rate of work by concerted action of workers for the
purpose of restricting the output of the employer
(Er), in relation to a labor dispute; as an 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.
Such a slowdown is generally condemned as
inherently illicit and unjustifiable, because while the
employees (Ees) "continue to work and remain at
their positions and accept the wages paid to them,"
they at the same time "select what part of their
allotted tasks they care to perform of their own
volition or refuse openly or secretly, to the Er's
damage, to do other work;" in other words, they
"work on their own terms." (Interphil Laboratories
Ees Union‐FFW v. Interphil Laboratories, Inc., G.R.
No. 142824, Dec. 19, 2001)
Q: What are the characteristics of a strike?
A:
1. Existence of an Er‐Ee relationship
2. Existence of a labor dispute
3. Employment relation is deemed to
continue although in a state of belligerent
suspension
4. Temporary work stoppage
5. Work stoppage is done through concerted
action
6. The striking group is a legitimate labor
organization; in case of a bargaining
deadlock, it must be the employees’ sole
bargaining representative
Q: PAL dismissed strike leader Capt. Gaston as a
result of which the Union resolved to undertake
the grounding of all PAL planes and the filing of
applications for “protest retirement” of members
who had completed 5 years of continuous service,
and “protest resignation” for those who had
rendered less than 5 years of service in the
company. PAL acknowledged receipt of said
letters and among the pilots whose “protest
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
159
UST GOLDEN NOTES 2011
resignation or retirement” was accepted by PAL
were Enriquez and Ecarma.
Before their readmission, PAL required Enriquez
and Ecarma to accept 2 conditions, namely: that
they sign conformity to PAL’s letter of acceptance
of their retirement and or resignation and that
they submit an application for employment as new
employees (Ees) without protest or reservation. As
a result of this their seniority rights were lost.
Are the pilots entitled to the restoration of their
seniority rights?
A: No, an Ee has no inherent right to seniority. He
has only such rights as may be based on a contract,
statute, or an administrative regulation relative
thereto. Seniority rights which are acquired by an
Ee through long‐time employment are contractual
and not constitutional. The discharge of an Ee
thereby terminating such rights would not violate
the Constitution. When the pilots tendered their
respective retirement or resignation and PAL
immediately accepted them, both parties mutually
terminated
the
contractual
employment
relationship between them thereby curtailing
whatever seniority rights and privileges the pilots
had earned through the years.
Q: Does the action of the Ees of PAL fall under the
ambit of concerted actions protected by law?
A: No, the pilot’s mass action was not a strike
because Ees who go on strike do not quit their
employment. Ordinarily, the relationship of Er and
Ee continues until one of the parties acts to sever
the relationship or they mutually act to accomplish
that purpose. As they did not assume the status of
strikers, their “protest retirement/resignation” was
not a concerted activity which was protected by
law. (Enrique v. Zamora, G.R. No. L‐51382, Dec. 29,
1986)
Q: What is a labor dispute?
A: Any controversy or matter concerning terms or
conditions or representation of persons in
negotiating, fixing, maintaining, changing or
arranging the terms and conditions of employment,
regardless of whether or not the disputants stand in
the proximate relation of Ers and Ees. (Gold City
Integrated Port Services, Inc. v. NLRC, G.R. No.
103560, July 6, 1995)
Q: When is a person or entity considered as
participating or interested in a labor dispute?
1.
2.
3.
4.
If relief is sought against him or it, and
He or it is engaged in the same industry,
trade, craft, or occupation in which such
dispute occurs, or
Has a direct or indirect interest therein, or
Is a member, officer, or agent of any
association composed in whole or in part
of employees or employers engaged in
such industry, trade, craft, or occupation.
Q: Liwayway Publication Inc. is a second sub lessee
of a part of the premises of the Permanent
Concrete Products, Inc. It has a bodega for its
newsprint in the sublet property which it uses for
its printing and publishing business. The daily
supply of newsprint needed to feed its printing
plant is taken from its bodega. The Ees of the
Permanent Concrete Products Inc. declared a
strike against their company. The union members
picketed, stopped and prohibited Liwayway’s
trucks from entering the compound to load
newsprint from its bodega.
Does the lower court have jurisdiction to issue a
writ of preliminary injunction considering that
there was a labor dispute between Permanent
Concrete Products, Inc. and the union?
A: Yes, Liwayway Publication Inc. is not in anyway
related to the striking union except for the fact that
it is the sub‐ lessee of a bodega in the company’s
compound.
The business of Liwayway is exclusively the
publication of magazines which has absolutely no
relation or connection whatsoever with the cause
of the strike of the union against their company,
much less with the terms, conditions or demands of
rd
the strikers. Liwayway is merely a 3 person or an
innocent by‐stander. (Liwayway Pub., Inc. v.
Permanent Concrete Workers Union, G.R. No. L‐
25003, Oct. 23, 1981)
Q: Because of financial problems, the company
decided to temporarily shutdown its operations at
the dyeing and finishing division. It notified the
DOLE of the shutdown. Raymund Tomaroy with
16 members of the union staged a picket in front
of the company’s compound, carrying placards. He
th
demanded a resumption of work and 13 month
pay. The company filed a petition to declare the
strike illegal. The union argues that they did not
stage a strike, for considering that the dyeing and
finishing division of the company was shut down,
it could not have caused a work stoppage. Was the
action of the union a strike?
A:
160
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
A: Yes, the concerted efforts of the members of the
union and its supporters caused a temporary work
stoppage. The allegation that there can be no work
stoppage because the operation in the division had
been shut down is of no consequence. It bears
stressing that the other divisions were fully
operational. (Bukluran ng Manggagawa sa
Clothman Knitting Corp. v. CA, G.R. No. 158158,
Jan.17, 2005)
existence of the union is
threatened. It must still observe
the mandatory 7‐day strike ban
period before it can stage a
valid strike
Q: What are the different forms of strike?
A:
1.
a.Forms of Concerted Activities
Q: What are the types of strike?
2.
A:
1.
2.
Economic strike – used to secure the
economic demands such as higher wages
and better working conditions for the
workers
ULP strike – protest against ULP of
management
3.
Q: Distinguish between an economic strike and an
ULP strike.
4.
A:
ECONOMIC STRIKE
ULP STRIKE
As to nature
Involuntary strike; the LO is
forced to go on strike because
Voluntary strike
of the ULP committed against
because the Ee will
them by the Er. It is an act of
declare a strike to
self‐defense since the Ee’s are
compel
being pushed to the wall and
management to
their only remedy is to stage a
grant its demands
strike
Who will initiate
The CB agent of
the appropriate
Either the CB agent or the LLO in
bargaining unit can
behalf of its members
declare an
economic strike
As to the cooling‐off period
30 days from
notice of strike
before the
15 days from the filing of the
intended date of
notice of strike
actual strike
subject to the 7‐
day strike ban
As to the exception to the cooling‐off period
No exception –
The cooling‐off period may be
mandatory
dispensed with, and the union
may take immediate action in
case of dismissal from
Note: notice of
employment of their officers
strike and strike
duly elected in accordance with
vote may be
the union’s constitution and by‐
dispensed with;
laws, which may constitute
they may strike
union busting where the
immediately
5.
6.
7.
Legal Strike‐one called for a valid purpose
and conducted through means allowed by
law.
Illegal Strike‐one staged for a purpose not
recognized by law, or if for a valid purpose,
conducted through means not sanctioned
by law.
Economic Strike‐ one staged by workers to
force wage or other economic concessions
from the employer which he is not
required
by
law
to
grant
(Consolidated
Labor
Association
of the Phil. vs. Marsman, G.R. No. L‐
17038, July 31, 1964)
ULP Strike‐one called to protest against the
employer’s acts of unfair practice
enumerated in Article 248 of the Labor
Code, as amended, including gross
violation of the collective bargaining
agreement (CBA) and union busting.
Slow Down Strike‐one staged without the
workers quitting their work but by merely
slackening or by reducing their normal
work output.
Wild‐Cat Strike‐one declared and staged
without filing the required notice of strike
and without the majority approval of the
recognized bargaining agent.
Sit Down Strike‐one where the workers
stop working but do not leave their place
of work.
b.Who may declare a strike or lockout
Q: Who may declare a strike or lockout?
A:
1.
2.
Any certified or duly recognized
bargaining representative may declare a
strike in cases of bargaining deadlock
and unfair labor practice. Likewise, the
employer may declare a lockout in the
same cases.
In the absence of a certified or duly
recognized bargaining representative,
any legitimate labor organization in the
establishment may declare a strike but
only on the ground of unfair labor
practice. (Section 2, Rule XIII Book V,
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
161
UST GOLDEN NOTES 2011
Omnibus Rules Implementing The Labor
Code, as amended).
In case of dismissal from employment of
union officers which may constitute 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.
c.Requisites for a valid strike/ lockout
Q: What are the requisites of a lawful strike /
lockout?
A: The requirements for a valid strike or
lockout are as follows:
1.
It must be based on a valid and factual
ground;
2.
A strike or lockout NOTICE shall be filed
with the National Conciliation and
Mediation Board (NCMB) at least 15 days
before the intended date of the strike or
lockout if the issues raised are unfair
labor practices, or at least 30 days
before the intended date thereof if the
issue involves bargaining deadlock.
3.
4.
In cases of dismissal from employment of
union officers duly elected in accordance
with the union constitution and by‐laws,
which may constitute UNION BUSTING
where the existence of the union is
threatened, the 15‐day cooling‐off period
shall not apply and the union may take
action immediately after the strike vote is
conducted and the result thereof
submitted to the Department of Labor
and Employment.
A strike must be approved by a majority
vote of the members of the Union and a
lockout must be approved by a majority
vote of the members of the Board of
Directors of the Corporation or
Association or of the partners in a
partnership, obtained by secret ballot in a
meeting called for that purpose.
5.
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.
6.
In the event the result of the
strike/lockout 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. (NSFW vs. Ovejera, G.R. No.
59743, May 31, 1982)
162
7.
The dispute must not be the subject of an
assumption of jurisdiction by the
President or the Secretary of Labor and
Employment,
a
certification
for
compulsory arbitration, or submission to
compulsory or voluntary arbitration nor a
subject of a pending case involving the
same grounds for the strike or lockout.
Q: What are the valid grounds for declaring a
strike or lockout?
A: The law recognizes 2 grounds for the valid
exercise of the right to strike or lockout, namely:
1.
2.
Collective Bargaining Deadlock (CBD)‐
economic;
Unfair Labor Practice (ULP)‐political
Note: It is possible to change an economic strike into a
ULP strike. (Consolidated Labor Ass’n of the Phils. v.
Marsman and Co., G.R. No. L‐17038, July 31, 1964)
Violations of CBA must be gross to be considered as
ULP.
Q: What is conversion doctrine?
A: It is when a strike starts as economic and later,
as it progresses, it becomes a ULP, or vice versa.
Q: Can a strike be converted into a lockout?
A: No, a strike cannot be converted into a pure and
simple lockout by the mere expedient of filing
before the trial court a notice of offer to return to
work during the pendency of the labor dispute
between the union and the employer. (Rizal
Cement Workers Union v. CIR, G.R. No. L‐18442,
Nov. 30, 1962).
Q: Give examples of strike and explain their
legality.
A:
1.
Sit‐down strike – Characterized by a
temporary work stoppage of workers who
seize or occupy property of the Er or
refuse to vacate the premises of the Er.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
Illegal – Amounts to a criminal
act because of the Ee’s trespass
on the premises of the Er
Illegal – It is a political rally
7.
2.
Wildcat strike – A work stoppage that
violates the labor contract and is not
authorized by the union.
Illegal –Because it fails to
comply with certain req’ts of
the law, to wit: notice of strike,
vote and report on strike vote
3.
Slowdown – Strike on an installment plan;
an activity by which workers, without
complete stoppage of work, retard
production or their performance of duties
and functions to compel management to
grant their demands
Illegal – Ees work on their own
terms; while the Ees continue to
work and remain in their
positions and accept wages paid
to them, they at the same time
select what part on their
allotted tasks they care to
perform on their own volition or
refuse openly or secretly
4.
Sympathetic strike – Work stoppages of
workers of one company to make
common cause with other strikers or
other companies without demands or
grievances of their own against the Er
6.
Illegal‐ failure to comply with notice
requirements and etc.
Q: Two unions, joined a welga ng bayan. The
unions, led by their officers, staged a work
stoppage which lasted for several days, prompting
FILFLEX and BIFLEX Corporations to file a petition
to declare the work stoppage illegal for failure to
comply with procedural req’ts. Whether the Ees
committed an illegal work stoppage?
A: Yes. Ees, who have no labor dispute with their Er
but who, on a day they are scheduled to work,
refuse to work and instead join a welga ng bayan
commit an illegal work stoppage. There being no
showing that the two unions notified the
corporations of their intention, or that they were
allowed by the corporations, to join the welga ng
bayan, their work stoppage is beyond legal
protection.(BIFLEX Phils. Inc. Labor Union (NAFLU)
vs. FILFLEX Industrial and Manufacturing Corp., G.R.
No. 155679, Dec. 19, 2006)
Q: What are the tests in determining the legality of
strike?
Secondary strike – Work stoppages of
workers of one company to exert
pressure on their Er so that the latter will
in turn bring pressure upon the Er of
another company with whom another
union has a labor dispute
A: The following must concur:
1. Purpose test – the strike must be due to
either bargaining deadlock and/or the
ULP
2. Compliance with the procedural and
substantive req’ts of the law. (See
requisites of a valid strike)
3. Means employed test – It states that a
strike may be legal at its inception but
eventually be declared illegal if the strike
is accompanied by violence which is
widespread, pervasive and adopted as a
matter of policy and not mere violence
which is sporadic which normally occur in
a strike area.
