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FUNDAMENTAL PRINCIPLES AND POLICIES

LABOR LAW 3. Social legislation It includes


laws that provide particular kinds of
Q: What is labor? protection or
benefits to society or segments thereof in
A: It is the exertion by human beings of physical or furtherance of social justice.
mental efforts, or both, towards the production of e.g. GSIS Law, SSS Law, Philhealth benefits
goods and services.
Q: Is there any distinction between labor
Q: What is labor law? legislation and social legislation? Explain.

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

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

rights and benefits as may be provided by provides incentives to needed


law. investments.

The State shall promote the principle of


shared responsibility between workers 9. Sec. 1, Art. III No person shall
and employers and the preferential use of be deprived of life, liberty, or property
voluntary modes in settling disputes, without due process of law, nor shall any
including conciliation, and shall enforce person be denied the equal protection of
their mutual compliance therewith to the laws.
foster industrial peace. The State shall
regulate the relations between workers 10. Sec. 4, Art. III No law shall be
and employers, recognizing the right of passed abridging the freedom of speech,
labor to its just share in the fruits of of expression, or of the press, or the right
production and the right of enterprises to of the people peaceably to assemble and
reasonable returns to investments, and to petition the government for redress of
expansion and growth. grievances.

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

LABOR LAW TEAM:


2 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
FUNDAMENTAL PRINCIPLES AND POLICIES

4. 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

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

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)

LABOR LAW TEAM:


4 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
FUNDAMENTAL PRINCIPLES AND POLICIES

1. One employed in an agricultural


b.Art. 5. Rules and Regulations or farm enterprise,
2. Performs tasks which are
Q: Who is given the rulemaking power? directly related to agricultural activities of
the Er, and
A: The Department of Labor and other govt 3. Any activities performed by a
agencies charged with the administration and farmer as an incident to farming
enforcement of the Labor Code or any of its parts operations.
shall promulgate the necessary implementing rules
and regulations. Such rules and regulations shall d.Art. 211. Declaration of Policy
become effective 15 days after announcement of
their adoption in newspapers of general circulation. Q: What are the policy objectives of our labor
relations law?
Q: What are the limitations to the rulemaking
power given to the Secretary of Labor and A: The state aims to promote:
Employment and other govt agencies? 1. Free collective bargaining (CB) and
negotiations, including voluntary
A: It must: arbitration, mediation and conciliation as
1. Be issued under the authority of the modes of settling labor or industrial
law disputes;
2. Not be contrary to law and the 2. Free trade unionism;
Constitution 3. Free and voluntary organization
of a strong and united labor movement;
c.Art. 6. Applicability 4. Enlightenment of workers
concerning their rights and obligations as
Q: To whom shall all rights and benefits under the union members and as Ees;
LC apply? 5. Adequate administrative
machinery for the expeditious settlement
A: GR: All rights and benefits granted to workers of labor or industrial disputes;
under the LC shall apply alike to all workers, 6. Stable but dynamic and just
whether agricultural or nonagricultural. industrial peace;
7. Participation of workers in the
XPN: decision making processes affecting their
1. Government employees (Ees) rights, duties and welfare;
2. Ees of government corporations 8. Truly democratic method of
created by special or original charter regulating the relations between the Ers
3. Foreign governments and Ees by means of agreements freely
4. International agencies entered into through CB, no court or
5. Corporate officers/ intracorporate administrative agency or official shall have
disputes which fall under P.D. 902A and the power to set or fix wages, rates of pay,
now fall under the jurisdiction of the hours of work or other terms and
regular courts pursuant to the Securities conditions of employment, except as
Regulation Code (SRC). otherwise provided under the LC.
6. Local water district except where
NLRCs jurisdiction is invoked. e.Art. 212. Definitions
7. As may otherwise be provided by
the LC Q: Who is an employer (Er)?

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?

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
2. As to subject matter The test depends on
whether it concerns terms or conditions of employment
A: When it is acting as such in relation to or association
persons rendering services under hire,
particularly in connection with its
activities for profit or gain.

Note: The mere fact that respondent is a labor union


does not mean that it cannot be considered an Er for
persons who work for it. Much less should it be
exempted from labor laws. (Bautista v. Inciong, G.R.
No. L52824, Mar. 16, 1988)

Q: Who is an employee (Ee)?

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.

Any Ee, whether employed for a definite period or not,


shall, beginning on the first day of service, be
considered an Ee for purposes of membership in any
labor union. (Art. 277[c], LC)

Q: What is a labor dispute?

