Professional Documents
Culture Documents
A: The law governing the rights and duties of the A: Labor legislation is sometimes distinguished from
employer and employees with respect to: social legislation by the former referring to labor
statutes, like Labor Relations Law and Labor
1. The terms and conditions of Standards, and the latter to Social Security Laws.
employment and Labor legislation focuses on the rights of the worker
2. Labor disputes arising from in the workplace.
collective bargaining (CB) respecting such
terms and conditions. Social legislation is a broad term and may include
not only laws that give social security protection,
Q: What is the purpose of labor legislation? but also those that help the worker secure housing
and basic necessities. The Comprehensive Agrarian
A: Labor legislation is an exercise of police power. Reform Law could also be considered a social
The purpose of labor legislation is to regulate the legislation. All labor laws are social legislation, but
relations between employers (Ers) and employees not all social legislation is labor law. (1994 Bar
(Ees) respecting the terms and conditions of Question)
employment, either by providing for certain
standards or for a legal framework within which Q: What are the sources of labor laws?
better terms and conditions of work could be
negotiated through CB. It is intended to correct the A:
injustices inherent in ErEe relationship. (2006 Bar 1. Labor Code and other related
Question) special legislation
2. Contract
Q: What are the classifications of labor law? 3. Collective Bargaining Agreement
4. Past practices
A: 5. Company policies
1. Labor standards The minimum
terms and conditions of employment A. FUNDAMENTAL PRINCIPLES AND POLICIES
prescribed by existing laws, rules and
regulations relating to wages, hours of 1.CONSTITUTIONAL PROVISIONS
work, costof living allowance and other
monetary and welfare benefits. (Batong Q: What are the constitutional mandates with
Buhay Gold regard labor laws?
Mines, Inc. v. Dela Serna, G.R. No. 86963,
August 6,1999) A:
th
e.g. 13 month pay 1. Sec. 3, Art. XIII The State shall
2. Labor relations Defines and afford full protection to labor, local and
regulates the status, rights and duties, and overseas, organized and unorganized, and
the institutional mechanisms, that govern promote full employment and equality of
the individual and collective interactions employment opportunities for all.
of Ers, Ees, or their representatives. It is
concerned with the stabilization of It shall guarantee the rights of all workers
relations of Er and Ees and seek to to selforganization, collective bargaining
forestall and adjust the differences and negotiations, and peaceful concerted
between them by the encouragement of activities, including the right to strike in
collective bargaining and the settlement accordance with law. They shall be
of labor disputes through conciliation, entitled to security of tenure, humane
mediation and arbitration. conditions of work, and a living wage.
e.g. Additional allowance pursuant to They shall also participate in policy and
CBA decisionmaking processes affecting their
2. Sec. 9, Art. II The State shall 11. Sec. 8, Art. III The right of the
promote a just and dynamic social order people, including those employed in the
that will ensure the prosperity and public and private sectors, to form unions,
independence of the nation and free the associations, or societies for purposes not
people from poverty through policies that contrary to law shall not be abridged.
provide adequate social services, promote
full employment, a rising standard of 12. Sec. 1, Art. XIII The Congress
living, and an improved quality of life for shall give highest priority to the
all. enactment of measures that protect and
enhance the right of all the people to
3. Sec. 10, Art II The State shall human dignity, reduce social, economic,
promote social justice in all phases of and political inequalities, and remove
national development. cultural inequities by equitably diffusing
wealth and political power for the
4. Sec. 11, Art II The State values common good.
the dignity of every human person and
guarantees full respect for human rights. To this end, the State shall regulate the
acquisition, ownership, use, and
5. Sec. 13, Art. II The State disposition of property and its increments.
recognizes the vital role of the youth in
nationbuilding and shall promote and 13. Sec. 2, Art. XIII The promotion
protect their physical, moral, spiritual, of social justice shall include the
intellectual, and social wellbeing. It shall commitment to create economic
inculcate in the youth patriotism and opportunities based on freedom of
nationalism, and encourage their initiative and selfreliance.
involvement in public and civic affairs.
14. Sec. 14, Art. XIII The State shall
6. Sec. 14, Art. II The State protect working women by providing safe
recognizes the role of women in nation and healthful working conditions, taking
building, and shall ensure the into account their maternal functions, and
fundamental equality before the law of such facilities and opportunities that will
women and men. enhance their welfare and enable them to
realize their full potential in the service of
the nation.
7. Sec. 18, Art. II The State Q: What is the State policy on labor as found in the
affirms labor as a primary social economic constitution (Sec. 3, Art. XIII)?
force. It shall protect the rights of workers
and promote their welfare. A:
1. Afford full protection to labor
8. Sec. 20, Art. II The State 2. Promote full employment
recognizes the indispensable role of the 3. Ensure equal work
private sector, encourages private opportunities regardless of sex, race, or
enterprise, and creed
4. Assure the rights of workers to self safety and decent living for the
organization, security of tenure, just and laborer.
humane conditions of work, participate in d. Art. 1703 No contract which
policy and decisionmaking processes practically amounts to involuntary
affecting their right and benefits servitude, under any guise
5. Regulate the relations between whatsoever, shall be valid.
workers and employers
2. Revised Penal Code
Q: What are the basic rights of workers Art. 289 Formation, maintenance and
guaranteed by the Constitution (Sec. 3, Art. XIII)? prohibition of combination of capital or
labor through violence or threats. Any
A: person who, for the purpose of
1. Security of tenure organizing, maintaining or preventing
2. Receive a living wage coalitions or capital or labor, strike of
3. Humane working conditions laborers or lockout of employees, shall
4. Share in the fruits of production employ violence or threats in such a
5. Organize themselves degree as to compel or force the laborers
6. Conduct collective bargaining or or employers in the free and legal exercise
negotiation with management of their industry or work, if the act shall
7. Engage in peaceful concerted not constitute a more serious offense in
activities including strike accordance with the provisions of the
8. Participate in policy and decision RPC.
making processes
3. Special Laws
Q: What is the principle of nonoppression? a. GSIS Law
th
b. 13 Month Pay Law
A: The principle mandates capital and labor not to c. Retirement Pay Law
act oppressively against each other or impair the d. SSS Law
interest and convenience of the public. The e. Paternity Leave Act
protection to labor clause in the Constitution is not f. Anti Child Labor Act
designed to oppress or destroy capital. (Capili v. g. Anti Sexual Harassment Act
NLRC, G.R. No. 117378, Mar. 26, 1997) h. Magna Carta for Public Health
Workers
2.NEW CIVIL CODE AND OTHER LAWS i. Solo Parents Welfare Act of 2000
j. National Health Insurance Act as
Q: What are other related laws to labor? amended by R.A. 9241
k. Migrant Workers and Overseas
A: Filipinos Act of 1995 as amended by
1. Civil Code RA 10022
a. Art. 1700 The relations l. PERA Act of 2008
between capital and labor are not m. Home Development Mutual
merely contractual. They are so Fund Law of 2009
impressed with public interest that n. The Magna Carta of Women
labor contracts must yield to the o. Comprehensive Agrarian Reform
common good. Therefore, such Law as amended by R.A. 9700
contracts are subject to the special
laws on labor unions, collective 3.LABOR CODE
bargaining, strikes and lockouts,
closed shop, wages, working Q: What is the aim of labor laws?
conditions, hours of labor and similar
subjects. A: The justification of labor laws is social justice.
b. Art. 1701 Neither capital Social justice is neither communism, nor
nor labor shall act oppressively despotism, nor atomism, nor anarchy, but the
against the other, or impair the humanization of laws and the equalization of social
interest or convenience of the public. and economic force by the State so that justice in its
c. Art. 1702 In case of rational and objectively secular conception may at
doubt, all labor legislation and all least be approximated. Social justice means the
labor contracts shall be construed in promotion of the welfare of all the people, the
favor of the
adoption by the government of measures calculated A: No, the Constitution provides that the State shall
to insure economic stability of all the competent afford full protection to labor. Furthermore, the
elements of society, through the maintenance of a State affirms labor as a primary economic force. It
proper economic and social equilibrium in the shall protect the rights of workers and promote
interrelations of the members of the community, their welfare. (1998 Bar Question)
constitutionally, through the adoption of measures
legally justifiable, or extra constitutionally, through a.Art. 3. Declaration of Basic Policy
the exercise of powers underlying the existence of
all governments on the timehonored principle of Q: What is the policy of the State as regards labor
salus populi est suprema lex. (Calalang v. Williams, as found in the Labor Code (Art. 12)?
G.R. No. 47800, Dec. 2, 1940)
A:
Q: What is compassionate justice? 1. Promote and maintain a State of full
employment through improved
A: It is disregarding rigid rules and giving due manpower training, allocation and
weight to all equities of the case. utilization;
2. Protect every citizen desiring to
e.g: Employee validly dismissed may still be given work locally or overseas by securing for
severance pay. him the best possible terms and
conditions of employment;
Q: How should doubts in the 3. Facilitate a free choice of
implementation and interpretation of the available employment by persons seeking
Labor Code (LC) and its Implementing work in conformity with the national
Rules and Regulations (IRR) be resolved? interest;
4. Facilitate and regulate the
A: They should be resolved in favor of labor. movement of workers in conformity with
the national interest;
Q: What is the concept of liberal approach in 5. Regulate the employment of
interpreting the LC and its IRR? aliens, including the establishment of a
registration and/or work permit system;
A: The workers' welfare should be the paramount 6. Strengthen the network of
consideration in interpreting the LC and its IRR. public employment offices and rationalize
This is rooted in the constitutional mandate to the participation of the private sector in
afford full protection to labor. (PLDT v. NLRC, G.R. the recruitment and placement of
No. 111933, July 23, 1997). It underscores the workers, locally and overseas, to serve
policy of social justice to accommodate the national development objectives;
interests of the working class on the humane 7. Ensure careful selection of
justification that those who have less in life shall Filipino workers for overseas employment
have more in law. (PAL v. Santos, G.R. No. 77875, in order to protect the good name of the
Feb. 4, 1993). (2006 Bar Question) Philippines abroad.
Q: Art. 4 of the LC provides that in case of Q: What are the reasons for affording greater
doubt in the implementation and protection to employees?
interpretation of the provisions of the LC
and its IRR, the doubt shall be resolved in A:
favor of labor. Art. 1702 of the Civil Code 1. Greater supply than demand for
also provides that in case of doubt, all labor; and
labor legislation and all labor contracts 2. Need for employment by labor
shall be construed in favor of the safety comes from vital and desperate necessity.
and decent living of the laborer. (Sanchez v. Harry Lyons Construction Inc.,
G.R. L2779, Oct. 18, 1950)
MicaMara Company assails the validity of these
statutes on the ground that they violate its Q: Are all labor disputes resolved in favor of labor?
constitutional right to equal protection of the laws.
Is the contention of Mica Mara Company tenable? A: No. The law also recognizes that management
Discuss fully. has rights which are also entitled to respect and
enforcement in the interest of fair play. (St. Lukes
Medical Center Ees Assn v. NLRC, G.R. No. 162053,
Mar. 7, 2007)
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
FUNDAMENTAL PRINCIPLES AND POLICIES
Q: What is the test in determining whether a GOCC A: Any person acting in the interest of an Er,
is subject to the Civil Service Law? directly or indirectly. The term does not include a
labor organization (LO) or any of its officers and
A: It is determined by the manner of their creation. agents, except when acting as an Er. (Art.212[e])
Govt corporations that are created by special
(original) charter from Congress are subject to Civil An Er is defined as any person or entity that
Service rules, while those incorporated under the employs the services of others; one for whom work
General Corporation Law are covered by the LC. and who pays their wages of salaries; any person
acting in the interest of an Er; refers to the
Q: Who is an agricultural/farm worker? enterprise where the LO operates or seeks to
operate. (Sec.1[s], Rule I, Book V, IRR)
A:
Q: When is a labor organization deemed an Er?
A:
1. Any person in the employ of the
Er
2. 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
3. One who has been dismissed
from work but the legality of dismissal is
being contested in a forum of appropriate
jurisdiction. (D.O. No. 4003, Mar. 15,
2003)
Note: The term shall not be limited to the Ees of a
particular Er unless the LC explicitly states.
A:
1. As to nature It depends on
whether the dispute arises from ErEe
relationship, although disputants need
not be proximately Er or Ee of
another.
discrimination due to union
activities; company unionism; ULP,
or representation of persons strike or lockout; union members
in negotiating, fixing, complaint against union officers
maintaining or changing b. Representation disputes E.g.
terms or conditions of Uncertainty as to which is the
employment. majority union; determination of
appropriate CB unit; contests for
recognition by different sets of
Q: What are the kinds of labor disputes? officers in the same union
c. Bargaining disputes E.g.
A: Refusal to bargain; bargaining in bad
1. Labor standard disputes faith; bargaining deadlock; economic
a. Compensation strike or lockout
E.g. Underpayment of d. Contract administration or
minimum wage; personnel policy disputes E.g. Non
stringent output quota; compliance with CBA provision (ULP
illegal pay deductions if gross non compliance with
b. Benefits E.g. economic provisions); disregard of
Nonpayment of grievance machinery; non
holiday pay, OT pay or observance of unwarranted use of
other benefits union security clause; illegal or
c. Working unreasonable personnel
Conditions E.g. management policies; violation of
Unrectified work nostrike/nolockout agreement
hazards e. Employment tenure disputes
E.g. Nonregularization of Ees; non
2. Labor relations disputes absorption of labor only contracting
staff; illegal termination; non
a. Organizational issuance of employment contract
right disputes/ULP
E.g. Coercion, restraint Q: Who are the parties to a dispute?
or interference in
unionization efforts;
reprisal or
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
FUNDAMENTAL PRINCIPLES AND POLICIES
A: Any conflict between and among legitimate labor Q: What is the extent of the workers right to
unions involving representation questions for the participate in policy and decisionmaking
purposes of CB or to any other conflict or dispute processes in a company?
between legitimate labor unions.
A: Such right refers not only to formulation of
Q: What is an intraunion dispute? corporate programs and policies but also to
participation in grievance procedures and voluntary
A: Any conflict between and among union modes of settling disputes.
members, grievances arising from any violation of
the rights and conditions of membership, violation Q: Explain the extent of the workers right to
of or disagreement over any provision of the unions participate in policy and decisionmaking process
constitution and bylaws, or disputes from as provided under Art. XIII, Sec. 13 of the 1987
chartering or affiliation of union. Constitution. Does it include membership in the
Board of Directors of a corporation?
Q: What are rights disputes?
A: No. In Manila Electric Company v. Quisumbing,
A: They are claims for violations of a specific right G.R. No. 127598, January 27, 1999, the SC
arising from a contract, i.e. CBA or company recognized the right of the union to participate in
policies. policy formulation and decision making process on
matters affecting the Union members rights, duties
Q: What are interest disputes? and welfare. However, the SC held that such
participation of the union in committees of Er
A: They involve questions on what should be Meralco is not in the nature of a comanagement
included in the CBA. Strictly speaking, the parties control of the business of Meralco. Impliedly,
may choose a voluntary arbitrator to decide on the therefore, workers participatory right in policy and
terms and conditions of employment, but this is decisionmaking processes does not include the
impracticable because it will be a value judgment of right to put a union member in the Corporations
the arbitrators and not of the parties. Board of Directors. (2008 Bar Question)
Q: What are contractnegotiation disputes?
Q: May an Er solicit questions, suggestions and
complaints from Ees even though the Ees are
A: These are disputes as to the terms of the CBA.
represented by a union?
Q: What are contractinterpretation disputes?
A: Yes, provided:
A: These are disputes arising under an existing CBA,
involving such matters as the interpretation and 1. The CB representative executes
application of the contract, or alleged violation of its an agreement waiving the right to be
provisions. present on any occasion when Ee
grievances are being adjusted by the Er;
f.Art. 255. Exclusive Bargaining Representation (EBR) and
and Workers Participation in Policy and Decision 2. Er acts strictly within the terms
Making of his waiver agreement.
Q: Who shall be the bargaining representative of Q: The hotel union filed a Notice of Strike with the
the Employees for purposes of collective NCMB due to ULP against the Diamond Hotel who
bargaining? 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
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
A: Any member of the labor force, whether Q: Who are name hires?
employed or unemployed. (Art. 13 [a], LC)
A: They are individual workers who are able to
Q: What is recruitment and placement? secure contracts for overseas employment on their
own efforts and representations without the
A: assistance or participation of any agency. Their
1. Any act of canvassing, enlisting, hiring, nonetheless, shall pass through the POEA for
contracting, transporting, utilizing, hiring processing purposes. (Part III, Rule III, POEA Rules
or procuring workers; and Governing Overseas Employment as amended in
2. Includes referrals, contact services, 2002)
promising or advertising for employment,
locally or abroad, whether for profit or Q: What if employment is offered to only one
not. (Art. 13 [b],LC) person?
Q: What are the essential elements in A: Immaterial. The number of persons dealt with is
determining not an essential ingredient of the act of recruitment
whether one is engaged in and placement of workers. The proviso merely lays
recruitment/placement? down a rule of evidence that where a fee is
collected in consideration of a promise or offer of
A: It must be shown that: employment to 2 or more prospective workers, the
individual or entity dealing with them shall be
1. The accused gave the complainant deemed to be engaged in the act of recruitment and
the distinct impression that she had the placement. The words "shall be deemed" create
power or ability to send the complainant that presumption. (People v. Panis, G.R. L 58674
for work, 77, July 11, 1986)
2. Such that the latter was convinced
to part with his money in order to be so Q: What is a private employment agency?
employed. (People v. Goce, G.R. No.
113161, Aug. 29, 1995) A: Any person or entity engaged in the recruitment
and placement of workers for a fee which is
Q: Who is deemed engaged in recruitment and charged, directly or indirectly, from the workers or
placement? employers or both.
A: Any person or entity which, in any manner, Q: What is a private recruitment agency?
offers or promises for a fee employment to 2 or
more persons. (Art. 13[b], LC) A: It is any person or association engaged in the
recruitment and placement of workers without
Q: What is the rule in recruitment and charging any fee, directly or indirectly, from the
placement? workers or employers.
A: It is employment of a worker outside the and executory orders within the period of
Philippines. validity of its license
2. Violations of the conditions of license
Q: Who is an overseas Filipino worker 3. Engaging in acts of
(OFW)? misrepresentation for the purpose of
securing a license or renewal
A: A person who is to be engaged, is engaged or has 4. Engaging in the recruitment or
been engaged in a remunerated activity in a State of placement of workers to jobs harmful to
which he or she is not a citizen or on board a vessel the public health or morality or to the
navigating the foreign seas other than a dignity of the country. (Sec. 3, Rule I, Book
government ship used for military or non VI, Rules and
commercial purposes or on an installation located Regulations Governing Overseas
offshore or on the high seas; to be used Employment)
interchangeably with migrant worker. (Sec.2, R.A.
10022 amending R.A. 8042) 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 1. Prohibited acts under Art. 34
to a foreign country by virtue of an immigrant visa 2. Publishing job announcements
or resident permit or its equivalent in the country of w/o POEAs approval
destination. 3. Charging a fee which may be in
excess of the authorized amount before a
b.Illegal Recruitment, Art. 38 (Local), Sec. 6, Migrant worker is employed
Workers Act, RA 8042 4. Deploying workers w/o
processing through POEA
(a)License v. Authority 5. Recruitment in places outside its
authorized area. (Sec. 4, Rule II, Book IV,
Q: What is a license? POEA Rules)
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
Note: This joint and solidary liability imposed by
law against recruitment agencies and foreign Ers
A: is meant to assure the aggrieved worker of
immediate and sufficient payment of what is
ILLEGAL RECRUITMENT
due him. If the recruitment/placement agency is
a juridical being, the corporate officers and
directors and partners as the case may be, shall
Malum prohibitum, thus: themselves be jointly and solidarily liable with
the corporation or partnership for the claims
and damages. (Becmen Service Exporter and
1. Criminal
Promotion v. Cuaresma, G.R. Nos. 18297879,
April 7, 2009)
necessary
Q: What is the theory of imputed knowledge?
2. it is a crime which involves
A: A rule in insurance law that any
information material to the transaction,
either possessed by the
shown
wrongfully
himself
recruiter
NOTE: It
relied
that caused
their money
(c)Liabilities
A: No, the theory of imputed knowledge ascribes the Serrano filed with the LA a Complaint against
knowledge of the agent, Sunace, to the principal Gallant Maritime and Marlow for constructive
Taiwanese employer, not the other way around. The
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
dismissal and for payment of his money claims. the POEA or entities authorized by the Secretary of
The LA rendered a favorable decision to Serrano Labor.
awarding him $8,770.00, representing his salary
for 3 months of the unexpired portion of his Q: What is the ban on directhiring?
contract of employment applying R.A. 8042, Sec
10, par 5: A: GR: An Er may only hire Filipino
worker for overseas employment through
Money Claims. In case of termination of overseas POEA or entities authorized by DOLE.
employment without just, valid or authorized
cause as defined by law or contract, the workers XPN:
shall be entitled to the full reimbursement of his Direct hiring by
placement fee with interest of 12% per annum, 1. International organizations
plus his salaries for the unexpired portion of his 2. Name hires
employment contract or for 3 months for every 3. Members of the diplomatic organizations
year of the unexpired term, whichever is less. 4. Other Ers as may be allowed by DOLE
Furthermore, prior to R.A. 8042, all OFWs, A: GR: It shall be mandatory for all
regardless of contract periods or the unexpired OFWs to remit a portion of their foreign
portions thereof, were treated alike in terms of the exchange earnings to their families,
computation of their monetary benefits in case of dependents, and/or beneficiaries ranging
illegal dismissal. Their claims were subjected to a from 50% 80% depending on the workers
uniform rule of computation: their basic salaries kind of job. (Rule VIII, Book III, POEA Rules)
multiplied by the entire unexpired portion of their
employment contracts. The same applies local XPN:
workers with fixedterm employment. 1. The workers immediate family
members, beneficiaries and dependents
Thus, Serrano is entitled to his salaries for the entire are residing with him abroad
unexpired period of nine months and 23 days of his 2. Immigrants and Filipino
employment contract, pursuant to law and professionals and employees working with
jurisprudence prior to the enactment of RA 8042. the UN agencies or specialized bodies
(Serrano v. Gallant Maritime Services & Marlow 3. Filipino servicemen working in
Navigation Co., Inc., G.R. No. 167614, Mar.24, 2009) U.S. military installations. (Resolution No.
1 83, InterAgency Committee for
c.Direct Hiring Implementation of E.O. 857)
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
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: Do OT and leave pay form part of the salary basis
1. All cases which are administrative in character, in the computation of the monetary award?
involving or arising out of violations of rules and
regulations relating to licensing and registration of A: No. The word salaries in Sec. 10(5) does not
recruitment and employment agencies or entities include overtime and leave pay. For seafarers, DOLE
and Department Order No. 33, series 1996, provides a
2. Disciplinary action (DA) cases and other special Standard Employment Contract of Seafarers, in
cases which are administrative in character, which salary is understood as the basic wage,
involving Ers, principals, contracting partners and exclusive of OT, leave pay and other bonuses;
Filipino migrant workers.
whereas OT pay is compensation for all work
a. It may be filed with the POEA
performed in excess of the regular 8 hours, and
Adjudication Office or the DOLE/POEA regional
holiday pay is compensation for any work
office of the place where the complaint applied
performed on designated rest days and holidays.
or was recruited at the option of the
complainant. The office with which the (Serrano v. Gallant Maritime Services & Marlow
complaint was first filed shall take cognizance of Navigation Co., Inc., G.R. No. 167614, Mar. 24,
the case. 2009)
b. DA cases and other special cases, as
mentioned in the preceding Section, shall be 3.OTHER RELATED TOPICS
filed with POEA Adjudication Office.
PERIODS Philippine Overseas Employment Administration
Mandatory Period for Resolution of Illegal
Q: What are the principal functions of the POEA?
Recruitment Cases
The preliminary investigations (PI) of cases under R.A.
A:
10022 shall be terminated within a period of 30
1. Protection of the right of
calendar days from the date of their filing.
Filipino workers to fair and equitable
employment practices
2. Regulation of private sector
prima facie case is participation in the recruitment and
established overseas placement of workers by setting
up a licensing and registration system
3. Deployment of Filipino workers
through govt to govt hiring
4. Formulation, implementation,
and monitoring of overseas employment
of Filipino workers taking into
consideration their welfare and domestic
manpower requirements
the investigation 5. Shall inform migrant workers
not only of their rights as workers but also
Prescriptive Period for Illegal Recruitment Cases of their rights as human beings, instruct
and guide the workers how to assert their
Simple Illegal Recruitment rights and provide the available
Within 20 yrs from the mechanism to redress violation of their
Within 5 yrs from the time
illegal recruitment has
time illegal recruitment rights. (Sec. 14, R.A. 10022)
happened
has happened. (Sec.
6. Implementation, in partnership
12,R.A. 8042) with other lawenforcement agencies, of
an intensified program against illegal
Q: Is compromise agreement on money claims recruitment activities. (Sec. 14, R.A.
allowed? 10022)
A: Yes. Consistent with the policy encouraging Q: May the POEA, at any time terminate or impose
amicable settlement of labor disputes, Sec. 10 of a ban on employment of migrant workers?
R.A. 8042 allows resolution by compromise of cases
filed with the NLRC. A: Yes, in consultation with the DFA based on the
ff. grounds:
Q: When shall compromise agreements on money
claims be paid? 2. In pursuit of the National Interest or
A:
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
Art. 25. Private Sector Participation in the Q: Is a corporation, 70% of the authorized and
Recruitment and Placement of Workers voting capital of which is owned and controlled by
Filipino citizens, allowed to engage in the
Q: What are the entities in the private sectors that recruitment and placement of workers, locally or
can participate in recruitment and placement of overseas? Explain briefly.
workers?
A: No. It is because Art. 27 of the Labor Code
A: requires at least 75%. (2002 Bar Question)
1. Shipping or manning agents or
representatives Q: Who are disqualified to engage in the business
2. Private recruitment offices of recruitment and placement of workers?
3. Public employment offices
4. Construction contractors if A:
authorized by the DOLE and Construction 1. Travel agencies and sales
Industry Authority. agencies of airline companies; (Art. 26,
5. Persons that may be authorized by LC)
the 2. Officers or members of the
SLE board of any corporation or members in a
6. Private employment agencies. (Sec. partnership engaged in the business of a
1, Rule VII, Book I, IRR) travel agency;
3. Corporations and partnerships,
Q: What are the qualifications for participation in when any of its officers, members of the
recruitment and placement of workers? board or partners, is also an officer,
member of the board or partner of a
A: corporation or partnership engaged in the
1. Filipino citizens, partnerships or business of a travel agency;
corporations at least 75% of the 4. Persons, partnerships or
authorized capital stock of which is owned corporations which have derogatory
and controlled by Filipino citizens; (Art. records, such as but not limited to those:
27, LC) a. Certified to have derogatory
2. Capitalization record or information by the NBI or
a. Single proprietorship or by the AntiIllegal Recruitment
partnership A minimum Branch of the POEA;
capitalization of P2 million b. Against whom probable cause
b. Corporation or prima facie finding of guilt for
A minimum paidup capital of P2 illegal recruitment or other related
million cases exists;
Provided, that those with existing licenses c. Convicted for illegal recruitment
shall, within 4 yrs from the effectivity or other related cases and/or crimes
hereof, increase their capitalization or involving moral turpitude; and
paid up capital, as the case may be, to P2 d. Agencies whose licenses have
million at the rate of P250,000.00 every been previously revoked or cancelled
year. (Art. 28, LC) by the POEA for violation of R.A.
3. Not otherwise disqualified by law or 8042, P.D. 442 as amended and their
other government regulations to engage implementing rules and regulations
in the recruitment and placement of as well as these rules and
workers for overseas employment. (Rule I, regulations.
Part II, POEA Rules) 5. Any official or Ee of the DOLE,
4. Payment of registration fees POEA, OWWA, DFA and other government
5. Posting of surety/cash bonds agencies directly involved in the
implementation of R.A. 8042 and/or any
th
Q: How will POEA regulate private sector of his/her relatives within the 4 civil
participation in the recruitment and overseas degree of consanguinity or affinity; and
placement of workers? 6. Persons or partners, officers and
directors of corporations whose licenses
A: By setting up a licensing and registration system. have been previously cancelled or revoked
(Sec. 14, R.A. 10022) for violation of recruitment laws. (Sec. 2,
Rule I, 2002 Rules and Regulations on the
A: Only when:
A:
1. Placement fee in an amount
equivalent to one months salary of the
worker and
2. Documentation costs.
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
A: Generally, they are determined by the employer, They must meet all of the ff. conditions, namely:
as he is usually free to regulate, according to his
discretion, all aspects of employment. 1. Primary duty: management of
the establishment in which they are
Q: What is the limitation on the employers power employed or of a department or sub
to regulate working conditions? division thereof;
2. Customarily or regularly direct
A: It must be done in good faith and not for the the work of 2 or more Ees
purpose of defeating or circumventing the rights of 3. Has the authority to hire or fire
the employees. Such are not always absolute and other Ees of lower rank; or their
must be exercised with due regard to the rights of suggestions and recommendations as to
labor. the hiring and firing and as to the
promotion or any change of status of
Note: Ones employment, profession, trade or calling is other Ees are given particular weight.
a property right and the wrongful interference 4. Execute under general
therewith is an actionable wrong. supervision work along specialized or
technical lines requiring special training,
Q: When does the condition on employment under experience, or knowledge
the Labor Code apply? 5. Execute under general
supervision special assignment and tasks;
A: Only if an ErEe relationship exists. and
6. Do not devote more than 20%
Q: Who are the employees that are covered by the of their hours worked to activities which
conditions of employment? are not directly and closely related to
performance of the work described. (Art.
A: GR: It applies to all Ees in all establishments. 82[2])
Note: 40hour work week does not apply if there is a Q: Under what conditions may a "compressed
training agreement between the resident physician and work week" schedule be legally authorized as an
the hospital and the training program is duly exception to the "8hour a day" requirement under
accredited or approved by appropriate government the LC?
agency.
A:
Q: Who are covered by the 40hour work week? 1. The Ee voluntarily agrees to it
2. There is no diminution in their
A: weekly or monthly take home pay or
1. Health personnel in cities and fringe benefits
municipalities with a population of at 3. The benefits are more than or at
least 1 million; or least commensurate or equal to what is
2. Hospitals and clinics with a bed due the Ees without the compressed work
capacity of at least 100 week
4. OT pay will be due and
Note: Art. 83(2) do not require hospitals to pay the demandable when they are required to
Ees a full weekly salary with paid 2 days off. (San work on those days which should have
Juan de Dios Ees Assoc.AFW et al. vs. NLRC, G.R. ceased to be working days because of the
No. 126383, Nov.28, 1997) compressed work week schedule.
5. No strenuous physical exertion
Compressed Workweek or that they are given adequate rest
periods.
Q: What is a compressed workweek? 6. It must be for a temporary
duration as determined by the DOLE.
A: The normal workweek is reduced to less than 6 (2005 Bar
days but the total number of workhours of 48 Question)
hours per week shall remain. The normal workday is
increased to more than 8 hours but not to exceed Q: What are the requisites for adoption of
12 hours, without corresponding overtime compressed workweek?
premium. The concept can be adjusted accordingly
depending on the normal workweek of the A:
company. (Department Advisory Order No. 2, Series 1. The Er shall notify the DOLE
of 2009) through the Regional Office which has
jurisdiction over the workplace, of the
Q: When is the implementation of a compressed adoption of compressed workweek.
work week valid? 2. The notice shall be in Report
Form attached to the advisory.
A: The validity of the reduction of working hours 3. The Regional Office shall
can be upheld when the arrangement is temporary, conduct an ocular visit to validate
it is a more humane solution instead of a whether the adoption of the flexible work
retrenchment of personnel, there is notice and arrangements is in accordance with this
issuance. (Department Advisory Order No.
2, Series of 2009)
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
and holidays are required for entitlement to Rate of the first 8 hours worked on
compensation. plus at least 30% of the regular wage (RW):
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 specific wages per day, without providing
not need Danilo's service for more than eight for a fixed hourly rate or that the daily
hours a day, in lieu of OT. Are the above provisions wages include OT pay, said wages cannot
of the contract of employment in conformity with, be considered as including OT
or violative of, the law? compensation. (Manila Terminal Co. vs.
CIR, et al., 91 Phil., 625)
A: Except for the provision that Danilo shall have 2. However, the employment
time off with pay when the company's executives contract may provide for a builtin OT
using the cars do not need Danilo's service for more pay. Because of this, nonpayment of OT
than 8 hours a day, in lieu of OT, the provisions of pay by the employer is valid. (Engg
the contract of employment of Danilo are not Equipment vs. Minister of Labor, G.R. No.
violative of any labor law because they instead L64967, Sep. 23, 1985)
improve upon the present provisions of pertinent
labor laws. (a)Undertime not offset by Overtime
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
A: It shall not include any profit to the employer (Er) and his
or to any person affiliated with the Er.
and subsistence
a.No work, No pay principle
A: GR: It applies to all employees A: The criterion is not so much with the kind of the
benefit or item (food, lodging, bonus or sick leave)
XPN: given, but its purpose. (State Marine v. Cebu
1. Farm tenancy or leasehold; Seamens Assn., G.R. No. L12444, Feb. 28, 1963)
2. Household or domestic helpers,
including family drivers and persons Q: When can the cost of facilities furnished by the
working in the personal service of Er be charged against an Ee?
another;
3. Home workers engaged in A: In order that the cost be charged against the Ee,
needlework or in any cottage industry the latters acceptance of such facilities must be
duly registered in accordance with law; voluntary.
4. Workers in duly registered
cooperatives when so recommended by Q: What are the requirements for deducting values
the Bureau of Cooperative Development for facilities?
and upon approval of the Secretary of
Labor and Employment. A:
5. Workers of a barangay micro 1. Proof must be shown that such
business enterprise (R.A. 9178) facilities are customarily furnished by the
trade
2. The provision of deductible
facilities must be voluntarily accepted in
writing
3. 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 different shifts and are expected to be available at
consumed by a hotel worker, considered facilities? various odd hours, their ready availability is a
necessary matter in the operations of a small hotel.
A: No. These are supplements. Considering, Furthermore, granting that meals and lodging were
therefore, that hotel workers are required to work
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: Is the Er legally obliged to correct WD?
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)
d.Wages v. Salaries
A:
execution
e.Wage Distortion
A:
1. An existing hierarchy of positions
with corresponding salary rates.
2. 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;
3. The elimination of the distinction
between the 2 groups or classes; and
4. The WD exists in the same region
of the country. (Alliance Trade Unions v.
NLRC, G.R. No. 140689, Feb. 17, 2004)
4. The reestablishment of a
significant difference in wage rates may be
A: The Er and the union shall negotiate the result of resort to grievance
to correct the distortions. If there is no procedures or collective bargaining
union, the Er and the workers shall negotiations. (Metro Transit Org., Inc. v.
endeavor to correct such distinctions. NLRC, G.R. No. 116008, July 11, 1995)
Q: What are the basic principles in WD? Q: Distinguish the process for correction of WD of
organized establishments and unorganized
A: establishments?
1. The concept of WD
assumes an existing group or A:
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
2. Often results from
govt decreed increases in
minimum wages.
3. 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.
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 Moreover, compliance with a collective bargaining
strike? agreement is mandated by the expressed policy to
give protection to labor. Unless otherwise provided
A: No. WD is nonstrikeable. (Ilaw at Buklod ng by law, said policy should be given paramount
Manggagawa v. NLRC, G.R. No. 91980, June 27, consideration. (Meycauayan College v. DRILON, G.R.
1991.) WD is neither a deadlock in collective No. 81144, My 7, 1990).
bargaining nor ULP.
g.Non diminution of benefits
f.CBA provision visvis Wage Order CBA Credibility
Q: What is the concept of nondiminution (ND) of
Q: Distinguish CBA and Wage Order. benefits?