Illegal – There is no labor
dispute involved.
Q: What are the instances when a strike or lockout
cannot be declared?
Note: A strike can validly take
place only in the presence of and
in relation to a labor dispute
between Er and Ee.
A: Non‐strikable issues:
1. CBA violations not gross in character
2. Grounds
involving
inter/intra‐union
disputes
3. When there is no notice of strike or
lockout or without the strike or lockout
vote
Illegal – There is no labor
dispute between the workers
who are joining the strikers and
the latter’s Er
5.
Quickie strikes‐ brief and unannounced
temporary work stoppage
Welga ng bayan (Cause Oriented Strikes)
– A political strike and therefore there is
neither a bargaining deadlock nor any ULP
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
163
UST GOLDEN NOTES 2011
4.
5.
6.
After assumption of jurisdiction by the
SLE
After certification or submission of
dispute to compulsory or voluntary
arbitration or during the pendency of
cases involving the same grounds for
strike or lockout
Labor standards cases such as wage
orders. (Guidelines governing Labor
Relations [Oct. 19, 1987] issued by Sec.
Drilon. See also Art. 261, LC)
its own initiative or upon request of
any party.
4.
Furnish the regional branch of the NCMB
with a notice to conduct a strike vote, at
least 24‐hours before the meeting for
such purpose (Sec. 10, Rule XXII of the
Omnibus Rules of the NLRC).
5.
7‐Day strike ban – a 7‐day waiting period
before the date of the purported strike
(within which the union intending to
conduct a strike must at least submit a
report to DOLE as to the result of the
strike vote)
Q: What are the procedural and substantive
requisites before a strike may be declared?
Note: To give DOLE an opportunity to verify
whether the projected strike really carries
the imprimatur of the majority of the union
members in addition to the cooling‐off
period before the actual strike. (Lapanday
Workers’ Union, et.al. v. NLRC, G.R. Nos.
95494‐97, Sep. 7, 1995)
A:
1.
Notice of strike – filed with the NCMB
taking into consideration the cooling‐off
period
Note: The failure of the union to serve the
company a copy of the notice of strike is a
clear violation of Section 3, Rule XXII, Book V
of the Rules Implementing the LC. The
Constitutional precepts of due process
mandate that the other party be notified of
the adverse action of the opposing party.
(Filipino Pipe and Foundry Corp. v. NLRC,
G.R. No. 115180, Nov.r 16, 1999)
2.
30/15 day Cooling‐off period before the
intended date of actual strike – notice of
strike is filed with the NCMB taking into
consideration the cooling‐off period, at
least:
a.
b.
3.
164
30 days before the intended strike
for bargaining deadlocks;
15 days before the intended strike
for ULP
Strike vote
a. The decision to declare a strike must
be approved by a majority of the
total union membership in the
bargaining unit concerned.
b. It must be obtained by secret ballot
through meetings or referenda called
for the purpose.
c. Its purpose is to ensure that the
intended strike is a majority decision.
The report on the strike vote must
be submitted to DOLE at least 7 days
before the intended strike subject to
the cooling‐off period.
d. The regional branch may supervise
the conduct of the secret balloting at
Q: What is a cooling‐off period?
A: It is the period of time given the NCMB to
mediate and conciliate the parties. It is the span of
time allotted by law for parties to settle their
disputes in a peaceful manner before staging a
strike or lockout.
Note: Cooling‐off and waiting period may be done
simultaneously.
Q: What is the effect of non‐compliance with the
requisites of a strike?
A: The strike may be declared illegal.
Q: What is the purpose of giving notice of the
conduct of a strike vote to the NCMB at least 24
hours before the meeting for the said purpose?
A:
1.
2.
3.
Inform the NCMB of the intent of the
union to conduct a strike vote;
Give the NCMB ample time to decide on
whether or not there is a need to
supervise the conduct of the strike vote
to prevent any acts of violence and or
irregularities;
Ample time to prepare for the
deployment of the requisite personnel.
(Capitol Medical Center v. NLRC, G.R. No.
147080, April 26, 2005)
Q: Is a no strike/lockout clause legal?
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
A: Yes, but it is applicable only to economic strikes,
not ULP strikes. As a provision in the CBA, it is a
valid stipulation although the clause may be
invoked by an employer (Er) only when the strike is
economic in nature or one which is conducted to
force wage or other concessions from the Er that
are not mandated to be granted by the law itself. It
would be inapplicable to prevent a strike which is
grounded on ULP. (Panay Electric Co. v. NLRC, G.R.
No. 102672, Oct. 4, 1995; Malayang Samahan ng
mga Manggagawa sa Greenfield v. Ramos, G.R. No.
113907, Feb. 28, 2000)
Q: What is a preventive mediation case?
A: It involves labor disputes which are the subject
of a formal or informal request for conciliation and
mediation assistance sought by either or both
parties or upon the initiative of the NCMB. (Sec. 1
[mm], Rule I, Book V, IRR)
Note: The regional branch may treat the notice as
preventive mediation case upon agreement of the
parties.
Q: What are the contents of the notice of strike or
lockout?
A:
1.
2.
3.
4.
5.
6.
7.
8.
Name and addresses of Er
Union involved
Nature of the industry to which the Er
belongs
Number of union members
Workers in the bargaining unit
Other relevant date
In case of bargaining deadlocks:
unresolved issues, written proposals of
the union, counter‐proposals of the Er
and proof of request for conference to
settle differences
In case of ULP: The acts complained of,
and the efforts taken to resolve the
dispute
Note: NCMB shall inform the concerned party in case
notice does not conform with the req’ts.
Q: What action will the board take on the notice of
strike of strike or lockout?
A:
1.
Upon receipt of notice, the regional
branch of the Board shall exert all efforts
at mediation and conciliation to enable
the parties to settle the dispute amicably.
It shall also encourage the parties to
submit the dispute to voluntary
arbitration.
2.
3.
4.
The regional branch of the NCMB may,
upon agreement of the parties, treat a
notice as a preventive mediation case.
During the proceedings, the parties shall
not do any act which may disrupt or
impede the early settlement of the
dispute. They are obliged, as part of their
duty to bargain collectively in good faith
and to participate fully and promptly in
conciliation meetings called by the
regional branch of the NCMB.
A notice, upon agreement of the parties,
may be referred to alternative modes of
dispute resolution, including voluntary
arbitration.
Q: Was the strike held by the union legal based on
the fact that the notice of strike only contained
general allegations of ULP?
A: No. Rule XIII Sec. 4 Book V of the Implementing
Rules of the LC provides: In cases of ULP, the notice
of strike shall as far as practicable, state the acts
complained of and the efforts to resolve the dispute
amicably. (Tiu v. NLRC, G.R. No. 123276, Aug. 18,
1997)
Q: NFSW, the bargaining agent of Central
Azucarera de la Carlota (CAC) rank and file
employees, filed a notice of strike based on non‐
th
payment of the 13 month pay and 6 days
thereafter they held the strike. A day after the
commencement of the strike, a report of the
strike‐vote was filed by NFSW with MOLE. CAC
filed a petition to declare the strike illegal due to
non‐compliance with the 15‐day cooling of period
and the strike was held before the lapse of 7 days
from the submission to the MOLE of the result of
the strike vote. Was the strike held by NFSW legal?
A: No. The cooling‐off period in Art. 264(c) and the
7‐day strike ban after the strike‐vote report
prescribed in Art. 264 (f) were meant to be
mandatory. The law provides that “the labor union
may strike” should the dispute “remain unsettled
until the lapse of the requisite number of days from
the filing of the notice”, this clearly implies that the
union may not strike before the lapse of the
cooling‐off period. The cooling‐off period is for the
Ministry of Labor and Employment to exert all
efforts at mediation and conciliation to effect a
voluntary settlement.
The mandatory character of the 7‐day strike ban is
manifest in the provision that “in every case” the
union shall furnish the MOLE with the results of the
voting “at least 7 days before the intended strike.”
This period is to give time to verify that a strike vote
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
165
UST GOLDEN NOTES 2011
was actually held. (NFSW v. Ovejera, G.R. No. L‐
59743, May 31, 1982)
Q: What are the exceptions to the “no backwages
rule” of strikers?
Q: Fil Transit Ees Union filed a notice of strike with
the BLR because of alleged ULP of the company.
Because of failure to reach an agreement the
union went on strike. Several employees (Ees)
were dismissed because of the strike. The union
filed another notice of strike alleging ULP, massive
dismissal of officers and members, coercion of Ees
and violation of workers rights to self‐
organization. The Ministry of Labor and
Employment, after assuming jurisdiction over the
dispute, ordered all striking Ees including those
who were dismissed to return to work. The
company however countered that no strike vote
had been obtained before the strike was called
and the result of the strike vote was not reported
to Ministry of Labor and Employment. Was the
strike held by the union illegal for failure to hold a
strike vote?
A:
A: Yes, there is no evidence to show that a strike
vote had in fact been taken before a strike was
called. Even if there was a strike vote held, the
strike called by the union was illegal because of
non‐observance by the union of the mandatory 7‐
day strike ban counted from the date the strike
vote should have been reported to the DOLE. (First
City Interlink Transportation Co., Inc. v. Confessor,
G.R. No. 106316, May 5, 1997)
1.
2.
3.
4.
d.Assumption of Jurisdiction by the Secretary of
Labor or Certification of the Labor dispute to the
NLRC for compulsory arbitration
Q: Discuss the assumption of jurisdiction by the
Secretary of Labor and Employment (SLE) on
strikes/lockouts.
A:
1.
Q: The company conceived and decided to
retrench its Ees and selected about 40 Ees to be
dismissed because of the lack of work. Because of
this about 200 Ees during break‐time boarded
buses and went to the Ministry of Labor but they
were advised to return to work.
Upon returning to the company’s premises, the
Ees were only allowed to stay in the canteen and
were not given work because according to the
company the machines were undergoing repairs.
Are the Ees entitled to reinstatement and
backwages?
A: The Ees are entitled to reinstatement but not to
backwages. Both parties being in pari delicto,
having conducted an illegal strike and lockout
respectively, there must be a restoration of the
status quo ante and must bring the parties back to
their respective positions prior to the illegal strike
and lockout which shall be done by reinstating the
remaining Ees. However, it is the general rule that
strikers are not entitled to backwages. The principle
of “no work, no pay” is applicable in view of the
finding of the illegality of the strike. (Philippine
Inter‐Fashion, Inc v. NLRC, G.R. No. L‐59847, Oct. 18,
1982)
166
When the Ees were illegally locked thus
compelling them to stage a strike
When the Er is guilty of the grossest form
of ULP
When the Er committed discrimination in
the rehiring of strikers refusing to readmit
those against whom there were pending
criminal cases while admitting nonstrikers
who were also criminally charged in
court;
When the workers who staged a
voluntary ULP strike offered to return to
work unconditionally but the Er refused
to reinstate them. (Manila Diamond Hotel
vs. Manila Diamond Hotel Ees’ Union, G.R.
No. 158075, June 30, 2006)
Discretionary
a. If in his opinion there exists a labor
dispute causing or likely to cause a
strike or lockout in an industry
indispensable to the national interest.
b. He may certify the same to the NLRC
for compulsory arbitration
c. Effect – Automatically enjoins the
intended or impending strike/lockout
but if one has already taken place, all
striking or locked out Ees shall
immediately return to work and the Er
shall immediately resume operations
and re‐admit all workers under the
same terms and conditions prevailing
before the strike or lockout (Trans‐
Asia Shipping Lines, Inc.‐Unlicensed
Crews Ee’s Union v. CA, G.R. No.
145428, July 7, 2004)
Note: A motion for reconsideration does not
suspend the effects as the assumption order
is immediately executory.
2.
Mandatory (within 24 hours)
a. In labor disputes adversely affecting
the continued operation of hospitals,
clinics or medical institutions.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
b.
c.
May assume jurisdiction or certify it to
the NLRC for compulsory arbitration
Duty of striking union or locking out Er
to provide and maintain an effective
skeletal workforce of medical and
other health personnel, where
movement and service 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 (Art. 263 [g])
Q: What does the phrase “under the same terms
and conditions” contemplate?
A:
GR: It contemplates only actual reinstatement.
This is in keeping with the rationale that any
work stoppage or slowdown in that particular
industry can be inimical to the national
economy.
XPN: Payroll reinstatement in lieu of actual
reinstatement but there must be showing of
special
circumstances
rendering
actual
reinstatement impracticable, or otherwise not
conducive to attaining the purpose of the law in
providing for assumption of jurisdiction by the
SLE in a labor dispute that affects the national
interest. (Manila Diamond Hotel Ees Union v.
SLE, G.R. No. 140518, Dec. 16, 2004)
Q: What are issues that the SLE may resolve when
he assumes jurisdiction over a labor dispute?
A: No, the mere issuance of an assumption order
automatically carries with it a return‐to‐work order
although not expressly stated therein. (TSEU‐FFW v.
CA, G.R. Nos. 143013‐14, Dec.18, 2000)
Q: What is the extent of the powers of the
President during strikes/lockouts?
A:
1.
2.
May determine the industries, which are
in his opinion indispensable to national
interest
May intervene at any time and assume
jurisdiction over any such labor dispute in
order to settle or terminate the same.
(Art. 263[g])
Note: The decision of the President/SLE is final and
executory after receipt thereof by the parties.
Q: May a return to work order be validly issued
pending determination of the legality of the
strike?