A: Includes any controversy or matter


concerning:

1. Terms and conditions of


employment, or
2. The association or
representation of
persons in negotiating, fixing, maintaining,
changing or arranging the terms and
conditions of employment
3. Regardless of whether the
disputants stand in the proximate relation
of Er and Ee. (Art.212[l])

Q: What are the tests on whether a


controversy falls within the definition of
a labor dispute?

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

LABOR LAW TEAM:


6 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
FUNDAMENTAL PRINCIPLES AND POLICIES

A: A: The Labor Organization designated or selected


1. Primary parties are the Er, Ees and by the majority of the employees in an appropriate
the union. collective bargaining unit shall be the exclusive
2. Secondary parties are the voluntary representative of the employees in such unit for the
arbitrator, agencies of DOLE, NLRC, purpose of collective bargaining. However, an
Secretary of Labor and the Office of the individual employee or group of employees shall
President. have the right at any time to present grievances to
their employer. (As amended by Sec. 22, R.A. No.
Q: What is an interunion dispute? 6715, Mar. 15, 1989)

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

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

recognized as such. Whether the Union may


bargain collectively?

A: No. Art. 255 of the LC declares that only the


labor organization designated or selected by the
majority of the Ees in an appropriate collective
bargaining (CB) unit is the exclusive representative
of the employees (Ees) in such unit for the purpose
of CB. The union is admittedly not the exclusive
representative of the majority of the Ees of the
hotel, hence, it could not demand from the hotel
the right to bargain collectively in their behalf.
(Manila Diamond Hotel v. Manila Diamond Hotel
Ees Union, G.R. No. 158075, June 30, 2006)

Q: Are probationary Ees allowed to vote at the


time of the certification elections?

A: Yes. Under Art. 255 of the LC the labor


organization designated or selected by the majority
of the Ees in an appropriate bargaining unit shall be
the exclusive representative of the Ees in such unit
for purposes of CB. CB covers all aspects of the
employment relation and the resultant CBA
negotiated by the certified union binds all Ees in the
bargaining unit. Hence, all rank and file Ees,
probationary or permanent, have a substantial
interest in the selection of the bargaining
representative. The LC makes no distinction as to
their employment status as basis for eligibility in
supporting the petition for certification election.
The law refers to "all" the Ees in the bargaining unit.
All they need to be eligible to support the petition is
to belong to the "bargaining unit." The provision in
the CBA disqualifying probationary Ees from voting
cannot override the constitutionallyprotected right
of workers to selforganization, as well as the
provisions of the LC and its implementing rules on
certification elections and jurisprudence. A law is
read into, and forms part of, a contract. Provisions
in a contract are valid only if they are not contrary
to law, morals, good customs, public order or public
policy. (NUWHRAINMPHC v. SLE, G.R. No. 181531,
July 31, 2009)

LABOR LAW TEAM:


8 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT

B. RECRUITMENT AND PLACEMENT 3. Members of the diplomatic


corps (but hiring must go through POEA)
1. RECRUITMENT OF LOCAL AND 4. Public employment offices
MIGRANT 5. Private recruitment offices
WORKERS 6. Private employment agencies
7. POEA
a.Recruitment and Placement 8. Shipping or manning agents or
representatives
Q: Who is a worker? 9. Name hires

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: GR: No person or entity other than the public Q: Who is a seaman?


employment offices, shall engage in the
recruitment and placement of workers A: Any person employed in a vessel engaged in
maritime navigation.
XPN:
1. Construction contractors if Q: What is overseas employment?
authorized by the DOLE and Construction
Industry Authority
2. Other persons or entities as may be
authorized by the SLE

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

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)

A: It is issued by DOLE authorizing a person or Q: Is the license or authority transferable?


entity to operate a private employment agency.
A: No, they are nontransferable. (Art. 29)
Q: What is an Authority?
Q: A Recruitment and Placement Agency declared
A: It is a document issued by the DOLE authorizing voluntary bankruptcy. Among its assets is its
a person or association to engage in recruitment license to engage in business. Is the license of the
and placement activities as a private recruitment bankrupt agency an asset which can be sold in
entity. public auction by the liquidator?

