Labor Standards (Finals)
Classroom Recitations
AUG. 29, 2017, TUE — EH 401
1. What is primary purpose of conciliation and mediation?
For the parties to avoid litigation.
2. Why must we avoid litigation?
Compromise is encouraged.
3. Who presides over conciliation and mediation conferences?
Labor Arbiter.
4. Why him? Why not simply delegate the task to a messenger?
The Labor Arbiter must approve the compromise. If he does not himself preside,
he may not know if the agreement was contrary to laws, morals, public policy,
etc. As a lawyer, the Labor Arbiter understands the law and what is best for the
parties.
5. If there is no Labor Arbiter, who presides over the conciliation and mediation
conference?
Labor Arbitration Associate, any other NLRC personnel with sufficient training
and knowledge on conciliation and mediation, authorized by the Chairman of
a duly authorized personnel of the DOLE.
6. If the parties cannot compromise, does it give the Labor Arbiter the authority
to dismiss?
No. The Labor Arbiter must take up other matters. While the conciliation and
mediation conference is important, the parties must still be allowed to try their
case if they cannot compromise. (Art. 233 of Labor Code <- Atty will ask for you
to look)
7. Besides amicably settling the case upon a fair compromise, what other matters
will the Labor Arbiter take up during the conciliation and mediation
conference?
1. Determining the real parties in interest
2. Determining the necessity of amending the complaint and including all
causes of action
3. Defining and simplifying the issue in the case
4. Entering into admissions or stipulations of facts
5. Threshing out all other preliminary matters
8. Who are the real parties in interest?
The NLRC Rules do not define “real parties in interest”. You must refer to the
Rules of Civil Procedure: One who stands to benefit or be injured by the
judgment in the suit (Rule III, Sec. 2).
9. Why is it important to determine the real parties in interest?
If the parties are not the real parties in interest, no judgment may validly be
rendered by the Labor Arbiter.
Defining and simplifying the issue in the case. Example: complainant claims
that he was not paid overtime pay for the entire month of December 2016.
Labor Arbiter will ask the respondent about his opinion. Employer claims he
does not have to pay OT because complainant is a field personnel. What are
the issues: (1) Whether or not complainant is a field personnel, and (2)
Whether or not complainant may ask for OT.
Determining the necessity of amending the complaint and including all causes
of action: Employees may be uneducated or not aware of all their rights. They
must be given a chance to amend their complaint. Any misspellings are minor
mistakes that may be changed during the conciliation and mediation
conference.
Entering into admissions or stipulations of facts: Employer claims complainant
is an independent contractor. This becomes a material issue, which will form
part of the position paper.
10. Does the NLRC Rules of Procedure define a position paper? Does it mention it?
Yes. Sec 12 of the NLRC Rules of Procedure. (READ).
11. If all matters are taken up and no compromise is reached, Labor Arbiter will
terminate the conciliation and mediation conference. He will ask the parties
to submit their position papers. How many days do they have?
10 calendar days.
12. Do the rules allow the filing of a reply?
Yes.
13. When the party receives a reply, may they file a rejoinder?
No. This is discretionary on the part of the Labor Arbiter.
14. Do the rules allow the filing of a rebuttal?
No.
15. In other words, what are the pleadings recognized by the NLRC Rules of
Procedure?
1. Position papers of parties.
2. Reply,
3. Complaint.
Besides this, no other documents may be filed.
16. After all the papers are filed, what will the Labor Arbiter render?
A decision.
17. What is the remedy of the aggrieved party from the decision of the Labor
Arbiter involving money claims?
Aggrieved party must file an appeal before the National Labor Relations
Commission.
18. Which office does the Labor Arbiter belong to?
A t t y. J M M
The NLRC
19. What about with the Department of Labor and Employment?
No, just the NLRC.
20. How many days does the aggrieved party have? Does it include Saturday,
Sunday and holidays?
10 calendar days.
Discussion about Feast of Sacrifice with Macmac . Remember the rules on
holiday pay.
21. How to perfect an appeal from a judgment involving a monetary award?
Posting a bond.
22. If the aggrieved party is a worker who wants a higher award, must he file a
bond?
No.
23. What is the purpose of the bond?
Guarantee the satisfaction of the judgement award, in case the appeal fails.
24. Who posts the bond?
The employer
25. What kinds of bonds are acceptable?
Cash or surety.
26. In the case of the latter, who issues those?
Recognized, reputable bonding company.
27. Name a bonding company in Cebu.
Visayan Surety Company, owner by UC’s owner. FGU Insurance. Malayan
Insurance Company.
28. How much must the surety bond be?
Equivalent to the monetary award.