A: Yes. Where the return to work order is issued
pending the determination of the legality of the
strike, it is not correct to say that it may be
enforced only if the strike is legal and may be
disregarded if illegal. Precisely, the purpose of the
return to work order is to maintain the status quo
while the determination is being made. (Sarmiento
v. Tuico, G.R. Nos. 75271‐73, June 27, 1988)
e.Nature of Assumption Order or Certification
Order
Q: What is the nature of the power of SLE under
Art. 263(g)?
A:
1.
2.
Issues submitted to the SLE for resolution
and such issues involved in the labor
dispute itself. (St. Scholastica’s College v.
Torres, G.R. No. 100158, June 2, 1992)
SLE may subsume pending labor cases
before LAs which are involved in the
dispute and decide even issues falling
under the exclusive and original
jurisdiction of LAs such as the declaration
of legality or illegality of strike (Int’l.
Pharmaceuticals v. SLE, G.R. Nos. 92981‐
83, Jan. 9, 1992)
Note: Power of SLE is plenary and discretionary. (St.
Luke’s Medical Center v. Torres, G.R. No. 99395, June
29, 1993)
Q: Is it necessary for the SLE to issue a return‐to‐
work order in an assumption order?
A: The assumption of jurisdiction is in the nature of
a police power measure. This is done for the
promotion of the common good considering that a
prolonged strike or lockout can be inimical to the
national economy. The SLE acts to maintain
industrial peace. Thus, his certification for
compulsory arbitration is not intended to impede
the worker’s right to strike but to obtain a speedy
settlement of the dispute. (Philtread Workers Union
v. Confesor, G.R. No. 117169, Mar. 12, 1997)
Art. 263(g) does not interfere with the workers right
to strike but merely regulates it, when in the
exercise of such right national interest will be
affected. The LC vests upon the SLE the discretion
to determine what industries are indispensable to
national interest.
Q: What is the nature of assumption and
certification orders of the Secretary of Labor?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
167
UST GOLDEN NOTES 2011
A: The underlying principle embodied in Art. 264
(g) on the settlement of labor disputes is that
assumption and certification orders are executor in
character and are strictly complied with by the
parties even during the pendency of any petition
questioning their validity.
This extraordinary
authority given to the Secretary of Labor is aimed at
arriving at a peaceful and speedy solution to labor
disputes, without jeopardizing national interests.
Q: A notice of strike was filed by the PSBA Ees
Union‐FFW, alleging union busting, coercion of Ees
and harassment on the part of PSBA. The
conciliation being ineffective, the strike pushed
through. A complaint for ULP and for a declaration
of illegality of the strike with a prayer for
preliminary injunction was filed by PSBA against
the union.
While the cases were pending, a complaint was
filed in the RTC of Manila by some PSBA students
against PSBA and the union, seeking to enjoin the
union and its members from picketing and from
barricading themselves in front of the schools
main gate. A TRO was then issued by the RTC,
which the union opposed on the ground that the
case involves a labor dispute over which the RTC
had no jurisdiction. The Acting SLE later on
assumed jurisdiction over the labor dispute and
ordered the striking Ee’s to return to work. Was
the SLE correct in ordering the striking Ees to
return to work?
A: Yes. In the opinion of the Acting SLE, the labor
dispute adversely affected the national interest,
affecting as it did 9,000 students. He is authorized
by law to assume jurisdiction over the labor
dispute, after finding that it adversely affected the
national interest. This power is expressly granted by
Art. 263 (g) of the LC, as amended by B.P. Blg. 227.
Q: Does the RTC have jurisdiction to decide on the
case filed by the PSBA students?
A: No, the RTC was without jurisdiction over the
subject matter of the case filed by some PSBA
students, involving as it does a labor dispute over
which the labor agencies had exclusive jurisdiction.
That the regular courts have no jurisdiction over
labor disputes and to issue injunctions against
strikes is well‐settled. (PSBA v. Noriel, G.R. No.
80648, Aug. 15, 1988)
meetings were conducted but to no avail so the
union staged a strike while the company
terminated 383 union members from service
pursuant to its redundancy program. Pursuant to
Art. 263(g) of the LC the SLE certified the labor
dispute for compulsory arbitration. Accordingly
the SLE enjoined the strike staged by the union
and all striking workers were directed to return to
work within 24 hours except for those who were
terminated due to redundancy.
Was the SLE correct in excepting from the return‐
to‐work order those who were terminated due to
redundancy?
A: No, Art. 263(g) is clear and unequivocal in
stating that all striking or lock‐out Ees shall
immediately return to work and the Er shall
immediately resume operations and readmit all
workers under the same terms and conditions
prevailing before the strike or lockout. Records of
the case would show that the strike occurred one
day before the members of the union were
dismissed due to alleged redundancy. Thus the
abovementioned article directs that the Er must
readmit all workers under the same terms and
conditions prevailing before the strike. (PLDT v.
Manggagawa ng Komunikasyon sa Pilipinas, G.R.
No. 162783, July 14, 2005)
f.Effect of defiance of Assumption or Certification
Order
Q: What is the effect of defiance to the return to
work order?
A: It shall be considered an illegal act committed in
the course of the strike or lockout and shall
authorize the SLE or the NLRC, as the case may be,
to enforce the same under pain or loss of
employment status or entitlement to full
employment benefits from the locking‐out Er or
backwages, damages and/or other positive and/or
affirmative reliefs, even to criminal prosecution
against the liable parties. (Sec. 6, Rule IX, of the
New Rules of Procedure of the NLRC; St.
Scholastica’s College v. Torres, G.R. No. 100158,
June 2, 1992)
g.Illegal Strike
Q: When is a strike illegal?
A:
Q: Members of the union learned that a
redundancy program would be implemented by
the company. Thereupon it filed a Notice of strike
on the grounds of ULP. A number of conciliation
168
1.
2.
Contrary to specific prohibition of law,
such as strike by employees (Ees)
performing governmental functions;
Violates a specific req’t of law;
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
3.
4.
5.
6.
Declared for an unlawful purpose, such as
inducing the employer (Er) to commit ULP
against non‐union Ees;
Employs unlawful means in the pursuit of
its objective, such as widespread
terrorism of non‐strikers;
Declared in violation of an existing
injunction;
Contrary to an existing agreement, such
as a no strike clause or conclusive
arbitration clause
Q: What is the rule on reinstatement of striking
workers?
A: Striking employees are entitled to reinstatement,
regardless of whether or not the strike was the
consequence of the employers ULP because while
out on strike, the strikers are not considered to
have abandoned their employment, but rather have
only ceased from their labor; the declaration of a
strike is not a renunciation of employment relation.
Q: Who are not entitled to reinstatement?
Q: What is “good faith (GF) strike” doctrine?
A:
A: A strike may be considered legal where the union
believed that the company committed ULP and the
circumstances warranted such belief in GF,
although subsequently such allegations of ULP are
found out as not true. (Bacus v. Ople, GR No. L‐
56856, Oct. 23, 1984, People’s Industrial and
Commercial Ees and Organization (FFW) v. People’s
Industrial and Commercial Corp., G.R. No.37687,
Mar. 15, 1982)
Q: What is the effect of the GF of strikers on the
legality of strike?
A:
GR: A strike grounded on ULP is illegal if no such
acts actually exist.
XPN: Even if no ULP acts are committed by the
Er, if the Ees believe in GF that ULP acts exist so
as to constitute a valid ground to strike, then
the strike held pursuant to such belief may be
legal. Where the union believed that the Er
committed ULP and the circumstances
warranted such belief in GF, the resulting strike
may
be
considered
legal
although,
subsequently, such allegations of ULP were
found to be groundless. (NUWHRAIN‐Interim
Junta v. NLRC, G.R. No. 125561, Mar. 6, 1998)
1.
2.
Note: Those union members who have joined an illegal
strike but have not committed any illegal act shall be
reinstated but without back wages.
The responsibility for the illegal acts committed during
the strike must be on an individual and not on a
collective basis. (First City Interlink Transportation Co.,
Inc. v. Confesor, G.R. No. 106316, May 5, 1997)
Q: Are strikers entitled to their backwages or
strike duration pay?
A:
GR: No, even if such strike was legal.
XPN:
1. Where the strikers voluntarily and
unconditionally offered to return to work,
but the employer refused to accept the
offer – workers are entitled to back wages
from the date their offer was made
2. When there is a return‐to‐work order and
the Ees are discriminated against other
Ees, workers are entitled to back wages
from the date of discrimination
3. In case of a ULP strike, in the discretion of
the authority deciding the case
(1)Liability of Officers of the Union and Ordinary
Workers
Q: Should separation pay and backwages be
awarded to the participants of an illegal strike?
A: No backwages will be awarded to union
members as a penalty for their participation in the
illegal strike. As for the union officers, for knowingly
participating in an illegal strike, the law mandates
that a union officer may be terminated from
employment and they are not entitled to any relief.
(Gold City Integrated Port Services, Inc. v. NLRC, G.R.
No. 86000, Sep. 21, 1990 )
Union officers who knowingly participate
in the illegal strike
Any striker or union who knowingly
participates in the commission of illegal
acts during the strike
Q: What is the rule in strikes in hospitals?
A:
1.
2.
It shall be the duty of the striking
employees or locking‐out employer to
provide and maintain an effective skeletal
workforce of medical and health
personnel for the duration of the strike or
lockout.
SLE may immediately assume jurisdiction
within 24 hours from knowledge of the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
169
UST GOLDEN NOTES 2011
occurrence of such strike or lockout
certify it to the NLRC for compulsory
arbitration.
Q: More or less 1400 Ees of the company staged a
mass walk‐out, allegedly without anybody leading
them as it was a simultaneous, immediate and
unanimous group action and decision, to protest
the non‐payment of their salaries and wages. The
Minister of Labor and Employment who found the
strike to be illegal granted the clearance to
terminate the employment of those who were
instigators in the illegal strike. Was the decision of
the Minister of Employment in granting the
clearance correct?
A: No, a mere finding of the illegality of a strike
should not be automatically followed by wholesale
dismissal of the strikers from their employment.
While it is true that administrative agencies
exercising quasi‐judicial functions are free from the
rigidities of procedure, it is equally well‐settled that
avoidance of technicalities of law or procedure in
ascertaining objectively the facts in each case
should not, however, cause denial of due process.
(Bacus v. Ople, G.R. No. L‐56856, Oct. 23, 1984)
Q: 2 days after the union struck, the SLE ordered
the striking workers to return to work within 24
hours. But the striking union failed to return to
work and instead they continued their pickets. As
a result, violence erupted in the picket lines. The
service bus ferrying non‐striking workers was
stoned causing injuries to its passengers. Threats,
defamation, illegal detention, and physical injuries
also occurred. The company was directed to
accept back all striking workers, except the union
officers, shop stewards, and those with pending
criminal charges. Was the SLE correct in not
including the union officers, shop stewards and
those with pending criminal charges in the return‐
to‐work order?
A: No, to exclude union officers, shop stewards and
those with pending criminal charges in the directive
to the company to accept back the striking workers
without first determining whether they knowingly
committed illegal acts would be tantamount to
dismissal without due process of law. (Telefunken
Semiconductors Ees Union‐FFW v. SLE, G.R. No.
122743 & 127215, Dec. 12, 1997)
(2)Waiver of Illegality of Strike
Q: When is there a waiver of the illegality of a
strike by the employer?
170
A: When an employer accedes to the peaceful
settlement brokered by the NLRC by agreeing to
accept all employees who had not yet returned to
work, it waives the issue of the illegality of the
strike. (Reformist Union v. NLRC, G.R. No.
120482,Jan. 27, 1997)
j.Injunctions
Q: What is an injunction?
A: It is an order or a writ that commands a person
to do or not to do a particular act. It may be a
positive (mandatory) or a negative (prohibitory)
command.
(1)Requisites for Labor Injunctions
Q: May the court or quasi‐judicial entity issue any
injunction during strikes/lockouts?
A: GR: No court or entity shall enjoin any picketing,
strike or lockout, or any labor dispute.
XPN:
1. When prohibited or unlawful acts are
being or about to be committed that will
cause grave or irreparable damage to the
complaining party. (Art. 218[e])
2. On the ground of national interest
3. The SLE or the NLRC may seek the
assistance of law enforcement agencies to
ensure compliance with this provision as
well as with such orders as he may issue
to enforce the same (Art. 263[g])
(2)Innocent Bystander Rule
Q: What must an “innocent by‐stander” satisfy
before a court may enjoin a labor strike?
A: The innocent by stander must show:
1.
2.
Compliance with the grounds specified in
Rule 58 of the Rules of Court, and
That it is entirely different from, without
any connection whatsoever to, either
party to the dispute and, therefore, its
interests are totally foreign to the context
thereof. (MSF Tire & Rubber v. CA, G.R.
128632, Aug. 5, 1999)
Q: May the RTC take cognizance of the complaint
where the same is but an incident of a labor
dispute?
rd
A: No, where the subject matter of the 3 party
claim is but an incident of the labor case, it is a
matter beyond the jurisdiction of the RTC, such
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
courts have no jurisdiction to act on labor cases or
various incidents arising therefrom, including the
execution of decisions, awards or orders.
A party, by filing its 3rd party claim with the deputy
sheriff, it submitted itself to the jurisdiction of the
NLRC acting through the LA.
The broad powers granted to the LA and to the
NLRC by Art. 217, 218 and 224 of the LC can only be
interpreted as vesting in them jurisdiction over
incidents arising from, in connection with or
relating to labor disputes, as the controversy under
consideration, to the exclusion of the regular
courts. The RTC, being a co‐equal body of the NLRC,
has no jurisdiction to issue any restraining order or
injunction to enjoin the execution of any decision of
the latter. (Deltaventures v. Cabato, G.R. No.