Q: Who is a nonlicensee / nonholder of A: No, because of the nontransferability of the


authority? license to engage in recruitment and placement.
The LC (Art. 29) provides that no license to engage
A: Any person, corporation or entity: in recruitment and placement shall be used directly
or indirectly by any person other than the one in
1. Which has not been issued a whose favor it was issued nor may such license be
valid license or authority to engage in transferred, conveyed or assigned to any other
recruitment and placement by the person or entity. It may be noted that the grant of a
Secretary of Labor and Employment (SLE) license is a governmental act by the DOLE based on
or personal qualifications, and citizenship and
2. Whose license or authority has capitalization requirements. (Arts.2728, LC). (1998
been suspended, revoked or cancelled by Bar Question)
the POEA or the SLE
Note: Change of ownership or relationship of a single
Q: What are the grounds for revocation of license? proprietorship licensed to engage in overseas
employment shall cause the automatic revocation of
the license.
A:
1. Incurring an accumulated 3
counts of suspension by an agency based Q: Concerned Filipino contract workers in the
on final Middle East reported to the DFA that XYZ, a

LABOR LAW TEAM:


10 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT

private recruitment and placement agency, is (b)Illegal Recruitment


covertly transporting extremists to terrorist
training camps abroad. Intelligence agencies of the Q: What are the elements of Illegal Recruitment?
govt allegedly confirmed the report. Upon being
alerted by the DFA, the DOLE issued orders A:
cancelling the licenses of XYZ, and imposing an 1. Offender is a nonlicensee or non
immediate travel ban on its recruits for the Middle holder of authority to lawfully engage in
East. XYZ appealed to the Office of the President to the recruitment/placement of workers
reverse and set aside the DOLE orders, citing 2. Offender undertakes:
damages from loss of employment of its recruits, a. Any act of canvassing, enlisting,
and violations of due process including lack of contracting, transporting, utilizing,
notice and hearing by DOLE. The DOLE in its hiring or procuring workers, and
answer claimed the existence of an emergency in includes referrals, contact services,
the Middle East which required prompt measures promising or advertising for
to protect the life and limb of OFWs from a clear employment, locally or abroad,
and present danger posed by the ongoing war whether for profit or not (Art. 13[b]);
against terrorism. Should the DOLE orders be or
upheld or set aside? b. Any of prohibited practices under
Art. 34
A:
1. The DOLE order cancelling the Q: When is there Simple Illegal Recruitment?
licenses of XYZ is void because a report A: It is considered simple illegal recruitment when
that an agency is covertly transporting it involves less than three (3) victims or recruiters.
extremists is not a valid ground for
cancellation of a Certificate of Registration Q: Larry Domingo was accused of the crime of
(Art. 239, LC and there is failure of due illegal recruitment. He argued that he issued no
process as no hearing was conducted receipt or document in which he acknowledged as
prior to the cancellation (Art. 238, LC). having received any money for the promised jobs.
Hence, he should be free him from liability. Was
2. The DOLE order imposing the travel Larry engaged in recruitment activities?
ban is valid because it is a valid exercise of
police power to protect the national A: Yes. Even if at the time Larry was promising
interest (Sec. 3, Art. XIII, Constitution on employment no cash was given to him, he is still
full protection to labor safety of workers) considered as having been engaged in recruitment
and on the rule making authority of the activities, since Art.13(b) of the LC states that the
SLE. (Art. 5, LC; Phil. Assn. of Service act of recruitment may be for profit or not. It
Exporters v. Drilon, G.R. No. 81958, June suffices that Larry promised or offered employment
30, 1988). (2004 Bar Question) for a fee to the complaining witnesses to warrant
his conviction for illegal recruitment. (People v.
Q: Who are the persons prohibited from engaging Domingo, G.R. No. 181475, April 7, 2009, J. Carpio
the business of recruiting migrant workers? Morales)

A: Q: What is the difference between the LC and R.A.


1. Unlawful for any official or Ee of 8042 or the Overseas Filipinos and Overseas
the: Migrant Workers Act?
a. DOLE
b. POEA A:
c. Overseas Workers Welfare
Administration (OWWA)
d. DFA LC (Art. 38)
e. Other govt agencies
involved in the implementation of
this Act
th
2. Their relatives within the 4 civil
degree of consanguinity or affinity, to
engage, directly or indirectly in the
business of recruiting migrant workers. Illegal
(Sec. 8, R.A. 8042) under Art. 38 means
any
activity
prohibited
under
committed by
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

licensees or non believed that her application for the renewal of


holders of authority. her license would be approved. She adduced in
evidence the Affidavits of Desistance which the
four private complainants had executed after the
prosecution rested its case. In the said affidavits,
they acknowledge receipt of the refund by
Maryrose of the total amount of P120,000.00 and
indicated that they were no longer interested to
pursue the case against her. Resolve the case with
reasons.