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
(c) In cases where the employer is worker concerned (Art. 113). Art. 241(o)
authorized by law or regulations issued by provides that special assessments may be
the Secretary of Labor. validly checkedoff provided that there is
an individual written authorization duly
Art. 114 No employer shall require his worker to signed by every employee (Ee).
make deposits from which deductions shall be 3. Deductions for SSS, Medicare
made for the reimbursement of loss of or damage and Pagibig premiums
to tools, materials or equipments supplied by the 4. Taxes withheld pursuant to the Tax Code
employer; except when the employer is engaged in 5. Deductions under Art. 114 for
such trades, occupations or business where the loss or damage to tools, materials or
practice of making deductions or requiring deposits equipments
is a recognized one, or is necessary, or desirable as 6. Deductions made with the
determined by the Secretary of Labor in appropriate written authorization of the Ee for
rules and regulations. payment to a third person. (Sec 13, Rule
VIII, Book III of the IRR)
Art. 115 LimitationsNo deduction from the 7. Deductions as disciplinary
deposits of an employee for the actual amount of measures for habitual tardiness (Opinion
the loss or damage shall be made unless the dated March 10, 1975 of the SLE)
employee has been heard thereon, and his 8. Agency fees under Art. 248(e)
responsibility has been clearly shown. 9. Deductions for value of meals
and facilities freely agreed upon
Art 116 Withholding of Wages and Kickbacks 10. In case where the Ee is indebted
ProhibitedIt shall be unlawful for any person, to the Er where such indebtedness has
directly or indirectly, to withhold any amount from become due and demandable. (Art. 1706,
the wages of a worker or induce him to give up any Civil Code)
part of his wages by force, stealth, intimidation, 11. In court awards, wages may be
threat or by any other means whatsoever without subject of execution or attachment, but
the workers consent. only for debts incurred for food, shelter,
clothing, and medical attendance. (Art.
Art 117 Deduction to Ensure EmploymentIt shall be 1703, Civil Code)
unlawful to make any deduction from the wages of 12. Salary deduction of a member
any employee for the benefit of the employer or his of a legally established cooperative. (R.A.
representative or intermediary as consideration of a 6938, Art. 59)
promise of employment or retention in
employment or retention in employment. k.Attorneys fees
Art. 118 Retaliatory MeasuresIt shall be unlawful Q: What are the limitations to the assessment of
for an employer to refuse to pay or reduce the attorneys lien against the culpable party?
wages and benefits, discharge or in any manner
discriminate against any employee who has filed A:
any complaint instituted any proceeding under this 1. In case of unlawful withholding of wages
Title or has testified or is about to testify in such 10% of the amount of wages to be
proceedings. recovered.
2. It shall be unlawful for any
j. Allowable deductions without employees person to demand or accept, in any
consent judicial or administrative proceedings for
the recovery of wages, attys fees that
Q: What is the rule in wage deductions? exceed 10% of the amount of wages
recovered.
A:
GR: It is strictly prohibited Note: The prohibition on attys lien refers to
proceedings for recovery of wages and not to services
XPN: rendered in connection with CBA negotiations. In the
1. Deductions under Art. 113 for latter case, the amount of attys fees may be agreed
insurance premiums upon by the parties and the same is to be charged
against union funds as provided for in Art. 222 of the
2. Union dues in cases where the right
Labor Code. (Pacific Banking Corp.v. Clave, G.R. No.
of the worker or his union to check off has
56965, Mar. 7, 1984)
been recognized by the employer (Er) or
authorized in writing by the individual
Q: What is ordinary attorneys fee?
A: It is the reasonable compensation paid to a Q: When can attorneys fees and damages be
lawyer by his client for the legal services he has awarded in an illegal dismissal case?
rendered.
A: For attorneys fees, moral and exemplary
Q: What is extraordinary attorneys fee? damages to be granted, the plaintiff must prove that
the facts of his case fall within the enumerated
A: It is the indemnity for damages ordered by the instances in the Civil Code. Thus, moral damages
court to be paid by the losing party in litigation and may only be recovered where the dismissal or
is not to be paid to the lawyer but to the client, suspension of the employee was attended by bad
unless they have agreed that the award shall pertain faith or fraud, or constituted an act oppressive to
to the lawyer as an additional compensation or as a labor, or was done in a manner contrary to morals,
part thereof. (Traders Royal Bank Ees Union good customs or public policy. In other words, the
Independent v. NLRC, G.R. No. 120592, Mar. 14, act must be a conscious and intentional design to
1997) do a wrongful act for a dishonest purpose or some
moral obliquity. Exemplary damages, on the other
Note: Art.111 of the LC deals with the extraordinary hand, may only be awarded where the act of
concept of attorneys fees. It may not be used as the dismissal was effected in a wanton, oppressive or
standard in fixing the amount payable to the lawyer by malevolent manner. (Chaves v. NLRC,G.R. No.
his client for the legal services he rendered. (Masmud 166382, June 27, 2006)
v. NLRC, G.R. No. 183385, Feb. 13, 2009)
Q: What is union service fee?
Q: Santiago, a project worker, was being assigned
by his Er, Bagsak Builders, to Laoag, Ilocos Norte. A: The appearance of labor federations and local
Santiago refused to comply with the transfer unions as counsel in labor proceedings has been
claiming that it, in effect, constituted a given legal sanction under Art.222 of the LC, which
constructive dismissal because it would take him allows nonlawyers to represent their organization
away from his family and his usual work thereof. The said labor federations and local unions
assignments in Metro Manila. The Labor Arbiter have a valid claim to attys fees which is called the
(LA) found that there was no constructive dismissal Union Service Fee.
but ordered the payment of separation pay due to
strained relations between Santiago and Bagsak l.Criteria/ Factors for Wage Setting
Builders plus attys fees equivalent to 10% of the
value of Santiago's separation pay. Q: What are the standards or criteria for minimum
wage setting?
Is the award of atty's fees valid? State the reasons
for your answer. A: In the determination of such regional minimum
wages, the Regional Board shall, among other
A: No, the award of attys fees is not valid. relevant factors consider the following:
According to the LC (Art. 111 [a]), attys fees may be
assessed in cases of unlawful withholding of wages a) The demand for living wages
which does not exist in the case. The worker refused b) Wage adjustment visavis the
to comply with a lawful transfer order, and hence, a consumer price index
refusal to work. Given this fact, there can be no c) The cost of living and changes or
basis for the payment of atty's fees. increases therein
d) The needs of workers and their families
Could the LA have validly awarded moral and e) The need to induce industries to
exemplary damages to Santiago instead of atty's invest in the countryside
fees? Why? f) Improvements in standards of living
g) The prevailing wage levels
A: No, moral and exemplary damages can be h) Fair return of the capital
awarded only if the worker was illegally terminated invested and capacity to pay of employers
in an arbitrary or capricious manner. (Nueva Ecija i) Effects on employment
Electric Cooperative Inc., Ees Assn., vs. NLRC, G.R. generation and family income
No. 116066, Jan. 24, 2000; Cruz vs. NLRC, G.R. No. j) The equitable distribution of
116384, Feb. 7, 2000; Phil. Aeolus etc., vs. NLRC, income and wealth along the imperatives
G.R. No. 124617, April 28, 2000). (2001 Bar of economic and social development
Question)
Q: What is salary ceiling method?
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
A: A method of minimum wage adjustment (MBTC v NWPC Commission, G.R. NO. 144322, Feb.
whereby the wage adjustment is applied to Ees 6, 2007)
receiving a certain denominated ceiling. In other
words, workers already being paid more than the 3.REST DAY
existing minimum wage are also to be given a wage
increase. (ECOP v. NWCP, G.R. No. 96169, Sep. 24, a.Right to weekly rest day, Preferemce of the
1991) employee, when work on rest day authorized
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 A: Every employer shall give his employees a rest
be added to the prevailing statutory minimum wage period of not less than 24 consecutive hours after
rates. 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 Q: What is the scope of WRD?
throughout the region an acrosstheboard
increase of P15.00 daily. Is this Wage Order valid? A: It shall apply to all employers whether operating
for profit or not, including public utilities operated
A: The Wage Order is valid insofar as the mandated by private persons. (Sec. 1, Rule III, Book III, IRR)
increase applies to Ees earning the prevailing
minimum wage rate at the time of the passage of Q: Who determines the WRD?
the Wage Order and void with respect to its
application to Ees receiving more than the A: GR: Er shall determine and schedule the
prevailing minimum wage rate at the time of the WRD of his Ee.
passage of the Wage Order. Pursuant to its
authority, the Regional Wage Boards may issue XPNs:
wage orders which set the daily minimum wage 1. CBA
rates. In the present case, the Regional Wage Board 2. Rules and regulations as the SLE provides
did not determine or fix the minimum wage rate. It 3. Preference of employee (Ee)
did not set a wage level nor a range to which a wage based on religious grounds Ee shall
adjustment or increase shall be added. Instead, it make known his preference in writing at
granted an acrosstheboard wage increase of least 7 DAYS before the desired effectivity
P15.00 to all Ees in the region. In doing so, the of the initial rest day so preferred. (Sec.
Regional Wage Board exceeded its authority by 4(1), Rule III, Book III, IRR)
extending the coverage of the Wage Order to wage
earners receiving more than the prevailing XPN to XPN no. 3: Employer (Er) may
minimum wage rate, without a denominated salary schedule the WRD of his choice for at
ceiling. The Wage Order granted additional benefits least 2 days in a month if preference of
not contemplated by R.A. No. 6727. (MBTC v NWPC the employee will inevitably result in:
Commission, G.R. No. 144322, Feb. 6, 2007) a. serious prejudice to the
operations of the undertaking and
Q: Since the Wage Order was declared void with b. the Er cannot normally be
respect to its application to employees receiving expected to resort to other remedial
more than the prevailing minimum wage rate at measures. (Sec. 4(2), Rule III, Book III,
the time of the passage of the Wage Order, should IRR)
these Ees refund the wage increase received by
them? Q: When should employees (Ees) be informed of
their schedule of WRD?
A: No. The Ees should not refund the wage increase
that they received under the invalidated Wage A: Er shall make known rest period by means of:
Order. Being in good faith, the employees need not 1. Written notice
refund the benefits they received. Since they 2. Posted conspicuously in the workplace
received the wage increase in good faith, in the 3. At least 1 week before it
honest belief that they are entitled to such wage becomes effective. (Sec.5, Rule III, Book
increase and without any knowledge that there was III. IRR)
no legal basis for the same, they need not refund
the wage increase that they already received. Q: Can an Ee be compelled to work on his rest
day?
A: GR: No.
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 are the rates of compensation for rest Q: Jose applied with Mercure Drug Company for
day, Sunday or holiday work? the position of Sales Clerk. Mercure Drug Company
maintains a chain of drug stores that are open
A: everyday till late at night. Jose was informed that
RATES OF ADDITIONAL he had to work on Sundays and holidays at night as
INSTANCES
COMPENSATION 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 pay for late night work, considering the laws and
compensation is an amount that is wage orders providing for minimum wages, and the
not less than what Jose should pertinent provisions of the LC, then the waiver that
receive for all the days that he works, Jose signed is binding on him for he is not really
plus the extra compensation that he waiving any right under Labor Law. It is not contrary
should receive for work on his weekly
rest WRD and for night differential
LABOR LAW TEAM:
38 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: They are compensable whether worked or
unworked subject to certain conditions. They
to law, morals, good customs, public order or public are also called legal holidays. The following are
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:
1. National Special Public
Holiday GR: Non working days
2.
3.
4.
Q: Can a Muslim Ee working outside the Muslim 8. Ee paid fixed amount for
area be compelled to work during the observance performing work irrespective of the time
of the MH? consumed in the performance thereof.
(Sec. 1, Rule IV, Book III, IRR)
A: GR: No. Muslim Ees shall be
excused from work during MH without Q: What are retail establishments?
diminution of salary or wages.
A: They are engaged in the sale of goods to end
XPN: Those who are permitted or suffered to users for personal or household use. (e.g. Grocery)
work on MH are entitled to at least 100% basic
pay + 100% as premium of their basic pay. (SMC Q: What are service establishments?
v. CA, G.R. No. 146775, Jan. 30, 2002)
A: They are engaged in the sale of services to
Note: RH falling within temporary or periodic individuals for their own or household use. (e.g. TV
shutdown and temporary cessation of work are repair shop)
compensable. However, if the temporary or periodic
shutdown and cessation of work is due to business Q: Is an exercise of profession retail or service?
reverses, the employer may not pay the RHs during
such period. A: It is neither retail nor service.
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
Private
Q: What is the effect if a legal holiday falls on a
Sunday?
A:
A:
TEMPORARY OR PERIODIC SHUTDOWN and TEMPORARY
CESSATION OF WORK (Sec. 7, Rule IV, Book III, IRR)
Q: Are the school faculty who according to their
teachers (Faculty contracts are paid per lecture hour entitled to
unworked HP?
members
A:
1. If during regular holiday No. Art. 94 of
colleges
LC is silent with respect to faculty members
paid by the hour who because of their teaching
universities) 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
Ee paid by: national need calls for the declaration of
1. results or special holidays). RH specified as such by law
are known to both school and faculty members
2. output
as "no class days" certainly the latter do not
(Piece
expect payment for said unworked days, and
payment) 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)
Seasonal Workers
2. If during special public holidays Yes. The
Workers having no 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
regular work days
which is the prevention of diminution of the
Seafarers monthly income of the Ees on account
5.LEAVES
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
practice or policy, or that provided in the the SIL may be on a prorata basis. (No. VI(c), DOLE
employment contract is less than 12 months, in Handbook on Workers Statutory Monetary Benefit)
which case said period shall be considered as one
year. (Sec. 3, Rule V, Book III, IRR) Q: Are parttime workers entitled to the full
benefit of the yearly 5 day SIL?
Q: Who are entitled to SIL?
A: Yes. Art. 95 of Labor Code speaks of the number
A: GR: Applies to every Ee who has of months in a year for entitlement to said benefit.
rendered at least 1 year of service. (Art. (Bureau of Working Conditions Advisory Opinion to
95[a]) Phil. Integrated Exporters, Inc.)
2. The payment shall be advanced Q: What are the requirements in order to avail
by the Er in 2 equal installments within 30 paternity leave?
days from the filing of the maternity leave
application A: The male employee (Ee) applying for paternity
leave shall:
3. In case of caesarian delivery, the
Ee shall be paid the daily maternity 1. Notify his employer (Er) of the
benefit for 78 days pregnancy of his legitimate spouse and
2. The expected date of such delivery.
4. Payment of daily maternity
benefits shall be a bar to the recovery of Q: What are the conditions for entitlement to
sickness benefits for the same paternity leave?
compensable period of 60 days for the
same childbirth, abortion, or miscarriage A: The male Ee is;
5. The maternity benefits provided 1. Legally married to, and is
under Section 14A shall be paid only for cohabiting with the woman who delivers
the first four deliveries the baby
2. Ee of private or public sector;
6. The SSS shall immediately 3. Only for the first 4 deliveries of
reimburse the Er of 100% of the amount legitimate spouse with whom he is
of maternity benefits advanced to the Ee cohabiting; and
by the Er upon receipt of satisfactory 4. Notify his Er of the pregnancy of
proof of such payment and legality his legitimate spouse and the expected
thereof; and date of such delivery
7. If an Ee should give birth or suffer Note: For purposes of this Act, delivery shall include
abortion or miscarriage without the childbirth or any miscarriage.
required contributions having been
Q: Jemuel is a bank employee of BPI. He is
remitted for her by her Er to the SSS, or
cohabiting with Paula for straight five years with
without the latter having been previously
whom he has four children. On the fifth year of
notified by the Er of the time of the
their cohabitation, Paula had her miscarriage.
pregnancy, the Er shall pay to the SSS
Jemuel is availing himself of his paternity leave. Is
damages equivalent to the benefits which
he entitled to paternity leave?
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
A: No. Jemuel is not entitled to paternity he/she is entrusted with the custody
leave because the facts of the case only show that of the children;
he is only cohabiting with Paula. The law expressly e. Nullity or annulment of marriage as
provides that the male must be legally married to decreed by a court or by a church as
the woman with whom he is cohabiting as a long as he/she is entrusted with the
condition for entitlement of paternity leave. Even custody of the children;
assuming that Jemuel is legally married to Paula, he f. Abandonment of spouse for at
cannot avail also of the paternity leave because the least 1 yr;
law limits the deliveries only to four which include 3.Unmarried mother/father who has
childbirth or miscarriage. Based on the facts, it is preferred to keep and rear his or her
already the fifth delivery of the woman. child/children instead of:
a. having others care for them or
d.Parental Leave b. give them up to a welfare institution;
4. Any other person who solely provides:
Q: What is parental leave? a. parental care and
b. support to a child or children;
A: Leave benefits granted to a solo parent to enable 5. Any family member who assumes
him/her to perform parental duties and the responsibility of head of family as a
responsibilities where physical presence is result of the:
required. a. death,
b. abandonment,
In addition to leave privileges under existing laws, c. disappearance or
parental leave of not more than 7 working days d. prolonged absence of the parents
every year shall be granted to any solo parent Ee or solo parent.
who has rendered service of at least 1 year. (Sec. 8)
Note: A change in the status or circumstance of the
Q: What are the conditions for entitlement of parent claiming benefits under this Act, such that
parental leave? he/she is no longer left alone with the responsibility of
parenthood, shall terminate his/her eligibility for these
A: benefits. (Sec.3)
1. He or she must fall among those referred to as
solo parent e.Leaves for victims of violence against women
2. Must have the actual and physical custody of
the child or children Q: What is the leave for victims of violence against
3. Must have at least rendered service of one women or otherwise known as battered woman
year to his or her employer leave?
4. He or she must remain a solo parent
A: A female employee who is a victim of violence
Q: Who are those referred to as solo parent (physical, sexual, or psychological) is entitled to a
entitled to parental leave? 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
Note: Applies only to hotels, restaurants and similar Q: What would be your advice to your client, a
establishment collecting service charges. manufacturing company, who asks for your legal
opinion on whether or not the 13th Month Pay
XPN: Managerial Ees. (Sec. 2, Rule VI, Book III, IRR) Law covers a casual Ee who is paid a daily wage?
monthly share of each Ees for the past 12 months Month pay before the opening of the regular school yr.
immediately preceding the abolition. and the other half on or before the Dec. 24.
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
th
A: Nonpayment of the 13 month pay provided by XPN: Ees who are paid a guaranteed minimum
th
P.D. 851 and the rules of NLRC shall be treated as wage or commissions earned are entitled to 13
money claims cases. month pay based on total earnings. (Philippine
Agricultural Commercial and Industrial Workers
th
Q: Are the following Ees entitled to 13 month Union v. NLRC, G.R. No. 107994, Aug. 14, 1995)
pay?
th
Q: Is 14 Month Pay legally demandable?
a. Ees who are paid by results
b. Ees with multiple Ers th
A: No. The granting of 14 month pay is a
c. Private school teachers management prerogative and is not legally
d. Resigned or separated Ees demandable. It is basically a bonus and is gratuitous
in nature. (Kamaya Point Hotel v. NLRC, G.R. No.
A: 75289, Aug. 31, 1989)
1. Ee paid by results entitled to
th th
13 month pay. c.Commissions visvis 13 month pay
th
Note: Ees paid a fixed or guaranteed wage Q: What is commission in relation to 13 month
plus commission are also entitled to the pay?
th
mandated 13 month pay, based on their
total earnings during the calendar year, i.e. A:
on both their fixed or guaranteed wage and 1. The salesmans commissions,
commission comprising a predetermined percent of
the selling price of the goods sold by each
2. Those with Multiple Ers salesman, were properly included in the
Government Ees working part time in a term basic salary for purposes of
private enterprise, including private th
computing their 13 month pay.
educational institutions, as well as Ees
working in 2 or more private firms,
2. The so called commission paid
whether full or part time basis, are
th to or received by medical representatives
entitled to the required 13 month pay of BoieTakeda Chemicals or by the rank
from all their private Ers regardless of and file Ees of Phil. Fuji Xerox were
their total earnings from each or all their excluded from the term basic salary
Ers. because these were paid as productivity
bonuses. Such bonuses closely resemble
3. Private School Teachers, profit sharing, payments and have no
including faculty members of universities clear, direct, necessary relation to the
and colleges entitled regardless of the amount of work actually done by each
number of months they teach or are paid individual employee.
within a year, if they have rendered
service for at least 1 month within a year. d.CBA visvis 13 month pay
th
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
A:
1. Discrimination with respect to the terms
and conditions of employment solely on
account of sex
female Ee as against a
b. Favoring a male Ee w
promotion,
study
account of gender. (A
c. Favoring
respect to hiring w
particular job can equ
by a woman
d. Favoring a male Ee over a female
with respect to dis
personnel.
2. Stipulating,
employment
employment:
a. That a
married, or
b. That upon marriage, such woman
shall be deemed r
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
3. Dismissing,
137)
(Art. 137)
promotion or assignment,
Q: What is the nospouse employment policy? Glaxo does not impose an absolute prohibition
against relationships between its Ees and those of
A: GR: competitor companies. Its Ees are free to cultivate
1. Policy banning spouses from relationships with and marry persons of their own
working in the same company. choosing. What the company merely seeks to avoid
2. May not facially violate Art. 136 is a conflict of interest between the Ee and the
of the LC but it creates a disproportionate company that may arise out of such relationships.
effect and the only way it could pass Furthermore, the prohibition forms part of the
judicial scrutiny is by showing that it is employment contract and Tecson was aware of such
reasonable despite the discriminatory restrictions when he entered into a relationship
albeit disproportionate effect. with Bettsy. (Duncan Asso. of DetailmanPTGWO v.
Glaxo Wellcome Phil. Inc., G.R. No. 162994, Sep.17,
XPN: Bona fide occupational qualification rule 2004)
(BFOQ)
c.Classification of Certain Women Workers (Art.
Q: What is the BFOQ rule? 138, LC)
A: There must be a finding of any BFOQ to justify an Q: Who are covered under this Title?
Ers no spouse rule. There must be a compelling
business necessity for which no alternative exist A: Any women who is permitted or suffered to
other than the discriminating practice. work:
To justify a BFOQ the employer must prove two 1. With or without compensation
factors: 2. In any night club, cocktail
lounge, massage clinic, bar or similar
1. That the employment establishment
qualification is reasonably related to the 3. Under the effective control or
essential operation of the job involved; supervision of the Er for a substantial
and period of time
2. That there is a factual basis for 4. Shall be considered as an Ee of
believing that all or substantially all such establishment for purposes of labor
persons meeting the qualification would and social legislation.
be unable to properly perform the duties
of the job. (Star Paper v. Simbol, G.R. No. d.Anti Sexual Harrasment Act
164774, April 12, 2006) RA 7877
Q: What is the importance of the BFOQ Rule? Q: What is the policy of the State in enacting the
AntiSexual Harassment law?
A:
1. To ensure that the Ee can A: The State shall:
effectively perform his work
2. So that the nospouse rule will 1. Value the dignity of every individual
not impose any danger to business. 2. Enhance the development of it
human resources
Q: Tecson was employed by Glaxo as medical 3. Guarantee full respect for
representative who has a policy against Ees having human rights and
relationships against competitors Ees. Tecson 4. Uphold the dignity of workers,
married Bettsy, a Branch coordinator of Astra, Ee, applicants for employment, students
Glaxos competitor. Tecson was transferred to or those undergoing training, instruction
another area. Tecson did not accept such transfer. or education. (Sec. 2)
Is the policy of Glaxo valid and reasonable so as to Q: Who may be held liable for sexual harassment?
constitute the act of Tecson as willful
disobedience? A: In a work, education or trainingrelated
environment sexual harassment may be committed
A: The prohibition against personal or marital by an:
relationships with Ees of competitors companies
upon Glaxos Ees is reasonable under the 1. Ee
circumstances because relationships of that nature 2. Manager
might compromise the interest of the company. 3. Supervisor
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
Q:What are the general prohibitions? Q: What is the duty of the Er before engaging child
into work?
A: GR:
1. No person under 18 years of age A: The Er shall first secure a work permit from the
will be allowed to be employed in an DOLE which shall ensure observance of the
undertaking which is hazardous or requirements. (Sec. 12, R.A. 7160)
deleterious in nature.
2. No Er shall discriminate against any Q: What is the rule regarding the issuance of work
person in respect to terms and conditions certificates/ permits for children at least 15 but
of employment on account of his age. below 18 years of age?
(c) of the LC provides that a person below 18 yrs of the employment of persons below 18 years of age
age shall not be allowed to work in an undertaking in an undertaking which is hazardous or deleterious
which is hazardous or deleterious in nature as in nature as determined by the SLE.
determined by the SLE. Paint manufacturing has
been classified by the SLE as a hazardous work. 2. An 11year old boy who is an accomplished
(2002 Bar Question) singer and performer in different parts of the
country.
Q: What are the prohibitions on the employment
of children in certain advertisements? A: No, he should not be prohibited from being hired
and from performing as a singer. Under Art. VIII Sec.
A: No employment of child models in all 12 par. 2 of R.A. 7619 as amended by R.A. 7658, this
commercial advertisements promoting: constitutes an exception to the general prohibition
against the employment of children below 15 years
1. Violence of age, provided that the following requirements
2. Alcoholic beverages are strictly complied with:
3. Intoxicating drinks
4. Tobacco and its by products 1. The Er shall ensure the
protection, health safety and morals of
Q: A spinster school teacher took pity on one of the child
her pupils, a robust and precocious 12year old boy 2. The Er shall institute measures
whose poor family could barely afford the cost of to prevent the childs exploitation or
his schooling. She lives alone at her house near the discrimination taking into account the
school after her housemaid left. In the afternoon, system and level of remuneration, and
she lets the boy do various chores as cleaning, the duration and arrangement of working
fetching water and all kinds of errands after school time; and
hours. She gives him rice and P30.00 before the 3. The Er shall formulate and
boy goes home at 7:00 every night. The school implement, subject to the approval and
principal learned about it and charged her with supervision of competent authorities, a
violating the law which prohibits the employment continuing program for training and skill
of children below 15 years of age. In her defense, acquisition of the child. Moreover, the
the teacher stated that the work performed by her child must be directly under the sole
pupil is not hazardous, and she invoked the responsibility of his parents or guardian
exception provided in the Department Order of and his employment should not in any
DOLE for the engagement of persons in domestic way interfere with his schooling.
and household service. Is her defense tenable?
Reason? 3. A 15year old girl working as a library assistant
in a girls' high school.
A: No, her defense is not tenable. Under Art. 139 of
the LC on minimum employable age, no child A: No, she should not be prohibited from working
below 15 years of age shall be employed except as a library assistant because the prohibition in the
when he works directly under the sole responsibility LC against employment of persons below 18 years
of his parents or guardian, the provisions of the of age merely pertains to employment in an
alleged DO of DOLE to the contrary undertaking which is hazardous or deleterious in
notwithstanding. A mere DO cannot prevail over the nature as identified in the guidelines issued by the
express prohibitory provisions of the LC. (2004 Bar SLE working as a library assistant is not one of
Question) undertakings identified to be hazardous under D.O.
No 04 Series of 1999.
Q: Determine whether the following minors
should be prohibited from being hired and from 4. A 16year old girl working as model promoting
performing their respective duties indicated alcoholic beverages.
hereunder:
A: Yes, she should be prohibited from working as a
1. A 17year old boy working as miner at the model promoting alcoholic beverages. R.A. 7610
Walwadi Mining Corporation. categorically prohibits the employment of child
models in all commercials or advertisements
A: Yes, he should be prohibited from being hired promoting alcoholic beverages and intoxicating
and from performing the duties of a miner because drinks, among other things.
such constitutes hazardous work under D.O. No. 04
Series of 1999. Art. 139 (c) of LC expressly prohibits 5. A 17year old boy working as a dealer in a
casino.
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
5. Nonassignment to a work in a
commercial, industrial or agricultural
10.EMPLOYMENT OF HOUSEHELPERS enterprise at a wage or salary rate lower
than that provided for agricultural or non
a.Definition agricultural workers. (Art. 145)
Q: What is domestic or household service? 6. Ees under 18 years of age shall
A: be given opportunity for at least
1. Services in the Ers home elementary education. The cost of
2. Usually necessary or desirable education shall be part of the HHs
3. For the maintenance and compensation, unless otherwise
employment thereof stipulated. (Art 146)
4. Includes ministering to the 7. Should be treated in a just and
personal comfort and convenience of the humane manner. (Art. 147)
members of the Ers household 8. Not to be treated with physical
5. Including services of family violence (Art. 147)
drivers. 9. Suitable and sanitary living
headquarters as well as adequate food
Q: Who is a househelper? and medical attendance. (Art. 148)
10. Termination of employment should be
A: A househelper is synonymous to domestic a. upon expiration of term of
servant employment, or
b. based on just cause (Art. 149)
1. Any person, male or female; 11. Indemnity for unjust
2. Who renders services in and termination of service
about the Ers home and; 12. Employment certification as to
3. Services are usually necessary or nature and duration of service and
Desirable for the maintenance and efficiency and conduct of househelper.
enjoyment thereof, and
4. Ministers exclusively to the Q: What is the minimum wage for househelpers?
personal comfort and enjoyment of Ers
family A:
1. Meto ManilaP 800 / month
Note: The children and relatives of a househelper who 2. Other Chartered Cities or First Class
live under the Ers roof and who share the MunicipalitiesP 650 / month
accommodations provided for the househelper by the 3. In other MunicipalitiesP 550 / month
Er shall not be deemed as househelpers if they are not
otherwise engaged as such and are not required to Note: The minimum cash wage rates shall be paid to
perform any substantial household work. (Sec 3, Rule the househelpers in addition to lodging, food and
XII, Book III, IRR) medical attendance.
A: It shall be the duty of the Er to provide in such Q: Distinguish househelpers from homeworkers.
contract that the Ees or HWs of the contractor and
the latters subcontractor shall be paid in A:
HOUSEHELPERS HOMEWORKERS
accordance with the LC. Performs in or about his
own home any processing
Q: What is the liabilty of the Er if the contractor or or fabrication of goods or
subcontractor fails to pay the wages or earnings of Minister to the personal materials, in whole or in
his Ees? needs and comfort of his part, which have been
Er in the latters home furnished directly or
A: Er shall be jointly and severally liable with the indirectly, by an Er and
contractor or subcontractor to the workers of the sold thereafter to the
latter to the extent that such work is performed latter.
under such contract, in the same manner as if the Q: Josie is the confidential secretary of the
Ees or HWs were directly engaged by the Er. Chairman of the Board of the bank. She is
presently on maternity leave. In an arrangement
Q: Can Homeworkers form labor organizations? where the Chairman of the Board can still have
access to her services, the bank allows her to work
A: Yes. DO No. 5, replacing Rule XIV of the IRR in her residence during her leave. For this purpose,
Book the bank installed a fax machine in her residence,
3 of the LC, authorizes the formation and and gave her a cellphone and a beeper. Is Josie a
registration of labor organization of industrial HWs. homeworker under the law? Explain.
It also makes explicit the Ers duty to pay and remit
SSS, Philhealth and ECC premiums. A: No, she is actually an office worker. She is not an
industrial homeworker who accepts work to be
Q: What are the prohibitions against fabricated or processed at home for a contractor,
homework? which work, when finished, will be returned to or
repurchased by said contractor. (Art. 155, LC) (2000
A: No homework shall be performed on: Bar Question)
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 A: They are contractual workers whose length of
advanced technology. service depends on the term provided for in the
apprenticeship agreement. Thus, the employer is
Q: What are related theoretical instructions? not obliged to employ the apprentice after the
completion of his training.
A: Technical information based on apprenticeship
standards approved by the Bureau. Q: What is the period of apprenticeship?
Note: Prior approval by TESDA (formerly DOLE) of the A: Must not exceed 6 months:
proposed apprenticeship program is a condition sine
qua non. Otherwise, apprentice becomes a regular Ee. 1. 2 months/400 hours: Trades or
(Nitto Enterprises v. NLRC, G.R. No. 114337, Sep. 29, occupations which normally require 1
1995). year or more for proficiency
2. 1 month/200 hours:
Q: What are the qualifications of an apprentice? Occupations and jobs which require more
than 3 months but less than 1 year for
A: proficiency. (Sec. 19, Rule VI, Book II, IRR)
1. At least 15 years of age
Note: Those below 18 years of age shall not Q: What is the status of an apprentice hired after
work in hazardous occupations such term?
2. Physically fit for the occupation
3. Possess vocational aptitude and A: He is deemed a regular Ee. He cannot be hired as
capacity a probationary Ee since the apprenticeship is
4. Possess: deemed the probationary period.
a. The ability to
comprehend, and Q: What is the wage rate of an apprentice?
b. Follow oral and written
instructions A: Start at not less than 75% of the statutory
5. The company must have an st
minimum wage for the 1 6 months (except OJT);
apprenticeship program duly approved by thereafter, shall be paid in full minimum wage,
the DOLE. including the full COLA.
Note: Trade and industry associations may recommend Note: GR: Apprenticeship programs shall be primarily
to the SLE appropriate educational requirements for voluntary
different occupations.
XPN: Compulsory apprenticeship:
Q: When is an occupation deemed hazardous? 1. National security or economic
development so demand, the President
A: may require compulsory training
1. Nature of work exposes worker to 2. Services of foreign technicians are
dangerous environmental elemental utilized by private companies in
contaminants or work conditions apprenticeable trades.
2. Workers are engaged in
construction work, logging, firefighting, Q: What are the rules regarding apprenticeship
mining, quarrying, blasting, stevedoring, agreements?
deepsea fishing, and mechanized farming
3. Workers are engaged in the A: Apprenticeship agreements, including the wage
manufacture or handling of explosives rates of apprentices, shall:
and other pyrotechnic products
1. Conform to the rules issued by SLE.
4. Workers use, or are exposed to
2. The period of apprenticeship
heavy or powerdriven machinery or
shall not exceed 6 months.
equipment.
3. Apprenticeship agreements
providing for wage rates below the legal
Q: Who may employ apprentices?
minimum wage, which in no case shall
start below 75% of the applicable min.
A:
wage, may be entered into only in
1. Only employers in highly technical
accordance with
industries and
2. Only in apprenticeable occupations
approved by SLE
apprenticeship programs duly approved A: Gomburza College is not liable for the acts of
by the SLE. Padilla because there is no ErEe relationship
4. The DOLE shall develop standard between them. As provided in the Rules and
model programs of apprenticeship. (Sec. Regulations Implementing the LC "there is no ErEe
18, Rule VI, Book II, IRR) relationship between students on one hand, and
schools, colleges, or universities on the other, where
Q: Who signs the apprenticeship agreement? students work with the latter in exchange for the
privilege to study free of charge, provided the
A: Every apprenticeship agreement shall be signed students are given real opportunity, including such
by: facilities as may be reasonable and necessary to
finish their chosen courses under such
1. The employer or his agent, or arrangement." (1997 Bar Question)
2. An authorized representative of
any of the recognized organizations, Q: Who may terminate an apprenticeship
associations or groups, and agreement?
3. The apprentice.
A:
Q: Who will sign if the apprentice is a minor? 1. Either party may terminate an
agreement after the probationary period
A: An apprenticeship agreement with a minor shall but only for a valid cause.
be signed in his behalf by: 2. It may be initiated by either
party upon filing a complaint or upon
1. His parent or guardian, or if the DOLEs own initiative.
latter is not available,
2. An authorized representative of Q: Who may appeal the decision of the authorized
the DOLE. agency of the DOLE?
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
b.Learners
A:
1. They are persons hired as trainees in
semiskilled
occupations
2. Which are nonapprenticeable and
3. Which may be learned through practical
training on the job in a relatively short
period of time
4. Which shall not exceed 3 months
5. Whether or not such practical training is
A:
3. Employment
competition in terms of labor costs or
impair or lower working standards.
A: Those whose earning capacity is impaired Q: What are the rights and privileges of disabled
by: workers?
1. Physical deficiency A:
2. Age 1. Equal opportunity for employment
3. Injury 2. Sheltered employment (the govt
4. Disease shall endeavour to provide them work if
5. Mental deficiency suitable employment for disabled persons
6. Illness cannot be found through open employment)
3. Apprenticeship
Q: What is the duration of the employment period 4. Vocational rehabilitation (means
of handicapped workers? to develop the skills and potentials of
disabled workers and enable them to
A: There is no minimum or maximum duration. It compete in the labor market)
depends on the agreement but it is necessary that 5. Vocational guidance and counselling
there is a specific duration stated.
c.Prohibitions on discrimination against disabled
Q: May handicapped workers be hired as persons
apprentices or learners?