29. Including damages and attorney’s fees?
Excluding.
Atty: It’s not illegal to post a higher bond, but you must remember how to
compute the bond.
30. If both parties appeal, how do we refer to them in the caption?
Complainant-appellant and respondent-appellant.
31. If only the respondent appeals?
Complainant-appellee and respondent-appellant.
AUG. 29, 2017, TUE — EH 405
1. An employee with a money claim of 30K with reinstatement, who has
jurisdiction?
- Labor Arbiter
2. Does intra/inter-corporate dispute need to undergo the proceedings of SEnA?
- Yes, not expressly prohibited under exceptions per DO 151-16
3. Cite other exceptions of the scope and coverage of SEnA
- See Sec. 3 of DO 151-16
4. What is a complaint?
- It is a pleading alleging a cause of action
5. What are the elements of cause of action?
- Right of plaintiff (employee)
- Obligation on the part of the respondent (employer)
- Violation of such right
- Injury caused on the plaintiff due to such violation
- Damage caused on the plaintiff
6. Where is the venue?
Regional Arbitration Branch having jurisdiction over the workplace of the
complainant or petitioner
7. Exception to the venue.
- OFW claims (their choice, see 2011 NLRC Procedure)
8. Can motion to dismiss be entertained by LA?
- Yes.
9. On what grounds?
- State 5 grounds (LIRPF)
10. In the complaint, why is there a need/why is it important to indicate the name
of respondent and address?
- For service of summons.
11. What is the purpose of summons?
- To acquire jurisdiction over the respondent.
12. How about in the part of the complainant?
- Jurisdiction is acquired upon the filing of the complaint.
13. What happens to the motion with improper venue?
- Dismissed.
14. What is res judicata?
- Barred by prior judgment.
15. Prescription (period) for money claims.
Alone we can do so little, together we can do so much.
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Labor Standards (Finals)
Classroom Recitations
- 3 years.
16. After three years, what will happen if a motion will still be filed?
- File a motion to dismiss on the ground of prescription.
17. Aside from these 5 grounds, are there any other grounds?
- None, exclusive.
18. Who presides the mandatory conciliation-mediation?
- LA
19. Are there exceptions?
Yes, in a place where there is no LA:
Labor Arbitration Associate
Any other personnel of NLRC with sufficient training on mediation-conciliation
Duly authorized personnel of DOLE pursuant to any MOA for said purpose
20. How many NLRC do we have?
- 1 but with 8 divisions
21. Is conciliation-mediation before the LA mandatory?
- Yes.
22. What is its purpose?
- To explore possible amicable settlement
23. What law authorizes settlement agreement?
- Art. 2028 Civil Code
24. Is it found in LC?
- No, only settlement agreement (Art. 233 [227]).
25. Does the settlement need to be approved by LA?
- Yes, otherwise, it is not valid.
26. Does it need to be in writing?
- Yes, for enforceability.
27. If no compromise agreement is agreed upon by the parties in conciliationmediation, shall the LA terminate the proceedings?
- No, Section 9 of 2011 NLRC Rules of Procedure.
28. Who are real parties-in-interest?
- Those parties benefited or injured if a judgment will be rendered.
29. Why the need to determine the real parties-in-interest?
- For LA to arrive at a valid judgment.
30. What are the other matters discussed in Section 8(a) of the Rules of Procedure?
- Enumerate the rest, found in the 2011 NLRC Rules of Procedure.
31. Afterwards, what will the LA direct the parties to do?
- Submit position papers.
32. Does the LA render decision afterwards?
- No, reply position paper needs to be submitted, if applicable.
33. So the LA renders a decision, what is the remedy of the aggrieved party?
- Appeal to NLRC.
34. How many days?
- Within 10 calendar days from the receipt thereof.
35. If the judgment involves money award, what does the employer need to do to
perfect the appeal?
- Post a bond, equivalent to the judgment award, excluding the damages
(moral, exemplary, etc) and attorney’s fees.
AUG. 30, 2017, WED — EH 401
1. What are the requisites to appeal if with monetary award?
(Sec. 4, NLRC Rules of Procedure)
(1) filed within the reglementary period provided in Section 1 of this Rule;
(2) verified by the appellant himself/herself in accordance with Section 4, Rule
7 of the Rules of Court, as amended;
(3) 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, award or order;
(4) in three (3) legibly typewritten or printed copies; and
(5) accompanied by:
(i) proof of payment of the required appeal fee and legal research fee,
(ii) posting of a cash or surety bond as provided in Section 6 of this
Rule, and
(iii) proof of service upon the other parties.
2. How much is the appeal fee? The legal research fee?
P500. P20.