A: Illegal recruitment is defined by law as any


recruitment activities undertaken by nonlicenses or
nonholders of authority. (People v. Senoron, G.R.
No. 119160, Jan. 30,1997) And it is large scale illegal
recruitment when the offense is committed against
Q: How does one prove illegal recruitment?
3 or more persons, individually or as a group. (Art.
38[b], LC) In view of the above, Maryrose is guilty of
A: It must be shown that the accused gave the
large scale illegal recruitment. Her defense of GF
distinct impression that he had the power or ability
and the Affidavit of Desistance as well as the refund
to send complainants abroad for work such that the
given will not save her because R.A. No. 8042 is a
latter were convinced to part with their money in
special law, and illegal recruitment is malum
order to be deployed.
prohibitum. (People v. Saulo, G.R. No. 125903, Nov.
15, 2000). (2005 Bar
Q: May a licensee or holder of authority be held
Question)
liable for illegal recruitment?
Q: Sometime in the month of March 1997, in the
A: Yes, any person (whether nonlicensee, non
City of Las Pias, Bugo by means of false pretenses
holder of authority, licensee or holder of authority)
and fraudulent representation convinced Dado to
who commits any of the prohibited acts, shall be
give the amount of P 120,000.00 for processing of
liable for Illegal recruitment. (R.A. 8042)
his papers so that he can be deployed to Japan.
Dado later on found out that Bugo had
Q: When is illegal recruitment considered as misappropriated, misapplied and converted the
economic sabotage?
money to her own personal use and benefit. Can
Dado file the cases of illegal recruitment and estafa
A: When it is committed: simultaneously?
1. By a syndicate carried out by 3 A: Yes, illegal recruitment and estafa cases may be
or more persons conspiring/confederating filed simultaneously or separately. The filing of
with one another or
charges for illegal recruitment does not bar the
2. In large scale committed against filing of estafa, and vice versa. Bugos acquittal in
3 or more persons individually or as a the illegal recruitment case does not prove that she
group. (Sec. 6, 10022) is not guilty of estafa. Illegal recruitment and estafa
are entirely different offenses and neither one
Q: While her application for renewal of her license necessarily includes or is necessarily included in the
to recruit workers for overseas employment was other. A person who is convicted of illegal
still pending Maryrose Ganda recruited Alma and recruitment may, in addition, be convicted of estafa
her 3 sisters, Ana, Joan, and Mavic, for under Article 315, par. 2(a) of the RPC. In the same
employment as housemates in Saudi Arabia. manner, a person acquitted of illegal recruitment
Maryrose represented to the sisters that she had a may be held liable for estafa. Double jeopardy will
license to recruit workers for overseas not set in because illegal recruitment is malum
employment and demanded and received prohibitum, in which there is no necessity to prove
P30,000.00 from each of them for her services. criminal intent, whereas estafa is malum in se, in
However, her application for the renewal of her the prosecution of which, proof of criminal intent is
license was denied, and consequently failed to necessary. (Sy v. People, G.R. No. 183879, April 14,
employ the 4 sisters in Saudi Arabia. The sisters 2010)
charged Maryrose with large scale illegal
recruitment. Testifying in her defense, she
Q: Distinguish Illegal Recruitment from Estafa
declared that she acted in good faith because she

LABOR LAW TEAM:


12 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
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

It is not required that it be

shown

wrongfully
himself

recruiter

NOTE: It

victims were deceived as they

relied

misrepresentation and scheme

that caused

their money

what they later discovered was

a vain hope of obtaining


employment abroad

Illegal recruitment and estafa cases may be filed


simultaneously or separately. The filing of charges for
illegal recruitment does not bar the filing of estafa, and
vice versa.
Double jeopardy will not set

(c)Liabilities

Q: What is the liability of the private employment


agency and the principal or foreignbased
employer?

