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ER-EE RELATION (test to determine)

1. ER reserves the right to control not only the end to be achieve but also the
means to be used in reaching such end LVN PICTURES vs. PHILIPPINE
MUSICIAN GUILD
2. 4 fold test to determine ER-EE Relationship
a. Selection and engagement of employee
b. Payment of wages
c. Power of dismissal
d. Power to control employees conduct (must important)
3. PAKAIO
a. workers are considered workers as long as ER exercise control over
the means by which worker are to perform their work ZAMUDIO vs.
NLRC
4. LABOR ONLY CONTRACTOR(prohibited)
a. the person supplying workers to an employer does not have
substantial capital or investment in the form of tools, equipment,
machineries, work premises, among others, and the workers recruited
b. and placed by such person are performing activities which are directly
related to the principal business of such employer
Note:
In such cases, the person or intermediary shall be considered merely
as an agent of the employer who shall be responsible to the workers in the
same manner and extent as if the latter were directly employed by him
5. INDEPENDENT CONTRACTOR/JOB CONTRACTING (legitimate or allowed
by law)
a. 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
b. The contractor has substantial capital or investment in the form of
tools, equipment, machineries, work premises, and other materials
which are necessary in the conduct of his business. BROTHERHOOD
LABOR UNITY MOVEMENT vs. ZAMORA
ER-EE (Jurisdiction)

1. REASONABLE CAUSAL CONNECTION between the claim asserted and


ER_EE relations to put the case under the provisions of Article 217, ABSENT
such link, the complaint will be recognizable by REGULAR COURTS
2. Where the claim to the PRINCIPAL RELIEF SOUGHT is to be resolve NOT
by reference to the Labor Code or other labor relations statute of CBA but by
general civil law, jurisdiction belong to regular courts
ER_EE INDEPENDENT CONTRACTOR
1. DBP vs. NLRC
a. Test to determine LEGITIMATE JOB CONTRACTING /
INDEPENDENT CONTRACTOR
i. I ARM FREE CAPITAL TEAMWORK requisites
1. ARM
2. CAPITAL TEAMWORK
b. LABOR ONLY CONTRACTOR
i. The liability of the principal employer is ANY and ALL claims
under the circumstance
c. LEGITIMATE JOB CONTRACTING
i. Principals employers liability is to the extend benefited
d. INDEPENDENT CONTRACTOR
i. The employees need not perform work which is necessary and
desirable to the employers business
e. LABOR ONLY CONTRACTING, is the employees required to perform
work which is necessary and desirable to the employers principal
business?
i. YES, because employment status is determine by law and
under Art. 287, in order for an employee to be considered as
regular, he must perform work which is necessary and
desirable to the employers principal business
EE_ER LABOR DISPUTES
1. ART. 212(1)
GROUP OF EMPLOYEES _SPECIAL_WOMEN
1. ART. 136
GROUP OF EMPLOYEES_ORDINARY_PROBATIONARY

1. WON probationary employees have right to security of tenure? Its duration?


a. YES, the probationary employee enjoys the security of tenure during
the whole duration of probationary period. It entails that probationary
employee CAN ONLY BE TERMINATED on JUST CAUSE or
AUTHORIZE CAUSE OR when FAILS to qualify as a regular
employee in accordance with reasonable standards made known by
the employer to the employee at the time of his engagement. BIBOSO
vs. NLRC
2. Difference between PROBATIONARY and REGULAR employee
a. PROBATIONARY and REGULAR is similar with regards to
termination of service, that they can only be terminated on JUST and
AUTHORIZE cause
b. Difference, PROBATIONARY (limited security of tenure) employees
services can be terminated if he did not meet the standards of the
employer. Does not apply to REGULAR(unlimited security of tenure)
BIBOSO vs. NLRC
3. The word probationary as used to describe period of the employment, implies
the purpose of the term or period but not its length because what is important
is the term and not the length of probationary employment or the purpose is
material not the period. INTERNATIONAL CATHOLIC MIGRATION vs. NLRC
4. GENERALLY, probationary employment is limited to 6 months however under
this case the 18th month probationary period is justified because of the
management prerogative and the job complex. The directory will only be
published after 1 year, only that time employer will be able to determine if
employee had met the standards set by employer. VER BUISER vs. GTE
DIRECTORIES
5. There is probationary employment
a. Where the employee, upon his engagement, is made to undergo a
TRIAL PERIOD during which the employer determines his fitness to
qualify for regular employment, based on reasonable standards
known to him at the time of engagement.
b. IF NO STANDARDS known to the employee at that time, he shall be
deemed a regular employee
DOUBLE PROBATION
1. OJT then another 6 months
a. It is double because the employer had twice determined the standards
to be met.