Q: What is the prohibition on discrimination
A: Yes, if their handicap is not such as to effectively against disabled workers?
impede the performance of job operations in the
particular occupations for which they are hired. A: No disable person shall be denied access to
(Art. 81) opportunities for suitable employment. A qualified
disabled employee shall be subject to the same
Q: Can a handicapped workers acquire the status terms and conditions of employment and the same
of a regular Ee? compensation, privileges, benefits, fringe benefits,
incentives or allowances as a qualified able bodied
A: Yes, if work is usually or necessarily or person.
desirable
to the business. (Bernardo v. NLRC, G.R No. 122917, Five percent (5%) of all casual emergency and
July 12, 1999) contractual positions in the Departments of Social
Welfare and Development; Health; Education,
Q: Who may employ handicapped workers? Culture and Sports; and other government agencies,
offices or corporations engaged in social
A: Employers in all industries. Provided, the development shall be reserved for disabled persons.
handicap is not such as to effectively impede the
performance of job operations in the particular d.Incentives for employers
occupations for which they are hired
Q: What are the incentives provided for employers
Q: When can handicapped workers be in employing disabled workers?
employed?
A: 1. Entitled to an additional deduction, from their
A: gross income, equivalent to twentyfive percent
1. When their employment is (25%) of the total amount paid as salaries and
necessary to prevent curtailment of wages to disabled persons: Provided, however, That
employment opportunities and such entities present proof as certified by the
2. When it will not create unfair Department of Labor and Employment that disabled
competition in labor costs or lower persons are under their employ: Provided, further,
working standards. (Art. 79) That the disabled employee is accredited with the
Department of Labor and Employment and
Q: Does the mere fact that a worker has a
disability, make him a handicapped worker?
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
A:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: The employment contract stipulates that there Is there an ErEe relationship between the BARON,
is no ErEe relationship between the parties. Is that on one hand, and the ASIA security guards, on the
valid? other hand? Explain briefly.
A: No. The existence of an ErEe relation is a
A: As a general rule, the security guards of a private
question of law and being such, it cannot be made
security guard agency are the employees of the
the subject of agreement. (Tabas v. California
latter and not of the establishment that has entered
Manufacturing Co., G.R. No. L80680, Jan. 26, 1989)
into a contract with the private security guard
agency for security services. But under the facts in
Q: Banco de Manila and the Ang Husay Janitorial
the question, Baron Hotel appear to have hired the
and Pest Control Agency entered into an
security guards, to have paid their wages, to have
Independent Contractor Agreement with the usual
the power to promote, suspend or dismiss the
stipulations: specifically, the absence of ErEe
security guards and the power of control over them,
relationship, and the relief from liability clauses.
namely, the security guards were under orders of
Can the bank, as a client, and the agency, as an
Baron Hotel as regard their employment. Because
independent contractor, stipulate that no ErEe
of the abovementioned circumstances, Baron Hotel
relationship exists between the bank and the Ees
is the Er of the security guards.
of the Agency who may be assigned to work in the
Bank? Reason.
Q: Assuming that ASIA is the Er, is the act of ASIA
A: Yes, they can stipulate provided the relationship in placing the security guards on "floating status"
is job contracting. However the stipulation cannot lawful? Why?
prevail over the facts and the laws. The existence of
ErEe relationship is determined by facts and law A: It is lawful for a private security guard agency to
and not by stipulation of the parties. (Insular Life place its security guard on a "floating status" if it
Assurance Co.. Ltd. v. NLRC, G.R. No. 119930, March has no assignment to give to said security guards.
12,1998) But if the security guards are placed on a "floating
status" for more than 6 months, the security guards
Q: ASIA executed a 1year contract with the Baron may consider themselves as having been dismissed.
Hotel (BARON) for the former to provide the latter (1999 Bar Question)
with 20 security guards to safeguard the persons
and belongings of hotel guests, among others. The Q: Lacson was one of more than 100 Ees who were
security guards filled up Baron application form terminated from employment due to the closure of
and submitted the executed forms directly to the LBM Construction Corporation. LBM was a sister
Security Department of Baron. The pay slips of the company of Lastimoso Construction, Inc. and RL
security guards bore BARON's logo and showed Realty & Devt Corp. All 3 entities formed what
that Baron deducted therefrom the amounts for came to be known as the Lastimoso Group of
SSS premiums, medicare contributions and Companies. The 3 corporations were owned and
withholding taxes. Assignments of security guards, controlled by members of the Lastimoso family;
who should be on duty or on call, promotions, their incorporators and directors all belonged to
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
the Lastimoso family. The 3 corporations were 4. Power of control. (The Labor
engaged in the same line of business, under one Code with Comments and Cases 2007,
management, and used the same equipment Azucena, Vol I, p.158)
including manpower services. Lacson and his co
Ees filed a complaint with the Labor Arbiter against Q: What is control test?
LBM, RL Realty and Lastimoso Construction to hold
them jointly and severally liable for backwages and A: The person for whom the services are performed
separation pay. Lastimoso Construction, Inc. RL reserves a right to control not only the end to be
Realty & Development Corporation interposed a achieved but also the means to be used in reaching
Motion to Dismiss contending that they are such end.
juridical entitles with distinct and separate
personalities from LBM Construction Corporation Note: However, in certain cases the control test is not
and therefore, they cannot be held jointly and sufficient to give a complete picture of the relationship
severally liable for the money claims of workers between the parties, owing to the complexity of such a
who are not their Ees. Rule on the motion to relationship where several positions have been held by
dismiss. Should it be granted or denied? Why? the worker. The better approach is to adopt the two
tiered test. (Francisco vs. NLRC, G.R. No. 170087, Aug.
31, 2006)
A: It is very clear that even if LBM Construction
company, Lastimoso Construction Company, Inc. Q: Genesis entered into a Careers Agent
and RL Realty & Devt Corp. all belong to the Agreement with EmoLife Insurance Company, a
Lastimoso family and are engaged in the same line domestic corporation engaged in insurance
of business under one management and used the business. In the Agreement, it provides that the
same equipment including manpower services, agent is an independent contractor and nothing
these corporations were separate juridical entities. therein shall be construed or interpreted as
Thus, only the LBM Construction Corp. is the Er of creating an employer employee relationship. It
Teofilo Lacson. The other corporation do not have further provides that the agent must comply with
any ErEe relations with Lacson. The case in three requirements: (1) compliance with the
question does not include any fact that would regulations and requirements of the company; (2)
justify piercing the veil of corporate fiction of the maintenance of a level of knowledge of the
other corporations in order to protect the rights of company's products that is satisfactory to the
workers. In a case (Concept Builders, Inc. v. NLRC, company; and (3) compliance with a quota of new
G.R. No. 108734, May 29, 1996) the SC ruled that it businesses. However, EmoLife insurance company
is a fundamental principle of corporation law that a terminated Genesis services. Genesis filed an
corporation is an entity separate and distinct from illegal dismissal complaint alleging therein that an
its stockholders and from other corporations to employeremployee relationship exists and that he
which it may be connected. But this separate and was illegally dismissed. Is he an employee of the
distinct personality of a corporation is merely a insurance company?
fiction created by law for convenience and to
promote justice. So, when the notion of separate A: Genesis is not an employee of EmoLife Insurance
juridical personality is used to defeat public Company. Generally, the determinative element is
convenience, justify wrong, protect fraud or defend the control exercised over the one rendereing the
crime, or is used as a device to defeat the labor service. The concept of control in Labor Code has
laws, this separate personality of the corporation to be compared and distinguished with control
maybe disregarded or the veil of corporate fiction that must necessarily exist in a principalagent
pierced. (1999 Bar Question) relationship. The employer controls the employee
both in the results and in the means and manner of
a.Four fold test achieving this result. The principal in an agency
relationship, e.g. insurance agent, on the other
Q: What factors determine the existence of an Er hand, also has the prerogative to exercise control
Ee relationship? over the agent in undertaking the assigned task
based on the parameters outlined in the pertinent
A: The fourfold test: laws. In the present case, the Agreement fully
serves as grant of authority to Genesis as EmoLifes
1. Selection and engagement of the insurance agent. This agreement is supplemented
employee; by the companys agency practices and usages, duly
2. Payment of wages; accepted by the agent in carrying out the agency.
3. Power of dismissal; and Foremost among these are the directives that the
principal may impose on the agent to achieve the
assigned tasks, to the extent that they do not just cause, when he fails to qualify as a regular Ee in
involve the means and manner of undertaking these accordance with reasonable standards prescribed
tasks. The law likewise obligates the agent to render by the Er.
an account; in this sense, the principal may impose
on the agent specific instructions on how an Q: Michelle Miclat was employed on a
account shall be made, particularly on the matter of probationary basis as marketing assistant by
expenses and reimbursements. To these extents, Clarion Printing House but during her employment
control can be imposed through rules and she was not informed of the standards that would
regulations without intruding into the labor law qualify her as a regular employee (Ee). 30 days
concept of control for purposes of employment. after, Clarion informed Miclat that her
(Gregorio Tongko v. ManuLife Insurance Company, employment contract had been terminated
G.R. No. 167622, Jun. 29, 2010) without any reason. Miclat was informed that her
termination was part of Clarions costcutting
b.Two tiered Test measures. Is Miclat considered as a regular Ee and
hence entitled to its benefits?
Q: What is the twotiered test?
A: Yes. Probationary employment shall be governed
A: by the following rules: (d) In all cases of
1. The putative Ers power to probationary employment, the Er shall make known
control the Ee with respect to the means to the Ee the standards under which he will qualify
and methods by which the work is to be as a regular Ee at the time of his engagement.
accomplished; and Where no standards are made known to the Ee at
2. The underlying economic that time, he shall be deemed a regular Ee. In the
realities of the activity or relationship. case at bar, she was deemed to have been hired
from day one as a regular Ee. (Clarion Printing
Note: This twotiered test would provide us with a House Inc., vs. NLRC, G.R. No. 148372, June 27,
framework of analysis, which would take into 2005)
consideration the totality of circumstances surrounding
the true nature of the relationship between the Q: What are the characteristics of probationary
parties. This is especially appropriate in this case where employment?
there is no written agreement or terms of reference to
base the relationship on and due to the complexity of
A:
the relationship based on the various positions and
1. It is an employment for a trial period;
responsibilities given to the worker over the period of
the latters employment. (Francisco vs. NLRC, G.R. No. 2. It is a temporary employment
170087, Aug. 31, 2006) status prior to regular employment;
3. It arises through a contract with
Q: What is the proper standard for economic the following elements:
dependence? a. The employee (Ee) must learn
and work at a particular type of work
A: The proper standard is whether the worker is b. Such work calls for certain
dependent on the alleged employer for his qualifications
continued employment in that line of business c. The probation is fixed
d. The Er reserves the power to
c.Probationary employment terminate during or at the end of the
trial period
Q: What is probationary employment? e. And if the Ee has learned the job
to the satisfaction of the Er, he
A: Employment where the employee (Ee), upon his becomes a regular Ee.
engagement:
Q: What is the period of probationary
1. Is made to undergo a trial period employment?
2. During which the Er determines
his fitness to qualify for regular A: GR: It shall not exceed 6 months.
employment,
3. Based on reasonable standards XPNs:
made known to the Ee at the time of 1. Covered by an apprenticeship or
engagement. (Sec 6, Rule I, Book VI, IRR) learnership agreement stipulating a
different period
Note: The services of an Ee who has been engaged
on probationary basis may be terminated only for
LABOR LAW TEAM:
66 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. The evil sought to be prevented is to Q: What is the purpose of the period?
discourage scheming employers from using the
system of double or successive probation to A: To afford the employer an opportunity to
circumvent the mandate of the law on observe the fitness of a probationary employee at
regularization and make it easier for them to work.
dismiss their employees. (Holiday Inn Manila v.
NLRC, G.R. No. 109114, Sep. 14, 2003) Q: In what instances is a probationary employee
(Ee) deemed a regular Ee?
Q: Middleby Phils. Corp. hired Alcira as engg
support services supervisor on a probationary A:
basis for 6 months. Apparently unhappy with 1. If he is allowed to work after a
Alciras performance, Middleby terminated his probationary period. (Art. 281)
services. Alcira contends that he was already a
regular employee (Ee) when he was terminated.
Note: The probationary employee is entitled to In the instant case where the CSA did not wish to
procedural due process prior to dismissal from service. renew the contract of employment for the next
school year, the Gela has no ground to protest. She
Q: R.L. Cruz was employed as gardener by Manila was not illegally dismissed. Her contract merely
Hotel on probation status effective Sep. 22, 76. expired. (CSA v. NLRC, G.R No. 87333, Sep. 6, 1991)
The appointment signed by Cruz provided for a 6
month probationary period. On Mar. 20, 77, or a Q: During their probationary employment, 8 Ees
day before the expiration of the probationary were berated and insulted by their supervisor. In
period, Cruzs was promoted to lead gardener protest, they walked out. The supervisor shouted
position. On the same day Cruz position was at them to go home and never to report back to
abolished by Manila Hotel allegedly due to work. Later, the personnel manager required
economic reverses or business recession, and to them to explain why they should not be dismissed
salvage the enterprise from imminent danger of from employment for abandonment and failure to
collapse. Was Cruz illegally dismissed? qualify for the positions applied for. They filed
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. Regular employment does not mean permanent
As a LA, how will you resolve the case? employment. A probationary Ee becomes a regular Ee
after 6 months. A regular Ee may only be terminated
A: As a LA I will resolve the case in favor of the 8 for just/authorized causes.
probationary Ees due to the ff::
The practice of entering into employment contracts
which would prevent the workers from becoming
1. Probationary Ees also enjoy
regular should be struck down as contrary to public
security of tenure. (Biboso v. Victoria
policy and morals. (Universal Robina Corp. v. Catapang,
Milling, G.R. No. L44360, Mar. 31, 1977)
G.R. No. 164736, Oct. 14, 2005)
2. In all cases involving Ees on
probationary status, the Er shall make
(a)Reasonable connection rule
known to the Ee at the time he is hired,
the standards by which he will qualify for
Q: What is the test to determine regular
the positions applied for.
employment?
3. The filing of the complaint for
illegal dismissal effectively negates the A:
Ers theory of abandonment. (Rizada v. 1. The primary standard of
NLRC, G.R. No. 96982, Sep. 21, 1999) determining regular employment is the
4. The order to go home and not to reasonable connection between the
return to work constitutes dismissal from particular activity performed by the
employment. employee (Ee) to the usual trade or
5. The 8 probationary Ees were business of the employer. The test is
terminated without just cause and whether the former is usually necessary
without due process or desirable in the usual business or trade
of the Er. (De Leon v. NLRC, G.R. No.
In view of the foregoing, I will order reinstatement 70705, Aug. 21, 1989)
to their former positions without loss of seniority
rights with full backwages, plus damages and attys Note: The connection can be determined by
fees. (2006 Bar Question) considering the nature of the work
performed and its relation to the scheme of
d.Kinds of employment the particular business or trade in its
entirety. (Highway Copra Traders v. NLRC,
(1)Regular employment G.R. No. 108889, July 30, 1998)
Q: What is regular employment?
A: 2. Also, the performance of a job
1. An employment shall be deemed to for at least a year is sufficient evidence of
be regular where the Ee has been the jobs necessity if not indispensability
engaged to perform activities which are to the business. This is the rule even if its
usually necessary or desirable in the usual performance is not continuous and
business or trade of the Er, the provisions merely intermittent. The employment is
of written agreements to the contrary considered regular, but only with respect
notwithstanding and regardless of the oral to such activity and while such activity
agreements of the parties. (Sec. 5 [a], exists. (Universal Robina Corp. v.
Rule I, Book VI, IRR) Catapang, G.R. No. 164736, Oct. 14,
2005).
2. Any Ee who has rendered at least
one year of service, whether such service Note: The status of regular employment attaches to
is continuous or broken, shall be the casual Ee on the day immediately after the end of
considered a regular Ee with respect to his first year of service. The law does not provide the
the activity in which he is employed and qualification that the Ee must first be issued a regular
his employment shall continue while such appointment or must first be formally declared as such
before he can acquire a regular status. (Aurora Land
activity exists. (Sec. 5 [b], Rule I, Book VI,
Projects Corp. v. NLRC, G.R. No. 114733, Jan. 2, 1997)
IRR)
Q: Is the mode of compensation determinative of
Note: Regularization is not a management prerogative;
regular employment?
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) 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
Congress of the Phils v. NLRC, G.R. No. 123938, May were directly related to the business of the
21, 1998) Tanjangcos as lessors of residential and apartment
bldgs. Moreover, such a continuing need for his
Q: When does Art. 280 not apply? services by the Tanjangcos is sufficient evidence of
the necessity and indispensability of his services to
A: It does not apply in case of OFWs. their business or trade.
Note: Seafarers cannot be considered as regular Ees. Dagui should likewise be considered a regular Ee by
Their employment is governed by the contracts they the mere fact that he rendered service for the
sign everytime they are hired and their employment Tanjangcos for more than one year, that is,
terminated when the contract expires. Their beginning 53 until 82, under Doa Aurora; and
employment is fixed for a certain period of time. then from 1982 up to June 8, 91 under the
(Ravago v. Esso Eastern Maritime Ltd., G.R. No. daughter, for a total of 29 and 9 years respectively.
158324, Mar. 14, 2005) Owing to Dagui's length of service, he became a
regular Ee, by operation of law, one year after he
Q: Moises was employed by La Tondea at the was employed in 53 and subsequently in 82.
maintenance section of its Engg Dept paid on a (Aurora Land Projects Corp. v. NLRC, G.R. No.
daily basis through petty cash vouchers. His work 114733, Jan. 2, 1997)
consisted mainly of painting company building and
equipment and other odd jobs relating to Q: A total of 43 Ees who are deafmutes were
maintenance. After a service of more than 1 year, hired and rehired on various periods by Far East
Moises requested that he be included in the Bank and Trust Co. as money sorters and counters
payroll of regular workers, instead of being paid through a uniformly worded agreement called
through petty cash vouchers. Instead La Tondeas Employment Contract for Handicapped Workers.
dismissed Moises and claimed that Moises was The company disclaimed that these Ees were
contracted on a casual basis specifically to paint regular Ees and maintained among others that
certain company buildings and that its completion they are a special class of workers, who were hired
terminated Moises employment. Can Moises be temporarily under a special employment
considered as a regular Ee? arrangement which was a result of overtures made
by some civic and political personalities to the
A: Yes, the law demands that the nature and Bank. Should the deafmute Ees be considered as
entirety of the activities performed by the Ee be regular Ees?
considered. Here, the painting and maintenance
work given Moises manifests a treatment consistent A: Yes. The renewal of the contracts of the
with a maintenance man and not just a painter, for handicapped workers and the hiring of others leads
if his job was only to paint a building there would be to the conclusion that their tasks were beneficial
no basis for giving him other work assignments in and necessary to the bank. It also shows that they
between painting activities. were qualified to perform the responsibilities of
their positions; their disability did not render them
It is not tenable to argue that the painting and unqualified or unfit for the tasks assigned to them.
maintenance work of Moises are not necessary in
La Tondeas business of manufacturing liquors; The Magna Carta for Disabled Persons mandates
otherwise, there would be no need for the regular that a qualified disabled Ee should be given the
maintenance section of the companys engg dept. same terms and conditions of employment as a
(De Leon v. NLRC, G.R. No. 70705, Aug. 21, 1989) qualified ablebodied person. The fact that the Ees
were qualified disabled persons necessarily
Q: Honorio Dagui was hired by Doa Aurora removes the employment contracts from the ambit
Suntay Tanjangco in 1953 to take charge of the of Art. 80. Since the Magna Carta accords them the
maintenance and repair of the Tanjangco rights of qualified ablebodied persons, they are
apartments and residential bldgs. He was to thus covered by Art. 280 of the LC. (Bernardo v.
perform carpentry, plumbing, electrical and NLRC, G.R. No. 122917, July 12, 1999)
masonry work. Upon the death of Doa Aurora
Tanjangco in 82 her daughter, Teresita Tanjangco Q: CocaCola Bottlers Phils, Inc., (CCBPI) engaged
Quazon, took over the administration of all the the services of the workers as sales route helpers
Tanjangco properties, and dismissed Dagui. Is for a period of 5 months. After 5 months, the
Honorio Dagui a regular employee (Ee)? workers were employed by the company on a day
today basis. According to the company, the
A: Yes. The jobs assigned to Dagui as maintenance workers were hired to substitute for regular route
man, carpenter, plumber, electrician and mason helpers whenever the latter would be unavailable
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
e. The termination of his projects. These facts are the basis in considering them
employment in the particular as regular Ees of the company. (Maraguinot v. NLRC,
project/undertaking is reported to the G.R. No. 120969, Jan. 22, 1998)
Department of Labor and Employment
Regional Office having jurisdiction over Members of a work pool from which a construction
company draws its project Ees, if considered Ees of the
the workplace within 30 days following
construction company while in the work pool, are non
the date of his separation from work,
project Ees or Ees for an indefinite period. If they are
using the prescribed form on employees employed in a particular project, the completion of the
termination/dismissal/suspensions project or any phase thereof will not mean severance
of ErEe relationship. Unless the workers in the work
f. An undertaking in the pool are free to leave any time and offer their services
employment contract by the employer to to other Ers. (L.T. Datu & Co., Inc. v. NLRC, G.R. No.
pay completion bonus to the project 113162, Feb. 9, 1996)
employee as practiced by most
construction companies Q: What is the day certain rule?
Q: What are the requisites in determining whether A: It states that a project employment that ends on
an employee (Ee) is a project Ee? a certain date does not end on an exact date but
upon the completion of the project.
A:
1. The project Ee was assigned to Q: Are project Ees entitled to separation pay?
carry out a specific project or undertaking,
and A: GR: Project Ees are not entitled to
2. The duration and scope of which separation pay if they are terminated as a result
were specified at the time the Ee was of the completion project.
engaged for that project. (Imbuido v.
NLRC, G.R. No. 114734, Mar. 31, 2000) XPN: If the projects they are working on have
3. The Ee must have been dismissed not yet been completed when their services are
every after completion of his project or terminated; project Ees also enjoy security of
phase tenure during the limited time of their
4. Report to the DOLE of Ees employment. (De Ocampo v. NLRC, G.R. No.
dismissal on account of completion of 81077, June 6, 1990)
contract (Policy Inst. No. 20; D.O. 19
[1997]) Q: Roger Puente was hired by Filsystems, Inc.,
initially as an installer and eventually promoted to
Q: What is a project? mobile crane operator, and was stationed at the
companys premises. Puente claimed in his
A: A "project" has reference to a particular job or complaint for illegal dismissal, that his work was
undertaking that may or may not be within the continuous and without interruption for 10 years,
regular or usual business of the Er. In either case, and that he was dismissed from his employment
the project must be distinct, separate and without any cause. Filsystems on its part averred
identifiable from the main business of the Er, and its that Puente was a project Ee in the companys
duration must be determined or determinable (PAL various projects, and that after the completion of
v. NLRC, G.R. No. 125792, Nov. 9, 1998). each project, his employment was terminated, and
such was reported to the DOLE. Is Roger Puente a
Q: Can a project employee (Ee) or a member of a regular Ee?
work pool acquire the status of a regular Ee?
A: No, Puente is a project Ee. The contracts of
A: Yes, when the following concur: employment of Puente attest to the fact that he was
hired for specific projects. His employment was
1. There is a continuous rehiring of coterminous with the completion of the projects for
project Ees even after cessation of a which he had been hired. Those contracts expressly
project; and provided that his tenure of employment depended
2. The tasks performed by the on the duration of any phase of the project or on
alleged project Ee are vital, necessary the completion of the construction projects.
and indispensable to the usual business or Furthermore, the company regularly submitted to
trade of the employer (Er). the labor dept reports of the termination of
services of project workers. Such compliance with
Note: The length of time during which the Ee was
continuously rehired 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
LABOR LAW TEAM:
72 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 reqt confirms that Puente was a duration of the season does not detract from
project Ee. considering them in regular employment. Seasonal
workers who are called to work from time to time
The mere rehiring of Puente on a projecttoproject and are temporarily laid off during offseason are
basis did not confer upon him regular employment not separated from service in that period, but
status. The practice was dictated by the practical merely considered on leave until reemployed.
consideration that experienced construction
workers are more preferred. It did not change his If the Ee has been performing the job for at least a
status as a project Ee. (Filipinas PreFabricated year, even if the performance is not continuous and
Building Systems (FILSYSTEMS), Inc. v. Puente, G.R. merely intermittent, the law deems repeated and
No. 153832, Mar. 18, 2005) continuing need for its performance as sufficient
evidence of the necessity if not indispensability of
(3)Seasonal employment that activity to the business. Hence, the
employment is considered regular, but only with
Q: What is seasonal employment? respect to such activity and while such activity
exists. (Benares v. Pancho, G.R. No. 151827, April
A: Employment where the job, work or service to 29, 2005)
be performed is seasonal in nature and the
employment is for the duration of the season. Q: Carlito Codilan and Maximo Docena had been
(Sec.5 [a], Rule I, Book VI, IRR) working for the rice mill for 25 years, while
Eugenio Go, Teofilo Trangria and Reynaldo Tulin
An employment arrangement where an employee have been working for 22, 15, and 6 years
(Ee) is engaged to work during a particular season respectively. The operations of the rice mill
on an activity that is usually necessary or desirable continue to operate and do business throughout
in the usual business or trade of the employer (Er). the year even if there are only two or three
harvest seasons within the year. This seasonal
Note: For seasonal Ees, their employment legally ends harvesting is the reason why the company
upon completion of the project or the season. The considers the workers as seasonal Ees. Is the
termination of their employment cannot and should company correct in considering the Ees as seasonal
not constitute an illegal dismissal. (Mercado v. NLRC, Ees?
G.R. No. 79869, Sept. 5, 1991)
A: No, the fact is that big rice mills such as the one
One year duration on the job is pertinent in deciding
owned by the company continue to operate and do
whether a casual Ee has become regular or not, but it
is not pertinent to a seasonal or project Ee. Passage of business throughout the year even if there are only
time does not make a seasonal worker regular or two or three harvest seasons within the year. It is a
permanent. (Mercado v. NLRC, G.R. No. 78969, Sep. 5, common practice among farmers and rice dealers to
1991) store their palay and to have the same milled as the
need arises. Thus, the milling operations are not
During offseason, the relationship of ErEe is not seasonal. Finally, considering the number of years
severed; the seasonal Ee is merely considered on LOA that they have worked, the lowest being 6 years, the
without pay. Seasonal workers who are repeatedly workers have long attained the status of regular Ees
engaged from season to season performing the same as defined under Art. 280. (Tacloban Sagkahan Rice
tasks are deemed to have acquired regular Mill v. NLRC, G.R. No. 73806, Mar. 21, 1990)
employment. (Hacienda Fatima v. National Federation
of Sugarcane WorkersFood and General Trade, G.R.
No. 149440, Jan. 28, 2003)
(4)Casual employment
Q: Are seasonal Ees entitled to separation pay? Q: What is casual employment?
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
dominance whatever being exercised by Q: Does the Reasonable Connection Rule applies
the former over the latter. (Brent School, in fixed term employment for a fixed term
Inc. v. Zamora, G.R. No. 48494, Feb. 5, employee be eventually classified as regular
1990) employee?
Note: A fixedperiod Ee does not become a regular Ee A: No. It should be apparent that this settled and
because his employment is coterminus with a specific familiar notion of a period, in the context of a
period of time. contract of employment, takes no account at all of
the nature of the duties of the employee; it has
Ee hired on a fixedterm is regular if job is necessary absolutely no relevance to the character of his
and desirable to the business of Er. (Philips duties as being usually necessary and desirable to
Semiconductor v. Fadriquela, G.R. No. 141717, April the usual business of the employer, or not.
2004)
Q: Dean Jose and other employees are holding
Q: Is term employment a circumvention of the administrative positions as dean, dept heads and
law on security of tenure? institute secretaries. In the implementation of the
Reorganization, Retrenchment and Restructuring
A: No, it is not a circumvention of the law if it program effective Jan. 1, 1984, Dean Jose and
follows the requisites laid down by the Brent ruling. other employees were retired but subsequently
(Romares v. NLRC, G.R. No. 122327, Aug. 19, 1998) rehired. Their appointment to their administrative
positions as dean, dept heads and institute
Q: Rene was hired as an athletic director in secretaries had been extended by the company
ChristOmarDiviva School for a period of five years. from time to time until the expiration of their last
As such, he oversees the work of coaches and appointment on May 31, 1988. Were Dean Jose
related staff involved in intercollegiate or and other employees illegally dismissed?
interscholastic athletic programs. However, he was
not rehired upon the expiration of said period. A: No. Petitioners were dismissed by reason of the
Rene questions his termination alleging that he was expiration of their contracts of employment.
a regular employee and could not be dismissed Petitioners' appointments as dean, dept heads and
without valid cause. Is he a regular employee? institute secretaries were for fixed terms of definite
periods as shown by their respective contracts of
employment, which all expired on the same date,
A: No. Rene was not a regular employee but an May 31, 1988. The validity of employment for a fixed
employee under a fixed term contract. While it can be period has been acknowledged and affirmed by the
said that the services he rendered were usually SC. (Blancaflor v. NLRC, G.R. No. 101013, Feb. 2,
necessary and desirable to the business of the school, 1993)
it cannot also be denied that his employment was for a
fixed term of five years. The decisive determinant in e.Job contracting and labor only contracting
fixed term employment should not be the activities
that the employee is called upon to perform, but the Q: When is there job contracting?
day certain agreed upon by the parties for the
commencement and termination of their employment A: Specifically, there is job contracting where:
relation (Brent School Inc. v. Zamora, G.R. No. 48494,
Feb. 5, 1990). 1. The contractor carries on an
independent business and
Q: In the above mentioned facts, will Rene undertakes the contract work on his
automatically become a regular employee if he is own account under his own
rehired by the school for another definite period responsibility according to his own
of employment? manner and method, free from the
control and direction of his employer
A: No. The decisive determinant in term or principal in all matters connected
employment is the day certain agreed upon by the with the performance of the work
parties for the commencement and termination of except as to the results thereof; and
their employment relationship, a day certain being
understood to be that which must necessarily come, 2. The contractor has substantial
although it may not be known when and not capital or investment in the form of
whether the work is usually necessary and desirable tools, equipment, machineries, work
to the business of the employer. premises, and other materials which
are necessary in the conduct of his Phils., Inc., G.R. No. 179807, July 31, 2009,
business. J. CarpioMorales)
Q: When is there laboronly contracting? Q: What are the factors to consider in determining
whether contractor is carrying on an independent
A: A person is deemed to be engaged in labor business?
only contracting where:
A:
1. The person supplying workers to 1. Nature and extent of work
an employer does not have 2. Skill required
substantial capital or investment in 3. Term and duration of the relationship
the for of tools, equipment, 4. Right to assign the performance
machineries, work premises, among of specified pieces of work
others; and 5. Control and supervision of worker
6. Power of employer to hire, fire
2. The workers recruited and placed and pay wages
by such person are performing 7. Control of the premises
activities which are directly related to 8. Duty to supply premises, tools,
the principal business of such appliances, materials and labor
employer. (Baguio v. NLRC, G.R. No. 9. Mode, manner and terms of
7900408, Oct. 4, 1991) payment. (Vinoya v. NLRC, G.R. No.
126286, Feb 2, 2000)
Q: What is a permissible job contracting or
subcontracting? Note: Individuals with special skills, expertise or talent
enjoy the freedom to offer their services as
A: It refers to an arrangement whereby a principal independent contractors. An individual like an artist or
agrees to farm out with a contractor or talent has a right to render his services without any
subcontractor the performance of a specific job, one controlling the means and methods by which he
work, or service within a definite or predetermined performs his art or craft. (Sonza vs. ABSCBN, G.R. No.
period, regardless of whether such job, work or, 138051, June 10, 2004)
service is to be performed or completed within or
outside the premises of the principal. Q: Who are the parties in contracting and
subcontracting?
Q: What are the conditions that must be met in
order to be considered as permissible job A:
contracting or subcontracting? 1. Contractor/subcontractor Refers to any
person engaged in a legitimate contracting or
A: The following conditions must be met: subcontracting arrangement.
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 A: The principal shall be solidarily liable with the
privileges due to a regular Ee as provided in the LC, contractor in the event of any violation of any
as amended to include the ff: provision of the LC, including the failure to pay
wages. This will not prevent the principal from
1. Safe and healthful working claiming reimbursement from the contractor.
conditions
2. Service Incentive Leave, rest days, Q: What does substantial capital or investment
th mean?
OT pay, holiday pay, 13 month pay and
separation pay
3. Social security and welfare benefits; A: It refers to the capital stocks and subscribed
4. Selforganization, CBA and peaceful capitalization in case of corporations, tools,
concerted actions equipments, implement, machineries and work
5. Security of tenure (Sec. 8, DO 18 premises, actually and directly used by the
02) contractor or subcontractor in the performance or
completion of the job, work or service contracted
Q: What are the effects of termination of CEe to out. (D.O. 1802)
separation pay and other benefits?
Note: The law does not require both substantial capital
and investment in the form of tools, equipments,
A:
machineries, etc. This is clear from the use of
1. If prior to the expiration of the
conjunction or. If the contention was to require the
employment contract between the
contractor to prove that he has both capital and
principal and the contractor or requisite investment, then the conjunction and
subcontractor The right of CEe to should have been used. (Virginia Neri v. NLRC, G.R. No.
separation pay or other related benefits 97008, July 21, 1993)
shall be governed by the applicable laws
and jurisprudence on termination of Q: What does the right to control mean?
employment
A: It refers to the right reserved to the person for
2. If the termination results from the whom the services of the contractual workers are
expiration of the contract between the performed, to determine not only the end to be
principal and the contractor or achieved, but also the manner and means to be
subcontractor The Ee shall not be used in reaching that end. (D.O. 1802)
entitled to separation pay. However, this is
w/o prejudice to completion bonuses or Q: SMC and Sunflower Cooperative entered into a
other emoluments including retirement 1yr Contract of Services, to be renewed on a
pay as may be provided by law or in the month to month basis until terminated by either
contract between the principal and the party. Pursuant to the contract, Sunflower engaged
contractor. private respondents to render services at SMCs
Bacolod Shrimp Processing Plant. The contract was
Q: When is the principal deemed the employer of deemed renewed by the parties every month after
the contractual employee? its expiration on Jan. 1, 94 and respondents
continued to perform their tasks until Sep. 11, 95.
A: Where: In July 95, private respondents filed a complaint
before the NLRC, praying to be declared as regular
1. There is laboronly contracting Ees of SMC, with claims for recovery of all benefits
2. The contracting arrangement falls and privileges enjoyed by SMC rank and file Ees.
within the prohibited acts Respondents subsequently filed an Amended
Complaint to include illegal dismissal as additional
Q: May the Er or indirect Er require the contractor cause of action following SMCs closure of its
or subcontractor to furnish a bond equal to the Bacolod Shrimp Processing Plant on which resulted
cost of labor under contract to answer for the in the termination of their services. SMC filed a
wages due to Ees in case the contractor or Motion for Leave to File Attached Third Party
rd
subcontractor fails to pay the same? Complaint to implead Sunflower as 3 Party
Defendant. Are private respondents Ees of the
A: Yes. The Er or indirect Er may require the independent cooperative contractor (Sunflower) or
contractor or subcontractor to furnish a bond that of the SMC?
will answer for the wages due to the Ees.
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 A: Substantive Due Process provides the ground for
used in certain areas of work. All work activities disciplinary action, i.e. corrective or retributive
and schedules were fixed by the company.
(a)Just causes
1. Is Arnold a job contractor? Explain briefly
Q: What are the just causes for termination (Art.
2. Who is liable for the claims of the workers hired 282, LC)?
by Arnold? Explain briefly.
A:
A: 1. Serious misconduct or willful
1. No. In the problem given, Arnold disobedience by the employee (Ee) of the
did not have sufficient capital or lawful orders of his employer (Er) or
investment for one. For another, Arnold representative in connection with his
was not free from the control and work
direction of SMPC because all work
activities and schedules were fixed by the 2. Gross and habitual neglect by
company. Therefore, Arnold is not a job the Ee of his duties
contractor. He is engaged in laboronly 3. Fraud or willful breach by the Ee
contracting. of the trust reposed in him by his Er or
2. SMPC is liable for the claims of the duly organized representative
workers hired by Arnold. A finding that 4. Commission of a crime or
Arnold is a labor only contractor is offense by the Ee against the person of his
equivalent to declaring that there exist an Er or any immediate member of his family
ErEe relationship between SMPC and or his duly authorized representative.
workers hired by Arnold. This is so 5. Other causes analogous to the foregoing
because Arnold is considered a mere
agent of SMPC (Lim v. NLRC, G.R. No. Note: The burden of proving that the termination was
124630, Feb. 19, 1999); 2002 Bar for a valid or authorized cause shall rest on the Er. (Art.