3. If the last calendar day is a Saturday, Sunday or holiday, when will the appeal
be filed?
The following working day.
4. If today I receive the decision (Aug 30, Wednesday), when is my last day to
appeal?
September 11, 2017.
5. Why did you include the Saturday, Sunday and holidays when counting?
6.
7.
8.
9.
A t t y. J M M
Because it falls within the definition of calendar days. However, you cannot file
your appeal during that day.
Does the Memorandum of appeal need to be made under oath?
Yes.
How is this done?
Sworn by the appellant before those authorized by law to administer oaths.
Can you swear before the President?
Yes
Does the Memorandum of Appeal need to be accompanied by a certification
against forum shopping?
No. A memorandum of appeal is not an initiatory pleading.
Atty: An example of an initiatory pleading is a complaint. A complaint
requires a certification against forum shopping.
10. What is a certification against forum shopping?
To certify that the case has not been filed before other courts.
11. What is a cash bond? How much should it be?
Cash bond is a bond in legal tender. It must be equivalent to the monetary
award decided by the Labor Arbiter.
12. If the Labor Arbiter awards the employee with damages and attorney’s fees,
how much is the cash bond?
Cash bond is limited to the judgement award, excluding damages and
attorney’s fees.
13. Where do you secure a surety bond?
Surety company.
14. In Cebu, are you aware of any surety company?
Visayan Surety Company. FDU Insurance Company. Malayan Insurance
Company. The employer just needs to go to their office and pay monthly
premiums.
15. How many NLRCs are there under the Labor Code?
Only 1
16. How many divisions are there in the NLRC?
8
17. Where is the 7th divisions situated in Visayas?
In Cebu City.
18. Where is the 8th division situated in Mindanao?
Cagayan de Oro.
19. Where is the NLRC Arbitration Branch in Cebu?
Osmena Blvd, across Anita’s Bakeshop.
20. How many commissioners are there in each division?
3 members in each division, one of which is the Chairman. The Chairman is
from the government sector, one member is from the labor sector, while the
third is from the private sector. They must be lawyers.
21. How many members in the NLRC?
8*3=24
22. What is the relationship of the NLRC and the DOLE?
The latter is merely an attached agency. Art. 220.
23. Who heads the DOLE?
Secretary
24. Who heads the NLRC?
Commissioner
25. Between the two, who is the alter ego of the President?
Secretary
26. The rank and status of the Commissioner of the NLRC is equivalent to who?
Justices of the Court of Appeals
27. The rank and status of the LA of the NLRC is equivalent to who?
Judges of RTC
28. Grounds to appeal?
(a) If there is prima facie evidence of abuse of discretion on the part of the
Labor Arbiter or Regional Director;
(b) If the decision, award or order was secured through fraud or coercion,
including graft and corruption
(c) If made purely on questions of law; and/or
(d) If serious errors in the findings of facts are raised which, if not corrected,
would cause grave or irreparable damage or injury to the appellant
— appeal must be based on the ff grounds otherwise it will be dismissed
29. If complainant appeals?
Complainant-appellant
30. If respondent appeals?
Respondent-appellant
31. What is the remedy from the decision of NLRC?
MR
32. Should MR be under oath?
NO
33. Ground for MR?
Alone we can do so little, together we can do so much.
Page 2 of 4
Labor Standards (Finals)
Classroom Recitations
Patent/palpable error
34. If no MR filed before NLRC?
Becomes final and executory 10 days after receipt of decision
35. If file MR then Denied, what happens to the judgement?
Becomes final and executory 10 days from receipt of the decision denying the
MR
36. What articles of the LC are related to Contracting?
Art. 106 - 109
37. What DO’s are related?
DO 174, s 2017
DO 19, s 1993
DO 150, s 2016
AUG. 30, 2017, WED — EH 408
Gabunada
1. If the labor dispute involves an inter/intra union dispute, does it need to go
through a mandatory conciliation and mediation?
Yes
Inter union — between and among legitimate labor union
Intra union — union and its members
2. Why?
It involves an issue of labor and management relation so it must go through a
mandatory… not one of those excluded
3. Can you mention labor disputes that are expressly EXCLUDED?
1. Interpretation and implementation of Collecting Bargaining Agreement
2. Interpretation and implementation of company personnel policies of labor
strike or lockouts
^ both are subject to the grievance machinery
3. Notice of Strike or Lockout — NCMB
Other than those, the law is very clear. ALL ISSUES of LABOR DISPUTES
must under go mandatory conciliation and mediation. LA or any agency
including DOLE cannot entertain these cases, unless there is a
REFERRAL or ENDORSEMENT. And a referral or endorsement is only
given when the parties failed to have amicably settle.