b. It MIGHT be valid so long as the period does not exceed 6 moths


notwithstanding the existence of 2 probationary period
c. HOLIDAY INN MANILA vs. NLRC
GROUP OF EMPLOYEES_ORDINARY_REGULAR EMPLOYEES
1. ART. 280 of LC govern this concept. READ IT!
2. Why is it important to attain regular status?
a. To enjoy security of tenure, that an employee can only be terminated
through JUST CAUSE and AUTHORIZE CAUSE
3. Generally, employee who suffered to work for an activity which is necessary
and desirable to the principal business of the employer is deemed to be a
REGULAR EMPLOYEE
4. Other instance
a. He is casual employee. Casual employee if he does not fall under the
1st paragraph of art. 280
5. No security of tenure if CASUAL EMPLOYEE, but there is if CASUALREGULAR EMPLOYEE
6. THE TEST TO DETERMINE THE ER_EE RELATIONSHIP between the ER
and EE is NOT ART. 280 of the labor code but the CONTROL TEST because
280 is the determination of the status employee, whether he is regular,
project, seasonal or regular-casual employee. ART. 280 PRESUPPOSES that
there is already an employment of relationship
7. TEST TO DETERMINE REGULAR EMPLOYMENT
a. Whether the work perform is usually necessary or desirable in the
usual business or trade of the employer

GROUP OF EMPLOYEES _ORDIANRY_TERM EMPLOYMENT


1. In BRENT SCHOOL vs. ZAMORA the term employment contract was valid
despite the proviso in Art. 280 IF the employer has NO INTENTION to
circumvent the right to tenurial security of the employee, indicators
a. The parties (especially the employee) had freely and voluntarily
entered into contract OR the employees consent was not vitiated
b. Parties are on EQUAL FOOTING
2. Employee hired on a fixed term is REGULAR if job is necessary and
desirable to the business of employer PHILIPS SEMICONDUCTOR vs.
FADRIQUELA 2004

GROUP OF EMPLOYEES_ORDINARY_PROJECT EMPLOYEE


1. What is a project employee?
a. The one who is employed on a certain project and upon the cessation
of the project his employment will also be terminated. VIOLETA vs.
NLRC
2. What if the job performed by the employee is necessary and desirable, is he
ALREADY considered as a regular employee?
a. NO!, because if he was assigned for a SPECIFIC PROJECT or
undertaking and the completion or termination which has been
determine at the time of the engagement of the employee or where
the work or service performed is SEASONAL in nature and the
employment is for the duration of the season, HE IS NOT A
REGULAR EMPLOYEE. He is considered as a project or seasonal
employee. CHUA vs. CA
3. In the case of CARTAGENAS vs. ROMAGO ELECTRIC, the duration of the
employees is CO-TERMINUS with the project wherein the employees were
assigned
a. NOTE : the determining factor is the COMPLETION of the project and
NOT the PERIOD
4. If a regular employee was assigned to a particular project , HE IS A WORK
POOL EMPLOYEE
5. How do I know if an employee a project employee? When is there a project
employee despite the fact that there are 5 projects
a. If an employee undergone a process of APPLICATION,
EVALUATION, HIRING and TERMINATION. FERNANDEZ vs. NLRC
6. Day Certain Rule
a. Project employment ends on a CERTAIN DATE does not end on exact
date, but on the completion of the project
GROUP OF EMPLOYEES_ORDINARY_SEASONAL
1. Work or service to be performed is seasonal in nature and the employment is
for the duration of the season
LABOR STANDARDS_GENERAL CONCEPTS
1. GENERAL RULE
a. Quit claims are valid if it was freely and voluntarily agreed by the
parties