Question) 277[b])
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
Q: When is there Habitual Neglect of duties? A: Sleeping on the job as a valid ground for
dismissal only applies to security guards whose duty
A: Habitual Neglect implies repeated failure to necessitates that they be awake and watchful at all
perform ones duties over a period of time, times. Gambidos single act of sleeping further
depending upon the circumstance. (JGB and shows that the alleged negligence or neglect of duty
Associates v. NLRC, GR No. 10939, Mar. 7, 1996) was neither gross nor habitual. (VH Manufacturing
v. NLRC, G.R. No. 130957, Jan. 19, 2000)
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 Q: Give some forms of neglect of duty.
from employment for this infraction.
Does the single act of misassortment constitute A:
gross negligence? 1. Habitual tardiness and absenteeism
2. Abandonment:
A: No. Such neglect must not only be gross but also a. Failure to report for work or
habitual in character. Hence, the penalty of absence without justifiable reason
dismissal is quite severe considering that Antiola b. Clear intention to sever ErEe
committed the infraction for the first time. (Judy relationship manifested by some
Phils. v. NLRC, G.R. No. 111934. April 29, 1998) overt acts. (Labor et. al v. NLRC, GR
No. 110388, Sep.14, 1995)
Q: Does the failure in performance evaluations
amount to gross and habitual neglect of duties? 4.Abandonment
A: As a general concept poor performance is Q: What is abandonment as a just cause for
equivalent to inefficiency and incompetence in the termination?
performance of official duties. The fact that an
employees (Ees) performance is found to be poor A: It means the deliberate, unjustified refusal of an
or unsatisfactory does not necessarily mean that employee to resume his employment.
the Ee is grossly and habitually negligent of his
duties. Gross negligence implies a want or absence Q: What are the requirements for a valid finding of
of or failure to exercise slight care of diligence or abandonment?
the entire absence or care. He evinces a thoughtless
disregard of consequences without exerting any A: For a valid finding of abandonment, 2 factors
effort to avoid them. (Eastern Overseas must be present:
Employment Center Inc. v. Bea, G.R. 143023, 1. The failure to report for work, or
Nov.29, 2005) absence without valid or justifiable
reason; and
Q: Is inefficiency a just cause for dismissal? 2. A clear intention to sever ErEe
relationship, with the 2nd element as the
Q: Mejila a barber at Windfield Barber Shop, had 3. The act constituting the breach
an altercation with a fellow barber which resulted must be workrelated such as would
in his subsequent turning over the duplicate keys show the Ee concerned to be unfit to
of the shop to the cashier and took away all his continue working for the Er. (Gonzales V.
belongings there from and worked at different NLRC, G.R. No. 131653, Mar. 26, 2001)
barbershop. Mejila then filed an illegal dismissal
case but did not seek reinstatement as a relief. Did 4. It must be substantial and
Mejila commit abandonment? founded on clearly established facts
sufficient to warrant the Ees separation
A: Mejilas acts such as surrendering the shops from employment. (Sulpicio Lines Inc. V.
keys, not reporting to the shop anymore without Gulde, G.R. No. 149930, Feb. 22, 2002)
any justifiable reason, his employment in another
barber shop, and the filing of a complaint for illegal 5. Fraud must be committed
dismissal without praying for reinstatement clearly against the Er or his representatives, e.g.:
show that there was a concurrence of the intention a. Falsification of time cards
to abandon and some overt acts from which it may b. Theft of company property
be inferred that the Ee concerned has no more c. Unauthorized use of company
interest in working. (Jo v. NLRC, G.R. No. 121605, vehicle
Feb. 2, 2000)
Note: The treatment of rank and file personnel and
5.Fraud; Breach of Trust / Loss of Confidence managerial Ees in so far as the application of the
doctrine of loss of trust and confidence is concerned is
Q: When is breach of trust/loss of confidence a different. As regards managerial Ees, such as Caoile,
mere existence of a basis for believing that such Ee has
just cause for termination?
breached the trust of his Er would suffice for his
dismissal. (Caoile v. NLRC, G.R. No. 115491, Nov. 24,
A:
1998)
1. It applies only to cases involving:
a. Employees (Ees) occupying Q: What are the guidelines for the doctrine of loss
positions of trust and confidence of confidence to apply?
(confidential and managerial Ees)
to this class belong managerial Ees, A:
i.e., those vested with the powers or 1. Loss of confidence should not
prerogativesto lay down be simulated (reasonable basis for loss of
management policies and/or to hire, trust and confidence)
transfer, suspend, layoff, recall, 2. Not used for subterfuge for
discharge, assign or discipline Ees or causes which are improper and/or illegal
effectivelyrecommend such and unjustified
managerial actions 3. Not arbitrarily asserted in the
face of overwhelming evidence to the
b. Ees routinely charged with the contrary
care and custody of the employers
(Ers)
LABOR LAW TEAM:
82 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 right of an Ee to be informed of the charges A: Must be due to the voluntary and/or willful act
against him and to be given a reasonable or omission of the employee (Nadura v. Benguet
opportunity to present his side in a controversy with Consolidated, G.R. No. L17780, Aug. 24, 1962), e.g.:
either the company or his own union is not wiped
away by a union security clause in a CBA. Even 1. Violation of company rules and
assuming that a federation had valid grounds to regulations
expel union officers, due process requires that these 2. Drunkenness
union officers be accorded a separate hearing by 3. Gross inefficiency
the company. (MSMG v. Ramos, G.R. No. 113907, 4. Illegally diverting employers products
Feb. 28, 2000) 5. Failure to heed an order not to
join an illegal picket
7.Totality of Infractions doctrine 6. Violation of safety rules and
code of discipline
Q: What is the totality of infractions doctrine?
Q: What is the doctrine of incompatibility?
A: It is the totality, not the compartmentalization of
company infractions that the Ee has committed, A: Where the employee has done something that is
which justifies the penalty of dismissal. (MERALCO contrary or incompatible with the faithful
v. NLRC, G.R. No. 114129, Oct. 24, 1996) performance of his duties, his employer has a just
cause for terminating his employment. (Manila
Note: Where the Ee has been found to have repeatedly Chauffeurs League v. Bachrach Motor Co., G.R. No.
incurred several suspensions or warnings on account of L47071, June 17, 1940 )
violations of company rules and regulations, the law
warrants their dismissal as it is akin to habitual
(b).Authorized Causes
delinquency. (Villeno v. NLRC, G.R. No. 108153, Dec.
26, 1995)
Q: What are the authorized causes of termination
by the employer (Er)?
Q: What are the guidelines to determine the
validity of termination?
A:
1. Installation of laborsaving
A: Gravity of the offense
devices (automation/robotics)
1. Position occupied by the
employee
2. Redundancy (superfluity in the
2. Degree of damage to the
performance of a particular work) exists
employer
where the services of an employee (Ee)
3. Previous infractions of the same
are in excess of what is reasonably
offense
demanded by the actual reqts of the
4. Length of Service
enterprise. (Wiltshire File Co., Inc. v. NLRC,
G.R. No. 82249, Feb. 7, 1991)
8.Commission of a Crime
Note: The redundancy should not have been
Q: What do you mean by commission of a crime created by the Er.
or offense as a just cause for termination of an
Ee?
3. Reorganization
A: It refers to an offense by the Ee against the Note: An Er is not precluded from adopting a
person of his employer or any immediate member new policy conducive to a more economical
of his family or his duly authorized representative and effective management, and the law
and thus, conviction of a crime involving moral does not require that the Er should be
turpitude is not analogous thereto as the element suffering financial losses before he can
of relation to his work or to his employer is lacking. terminate the services of the employee on
the ground of redundancy (DOLE Phil., Inc. v.
Note: A criminal case need not be actually filed. NLRC, G.R. No. L55413, July 25, 1983)
Commission of acts constituting a crime itself is
sufficient.
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
2. The substantial loss apprehended A: There must be fair and reasonable criteria to be
must be reasonably imminent as such used in selecting Ees to be dismissed such as:
imminence can be perceived objectively 1. Less preferred status;
and in good faith by the employer (Er). 2. Efficiency rating;
There should be a certain degree of 3. Seniority. (Phil. Tuberculosis
urgency for the retrenchment. Society, Inc. v. National Labor Union, G.R.
No. 115414, Aug. 25, 1998)
3. It must be reasonably necessary
and likely to prevent the expected losse Q: What is the last in first out (LIFO) rule?
The Er should have taken other measures
prior or parallel to retrenchment to A: It applies in the termination of employment in
forestall losses such as cutting other costs the line of work. What is contemplated in the LIFO
than labor costs. rule is that when there are two or more Ees
occupying the same position in the company
4. The alleged losses if already affected by the retrenchment program, the last one
realized, and the expected imminent employed will necessarily be the first one to go.
losses sought to be forestalled, must be (Maya Farms Ees Organization v. NLRC, G.R. No.
proved by sufficient and convincing 106256, Dec. 28, 1994)
evidence The reason for requiring this
quantum of proof is readily apparent: any Q: Is the seniority rule or "last in first out" policy
less exacting standard of proof would to be strictly followed in effecting a retrenchment
render too easy the abuse of this ground or redundancy program?
for termination of services of employees.
(Lopez Sugar Corp. v. Federation of Free A: Again, in Asian Alcohol Corp., the SC stated that
Workers, G.R. No. 7570001, Aug. 30, with regard the policy of "first in, last out" in
1990) 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.
Note: The losses which the company may suffer or is The reason is simple enough. A host of relevant
suffering may be proved by financial statements factors come into play in determining cost efficient
audited by independent auditors (Asian Alcohol measures and in choosing the Ees who will be
Corporation v. NLRC, G.R. No. 131108, Mar. 25, 1999) retained or separated to save the
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
company from closing shop. In determining these from bankruptcy. (Asian Alcohol Corp. v. NLRC, G.R.
issues, management plays a preeminent role. The No. 131108, Mar. 25, 1999)
characterization of positions as redundant is an
exercise of business judgment on the part of the Er. Closure
It will be upheld as long as it passes the test of
arbitrariness. (2001 Bar Question) Q: What are the requisites of a valid closure?
A:
Q: What is the difference between redundancy 1. Written notice served on both
and retrenchment? the employees (Ees) and the DOLE at least
1 month prior to the intended date of
A: In redundancy, company has no financial closure
problems, unlike in retrenchment where the 2. Payment of separation pay
company will suffer financial losses. equivalent to at least one month pay or at
least 1/2 month pay for every year of
Q: Philippine Tuberculosis Society, Inc. retrenched service, whichever is higher, except when
116 Ees after incurring deficits amounting to 9.1 closure is due to serious business losses
million pesos. Aside for retrenching some of its 3. Good faith
Ees, the company also implemented cost cutting 4. No circumvention of the law
measures to prevent such losses for increasing and 5. No other option available to the Er
minimizing it. The NLRC ruled that the
retrenchment was not valid on the ground that the Q: What is the test for the validity of closure or
Society did not take seniority into account in their cessation of establishment or undertaking?
selection. Was the retrenchment done by the
Society not valid for its failure to follow the criteria A: The ultimate test of the validity of closure or
laid down by law? cessation of establishment or undertaking is that it
must be bona fide in character. And the burden of
A: No. The Society terminated the employment of proving such falls upon the Er. (Capitol Medical
several workers who have worked with the Society Center, Inc. vs. Dr. Meris, G.R. No. 155098, Sep. 16,
for great number of years without consideration for 2005, J. CarpioMorales)
the number of years of service and their seniority
indicates that they had been retained for such a Q: When is separation pay required in case of
long time because of loyal and efficient service. The closure?
burden of proving the contrary rest on the Society.
(Phil. Tuberculosis Society, Inc. v. National Labor A: Only where closure is not due to serious business
Union, G.R. No. 115414, Aug. 25, 1998) losses nor due to an act of govt. (North Davao
Mining Corp v. NLRC, G.R. No. 112546, Mar. 13,
Q: Due to mounting losses the former owners of 1996; NFL v. NLRC, G.R. No. 127718, Mar. 2, 2000)
Asian Alcohol Corporation sold its stake in the
company to Prior Holdings. Upon taking control of Q: Galaxie Steel Corp. decided to close down
the company and to prevent losses, Prior Holdings because of serious business loses. It filed a written
implemented a reorganization plan and other cost notice with the DOLE informing its intended
saving measures and one of them is the closure and the termination of its employees (Ees).
retrenchment of 117 employees (Ees) of which It posted the notice of closure on the corporate
some are members of the union and the majority bulletin board.
held by nonunion members. Some retrenched
workers filed a complaint for illegal dismissal Q: Does the written notice posted by Galaxie on
alleging that the retrenchment was a subterfuge the bulletin board sufficiently comply with the
for union busting activities. notice reqt under Art. 283 of the LC?
Was the retrenchment made by Asian Alcohol A: No. In order to meet the purpose, service of the
valid and justified? written notice must be made individually upon each
and every Ee of the company. However, the Court
A: Yes. Even though the bulk of the losses were held that where the dismissal is for an authorized
suffered under the old management and continued cause, noncompliance with statutory due process
only under the new management ultimately the new should not nullify the dismissal, or render it illegal,
management of Prior Holdings will absorb such losses. or ineffectual. Still, the employer should indemnify
The law gives the new management every right to the Ee, in the form of nominal damages, for the
undertake measures to save the company violation of his right to statutory due process.
(Galaxie Steel Workers Union v. NLRC, G.R. No. damages and claim for employment benefits. Were
165757, Oct. 17, 2006) the losses incurred by the company enough to
justify closure of its operations?
Are Ees entitled to separation pay?
A: The determination to cease operations is a
A: No. Galaxie had been experiencing serious prerogative of management that is usually not
financial losses at the time it closed business interfered with by the State as no business can be
operations. Art. 283 of the LC governs the grant of required to continue operating at a loss simply to
separation benefits "in case of closures or cessation maintain the workers in employment. That would
of operation" of business establishments "not due be a taking of property without due process of law
to serious business losses or financial reverses." which the employer has a right to resist. But where
Where, the closure then is due to serious business it is manifest that the closure is motivated not by a
losses, the LC does not impose any obligation upon desire to avoid further losses but to discourage the
the employer to pay separation benefits. (Galaxie workers from organizing themselves into a union for
Steel Workers Unin v. NLRC, G.R. No. 165757, Oct. more effective negotiations with management, the
17, 2006) State is bound to intervene. The losses of less than
P2,000 for a corporation capitalized at P3 million
Q: Rankandfile workers of SIMEX filed a petition cannot be considered serious enough to call for the
for direct certification and affiliated with Union of closure of the company. (Carmelcraft Corp.
Filipino Workers (UFW). Subsequently, 36 workers v. NLRC, G.R. No. 9063435, June 6, 1990)
of the companys lumpia dept and 16 other
workers from other depts were effectively locked Q: Is the transferee of the closed corporation
out when their working areas were cleaned out. required to absorb the employees (Ees) of the old
The workers through UFW filed a complaint for corporation?
unfair labor practices against the company. SIMEX
then filed a notice of permanent shutdown/total A:
closure of all units of operation in the GR: There is no law requiring a bona fide purchaser
establishment with the DOLE allegedly due to of assets of an ongoing concern to absorb in its
business reverses brought about by the enormous employ the Ees of the latter except when the
rejection of their products for export to the United transaction between the parties is colored or
States. clothed with bad faith (BF). (Sundowner Devt Corp.
v. Drilon, G.R. No. 82341, Dec. 6, 1989)
Was the closure warranted by the alleged business
reverses? XPNs:
1. Where the transferee was found
A: The closure of a business establishment is a to be merely an alter ego of the different
ground for the termination of the services of any merging firms. (Filipinas Port Services, Inc.
employee unless the closing is for the purpose of v. NLRC, G.R. No. 97237, Aug. 16, 1991)
circumventing the provisions of the law. But, while 2. Where the transferee voluntarily
business reverses can be a just cause for agrees to do so. (Marina Port Services,
terminating employees, they must be sufficiently Inc. v. Iniego, G.R. No. 77853, Jan. 22,
proved. In this case, the audited financial statement 1990)
of SIMEX clearly indicates that they actually derived
earnings. Although the rejections may have reduced Q: Marikina Dairy Industries, Inc. decided to sell its
their earnings they were not suffering losses. There assets and close operations on the ground of heavy
is no question that an employer may reduce its losses. The unions alleged that the financial losses
work force to prevent losses but it must be serious, were imaginary and the dissolution was a scheme
actual and real otherwise this ground for maliciously designed to evade its legal and social
termination would be susceptible to abuse by obligations to its employees (Ees). The unions want
scheming employers who might be merely feigning the buyers of the corporations assets restrained to
business losses or reverses in their business operate unless the members of the unions were
ventures to ease out employees. (Union of Filipino the ones hired to operate the plant under the
Workers v. NLRC, G.R. No. 90519, Mar. 23, 1992) terms and conditions specified in the collective
bargaining agreements.
Q: Carmelcraft Corporation closed it business
operations allegedly due to losses of P1, 603.88 Is the buyer of a companys assets required to
after the Carmelcraft Ees Union filed a petition for absorb the Ees of the seller?
certification election. Carmelcraft Union filed a
complaint for illegal lockout and ULP with A: There is no law requiring that the purchaser of a
companys assets should absorb its Ees and the
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
losses.
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 Disease
the buyer. (MDII Supervisors & Confidential Ees
Assn (FFW) v. residential Assistant on Legal Affairs, Q: When is disease a ground for dismissal?
G.R. Nos. L4542123, Sep. 9, 1977)
A: Where the Ee suffers from a disease, and:
Q: What is the difference between closure and
1. His continued employment is
retrenchment?
prohibited by law or prejudicial to
his health or to the health of his co
A: Ees. (Sec.8, Rule I, Book VI, IRR)
Is
fortune
whereby
complete
business
prevent further financial
drain upon an Er who
cannot pay anymore his
Ees
already stopped.
of
decision
entire establishment or
to
department
thereof
reasons,
reduce capitalization.
for
separation
there
business due to serious
a. There is a certification by a
competent public health authority
2. With a certification by competent b. That the disease is of such
public health authority that the disease is nature or at such a stage that it
incurable within 6 months despite due cannot be cured within a period of 6
medication and treatment. (Solis v. NLRC, GR months even with proper medical
No. 116175, Oct. 28,1996) treatment.
Note: The reqt for a medical certification cannot be 2. If the disease or ailment can be
dispensed with; otherwise, it would sanction the cured within the period, the Er shall not
unilateral and arbitrary determination by the Er of the terminate the Ee but shall ask the Ee to
gravity or extent of the Ees illness and thus defeat the take a leave. The Er shall reinstate such Ee
public policy on the protection of labor. (Manly Express to his former position immediately upon
v Payong, G.R. No. 167462, Oct.25, 2005)
the restoration of his normal health. (Sec.
8, Rule I, Book VI, IRR)
Termination of services for health reasons must be
effected only upon compliance with the above
requisites. The reqt for a medical certificate under Art. Q: Is an employee suffering from a disease entitled
284 of the LC cannot be dispensed with; otherwise, it to reinstatement?
would sanction the unilateral and arbitrary
determination by the Er of the gravity or extent of the A: Yes, provided he presents a certification by a
Ees illness and thus defeat the public policy on the competent public health authority that he is fit to
protection of labor. (Sy et. al v. CA, G.R. No. 142293, Feb. return to work. (Cebu Royal Plant v. Deputy
27, 2003) Minister, G.R. No. L58639, Aug. 12, 1987)
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 1. The reqt of notice is intended
date of the termination, at least a month prior to to inform the Ee concerned of the Ers
the date of effectivity, to give them sufficient time intent to dismiss him and the reason for
to make necessary arrangements. In this case, the proposed dismissal
notwithstanding the Ees knowledge of the 2. On the otherhand the reqt of
cancellation of the distributorship agreement, they hearing affords the Ee the opportunity to
remained uncertain about the status of their answer his Ers charges against him and
employment when DAP failed to formally inform accordingly to defend himself there from
them about the redundancy. (DAP Corp. v. CA, G.R. before dismissal is effected. (Salaw v.
No. 165811, Dec. 14, 2005) NLRC G.R. No. 90786 Sep. 27, 1991)
b.Procedural due process Note: Failure to comply with the reqt of the
2 notices makes the dismissal illegal. The
Q: What are the 2fold requirements of a valid procedure is mandatory. (Loadstar Shipping
dismissal for a just cause? Co. Inc. v. Mesano, G.R. No. 138956, Aug. 7,
2003)
A:
1. Substantive it must be for a just Q: While it may be true that the Er enjoys wider
cause latitude of discretion in terminating employees
2. Procedural there must be notice (Ees) should there exists valid and just cause,
and hearing would this be sufficient for the Er to depart from
giving the Ee the right to be heard?
Q: What is the process to be observed by the
employer (Er) for termination of the employment A: Art. 277(b) of the LC mandates that an Er who
based on any of the just causes for termination? seeks to dismiss an Ee must afford the latter ample
opportunity to be heard and to defend himself with
A: the assistance of his representative if he so desires.
1. A written notice should be served to Expounding on this provision, the SC held that
the Ee specifying the ground/s for ample opportunity connotes every kind of
termination and giving the said Ee assistance that management must accord the Ee to
reasonable opportunity to explain. enable him to prepare adequately for his defense
including legal representation. (UBIX Corp. vs.
Note: This first written notice must apprise Bravo, G.R. No. 177647, Oct. 31, 2008)
the Ee that his termination is being
considered due to the acts stated in the Q: What is included in the opportunity to be
notice. (Phil. Pizza Inc. v. Bungabong, G.R. heard?
No. 154315, May 9, 2005)
A: The issue was addressed in an en banc decision
2. A hearing or conference should be rendered by the Supreme Court. With a 141 vote
held during which the Ee concerned, with the Court through Chief Justice Corona held as
the assistance of counsel, if the Ee so follows:
desires, is given the opportunity to
respond to the charge, present his a) Ample opportunity to be
evidence and present the evidence heard in an employee dismissal case
presented against him. means any meaningful opportunity
(verbal or written) given to the employee
3. A written notice of termination If to answer the charges against him or her
termination is the decision of the Er, it and submit evidence in support of the
should be served on the Ee indicating that defences, whether in a hearing,
upon due considerations of all the conference or some other fair, just and
circumstance, grounds have been reasonable way.
established to justify his termination, at b) A formal hearing or conference
least one month prior to his termination. becomes mandatory only when requested
by the employee in writing or substantial
Note: Single notice of termination does not evidentiary disputes exist or a company
comply with the requirements of the law. rule or practice requires it, or when
(Aldeguer & Co., Inc. vs. Honeyline Tomboc, similar circumstance justify it.
G.R. No. 147633, July 28, 2008) c) The ample opportunity to be
heard standard in the Labor Code
Q: What is the purpose of notice and hearing? prevails over the hearing or conference
requirement
A:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
in the implementing rules and regulations. opportunity to explain his side and (2) another
(Perez v. PT&T, G.R. No. 152048, Apr. 7, written notice indicating that, upon due
2009) consideration of all circumstances, grounds have
been established to justify the Er's decision to
Q: Who has the burden of proof? dismiss the Ee.
A: The burden of proof rests upon the employer to There is however, no need for a hearing or
show that the dismissal of the employee is for a just conference. To be heard does not mean verbal
cause, and failure to do so would necessarily mean argumentation alone inasmuch as one may be
that the dismissal is not justified, consonant with heard just as effectively through written
the constitutional guarantee of security of tenure. explanations, submissions or pleadings. In other
words, the existence of an actual, formal trial
Note: Due process refers to the process to be followed; type hearing, although preferred, is not absolutely
burden of proof refers to the amount of proof to be necessary to satisfy the employees right to be
adduced. heard. (Perez. v. Phil. Telegraph and Telephone
Company, G.R. No. 152048, April 7, 2009)
In money claims, the burden of proof as to the amount
to be paid the Ees rests upon the Er since he is in Q: What are the guidelines in determining
custody of documents that would be able to prove the whether penalty imposed on Ee is proper?
amount due, such as the payroll.
A:
Q: What is the degree of proof? 1. Gravity of the offense
2. Position occupied by the Ee
A: In administrative or quasijudicial proceedings, 3. Degree of damage to the employer (Er)
substantial evidence is considered sufficient in 4. Previous infractions of the same offense
determining the legality of an employers dismissal 5. Length of service (ALUTUCP v.
of an employee. (Pangasinan III Electric NLRC, G.R. No. 120450, Feb. 10, 1999; PAL
Cooperative, Inc. v. NLRC, G.R. No. 89878, Nov. 13, v. PALEA, G.R. No.L24626, June 28,1974)
1992)
Q: Felizardo was dismissed from Republic Flour
Q: Perez and Doria were employed by PT&T. After
MillsSelecta ice cream Corporation for dishonesty
investigation, Perez and Doria were placed on
and theft of company property for bringing out a
preventive suspension for 30 days for their alleged
pair of boots, 1 piece aluminum container and 15
involvement in anomalous transactions in the
pieces of hamburger patties. Is the penalty of
shipping section. PT&T dismissed Perez and Doria
dismissal commensurate with the offense
from service for falsifying documents. They filed a
committed?
complaint for illegal suspension and illegal
dismissal. The LA found that the 30day extension
A: There is no question that the employer has the
of suspension and the subsequent dismissal were
inherent right to discipline its Ees which includes
both illegal. The NLRC reversed the LAs decision, it
the right to dismiss. However this right is subject to
ruled that Perez and Doria were dismissed for just
the police power of the State. In this case the Court
cause, that they were accorded due process and
finds that the penalty imposed upon Felizardo was
that they were illegally suspended for only 15 days
not commensurate with the offense committed
(without stating the reason for the reduction of
considering the value of the articles he pilfered and
the period of petitioners illegal suspension). On
the fact that he had no previous derogatory record
appeal, CA held that they were dismissed without
during his 2 years of employment in the company.
due process. Whether petitioners were illegally
Moreover, it should also be taken into account that
dismissed?
Felizardo was not a managerial or confidential Ee in
whom greater trust is reposed by management and
A: Yes. The Er must establish that the dismissal is
from whom greater fidelity to duty is
for cause in view of the security of tenure that Ees
correspondingly expected. (ALUTUCP v. NLRC, G.R.
enjoy under the Constitution and the LC. PT&T
No. 120450, Feb. 10, 1999)
failed to discharge this burden. PT&Ts illegal act of
dismissing Perez and Doria was aggravated by their
(1) Agabon Doctrine
failure to observe due process. To meet the reqts of
due process in the dismissal of an Ee, an Er must Q: If the dismissal is for a just or authorized cause
furnish the worker with 2 written notices: (1) a but the requirement of due process of notice and
written notice specifying the grounds for hearing were not complied with should the
termination and giving to said Ee a reasonable dismissal be held illegal?
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. Note: An order of reinstatement by the LA is not the
17, 2004, it was held that when dismissal is for just same as actual reinstatement of a dismissed or
or authorized cause but due process was not separated Ee. Thus, until the Er continuously fails to
observed, the dismissal should be upheld. actually implement the reinstatement aspect of the
decision of the LA, their obligation to the illegally
dismissed Ee, insofar as accrued backwages and other
However, the employer (Er) should be held liable for benefits are concerned, continues to accumulate. It is
noncompliance with the procedural reqts of due only when the illegally dismissed Ee receives the
process (e.g. damages). The Agabon ruling was separation pay (in case of strained relations) that it
modified by JAKA Food Processing v. Pacot (G.R. No. could be claimed with certainty that the ErEe
515378, Mar. 28, 2005) where it was held that: realtionship has formally ceased thereby precluding
the possibility of reinstatement. In the meantime, the
1. If based on just cause (Art. 282) but th
illegally dismissed Ees entitlement to backwages, 13
the Er failed to comply with the notice month pay, and other benefits subsists. Until the
reqt, the sanction to be imposed upon payment of separation pay is carried out, the Er should
him should be tempered because the not be allowed to remain unpunished for the delay, if
dismissal process was, in effect, initiated not outright refusal, to immediately execute the
by an act imputable to the Ee; and reinstatement aspect of the LAs decision.
2. If based on authorized causes (Art.
283) but the Er failed to comply with the Further, the Er cannot refuse to reinstate the illegally
notice reqt, the sanction should be stiffer dismissed Ee by claiming that the latter had already
because the dismissal process was found a job elsewhere. Minimum wage earners are left
initiated by Ers exercise of his with no choice after they are illegally dismissed from
management prerogative. 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
c.Reliefs for illegal dismissal
eventually securing new employment opportunities
instead of remaining idle and waiting the outcome of
(1)Reinstatement aspect the case. (Triad Security & Allied Services, Inc. et al v.
Ortega, G.R. No. 160871, Feb. 6, 2006).
Q: What are the remedies available to an illegally
dismissed employee (Ee)? Q: Distinguish Arts. 223 from 279 of the LC?
Rehabilitation Receiver for appropriate action. not include a prayer for reinstatement, unless, of
Whether Garcia may collect their wages during the course the Ee has waived his right to reinstatement.
period between the LAs order of reinstatement By law, an Ee who is unjustly dismissed is entitled to
pending appeal and the NLRC decision overturning reinstatement among others. The mere fact that the
that of the LA? complaint did not pray for reinstatement will not
prejudice the Ee, because technicalities of law and
A: Par. 3 of Art. 223 of the LC provides that the procedure are frowned upon in labor proceedings
decision of the LA reinstating a dismissed or (Pheschem Industrial Corp. v. Moldez, G.R. No.
separated Ee, insofar as the reinstatement aspect is 1161158, May 9, 2005).
concerned, shall immediately be executory, pending
appeal. Q: What happens if there is an Order of
Reinstatement but the position is no longer
Even if the order of reinstatement of the LA is available?
reversed on appeal, it is obligatory on the part of
the Er to reinstate and pay the wages of the A: The employee (Ee) should be given a
dismissed Ee during the period of appeal until substantially equivalent position. If no substantially
reversal by the higher court. On the other hand, if equivalent position is available, reinstatement
the Ee has been reinstated during the appeal period should not be ordered because that would in effect
and such reinstatement order is reversed with compel the employer to do the impossible. In such
finality, the Ee is not required to reimburse a situation, the Ee should merely be given a
whatever salary he received for he is entitled to separation pay consisting of 1month salary for
such, more so if he actually rendered services every year of service (Grolier Intl Inc. v. ELA, G.R.
during the period. No. 83523, Aug. 31, 1989)
In other words, a dismissed Ee whose case was (2)Separation pay in lieu of reinstatement
favorably decided by the LA is entitled to receive
wages pending appeal upon reinstatement, which is Q: How can separation pay be viewed?
immediately executory. Unless there is a restraining
order, it is ministerial upon the LA to implement the A: Under present laws and jurisprudence,
order of reinstatement and it is mandatory on the separation pay may be viewed in 4 ways:
Er to comply therewith. (Garcia vs. PAL, G.R. No.
164856, Jan.20, 2009) 1. In lieu of reinstatement in illegal
dismissal cases, where Ee is ordered
Q: What is the effect of the reversal of LAs reinstated but reinstatement is not
decision to the reinstated employee (Ee) feasible.
2. As Ers statutory obligation in
A: If the decision of the LA is later reversed on cases of legal termination due to
appeal upon the finding that the ground for authorized causes under Art. 283 and 284
dismissal is valid, then the Er has the right to of the LC.
require the dismissed Ee on payroll reinstatement to 3. As financial assistance, as an act
refund the salaries he/she received while the case of social justice and even in case of legal
was pending appeal, or it can be deducted from the dismissal under Art. 282 of the LC.
accrued benefits that the dismissed Ee was entitled 4. As employment benefit granted
to receive from the employer under existing laws, in CBA or company policy. (Poquiz, 2005)
CBA provisions, and company practices. However, if
the Ee was reinstated to work during the pendency Q: Is an illegally dismissed employee entitled to
of the appeal, then the Ee is entitled to receive the reinstatement as a matter of right?
compensation received for actual services rendered
without need of refund (Citibank v. NLRC, G.R. No. A: GR: Yes.
14273233, Dec. 4, 2007).
XPNS: Proceeds from an illegal dismissal
Q: May a court order the reinstatement of a wherein reinstatement is ordered but cannot be
dismissed employee (Ee) even if the prayer of the carried out as in the following cases:
complaint did not include such relief?
1. Reinstatement cannot be
A: Yes. So long as there is a finding that the Ee was effected in view of the long passage of
illegally dismissed, the court can order the time or because of the realities of the
reinstatement of an Ee even if the complaint does situation.
2.It would be inimical to the employers
interest.When reinstatement is no longer
feasible.
3. When it will not serve the best as that provided under Art. 283 of the LC in case of
interest of the parties involved. retrenchment to prevent losses?
4. Company will be prejudiced by
reinstatement. A: No. The separation pay awarded to employees
5. When it will not serve a prudent due to illegal dismissal is different from the amount
purpose. of separation pay provided for in Art. 283 of the LC.
6. When there is resultant strained Prescinding from the above, Phil. Tobacco is liable
relation (applies to both confidential and for illegal dismissal and should be responsible for
managerial employees (Ees) only). the reinstatement of the Lubat group and the
7. When the position has been payment of their backwages. However, since
abolished (applies to both managerial, reinstatement is no longer possible as Phil. Tobacco
supervisory and rankandfile Ees). have already closed its Balintawak plant, members
of the said group should instead be awarded normal
Note: In such cases, it would be more prudent to order separation pay (in lieu of reinstatement) equivalent
payment of separation pay instead of reinstatement. to at least one month pay, or one month pay for
(Quijano v. Mercury Drug Corporation, G.R. No. every year of service, whichever is higher. It must be
126561, July 8, 1998) stressed that the separation pay being awarded to
the Lubat group is due to illegal dismissal; hence, it
Q: Respondents are licensed drivers of public is different from the amount of separation pay
utility jeepneys owned by Moises Capili. When provided for in Article 283 in case of retrenchment
Capili assumed ownership and operation of the to prevent losses or in case of closure or cessation
jeepneys, the drivers were required to sign of the Ers business, in either of which the
individual contracts of lease of the jeepneys. The separation pay is equivalent to at least one (1)
drivers gathered the impression that signing the month or onehalf (1/2) month pay for every year of
contract was a condition precedent before they service, whichever is higher. (Phil. Tobacco Flue
could continue driving. The drivers stopped plying Curing & Redrying Corp. v. NLRC, G.R. No. 127395,
their assigned routes and a week later filed with Dec. 10, 1998)
the Labor Arbiter a complaint for illegal dismissal
praying not for reinstatement but for separation (a)Strained relation rule
pay. Are the respondents entitled to separation
pay? Q: What is the doctrine of strained relations?
A: No. When drivers voluntarily chose not to return A: When the Er can no longer trust the Ee and vice
to work anymore, they must be considered as versa, or there were imputations of bad faith to
having resigned from their employment. The each other, reinstatement could not effectively
common denominator of those instances where serve as a remedy. This doctrine applies only to
payment of separation pay is warranted is that the positions which require trust and confidence (Globe
employee was dismissed by the employer. (Capili v. Mackay v. NLRC, G.R. No. 82511, March 3, 1992).
NLRC, G.R. 117378, Mar. 26, 1997)
Note: Under the circumstances where the employment
Q: Two groups of seasonal workers claimed relationship has become so strained to preclude a
separation benefits after the closure of Phil. harmonious working relationship and that all hopes at
Tobacco processing plant in Balintawak and the reconciliation are naught after reinstatement, it would
transfer of its tobacco operations to Candon, Ilocos be more beneficial to accord the Ee backwages and
Sur. Phil. Tobacco refused to grant separation pay separation pay.
to the workers belonging to the first batch (Lubat
group), because they had not been given work Q: What must be proven before the principle of
during the preceding year and, hence, were no strained relations can be applied to a particular
longer in its employ at the time it closed its case?