4. Let us assume there is no possibility of settlement, what SENA did was to make
a referral or endorsement, so LA has jurisdiction, do we have an existing rules
of procedure for the LA?
2011 NLRC Rules of Procedure
5. Aside from NLRC, if there is absence of provision, what other rules do you
apply?
Rules of Court — Rules of Civil Procedure
6. Arbitration branch of the NLRC. Is the NLRC under the DOLE?
No.
7. Who heads the DOLE?
Secretary of DOLE
8. Who heads NLRC?
Chairman
9. Is the chairman same as the secretary?
No
10. Who among them is the alter ego of the president?
Secretary
11. What is the relation of NLRC and DOLE?
NLRC is merely an agency ATTACHED to the DOLE.
Mata
12. How is an action initiated in the Arbitration Branch of the NLRC?
By filing a complaint
13. What is a complaint?
A pleading alleging the cause or causes of action.
14. Does the NLRC Rules define what is a complaint?
Yes. Rule 3, Sec. 1.
15. Is a complaint a pleading or not?
Yes
16. What are the elements of a cause of action?
ROVID
1. Right of plaintiff (employee)
2. Obligation on the part of the respondent (employer)
3. Violation of such right
4. Injury caused on the plaintiff due to such violation
5. Damage caused on the plaintiff
17. Under labor law, is a worker entitled to be paid at least a minimum wage?
Yes.
18. If the employer does not pay, is there a violation on the right of the worker?
Yes.
19. If there is a violation, does the worker suffer an injury?
A t t y. J M M
Yes.
20. As a result of the injury suffered, is the worker entitled to damages?
Yes.
21. What are written in the complaint?
Names and addresses of all complainants or petitioners and respondents must
be stated in the complaint or petition.
It shall be signed under oath by the complainant or petitioner, with a
declaration of non-forum shopping
22. Example of cause of action in the complaint
Nonpayment of wages, nonpayment of benefits — overtime pay, holiday pay,
nightshift differential
When you file complaint in the arbitration branch, that complaint will be
raffled by the executive labor arbiter and will be assigned to a labor
arbiter. And the LA assigned will now cause the issuance of summons
and notify the respondent.
23. How many conciliation and mediation conferences are
2
24. What is the purpose of service of summons to respondent?
Acquire jurisdiction over the person of the respondent
25. In the complaint, how do you describe the parties?
Complainant vs Respondent
26. Does the rules of procedure allow motion to dismiss the complaint? On what
grounds?
1. Lack of Jurisdiction;
2. Improper venue;
3. Res judicata;
4. Prescription; and
5. Forum shopping
27. Prescription — what law governs prescription of action?
Labor Code and Civil Code
28. In so far as money claims, what is the period of prescription?
3 years reckoned from the date the action was brought
29. When is the day an action may be brought?
When the claim becomes a legal ____
Yu Vega
30. Res judicata, what is that?
Barred by prior judgement.
31. Can you illustrate?
32. So if a worker has filed and a complaint and obtained a favorable judgment,
can he file another case if he wants a higher damages?
No. Res Judicata.
33. What is the evil sought to be avoided?
Relitigation of the case
34. Lack of Jurisdiction over the subject matter — who defines?
Conferred by law.
35. Can it be subject to agreement of the parties?
No.
36. So when we talk about the jurisdiction of the Regional Director of DOLE, what
law?
Labor Code
37. Jurisdiction of the regular court?
Rules of Court. BP 129.
38. Improper venue — do we have rules on venue?
NLRC Rules of Procedure
39. Venue of money claim
Regional arbitration branch where workplace is located
40. Define workplace
Workplace shall be understood as the place or locality where the employee is
regularly assigned at the time the cause of action arose. It shall include the
place where the employee is supposed to report back after a temporary detail,
assignment, or travel. In case of field employees, as well as ambulant or
itinerant workers, their workplace is where they are regularly assigned, or
where they are supposed to regularly receive their salaries and wages or work
instructions from, and report the results of their assignment to, their
employers.
Place where the worker is regularly assigned.
41. Can I go to Mindanao and file my complaint there?
No.
42. NLRC Rules says venue of the workplace of the worker where he is regularly
assigned. What about if he is an OFW, where is the venue?
May be filed before the Regional Arbitration Branch having jurisdiction over the
place where the complainant resides or where the principal office of any of
the respondents is situated, at the option of the complainant.
43. At whose option?
Complainant/employee
Alone we can do so little, together we can do so much.
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Labor Standards (Finals)
Classroom Recitations
44. For whose convenience?
Convenience of the parties
If I were to claim a case against USC, I would file a case where on the
proper venue.