2. EXCEPTION
a. If it is contrary to public policy
i. Contrary to public policy if it involves waiver of the labor
standards. PEFTOK INTEGRATED SERVICE vs. NLRC
WAGES
1. Define
a. Remuneration or earnings, however designated, capable of express in
terms of money, whenever fixed or ascertained on a time, task, piece
or commission basis, or other method of calculating the same, which
is payable by an employer to an employee under a written or
unwritten contract of employment for work done or to be done,
or for services rendered or to be rendered
2. Fair wage for fair work / no work no pay principle
a. If no work performed by the employee, there can be no wage or pay
UNLESS the laborer was able, willing and ready to work but was
prevented by management or was illegally lock out, suspend or
dismissed
3. Equal pay for equal work (not absolute)
a. Person who work with substantial qualification, skill, effort and
responsibility, under similar condition, should be paid similar salary
b. Not absolute because, the payment of some of the employees
includes seniority factors, dislocation factor, expertise and such.
4. Wages vs. Salary
a. Wages applies to compensation for manual labor, skilled or unskilled,
paid at stated times and measured by day week, month or season
WHILE salary denotes a higher degree of employment or a superior
grade of service and implies a position of office
5. In the case of MAYON HOTEL vs. ADANA where meals and snacks
purportedly provided to employees CANNOT be deducted as part of latters
minimum wage even if it constitutes FACILITIES
a. Facilities
i. Articles or service for the benefit of the employee or his family
but shall not include tools of the trade or articles or service
primarily for the benefit of the employer or necessary to the
conduct of the employers business
b. Requirements for deducting the value of facilities

i. Proof must shown that such facilities are customarily furnished


by trade
ii. Provision of deductible facilities must be voluntarily accepted
in writing by the employee
iii. The facility must be charge at fair and reasonable value
6. MILARES vs. NLRC
a. Monthly allowance are not automatically included for the computation
of labor benefits e.g. 13th month pay, separation pay. Those monthly
allowances that are temporary, contingent and extra are not included
as part of the basic salary for the computation of labor benefits
b. BUT, for it to be classified as a wage (allowances) especially to
facilities or supplements, it must be FAIRLY and CUSTOMARILY
given, meaning it is REGULARLY given to the employees
Payment of wages
1. LGM CHEMICALS CORP. vs. SEC
a. If one of the division is losing 150k per month but the other division
profiting more than what the other division is losing and upon adding
all the profits earned by these division it will result that they are not
suffering losses, THEN the employer can still increase the employees
salary (who were part of the division losing profits)
2. SPECIAL STEEL PRODUCTS INC. vs. VILLAREAL (art. 116)
a. An employer CANNOT simply refuse to pay the wages or benefits of
its employee because he has either defaulted in paying the loan
guaranteed by his employer; or violated their MOA; or failed to
rendered an accounting of his employers property
b. The employers salary cannot be set off to the loan because the nature
of salary is a labor obligation and the nature of the loan (contract) is a
civil obligation.
3. DBP vs. NLRC (art. 110)
a. Sec. 10. Payment of wages in case of bankruptcy. Unpaid wages
earned by the employees before the declaration of bankruptcy or
judicial liquidation of the employer's business shall be given first
preference and shall be paid in full before other creditors may
establish any claim to a share in the assets of the employer
b. a declaration of bankruptcy or a judicial liquidation must be present
before the worker's preference may be enforced. Thus, Article 110 of
the Labor Code and its implementing rule cannot be invoked by the

respondents in this case absent a formal declaration of bankruptcy or


a liquidation order
c. In the present case, there is as yet no declaration of bankruptcy nor
judicial liquidation of TPWII. Hence, it would be premature to enforce
the worker's preference
4. Manner of wage payment
a. Wages shall be paid in LEGAL TENDER, the use of token, coupon,
promissory notes, vouchers or any other form alleged to represent
legal tender is ABSOLUTELY PROHIBITED even when expressly
requested by the employee
b. Paymen of CHECK, allowed
5. Time of payment
a. Gen Rule
i. Twice a month not exceeding 16 days
b. Exception
i. Payment cannot be made due to force majeure or
circumstances beyond employers control
Wage Fixing
1. EMPLOYERS CONFEDERATION vs. NWPC
a. 2 method in determination of wages
i. Floor wage
1. Involves the fixing of determinate amount that
would be added to the prevailing statutory minimum
wage
ii. Salary ceiling
1. Whereby the wage adjustment is applied to
employees receiving a certain denominated salary
ceiling
2. Filipinas Golf vs. NLRC
a. Whether the compliance of wage order is compliance in the
increase in CBA
i. YES, the employer is made not to pay twice the
concurrence amount of increase independently imposed
by law and by agreement
3. PRUBANKERS vs. PRUDENTIAL BANK
a. Wage distortion
i. a significant change occurs at the lowest level of positions
in terms of basic wage without a corresponding change in