118216, Mar. 9, 2000)
Q: The employer filed with the RTC a complaint for
damages with preliminary mandatory injunction
against the union, the main purpose of which is to
dispense the picketing of the members of the
union. The union filed a motion to dismiss on the
ground of lack of jurisdiction. The RTC denied the
motion to dismiss and enjoined the picketing, it
said that mere allegations of Er‐Ee relationship
does not automatically deprive the court of its
jurisdiction and even the subsequent filing of
charges of ULP, as an afterthought, does not
deprive it of its jurisdiction. Was the issuance by
the RTC of the injunction proper?
A: No, the concerted action taken by the members
of the union in picketing the premises of the
department store, no matter how illegal, cannot be
regarded as acts not arising from a labor dispute
over which the RTCs may exercise jurisdiction.
(Samahang Manggagawa ng Liberty Commercial v.
Pimentel, G.R. No. L‐78621, Dec. 2, 1987)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
171
UST GOLDEN NOTES 2011
H. PROCEDURE AND JURISDICTION
8.
Wage distortion disputes in unorganized
establishments not voluntarily settled by
the parties pursuant to RA 6727
9. Enforcement of compromise agreements
when there is non‐compliance by any of
the parties pursuant to Art. 227 of the
Labor Code (LC), as amended; and
10. Other cases as may be provided by law
1.LABOR ARBITER
a.Jurisdiction
Q: What is the distinction between the jurisdiction
of the labor arbiter (LA) and the National Labor
Relations Commission (NLRC)?
A:
1.
2.
3.
The NLRC has exclusive appellate
jurisdiction on all cases decided by the LA.
The NLRC does not have original
jurisdiction on the cases over which the
LA have original and exclusive jurisdiction.
The NLRC cannot have appellate
jurisdiction if a claim does not fall within
the exclusive original jurisdiction of the
LA.
Q: What is the nature of jurisdiction of labor
arbiters (LAs)?
A: It is original and exclusive. LAs have no appellate
jurisdiction.
Q: What are the cases falling under the jurisdiction
of labor arbiters (LAs)?
A: Exclusive and original jurisdiction to hear and
decide the following cases involving all workers:
1.
2.
3.
4.
5.
6.
7.
172
ULP cases
Termination disputes
If accompanied with a claim for
reinstatement, those that workers file
involving wages, rates of pay, hours of
work and other terms and conditions of
employment
Claims for actual, moral, exemplary and
other forms of damages arising from Er‐
Ee relations
Cases arising from any violation of Art.
264, including questions involving the
legality of strikes and lockouts;
Except
claims
for
Employment
Compensation, Social Security, Philhealth
and maternity benefits, all other claims
arising from Er‐Ee relations, including
those of persons in domestic or
household service, involving an amount
exceeding P5000 regardless of whether
accompanied
with
a
claim
for
reinstatement
Monetary claims of overseas contract
workers arising from Er‐Ee relations under
the Migrant Worker’s Act of 1995 as
amended by RA 10022
Note: Although the provision speaks of exclusive and
original jurisdiction of LAs, the cases enumerated may
instead be submitted to a voluntary arbitrator by
agreement of the parties under Art. 262 of the LC. The
law prefers voluntary over compulsory arbitration.
Q: What is the nature of the cases which the labor
arbiter (LA) may resolve?
A: The cases that an LA can hear and decide are
employment related. Where no Er‐Ee relationship
exists between the parties and no issue is involved
which may be resolved by reference to the LC,
other labor statutes, or any collective bargaining
agreement, it is the RTC that has jurisdiction.
(Lapanday Agricultural Dev’t. Corp v. CA, G.R. No.
112139, Jan.31, 2000)
The LA has jurisdiction over controversies involving
Ers and Ees only if there is a “reasonable causal
connection” between the claim asserted and the Er‐
Ee relations. Absent such link, the complaint is
cognizable by the regular court. (Eviota v. CA, G.R.
No. 152121, July 29, 2003)
Q: Do labor arbiters exercise
jurisdiction with the NLRC?
concurrent
A: Yes, with respect to contempt cases.
Q: What are the cases referred to grievance
machinery and voluntary arbitration?
A: Disputes arising from the:
1.
2.
Interpretation or implementation of the
CBA
Interpretation or enforcement of
company personnel policies
Q: What is the extent of the jurisdiction of the
labor arbiter (LA) if there are unresolved matters
arising from the interpretation of the CBA?
A:
GR: LAs have no jurisdiction over unresolved or
unsettled grievances arising from the
interpretation or implementation of the CBA
and those arising from the interpretation or
enforcement of company personnel policies.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
XPN: Actual termination disputes
Note: Where the dispute is just in the interpretation,
implementation or enforcement stage of the
termination, it may be referred to the grievance
machinery set up by the CBA or by voluntary
arbitration. Where there was already actual
termination, i.e., violation of rights, it is already
cognizable by the LA. (Maneja v. NLRC, G.R. No.
124013, June 5, 1998)
Q: Does the use of the word “may” in the
provisions of the Grievance Procedure allow the
alternative of submitting the case before the labor
arbiter (LA)?
A: Yes. The use of the word “may” shows the
intention of the parties to reserve the right to
submit the illegal termination dispute to the
jurisdiction of the LA, rather than to a voluntary
arbitrator. Petitioner validly exercised his option to
submit his case to a LA when he filed his complaint
before the proper government agency. In other
words, the CA is correct in holding that voluntary
abitration is mandatory in character if there is a
specific agreement between the parties to that
effect. It must be stressed however that, in the case
at bar, the use of the word “may” shows the
intention of the parties to reserve the right of
recourse to LAs. (Vivero v. CA, G.R. No. 138938,
Oct.24, 2000)
Q: What are the cases which do not fall under the
jurisdiction of the labor arbiters (LA)?
A: LAs have no jurisdiction over the ff:
1.
2.
3.
4.
5.
6.
Foreign governments (JUSMAG‐Phils. v.
NLRC, G.R. No. 108813, Dec. 15, 1994)
Int’l agencies (Lasco v. NLRC, G.R. Nos.
109095‐109107, Feb. 23, 1995)
Intra‐corporate disputes which fall under
P.D. 902‐A and now falls under the
jurisdiction of the regular courts pursuant
to the new Securities Regulation Code
(Nacpil v. IBC, G.R. No. 144767, Mar. 21,
2002)
Executing
money
claims
against
government (Dept of Agriculture v. NLRC,
G.R. No. 104269, Nov. 11, 1993)
Cases involving GOCCs with original
charters which are governed by civil
service law, rules or regulations (Art. IX‐B,
Sec.2, No.1, 1987 Constitution)
Local water district (Tanjay Water District
v. Gabaton, April 17, 1989) except where
NLRC jurisdiction is invoked (Zamboanga
City Water District v. Buat, G.R. No.
104389, May 27, 1994)
7. The aggregate money claim does not
exceed P5000 and without claim for
reinstatement (Rajah Humabon Hotel, Inc.
v. Trajano, G.R. Nos. 100222‐23, Sep.14,
1993)
8. Claim of employee (Ee) for cash prize
under the Innovation Program of the
company, although arising from Er‐Ee
relationship, is one requiring application
of general civil law on contracts which is
within the jurisdiction of the regular
courts (SMC v. NLRC, G.R. No. 80774, May
31, 1988)
9. Cause of action based on quasi‐delict or
tort which has no reasonable connection
with any of the claims enumerated in
Art.217 of the LC (Ocheda v. CA, G.R. No.
85517, Oct. 16, 1992)
10. Complaint arising from violation of
training agreement (Singapore Airlines v.
Pano, G.R. No. L‐47739, June 22, 1983)
Q: FASAP, the sole and exclusive bargaining
representative of the flight attendants, flight
stewards and pursers of PAL, and respondent PAL
entered into a CBA incorporating the terms and
conditions of their agreement for the years ‘01‐
‘05. Sec. 144, Part A of the CBA provides that
compulsory retirement shall be 55 for females and
60 for males. They filed an action with the RTC
claiming that the CBA provision is discriminatory
and hence unconstitutional. The RTC issued a TRO.
The appellate court ruled that the RTC has no
jurisdiction over the case at bar. Whether RTC has
jurisdiction over the petitioners' action challenging
the legality of the provisions on the compulsory
retirement age contained in the CBA?
A: Yes. The subject of litigation is incapable of
pecuniary estimation, exclusively cognizable by the
RTC, pursuant to Sec. 19 (1) of BP Blg. 129, as
amended. Being an ordinary civil action, the same is
beyond the jurisdiction of labor tribunals.
Not every controversy or money claim by an
employee (Ee) against the employer (Er) or vice‐
versa is within the exclusive jurisdiction of the LA.
Actions between Ees and Er where the Er‐Ee
relationship is merely incidental and the cause of
action precedes from a different source of
obligation is within the exclusive jurisdiction of the
regular court. Here, the Er‐Ee relationship between
the parties is merely incidental and the cause of
action ultimately arose from different sources of
obligation, i.e., the Constitution and CEDAW.
(Halaguena vs. PAL Incorporated, G.R. No. 172013,
Oct. 2, 2009)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
173
UST GOLDEN NOTES 2011
A:
Q: Who has the exclusive appellate jurisdiction
over all cases decided by Labor Arbiters?
1.
The appeal is perfected:
a. Filed within the reglementary period
provided in Sec. 1 of this Rules
b. Verified by the appellant himself in
accordance with Sec. 4, Rule 7 of the
Rules of Court, as amended
c. In the form of a memorandum of
appeal which shall state the grounds
relied upon and the arguments in
support thereof, the relief prayed
for, and with a statement of the date
the appellant received the appealed
decision, resolution or order
d. In 3 legibly typewritten or printed
copies
e. Accompanied by (i) proof of payment
of the required appeal fee; (ii)
posting of a cash or surety bond as
provided in Sec. 6 of this Rule; (iii) a
certificate of non‐forum shopping;
and (iv) proof of service upon the
other parties.
2.
Mere notice of appeal without complying
with the other requisites aforestated shall
not stop the running of the period for
perfecting an appeal.
A: The NLRC.
Q: What is the effect of perfection of an appeal on
execution?
A: The perfection of an appeal shall stay the
execution of the decision of the Labor Arbiter on
appeal, except execution for reinstatement pending
appeal.
Note: The provision of Art. 223 is clear that an award
by the LA for reinstatement shall be immediately
executor even pending appeal and the posting of a
bond by the employer shall not stay the execution for
reinstatement. (Pioneer Texturizing Corp. v. NLRC, G.R.
No. 118651, Oct. 16, 1997)
b.Effect of self‐executing order of reinstatement on
backwages
Q: May dismissed employees (Ees) collect their
wages during the period between the Labor
Arbiter’s (LA’s) order of reinstatement pending
appeal and the NLRC decision overturning that of
the LA?
A: Yes. Par. 3 of Art. 223 of the Labor Code
provides that the decision of the LA reinstating a
dismissed or separated Ee, insofar as the
reinstatement aspect is concerned, shall
immediately be excutory, pending appeal.
Even if the order of reinstatement of the LA is
reversed on appeal, it is obligatory on the part of
the employer (Er) to reinstate and pay the wages of
the dismissed Ee during the period of appeal until
reversal by the higher court. On the other hand, if
the Ee has been reinstated during the appeal period
and such reinstatement order is reversed with
finality, the Ee is not required to reimburse
whatever salary he received for he is entitled to
such, more so if he actually rendered services
during the period. (Pfizer v. Velasco, G.R. No.
177467, March 9, 2011)
Unless there is a restraining order, it is ministerial
upon the LA to implement the order of
reinstatement and it is mandatory on the Er to
comply therewith. (Garcia v. PAL, G.R. No. 164856,
Jan. 20, 2009)
c.Requirements to perfect appeal to NLRC
Q: How is an appeal from LA to NLRC perfected?
174
Q: Is the posting of an appeal bond required for
the perfection of an appeal from a Labor Arbiter’s
(LA’s) decision involving monetary award?
A: Yes. In case the decision of the LA or the Regional
Director involves a monetary award, an appeal by
the employer may be perfected only upon the
posting of a bond. (Sec.6, Rule VI, NLRC 2005 Rules
of Procedure)
Q: What are the forms of the appeal bond?
A: It shall either be in the form of cash deposit or
surety bond equivalent in amount to the monetary
award, exclusive of damages and attorney's fees.
(Sec. 6, Rule VI, NLRC 2005 Rules of Procedure)
Q: Who may issue a surety bond?
A: It shall be issued by a reputable bonding
company duly accredited by the Commission or the
SC, and shall be accompanied by original or certified
true copies of:
1.
A joint declaration under oath by the Er,
his counsel, and the bonding company,
attesting that the bond posted is genuine,
and shall be in effect until final disposition
of the case.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
2.
3.
4.
5.
6.
7.
8.
An indemnity agreement between the Er‐
appellant and bonding company;
Proof of security deposit or collateral
securing the bond: provided, that a check
shall not be considered as an acceptable
security;
A certificate of authority from the
Insurance Commission;
Certificate of registration from the SEC;
Certificate of authority to transact surety
business from the Office of the President;
Certificate of accreditation and authority
from the SC; and
A notarized board resolution or
secretary's certificate from the bonding
company
showing
its
authorized
signatories and their specimen signatures.
(Sec. 6, Rule VI, NLRC 2005 Rules of
Procedure)
Note: The appellant shall furnish the appellee with a
certified true copy of the said surety bond with all the
above‐mentioned supporting documents.
Q: What is the period within which a cash or
surety bond shall be valid and effective?