Veloso
45. Another ground is Forum shopping. What is forum-shopping?
A practice of filing action to different courts having the same cause of action,
parties, issues, etc.
46. Plural of forum
Fora
47. If LA grants the motion to dismiss, what is the remedy of the aggrieved party?
Appeal to the NLRC
48. An order dismissing the complaint— is it a final order or an interlocutory order?
A final order. Cannot be changed.
49. If there is no ground to appeal, then there is no motion to … who will preside
of the conciliation mediation conference?
LA
50. Personally or through proxy? Why?
Personally. He is knowledgable of the
51. Is an LA a lawyer or not?
Yes.
52. If no LA assigned, who will preside over the conciliation mediation
conference?
LA associate or other
53. Can a DOLE personnel reside?
Yes
54. Does he need to be accredited?
55. Can an NLRC personnel preside? Yung mag staff.
Yes
56. No need of training?
There is a need of training.
57. What is the primary purpose of conciliation mediation conference?
To attain amicable settlement
58. Does the law encourage? What law?
Yes. Civil Code
Kong
59. If there is an agreement is done to amicable settle, does it need to be in
writing or verbal?
In writing.
60. Aside from in writing, what else?
Approved by the LA
61. Why does it need approval?
To make sure that the agreement is not contrary to law, morals, public policy
62. What is the result if it is approved? Would it put an end to the litigation?
Yes.
63. If consent is vitiated, what is the status of the contract?
Voidable.
64. In most instances, parties cannot arrive at a compromise settlement. Does that
authorize the LA to terminate if there is no settlement?
No. Proceed to other matters that must be taken up during conciliation
mediation conference.
65. What are those other matters?
1. Determine real parties in interest
2. determining the necessity of amending the complaint and including all
causes of action;
3. defining and simplifying the issues in the case;
4. entering into admissions or stipulations of facts; and
5. threshing out all other preliminary matters.
66. In a Money claim, who are the parties in interest?
employee and employer
67. Define a real party in interest
benefited or injured of the outcome of the case
68. If the parties are NOT the real parties in interest, can the court render a valid
judgement?
No.
69. If you were representing the worker of mcdonald, who is the respondent? Is it
mcdonalds?
No.
70. How would you know who is the person running mcdonalds?
Go to the SEC
71. Do they have office in Cebu?
Extension office in V Rama.
72. If the respondent establishment is a single proprietor, what agency?
A t t y. J M M
DTI.
73. If partnership, which agency?
SEC.
If not registered, sue all parties.
74. What else?
Necessity of amending the complaint
Calibugan
75. Necessity of amending the complaint, what’s that?
If there are parties not included, you may amend the complaint and raise
during the conciliation mediation conference. Not after because it will require
the approval of the LA.
Or if you forgot the cause of action, you may amend the complaint.
76. Next?
Defining the issues involved
77. If underpaid, how do you formulate the issue?
WON
78. So when the CMC is terminated, he will not direct the parties to file their ___?
Position Paper
79. Read the contents of the position paper
Rule 5, Sec. 12.
80. What should accompany a position paper?
Accompanied with evidence
81. If evidence is oral, what should it be accompanied?
Affidavit. Sworn statement
82. If evidence is documents, should it be accompanied?
Yes. Documentary evidence.
83. If video?
Object evidence.
84. Should the position paper be verified or under oath?
Yes.
85. Should it be accompanied with certification of forum shopping?
No. Only initiatory pleading should be accompanied. So no need in a position
paper.
86. How many days to file a position a paper?
10 days.
87. Once a party is served a paper, can he answer
Reply position paper
88. Can there be a rejoinder reply?
No. But you can file one if you ask permission.
89. After rejoinder, could there be a rebuttal?
No.
90. To summarize, what are the authorized pleadings?
1. Complaint
2. Position Paper
3. Reply
91. So you expect LA to render a ___?
Decision — for admin bodies
Judgement — for court
92. A decision is rendered by the LA, there is an aggrieved party, what is the
remedy?
Appeal to the NLRC
93. How many NLRCs do we have?
1.
94. How many divisions are there?
8
95. How many members
3
96. Total number?
24
97. Presided by?
Chairman
98. IF you’re handling a case that originates from Mindanao, what NLRC division
do you go?
8th division
99. If visayas?
7th division
100.Does the NLRC en banc have a power to render a decision?
No. Can only exercise administrative functions. Only rule-making functions.
Cannot try, hear and decide a case. Its only the NLRC division that can hear, try
and decide a labor dispute. It is unlike the SC.
Alone we can do so little, together we can do so much.
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