Balintawak plant. Likewise, it claims exemption
from awarding separation pay to the second batch A:
(Luris group), because the closure of its plant was 1. The Ee concerned occupies a
due to "serious business losses," as defined in Art. position where he enjoys the trust and
283 of the LC. Both labor agencies held that the confidence of his Er; and
Luris and Lubat groups were entitled to separation 2. That it is likely that if reinstated,
pay equivalent to 1/2 month salary for every of an atmosphere of antipathy and
service, provided that the Ee worked at least 1 antagonism may be generated as to
month in a given year. Is the separation pay adversely affect the efficiency and
granted to an illegally dismissed Ee the same productivity of the Ee concerned. (Globe
Mackay Cable & Wire
Corp. v. NLRC G.R. No. 82511, Mar. 3, A: The payment of backwages is generally granted
1992) on the ground of equity. It is a form of relief that
restores the income that was lost by reason of the
Q: Does the doctrine of strained relationship unlawful dismissal; the grant thereof is intended to
always bar reinstatement in all cases? restore the earnings that would have accrued to the
dismissed Ee during the period of dismissal until it is
A: No. The doctrine should be applied on a case to determined that the termination of employment is
case basis, based on each cases peculiar conditions for a just cause. It is not private compensation or
and not universally. Otherwise, reinstatement can damages but is awarded in furtherance and
never be possible simply because some hostility is effectuation of the public objective of the LC. Nor is
invariably engendered between the parties as a it a redress of a private right but rather in the nature
result of litigation. That is human nature. (Anscor of a command to the employer to make public
Transport v. NLRC, G.R. No. 85894, Sept. 28, 1990) reparation for dismissing an Ee either due to the
formers unlawful act or bad faith. (Tomas Claudio
Besides, no strained relations should arise from a Memorial College Inc., v. CA, G.R. No. 152568, Feb.
valid and legal act of asserting one's right; 16, 2004)
otherwise an Ee who shall assert his right could be
easily separated from the service, by merely paying Q: What is the period covered by the payment of
his separation pay on the pretext that his backwages?
relationship with his employer (Er) had already
become strained. (Globe Mackay Cable & Wire A: The backwages shall cover the period from the
Corp. v. NLRC, G.R. No. 82511, Mar. 3, 1992) date of dismissal of the employee up to the date of:
Q: What is the basis of awarding backwages to an Q: What does the term full backwages mean?
illegally dismissed employee (Ee)?
LABOR LAW TEAM:
96 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 Q: Reynaldo was hired by Geminilou Trucking
to "full backwages" as meaning exactly that, i.e., Service (GTS) as a truck driver to haul and deliver
without deducting from backwages the earnings products of San Miguel Pure Foods Company, Inc.
derived elsewhere by the concerned Ee during the He was paid P 400 per trip and made 4 trips a day.
period of his illegal dismissal. (Buenviaje v. CA, G.R. He claimed that he was requested by GTS to sign a
147806, Nov. 12, 2002) contract entitled Kasunduan Sa PagUpa ng
Serbisyo which he refused as he found it to alter
The underlying reason for this ruling is that the his status as a regular Ee to merely contractual. He
employee, while litigating the legality (illegality) of averred that on account of his refusal to sign the
his dismissal, must still earn a living to support Kasunduan, his services were terminated
himself and family, while full backwages have to be prompting him to file a complaint before the NLRC
paid by the employer as part of the price he has to for constructive dismissal against the GTS. Would
pay for illegally dismissing his Ee. (Bustamante v. Reynaldos refusal to sign the Kasunduan
NLRC, G.R. No. 111651, Mar. 15, 1996) adequately support his allegation of constructively
dismissal?
Q: Is an Ee entitled to backwages even after the
closure of the business? A: No. The test of constructive dismissal is whether
a reasonable person in the employees (Ee's)
A: Yes. The closure of the business rendered the position would have felt compelled to give up his
reinstatement of complainant to her previous job under the circumstances. In the present case,
position impossible but she is still entitled to the the records show that the lone piece of evidence
payment of backwages up to the date of dissolution submitted by Reynaldo to substantiate his claim of
or closure. An employer found guilty of unfair labor constructive dismissal is an unsigned copy of the
practice in dismissing his Ee may not be ordered to Kasunduan. This falls way short of the required
pay backwages beyond the date of closure of quantum of proof which is substantial evidence, or
business where such closure was due to legitimate such relevant evidence as a reasonable mind might
business reasons and not merely an attempt to accept as adequate to support a conclusion.
defeat the order of reinstatement. (Pizza Inn v. Reynaldo was not dismissed, but that he simply
NLRC, G.R. No. 74531, June 28, 1988) failed to report for work after an altercation with a
fellow driver. (Madrigalejos vs. Geminilou Trucking
Q: What are the circumstances that prevent award Service, G.R. No. 179174, Dec. 24, 2008)
of backwages?
Q: Flores, a conductor of JAM Transportation Co.,
A: Inc., had an accident where he had to be
1. Dismissal for cause hospitalized for a number of days. Upon reporting
2. Death, physical or mental incapacity back to the company he was told to wait. For
of the employee several days this continued and he was promised a
3. Business reverses route assignment which did not materialize. Upon
4. Detention in prison speaking to Personnel Manager Medrano, he was
told that he will be accepted back to work but as a
(4)Constructive Dismissal new employee. Flores rejected the offer because it
would mean forfeiture of his 18 years of service to
Q: What is constructive dismissal? the company. Is the offer for reinstatement as a
new employee (Ee) a constructive dismissal?
A: An involuntary resignation resorted to when:
A: Yes. Flores reemployment as a new Ee would be
1. continued employment becomes very prejudicial to him as it would mean a demotion
impossible, unreasonable, or unlikely in rank and privileges, retirement benefits as his
2. there is a demotion in rank or previous 18 years of service with the company
diminution in pay or would simply be considered as non existent. It
3. clear discrimination, insensibility or amounts to constructive dismissal. (JAM
disdain by an Er becomes unbearable to Transportation Co., Inc. v. Flores, G.R. No. 82829,
the Ee. (Leonardo v. NLRC, G.R. Mar. 19, 1993)
No.125303, June 16, 2000)
Q: Quinanola was transferred from the position of
Note: There is no formal dismissal. The Ee is placed in a Executive Secretary to the Executive Vice President
situation by the Er such that his continued and General Manager to the Production Dept as
employment has become unbearable. Abandonment is Production Secretary. Quinanola rejected the
incompatible with constructive dismissal. assignment and filed a complaint for illegal
dismissal due to constructive dismissal. Did the This period is intended only for the purpose of
transfer of Quinanola amount to constructive investigating the offense to determine whether he is
dismissal? to be dismissed or not. It is not a penalty.
A: No. Quinanolas transfer was not unreasonable Note: The Er may continue the period of preventive
since it did not involve a demotion in rank nor a suspension provided that he pays the salary of the Ee.
change in her place of work nor a diminution in pay,
benefits and privileges. It did not constitute a If more than 1 month, the Ee must actually be
constructive dismissal. Furthermore, an employees reinstated or reinstated in the payroll. Officers are
liable only if done with malice.
security of tenure does not give him a vested right
in his position as would deprive the company of its
Q: Cantor and Pepito were preventively suspended
prerogative to change his assignment or transfer
pending application for their dismissal by Manila
him where he will be most useful. (Philippine Japan
Doctors Hospital after being implicated by one
Active Carbon Corp. v. NLRC, G.R. No. 83239, Mar. 8,
Macatubal when they refused to help him when he
1989)
was caught stealing xray films from the hospital.
Was the preventive suspension of Cantor and
Q: Sangil was a utility man/assistant steward of
Pepito proper?
the passenger cruise vessel Crown odyssey under a
oneyear contract. Sangil suffered head injuries
A: Where the continued employment of an Ee
after an altercation with a Greek member of the
poses a serious and imminent threat to the life and
crew. He informed the captain that he no longer
property of the employer or on his coEes, the Ees
intends to return aboard the vessel for fear that
preventive suspension is proper. In this case, no
further trouble may erupt between him and the
such threat to the life and property of the Er or of
other Greek crewmembers of the ship. Was Sangil
their coEes is present and they were merely
constructively dismissed?
implicated by the Macatubal. (Manila Doctors
Hospital v. NLRC, G.R. No 64897, Feb. 28, 1985)
A: Yes. There is constructive dismissal where the act
of a seaman in leaving ship was not voluntary but
(6)Quitclaim
was impelled by a legitimate desire for self
preservation or because of fear for his life Q: What is a quitclaim?
Constructive dismissal does not always involve
diminution in pay or rank but may be inferred from A: It is a document executed by an employee in
an act of clear discrimination, insensibility or favor of the employer preventing the former from
disdain by an Er may become unbearable on the filing any further money claim against the latter
part of the Ee that it could foreclose any choice by arising from employment.
him except to forego his continued employment.
(Sunga Ship Management Phils., Inc. v. NLRC, G.R. Q: What are the elements of a valid quitclaim?
No. 119080, April 14, 1998)
A:
(5)Preventive Suspension 1. Voluntarily entered into with full
understanding of what the employee is
Q: What is preventive suspension? doing
2. Represents a reasonable settlement
A: During the pendency of the investigation, the Er
may place the Ee under preventive suspension
Q: What constitutes reasonable settlement?
leading to termination when there is an imminent
threat or a reasonable possibility of a threat to the A: Reasonable settlement requires that the
lives and properties of the Er, his family and consideration for the quitclaim is credible and
representatives as well as the offenders coworkers reasonable. (Periquet v. NLRC, G.R. No. 91298, June
by the continued service of the Ee. 22, 1990)
Q: What is the duration of preventive suspension?
Q: Is dire necessity a ground to nullify a
quitclaim?
A: It should not last for more than 30 days. The Ee
should be made to resume his work after 30 days. It A: Dire necessity is not an acceptable ground for
can be extended provided the Ees wages are paid annulling the releases, especially since it has not
after the 30day period. been shown that the employees had been forced to
execute them. It has not even been proven that the
considerations for the quitclaims were
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT
unconscionably low and that the petitioners had A: It is the result of a bilateral act of the parties, a
been tricked into accepting them. Furthermore, no voluntary agreement between the employer and
deception has been established on the part of the the employees whereby the latter after reaching a
employer that would justify the annulment of the certain age agrees and/or consents to sever his
employees quitclaim. (Veloso v. DOLE, G.R. No. employment with the former. (Soberano v. Sec. of
87297, August 5, 1991.) Labor, G.R. Nos. L4375356 and L50991, 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. Compulsory and contributory in nature;
A: 2. One set up by the agreement
1. Without just cause by serving between the employer (Er) and
written notice on the Er at least 1 month employees (Ees) in the CBA or other
in advance. The Er upon whom no such agreements between them (other
notice was served may hold the Ee liable applicable employment contract);
for damages. 3. One that is voluntarily given by
the Er, expressly as announced company
2. With just cause an Ee may put an policy or impliedly as in the failure to
end to employment without serving any contest the Ees claim for retirement
notice on the Er for any of the following benefits. (Marilyn Odchimar Gertach v.
just causes: Reuters Limited, Phils., G.R. No. 148542,
a. Serious insult by the Er or Jan. 17, 2005)
his representative on the hour and
person of the Ee Q: Who are covered by the LC provisions on
b. Inhuman and unbearable retirement?
treatment accorded the Ee by the Er
or his representative A:
c. Commission of a crime or GR: All employees (Ees) in the private sector:
offense by the Er or his 1. Regardless of their position,
representative against the person of designation or status; and
the Ee or any of the immediate 2. Irrespective of the method by
members of his family which their wages are paid. (Sec.1, Rule II,
d. Other causes analogous to Book VI, IRR)
any of the foregoing
XPN:
Q: When is employment not deemed 1. Ees of the National Govt and its
terminated? political subdivisions, including GOCCs (if
they are covered by the Civil Service Law)
A: 2. Domestic helpers and persons in
1. Bona fide suspension of the the personal service of another
operation of a business or undertaking for 3. Ees of retail, service, and
a period not exceeding 6 months, or agricultural establishments or operations
2. The fulfillment by the Ee of a employing not more than 10 Ees (Sec.2,
military or civic duty shall not terminate Rule II, Book VI, IRR)
employment.
Q: What is the retirement age?
Note: In all such cases, the Er shall reinstate the Ee to
his former position without loss of seniority rights if he A: It is the age of retirement that is specified in the:
indicates his desire to resume his work not later than 1 1. CBA; or
month from the resumption of operations of his Er or 2. Employment contract; or
from his relief from the military or civic duty. (Art. 286) 3. Retirement plan (Sec. 3, Rule II,
Book VI, IRR).
3.RETIREMENT PAY LAW 4. Optional retirement age for
underground mining employees: 5060
a.Coverage, Exclusions from coverage, Components years provided they have at least served
of retirement pay for a period of 5 years. (Art.285 as
Q: What is retirement? amended by R.A. 8558)
Q: What is the retirement age in the absence of a 6 months being considered as 1 whole year.
retirement plan or other applicable agreement? (Sec.5.1, Rule II, Book VI, IRR)
2. Compulsory 65 years old, Note: Under Sec. 26 of R.A. No. 4670,otherwise known
regardless of years of service (company is as Magna Carta for Public School Teachers, public
not bound to dismiss Ee; it is automatic). school teachers having fulfilled the age and service
(Sec. 4, Rule II, Book VI, IRR) reqts of the applicable retirement laws shall be given
one range salary raise upon the retirement, which shall
Note: Retirement benefits, where not be the basis of the computation of the lump sum of the
mandated by law, may be granted by retirement pay and monthly benefit thereafter.
agreement of the Ees and their Er or as a
voluntary act on the part of the Er. Q: Can Art. 287 of the LC (on retirement) as
Retirement benefits are intended to help the amended by R.A. 7641 be applied retroactively?
Ee enjoy the remaining years of his life,
lessening the burden of worrying for his A: Yes, provided:
financial support, and are a form of reward 1. The claimant for retirement
for his loyalty and service to the Er (Aquino benefits was still the employee of the
v. NLRC, G.R. No. 87653, Feb. 11, 1992) employer at the time the statute took
effect; and
Q: Is compulsory retirement age below 60 2. The claimant was in compliance
allowed? with the reqts for eligibility under the
statute for such retirement benefits.
A: Yes. Art. 287 permits Er and Ee to fix the (PSVSIA v. NLRC, G.R. No. 115019, April
applicable retirement age at below 60. The same is 14, 1997)
legal and enforceable so long as the parties agree to
be governed by such CBA. (Pantranco North Express Q: Are the provisions of the retirement plan
v. NLRC, G.R. No. 95940, July 24, 1996) binding as part of the employment contract?
Q: What is the rule for extension of service of A: Yes. The retirement plan forms part of the
retiree upon his reaching the compulsory employment contract since it is made known to the
retirement age? Ees and accepted by them, and such plan has an
express provision that the company has the choice
A: Upon the compulsory retirement of an employee to retire an Ee regardless of age, with 20 years of
(Ee) or official in the public or private service, his service, said policy is within the bounds
employment is deemed terminated. The matter of contemplated by the LC. Moreover, the manner of
extension of service of such Ee or official is computation of retirement benefits depends on the
addressed to the sound discretion of the Er. (UST stipulation provided in the company retirement
Faculty Union v. NLRC, G.R. No. 89885, Aug. 6,1990) plan. (Progressive Devt Corporation v. NLRC, G.R.
No. 138826, Oct.30, 2000)
Q: What are retirement benefits?
Q: Rivera was employed as senior manufacturing
A: In the absence of an applicable agreement or
pharmacist by UNILAB. She later became Director
retirement plan A retiree is entitled to a
of UNILAB's Manufacturing Division. UNILAB
retirement pay equivalent to at least month salary
adopted a comprehensive retirement plan (the
for every year of service, a fraction of at least
plan or retirement plan) supported by a retirement
fund. A member is compulsorily retired upon
reaching age 60 or has completed 30
years of service, whichever comes first. Rivera Q: In 55, Hilaria was hired as a grade school
completed 30 years of service and UNILAB retired teacher at the Sta. Catalina College. In 70, she
her pursuant to the terms of the plan, she received applied for and was granted a 1 yr LOA without pay
the benefits in 88. At Rivera's request, UNILAB due to the illness of her mother. After the
allowed her to continue working for the company. expiration in 71 of her LOA, she had not been
She continued working beyond the compulsory heard from by Sta. Catalina. In the meantime, she
separation from service that resulted from her was employed as a teacher at the San Pedro
retirement. From 1993 to 1994, Rivera served as a Parochial School during SY 8081 and at the Liceo
personal consultant under contract for UNILABs de San Pedro, during SY 8182. In 82, she applied
sister companies which assigned Rivera to render anew at Sta. Catalina which hired her. On Mar 22,
st
service involving UNILAB. In 1992, the company 97, during the 51 Commencement Exercises of
amended its retirement plan, providing, among Sta. Catalina, Hilaria was awarded a Plaque of
others, for an increase in retirement benefits. Appreciation for 30 yrs of service and P12,000 as
Rivera asked that her retirement benefits be gratuity pay. On May 31, 97, Hilaria reached the
increased in accordance with the amended compulsory retirement age of 65. Sta. Catalina
retirement program. Whether Rivera is entitled to pegged her retirement benefits at P59,038.35.
the additional retirement benefits of the amended Deducted was the amount of P12,000 representing
retirement plan? the gratuity pay which was given to her.
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A:
Social
Security Law
Compulsory
upon a
notover60
years of
and their Ers.
1.Filipinos
recruited
the Ph
foreign based
Ers
employment
abroad may be
covered by the
SSS on
voluntary
basis.
2.
Compulsory
upon a
employed
persons
earning P1,800
or more
annum.
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
MANAGEMENT PREROGATIVE
Note: So long as a companys prerogatives are A: Yes, because this is a management prerogative
exercised in good faith for the advancement of the which is not due any legal or contractual
Ersinterest and not for the purpose of defeating or obligation. The facts of the case do not state the
circumventing the rights of the Ees under special laws circumstances through which the shuttle service
or under valid agreements, the Supreme Court will may be considered as a benefit that ripened into a
uphold them. demandable right. There is no showing that the
benefit has been deliberately and consistently
Q: 1. An exclusive school for girls, run by a granted, i.e. with the employers full consciousness
religious order, has a policy of not employing that despite its not being bound by law or contract
unwed mothers, women with livein partners, and to grant it, it just the same granted the benefit.
lesbians. Is the policy violative of any provision of (2005 Bar Question)
the LC on employment of women?
1.DISCIPLINE
2. The same school dismissed 2 female faculty
members on account of pregnancy out of wedlock. Q: Discuss briefly the Ers right to discipline his Ees.
Did the school violate any provision of the LC on
employment of women? A: The Er has the prerogative to instill discipline in
his Ees and to impose reasonable penalties,
A: including dismissal, on erring Ees pursuant to
1. No, the policy does not violate the company rules and regulations. (San Miguel
LC. The practice is a valid exercise of Corporation v. NLRC, G.R. No. 87277, May 12, 1989)
management function. Considering the
nature and reason for existence of the Q: Is the power of the Er to discipline his Ees
school, it may adopt such policy as will absolute?
advance its laudable objectives. In fact,
the policy accords with the constitutional A: No. While management has the prerogative to
precept of inculcating ethical and moral discipline its Ees and to impose appropriate
values in schools. The school policy does penalties on erring workers, pursuant to company
not discriminate against women solely on rules and regulations, however, such management
account of sex (Art. 135, LC) nor are the prerogatives must be exercised in good faith for the
acts prohibited under Art. 137 of the LC. advancement of the Ers interest and not for the
purpose of defeating or circumventing the rights of
2. No, because to tolerate pregnancy the Ees under special laws and valid agreements.
out of wedlock will be a blatant
contradiction of
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
(PLDT vs. Teves, G.R. No. 143511, November 10, or a reward, which a person has a right to refuse.
2010) When an Ee refused to accept his promotion, he
was exercising his right and cannot be punished for
Q: May the Er be compelled to share with its Ees it. While it may be true that the right to transfer or
the prerogative of formulating a code of discipline? reassign an Ee is an Ers exclusive right and the
Is a code of discipline unilaterally formulated by prerogative of management, such right is not
the Er enforceable? absolute. (Dosch vs. NLRC and Northwest Airlines,
G.R. No. 51182, July 5, 1983)
A: The Er has the obligation to share with its Ees its
prerogative of formulating a code of discipline. This Q: Who has the burden of proving that the
is in compliance with the States policy stated in transfer was reasonable?
Article 211 of the Labor Code, to ensure the
participation of workers in decision and policy A: The Er must be able to show that the transfer is
making processes affecting their rights, duties and not unreasonable, inconvenient or prejudicial to the
welfare. The exercise of management prerogatives Ee; nor does it involve a demotion in rank or a
has, furthermore, never been considered to be diminution of his salaries, privileges and other
boundless. This obligation is not dispensed with by benefits. Should the Er fail to overcome this burden
a provision in the collective bargaining agreement of proof, the Ees transfer shall be tantamount to
recognizing the exclusive right of the Er to make and constructive dismissal. (Blue Dairy Corporation v.
enforce company rules and regulations to carry out NLRC, 314 SCRA 401 [1999])
the functions of management without having to
discuss the same with the union and much less 3.PRODUCTIVITY STANDARD
obtain the latters conformity thereto. A code of
discipline unilaterally formulated and promulgated Q: May an Er impose productivity standards for its
by the Er would be unenforceable. (Philippine workers?
Airlines, Inc. vs. NLRC et al., G.R. No. August 13,
1993.) A: Yes. An Er is entitled to impose productivity
standards for its workers, and in fact, non
2.TRANSFER OF EMPLOYEES compliance may be visited with a penalty even
more severe than demotion. The practice of a
Q: Discuss briefly the Ers right to transfer and company in laying off workers because they failed to
reassign Ees. make the work quota has been recognized in this
jurisdiction. Failure to meet the sales quota
A: In the pursuit of its legitimate business interests, assigned to each of them constitute a just cause of
especially during adverse business conditions, their dismissal, regardless of the permanent or
management has the prerogative to transfer or probationary status of their employment. Failure to
assign Ees from one office or area of operation to observe prescribed standards of work, or to fulfill
another provided there is no demotion in rank or reasonable work assignments due to inefficiency
diminution of salary, benefits and other privileges may constitute just cause for dismissal. Such
and the action is not motivated by discrimination, inefficiency is understood to mean failure to attain
bad faith, or effected as a form of punishment or work goals or work quotas, either by failing to
demotion without sufficient cause. This privilege is complete the same within the allotted reasonable
inherent in the right of Ers to control and manage period, or by producing unsatisfactory results. This
their enterprises effectively. management prerogative of requiring standards
may be availed of so long as they are exercised in
Note: The right of Ees to security of tenure does not good faith for the advancement of the Ers interest.
give them vested rights to their positions to the extent (Leonardo vs. NLRC, G.R. No. 125303, June 16,
of depriving management of its prerogative to change 2000)
their assignments or to transfer them. (Endico v.
Quantum Foods Distribution Center, G.R. No. 161615, 4.GRANT OF BONUS
Jan. 30, 2009)
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 A: It is an amount granted and paid to an Ee for his
transfer is coupled with or is in the nature of industry and loyalty which contributed to the
promotion? 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?
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
MANAGEMENT PREROGATIVE
of time has been paying his Ees wages due for eight
A: hours work although the work shift less than eight
GR: Bonus is not demandable as a matter of hours (e.g. seven) it cannot later on increase the
right. It is a management prerogative given in working hours without an increase in the pay of the
addition to what is ordinarily received by or employees affected. An Er is not allowed to
strictly due to recipient. (Producers Bank of the withdraw a benefit which he has voluntarily given.
Phil. v. NLRC, G.R. No. 100701, March 28, 2001) An Er is not allowed to withdraw a benefit which he
has voluntarily given.
XPNs: Given for a long period of time
1. Consistent and deliberate Er 6.MARITAL DISCRIMINATION
continued giving benefit without any
condition imposed for its payment Q: Is a company policy prohibiting marriage
2. Er knew he was not required to give between coworkers valid?
benefit
3. Nature of benefit is not dependent A: There must be a finding of a bona fide
on profit occupational qualification (BFOQ) to justify an Ers
4. Made part of the wage or No Spouse Rule. There must be a compelling
compensation agreed and stated in the business necessity for which no alternative exists
employment contract. other than the discriminating practice. (Star Paper
vs. Simbol, G.R. No. 164774, April 12, 2006)
Q: The projected bonus for the Ees of Suerte Co.
was 50% of their monthly compensation. Q: What are the factors that the Er must prove
Unfortunately, due to the slump in the business, inorder to justify BFOQ?
the president reduced the bonus to 5% of their
compensation. Can the company unilaterally A: The Er must prove 2 factors:
reduce the amount of bonus? Explain briefly. 1. That the employment
qualification is reasonably related to the
A: Yes. The granting of a bonus is a management essential operation of the job involved;
prerogative, something given in addition to what is and
ordinarily received by or strictly due the recipient. 2. That there is a factual basis for
An Er cannot be forced to distribute bonuses when believing that all or substantially all
it can no longer afford to pay. To hold otherwise persons meeting the qualification would
would be to penalize the Er for his past generosity. be unable to properly perform the duties
(Producers Bank of the Phil. v NLRC, G.R. No. of the job. (Star Paper et al. vs. Simbol,
100701, March 28, 2001). (2002 Bar Question) G.R. No. 164774, April 12, 2006)
Q: May the normal hours fixed in Article 83 be A: The prohibition against personal or marital
reduced by the Er? Explain. relationships with Ees of competitorscompanies
upon Glaxos Ees is reasonable under the
A: The present article provides that the normal circumstances because relationships of that nature
hours of work of an Ee shall not exceed eight (8) might compromise the interest of the company.
hours a day. This implies that the Er, in the exercise Glaxo does not impose an absolute prohibition
of its management prerogatives, may schedule a against relationships between its Ees and those of
work shift consisting of less than eight hours. And competitor companies. Its Ees are free to cultivate
following the principle of a fair days wage for a fair relationships with and marry persons of their own
days labor, the Er is not obliged to pay an Ee, choosing. What the company merely seeks to avoid
working for less than eight hours a day, the wages is a conflict of interest between the Ee and the
due for eight hours. Nonetheless, if by voluntary company that may arise out of such relationships.
practice or policy, the Ee for a considerable period Furthermore, the prohibition forms part of the
employment contract and Peds was aware of such
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
restrictions when he entered into a relationship 3. General principles of fair play and justice
with Jali. (Duncan Association of DetailmanPTGWO
v. Glaxo Wellcome Phil. Inc., G.R. No. 162994, Sep. Furthermore, a line must be drawn between
17, 2004) management prerogatives regarding business
operations per se and those which affect the rights
7.POSTEMPLOYMENT BAN of Ees. In treating the latter, management should
see to it that its Ees are at least properly informed
Q: Genesis Fulgencio had been working for of its decisions and modes of actions. So long as a
Solidbank Corporation since 1977. He later on companys prerogatives are exercised in good faith
applied for retirement. Solidbank required Genesis for the advancement of the Ersinterest and not for
to sign an undated Undertaking where he the purpose of defeating or circumventing the rights
promised that "[he] will not seek employment of the Ees under special laws or under valid
with a competitor bank or financial institution agreements, the Supreme Court will uphold them.
within one (1) year from February 28, 1995, and (PAL v. NLRC, G.R. No. 85985, Aug. 13, 1993; San
that any breach of the Undertaking or the Miguel Brewery Sales v9. Ople, G.R. No. 53515,
provisions of the Release, Waiver and Quitclaim February 8, 1989)
would entitle Solidbank to a cause of action
against him before the appropriate courts of law. Note: It must be established that the prerogative being
Equitable Banking Corporation (Equitable) invoked is clearly a managerial one
employed Genesis. Is the postretirement
employment ban incorporated in the Undertaking
which Genesis executed upon his retirement is
unreasonable, oppressive, hence, contrary to
public policy?
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F. SOCIAL LEGISLATION A:
DISPUTE SETTLEMENT
Q: What is Social Legislation? Disputes involving:
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discontinued, reduced or
Q: Who is an employee (Ee)? otherwise impaired;
b. Existing private plans shall
A: Any person who performs services for an Er in be integrated with the SSS but if
which either or both mental and physical efforts are the Er under such plan is
used and who receives compensation for such contributing more than what is
services, where there is an ErEe relationship: required by this Act, he shall pay
Provided, That a selfemployed person shall be both to the SSS the amount required
Ee and Er at the same time. (Sec. 8[d]) to him, and he shall continue
with his contributions less the
Q: What is employment? amount paid to SSS;
c. Any changes, adjustments,
A: GR: Any service performed by an Ee for his Er. modifications, eliminations or
improvements in the benefits of
XPNs: the remaining private plan after
1. Employment purely casual and not the integration shall be subject
for the purpose of occupation or business to agreements between the Ers
of the Er; and the Ees concerned; and
2. Service performed on or in d. The private benefit plan
connection with an alien vessel by an Ee if which the Er shall continue for
he is employed when such vessel is his Ees shall remain under the
outside the Phils; Ers management and control
3. Service performed in the employ unless there is an existing
of the Phil. Government or agreement to the contrary
instrumentality or agency thereof; c. All selfemployed
4. Service performed in the employ considered both an Er and Ee
of a foreign government or international d. Professionals;
organization, or their whollyowned e. Partners and single
instrumentality: proprietors of business;
5. Such other services performed by f. Actors and actresses, directors,
temporary and other Ees which may be scriptwriters and news
excluded by regulation of the SSC. Ees of correspondents who do not fall
bona fide independent contractors shall within the definition of the term
not be deemed Ees of the Er engaging the Ee;
services of said contractors. (Sec. 8[j]) g. Professional athletes,
coaches, trainers and jockeys; AND
Q: What is a contingency? h. Individual farmers and
fisherman. (Sec. 9)
A: The retirement, death, disability, injury or
sickness and maternity of the member. 2. Voluntary
a. Spouses who devote full
a.Coverage time to managing the household and
family affairs, unless they are also
Q: Who are covered by SSS? engaged in other vocation or
employment which is subject to
A: mandatory coverage ; (Sec. 9[b])
1. Compulsory Coverage b. Filipinos recruited by
a. All Ees not over 60 years of age foreignbased Ers for employment
and their Ers; abroad may be covered by the SSS on
b. Domestic helpers whose income is a voluntary basis; (Sec. 9[c])
not less than P 1000/month and not c. Ee separated from
over 60 years of age and their Ers; employment to maintain his right to
Limitations: full benefits
a. Any benefit earned by d. Selfemployed who realizes
the Ees under private benefit no income for a certain month
plans existing at the time of the
approval of the Act shall not be 3. By Agreement
Any foreign government, international
organization, or their whollyowned
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instrumentality employing workers in the A: No. It is not necessary, for the enjoyment of
Phils., may enter into an agreement with benefits under the SSS Law that the injury is work
the Phil. government for the inclusion of connected. What is important is membership in the
such Ees in the SSS except those already SSS and not the causal connection of the work of
covered by their respective civil service the Ee to his injury or sickness.
retirement systems.
Claims based on workconnected injuries or
Q: When is the compulsory coverage deemed occupational diseases are covered by the State
effective? Insurance Fund.
Q: What are the reportorial requirements of the Er 2. If he dies within 60 months from
and selfemployed? the start of his pension and he has no
primary beneficiaries, his secondary
A: beneficiaries will receive a lump sum
1. Er Report immediately to SSS the benefit equivalent to the difference of 60
names, ages, civil status, occupations, multiplied by the monthly pension and
salaries and dependents of all his covered the total monthly pensions paid by the
Ees SSS excluding the dependent's pension.
(Sec. 12B [d])
2. Selfemployed Report to SSS
within 30 days from the first day of his Q: Bonifacio and Elena are living together as
operation, his name, age, civil status, husband and wife without the benefit of marriage.
occupation, average monthly net income Bonifacio declared Elena and their children as his
and his dependents primary beneficiaries in his self employed data
record in SSS. A few months prior to his death,
Monthly Pension Bonifacio married Elena.Is Elena entitled to the
survivors pension?
Q: How much is the monthly pension?
A: Yes, she is considered primary beneficiary of
A: Bonifacio. The phrase Upon the death of the
1. The monthly pension shall be the retired member, his primary beneficiaries as of the
highest of the following amounts: date of his retirement will get 100 per cent of his
a. The sum of the following: monthly pension xxx of Sec. 12B d of RA 8282 is
ii. P300.00; plus unconstitutional because it violates the: (1) equal
iii. 20% of the average protection clause because it impermissibly
monthly salary credit; plus discriminates against dependent spouses whose
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Q: When is the monthly pension and dependents Q: What happens when the retirement pensioner
pension suspended? is reemployed or resumes selfemployment?
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Note: The law does not require that sickness must be Q: What are the qualifications for entitlement to
related to the duties of the beneficiaries. the maternity benefit?
4. Add the six highest monthly salary Q: Who are secondary beneficiaries?
credits to get the total monthly salary
credit. A: In the absence of primary beneficiaries, the
dependent parents.
5. Divide the total monthly salary
credit by 180 days to get the average daily In the absence of all the foregoing, any other person
salary credit. This is equivalent to the daily designated by the member as his or her secondary
maternity allowance. beneficiary. (Sec. 8[k])
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the contrary. Conversely, if it is proved that the performed by these 50 people is not in connection
husband and wife were still living together at the with the purpose of the business of the factory.
time of his death, it would be safe to presume that Hence, the employment of these 50 persons is
she was dependent on the husband for support, purely casual. They are, therefore, excepted from the
unless it is shown that she is capable of providing compulsory coverage of the SSS law. (2000 Bar
for herself. (SSS v. Aguas, G.R. No. 165546, Feb. 27, Question)
2006)
2.GSIS
Q: Who is entitled to the benefits of an SSS (R.A. 8291)
member who was survived not only by his legal
wife, who is not dependent upon the member, but Q: What are the purposes behind the enactment
also by two commonlaw wives with whom he had of the GSIS Act?
illegitimate minor children?
A: To provide and administer the following social
A: The illegitimate minor children shall be entitled security benefits for government employees (Ee):
to the death benefits as primary beneficiaries
because the legal wife is not dependent upon the 1. Compulsory life insurance
member. The SSS Law is clear that for a minor child 2. Optional life insurance
to qualify as a dependent the only requirements 3. Retirement benefits
are that he/she must be below 21 yrs. of age, not 4. Disability benefits to work
married nor gainfully employed. (Signey v. SSS, G.R. related contingencies; and
No. 173582, Jan.28, 2008) 5. Death benefits
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The per diems paid to Baradero and Belo were in Q: Who are covered by life insurance, retirement
the nature of compensation or remuneration for and other social security protection?
their services as Sangguniang Bayan and Vice
Governor, respectively, rather than a A:
reimbursement for incidental expenses incurred GR: All members of the GSIS shall have life
while away from their home base. insurance, retirement, and all other social
security protections such as disability,
If the remuneration received by a public official in survivorship, separation, and unemployment
the performance of his duties does not constitute a benefits. (Sec. 3)
mere allowance for expenses but appears to be
his actual base pay, then no amount of categorizing XPNs: Members of:
the salary as a per diem would take the 1. The judiciary; and
allowances received from the term service with 2. Constitutional commissions who
compensation for the purpose of computing the shall have life insurance only.
number of years of service in government. (GSIS v.
CSC, G. R. Nos. 98395 and 102449, June 19, 1995) b.Exclusions from coverage
Q: What are the sources of funds of the GSIS? Q: Who, under the GSIS, are excluded from the
coverage?
A: It comes from the monthly contributions of the
covered Ees and Ers. (Sec. 5) A:
1. Ees who have separate
The contributions of the Ees are deducted and retirement schemes (members of the
withheld by the Er each month from the monthly Judiciary, Constitutional Commissions and
salary of the former and are remitted by the latter, others similarly situated)
together with its own share, to the System within 2. Contractual Ees who have no Er
the first 10 days of each calendar month following Ee with the agencies they serve
the month to which the contributions apply. (Sec. 6) 3. Uniformed members of the AFP,
BJMP, whose coverage by the GSIS has
Q: What is the penalty in case of delayed ceased effective June 24, 1997
remittance or nonremittance of contributions? 4. Uniformed members of the PNP
whose coverage by the GSIS has ceased
A: The unremitted contributions shall be charged effective February 1, 1996. (Sec. 2.4, Rule
interests as prescribed by the GSIS Board of II, IRR)
Trustees but shall not be less than 2% simple
interest per month from due date to the date of Q: For the purpose of benefit entitlement, how are
payment by the employers concerned. the members classified?
A:
1. Active members
a. Still in the service and are
paying integrated premiums.
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3. He has been paying the Q: What are the options of the retiree with regard
contribution for at least 1 year prior to to his or her retirement benefits?
separation.
A: The retiree may get either of the following:
Q: What will consist of an unemployment
benefit? 1. Lump sum equivalent to 6
months of the basic monthly pension
A: It will consists of cash payment equivalent to (BMP) payable at the time of retirement
50% of the average monthly compensation and an oldage pension benefit equal to
BMP payable for life, starting upon the
Note: A member who has rendered at least 15 years of expiration of the 5 years covered by the
service will be entitled to separation benefits instead lump sum; or
of unemployment benefits. 2. Cash payment equivalent to 18
times his BMP and monthly pension for
Retirement Benefits life payable immediately. (Sec. 13[a])
Q: What is the rule in case of extension of service A: Complete incapacity to continue with present
in order to be entitled for retirement benefit? employment or engage in any gainful occupation
due to the loss or impairment of the normal
A: The doctrine in Cena vs. CSC (G.R. No. 97419, functions of the physical and/or mental faculties of
July 3, 1992), was modified in Rabor vs. CSC, (G.R. the member.