A: From the date of deposit or posting, until the
case is finally decided, resolved or terminated, or
the award satisfied. This condition shall be deemed
incorporated in the terms and conditions of the
surety bond, and shall be binding on the appellants
and the bonding company. (Sec. 6, Rule VI, NLRC
2005 Rules of Procedure)
Q: What is the effect if the bond is verified by the
NLRC to be irregular or not genuine?
A: The Commission shall cause the immediate
dismissal of the appeal, and censure or cite in
contempt the responsible parties and their
counsels, or subject them to reasonable fine or
penalty. (Sec.6, Rule VI, NLRC 2005 Rules of
Procedure)
Note: The appellee shall verify the regularity and
genuineness of the bond and immediately report any
irregularity to the NLRC.
Q: May the bond be reduced?
Note: The mere filing of a motion to reduce bond
without complying with the requisites in the preceding
paragraphs shall not stop the running of the period to
perfect an appeal (Sec. 6, Rule VI, NLRC 2005 Rules of
Procedure).
Q: Company "A", within the reglementary
period, appealed the decision of a Labor Arbiter
directing the reinstatement of an Ee and
awarding backwages. However, A's cash bond
was filed beyond the ten day period. Should the
NLRC entertain the appeal? Why?
A: No, the NLRC should not entertain the appeal, as
the same was not perfected for failure to file a
bond. In ABA vs. NLRC, G.R. No.122627, July 18,
1999, the SC ruled: "An appeal bond is
necessary...the appeal may be perfected only
upon the posting of cash or surety bond issued
by a reputable bonding company duly accredited
by the Commission in the amount equivalent to the
monetary award in the judgment appealed from."
(2001 Bar Question)
Q: Is a motion for reconsideration (MR) of the
NLRC decision required before certiorari may be
availed of?
A: Yes. A MR is required to enable NLRC to correct
its mistakes. If no MR is filed, NLRC’s decision
becomes final and executory.
Q: What is the remedy in case of denial of the MR?
A: If the motion is denied, the aggrieved party may
file a petition for certiorari not later than 60 days
from notice of the judgment, order or resolution. In
case a motion for reconsideration or new trial is
timely filed, whether such motion is required or
not, the 60 day period shall be counted from notice
of the denial of said motion. No extension of time
to file the petition shall be granted except for
compelling reason and in no case exceeding 15
days. (Sec. 4, Rule 65, Rules of Court.)
Q: What is the effect if no service of summons was
made?
A: In the absence of service of summons or a valid
waiver thereof, the hearings and judgment
rendered by the labor arbiter is null and void.
A:
GR: No.
Q: What is compulsory arbitration?
XPN: On meritorious grounds, and only upon the
posting of a bond in a reasonable amount in
relation to the monetary award.
A: The process of settlement of labor disputes by a
government agency which has the authority to
investigate and make an award binding on all the
parties.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
175
UST GOLDEN NOTES 2011
Q: Can the Labor Arbiter (LA) conduct compulsory
arbitration?
A: Yes. Under the Labor Code, it is the LA who is
clothed with the authority to conduct compulsory
arbitration on cases involving termination disputes
[Art.217, P.D. 442, as amended]. (PAL v. NLRC, G.R.
No. 55159, Dec. 22, 1989)
Q: What are the rules on venue of filing cases?
2.NATIONAL LABOR RELATIONS COMMISSION
(NLRC)
Q: What is the NLRC?
A: It is an administrative body with quasi‐judicial
functions and the principal government agency that
hears and decides labor‐management disputes; it is
attached to the DOLE solely for program and policy
coordination only.
A:
1.
All cases which the Labor Arbiters (LAs)
have authority to decide may be filed in
the Regional Arbitration Branch (RAB)
having jurisdiction over the workplace of
the complainant /petitioner.
Q: How are the powers and functions of the NLRC
allocated?
A:
1.
Note: Workplace is understood to be the
place or locality where the employee (Ee) is
regularly assigned when the cause of action
arose. It shall include the place where the Ee
is supposed to report back after a temporary
detail, assignment or travel.
In case of field Ees, as well as ambulant or
itinerant workers, their workplace is where
they are”
a. Regularly assigned
b. Supposed to regularly receive their
salaries and wages
c. Receive their work instructions from
d. Reporting the results of their
assignment to their employers (Er)
2.
Where 2 or more RABs have jurisdiction
over the workplace, the first to acquire
jurisdiction shall exclude others.
3.
Improper venue when not objected to
before filing of position papers shall be
deemed waived.
4.
Venue may be changed by written
agreement of the parties or when the
NLRC or the LA so orders, upon motion by
the proper party in meritorious cases.
5.
For Overseas Contract Workers where the
complainant resides or where the
principal office of the respondent Er is
located, at the option of the complainant.
Note: The Rules of Procedure on Venue is
merely permissive, allowing a different
venue when the interest of substantial
justice demands a different one. (Dayag v.
Canizares, GR. No. 124193, Mar. 6, 1998)
176
2.
En Banc
a. Promulgating rules and regulations
and governing the hearings and
disposition of cases before any of its
divisions and regional branches.
b. Formulating policies affecting its
administration and operations.
c. On temporary or emergency basis, to
allow cases within the jurisdiction of
any division to be heard and decided
by any other division whose docket
allows the additional workload and
such transfer will not expose litigants
to unnecessary additional expense.
Division (8 Divisions with 3 members)
a. Adjudicatory;
b. All other powers, functions and
duties;
c. Exclusive appellate jurisdiction over
cases
within
their
respective
territorial jurisdiction.
Q: Does an individual
adjudicatory power?
Commissioner
have
A: No. The law lodges the adjudicatory power on
each of the eight divisions, not on the individual
commissioners nor on the whole commission. The
“division” is a legal entity, not the person who sits
in it. Hence, an individual commissioner has no
adjudicatory power, although of course, he can
concur or dissent in deciding a case.
a.Jurisdictions
Q: What are the two kinds of jurisdiction of the
NLRC?
A:
1.
Exclusive Original Jurisdiction
a. Certified labor disputes causing or
likely to cause a strike or lockout in
an industry indispensable to national
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
2.
interest, certified to it by the
Secretary of Labor or the President
for compulsory arbitration
b. Injunction in ordinary labor disputes
to enjoin or restrain any actual or
threatened commission of any or all
prohibited or unlawful acts or to
require the performance of a
particular act in any labor dispute
which, if not restrained or performed
forthwith, may cause grave or
irreparable damage to any party
c. Injunction in strikes or lockouts
under Art. 264 of the Labor Code (LC)
d. Contempt cases
Exclusive Appellate Jurisdiction
a. All cases decided by the Labor
Arbiters under Art. 217(b) of the LC
and Sec. 10 of R.A.8042 (Migrant
Worker’s Act); and
b. Cases decided by the Regional
Offices of DOLE in the exercise of its
adjudicatory function under Art.129
of the LC over monetary claims of
workers amounting to not more than
P5000 and not accompanied by claim
for reinstatement.
Q: What is the composition of the NLRC?
valid judgment.
Note: Whenever the required membership in
a division is not complete and the
concurrence of the Commissioners to arrive
at judgment or resolution cannot be
obtained, the Chairman shall designate such
number of additional Commissioners from
the other divisions as may be necessary.
2.
Note: The conclusion of a division on any
case submitted to it for decision should be
reached in consultation before the case is
assigned to a member for the writing of the
opinion.
3.
Chairman
23 Members
a. 8 members each, shall be chosen only
from among the nominees of the
workers
and
employers
(Er)
organization respectively.
b. The Chairman and the 7 remaining
members shall come from the public
sector, with the latter to be chosen
preferably
from
among
the
incumbent Labor Arbiters.
c. Upon assumption into office, the
members nominated by the workers
and Ers organization shall divest
themselves of any affiliation with or
interest in the federation or
association to which they belong.
Note: There is no need for the Commission on
Appointments to confirm the positions in the NLRC.
Such requirement has no constitutional basis. (Calderon
v. Carale, GR. No. 91636, April 23, 1992)
Q: How does the NLRC adjudicate cases?
A:
1.
The NLRC adjudicates cases by division. A
concurrence of 2 votes is needed for a
A certification that a consultation has been
conducted, signed by the presiding
commissioner of the division, shall be
issued (copy attached to the record of case
and served upon the parties).
Q: What are the qualifications of the Chairman and
the Commissioners?
A:
1.
2.
A:
1.
2.
It shall be mandatory for the division to
meet for purposes of consultation.
3.
4.
Member of the Philippine Bar
Engaged in the practice of law in the
Philippines for at least 15 years
At least 5 years experience or exposure in
handling labor management relations
Preferably a resident of the region where
he is to hold office
Q: What are the qualifications of an Executive
Labor Arbiter?
A:
1.
2.
3.
Member of the Philippine Bar
Engaged in the practice of law in the
Philippines for at least 10 years
At least 5 years experience or exposure in
handling labor management relations
Q: What is the term of office of the Chairman,
Commissioners and Labor Arbiters (LAs)?
A: They shall hold office during good behavior until
they reach the age of 65 unless removed for causes
as provided by law or become incapacitated to
discharge the function of his office.
Provided, however, that the President of the
Philippines may extend the services of the
Commissioners and LAs up to the maximum age of
70 years upon the recommendation of the
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
177
UST GOLDEN NOTES 2011
Commission en banc.
Q: Some disgruntled members of Bantay
Labor Union filed with the Regional Office of the
DOLE a written complaint against their union
officers for mismanagement of union funds. The
Regional Director (RD) did not rule in the
complainants'
favor.
Not
satisfied,
the
complainants elevated the RD’s decision to the
NLRC. The union officers moved to dismiss on the
ground of lack of jurisdiction. Are the union officers
correct? Why?
A: Yes, the union officers are correct in claiming that
the NLRC has no jurisdiction over the appealed
ruling of the RD. in Barles v. Bitonio, G.R. No.
120220, June 16, 1999, the SC ruled:
“Appellate authority over decisions of the RD
involving examination of union accounts is expressly
conferred on the Bureau of Labor Relations (BLR)
under the Rule of Procedure on Mediation‐
Arbitration.”
Sec. 4. Jurisdiction of the BLR — (b) The BLR shall
exercise appellate jurisdiction over all cases
originating from the RD involving complaints for
examination of union books of accounts.
The language of the law is categorical. Any
additional explanation on the matter is
superfluous." (2001 Bar Question)
Q: Company "A" and Union "B" could not resolve
their negotiations for a new CBA.
After
conciliation proceedings b e f o r e t h e NCMB
proved futile, B went on strike. Violence during
the strike prompted A to file charges against
striker‐members of B for their illegal acts. The
SLE assumed jurisdiction, referred the strike to
the NLRC and issued a return‐to‐work order.
The NLRC directed the parties to submit their
respective position papers and documentary
evidence. At the initial hearing before the NLRC,
the parties agreed to submit the case for
resolution after the submission of the position
papers and evidence.
Subsequently, the NLRC issued an arbitral award
resolving the disputed provisions of the CBA and
ordered the dismissal of certain strikers for
having knowingly committed illegal acts during
the strike. The dismissed employees elevated
their dismissal to the CA claiming that they
were deprived of their right to due process and
that the affidavits submitted by A were self‐
serving and of no probative value. Should the
appeal prosper? State the reason(s) for your
answer clearly.
178
A: The appeal should not prosper. The SC, in many
cases, has ruled that decisions made by the NLRC
may be based on position papers. In the question, it
is stated that the parties agreed to submit the case
for resolution after the submission of position
papers and evidence. Given this fact, the striker‐
members of B cannot now complain that they were
denied due process. They are in estoppel. After
voluntarily submitting a case and encountering an
adverse decision on the merits, it is too late for the
loser to question the jurisdiction or power of the
court. A party cannot adopt a posture of double
dealing. (Marquez vs. Secretary of Labor, G.R. No.
80685, March 16, 1989). (2001 Bar Question)
Q: Is barangay conciliation available in labor
cases?
A: No. Labor cases are not subject to barangay
Conciliation since ordinary rules of procedure are
merely suppletory in character vis‐à‐vis labor
disputes which are primarily governed by labor
laws. (Montoya v. Escayo, G.R. No. 82211‐12, Mar.
21, 1989)
Q: What are the powers of the NLRC?
A:
1.
2.
3.
4.
5.
6.
Rule making power – promulgation of
rules and regulations:
a. Governing disposition of cases
before any of its division/regional
offices.
b. Pertaining to its internal functions
c. As may be necessary to carry out the
purposes of the Labor Code.
Power to issue compulsory processes
(administer oaths, summon parties, issue
subpoenas)
Power to investigate matters and hear
disputes
within
its
jurisdiction
(adjudicatory power – original and
appellate jurisdiction over cases)
Contempt power
Ocular Inspection
Power to issue injunctions and restraining
orders
b.Effect of NLRC reversal of Labor Arbiter’s order of
reinstatement
Q: May dismissed employees (Ees) collect their
wages during the period between the Labor
Arbiter’s (LA’s) order of reinstatement pending
appeal and the NLRC decision overturning that of
the LA?
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
A: Yes. Par. 3 of Art. 223 of the Labor Code
provides that the decision of the LA reinstating a
dismissed or separated Ee, insofar as the
reinstatement aspect is concerned, shall
immediately be excutory, pending appeal.
Even if the order of reinstatement of the LA is
reversed on appeal, it is obligatory on the part of
the employer (Er) to reinstate and pay the wages of
the dismissed Ee during the period of appeal until
reversal by the higher court. On the other hand, if
the Ee has been reinstated during the appeal period
and such reinstatement order is reversed with
finality, the Ee is not required to reimburse
whatever salary he received for he is entitled to
such, more so if he actually rendered services
during the period. (Pfizer v. Velasco, G.R. No.