the other level in the hierarchy of positions, negating as a


result thereof the distinction between one level of position
from the next higher level, and resulting in a parity between
the lowest level and the next higher level or rank, between
new entrants and old hires, there exists a wage distortion.
ii. Distortion will only apply in the same region e.g. a branch
in davao but will not affect the branch in cebu or ormok
b. 4 elemets
i. An existing hierarchy of positions with corresponding
salary rates
ii. . A significant change in the salary rate of a lower pay class
without a concomitant increase in the salary rate of a
higher one
iii. The elimination of the distinction between the two levels
iv. The existence of the distortion in the same region of the
country.
c. To correct distortion
i. The employer should increase all the salaries of the
employee or maintain the intentional qualitative difference
of the employees salaries
Working Condition
1. NATIONAL SUGAR vs. NLRC
a. Why is there a need to determine if person is a supervisory
employee
i. To determine the benefits that must be given to the
employee to wit, overtime pay etc.
2. APEX MINING vs. NLRC
a. PR should not considered as domestic servant because the latter
did not perform service in the employers home which is usually
necessary or desirable for the maintenance and enjoyment thereof
and does include ministering to the personal comfort and
convenience of the members of the employers household. In this
case the employee does not performing services for the
employees family but for the corporation hence she is considered
as an employee of the corporation
Hours of Work

1. RADA vs. NLRC (overtime pay)


a. If driving these employees to and from the project site is not really
part of petitioner's job, then there would have been no need to find
a replacement driver to fetch these employees. But since the
assigned task of fetching and delivering employees is
indispensable and consequently mandatory, then the time required
of and used by petitioner in going from his residence to the field
office and back, that is, from 5:30 a.m. to 7:00 a.m. and from 4:00
p.m. to around 6:00 p.m., which the labor arbiter rounded off as
averaging three hours each working day, should be paid as
overtime work.
b. Further, at the time he gets into the car he is working because he
has to get some of the employees to go to the office at a specific
time. This indicate, that this is for the benefit of the employer and
not to the employee
2. PAN AMERICAN vs. PAN AMERICAN EMPLOYEES ASSOCIATION(1
hour meal period)
a. 1 hour meal period is not compensable HOWEVER in this case it
is because even during meal period the mechanics were required
to standby for emergency work and if happen that they were not
available when they were called, they were reprimanded by the
lead man
3. ARICA vs. NLRC
a. The 30 min time is not compensable because the employer has
NO ABSOLUTE CONTROL and the work they perform at the time
was not for the benefit of the employer. Y because it is only for roll
calls and the assignments of their jobs, they can go to their
houses after those.
4. OT
a. Works exceed 8 hours within 24 hours workday
b. UNDERTIME CANNOT BE OFFSET BY OT because it would
result to undue deprivation of employees extra pay for OT / lost
the premium pay he had rendered for the excess overtime
c. Right to OT cannot be waived except if it is in consideration of
benefits and privileges which may even exceed OT pay
5. CAGAMPANGAN vs. NLRC

a. Proof of actual work for the excess hour for the entitlement of OT
because seaman by the very nature of their job stays on board a
ship vessel
b. It is need to prove actual work for overtime, in order for the
employer to be liable for payment of overtime
Other employment benefits
1. REMERCO GARMENTS MANUFACTURING vs. MINISTER OF LABOR
(weekly rest period)
a. is weekly rest period mandatory and when must it be given
i. YES it is mandatory, art. 91 of the labor code provides that a. it
shall be the duty of every employer whether operating for profit
of not to provide each of his employees a rest period of NOT
LESS than 24 hours consecutive hours after every 6
consecutive normal work days
b. The employer shall determine and schedule the weekly rest day of his
employees rest day of his employees subject to CBA and to such
rules and regulations as the sec of labor and employment may
provide.
c. However employer shall respect the preference of employees as to
their weekly rest day when such preference is based on religious
grounds
2. VDA DE UCANG vs. WCC
a. ER-EE relation is not suspended when an employee is given a
vacation leave with pay
b. The purpose of vacation leave is to afford the laborer a chance to get
much needed rest to replenish his worn out energies and to acquire a
new vitality to enable his to effectively perform his duties, not merely
to give his additional salary ir bounty
Holiday pay
1. Read PRODUCERS BANK vs. NLRC
a. Divisor
2. ASIAN TRANSMISSION CORP vs. CA
a. 2 holidays falling on the same day
Service Incentive Leave