No. 111812, May 31, 1995), where the SC held that:
The head of the government agency concerned is Q: What is permanent total disability (PTD)?
vested with discretionary authority to allow or
disallow extension of the service of an official or Ee A: Accrues or arises when recovery from
who has reached 65 years old without completing impairment mentioned in Sec.2(q) (defining
the 15 years of government service. However, this disability) is medically remote.
discretion is to be exercise conformably with the
provisions of Civil Service Memorandum Circular Q: What is permanent partial disability (PPD)?
No. 27, series of 1990 which provides that the
extension shall not exceed 1 year. A: Accrues or arises upon the irrevocable loss or
impairment of certain portions of the physical
Q: What is the reason for compulsory retirement? faculties, despite which the member is able to
pursue a gainful occupation.
A: The compulsory retirement of government
officials and Ees upon their reaching the age of 65 Q: What are the conditions in order to be entitled
years is founded on public policy which aims by it to for permanent disability benefits?
maintain efficiency in the government service and
at the same time give to the retiring public servants A: The permanent disability was not due to any of
the opportunity to enjoy during the remainder of the ff:
their lives the recompense, for their long service
and devotion to the government , in the form of a 1. Grave misconduct
comparatively easier life, freed from the rigors of 2. Notorious negligence
civil service discipline and the exacting demands 3. Habitual intoxication
that the nature of their work and their relations 4. Willful intention to kill himself or another
with their superiors as well as the public would
impose upon them. (Beronilla v. GSIS, G.R. No.
21723, Nov. 26, 1970)
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2. Loss of 2 limbs at or A:
1. In case a member is reemployed; or
2. Member recovers from disability
3. as determined by the GSIS; or
3. Fails to present himself for
4. medical examination when required by
the GSIS. (Sec. 16 [c])
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which he was hospitalized several times in 97 a. He has exhausted all sick leaves
developed from his workrelated illnesses. The b. CBA sick leave benefits
GSIS disapproved Maniosos request. Provided, that:
i. He was in the service at time of
Do Maniosos ailments which later developed fall disability; or
under the category of permanent total disability? ii. If separated, he has rendered at
least 3 years of service and has
A: Yes. Under Art. 192 (c) of P.D. No. 442, as paid at least 6 monthly
amended (the LC), the following disabilities are contributions in the year
deemed total and permanent: (1) Temporary total preceding his disability
disability lasting continuously for more than 120 2. The temporary total disability
days. Under Section 2(b), Rule VII of the Amended benefits shall in no case be less than P70 a
Rules on Ees Compensation, [a] disability is total day.
and permanent if as a result of the injury or sickness
the Ee is unable to perform any gainful occupation Note: A member cannot enjoy the temporary total
for a continuous period exceeding 120 days, except disability benefit and sick leave pay simultaneously.
as otherwise provided under Rule X of these Rules.
In the case at bar, Manioso was on sick leave from An application for disability must be filed with the GSIS
Jan 11, 95 up to his date of retirement on May 15, within 4 years from the date of the occurrence of the
contingency.
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 Survivorship Benefits
relative to his ailments. Maniosos disability having
lasted for more than 120 days, he is entitled to PTD Q: Who are entitled to survivorship benefits?
benefits. (Manioso,
v. GSIS, G.R. No. 148323, Apr. 29, 2005) A: Upon the death of a member or pensioner, his
beneficiaries shall be entitled to survivorship
benefits. Such benefit shall consist of:
Q: Does Maniosos retirement from service
prevent him from entitlement to PTD benefits?
1. The basic survivorship pension
which is 50% of the basic monthly
A: No. Benefits due an Ee due to workrelated
pension; and
sickness shall be provided until he becomes
gainfully employed, or until his recovery or death. 2. The dependent childrens
None of these are present in Maniosos case. It pension not exceeding 50% of the basic
would be an affront to justice if Manioso, a monthly pension
government Ee who had served for 36 years, is
deprived of the benefits due him for workrelated Q: Under what conditions are the primary
ailments that resulted in his Permanent Total beneficiaries entitled to the basic monthly
Disability. (Manioso v. GSIS, G.R. No. 148323, Apr. pension?
29, 2005)
A: Upon the death of a member, the primary
Temporary Disability Benefits beneficiaries shall be entitled to:
his death with at least 3 years of service; P12,000.00: Provided, That the member is
OR in the service at the time of his death and
has at least 3 years of service; or
3. A cash payment equivalent to 100% 2. In the absence of secondary
of his average monthly compensation for beneficiaries, the benefits under this par.
each year of service he paid contributions, shall be paid to his legal heirs. (Sec. 21[c])
but not less than P12,000.00: Provided,
That the deceased has rendered at least 3 Q: What are the benefits that the beneficiaries are
years of service prior to his death but entitled to upon the death of the pensioner?
does not qualify for the benefits under
item (1) or (2) of this paragraph. [Sec. 21 A:
(a)] 1. Upon the death of an oldage
pensioner or a member receiving the
Q: After the end of the guaranteed 30 months, are monthly income benefit for permanent
the beneficiaries still entitled to any survivorship disability, the qualified beneficiaries shall
benefits? be entitled to the survivorship pension
defined in Sec. 20 of this Act, subject to
A: Yes. The survivorship pension shall be paid as the provisions of par. (b) of Sec.21.
follows: 2. When the pensioner dies within
the period covered by the lump sum, the
1. When the dependent spouse is the survivorship pension shall be paid only
only survivor, he/she shall receive the after the expiration of the said period.
basic survivorship pension for life or until
he or she remarries; Q: Gary Leseng was employed as a public school
teacher at the Marinduque High. On April 27, 1997,
2. When only dependent children are a memorandum was issued by the school principal
the survivors, they shall be entitled to the designating Gary to prepare the model dam project,
basic survivorship pension for as long as which will be the official entry of the school in the
they are qualified, plus the dependent search for Outstanding Improvised Secondary
childrens pension equivalent to 10% of Science Equipment for Teachers. Gary complied
the basic monthly pension for every with his superior's instruction and took home the
dependent child not exceeding 5, counted project to enable him to finish before the deadline.
from the youngest and without While working on the model dam project, he came
substitution; to contact with a live wire and was electrocuted.
The death certificate showed that he died of cardiac
3. When the survivors are the arrest due to accidental electrocution.
dependent spouse and the dependent
children, the dependent spouse shall Bella (Garys commonlaw wife) and Jobo (his only
receive the basic survivorship pension for son) filed a claim for death benefits with the GSIS
life or until he/she remarries, and the which was denied on the ground that Garys
dependent children shall receive the death did not arise out of and in the course of
dependent childrens pension. (Sec. 21[b]) employment and therefore not compensable
because the accident occurred in his house and
Note: The dependent children shall be entitled to the not in the school premises. Is Bella entitled to file
survivorship pension as long as there are dependent a claim for death benefits with the GSIS? Why?
children and, thereafter, the surviving spouse shall
receive the basic survivorship pension for life or until
he or she remarries. A: The beneficiaries of a member of the GSIS are
entitled to the benefits arising from the death of
Q: When are secondary beneficiaries entitled to said member. Death benefits are called
survivorship benefits? survivorship benefits under the GSIS Law. Not
being a beneficiary, Bella is not entitled to receive
A: In the absence of primary beneficiaries, the survivorship benefits. She is not a beneficiary
secondary beneficiaries shall be entitled to: because she is a commonlaw wife and not a legal
dependent spouse. (1991 Bar Question)
1. The cash payment equivalent to
100% of his average monthly Q: Is the cause of death of Gary (cardiac arrest
compensation for each year of service he
paid contributions, but not less than
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A: Yes. To be compensable under the GSIS Law, the Q: What comprises the funeral benefit?
death need not be work connected.
A: Cash not less than P12,000 to be increased to at
Q: Abraham, a policeman, was on leave for a least P18,000 after 5 years (specifically year 2002).
month. While resting in their house, he heard two The amount shall be determined and specified by
of his neighbors fighting with each other. the GSIS through an information circular distributed
Abraham rushed to the scene intending to pacify to all Ers for posting at their premises. (Sec. 23,
the protagonists. However, he was shot to death par.1)
by one of the protagonists. Eva Joy, a housemaid,
was Abraham's surviving spouse whom he had Q: When will it be paid?
abandoned for another woman years back. When
she learned of Abraham's death, Eva Joy filed a A: Upon the death of:
claim with the GSIS for death benefits. However,
her claim was denied because: (a) when Abraham 1. An active member
was killed, he was on leave; and (b) she was not 2. A member who has been
the dependent spouse of Abraham when he died. separated from the service but is entitled
Resolve with reasons whether GSIS is correct in to future separation or retirement
denying the claim. benefits
3. A member who is a pensioner
(excluding survivorship pensioners)
A: Yes, because under the law, a dependent is one 4. A retiree who is at the time of
who is a legitimate spouse living with the Ee. (Art. his retirement was of pensionable age, at
167 [i], LC) In the problem given, Eva Joy had been least 60 years old, who opted to retire
abandoned by Abraham who was then living already under RA 1616 (An act further amending
with another woman at the time of his death. Sec.12, C.A. 186, as amended, by
prescribing two other modes of
retirement and for other purposes).
Moreover, Abraham was on leave when he was
killed. The 24hour duty rule does not apply when Life Insurance
the policeman is on vacation leave. (ECC v. CA, G.R.
No. 121545, Nov. 14, 1996) Taking together Q: What are the classes of life insurance coverage?
jurisprudence and the pertinent guidelines of the
ECC with respect to claims for death benefits, A:
namely: 1. Compulsory life insurance
2. Optional life insurance
1. That the Ee must be at the place
where his work requires him to be; Note: The plans may be endowment or ordinary life.
2. That the Ee must have been
performing his official functions; and Q: When does compulsory life insurance coverage
3. That if the injury is sustained take effect?
elsewhere, the Ee must have been
executing an order for the Er, it is not A: All Ees including the members of the Judiciary
difficult to understand then why Eva Joy's and the Constitutional Commissioners except for
claim was denied by the GSIS. (Tancinco v. Members of the AFP, the PNP, BFP and BJMP, shall,
GSIS, G.R. No. 132916, Nov. 16, 2001) under such terms and conditions as may be
promulgated by the GSIS, be compulsorily covered
In the present case, Abraham was resting at his with life insurance, which shall automatically take
house when the incident happened; thus, he was effect as follows:
not at the place where his work required him to be.
Although at the time of his death Abraham was 1. Those employed after the
performing a police function, it cannot be said that effectivity of this Act, their insurance shall
his death occurred elsewhere other than the place take effect on the date of their
where he was supposed to be because he was employment;
executing an order for his Er. (2005 Bar Question) 2. 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;
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3. For those without any life insurance 2. Within 15 days from receipt of
as of the effectivity of this Act, their the notice of decision or award, the
insurance shall take effect following said aggrieved party may appeal the decision
effectivity. of the GSIS Board of Trustees to the CA.
Appeal shall be taken by filling a verified
Q: When may a member obtain optional life petition for review with the CA. (Sec 1 to
insurance coverage? 5, Rule 43, Rules of Court)
3. When no appeal is perfected
A: and there is no order to stay by the Board,
1. A member may at any time apply by the CA or by the SC, any decision or
for himself and/or his dependents an award of the Board shall be enforced and
insurance and/or preneed coverage executed in the same manner as decisions
embracing: of the RTC. Note: The social security
a. Life benefits shall be exempt from attachment,
b. Memorial plans garnishment, execution, levy or other
c. Health processes issued by the courts, quasi
d. Education judicial bodies or administrative agencies
e. Hospitalization including the Commission on Audit,
f. Other plans as maybe disallowances, and from all financial
designed by obligations of the members.
GSIS
Q: May a member enjoy the benefits provided for
2. Any employer may apply for group in the Revised GSIS Act simultaneous with similar
insurance coverage for its employees. benefits provided under other laws for the same
contingency?
Q: Where can GSIS loans be invested in?
A: Whenever other laws provide similar benefits for
A: the same contingencies covered by this Act, the
1. In direct housing loans to members member who qualifies to the benefits shall have the
and group housing projects secured by option to choose which benefits will be paid to him.
first mortgage giving priority to the low However, if the benefits provided by the law chosen
income groups are less than the benefits provided under this Act,
2. In short and medium term loans to the GSIS shall pay only the difference. (Sec. 55)
members such as salary, policy,
educational, emergency stock purchase d.Beneficiaries
plan, and other similar loans
Q: Who are the considered beneficiaries?
Q: What is the prescriptive period to claim the
benefits? A:
1. Primary beneficiaries
A: a. The legal dependent spouse
GR: 4 Years from the date of contingency until he/she remarries and
b. The dependent children. (Sec. 2[g])
XPN: Life insurance and retirement (Sec. 28)
2. Secondary beneficiaries
a. The dependent parents and
Q: What is the process for the adjudication of b. Subject to the restrictions on
claims and disputes regarding the GSIS benefits? dependent children, the legitimate
descendants. (Sec. 2[h])
A: The quasijudicial functions of the GSIS shall be
vested in its Board of Trustees. Q: Who are considered dependents?
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All contributions paid by such member personally, 1. Public sector covered by the GSIS,
and those that were paid by his employers to both comprising the National Government, including
Systems shall be considered in the processing of GOCCs, Philippine Tuberculoses Society, the
benefits which he can claim from either or both Philippine National Red Cros, and the
Systems. (Sec. 4) Philippine Veterans Bank; and
2. Private sector covered by the SSS,
Q: How are the "portability" provisions of R.A. No. comprising all Ers other than those defined in
7699 beneficial or advantageous to SSS and GSIS the immediately preceding paragraph.
members in terms of their creditable employment
services in the private sector or the government, as The Ee may belong to either the:
the case may be, for purposes of death, disability or
retirement? 1. Public sector comprising the employed
workers who are covered by the GSIS, including
A: Portability provisions of R.A. No. 7699 shall the members of the AFP, elective officials who
benefit a covered worker whose creditable services are receiving regular salary and any person
or contributions in both systems credited to his employed as casual emergency, temporary,
service or contribution record in each of the system substitute or contractual;
and shall be totalized for purposes of old age, 2. Private sector comprising the employed
disability, survivorship and other benefits. (Sec. 3) workers who are covered by the SSS.
The "portability" provisions of R.A. 7699 allow the Q: When does compulsory coverage take effect?
transfer of funds for the account and benefit of the
worker who transfers from one system to another. A:
1. Employer on the first day of operation
This is advantageous to the SSS and GSIS members
for purposes of death, disability or retirement 2. Employee on the day of his employment
benefits. In the event the employees transfer from
the private sector to the public sector, or viceversa, Q: What is an Occupational Disease?
their creditable employment services and
contributions are carried over and transferred as A: One which results from the nature of the
well. (2005 Bar Question) 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
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION
occupation a hazard which distinguishes it from the 4. Claim was filed beyond three (3)
usual run of occupations and is in excess of the years from the time the cause of action
hazard attending the employment in general accrued (Art. 201, LC, as amended by P.D.
1921)
To be occupational, the disease must be one wholly
due to causes and conditions which are normal and Note: Notorious negligence is equivalent to gross
constantly present and characteristic of the negligence; it is something more than mere
particular occupation. carelessness or lack of foresight.
Q: Discuss briefly the theory of Increased Risk. 1. Is the disability suffered by Abraham
Dino compensable?
A: The term sickness as defined in Article 167(l) of 2. If Abraham Dino recovers compensation
the Labor Code is a recognition of the theory of from the SIF, can he still recover from
increased risk. To establish compensability under Abraham Julius damages in the criminal case?
the same, the claimant must show substantial proof Why?
of workconnection, but what is required is merely a
reasonable workconnection and not a direct causal A:
relation. Proof of actual cause of the ailment is not 1. Yes. The injury was sustained by Abraham
necessary. The test of evidence of relation of the Dino in his place of work and while in the
disease with the employment is probability and not performance of his official functions.
certainty. (Jimenez v. Employees Compensation
Commission, G.R. No. L58176, March 23, 1984; 2. No. Under Article 173 of the Labor Code,
Panotes vs. ECC, G.R. No. L64802, March 29, 1984) as amended by P.D. 1921, the liability of the
State Insurance Fund under the Employees
Q: May an illness not listed by the Employees Compensation Program shall be exclusive and
Compensation Commission as an occupational in place of all other liabilities of the Er to the Ee
disease be compensable? or his dependents or anyone otherwise
entitled to recover damages on behalf of the
A: Where the illness is not listed by the Employees Ee or his dependents.
Compensation Commission as an occupational
disease, it must be established that the risk of Q: Socrates Benjie, a truck driver employed by a
contracting the same is increased by working local construction company, was injured in an
conditions. accident while on assignment in one of his
employers project in Iraq. Considering that his
Q: What defenses may be interposed by the State injury was sustained in a foreign country, is
Insurance Fund (SIF) against a claim for Socrates Benjie entitled to benefits under the ECP?
compensation made by a covered Ee or his
dependents? A: Yes. Filipinos working abroad in the service of an
Er, domestic or foreign, who carries on in the
A: The following defenses may be set up: Philippines any trade, business, industry,
undertaking or activity of any kind, are covered by
1. Injury is not workconnected or the the ECP. (Rule 1, Section 5, ECC Rules; Art.169, LC)
sickness is not occupational
2. Disability or death was occasioned Q: What is the Going and Coming Rule? Is this
by the Ees intoxication, wilful intention to rule absolute?
injure or kill himself or another, or his
notorious negligence (Art. 172, LC) A: GR: In the absence of special circumstances, an
3. No notice of sickness, injury or Ee injured while going to or coming from his place
death was given to the Er (Art. 206, LC) of work is excluded from the benefits of Workmens
Compensation Act.
XPNS:
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: Who are the dependents of the Ee? Q: What are disability benefits?
Q: May permanent total disability arise although A: In case the employee's injury or death was due to
the Ees does not lose the use of any part of his the failure of the employer to comply with any law,
body? or to install and maintain safety devices, or take
other precautions for the prevention of injury, said
A: Yes. Where the Ee is unable, by reason of the employer shall pay to the State Insurance Fund
injury or sickness, to perform his customary job for a penalty of twentyfive percent of the lump sum
more than 120 days, permanent total disability equivalent of the income benefit payable by the
arises. (Ijares vs. CA, G.R. No. 105854, August 26, System to the employee. All employers, especially
1999) those who should have been paying a rate of
contribution higher than required of them under
Death Benefit this Title, are enjoined to undertake and strengthen
measures for the occupational health and safety of
Q: What are the conditions for entitlement to their employee. (Art.200, LC)
death benefits?
Q: Who are required to make contributions to the
A: The beneficiaries of a deceased Ee shall be SIF?
entitled to an income benefit if all of the following
conditions are satisfied: A: Contributions under this Title shall be paid in
their entirety by the employer and any contract or
1. The Ee has been duly reported to device for the deduction of any portion thereof
the System; from the wages or salaries of the employees shall
2. He died as a result of an injury or be null and void. (Art.183(c), LC)
sickness; and
3. The System has been duly notified The Republic of the Philippines guarantees the
of his death, as well as the injury or benefits prescribed under this Title, and accepts
sickness which caused his death. general responsibility for the solvency of the State
Insurance Fund. In case of any deficiency, the same
Q: For how long are the primary beneficiaries shall be covered by supplemental appropriation
entitled to the death benefits? from the national government. (Art.184, LC)
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A: The following enjoy the right to selforganization Q: What is an appropriate bargaining unit?
for mutual aid and protection:
A: 1. A group of employees (Ees)
1. Ambulant workers 2. Of a given employer
2. Intermittent workers 3. Comprised of all or less than all
3. Itinerant workers of the entire body of Ees
4. Selfemployed people 4. Which the collective interest of
5. Rural workers all the Ees consistent with equity to the Er
6. Those without and definite Ers. 5. Indicate to be best suited to
(Art. 243) serve the reciprocal rights and duties of
the parties under the collective bargaining
provisions of the law.
Q: Who are the persons/Ees not granted the right
to selforganization: (1)Test to determine the constituency of an
appropriate bargaining unit
A:
1. High level or Managerial Q: What are the factors considered in determining
Government Ees. (Sec. 3, E.O. 180) the appropriateness of a bargaining unit?
2. Ees of International organizations
with immunities. (ICMC v. Calleja, G.R. No. A:
85750, Sep. 28, 1990) 1. Will of the Ees. (Globe Doctrine)
3. Managerial Employees. (Art. 212
of LC)
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
2. Affinity and unity of the Ees A: No. While the existence of a bargaining history is
interest, such as substantial similarity of a factor that may be reckoned with in determining
work and duties, or similarity of the appropriate bargaining unit, the same is not
compensation and working conditions. decisive or conclusive. Other factors must be
(Substantial Mutual Interest Rule) considered. The test of grouping is community or
3. Prior collective bargaining history mutuality of interests. This is so because the basic
4. Similarity of employment status. test of an asserted bargaining units acceptability is
(SMC v. Laguesma, G.R. No. 100485, Sep. whether or not it is fundamentally the combination
21, 1994) which will best assure to all Ees the exercise of their
CB rights. (Democratic Labor Assn v. Cebu
Q: What are the factors considered in determining Stevedoring Company, Inc., G.R. No. L10321, Feb.
the substantial mutual interest doctrine? 28, 1958)
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
to another and back again by simply fillingup a through the Labor Relations Division shall, within 10
common proforma slip; 5) they always hold joint days from receipt of the notice, record the fact of VR in
yearly ceremonies such as the PGA Annual Awards its roster of legitimate labor unions and notify the
Ceremony; and 6) they continue to be represented labor union concerned.
by one counsel.
Q: What are the three (3) conditions to voluntary
Hence, the veil of corporate fiction of the 3 agencies recognition (VR)?
should be lifted for the purpose of allowing the Ees
of the 3 agencies to form single union. As a single A: VR requires 3 concurrent conditions:
bargaining unit, the Ees need not file 3 separate
1. VR is possible only in an
PCE. (Philippine Scout Veterans Security and
unorganized establishment.
Investigation Agency v. SLE, G.R. No. 92357, July 21,
1993)
2. Only one union must ask for
(2)Voluntary Recognition recognition. If there 2 or more unions
asking to be recognized, the Er cannot
Q: What are the 3 methods of determining the recognize any of them; the rivalry must be
bargaining representative? resolved through an election.
A:
1. Voluntary recognition
2. Certification election with or 3. The union voluntarily recognized
without run off should be the majority union as indicated
3. Consent election by the fact that members of the
bargaining unit did not object to the
Q: What is voluntary recognition (VR)? projected recognition. If no objection is
raised, the recognition will proceed, the
A: The process by which a legitimate labor union is DOLE will be informed and CBA
recognized by the employer (Er) as the exclusive recognition will commence. If objection is
bargaining representative or agent in a bargaining raised, the recognition is barred and a
unit, reported with the Regional Office. (Sec. 1 certification election or consent election
[bbb], Rule I, Book V, IRR) will have to take place.
Q: What are the requirements for VR? Note: In an organized establishment, voluntary
recognition is not possible. A petition to hold a CE has
A: The notice of VR shall be accompanied by the to be filed within the freedom period which means the
th
original copy and 2 duplicate copies of the following last 60 days of the 5 year of the expiring CBA. The
reqts: petition may be filed by any Legitimate Labor
Organization (LLO), but the petition must have written
1. Joint statement under oath of VR support of at least 25% of the Ees in the bargaining
unit.
2. Certificate of posting of joint
statement for 15 consecutive days in at Q: Where and when to file the petition for VR?
least 2 conspicuous places in the
establishment of the bargaining unit A: Within 30 days from such recognition, Er shall
submit a notice of VR with the Regional Office
3. Certificate of posting which issued the recognized labor unions certificate
of registration or certificate of creation of a
chartered local.
4. Approximate number of Ees in the
bargaining unit and the names of those
Q: What are the effects of recording of fact of
who supported the recognition
voluntary recognition (VR)?
5. Statement that the labor union is
A:
the only LLO operating within the
1. The recognized labor union shall
bargaining unit.
enjoy the rights, privileges and obligations
of an existing bargaining agent of all the
Note: Where the notice of voluntary recognition is
employees (Ees) in the bargaining unit.
sufficient in form, number and substance and where
there is no registered labor union operating within the 2. It shall also bar the filing of a
bargaining unit concerned, the Regional Office, petition for certification election by any
labor
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 Note: Some of the Ees may not want to have a union;
the date of entry of VR. hence, no union is one of the choices named in the
ballot. If no union wins, the company or the
(3)Certification Election bargaining unit remains ununionized for at least 12
months, the period is known as 12month bar. After
that period, a petition for a CE may be filed again.
Q: What is certification election (CE)?
Q: Distinguish the requisites for a petition for
A: It is the process of determining through secret
certification election between an organized and an
ballot the sole and exclusive representative of the
unorganized establishment.
Ees in an appropriate bargaining unit, for purposes
of CB or negotiation. (Sec. 1 [h], Rule I, Book V, IRR)
A:
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.
Q: What are the issues involved in a certification Note: The approval of the PCE in an unorganized
proceeding? bargaining unit is NEVER appealable, the reason being
that the law wants the ununionized to be unionized.
A: Certification proceedings directly involve two
Q: Should the consent signatures of at least 25%
issues:
of the Ees in the bargaining unit be submitted
1. Proper composition and simultaneously with the filing of the petition for
constituency of the bargaining unit; and certification election (PCE)?
2. The veracity of majority
membership claims of the competing A: No, the administrative rule requiring the
unions so as to identity the one union that simultaneous submission of the 25% consent
will serve as the bargaining representative signatures upon the filing of PCE should not be
of the entire bargaining unit. 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.
9492930, Mar. 18, 1992) A:
1. Any legitimate labor organization (LLO)
Q: Who may file a petition for certification
election (PCE)?
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A: The proper time to file the PCE depends on A: As a general rule, in an establishment where
whether the Certified Bargaining Unit has a CBA or there is a CBA in force and effect, a PCE may be filed
not: only during the freedom period of such CBA. But to
have that effect, the CBA should have been filed and
1. If it has no CBA, the petition may registered with the DOLE. (Art. 231, 253A and 256,
be filed anytime outside the 12month bar LC). (1997 Bar Question)
(certification year).
2. If it has CBA, it can be filed only Thus, a CBA that has not been filed and registered
th
within the last 60 days of the 5 year of with the DOLE cannot be a bar to a CE and such
the CBA. election can be held outside the freedom period of
such CBA.
Note: At the expiration of the freedom period, the Er
shall continue to recognize the majority status of the Alternative Answer:
incumbent bargaining agent where no PCE is filed.
A PCE may be filed outside the freedom period of
Q: Distinguish union election from certification a current CBA if such CBA is a new CBA that has
election. been prematurely entered into, meaning, it was
entered into before the expiry date of the old CBA.
A: The filing of the PCE shall be within the
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 A: Yes, it is now wellsettled that Ees who have
freedom period of the new CBA that had been been improperly laid off but who have at present an
prematurely entered into. unabandoned right to or expectation of re
employment, are eligible to vote in CEs. Thus, and
Q: Are probationary employees (Ees) entitled to to repeat, if the dismissal is under question, as in
vote in a CE? Why? the case now at bar whereby a case of illegal
dismissal and/or ULP was filed, the Ees concerned
A: Yes, in a CE, all rankandfile Ees in the could still qualify to vote in the elections. (Phil.
appropriate bargaining unit (ABU) are entitled to Fruits & Vegetables Industries v. Torres, G.R. No.
vote. This principle is clearly stated in Art. 255 of 92391, July 3, 1992)
the LC which states that the "labor organization
designated or selected by the majority of the Ees in Q: Is direct certification (DC) still allowed?
such unit shall be the exclusive representative of the
Ees in such unit for the purpose of collective A: No. Even in a case where a union has filed a
bargaining (CB)." petition for CE, the mere fact that there was no
opposition does not warrant a DC. More so in a case
CB covers all aspects of the employment relation when the required proof is not presented in an
and the resultant CBA negotiated by the certified appropriate proceeding and the basis of the DC is
union binds all Ees in the bargaining unit. Hence, all the unions selfserving assertion that it enjoys the
rank andfile Ees, probationary or permanent, have support of the majority of the Ees, without
a substantial interest in the selection of the subjecting such assertion to the test of competing
bargaining representative. The LC makes no claims. (Samahang Manggagawa sa Permex v.
distinction as to their employment status as basis Secretary, G.R. No. 107792, Mar. 2, 1998)
for eligibility to vote in the petition for CE. The law
refers to "all" the Ees in the bargaining unit. All they Q: What are the grounds for denying the PCE?
need to be eligible to vote is to belong to the
"bargaining unit" (Airtime Specialists, Inc. v. Ferrer A:
Calleja, G.R. No. 8061216, Dec. 29, 1989). 1. The petitioning union or
(1999 Bar Question) federation is not listed in the DOLEs
registry of legitimate labor unions or that
Q: What is direct certification? its registration certificate legal personality
has been revoked or cancelled with
A: It is the process whereby the MedArbiter finality
directly certifies a labor organization of an 2. Failure of a local chapter or
appropriate bargaining unit (ABU) of a company national union/federation to submit a
after a showing that such petition is supported by at duly issued charter certificate upon filing
least a majority of the Ees in the bargaining unit. of the petition
3. The petition was filed before or
Q: Does the failure of SAMAFIL (an independent after the FREEDOM PERIOD of a duly
union) to prove its affiliation with NAFLUKMU registered CBA; provided that the 60day
federation affect its right to file a PCE as an period based on the original CBA shall not
independent union? be affected by any amendment, extension
or renewal of the CBA; (contract bar rule)
A: No, as a LLO, it has the right to file a PCE on its 4. The petition was filed within 1
own beyond question. Its failure to prove its year from entry of voluntary recognition
affiliation with the NAFLUKMU cannot affect its or within the same period from a valid
right to file said PCE as an independent union. At certification, consent or runoff election
the most, its failure will result in an ineffective and no appeal on the results of the
affiliation with NAFLUKMU. Despite affiliation, the certification, consent or runoff election is
local union remains the basic unit free to serve the pending; (12month bar; certification year
common interest of all its members and pursue its bar rule)
own interests independently of the federation. 5. A duly certified union has
(Samahan ng mga Manggagawa sa Filsystems v. commenced and sustained negotiations
SLE, G.R. No. 128067, June 5, 1998) with the Er in accordance with Art. 250 of
the LC within the 1year period.
Q: May illegally dismissed Ees of the company (negotiation bar rule)
participate in the certification election (CE)? 6. 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)
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: What is negotiation bar rule? Note: In both instances, the no union is also a choice.
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
A:
Participation of
Purpose
MedArbiter
Certification Election
plurality of
and
choices results in a tie;
or
Takes
instances: the
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
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 3. The total number of members
can be issued a certificate of registration? comprising the labor union and the names
of members who approved the affiliation;
A: The application for registration of federations 4. The certificate of affiliation
and national unions shall be accompanied by the issued by the federation in favor of the
following documents: independently registered labor union; and
5. Written notice to the employer
1. A statement indicating the name of concerned if the affiliating union is the
the applicant labor union, its principal incumbent bargaining agent. (D.O. 4003,
address, the name of its officers and their Rule, III, Sec. 7, series of 2003)
respective addresses;
Q: What is the effect of affiliation?
2. The minutes of the organizational
meeting(s) and the list of Ees who A: The labor union that affiliates with a federation is
participated in the said meeting(s); subject to the laws of the parent body under whose
authority the local union functions. The
3. The annual financial reports if the constitution, bylaws and rules of the mother
applicant union has been in existence for federation, together with the charter it issues to the
1 or more years, unless it has not local union, constitutes an enforceable contract
collected any amount from the members, between them and between the members of the
in which case a statement to this effect subordinate union inter se. Thus, pursuant to the
shall be included in the application; constitution and bylaws, the federation has the
right to investigate and expel members of the local
4. The applicant union's constitution union. (Villar v. Inciong, G.R. No. L5028384, April
and by laws, minutes of its adoption or 20, 1983)
ratification, and the list of the members
who participated in it. The list of ratifying Q: May a local union disaffiliate from the
members shall be dispensed with where federation?
the constitution and bylaws was ratified
or adopted during the organizational A:
meeting(s). In such a case, the factual GR: A labor union may disaffiliate from the
circumstances of the ratification shall be mother union to form an independent union
recorded in the minutes of the only during the 60day freedom period
organizational meeting(s); immediately preceding the expiration of the
CBA.
5. The resolution of affiliation of at
least 10 LLOs, whether independent XPN: Even before the onset of the freedom
unions or chartered locals, each of which period, disaffiliation may still be carried out, but
must be a duly certified or recognized such disaffiliation must be effected by the
bargaining agent in the establishment majority of the union members in the
where it seeks to operate; and bargaining unit.
6. The name and addresses of the Note: This happens when there is a substantial shift in
companies where the affiliates operate allegiance on the part of the majority of the members
and the list of all the members in each of the union. In such a case, however, the CBA
company involved. (D.O. 4003, Rule, III, continues to bind the members of the new or
Sec. 2B, series of 2003) disaffiliated and independent union up to determine
the union which shall administer the CBA may be
conducted. (ANGLOKMU v. Samahan ng
Q: What are the requirements for affiliation? Manggagawang Nagkakaisa sa Manila Bay Spinning
Mills at J.P. Coats, G.R. No.118562, July 5, 1996)
A: The report of affiliation of independently
registered labor unions with a federation or national Q: What is the limitation to disaffiliation?
union shall be accompanied by the following
documents: A: Disaffiliation should be in accordance with the
1. Resolution of the labor union's rules and procedures stated in the constitution and
board of directors approving the bylaws of the federation. A local union may
affiliation; disaffiliate with its mother federation provided that
2. Minutes of the general membership there is no enforceable provision in the federations
meeting approving the affiliation;
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A:
GR: It shall operate to divest its locals/chapters
of their status as LLO.
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 a. Failure to comply with any of
cancellation of registration? the reqts under Art. 234, 237 and
238 of the LC.
A: b. Violation of any provision under
DENIAL OR CANCELLATION OF REGISTRATION Art. 239, LC.
By Regional office
Transmit records within 24 hours 2. For federations, national or
from receipt of the Memo of Appeal industry unions, trade union centers
BLR will decide on the Only members of the labor organization
SLE decides on the matter
matter within 20 days
within 20 days from
(LO) concerned may file if the grounds are
from receipt of the
receipt of records
actions involving violations of Art. 241,
records subject to the 30% rule.
Appeal to CA via Rule 65
Q: What is the effect of cancellation of registration
Note: Appeal is by memo of appeal within 10 days if the cancellation is made in the course of the
from receipt of notice. proceedings?
Q: Who cancels the certificate of registration? A: Where a labor union is a party in a proceeding
and later it loses its registration permit in the course
A: The certificate of registration of any LLO, or during the pendency of the case, such union may
whether national or local, may be cancelled by the continue as party without need of substitution of
BLR, after due hearing, only on the grounds parties, subject however to the understanding that
specified in Art. 239. (as amended by R.A. 9481) whatever decision may be rendered will be binding
only upon those members of the union who have
Q: What is the effect of a petition for cancellation not signified their desire to withdraw from the case
or of union registration? before its trial and decision on the merits.
A: It shall not suspend the proceedings for Note: Rationale: Principle of agency is applied the
certification election (CE) nor shall it prevent the Ees are the principals, and the LO is merely an agent of
filing of CE. the former, consequently, the cancellation of the
unions registration would not deprive the consenting
In case of cancellation, nothing herein shall restrict memberEes of their right to continue the case as they
the right of the union to seek just and equitable are considered as the principals.
remedies in the appropriate courts.
Q: What are the grounds for cancellation of union
Q: Where is a petition for cancellation of registration?
registration or application for voluntary dissolution
filed? A:
1. Misrepresentation, false
A: statement or fraud in connection with
1. For legitimate independent labor the:
unions, local/chapter and workers a. Adoption or application of the
association It shall be filed with the constitution and bylaws or
Regional Office which issued its certificate amendments thereto
of registration or creation. b. Minutes of ratification and
2. For federations, national or industry c. List of members who took part
and trade union centers It shall be filed in the ratification;
with the BLR. (Sec. 1, Rule XIV, Book V, IRR d. Election of officers
as amended by D.O. 40F03) e. Minutes of the election of
officers and
Q: Who may file a petition for cancellation of f. List of voters (Art. 239 as amended)
registration?