177467, March 9, 2011)
appeal or petition for certiorari. (Ginete v. Sunrise
Manning Agency, G.R. No. 142023, June 21, 2001)
Q:
What is an injunction or a temporary
restraining order (TRO)?
A: Orders which may require, forbid, or stop the
doing of an act. The power of the NLRC to enjoin or
restrain the commission of any or all prohibited or
unlawful acts under Art. 218 of Labor Code can only
be exercised in a labor disputes.
Note: A restraining order is generally regarded as an
order to maintain the subject of controversy in status
quo until the hearing of an application for a temporary
injunction. (BF Homes v. Reyes, G.R. No. L‐30690
November 19, 1982)
Q: Who may issue a TRO?
c.Requirements to perfect appeal to Court of
Appeals
A:
1.
2.
3.
Q: Is judicial review of the NLRC’s decision
available?
A: Yes, through petitions for certiorari (Rule 65)
which should be initially filed with the CA in strict
observance of the doctrine on the hierarchy of
courts as the appropriate forum for the relief
desired. The CA is procedurally equipped to resolve
unclear or ambiguous factual finding, aside from
the increased number of its component divisions.
(St. Martin Funeral Home v. NLRC, G.R. No. 130866,
Sep. 16, 1998)
Q: Within what period should the petition for
certiorari be filed with the Court of Appeals?
Note: Art. 218 of the Labor Code limits the grant of
injunctive power to the “NLRC”. The LA is excluded
statutorily. Hence, no NLRC Rules can grant him that
power.
Q: What is the procedure for the issuance of
restraining order/injunction?
A:
1.
2.
A: Under Section 4, Rule 65 (as amended by A.M.
No. 00‐2‐03‐SC) of the Rules of Civil Procedure, the
petition must be filed within sixty (60) days from
notice of the judgment or from notice of the
resolution denying the petitioner’s motion for
reconsideration.
This amendment is effective
September 1, 2000, but being curative may be given
retroactive application. (Narzoles v. NLRC, G.R. No.
141959, Sep. 29, 2000)
3.
The period within which a petition for certiorari
against a decision of the NLRC may be filed should
be computed from the date counsel of record of
the party receives a copy of the decision or
resolution, and not from the date the party himself
receives a copy thereof. Article 224 of the Labor
Code, which requires that copies of final decisions,
orders or awards be furnished not only the party’s
counsel of record but also the party himself applies
to the execution thereof and not to the filing of an
President (Art.263[g])
Secretary of Labor (Art. 263[g])
NLRC (Art.218)
4.
Filing of a verified petition
Hearing after due and personal notice has
been served in such manner as the
Commission shall direct to:
a. All known persons against whom
relief is sought
b. Also the Chief Executive or other
public officials of the province or
city within which the unlawful acts
have
been
threatened
or
commercial charged with the duty
to protect the complainant’s
property.
Reception at the hearing of the
testimonies of the witnesses with
opportunity for cross‐examination, in
support of the allegations of the
complaint made under oath as well as
testimony in opposition thereto.
Finding of fact of the Commission to the
effect that:
a. Prohibited or unlawful acts have
been threatened and will be
committed, or have been and will be
continued unless restrained, but no
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
179
UST GOLDEN NOTES 2011
b.
injunction or TRO shall be issued on
account of any threat, prohibited or
unlawful act, except against the
persons, association or organization
making the threat or committing the
prohibited or unlawful act or actually
authorizing or ratifying the same
after actual knowledge thereof.
The substantial and irreparable
injury to the complainant’s property.
Note: Irreparable Injury ‐an injury
which
cannot
be
adequately
compensated in damages due to the
nature of the injury itself or the nature
of the right or property injured or
when there exist no pecuniary
standard for the measurement of
damages.
c.
d.
That as to each item of relief to be
granted, greater injury will be
inflicted upon the complainant by
the denial of the relief than will be
inflicted upon the defendants by the
granting of the relief.
That complainant has no adequate
remedy at law
Note: Adequate remedy – one that
affords relief with reference to the
matter in controversy and which is
appropriate
to
the
particular
circumstances of the case if the
remedy is specifically provided by law.
(PAL v. NLRC, GR. No. 120567, Mar. 20,
1998)
e.
5.
That public officers charged with the
duty to protect complainant’s
property are unable or unwilling to
furnish adequate protection.
Posting of a bond.
3.BUREAU OF LABOR RELATIONS (BLR)‐MED
ARBITERS
a.Jurisdiction
Q: What is covered by the BLR’s jurisdiction and
functions?
A: The BLR no longer handles “all labor
management disputes”; rather its functions and
jurisdiction are largely confined to:
1. Union matters
2. Collective bargaining registry and
3. Labor education.
Note: Jurisdiction over labor management problems or
disputes is also exercised by other offices:
1. DOLE Regional Offices
2. Office of the Secretary of Labor
3. NLRC
180
4.
5.
6.
7.
8.
9.
POEA
OWWA
SSS‐ECC
RTWPB
NWPC
Regular
courts
disputes.
over
intra‐corporate
Q: Who is a mediator‐arbiter?
A: An officer in the Regional Office or Bureau
authorized to hear, conciliate and decide
representation cases or assist in the disposition of
intra or inter‐union disputes.
Q: What kinds of cases fall within BLR’s
jurisdiction?
A: The BLR has original and exclusive jurisdiction
over:
1.
2.
3.
Inter‐union disputes
Intra‐union disputes
Other related labor relations disputes
Q: What is the coverage of inter/intra‐union
disputes?
A: They shall include:
1.
Conduct or nullification of election of
union and workers’ association officers
2. Audit/accounts examination of union or
workers’ association funds
3. Deregistration of collective bargaining
agreements (CBAs)
4. Validity/invalidity of union affiliation or
disaffiliation
5. Validity/invalidity of acceptance/ non‐
acceptance for union membership
6. Validity/invalidity of voluntary recognition
7. Opposition to application for union or
CBA registration
8. Violations of or disagreements over any
provision of the constitution and by‐laws
of union or workers’ association
9. Disagreements over chartering or
registration of labor organizations or the
registration of CBAs;
10. Violations of the rights and conditions of
membership in a union or workers’
association;
11. Violations of the rights of legitimate labor
organizations (LLO), except interpretation
of CBAs;
12. Validity/invalidity
of
impeachment/
expulsion/suspension or any disciplinary
action meted against any officer and
member, including those arising from
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
non‐compliance with the reportorial
requirements under Rule V;
13. Such other disputes or conflicts involving
the rights to self‐organization, union
membership and CB –
a. Between and among LLO and
b. Between and among members of a
union or workers’ association. (Sec.1,
Rule XI, Book V, IRR as amended by
D.O. 40‐F‐03)
Q: What is covered by the phrase “other related
labor relations disputes”?
A:
1.
2.
3.
Any conflict between:
a. A labor union and the employer (Er); or
b. A labor union and a group that is not a
labor organization (LO); or
c. A labor union and an individual who is
not a member of such union
Cancellation of registration of unions and
worker’s associations filed by individual/s
other than its members, or group that is
not a LO.
A petition for Interpleader involving labor
relations. (Sec. 2, Rule XI, Book V, IRR as
amended by D.O. 40‐F‐03)
Q: Who may file a complaint or petition involving
intra/inter‐union disputes?
A: A legitimate labor organization or its members.
(Sec. 5, Rule XI, D.O. 40‐03)
Q: What if the issue involves the entire
membership?
A: The complaint must be signed by at least 30% of
the entire membership of the union.
5.
6.
7.
8.
Lack of jurisdiction of the investigating body;
action for the administrative agency is
patently illegal, arbitrary and oppressive;
Issue is purely a question of law;
Where the administrative agency had
already prejudged the case; and
Where the administrative agency was
practically given the opportunity to act on
the case but it did not.
Q: May a decision in an inter/intra‐union dispute
be appealed from?
A: Yes.
Q: Within what period may an appeal to a decision
of the med‐arbiter or regional director in an
inter/intra‐union dispute be filed?
A: The decision may be appealed by any of the
parties within 10 days from receipt thereof. (Sec.
16, Rule XI, D.O. 40‐03)
Q: To whom is the decision appealable?
A: The decision is appealable to the:
1. Bureau of Labor Relations (BLR): if the
case originated from the Med‐Arbiter or
Regional Director;
2. SLE: if the case originated from the BLR.
Q: What is the extent of the Bureau of Labor
Relations (BLRs) authority?
A:
1.
It may hold a referendum election among
the members of a union for the purpose
of determining whether or not they desire
to be affiliated with a federation.
2.
But the BLR has no authority to:
Q: What if the issue involves a member only?
a.
A: Only the affected member may file the
complaint. (Sec. 5, Rule XI, D.O. 40‐03)
b.
Note:
GR: Redress must first be sought within the union
itself in accordance with its constitution and by‐
laws
XPNs:
1. Futility of intra‐union remedies;
2. Improper expulsion procedure;
3. Undue delay in appeal as to constitute
substantial injustice;
4. The action is for damages;
Order a referendum among union
members to decide whether to expel
or suspend union officers.
Forward a case to the Trade Union
Congress of the Philippines for
arbitration and decision.
Q: Is Katarungang Pambarangay applicable to
labor disputes?
A: No. Art. 226 of the LC grants original and
exclusive jurisdiction over the conciliation and
mediation of disputes grievances or problems in the
regional offices of the DOLE. It is the Bureau and its
divisions (now the NCMB) and not the Barangay
Lupong Tagapamayapa which are vested by law
with original and exclusive authority to conduct
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
181
UST GOLDEN NOTES 2011
conciliation and mediation proceedings on labor
controversies before endorsement to the
appropriate labor arbiter for adjudication.
3.
Note: Conciliation‐Mediation is now done by the
NCMB, not Bureau Labor Relations.
4.
Q: What are the administrative functions of the
Bureau Labor Relations (BLR)?
A:
1.
2.
3.
4.
Regulation of the labor unions
Keeping the registry of labor unions
Maintenance of a file of the CBA
Maintenance of a file of all settlements or
final decisions of the SC, CA, NLRC and
other agencies on labor disputes
Q: What are the effects of filing or pendency of
inter/intra‐union dispute and other labor relations
disputes?
4.NATIONAL CONCILIATION AND MEDIAITON
BOARD (NCMB)
Q: What are the alternative modes of settlement
of labor dispute under Art. 211 of the Labor Code?
A:
1.
2.
3.
A:
1.
2.
The rights relationships and obligations of
the party‐litigants against each other and
other parties‐in‐interest prior to the
institution of the petition shall continue
to remain during the pendency of the
petition and until the date of the decision
rendered therein. Thereafter, the rights,
relationships and obligations of the party‐
litigants against each other and other
parties‐in‐interest shall be governed by
the decision ordered.
The filing or pendency of any inter/intra
union disputes is not a prejudicial
question to any petition for certification
election, hence it shall not be a ground
for the dismissal of a petition for
certification of election or suspension of
the proceedings for the certification of
election. (Sec. 3, Rule XI, DO 40‐03)
Q: State the rules on appeal in intra/inter‐union
disputes.
A:
1.
2.
182
Formal Requirements
a. Under oath
b. Consist of a memorandum of appeal.
c. Based on either of the following
grounds:
i.
Grave abuse of discretion
ii. Gross violation of the rules
iii. With supporting arguments and
evidence
Period ‐ within 10 days from receipt of
decision.
To whom appealable
a. BLR – if the case originated from the
Med‐Arbiter/Regional Director.
b. SLE – if the case originated from the
BLR.
Where Filed ‐ Regional Office or to the
BLR, where the complaint originated
(records are transmitted to the BLR or
Sec. within 24 hours from the receipt of
the memorandum of appeal). (Rule XI,
D.O. 40‐03)
Voluntary Arbitration
Conciliation
Mediation
a.Conciliation vs. Mediation
Q: What is Conciliaton and Mediation?
A:
CONCILIATION
Is conceived of as a
mild
form
of
intervention by a
neutral third party
The
conciliator‐
Mediator, relying on
his
persuasive
expertise, who takes
an active role in
assisting parties by
trying
to
keep
disputants
talking,
facilitating
other
procedural niceties,
carrying
messages
back
and
forth
between the parties,
and generally being a
good fellow who tries
to keep things calm
and forward‐looking
in a tense situation
It is the process
where a disinterested
3rd party meets with
management
and
labor,
at
their
request or otherwise,
during
a
labor
dispute
or
in
MEDIATION
Is a mild intervention
by a neutral third
party
The
conciliator‐
mediator, whereby
he starts advising the
parties or offering
solutions
or
alternatives to the
problems with the
end in view of
assisting
them
towards voluntarily
reaching their own
mutually acceptable
settlement of the
dispute
It is when a 3rd party
studies each side of
the dispute then
makes proposals for
the disputants to
consider.
The
mediator
cannot
make an award nor
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
collective bargaining
conferences, and by
cooling tempers, aids
in
reaching
an
agreement
render a decision
Conciliation ‐ is conceived of as a mild form of
intervention by a neutral third party, the
Conciliator‐Mediator, relying on his persuasive
expertise, who takes an active role in assisting
parties by trying to keep disputants talking,
facilitating other procedural niceties, carrying
messages back and forth between the parties,
and generally being a good fellow who tries to
keep things calm and forward‐looking in a tense
situation.
rd
It is the process where a disinterested 3 party
meets with management and labor, at their request
or otherwise, during a labor dispute or in collective
bargaining conferences, and by cooling tempers,
aids in reaching an agreement.
Mediation ‐ is a mild intervention by a neutral third
party, the Conciliator‐Mediator, whereby he starts
advising the parties or offering solutions or
alternatives to the problems with the end in view of
assisting them towards voluntarily reaching their
own mutually acceptable settlement of the dispute.
rd
It is when a 3 party studies each side of the
dispute then makes proposals for the disputants to
consider. The mediator cannot make an award nor
render a decision.