1. Concept
a. Every employee who has rendered ATLEAST 1 year (not less than 12
months, whether continuous or broken) of service shall be entitled to a
yearly service incentive leave for 5 days WITH PAY
b. Convertible to cash
2. AUTO BUS TRANSPORT SYSTEM vs. BAUTISTA
a. Exception to the service incentive leave
i. Government
ii. Domestic helper and person in the personal service of another
iii. Field personnel and other employees whose performance is
unsupervised by the employer (case at bar)
iv. Those enjoying vacation leave with pay of at least 5 days
v. Those employed in establishment regularly employing less
than 10 employees
Sick leave and vacation leave
1. They are not required by law and depends on voluntary employer policy or
collective bargaining
2. Purpose
a. To afford to a laborer a chance to get a much-needed rest to replenish
his worn out energies and acquire a new vitality, to enable him to
efficiency perform his duties, and not merely to give him additional
salary or bounty
3. This privilege MUST be demanded in its opportune time and if he allows the
years to go by in silence HE WAIVES it. SUN RIPE COCONUT PRODUCTS
vs. NLRC
13th Month Pay
1. BROKENSHIRE MEMORIAL vs. NLRC
a. Whether employees entitled to the so called 13th month pay prescribe
by PD 851 on top of bonuses already given by the employer prior to
the decree
i. NO! the hospital cannot be obliged to bear the DOUBLE
BURDEN of giving its employees not only the 13th month pay
required by PD 851 but also Christmas bonus it had therefore
been granting.
b. Intention of PD 851/ 13th month pay law

i. Was to grant some relief no to all workers but to the


unfortunate ones not actually paid a 13th month salary or what
amounts to it by whatever name called
2. PHILIPPINE AGRICULTURAL vs. NLRC
a. Gen rule
i. Commission are not part of the 13th month pay
b. In this case the computation of 13th month pay includes commission
because the employees are guaranteed a minimum wage and the
COMMISSION FORMS PART OF THE MINIMUM WAGE. But again,
commission are excluded for 13th month pay
3. SEVILLA TRADING COMPANY vs. NLRC
a. A company practice favorable to the employee had indeed repined
into benefits enjoyed by them cannot be reduced diminished,
discontinued or eliminated by the employer by the employer
4. HONDA PHILS vs. SAMAHAN NG MANGGAGAWA
a. Whether the pro-rated computation of the 13th month pay and other
bonuses are valid
i. NO!
b. 13th month pay is subject to pro rating ONLY in the instance of
RESIGNATION or SEPARATION. While the employee is STILL
WORKING with you, you cannot pro-rate
Grounds for termination_ willful disobedience/serious misconduct
1. MANEBO vs. NLRC
a. Requisites

i. Employees assailed conduct must have been willful or


intentional and can be characterized as wrongful and perverse
attitude
ii. The other violated must have been reasonable, lawful, made
known to the employee and must pertain to the duties which
he has been engaged to discharge
2. AGUILAR vs. NLRC
a. This case is a serious misconduct
i. Because the employee knew it was wrong however he still
persist on dong the same violation. Because he was already
caught doing it, however he kept on doing it makes the action
willful and perverse
Grounds for termination_ Abandonment
1. JARDINE DAVIES vs. NLRC
a. 2 requisites of Abandonment
i. There must be deliberate unjustified refusal of the employee
to resume his employment
ii. It must be accompanied by an overt act
2. JACKSON BLDG vs. NLRC
a. IMMEDIATE filling of a case against abandonment of work with prayer
for reinstatement NEGATES such allegation