2. Voluntary dissolution by the
A: members. (as amended by R.A. 9481)
1. For legitimate individual labor
union, chartered local and workers Note: A pronouncement as to the legality of the strike
association Any partyininterest may is not within the meaning of Art. 239 of the LC.
file a petition for cancellation of
registration if the ground is:
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Q: What are the prohibited grounds for Rule V, Book V, IRR, as amended by D.O.
cancellation of union registration? 40F03)
A:
1. The inclusion as union member of Note: Failure to submit reportorial requirements is no
Ees who are outside the bargaining unit longer a ground for cancellation but shall subject the
shall not be a ground to cancel the union erring officers or members to suspension, expulsion
registration. The ineligible Ees are from membership, or any appropriate penalty (Art.
automatically deemd removed from the 242A, as inserted by R.A. 9481).
list of membership of the union as.(Art.
Q: What is the successor ininterest doctrine?
245A as amended by RA 9481)
2. The affiliation of the rankandfile
A:
and supervisory unions operating within
GR: It is when an Er with an existing CBA is
the same establishment to the same
succeeded by another Er, the successorin
federation or national union shall not be a
interest who is the buyer in good faith has no
ground to cancel registration of either
liability to the Ees in continuing employment
union. (Sec. 6, Rule XIV, Book V, as
and the bargaining agreement because these
inserted by D.O. 40F03)
contracts are in personam.
Q: How is voluntary cancellation of registration
XPNs:
made?
1. When the successorininterest
expressly assumes an obligation;
A: Registration may be cancelled by the
2. The sale is a device to
organization itself provided:
circumvent the obligation; or
3. The sale or transfer is made in bad faith.
1. At least of its general
membership votes to dissolve the
(a)Substitutionary Doctrine
organization, in a meeting duly called for
that purpose; and Q: What is the substitutionary doctrine?
2. An application to cancel A: It is where there occurs a shift in the Ees union
registration is thereafter submitted by the allegiance after the execution of a collective
board of the organization, attested by its bargaining (CB) contract with the Er, the Ees can
president. change their agent (labor union) but the CB contract
which is still subsisting continues to bind the Ees up
Q: What are the reportorial requirements to its expiration date. They may however, bargain
required to be submitted by a legitimate labor for the shortening of said expiration date.
organization (LLO) ?
Note: The Er cannot revoke the validly executed CB
A: The following documents are required to be contract with their Er by the simple expedient of
submitted to BLR by the LLO concerned: changing their bargaining agent. The new agent must
respect the contract. (Benguet Consolidated Inc. v. BCI
1. Within 30 days from adoption or Ees and Workers UnionPAFLU, G.R. No. L24711, April
ratification of the constitution and by laws 30, 1968)
(CBL) or amendments thereto:
a. CBL or amendments thereto It cannot be invoked to support the contention that a
b. Minutes of ratification newly certified CB agent automatically assumes all the
c. List of members who took part in personal undertakings of the former agentlike the no
strike clause in the CBA executed by the latter.
the ratification of the constitution
and bylaws;
(8)Union Dues and Special Assessments
2. Within 30 days from date of
election or appointment:
(a) Union Dues
a. List of elected and appointed
officers and agents entrusted with
Q: What are union dues?
the handing of union funds
b. Minutes of election of officers
A: These are regular monthly contributions paid by
c. List of voters
the members to the union in exchange for the
3. Annual financial report within 30
days after the close of every fiscal year
4. List of members at least once a
year or whenever required by the Bureau.
(Sec. 1,
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benefits given to them by the CBA and to finance Q: What are the requisites for a valid levy of
the activities of the union in representing the union. special assessment or extraordinary fees?
Q: What is checkoff?
A:
A: It is a method of deducting from an Ees pay at a 1. Authorization by a written
prescribed period, the amounts due the union for resolution of the majority of all members
fees, fines and assessments. at the general membership meeting duly
called for that purpose;
Deductions for union service fees are authorized by 2. Secretarys record of the minutes
law and do not require individual checkoff of the meeting, which must include the:
authorizations. a. List of members present
b. Votes cast
Q: What is the nature and purpose of checkoff? c. Purpose of the special assessments
d. Recipient of such assessments;
A: Union dues are the lifeblood of the union.
3. Individual written authorization
to check off duly signed by the Ee
All unions are authorized to collect reasonable
concerned to levy such assessments.
membership fees, union dues, assessments and
fines and other contributions for labor education
Q: What is the effect of failure to strictly comply
and research, mutual death and hospitalization
the requirements set by law?
benefits, welfare fund, strike fund and credit and
cooperative undertakings.(Art. 277[a])
A: It shall invalidate the questioned special
Q: What are the requisites of a valid checkoff? assessments. Substantial compliance of the
requirements is not enough in view of the fact that
A: the special assessment will diminish the
GR: No special assessments, attys fees, compensation of union members. (Palacol v. Ferrer
negotiation fees or any other extraordinary fees Calleja, G.R. No. 85333, Feb. 26, 1990)
may be checked off from any amount due to an
employee (Ee) without individual written Q: Who has jurisdiction over checkoff disputes?
authorization duly signed by the Ee.
A: Being an intraunion dispute, the Regional
Director of DOLE has jurisdiction over check off
The authorization should specifically state the:
disputes.
1. Amount
2. Purpose &
Q: Distinguish checkoff from special assessments.
3. Beneficiary of the deduction.
A:
XPNs:
1. For mandatory activities under the
LC
2. For agency fees
3. When nonmembers of the union
avail of the benefits of the CBA: By obtaining the individual
a. Nonmembers may be written authorization duly
assessed union dues equivalent to signed by the Ee which
that paid by union members;
must specify:
b. Only by board resolution
1. Amount
approved by majority of the
members in general meeting called 2. Purpose
for the purpose. 3. Beneficiary
Exception to such requirement
(b) Special Assessments
(Agency fees)
Not necessary when:
1. For mandatory activities
under the LC
2. For agency fees
3. When nonmembers of
the union avail of the
benefits of the CBA:
a. Said nonmembers
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
2.RIGHT TO COLLECTIVE BARGAINING
Q: Are Ees who are members of another union
considered free riders? Q: What is collective bargaining (CB)?
A: No. When the union bids to become the A:
bargaining agent, it voluntarily assumes the
1. It is the process of negotiation by
responsibility of representing all the Ees.
an organization or group of workmen, in
behalf of its members, with the employer
(9)Agency Fees (Er), concerning wages, hours of work,
and other terms and conditions of
Q: What is an agency fee? employment and
Q: Distinguish union dues from agency fees. 1. National Wages and Productivity
Commission and RTWPB as to wage fixing.
A: (Art. 99 and 122, LC)
2. NCMB and NLRC as to wage
distortion. (Art. 124, LC)
3. SLE and President of the Philippines
as to certification and assumption of
powers over labor disputes. (Art. 236[g],
LC)
LABOR LAW TEAM:
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Q: What is the purpose behind this rule? Note: The certification of the CBA by the BLR is not
required to make such contract valid. Once it is duly
A: It is to encourage a truly democratic method of entered into and signed by the parties, a CBA becomes
regulating the relations between the employers and effective as between the parties whether or not it has
employees by means of agreements freely entered been certified by the BLR. (Liberty Flour Mills Ees
Association v. Liberty Flour Mills, G.R. Nos. 5876870,
into through CB.
Dec. 29, 1989)
Q: Who are the parties to a CB?
Q: What is a zipper clause?
A:
A: It is a stipulation in a CBA indicating that issues
1. Employer
that could have been negotiated upon but not
2. Employees, represented by the contained in the CBA cannot be raised for
exclusive bargaining agent
negotiation when the CBA is already in effect.
Q: What are the jurisdictional preconditions in A CBA is not an ordinary contract but one impressed
collective bargaining? with public interest, only provisions embodied in the
CBA should be so interpreted and complied with.
A: Where a proposal raised by a contracting party does
1. Possession of the status of majority not find print in the CBA, it is not a part thereof and
representation of the employees the proponent has no claim whatsoever to its
representative in accordance with any of implementation. (SMTFMUWP v. NLRC , G.R. No.
the means of selection or designation 113856, Sept. 7, 1998)
provided for the Labor Code
2. Proof of majority representation Q: When shall bargaining commence?
3. A demand to bargain under Art. 250
(a) of the LC. (Kiok Loy v. NLRC, G.R. No. L A: It commences within 12 months after the
54334, Jan.22, 1986) 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 1. It shall serve a written notice
there is no demand, the Er cannot be in default. upon the other party with a statement of
proposals
Note: Where a majority representative has been 2. Reply by the other party shall be
designated, it is an ULP for the Er, as a refusal to made within 10 days with counter
collectively bargain, to deal and negotiate with the proposals
minority representative to the exclusion of the 3. In case of differences, either
majority representative. party may request for a conference which
must be held within 10 calendar days
Where there is a legitimate representation issue, there from receipt of request
is no duty to bargain collectively on the part of the Er 4. If not settled, NCMB may
(Lakas ng mga Manggagawang Makabayan v. Marcelo
intervene and encourage the parties to
Enterprises, G.R. No. L38258, Nov. 19, 1982)
submit the dispute to a voluntary
arbitrator
Q: What is a collective bargaining agreement
5. If not resolved, the parties may
(CBA)?
resort to any other lawful means (either
to settle the dispute or submit it to a
A: It is a contract executed upon request of either
voluntary arbitrator).
the Er or the exclusive bargaining representative of
the Ees incorporating the agreement reached after
Note: During the conciliation proceeding in the NCMB,
negotiations with respect to wages, hours of work, the parties are prohibited from doing any act which
terms and conditions of employment, including may disrupt or impede the early settlement of
proposals for adjusting any grievance or questions disputes. (Art.250[d], LC)
under the agreement.
Q: What are the stages in CB?
A:
Q: Does a petition for cancellation of a unions Q: What is the test of bargaining in bad faith?
certificate of registration involve a prejudicial
question that should first be settled before parties A: There is no perfect test of good faith (GF) in
could be required to collectively bargain? bargaining. The GF or BF is an inference to be drawn
from the facts and is largely a matter for the NLRCs
A: No. A pending cancellation proceeding is not a expertise. The charge of BF should be raised while
bar to set mechanics for collective bargaining (CB). the bargaining is in progress.
If a certification election may still be held even if a
petition for cancellation of a unions registration is Note: With the execution of the CBA, BF can no longer
pending, more so that the CB process may proceed. be imputed upon any of the parties thereto. All
The majority status of the union is not affected by provisions in the CBA are supposed to have been
the cancellation proceedings. (Capitol Medical jointly and voluntarily incorporated therein by the
Center v. Trajano, G.R. No. 155690, June 30, 2005) parties. This is not a case where private respondent
exhibited an indifferent attitude towards CB because
the negotiations were not the unilateral activity of
Q: What is the duty to bargain collectively when
petitioner union. The CBA is good enough that private
there is no CBA?
respondent exerted reasonable effort of GF
bargaining. (Samahang Manggagawa sa Top Form
A: It is the performance of a mutual obligation:
ManufacturingUnited Workers of the Phils v. NLRC,
G.R. No. 113856, Sept. 7, 1998)
1. To meet and convene promptly
and expeditiously in good faith (GF)
Q: Does an Ers steadfast insistence to exclude a
2. For the purpose of negotiating an
particular substantive provision in the negotiations
agreement with respect to wages, hours
for a CBA constitute refusal to bargain or
of work and all other terms and
bargaining in BF?
conditions of employment
3. Including proposals for adjusting
A: No. This is no different from a bargaining
any grievances or questions arising under
representatives perseverance to include one that
such agreement; and
they deem of absolute necessity. Indeed, an
4. To execute a contract
adamant insistence on a bargaining position to the
incorporating such agreements if
point where the negotiations reach an impasse does
requested by either party. (Art. 252)
not establish bad faith. Obviously, the purpose of CB
is the reaching of an agreement resulting in a
Q: What are the limitations to the duty to bargain
contract binding on the parties; but the failure to
collectively?
reach an agreement after negotiations have
continued for a reasonable period does not
A:
establish a lack of good faith. The statutes invite and
1. Such duty does not compel any contemplate a collective bargaining contract, but
party to agree to a proposal or to make
they do not compel one. The duty to bargain does
any concession. not include the obligation to reach an
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agreement. While the law makes it an obligation for of the existing agreement during the 60
the Er and the Ees to bargain collectively with each day period and/or until a new agreement
other, such compulsion does not include the is reached by the parties. (Art. 253, LC)
commitment to precipitately accept or agree to the
proposals of the other. All it contemplates is that Q: What is the automatic renewal clause of CBAs?
both parties should approach the negotiation with
an open mind and make reasonable effort to reach A: Although a CBA has expired, it continues to have
a common ground of agreement. (Union of Filipro legal effects as between the parties until a new CBA
Ees v. Nestle Phils., G.R. Nos. 15893031, Mar. 3, has been entered into (Pier & Arrastre Stevedoring
2008) Services, Inc. v. Confessor, G.R. No. 110854,
February 13, 1995). This is so because the law
Q: What is a deadlock? makes it a duty of the parties to keep the status quo
and to continue in full effect the terms and
A: It is synonymous with impasse or a standstill conditions of the existing agreement until a new
which presupposes reasonable effort at GF agreement is reached by the parties. (Art. 253, LC).
bargaining but despite noble intentions does not (2008 Bar Question)
conclude an agreement between the parties.
Q: What may be done during the 60day freedom
Q: In case of deadlock in the renegotiation of the period?
CBA, what are the actions that may be taken by
the parties? A:
1. A labor union may disaffiliate
A: The parties may: from the mother union to form a local or
independent union only during the 60day
1. Call upon the NCMB to intervene for freedom period immediately preceding
the purpose of conducting conciliation or the expiration of the CBA.
preventive mediation; 2. Either party can serve a written
2. Refer the matter for voluntary notice to terminate or modify agreement
arbitration or compulsory arbitration; at least 60days prior to its expiration
3. Declare a strike or lockout upon period.
compliance with the legal reqts (This 3. A petition for certification
remedy is a remedy of last resort). election may be filed.
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(Mindanao Terminal and Brokerage Services Inc., v. Q: Does the agreement violate the 5 year
Confessor, G.R. No. 111809, May 5, 1997) representation limit as provided under Art. 253A
of the LC?
Q: When is the effectivity of a CBA arbitral award
concluded beyond 6 months from the expiration of A: No. For under the said article, the representation
the old CBA? limit of the exclusive bargaining agent applies only
when there is an existing CBA in full force and
A: The CBA arbitral awards granted 6 months from effect. In this case, the parties agreed to suspend
the expiration of the last CBA shall retroact to such the CBA and put in abeyance the limit on
time agreed upon by both the Er and the union. representation. (Rivera v. Espiritu, G.R. No. 135547,
Absent such agreement as to retroactivity, the Jan. 23, 2002)
st
award shall retroact to the 1 day after the 6 month
period following the expiration of the last day of the b.Mandatory provisions of the CBA
CBA should there be one. In the absence of a CBA,
the SLEs determination of the date of retroactivity Q: What are the mandatory provisions of the CBA?
as part of his discretionary powers over arbitral
award shall control. (Manila Electric Company v. A:
Quisumbing, G.R. No. 127598, Feb. 22 and Aug. 1, 1. Grievance machinery
2000) 2. Voluntary arbitration
3. Wages
Q: PAL was suffering from a worsened financial 4. Hours of work
condition resulting to a retrenchment which 5. Family planning
downsized its labor force by more than 1/3 6. Rates of pay
thereby affecting numerous union members. 7. Mutual observance clause
Hence, the union went on strike. The PAL offered
that shares of stock be transferred to its Ees but Note: In addition, the BLR requires the CBA should
the union refused. Thus, PAL claimed it has no include a clear statement of the terms of the CBA.
alternative left but to close. Hence, the union Ers duty to bargain is limited to mandatory bargaining
PALEA offered that the CBA be suspended for 10 subjects; as to other matters, he is free to bargain or
years and to waive some of the economic benefits not.
in the CBA provided they remain the certified
bargaining agent. PAL agreed and resumed Q: How are cases arising from the
operations. Is the agreement to suspend the CBA Interpretation or implementation of CBAs handled
for 10 years abdicated the workers right to and disposed?
bargain?
A: They are disposed through the grievance
A: No. The primary purpose of a CBA is to stabilize machinery and if not resolved by the grievance
labormanagement relations in order to create a machinery, through voluntary arbitration. (1995 Bar
climate of a sound and stable industrial peace. The Question)
assailed agreement was the result of the voluntary
CB negotiations undertaken in the light of severe Q: What is grievance?
financial situation faced by PAL.
A: It is any question by either the employer or the
Q: Is the agreement in conflict with Art. 253A of union regarding the interpretation or
the LC? implementation of any provision of the CBA or
interpretation or enforcement of company
A: No. There is no conflict between the agreement personnel policies. (Sec.1 [u], Rule I, Book V, IRR)
and Art. 253A of the LC for the latter has a 2fold
purpose namely: a) to promote industrial stability Q: What provisions must the parties include in a
and predictability and b) to assign specific time CBA?
tables wherein negotiations become a matter of
right and requirement. In so far as the first purpose, A:
the agreement satisfies the first purpose. As regard 1. Provisions that will ensure the
the second purpose, nothing in Art. 253A prohibits mutual observance of its terms and
the parties from waiving or suspending the conditions.
mandatory timetables and agreeing on the 2. A machinery for adjustment and
remedies to enforce the same. resolution of grievances arising from the:
a. Interpretation/implementation
of the CBA and
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Either party may serve notice upon the other of its A: The State shall promote the principle of shared
decision to submit the issue to voluntary arbitration responsibility between workers and employers and
(VA):
1. If the party upon whom such
notice is served fails/refuses to respond
within 7
LABOR LAW TEAM:
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A: It is an industrial plant moved by its owners from or other support to it or its organizers or
one location to another to escape labor regulations supporters.
or State laws or to discriminate against Ees at the
old plant because of their union activities. Q: Why is company unionism/captive unionism a
form of ULP?
Q: Is resorting to runaway shop ULP?
A: It is considered ULP because the officers will be
A: Yes. Where a plant removal is for business beholden to the Ers and they will not look after the
reasons but the relocation is hastened by antiunion interest of whom they represent.
motivation, the early removal is ULP. It is immaterial
that the relocation is accompanied by a transfer of (e)Discrimination for or against union membership
title to a new employer (Er) who is an alter ego of
the original Er. Q: What is meant by discrimination as a form of
ULP?
(d)Company Unionism
A: It is to discriminate in regard to wages, hours of
Q: What is a company union? work and other terms and conditions of
employment in order to encourage or discourage
A: Any labor organization whose formation, membership in any labor organization.
function or administration has been assisted by any
act defined as ULP. (Art. 212[i]) Q: When is a discharge of an Ee discriminatory?
Q: What are the forms of company unionism? A: For the test of determining whether or not a
discharge is discriminatory, it is necessary that the
A: underlying reason for the discharge be established.
1. Initiation of the company union
idea by: The fact that a lawful cause for discharge is available
a. Outright formation by Er or his is not a defense where the Ee is actually discharged
representatives because of his union activities. If the discharge is
b. Ee formation on outright demand actually motivated by lawful reason, the fact that
or influence by Er and the Ee is engaged in union activities at the time will
c. Managerially motivated formation lie against the Er and prevent him from the exercise
by Ees of business judgment to discharge an Ee for cause.
(Phil. Metal Foundries Inc. v. CIR, G.R. Nos. L34948
2. Financial support to the union by: 49, May 15, 1979)
a. Er defrays union expenses
b. Pays attys fees to the attorney Q: Jobo has 3 hotels, the Taal Vista Lodge, Manila
who drafted the Constitution or by Hotel and the Pines Hotel. Among the 3, Pines
laws of the union. Hotel had more Ees and the only one with a labor
organization (LO). When the bonus was distributed
3. Er encouragement assistance among the 3 hotels, Pines Hotel Ees received the
Immediately granting of exclusive least amount compared to the Ees of Manila Hotel
recognition as bargaining agent without and Taal Vista Lodge. Did the company commit
determining whether the union ULP?
represents the majority of the employees
A: Yes. The sharing of the bonuses is discriminatory
4. Supervisory assistance Soliciting and such constitute ULP. The Pines Hotel Ees would
membership, permitting union activities be receiving fewer bonuses compared to the Ees of
during work time or coercing Ees to join Taal Vista Lodge and Manila Hotel where neither
the union by threats of dismissal or has a LO nor does the complainant union has a
demotion member. Taking into account that Pines Hotel is
realizing profit compared to that of Taal Vista. Same
Q: What is meant by the act of company analogy applies in the salary increase. (Manila Hotel
domination of union? Co. v. Pines Hotel Ees Assn, G.R. No.L30139, Sep.
28, 1972)
A: This is to initiate, dominate, assist or otherwise
interfere with the formation or administration of Q: When can there be a valid discrimination?
any labor organization including giving of financial
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A: The employer is not guilty of ULP if it merely Notwithstanding the fact that the dismissal was at
complies in good faith with the request of the the instance of the federation and that it undertook
certified union for the dismissal of employees to hold the company free from any liability resulting
expelled from the union pursuant to the union from such dismissal, the company may still be held
security clause in the CBA. (Soriano v. Atienza, G.R. liable if it was remiss in its duty to accord the
No. L68619, Mar. 16, 1989) wouldbe dismissed Ees their right to be heard on
the matter.
Q: A profit sharing scheme was introduced by the
company for its managers and supervisors who are Q: Mabeza and her coEes were asked by the
not members of the union, hence do not enjoy the company to sign an affidavit attesting to the
benefits of the CBA. The respondent union wanted latters compliance with pertinent labor laws.
to participate with the scheme but was denied by Mabeza signed the affidavit but refused to swear
the company due to the CBA. Subsequently the to its veracity before the City prosecutor. Mabeza
company distributed the profit sharing to the then filed a LOA which was denied by
manager, supervisors and other nonunion management. After sometime, she attempted to
member Ees. As a result the union filed a notice of return to work but the company informed her not
strike alleging ULP. Is the nonextension of the to report for work and continue with her unofficial
profit sharing scheme to union members leave. Did the company commit ULP?
discriminatory and an ULP?
A: Yes. The act of compelling an Ee to sign an
A: No. There can be no discrimination when the instrument indicating the Ers compliance with
Ees are not similarly situated. The situation of union Labor laws which the company might have violated
members is different and distinct from nonunion together with the act of terminating or coercing
members because only union members enjoy the those Ees to cooperate is an act of ULP. This is
benefit under the CBA. The profit sharing scheme analogous with Art. 248 (f) of the LC which
was extended to those who do not enjoy the provides: to dismiss, discharge or otherwise
benefits of the CBA. Hence, there is no prejudice or discriminate against an Ee for having
discrimination and ULP is not committed. (Wise and given or being about to give testimony under this
Co., Inc. v. NLRC, G.R. No. L87672, Oct. 13, 1989) Code. For in not giving a positive testimony in favor
of the Er, Mabeza reserved not only her right to
Q: Is dismissal of an Ee pursuant to a union dispute the claim but also to work for better terms
security clause a form of ULP? and condition. (Mabeza v. NLRC, G.R No. 118506,
April 18, 1997)
A: No. Union security clauses in the CBA, if freely
and voluntarily entered into, are valid and binding. (f)Violation of Duty to Bargain
Thus, the dismissal of an Ee by the company
pursuant to a labor unions demand in accordance Q: What is violation of the duty to bargain as a
with a union security agreement does not constitute kind of ULP?
ULP. (Malayang Samahan ng mga Manggagawa sa
M. Greenfield v. Ramos, G.R. No. 113907, Feb. 28, A: This is the act of violating the duty to bargain
2000) collectively as prescribed in the LC.
A union member who is employed under an Q: What are the forms of ULP in bargaining?
agreement between the union and his Er is bound by
the provisions thereof since it is a joint and several A:
contract of the members of the union entered into by 1. Failure or refusal to meet and convene
the union as their agent. (Manalang v. Artex Devt, 2. Evading the mandatory subject
G.R. No. L20432, Oct. 30, 1967) of bargaining
3. Bad faith (BF) bargaining,
Q: Is notice and hearing required in case an Ee is including failure to execute the CBA if
dismissed pursuant to a union security clause? requested
4. Gross violation of the CBA
A: Yes. Although a union security clause in a CBA
may be validly enforced and dismissal pursuant to Note: A companys refusal to make counterproposal, if
thereto may likewise be valid, this does not erode considered in relation to the entire bargaining process,
the fundamental requirement of due process. The may indicate BF and this is especially true where the
reason behind the enforcement of union security unions request for a counter proposal is left
clauses which is the sanctity and inviolability of unanswered. (Kiok Loy v. NLRC, G.R. No. L54334, Jan.
contracts cannot erode ones right to due process. 22, 1986)
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: What are the examples of ULP in bargaining? being a majority union. (1997 Bar Question)
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. nature of an exaction, for services which
No. L25984, Oct. 30, 1970) are not performed or not to be
performed, including the demand for fee
Q: What are the reliefs available in ULP cases? for union negotiations
5. To ask for or accept negotiations
A: The following reliefs may be availed of: or attys fees from Ers as part of the
1. Cease and desist order settlement of any issue in collective
2. Affirmative order bargaining (CB) or any other dispute or
3. Court may order the employer to 6. To violate a CBA.
bargain. CBA may be imposed.
4. Strike by union members Q: Is interference by a LO an ULP?
Note: ULP cases are not subject to compromise in view A: No, because interference by a LO in the exercise
of the public interest involve. The relation between of the right to organize is itself a function of self
capital and labor is not merely contractual. They are organizing.
impressed with public interest that labor contracts
must yield to common good. Q: What are examples of interference which does
not amount to ULP?
Q: Is the commission of an ULP by an employer
subject to criminal prosecution? A:
1. Union campaigns for
A: Yes, because ULPs are not only violations of the membership even among members of
civil rights of both labor and management but are another union
also criminal offenses against the State which shall 2. Filing by a union of a petition to
be subject to prosecution and punishment. (Art. dislodge an incumbent bargaining union
247 LC; See also B.P. Blg. 386 as amended by R.A. 3. A bargaining union, through a
6715). However, the criminal aspect can only be union security clause, requires an
filed when the decision of the labor tribunals, incoming employee to join the union.
finding the existence of ULP, shall have become final
and executory. (2005 Bar Question) Q: May a union coerce Ees to join a strike?
(2)ULP of Labor Organizations A: No. A union violates the law when, to restrain or
coerce nonstrikers from working during the strike,
Q: What are the ULP of LOs? it:
A: It shall be ULP for a LO, its officers, agents or
1. Assaults or threatens to assault them
representatives:
2. Threatens them with the loss of their jobs
1. To restrain or coerce Ees in the 3. Blocks their ingress to or egress
from the plant
exercise of their rights to self
organization. However, a LO shall have the 4. Damages nonstrikers
automobiles or forces them off the
right to prescribe its own rules with
highway
respect to the acquisition or retention of
membership 5. Physically preventing them from working
6. Sabotages the Ers property in their
2. To cause or attempt to cause an Er
to discriminate against an Ee, including presence, thereby creating an atmosphere
discrimination against an Ee with respect of fear or violence
to whom membership in such 7. Demonstrates loudly in front of
organization has been denied or to a non strikers residence with signs and
terminate an Ee on any ground other than shouts accusing the nonstriker of
the usual terms and conditions under scabbing
which membership or continuation of 8. Holding the non striker up to ridicule
membership is made available to other 9. Seeking public condemnation of
members the non striker
3. To violate the duty, or refuse to
bargain collectively with the Er, provided it Q: What is a case of union induced discrimination
is the representative of the Ees by labor organization (LO)?
4. To cause or attempt to cause an Er
to pay or deliver or agree to pay or deliver A: This pertains to the arbitrary use of union
any money or other things of value, in the security clause.
3.RIGHT TO PEACEFUL CONCERTED ACTIVITIES A: It means any temporary stoppage of work by the
concerted action of employees as a result of an
Q: What is the constitutional basis of strikes, industrial or labor dispute. (Sec.1 [uu], Rule I, Book
lockouts and other concerted activities? V, IRR)
A: The State shall guarantee the rights of all
It shall comprise not only concerted work
workers to selforganization, collective bargaining
stoppages, but also slowdowns, mass leaves,
and negotiations, and peaceful concerted activities,
sitdowns, attempt to damage, destroy or sabotage
including the right to strike in accordance with law
plant equipment and facilities, and similar activities.
(Sec. 3, Art. XIII, 1987 Constitution).
(Samahang Manggagawa sa Sulpicion Lines v.
Sulpicio Lines, Inc., G.R. No. 140992, Mar. 25, 2004)
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; Q: What is the purpose of a strike?
to prevent or avert them and to implement Sec. 6, Art.
XIV of the Constitution, the law has created several A: A strike is a coercive measure resorted to by
agencies, namely: the BLR, the DOLE, the Labor laborers to enforce their demands. The idea behind
Management Advisory Board, and the CIR. (Luzon a strike is that a company engaged in a profitable
Marine Devt Union v. Roldan, G.R. No. L2660, May business cannot afford to have its production or
30, 1950) activities interrupted, much less, paralyzed. (Phil.
Can Co. v. CIR, G.R. No. L3021, July 13, 1950)
Q: What is a concerted action?
Q: What is a lockout?
A: It is an activity undertaken by 2 or more
employees, by one on behalf of the others. A: It means any temporary refusal of an employer
to furnish work as a result of an industrial or labor
Q: Are all concerted actions strikes? dispute. (Art. 212 [p])
A: Not all concerted activities are strikes. They may Q: What is picketing?
only be protest actions they do not necessarily
cause work stoppage by the protesters. A strike in
A: It is the act of marching to and fro the employers
contrast is always a group action accompanied by
premises which is usually accompanied by the
work stoppage. display of placard and other signs, making known
the facts involved in a labor dispute.
Q: The Ees wrote and published a letter to the
bank president, demanding his resignation on the
The right to picket as a means of communicating the
grounds of immorality, nepotism, favoritism and
facts of a labor dispute is a phase of the freedom of
discrimination in the appointment and promotion
speech guaranteed by the Constitution. If peacefully
of bank Ees. The bank dismissed the 8 Ees on the
carried out, it can not be curtailed
alleged libelous letter. Were the Ees engaged in a
concerted activity?
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
resignation or retirement was accepted by PAL 1. If relief is sought against him or it, and
were Enriquez and Ecarma. 2. He or it is engaged in the same
industry, trade, craft, or occupation in
Before their readmission, PAL required Enriquez which such dispute occurs, or
and Ecarma to accept 2 conditions, namely: that 3. Has a direct or indirect interest therein, or
they sign conformity to PALs letter of acceptance 4. Is a member, officer, or agent of
of their retirement and or resignation and that any association composed in whole or in
they submit an application for employment as new part of employees or employers engaged
employees (Ees) without protest or reservation. As in such industry, trade, craft, or
a result of this their seniority rights were lost. occupation.
Are the pilots entitled to the restoration of their Q: Liwayway Publication Inc. is a second sub lessee
seniority rights? of a part of the premises of the Permanent
Concrete Products, Inc. It has a bodega for its
A: No, an Ee has no inherent right to seniority. He newsprint in the sublet property which it uses for
has only such rights as may be based on a contract, its printing and publishing business. The daily
statute, or an administrative regulation relative supply of newsprint needed to feed its printing
thereto. Seniority rights which are acquired by an Ee plant is taken from its bodega. The Ees of the
through longtime employment are contractual and Permanent Concrete Products Inc. declared a strike
not constitutional. The discharge of an Ee thereby against their company. The union members
terminating such rights would not violate the picketed, stopped and prohibited Liwayways
Constitution. When the pilots tendered their trucks from entering the compound to load
respective retirement or resignation and PAL newsprint from its bodega.
immediately accepted them, both parties mutually
terminated the contractual employment Does the lower court have jurisdiction to issue a
relationship between them thereby curtailing writ of preliminary injunction considering that
whatever seniority rights and privileges the pilots there was a labor dispute between Permanent
had earned through the years. Concrete Products, Inc. and the union?
Q: Does the action of the Ees of PAL fall under the A: Yes, Liwayway Publication Inc. is not in anyway
ambit of concerted actions protected by law? related to the striking union except for the fact that
it is the sub lessee of a bodega in the companys
A: No, the pilots mass action was not a strike compound.
because Ees who go on strike do not quit their
employment. Ordinarily, the relationship of Er and The business of Liwayway is exclusively the
Ee continues until one of the parties acts to sever publication of magazines which has absolutely no
the relationship or they mutually act to accomplish relation or connection whatsoever with the cause of
that purpose. As they did not assume the status of the strike of the union against their company, much
strikers, their protest retirement/resignation was less with the terms, conditions or demands of the
rd
not a concerted activity which was protected by strikers. Liwayway is merely a 3 person or an
law. (Enrique v. Zamora, G.R. No. L51382, Dec. 29, innocent bystander. (Liwayway Pub., Inc. v.
1986) Permanent Concrete Workers Union, G.R. No. L
25003, Oct. 23, 1981)
Q: What is a labor dispute?
Q: Because of financial problems, the company
A: Any controversy or matter concerning terms or decided to temporarily shutdown its operations at
conditions or representation of persons in the dyeing and finishing division. It notified the
negotiating, fixing, maintaining, changing or DOLE of the shutdown. Raymund Tomaroy with 16
arranging the terms and conditions of employment, members of the union staged a picket in front of
regardless of whether or not the disputants stand in the companys compound, carrying placards. He
th
the proximate relation of Ers and Ees. (Gold City demanded a resumption of work and 13 month
Integrated Port Services, Inc. v. NLRC, G.R. No. pay. The company filed a petition to declare the
103560, July 6, 1995) strike illegal. The union argues that they did not
stage a strike, for considering that the dyeing and
Q: When is a person or entity considered as finishing division of the company was shut down,
participating or interested in a labor dispute? it could not have caused a work stoppage. Was the
action of the union a strike?
A:
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 existence of the union is
union and its supporters caused a temporary work threatened. It must still observe
stoppage. The allegation that there can be no work the mandatory 7day strike ban
stoppage because the operation in the division had period before it can stage a
been shut down is of no consequence. It bears valid strike
stressing that the other divisions were fully
operational. (Bukluran ng Manggagawa sa Q: What are the different forms of strike?
Clothman Knitting Corp. v. CA, G.R. No. 158158,
Jan.17, 2005)
A:
a.Forms of Concerted Activities 1. Legal Strikeone called for a
valid purpose and conducted through
Q: What are the types of strike? means allowed by law.
2. Illegal Strikeone staged for a
A: purpose not recognized by law, or if for a
1. Economic strike used to secure the valid purpose, conducted through means
economic demands such as higher wages not sanctioned by law.
and better working conditions for the 3. Economic Strike one staged by
workers workers to force wage or other economic
2. ULP strike protest against ULP of concessions from the employer which he is
management not
requiredbylawtogrant
Q: Distinguish between an economic strike and an (Consolidated Labor Association
ULP strike. of the Phil. vs. Marsman, G.R. No. L
17038, July 31, 1964)
A: 4. ULP Strikeone called to protest
against the employers 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.
5. Slow Down Strikeone staged
without the workers quitting their work but
by merely slackening or by reducing their
normal work output.
6. WildCat Strikeone declared
Who will initiate and staged without filing the required
The CB agent of notice of strike and without the majority
the appropriate approval of the recognized bargaining
Either the CB agent or the LLO in
bargaining unit can
behalf of its members agent.
declare an 7. Sit Down Strikeone where the
economic strike workers stop working but do not leave
As to the coolingoff period their place of work.
30 days from
b.Who may declare a strike or lockout
notice of strike
before the Q: Who may declare a strike or lockout?
15 days from the filing of the
intended date of
notice of strike
A:
actual strike
subject to the 7 1. Any certified or duly
day strike ban recognized bargaining representative
As to the exception to the coolingoff period may declare a strike in cases of
bargaining deadlock and unfair labor
practice. Likewise, the employer may
declare a lockout in the same cases.
2. 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,
A: The requirements for a valid strike or 7. The dispute must not be the
lockout are as follows: subject of an assumption of jurisdiction by
the President or the Secretary of Labor
1. It must be based on a valid and and Employment, a certification for
factual ground; compulsory arbitration, or submission to
compulsory or voluntary arbitration nor a
2. A strike or lockout NOTICE shall be subject of a pending case involving the
filed with the National Conciliation and same grounds for the strike or lockout.