Q: What is the Legal Basis of Conciliation and
Mediation?
A: Article 13, Section 3, of our New Constitution
provides:
“The State shall promote xxx the preferential
use of voluntary modes of setting disputes
including conciliation and shall ensure mutual
compliance by the parties thereof in order to
foster industrial peace.”
Note: A similar provision is echoed in the
Declaration of Policy under Article 211 (a) of the
Labor Code, as amended.
Q: Who can avail of Conciliation and Mediation
Services of the NCMB?
A: Any party to a labor dispute, either the union
or management, may seek the assistance
of NCMB or any of its Regional Branches by
means of formal request for conciliation and
preventive mediation. Depending on the nature
of the problem, a request may be filed in the
form of consultation, notice of preventive
mediation or notice of strike/lockout.
Q: Where can a request for Conciliation and
Mediation be filed?
A: An informal or formal request for conciliation
and mediation service can be filed at the NCMB
Central Office or any of its Regional Branches.
There are at present fourteen (14) regional
offices of the NCMB which are strategically
located all over the country for the convenient
use of prospective clients.
b.Preventive Mediation
Q: What is Preventive Mediation Cases?
A: Refer to the potential labor disputes which
are the subject of a formal or informal request
for conciliation and mediation assistance sought
by either or both parties or upon the initiative of
the NCMB to avoid the occurrence of actual labor
disputes.
Q: What are the valid issues for a notice of
strike / lockout or preventive mediation case?
A: A notice of strike or lockout maybe filed on
ground of unfair labor practice acts, gross
violation of the CBA, or deadlock in collective
bargaining. A complaint on any of the above
ground must be specified in the NCMB Form or
the proper form used in the filing of complaint.
In case of preventive mediation, any issue
may be brought before the NCMB Central Office
or its regional offices for conciliation and possible
settlement through a letter. This method is more
preferable than a notice of strike/lockout
because of the non‐adversarial atmosphere that
pervades during the conciliation conferences.
Q: What advantage can be derived from
conciliation and mediation services?
A: Conciliation and mediation is non‐
litigious/non‐adversarial, less expensive, and
expeditious. Under this informal set‐up, the
parties find it more expedient to fully ventilate
their respective positions without running
around with legal technicalities and, in the
course thereof, afford them a wider latitude of
possible approaches to the problem.
Q: Are the parties bound by the agreement
entered into by them?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
183
UST GOLDEN NOTES 2011
A: Certainly, the parties are bound to honor any
agreement entered into by them. It must be
pointed out that such an agreement came into
existence as a result of painstaking efforts among
the union, management, and the Conciliator‐
Mediator. Therefore, it is only logical to assume
that the Conciliator assigned to the case has to
follow up and monitor the implementation of the
agreement.
Q: Is conciliation and mediation service still
possible during actual strike or lockout?
A: Definitely, it is possible to subject an actual
strike or actual lockout to continuing conciliation
and mediation services. In fact, it is at this
critical stage that such conciliation and mediation
services by fully given a chance to work out
possible solution to the labor dispute. With the
ability of the Conciliator‐Mediator to put the
parties at ease and place them at a cooperative
mood, the final solutions of all the issues
involved may yet be effected and settled.
Q: When the dispute has already been assumed
or certified to the NLRC, is it also possible to
remand the same to conciliation and mediation
services?
A: Yes, the parties are not precluded from
availing the services of an NCMB Conciliator‐
Mediator as the duty to bargain collectively
subsists until the final resolution of all issues
involved in the dispute. Conciliation is so
pervasive in application that, prior to a
compulsory arbitration award, the parties are
encouraged to continue to exhaust all possible
avenues of mutually resolving their dispute,
especially through conciliation and mediation
services.
Q: What benefit can the parties have in
appearing during conciliation conferences?
A: Generally speaking, any party appearing
during scheduled conciliation conferences has
the advantage of presenting its position on the
labor controversy. The issue raised in the
complaint can be better ventilated with the
presence of the concerned parties. Moreover,
the parties can observe a norm of conduct
usually followed in like forum.
A: It is the submission of a dispute to an impartial
person for determination on the basis of evidence
and arguments of the parties. The arbiter’s decision
or award is enforceable upon the disputants. It may
be voluntary (by agreement) or compulsory
(required by statutory provision). (Luzon Dev’t Bank
v. Ass’n of Luzon Dev’t Bank Employees, G.R. No.
120319, Oct. 6, 1995)
Q: Can the court fix resort to voluntary arbitration
(VA)?
A: Resort to VA dispute, should not be fixed by the
court but by the parties relying on their strengths
and resources.
Q: Who are the parties to labor relations cases?
A:
1.
2.
3.
Note: Employer and Ees are active parties while the
public and the State are passive parties. (Poquiz, 2006,
p.3)
Q: What is the concept of tripartism?
A: It is the representation of 3 sectors. These are:
1. The public or the government
2. The employers
3. The workers
– in policy‐making bodies of the gov’t.
Q: Can workers insist that they be represented in
the policy making in the company?
A: No. Such kind of representation in the policy‐
making bodies of private enterprises is not
ordained, not even by the Constitution. What is
provided for is workers participation in policy and
decision‐making process directly affecting their
rights, benefits, and welfare.
5.DOLE REGIONAL DIRECTORS
a.Small Money Claims
Q: What is the rule on the recovery of simple
money claims?
A:
1.
c.Artbitration
Q: What is arbitration?
184
Employees organization
Management
The public
2.
The aggregate money claim of each
employee (Ee) or househelper (HH) does
not exceed P5,000.
The claim is presented by an Ee or person
employed in the domestic or household
service or HH.
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
3.
4.
The claim arises from Er‐Ee relationship.
The
claimant
does
not
seek
reinstatement.
Note: In the absence of any of the ff. requisites, it is
the labor arbiter (LA) who shall have the jurisdiction
over the claims arising from Er‐Ee relations, except
claims for Ees compensation, SSS, Philhealth, and
maternity benefits, pursuant to Art.217 of the Labor
Code.
The proceedings before the Regional Office shall be
summary and non‐litigious in nature.
Q: What is the adjudicatory power of the Regional
Director (RD)?
and other
labor laws
Enforcement
of labor
legislation in
general
Proceeding is
an offshoot of
routine
inspections
A: The RD or any of his duly authorized hearing
officer is empowered through summary proceeding
and after due notice, to hear and decide cases
involving recovery of wages and other monetary
claims and benefits, including legal interests.
Q: An airline which flies both the international and
domestic routes requested the SLE to approve the
policy that all female flight attendants upon
reaching age 40 with at least 15 years of service
shall be compulsorily retired; however, flight
attendants who have reached age 40 but have not
worked for 15 years will be allowed to continue
working in order to qualify for retirement benefits,
but in no case will the extension exceed 4 years.
Does the SLE have the authority to approve the
policy?
A: Yes. Art.132 (d) of the Labor Code provides that
the SLE shall establish standards that will ensure the
safety and health of women employees including
the authority to determine appropriate minimum
age and other standards for retirement or
termination in special occupations such as those of
flight attendants and the like. (1998 Bar Question)
Q: What is the difference between the power of
Secretary of Labor and Employment (SLE), Regional
Director (RD) and Labor Arbiter (LA)?
Initiated by
sworn complaints
filed by any
interested party
Jurisdictional
req’ts:
1) Complaint
arises from Er‐Ee
relationship
No
jurisdictional
req’ts
Appealable to
SLE (In case
compliance
order is issued
by Regional
Office)
All other claims
arising from Er‐
Ee relations
LA decides case
within 30
calendar days
after
submission of
the case by the
parties for
decision
1) All other
claims arising
from Er‐Ee
relations
2) Including
those of
persons in
domestic or
household
service
2) Claimant is an
Ee or person
employed in
domestic or
household
service or a HH
3) Complaint
does NOT include
a claim for
reinstatement
3) Involving an
amount
exceeding
P5,000
4) Aggregate
money claim of
EACH claimant
does not exceed
P5,000
4) Whether or
not
accompanied
with a claim for
reinstatement
Appealable to
NLRC
Appealable to
NLRC
6.DOLE SECRETARY
A:
Art. 128
VP and EP of
SLE
Inspection of
establishments
and issuance
of orders to
compel
compliance
with labor
standards,
wage orders
Limited to
monetary claims
a.Visitorial and Enforcement Powers
Art. 129
RD
Art. 217(a)(6)
LA
Adjudication of
Ees claims for
wages and
benefits
LA exercises
original and
exclusive
jurisdiction
Q: What are the 3 kinds of powers of the Secretary
of Labor and Employment (SLE)?
A:
1.
2.
3.
Visitorial powers
Enforcement powers
Appellate or power to review
Q: What constitute visitorial power?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
185
UST GOLDEN NOTES 2011
A:
4.
1.
2.
3.
Access to employer’s records and
premises at any time of the day or night,
whenever work is being undertaken
To copy from said records
Question any employee and investigate
any fact, condition or matter which may
be necessary to determine violations or
which may aid in the enforcement of the
Labor Code and of any labor law, wage
order, or rules and regulation issued
pursuant thereto.
5.
Q: Give 4 instances where the visitorial power of
the SLE may be exercised under the Labor Code.
Require Ers to keep and maintain such
employment records as may be necessary
in aid to the visitorial and enforcement
powers
Conduct hearings within 24 hours to
determine whether:
a. An order for stoppage of work or
suspension of operations shall be
lifted or not; and
b. Er shall pay employees concerned
their salaries in case the violation is
attributable to his fault. (As amended
by RA 7730; Guico v. Secretary, G.R.
No. 131750, Nov.16, 1998)
Q: What are the violations under Art. 128?
A: Power to:
A:
1.
2.
3.
4.
Inspect books of accounts and records of
any person or entity engaged in
recruitment and placement, require it to
submit reports regularly on prescribed
forms and act in violations of any
provisions of the LC on recruitment and
placement. (Art. 37)
Have access to employer’s records and
premises to determine violations of any
provisions of the LC on recruitment and
placement. (Art. 128)
Conduct industrial safety inspections of
establishments. (Art. 165)
Inquire into the financial activities of
legitimate labor organizations (LLO) and
examine their books of accounts upon the
filing of the complaint under oath and
duly supported by the written consent of
at least 20% of the total membership of
the LO concerned.
1.
2.
Obstruct, impede, delay or otherwise
render ineffective the orders of the SLE or
his authorized representatives
Any government employee found guilty
of, or abuse of authority, shall be subject
to administrative investigation and
summary dismissal from service.
Q: What are the limitations to other courts?
A: In relation to enforcement orders issued under
Art. 128, no inferior court or entity shall:
1.
2.
Issue temporary or permanent injunction
or restraining order or
Assume jurisdiction over any case
Q: What are the instances when enforcement
power may not be used?
A:
Q: What is enforcement power?
1.
A: It is the power of the SLE to:
2.
1.
2.
3.
186
Issue compliance orders
Issue writs of execution for the
enforcement of their orders, except in
cases where the employer (Er) contests
the findings of the labor officer and raise
issues supported by documentary proof
which were not considered in the course
of inspection
Order stoppage of work or suspension of
operation when non‐compliance with the
law or implementing rules and regulations
poses grave and imminent danger to
health and safety of workers in the
workplace
3.
Case does not arise from the exercise of
visitorial power
When Er‐Ee relationship ceased to exist at
the time of the inspection
If employer contests the finding of the
Labor Regulation Officer and such
contestable issue is not verifiable in the
normal course of inspection
b.Power to Suspend Effects of Termination‐Art. 277
(b), LC
Q: Does the DOLE Secretary have the power to
suspend the effects of termination?
A: Yes, under Article 277 (b) of the Labor Code, the
Secretary of Labor may suspend the effects of the
termination pending resolution of the dispute in the
event of a prima facie finding by the appropriate
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
official of the Department of Labor and
Employment before whom such dispute is pending
that the termination may cause serious labor
dispute or is in implementation of a mass layoff.
7.VOLUNTARY ARBITRATORS
Q: Who will designate the voluntary arbitrator
(VA)/panel in case the parties fail to select one?
A: It is the NCMB that shall designate the VA/panel
based on the selection procedure provided by the
CBA. (Manila Central Line Free Workers Union v.
Manila Central Line Corp., G.R. No. 109383, June
15, 1998)
a.Submission Agreement
Q: How is arbitration initiated?
A:
1.
2.
Submission agreement – Where the
parties define the disputes to be resolved
Demand notice – Invoking collective
agreement arbitration clause
Q: Who is a voluntary arbitrator (VA)?
Q: May Labor Arbiters (LA) be designated as
voluntary arbitrators (VA)?
A: Yes. There is nothing in the law that prohibits LAs
from also acting as VAs as long as the parties agree
to have him hear and decide their dispute. (Manila
Central Line Free Workers Union v. Manila Central
Line Corp., G.R. No. 109383, June 15, 1998)
Q: What falls under the jurisdiction of Voluntary
Arbitrators (VA)?
A:
1.
2.
3.
4.
Any person accredited by the NCMB as
such
Any person named or designated in the
CBA by the parties to act as their VA
One chosen with or without the
assistance of the NCMB, pursuant to a
selection procedure agreed upon in the
CBA
Any official that may be authorized by the
SLE to act as VA upon the written request
and agreement of the parties to a labor
dispute. (Art. 212 [n])
Q: What are the powers of a voluntary arbitrator?
A: Generally, the arbitrator is expected to decide
only those questions expressly delineated by the
submission agreement.
Nevertheless, the
arbitrator can assume that he has the necessary
power to make a final settlement since arbitration
is the final resort for the adjudication of the
disputes. (Ludo and Luym Corp. v. Saornido, G.R.
No. 140960, Jan. 20, 2003)
Q: What cases are within the jurisdiction of VA?
A: Original and exclusive jurisdiction over:
1.
All unresolved grievances arising from
the:
a. Implementation or interpretation of
the CBA
b. Interpretation or enforcement of
company personnel policies
2.
Wage distortion issues arising from the
application of any wage orders in
organized establishments
3.
Those arising from interpretation and
implementation of productivity incentive
programs under R.A. 6971
4.
Violations of CBA provisions which are not
gross in character are no longer treated as
ULP and shall be resolved as grievances
under the CBA
A:
1.
2.
3.
Hold hearings
Receive evidence
Take whatever action necessary to
resolve the dispute including efforts to
effect a voluntary settlement between
parties. (Art. 262‐A)
Q: How is a voluntary arbitrator (VA)/panel
chosen?
A:
1.
2.
The parties in a CBA shall designate in
advance a VA/panel, preferably from the
listing of qualified VAs duly accredited by
the NCMB, or
Include in the agreement a procedure for
the selection of such VA or panel of VAs,
preferably from the listing of qualified
VAs duly accredited by the NCMB.
(Art.260, par.3)
Note: Gross violation of CBA provisions shall
mean flagrant and/or malicious refusal to
comply with the economic provisions of
such agreement.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
187
UST GOLDEN NOTES 2011
Any other labor disputes upon agreement
by the parties including ULP and
bargaining deadlock. (Art. 262)
A: GR: Decisions of VA are final and executory after
10 calendar days from receipt of the copy of the
award or decision by the parties. (Art. 262‐A)
Q: May the NLRC and DOLE entertain
disputes/grievances/matters under the exclusive
and original jurisdiction of the voluntary
arbitrator?
XPNs:
1. Appeal to the CA via Rule 43 of the Rules
of Court within 15 days from the date of
receipt of VA’s decision. (Luzon Dev’t
Bank v. Ass’n of Luzon Dev’t Bank Ee’s,
G.R. No. 120319, Oct. 6, 1995)
2. If decision of CA is adverse to a party,
appeal to the SC via Rule 45 on pure
questions of law.
5.
A: No. They must immediately dispose and refer the
same to the grievance machinery or voluntary
arbitration provided in the CBA
The parties may choose to submit the dispute to
voluntary arbitration proceedings before or at the
stage of compulsory arbitration proceedings.
Q: What is the effect of the award of voluntary
arbitrator (VA)?
A: The decision or award of the VA acting within the
scope of its authority shall determine the rights of
the parties and their decisions shall have the same
legal effects as judgment of the courts. Such
matters on fact and law are conclusive.
Note: A VA by the nature of her functions acts in quasi‐
judicial capacity. There is no reason why the VA’s
decisions involving interpretation of law should be
beyond the SC’s review. Administrative officials are
presumed to act in accordance with law and yet the SC
will not hesitate to pass upon their work where a
question of law is involved or where a showing of
abuse of authority or discretion in their official acts is
properly raised in petitions for certiorari. (Continental
Marble Corporation v. NLRC, G.R. No. L‐43825, May 9,
1988)
Q: Who has jurisdiction over actual termination
disputes and complaints for illegal dismissal filed
by workers pursuant to the union security clause?
Q: PSSLU had an existing CBA with Sanyo Phils.,
Inc. which contains a union security clause which
provides that: “all members of the union covered
by this agreement must retain their membership
in good standing in the union as condition of his /
her continued employment with the company.”
On account of anti‐union activities, disloyalty and
for joining another union, PSSLU expelled 12
employees (Ees) from the Union. As a result,
PSSLU recommended the dismissal of said Ees
pursuant to the union security clause. Sanyo
approved the recommendation and considered the
said Ees dismissed. Thereafter, the dismissed Ees
filed with the Arbitration Branch of the NLRC a
complaint for illegal dismissal.
A: The Labor Arbiter and not the grievance
machinery.
Does the voluntary arbitrator
jurisdiction over the case?
Q: What is the nature of the power of a voluntary
arbitrator?
A: No, the VA has no jurisdiction over the case.
Although the dismissal of the Ees concerned was
made pursuant to the union security clause
provided in the CBA, there was no dispute
whatsoever between PSSLU and Sanyo as regards
the interpretation or implementation of the said
union security clause. Both PSSLU and Sanyo are
united and have come to an agreement regarding
the dismissal of the Ees concerned. Thus there is
no grievance between the union and management
which could be brought to the grievance machinery.
The dispute is between PSSLU and Sanyo, on the
one hand, and the dismissed union members, on
the other hand. The dispute therefore, does not
Q: Are both the employer and the bargaining
representative of the employees required to go
through the grievance machinery in case a
grievance arises?
A: Yes, because it is but logical, just and equitable
that whoever is aggrieved should initiate
settlement of grievance through the grievance
machinery. To impose compulsory procedure on
employers alone would be oppressive of capital.
A: Arbitrators by the nature of their functions, act
in a quasi‐judicial capacity (BP 129, as amended by
R.A. 9702); where a question of law is involved or
there is abuse of discretion, courts will not hesitate
to pass upon review of their acts.
b.Rule 43, Rules of Court
Q: Are decisions of voluntary arbitrators (VAs)
appealable?
188
(VA)
have
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
involve the interpretation or implementation of a
CBA. (Sanyo Philippines Workers Union‐PSSLU v.
Canizares, G.R. No. 101619, July 8, 1992)
Q: X was employed as telephone operator of
Manila Midtown Hotel. She was dismissed from
her employment for committing the following
violations of offenses subject to disciplinary
actions, namely: falsifying official documents and
culpable carelessness‐negligence or failure to
follow specific instructions or established
procedures. X then filed a complaint for illegal
dismissal with the Arbitration branch of the NLRC.
The Hotel challenged the jurisdiction of the Labor
Arbitrator (LA) on the ground that the case falls
within the jurisdictional ambit of the grievance
procedure and voluntary arbitration under the
CBA.
Does the LA have jurisdiction over the case?
A: Yes, the LA has jurisdiction. The dismissal of X
does not call for the interpretation or enforcement
of company personnel policies but is a termination
dispute which comes under the jurisdiction of the
LA. The dismissal of X is not an unresolved
grievance. Neither does it pertain to interpretation
of company personnel policy. (Maneja v. NLRC, G.R.
No. 124013, June 5, 1998)
Darby’s counsel considered that issue as having
dual aspects and intended in his own mind to
submit only one of those aspects to the VA, if he
did, however, he failed to reflect his thinking and
intent in the arbitration agreement. (Sime Darby
Phils. v. Magsalin, G.R. No. 90426, Dec. 15, 1989)
Q: Apalisok, production chief for RPN Station, was
dismissed due to her alleged hostile, arrogant,
disrespectful, and defiant behavior towards the
Station Manager. She informed RPN that she is
waiving her right to resolve her case through the
grievance machinery as provided in the CBA. The
voluntary arbitrator (VA) resolved the case in the
employees (Ees) favor.
On appeal, the CA ruled in favor of RPN because it
considered the waiver of petitioner to file her
complaint before the grievance machinery as a
relinquishment of her right to avail herself of the
aid of the VA. The CA said that the waiver had the
effect of resolving an otherwise unresolved
grievance, thus the decision of the VA should be
set aside for lack of jurisdiction. Is the ruling of the
CA correct?
A: No. Art. 262 of the Labor Code provides that
upon agreement of the parties, the VA can hear and
decide all other labor disputes.
Q: Sime Darby Salaried Employees (Ees)
Association‐ALU (SDSEA‐ALU) wrote petitioner
Sime Darby Pilipinas (SDP) demanding the
implementation of a performance bonus provision
identical to the one contained in their own CBA
with SDP. Subsequently, SDP called both
respondent SDEA and SDEA‐ALU to a meeting
wherein the former explained that it was unable
to grant the performance bonus. In a conciliation
meeting, both parties agreed to submit their
dispute to voluntary arbitration. Their agreement
to arbitrate stated, among other things, that they
were "submitting the issue of performance bonus
to voluntary arbitration."
Contrary to the finding of the CA, voluntary
arbitration as a mode of settling the dispute was
not forced upon respondents. Both parties indeed
agreed to submit the issue of validity of the
dismissal of petitioner to the jurisdiction of the VA
by the Submission Agreement duly signed by their
respective counsels. The VA had jurisdiction over
the parties’ controversy.
Does the voluntary arbitrator (VA) have the power
to pass upon not only the question of whether to
grant the performance bonus or not but also to
determine the amount thereof?
8.COURT OF APPEALS
A: Yes, in their agreement to arbitrate, the parties
submitted to the VA “the issue of performance
bonus.” The language of the agreement to arbitrate
may be seen to be quite cryptic. There is no
indication at all that the parties to the arbitration
agreement regarded “the issue of performance
bonus” as a two‐tiered issue, only one tier of which
was being submitted to arbitration. Possibly, Sime
The Ees waiver of her option to submit her case to
grievance machinery did not amount to
relinquishing her right to avail herself of voluntary
arbitration. (Apalisok v. RPN, G.R. No. 138094, May
29, 2003)
Q: Is judicial review of the NLRC’s decision
available?
A: Yes, through petitions for certiorari (Rule 65)
which should be initially filed with the CA in strict
observance of the doctrine on the hierarchy of
courts as the appropriate forum for the relief
desired. The CA is procedurally equipped to resolve
unclear or ambiguous factual finding, aside from
the increased number of its component divisions.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
189
UST GOLDEN NOTES 2011
(St. Martin Funeral Home v. NLRC, G.R. No. 130866,
Sep. 16, 1998)
resolution appealed from. (Sea Power Shipping
Enterprises, Inc. v. CA, G.R. No. 138270, June 28,
2001)
Note: Rule 65, Section 1, Rules of Court
Note: Rule 45, Section 1, Rules of Court:
Petition for Certiorari‐‐When any tribunal, board or
officer exercising judicial or quasi‐judicial functions has
acted without or in excess of its or his jurisdiction, or
with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.
The petition shall be accompanied by a certified true
copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn
certification of non‐forum shopping as provided in the
third paragraph of section 3, Rule 46.
Q: Within what period should the petition for
certiorari be filed with the Court of Appeals?
A: Under Section 4, Rule 65 (as amended by A.M.
No. 00‐2‐03‐SC) of the Rules of Civil Procedure, the
petition must be filed within sixty (60) days from
notice of the judgment or from notice of the
resolution denying the petitioner’s motion for
reconsideration.
This amendment is effective
September 1, 2000, but being curative may be given
retroactive application. (Narzoles v. NLRC, G.R. No.
141959, Sep. 29, 2000)
The period within which a petition for certiorari
against a decision of the NLRC may be filed should
be computed from the date counsel of record of
the party receives a copy of the decision or
resolution, and not from the date the party himself
receives a copy thereof. Article 224 of the Labor
Code, which requires that copies of final decisions,
orders or awards be furnished not only the party’s
counsel of record but also the party himself applies
to the execution thereof and not to the filing of an
appeal or petition for certiorari. (Ginete v. Sunrise
Manning Agency, G.R. No. 142023, June 21, 2001)
Filing of petition with Supreme Court.—A party desiring
to appeal by certiorari from a judgment, final order or
resolution
of
the
Court
of
Appeals, the Sandiganbayan, the Court of Tax Appeals,
the Regional Trial Court or other courts, whenever
authorized by law, may file with the Supreme Court a
verified petition for review on certiorari. The petition
may include an application for a writ of preliminary
injunction or other provisional remedies and shall raise
only questions of law, which must be distinctly set
forth. The petitioner may seek the same provisional
remedies by verified motion filed in the same action or
proceeding at any time during its pendency.
Q: Give the policy of the Supreme Court regarding
appeals in labor cases.
A: The Supreme Court is very strict regarding
appeals filed outside the reglementary period for
filing the same. To extend the period of the appeal
is to delay the case, a circumstance which could
give the employer the chance to wear out the
efforts and meager resources of the worker that
the latter is constrained to give up for less than
what is due him. (Firestone Tire and Rubber Co. of
the Philippines v. FirestoneTire and Rubber Co.
Employees Union, G.R. No. 75363, Aug. 4, 1992)
10.PRESCRIPTION OF ACTIONS
Q: Give the rules as regards the prescriptive period
provided for in the Labor Code (LC).
A:
SUBJECT
Offenses penalized
under the LC
ULP
Money Claims
9.SUPREME COURT
Q: How does a party appeal from a judgment, or
final order or resolution, of the Court of Appeals?
All money claims
accruing prior to the
effectivity of the LC
A: A party desiring to appeal may file with the
Supreme Court a verified petition for review on
certiorari under Rule 45 within fifteen (15) days
from notice of the judgment, final order or
Workmen’s
Compensation claims
accruing prior to the
190
PRESCRIPTIVE PERIOD
3 years
One (1) year from
accrual of such ULP;
otherwise forever
barred (Art. 290)
3 years from the time
the cause of action
accrued; otherwise
forever barred
Within one (1) year
from the date of
effectivity, in
accordance with IRR;
otherwise, they shall
forever be barred
Dec. 31, 1974 shall be
filed not later than Mar.
31, 1975 before the
LABOR LAW TEAM:
ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
effectivity of the LC and
between Nov. 1, 1974‐
Dec. 31, 1974
Illegal Dismissal Cases
appropriate regional
offices of the
Department of Labor.
(Art. 291)
4 years. It commences
to run from the date of
formal dismissal.
(Mendoza v. NLRC, G.R.
No. 122481, Mar. 5,
1998)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
Facultad de Derecho Civil
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
191