Mediation Board (NCMB) at least 15 days
before the intended date of the strike or
Q: What are the valid grounds for declaring a
lockout if the issues raised are unfair labor
strike or lockout?
practices, or at least 30 days before the
intended date thereof if the issue involves
bargaining deadlock. A: The law recognizes 2 grounds for the valid
exercise of the right to strike or lockout, namely:
3. In cases of dismissal from
employment of union officers duly elected 1. Collective Bargaining
in accordance with the union constitution Deadlock (CBD) economic;
and bylaws, which may constitute UNION 2. Unfair Labor Practice (ULP)political
BUSTING where the existence of the
union is threatened, the 15day cooling Note: It is possible to change an economic strike into a
off period shall not apply and the union ULP strike. (Consolidated Labor Assn of the Phils. v.
may take action immediately after the Marsman and Co., G.R. No. L17038, July 31, 1964)
strike vote is conducted and the result
thereof submitted to the Department of Violations of CBA must be gross to be considered as
Labor and Employment. ULP.
6. In the event the result of the Q: Give examples of strike and explain their
strike/lockout ballot is filed within the legality.
coolingoff period, the 7day requirement
shall be counted from the day following A:
the expiration of the coolingoff period. 1. Sitdown strike Characterized
(NSFW vs. Ovejera, G.R. No. 59743, May by a temporary work stoppage of workers
31, 1982) who seize or occupy property of the Er or
refuse to vacate the premises of the Er.
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
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UST GOLDEN NOTES 2011
2. 30/15 day Coolingoff period Note: Coolingoff and waiting period may be done
before the intended date of actual strike simultaneously.
notice of strike is filed with the NCMB
taking into consideration the coolingoff Q: What is the effect of noncompliance with the
period, at least: requisites of a strike?
a. 30 days before the intended strike A: The strike may be declared illegal.
for bargaining deadlocks;
b. 15 days before the intended strike Q: What is the purpose of giving notice of the
for ULP conduct of a strike vote to the NCMB at least 24
hours before the meeting for the said purpose?
3. Strike vote
a. The decision to declare a strike A:
must be approved by a majority of 1. Inform the NCMB of the intent
the total union membership in the of the union to conduct a strike vote;
bargaining unit concerned. 2. Give the NCMB ample time to
b. It must be obtained by secret decide on whether or not there is a need
ballot through meetings or referenda to supervise the conduct of the strike vote
called for the purpose. to prevent any acts of violence and or
c. Its purpose is to ensure that the irregularities;
intended strike is a majority decision. 3. Ample time to prepare for the
The report on the strike vote must be deployment of the requisite personnel.
submitted to DOLE at least 7 days (Capitol Medical Center v. NLRC, G.R. No.
before the intended strike subject to 147080, April 26, 2005)
the coolingoff period.
d. The regional branch may supervise Q: Is a no strike/lockout clause legal?
the conduct of the secret balloting at
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, 2. The regional branch of the
not ULP strikes. As a provision in the CBA, it is a NCMB may, upon agreement of the
valid stipulation although the clause may be invoked parties, treat a notice as a preventive
by an employer (Er) only when the strike is mediation case.
economic in nature or one which is conducted to 3. During the proceedings, the
force wage or other concessions from the Er that parties shall not do any act which may
are not mandated to be granted by the law itself. It disrupt or impede the early settlement of
would be inapplicable to prevent a strike which is the dispute. They are obliged, as part of
grounded on ULP. (Panay Electric Co. v. NLRC, G.R. their duty to bargain collectively in good
No. 102672, Oct. 4, 1995; Malayang Samahan ng faith and to participate fully and promptly
mga Manggagawa sa Greenfield v. Ramos, G.R. No. in conciliation meetings called by the
113907, Feb. 28, 2000) regional branch of the NCMB.
4. A notice, upon agreement of the
Q: What is a preventive mediation case? parties, may be referred to alternative
modes of dispute resolution, including
A: It involves labor disputes which are the subject voluntary arbitration.
of a formal or informal request for conciliation and
mediation assistance sought by either or both Q: Was the strike held by the union legal based on
parties or upon the initiative of the NCMB. (Sec. 1 the fact that the notice of strike only contained
[mm], Rule I, Book V, IRR) general allegations of ULP?
Note: The regional branch may treat the notice as A: No. Rule XIII Sec. 4 Book V of the Implementing
preventive mediation case upon agreement of the Rules of the LC provides: In cases of ULP, the notice
parties. of strike shall as far as practicable, state the acts
complained of and the efforts to resolve the dispute
Q: What are the contents of the notice of strike or amicably. (Tiu v. NLRC, G.R. No. 123276, Aug. 18,
lockout? 1997)
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
was actually held. (NFSW v. Ovejera, G.R. No. L Q: What are the exceptions to the no backwages
59743, May 31, 1982) rule of strikers?
b. May assume jurisdiction or certify it A: No, the mere issuance of an assumption order
to the NLRC for compulsory automatically carries with it a returntowork order
arbitration although not expressly stated therein. (TSEUFFW v.
c. Duty of striking union or locking out CA, G.R. Nos. 14301314, Dec.18, 2000)
Er to provide and maintain an
effective skeletal workforce of medical Q: What is the extent of the powers of the
and other health personnel, where President during strikes/lockouts?
movement and service shall be
unhampered and unrestricted as are A:
necessary to insure the proper and 1. May determine the industries,
adequate protection of the life and which are in his opinion indispensable to
health of its patients most especially national interest
emergency cases for the duration of 2. May intervene at any time and
the strike or lockout (Art. 263 [g]) assume jurisdiction over any such labor
dispute in order to settle or terminate the
Q: What does the phrase under the same terms same. (Art. 263[g])
and conditions contemplate?
Note: The decision of the President/SLE is final and
A: executory after receipt thereof by the parties.
GR: It contemplates only actual reinstatement.
This is in keeping with the rationale that any Q: May a return to work order be validly issued
work stoppage or slowdown in that particular pending determination of the legality of the strike?
industry can be inimical to the national
economy. A: Yes. Where the return to work order is issued
pending the determination of the legality of the
XPN: Payroll reinstatement in lieu of actual strike, it is not correct to say that it may be enforced
reinstatement but there must be showing of only if the strike is legal and may be disregarded if
special circumstances rendering actual illegal. Precisely, the purpose of the return to work
reinstatement impracticable, or otherwise not order is to maintain the status quo while the
conducive to attaining the purpose of the law in determination is being made. (Sarmiento v. Tuico,
providing for assumption of jurisdiction by the G.R. Nos. 7527173, June 27, 1988)
SLE in a labor dispute that affects the national
interest. (Manila Diamond Hotel Ees Union v. e.Nature of Assumption Order or Certification
SLE, G.R. No. 140518, Dec. 16, 2004) Order
Q: What are issues that the SLE may resolve when Q: What is the nature of the power of SLE under
he assumes jurisdiction over a labor dispute? Art. 263(g)?
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UST GOLDEN NOTES 2011
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW
A: No, a mere finding of the illegality of a strike (1)Requisites for Labor Injunctions
should not be automatically followed by wholesale
dismissal of the strikers from their employment. Q: May the court or quasijudicial entity issue any
While it is true that administrative agencies injunction during strikes/lockouts?
exercising quasijudicial functions are free from the
A: GR: No court or entity shall enjoin any
rigidities of procedure, it is equally wellsettled that
picketing, strike or lockout, or any labor dispute.
avoidance of technicalities of law or procedure in
ascertaining objectively the facts in each case
XPN:
should not, however, cause denial of due process.
1. When prohibited or unlawful
(Bacus v. Ople, G.R. No. L56856, Oct. 23, 1984)
acts are being or about to be committed
that will cause grave or irreparable
Q: 2 days after the union struck, the SLE ordered
damage to the complaining party. (Art.
the striking workers to return to work within 24
218[e])
hours. But the striking union failed to return to
2. On the ground of national interest
work and instead they continued their pickets. As a
3. The SLE or the NLRC may seek
result, violence erupted in the picket lines. The
the assistance of law enforcement
service bus ferrying nonstriking workers was
agencies to ensure compliance with this
stoned causing injuries to its passengers. Threats,
provision as well as with such orders as he
defamation, illegal detention, and physical injuries
may issue to enforce the same (Art.
also occurred. The company was directed to accept
263[g])
back all striking workers, except the union officers,
shop stewards, and those with pending criminal
(2)Innocent Bystander Rule
charges. Was the SLE correct in not including the
union officers, shop stewards and those with
Q: What must an innocent bystander satisfy
pending criminal charges in the return towork
before a court may enjoin a labor strike?
order?
A: The innocent by stander must show:
A: No, to exclude union officers, shop stewards and
those with pending criminal charges in the directive
1. Compliance with the grounds
to the company to accept back the striking workers
specified in Rule 58 of the Rules of Court,
without first determining whether they knowingly
and
committed illegal acts would be tantamount to
2. That it is entirely different from,
dismissal without due process of law. (Telefunken
without any connection whatsoever to,
Semiconductors Ees UnionFFW v. SLE, G.R. No.
either party to the dispute and, therefore,
122743 & 127215, Dec. 12, 1997)
its interests are totally foreign to the
context thereof. (MSF Tire & Rubber v. CA,
(2)Waiver of Illegality of Strike
G.R. 128632, Aug. 5, 1999)
Q: When is there a waiver of the illegality of a
Q: May the RTC take cognizance of the complaint
strike by the employer?
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
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UST GOLDEN NOTES 2011
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
A:
Q: Who has the exclusive appellate jurisdiction 1. The appeal is perfected:
over all cases decided by Labor Arbiters? a. Filed within the reglementary
period provided in Sec. 1 of this Rules
A: The NLRC. b. Verified by the appellant himself
in accordance with Sec. 4, Rule 7 of
Q: What is the effect of perfection of an appeal on the Rules of Court, as amended
execution? c. In the form of a memorandum
of appeal which shall state the
A: The perfection of an appeal shall stay the grounds relied upon and the
execution of the decision of the Labor Arbiter on arguments in support thereof, the
appeal, except execution for reinstatement pending relief prayed for, and with a
appeal. statement of the date the appellant
received the appealed decision,
Note: The provision of Art. 223 is clear that an award resolution or order
by the LA for reinstatement shall be immediately d. In 3 legibly typewritten or
executor even pending appeal and the posting of a printed copies
bond by the employer shall not stay the execution for e. Accompanied by (i) proof of
reinstatement. (Pioneer Texturizing Corp. v. NLRC, G.R. payment of the required appeal fee;
No. 118651, Oct. 16, 1997) (ii) posting of a cash or surety bond
as provided in Sec. 6 of this Rule; (iii)
b.Effect of selfexecuting order of reinstatement on a certificate of nonforum shopping;
backwages and (iv) proof of service upon the
other parties.
Q: May dismissed employees (Ees) collect their
wages during the period between the Labor 2. Mere notice of appeal without
Arbiters (LAs) order of reinstatement pending complying with the other requisites
appeal and the NLRC decision overturning that of aforestated shall not stop the running of
the LA? the period for perfecting an appeal.
A: Yes. Par. 3 of Art. 223 of the Labor Code Q: Is the posting of an appeal bond required for
provides that the decision of the LA reinstating a the perfection of an appeal from a Labor Arbiters
dismissed or separated Ee, insofar as the (LAs) decision involving monetary award?
reinstatement aspect is concerned, shall
immediately be excutory, pending appeal. A: Yes. In case the decision of the LA or the Regional
Director involves a monetary award, an appeal by
Even if the order of reinstatement of the LA is the employer may be perfected only upon the
reversed on appeal, it is obligatory on the part of posting of a bond. (Sec.6, Rule VI, NLRC 2005 Rules
the employer (Er) to reinstate and pay the wages of of Procedure)
the dismissed Ee during the period of appeal until
reversal by the higher court. On the other hand, if Q: What are the forms of the appeal bond?
the Ee has been reinstated during the appeal period
and such reinstatement order is reversed with A: It shall either be in the form of cash deposit or
finality, the Ee is not required to reimburse surety bond equivalent in amount to the monetary
whatever salary he received for he is entitled to award, exclusive of damages and attorney's fees.
such, more so if he actually rendered services (Sec. 6, Rule VI, NLRC 2005 Rules of Procedure)
during the period. (Pfizer v. Velasco, G.R. No.
177467, March 9, 2011)
Q: Who may issue a surety bond?
Unless there is a restraining order, it is ministerial
A: It shall be issued by a reputable bonding
upon the LA to implement the order of
company duly accredited by the Commission or the
reinstatement and it is mandatory on the Er to
SC, and shall be accompanied by original or certified
comply therewith. (Garcia v. PAL, G.R. No. 164856,
true copies of:
Jan. 20, 2009)
1. A joint declaration under oath
c.Requirements to perfect appeal to NLRC
by the Er, his counsel, and the bonding
Q: How is an appeal from LA to NLRC perfected? company, attesting that the bond posted
is genuine, and shall be in effect until final
disposition of the case.
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
2. An indemnity agreement between Note: The mere filing of a motion to reduce bond
the Er appellant and bonding company; without complying with the requisites in the preceding
3. Proof of security deposit or paragraphs shall not stop the running of the period to
collateral securing the bond: provided, perfect an appeal (Sec. 6, Rule VI, NLRC 2005 Rules of
that a check shall not be considered as an Procedure).
acceptable security;
Q: Company "A", within the reglementary
4. A certificate of authority from the
period, appealed the decision of a Labor Arbiter
Insurance Commission;
directing the reinstatement of an Ee and awarding
5. Certificate of registration from the
backwages. However, A's cash bond was filed
SEC;
beyond the ten day period. Should the NLRC
6. Certificate of authority to transact
entertain the appeal? Why?
surety business from the Office of the
President;
A: No, the NLRC should not entertain the appeal, as
7. Certificate of accreditation and
the same was not perfected for failure to file a
authority from the SC; and
bond. In ABA vs. NLRC, G.R. No.122627, July 18,
8. A notarized board resolution or
1999, the SC ruled: "An appeal bond is
secretary's certificate from the bonding
necessary...the appeal may be perfected only upon
company showing its authorized
the posting of cash or surety bond issued by a
signatories and their specimen signatures.
reputable bonding company duly accredited by the
(Sec. 6, Rule VI, NLRC 2005 Rules of
Commission in the amount equivalent to the
Procedure)
monetary award in the judgment appealed from."
(2001 Bar Question)
Note: The appellant shall furnish the appellee with a
certified true copy of the said surety bond with all the
Q: Is a motion for reconsideration (MR) of the
abovementioned supporting documents.
NLRC decision required before certiorari may be
availed of?
Q: What is the period within which a cash or
surety bond shall be valid and effective?
A: Yes. A MR is required to enable NLRC to correct
its mistakes. If no MR is filed, NLRCs decision
A: From the date of deposit or posting, until the
becomes final and executory.
case is finally decided, resolved or terminated, or
the award satisfied. This condition shall be deemed
Q: What is the remedy in case of denial of the MR?
incorporated in the terms and conditions of the
surety bond, and shall be binding on the appellants A: If the motion is denied, the aggrieved party may
and the bonding company. (Sec. 6, Rule VI, NLRC file a petition for certiorari not later than 60 days
2005 Rules of Procedure) from notice of the judgment, order or resolution. In
case a motion for reconsideration or new trial is
Q: What is the effect if the bond is verified by the timely filed, whether such motion is required or not,
NLRC to be irregular or not genuine? the 60 day period shall be counted from notice of
the denial of said motion. No extension of time to
A: The Commission shall cause the immediate file the petition shall be granted except for
dismissal of the appeal, and censure or cite in compelling reason and in no case exceeding 15
contempt the responsible parties and their days. (Sec. 4, Rule 65, Rules of Court.)
counsels, or subject them to reasonable fine or
penalty. (Sec.6, Rule VI, NLRC 2005 Rules of Q: What is the effect if no service of summons was
Procedure) made?
Note: The appellee shall verify the regularity and A: In the absence of service of summons or a valid
genuineness of the bond and immediately report any waiver thereof, the hearings and judgment
irregularity to the NLRC.
rendered by the labor arbiter is null and void.
Q: May the bond be reduced? Q: What is compulsory arbitration?
A: A: The process of settlement of labor disputes by a
GR: No. government agency which has the authority to
investigate and make an award binding on all the
XPN: On meritorious grounds, and only upon the parties.
posting of a bond in a reasonable amount in
relation to the monetary award.
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
Commission en banc.
A: The appeal should not prosper. The SC, in many
Q: Some disgruntled members of Bantay Labor cases, has ruled that decisions made by the NLRC
Union filed with the Regional Office of the DOLE a may be based on position papers. In the question, it
written complaint against their union officers for is stated that the parties agreed to submit the case
mismanagement of union funds. The Regional for resolution after the submission of position
Director (RD) did not rule in the complainants' papers and evidence. Given this fact, the striker
favor. Not satisfied, the complainants elevated the members of B cannot now complain that they were
RDs decision to the NLRC. The union officers moved denied due process. They are in estoppel. After
to dismiss on the ground of lack of jurisdiction. Are voluntarily submitting a case and encountering an
the union officers correct? Why? 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
A: Yes, the union officers are correct in claiming that dealing. (Marquez vs. Secretary of Labor, G.R. No.
the NLRC has no jurisdiction over the appealed 80685, March 16, 1989). (2001 Bar Question)
ruling of the RD. in Barles v. Bitonio, G.R. No.
120220, June 16, 1999, the SC ruled: Q: Is barangay conciliation available in labor
cases?
Appellate authority over decisions of the RD
involving examination of union accounts is expressly A: No. Labor cases are not subject to barangay
conferred on the Bureau of Labor Relations (BLR) Conciliation since ordinary rules of procedure are
under the Rule of Procedure on Mediation merely suppletory in character visvis labor
Arbitration. disputes which are primarily governed by labor
laws. (Montoya v. Escayo, G.R. No. 8221112, Mar.
Sec. 4. Jurisdiction of the BLR (b) The BLR shall 21, 1989)
exercise appellate jurisdiction over all cases
originating from the RD involving complaints for Q: What are the powers of the NLRC?
examination of union books of accounts.
A:
The language of the law is categorical. Any 1. Rule making power
additional explanation on the matter is promulgation of rules and regulations:
superfluous." (2001 Bar Question) a. Governing disposition of cases
before any of its division/regional
Q: Company "A" and Union "B" could not resolve offices.
their negotiations for a new CBA. After b. Pertaining to its internal functions
conciliation proceedings before the NCMB proved c. As may be necessary to carry
futile, B went on strike. Violence during the strike out the purposes of the Labor Code.
prompted A to file charges against striker 2. Power to issue compulsory
members of B for their illegal acts. The SLE processes (administer oaths, summon
assumed jurisdiction, referred the strike to the parties, issue subpoenas)
NLRC and issued a returntowork order. The NLRC 3. Power to investigate matters and hear
directed the parties to submit their respective disputes within its jurisdiction
position papers and documentary evidence. At (adjudicatory power original and
the initial hearing before the NLRC, the parties appellate jurisdiction over cases)
agreed to submit the case for resolution after the 4. Contempt power
submission of the position papers and evidence. 5. Ocular Inspection
6. Power to issue injunctions and
Subsequently, the NLRC issued an arbitral award restraining orders
resolving the disputed provisions of the CBA and
ordered the dismissal of certain strikers for having b.Effect of NLRC reversal of Labor Arbiters order of
knowingly committed illegal acts during the strike. reinstatement
The dismissed employees elevated their dismissal
to the CA claiming that they were deprived of their Q: May dismissed employees (Ees) collect their
right to due process and that the affidavits wages during the period between the Labor
submitted by A were self serving and of no Arbiters (LAs) order of reinstatement pending
probative value. Should the appeal prosper? State appeal and the NLRC decision overturning that of
the reason(s) for your answer clearly. the LA?
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 appeal or petition for certiorari. (Ginete v. Sunrise
provides that the decision of the LA reinstating a Manning Agency, G.R. No. 142023, June 21, 2001)
dismissed or separated Ee, insofar as the
reinstatement aspect is concerned, shall Q: What is an injunction or a temporary
immediately be excutory, pending appeal. restraining order (TRO)?
Even if the order of reinstatement of the LA is A: Orders which may require, forbid, or stop the
reversed on appeal, it is obligatory on the part of doing of an act. The power of the NLRC to enjoin or
the employer (Er) to reinstate and pay the wages of restrain the commission of any or all prohibited or
the dismissed Ee during the period of appeal until unlawful acts under Art. 218 of Labor Code can only
reversal by the higher court. On the other hand, if be exercised in a labor disputes.
the Ee has been reinstated during the appeal period
and such reinstatement order is reversed with Note: A restraining order is generally regarded as an
finality, the Ee is not required to reimburse order to maintain the subject of controversy in status
whatever salary he received for he is entitled to quo until the hearing of an application for a temporary
such, more so if he actually rendered services injunction. (BF Homes v. Reyes, G.R. No. L30690
during the period. (Pfizer v. Velasco, G.R. No. November 19, 1982)
177467, March 9, 2011)
Q: Who may issue a TRO?
c.Requirements to perfect appeal to Court of
Appeals A:
1. President (Art.263[g])
Q: Is judicial review of the NLRCs decision 2. Secretary of Labor (Art. 263[g])
available? 3. NLRC (Art.218)
A: Yes, through petitions for certiorari (Rule 65) Note: Art. 218 of the Labor Code limits the grant of
which should be initially filed with the CA in strict injunctive power to the NLRC. The LA is excluded
observance of the doctrine on the hierarchy of statutorily. Hence, no NLRC Rules can grant him that
courts as the appropriate forum for the relief power.
desired. The CA is procedurally equipped to resolve
unclear or ambiguous factual finding, aside from the Q: What is the procedure for the issuance of
increased number of its component divisions. (St. restraining order/injunction?
Martin Funeral Home v. NLRC, G.R. No. 130866, Sep.
16, 1998) A:
1. Filing of a verified petition
Q: Within what period should the petition for 2. Hearing after due and personal
certiorari be filed with the Court of Appeals? notice has been served in such manner as
the Commission shall direct to:
A: Under Section 4, Rule 65 (as amended by A.M. a. All known persons against
No. 00203SC) of the Rules of Civil Procedure, the whom relief is sought
petition must be filed within sixty (60) days from b. Also the Chief Executive or
notice of the judgment or from notice of the other public officials of the province
resolution denying the petitioners motion for or city within which the unlawful
reconsideration. This amendment is effective acts have been threatened or
September 1, 2000, but being curative may be given commercial charged with the duty
retroactive application. (Narzoles v. NLRC, G.R. No. to protect the complainants
141959, Sep. 29, 2000) property.
3. Reception at the hearing of the
The period within which a petition for certiorari testimonies of the witnesses with
against a decision of the NLRC may be filed should opportunity for crossexamination, in
be computed from the date counsel of record of the support of the allegations of the
party receives a copy of the decision or resolution, complaint made under oath as well as
and not from the date the party himself receives a testimony in opposition thereto.
copy thereof. Article 224 of the Labor Code, which 4. Finding of fact of the
requires that copies of final decisions, orders or Commission to the effect that:
awards be furnished not only the partys counsel of a. Prohibited or unlawful acts have
record but also the party himself applies to the been threatened and will be
execution thereof and not to the filing of an committed, or have been and will be
continued unless restrained, but no
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
c. That as to each item of relief to be A: The BLR has original and exclusive jurisdiction
granted, greater injury will be over:
inflicted upon the complainant by
the denial of the relief than will be 1. Interunion disputes
inflicted upon the defendants by the 2. Intraunion disputes
granting of the relief. 3. Other related labor relations disputes
d. That complainant has no adequate
remedy at law Q: What is the coverage of inter/intraunion
Note: Adequate remedy one that disputes?
affords relief with reference to the
matter in controversy and which is A: They shall include:
appropriate to the particular
circumstances of the case if the remedy 1. Conduct or nullification of
is specifically provided by law. (PAL v. election of union and workers association
NLRC, GR. No. 120567, Mar. 20, 1998) officers
e. That public officers charged with 2. Audit/accounts examination of
the duty to protect complainants union or workers association funds
property are unable or unwilling to 3. Deregistration of collective
furnish adequate protection. bargaining agreements (CBAs)
5. Posting of a bond. 4. Validity/invalidity of union
affiliation or disaffiliation
3.BUREAU OF LABOR RELATIONS (BLR)MED 5. Validity/invalidity of
ARBITERS acceptance/ non acceptance for union
membership
a.Jurisdiction 6. Validity/invalidity of voluntary recognition
7. Opposition to application for
Q: What is covered by the BLRs jurisdiction and union or CBA registration
functions? 8. Violations of or disagreements
over any provision of the constitution and
A: The BLR no longer handles all labor bylaws of union or workers association
management disputes; rather its functions and 9. Disagreements over chartering
jurisdiction are largely confined to: or registration of labor organizations or
1. Union matters the registration of CBAs;
2. Collective bargaining registry and 10. Violations of the rights and
3. Labor education. conditions of membership in a union or
workers association;
Note: Jurisdiction over labor management problems or 11. Violations of the rights of
disputes is also exercised by other offices: legitimate labor organizations (LLO),
1. DOLE Regional Offices except interpretation of CBAs;
2. Office of the Secretary of Labor
12. Validity/invalidity of
3. NLRC
impeachment/ expulsion/suspension or
any disciplinary action meted against any
officer and member, including those
arising from
Q: Who may file a complaint or petition involving Q: What is the extent of the Bureau of Labor
intra/interunion disputes? Relations (BLRs) authority?
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
Q: What is the Legal Basis of Conciliation and In case of preventive mediation, any issue may
Mediation? be brought before the NCMB Central Office or its
regional offices for conciliation and possible
A: Article 13, Section 3, of our New Constitution settlement through a letter. This method is more
provides: preferable than a notice of strike/lockout because
The State shall promote xxx the preferential of the nonadversarial atmosphere that pervades
use of voluntary modes of setting disputes during the conciliation conferences.
including conciliation and shall ensure mutual
compliance by the parties thereof in order to Q: What advantage can be derived from
foster industrial peace. conciliation and mediation services?
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
A:
6.DOLE SECRETARY
A:
1. Visitorial powers
2. Enforcement powers
3. Appellate or power to review
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
official of the Department of Labor and Q: Who will designate the voluntary arbitrator
Employment before whom such dispute is pending (VA)/panel in case the parties fail to select one?
that the termination may cause serious labor
dispute or is in implementation of a mass layoff. 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.
7.VOLUNTARY ARBITRATORS Manila Central Line Corp., G.R. No. 109383, June 15,
1998)
a.Submission Agreement
Q: May Labor Arbiters (LA) be designated as
Q: How is arbitration initiated? voluntary arbitrators (VA)?
Q: Who is a voluntary arbitrator (VA)? Q: What falls under the jurisdiction of Voluntary
Arbitrators (VA)?
A:
1. Any person accredited by the NCMB A: Generally, the arbitrator is expected to decide
as such only those questions expressly delineated by the
2. Any person named or designated in submission agreement.Nevertheless, the arbitrator
the CBA by the parties to act as their VA can assume that he has the necessary power to
3. One chosen with or without the make a final settlement since arbitration is the final
assistance of the NCMB, pursuant to a resort for the adjudication of the disputes. (Ludo
selection procedure agreed upon in the and Luym Corp. v. Saornido, G.R. No. 140960, Jan.
CBA 20, 2003)
4. Any official that may be authorized
by the SLE to act as VA upon the written
request and agreement of the parties to a Q: What cases are within the jurisdiction of VA?
labor dispute. (Art. 212 [n])
A: Original and exclusive jurisdiction over:
Q: What are the powers of a voluntary
arbitrator? 1. All unresolved grievances arising
from the:
A: a. Implementation or
1. Hold hearings interpretation of the CBA
2. Receive evidence b. Interpretation or enforcement
3. Take whatever action necessary to of company personnel policies
resolve the dispute including efforts to
effect a voluntary settlement between 2. Wage distortion issues arising
parties. (Art. 262A) from the application of any wage orders in
organized establishments
Q: How is a voluntary arbitrator (VA)/panel
chosen? 3. Those arising from
interpretation and implementation of
A: productivity incentive programs under
1. The parties in a CBA shall designate R.A. 6971
in advance a VA/panel, preferably from
the listing of qualified VAs duly accredited 4. Violations of CBA provisions
by the NCMB, or which are not gross in character are no
2. Include in the agreement a longer treated as ULP and shall be
procedure for the selection of such VA or resolved as grievances under the CBA
panel of VAs, preferably from the listing of
qualified VAs duly accredited by the Note: Gross violation of CBA provisions shall
NCMB. (Art.260, par.3) mean flagrant and/or malicious refusal to
comply with the economic provisions of
such agreement.
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
5. Any other labor disputes upon A: GR: Decisions of VA are final and executory after
agreement by the parties including ULP 10 calendar days from receipt of the copy of the
and bargaining deadlock. (Art. 262) award or decision by the parties. (Art. 262A)
A: The Labor Arbiter and not the grievance Does the voluntary arbitrator (VA) have jurisdiction
machinery. over the case?
Q: What is the nature of the power of a voluntary A: No, the VA has no jurisdiction over the case.
arbitrator? Although the dismissal of the Ees concerned was
made pursuant to the union security clause
A: Arbitrators by the nature of their functions, act provided in the CBA, there was no dispute
in a quasijudicial capacity (BP 129, as amended by whatsoever between PSSLU and Sanyo as regards
R.A. 9702); where a question of law is involved or the interpretation or implementation of the said
there is abuse of discretion, courts will not hesitate union security clause. Both PSSLU and Sanyo are
to pass upon review of their acts. united and have come to an agreement regarding
the dismissal of the Ees concerned. Thus there is no
b.Rule 43, Rules of Court grievance between the union and management
which could be brought to the grievance machinery.
Q: Are decisions of voluntary arbitrators (VAs) The dispute is between PSSLU and Sanyo, on the
appealable? one hand, and the dismissed union members, on
the other hand. The dispute therefore, does not
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION
involve the interpretation or implementation of a Darbys counsel considered that issue as having
CBA. (Sanyo Philippines Workers UnionPSSLU v. dual aspects and intended in his own mind to
Canizares, G.R. No. 101619, July 8, 1992) submit only one of those aspects to the VA, if he
did, however, he failed to reflect his thinking and
Q: X was employed as telephone operator of intent in the arbitration agreement. (Sime Darby
Manila Midtown Hotel. She was dismissed from Phils. v. Magsalin, G.R. No. 90426, Dec. 15, 1989)
her employment for committing the following
violations of offenses subject to disciplinary Q: Apalisok, production chief for RPN Station, was
actions, namely: falsifying official documents and dismissed due to her alleged hostile, arrogant,
culpable carelessnessnegligence or failure to disrespectful, and defiant behavior towards the
follow specific instructions or established Station Manager. She informed RPN that she is
procedures. X then filed a complaint for illegal waiving her right to resolve her case through the
dismissal with the Arbitration branch of the NLRC. grievance machinery as provided in the CBA. The
The Hotel challenged the jurisdiction of the Labor voluntary arbitrator (VA) resolved the case in the
Arbitrator (LA) on the ground that the case falls employees (Ees) favor.
within the jurisdictional ambit of the grievance
procedure and voluntary arbitration under the On appeal, the CA ruled in favor of RPN because it
CBA. considered the waiver of petitioner to file her
complaint before the grievance machinery as a
Does the LA have jurisdiction over the case? relinquishment of her right to avail herself of the
aid of the VA. The CA said that the waiver had the
A: Yes, the LA has jurisdiction. The dismissal of X effect of resolving an otherwise unresolved
does not call for the interpretation or enforcement grievance, thus the decision of the VA should be
of company personnel policies but is a termination set aside for lack of jurisdiction. Is the ruling of the
dispute which comes under the jurisdiction of the CA correct?
LA. The dismissal of X is not an unresolved
grievance. Neither does it pertain to interpretation A: No. Art. 262 of the Labor Code provides that
of company personnel policy. (Maneja v. NLRC, G.R. upon agreement of the parties, the VA can hear and
No. 124013, June 5, 1998) decide all other labor disputes.
Q: Sime Darby Salaried Employees (Ees) Contrary to the finding of the CA, voluntary
AssociationALU (SDSEAALU) wrote petitioner arbitration as a mode of settling the dispute was
Sime Darby Pilipinas (SDP) demanding the not forced upon respondents. Both parties indeed
implementation of a performance bonus provision agreed to submit the issue of validity of the
identical to the one contained in their own CBA dismissal of petitioner to the jurisdiction of the VA
with SDP. Subsequently, SDP called both by the Submission Agreement duly signed by their
respondent SDEA and SDEAALU to a meeting respective counsels. The VA had jurisdiction over
wherein the former explained that it was unable to the parties controversy.
grant the performance bonus. In a conciliation
meeting, both parties agreed to submit their The Ees waiver of her option to submit her case to
dispute to voluntary arbitration. Their agreement grievance machinery did not amount to
to arbitrate stated, among other things, that they relinquishing her right to avail herself of voluntary
were "submitting the issue of performance bonus arbitration. (Apalisok v. RPN, G.R. No. 138094, May
to voluntary arbitration." 29, 2003)
Does the voluntary arbitrator (VA) have the power 8.COURT OF APPEALS
to pass upon not only the question of whether to
grant the performance bonus or not but also to Q: Is judicial review of the NLRCs decision
determine the amount thereof? available?
A: Yes, in their agreement to arbitrate, the parties A: Yes, through petitions for certiorari (Rule 65)
submitted to the VA the issue of performance which should be initially filed with the CA in strict
bonus. The language of the agreement to arbitrate observance of the doctrine on the hierarchy of
may be seen to be quite cryptic. There is no courts as the appropriate forum for the relief
indication at all that the parties to the arbitration desired. The CA is procedurally equipped to resolve
agreement regarded the issue of performance unclear or ambiguous factual finding, aside from the
bonus as a twotiered issue, only one tier of which increased number of its component divisions.
was being submitted to arbitration. Possibly, Sime
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
(St. Martin Funeral Home v. NLRC, G.R. No. 130866, resolution appealed from. (Sea Power Shipping
Sep. 16, 1998) 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 CertiorariWhen any tribunal, board or
officer exercising judicial or quasijudicial functions has Filing of petition with Supreme Court.A party
acted without or in excess of its or his jurisdiction, or desiring to appeal by certiorari from a judgment, final
with grave abuse of discretion amounting to lack or order or
excess of jurisdiction, and there is no appeal, or any resolution of the Court of Appeals, the Sandiganbayan,
plain, speedy, and adequate remedy in the ordinary the Court of Tax Appeals, the Regional Trial Court or
course of law, a person aggrieved thereby may file a other courts, whenever authorized by law, may file
verified petition in the proper court, alleging the facts with the Supreme Court a verified petition for review
with certainty and praying that judgment be rendered on certiorari. The petition may include an application
annulling or modifying the proceedings of such for a writ of preliminary injunction or other provisional
tribunal, board or officer, and granting such incidental remedies and shall raise only questions of law, which
reliefs as law and justice may require. must be distinctly set forth. The petitioner may seek
the same provisional remedies by verified motion filed
The petition shall be accompanied by a certified true in the same action or proceeding at any time during its
copy of the judgment, order or resolution subject pendency.
thereof, copies of all pleadings and documents relevant
and pertinent thereto, and a sworn certification of Q: Give the policy of the Supreme Court regarding
nonforum shopping as provided in the third paragraph appeals in labor cases.
of section 3, Rule 46.
A: The Supreme Court is very strict regarding
Q: Within what period should the petition for appeals filed outside the reglementary period for
certiorari be filed with the Court of Appeals? filing the same. To extend the period of the appeal
is to delay the case, a circumstance which could give
A: Under Section 4, Rule 65 (as amended by A.M. the employer the chance to wear out the efforts
No. 00203SC) of the Rules of Civil Procedure, the and meager resources of the worker that the latter
petition must be filed within sixty (60) days from is constrained to give up for less than what is due
notice of the judgment or from notice of the him. (Firestone Tire and Rubber Co. of the
resolution denying the petitioners motion for Philippines v. FirestoneTire and Rubber Co.
reconsideration. This amendment is effective Employees Union, G.R. No. 75363, Aug. 4, 1992)
September 1, 2000, but being curative may be given
retroactive application. (Narzoles v. NLRC, G.R. No. 10.PRESCRIPTION OF ACTIONS
141959, Sep. 29, 2000)
Q: Give the rules as regards the prescriptive period
The period within which a petition for certiorari provided for in the Labor Code (LC).
against a decision of the NLRC may be filed should
be computed from the date counsel of record of the A:
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 partys 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 ULP
Agency, G.R. No. 142023, June 21, 2001)
9.SUPREME COURT
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
effectivity of the LC and
between Nov. 1, 1974
Dec. 31, 1974