A: They are jointly and severally liable for any


violation of the recruitment agreement and the
contracts of employment.
knowledge of the principalforeign employer
cannot, therefore, be imputed to its agent Sunace.
agent at the time of the transaction or acquired by him
before its completion, is deemed to be the knowledge of There being no substantial proof that Sunace knew
the principal, at least so far as the transaction is of and consented to be bound under the 2year
concerned, even though in fact the knowledge is not employment contract extension, it cannot be said
communicated to the principal at all. (Leonor v. Filipinas to be privy thereto. As such, it and its owner cannot
Compania, 48 OG 243) be held solidarily liable for and of Montehermozos
claims arising from the 2year employment
Q: Sunace International Management Services extension. (Sunace v. NLRC, G.R. No. 161757, Jan.
(Sunace), deployed to Taiwan Montehermozo as a 25, 2006)
domestic helper under a 12month contract effective
Feb. 1, 1997. The deployment was with the assistance of (d)Pretemination of contract of migrant worker
a Taiwanese broker, Edmund Wang, President of Jet
Crown International Co., Ltd. After her 12month Q: Serrano, a seafarer, was hired by Gallant
contract expired on Feb. 1, 1998, Montehermozo Maritime and Marlow Navigation Co. for 12
continued working for her Taiwanese employer for two months as Chief Officer. On the date of his
more years, after which she returned to the Philippines departure, he was constrained to accept a
on Feb. 4, 2000. Shortly after her return she file before downgraded employment contract for the position
the NLRC against Sunace, one Perez, the Taiwanese of Second Officer, upon the assurance that he
broker, and the employerforeign principal alleging that would be made Chief Officer after a month. It was
she was jailed for three months and that she was not done; hence, he refused to stay on as Second
underpaid. Should Sunace be held liable for the Officer and was repatriated to the Phils. He had
underpayment for the additional two years that she served only 2 months & 7 days of his contract,
worked for her Taiwanese employer under the theory of leaving an unexpired portion of 9 months & 23
imputed knowledge? days.

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

Is the subject clause constitutional? Q: Why is directhiring prohibited?

A: No. The subject clause contains a suspect A:


classification in that, in the computation of the 1. To ensure the best possible
monetary benefits of fixedterm employees who are terms and conditions of employment for
illegally discharged, it imposes a 3month cap on the worker.
the claim of OFWs with an unexpired portion of one 2. To assure the foreign Er that he
year or more in their contracts, but none on the hires only qualified Filipino workers.
claims of other OFWs or local workers with fixed 3. To ensure full regulation of
term employment. The subject clause singles out employment in order to avoid
one classification of OFWs and burdens it with a exploitation.
peculiar disadvantage.
2. REGULATION AND ENFORCEMENT a.
The clause is a violation of the right of Serrano and
other OFWs to equal protection and right to Remittance of foreign exchange earnings
substantive due process, for it deprives him of
property, consisting of monetary benefits, without Q: What is the rule on remittance of foreign
any existing valid governmental purpose. exchange earnings?

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)

Q: What is Directhiring? Q: What is the effect of failure to remit?

A: It is when an employer hires a Filipino worker A:


for overseas employment without going through 1. Workers Shall be suspended or
removed from the list of eligible workers
for overseas employment.

LABOR LAW TEAM:


14 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT

2. Employers Will be excluded from processing of pending workers'


the overseas employment program. applications; and
Private employment agencies shall face 15. For a recruitment/manning
cancellation or revocation of their licenses agency or a foreign principal/ Er to pass
or authority to recruit. (Sec. 9, E.O. 857) on the OFW or deduct from his or her
salary the payment of the cost of
insurance fees, premium or other
b. Prohibited Activities insurance related charges, as provided
under the compulsory worker's insurance
Q: What are prohibited practices in coverage
recruitment/placement (Art. 34.)? 16. Imposing a compulsory and
exclusive arrangement whereby an OFW is
A: required to:
1. Furnishing or publishing any false a. Avail a loan only from
notice/information/document related to specifically designated institutions,
recruitment/employment entities or persons
2. Failure to file reports required by b. To undergo health examinations
SLE only from specifically designated
3. Inducing or attempting to induce a medical, entities or persons, except
worker already employed to quit his seafarers whose medical examination
employment in order to offer him another cost is shouldered by the shipowner
unless the transfer is designed to liberate c. To undergo training of any kind
a worker from oppressive terms and only from designated institutions,
conditions entities
4. Recruitment/placement of workers orpersons,exceptfor
in jobs harmful to public health or recommendatory trainings mandated
morality or to the dignity of the country by principals/shipowners. (Sec. 6,
5. Engaging directly or indirectly in the R.A. 10022)
management of a travel agency
6. Substituting or altering employment c. Regulatory and
contracts without approval of DOLE Visitorial Powers of the
7. Charging or accepting any amount Labor Secretary
greater than that specified by DOLE or
make a worker pay any amount greater Q: What are the regulatory powers of the
than actually received by him Secretary of Labor and Employment (SLE)?
8. Committing any act of
misrepresentation to secure a license or A:
authority 1. Restrict and regulate the
9. Influencing or attempting to recruitment and placement activities of all
influence any person/entity not to employ agencies
any worker who has not applied of 2. Issue orders and promulgate
employment through his agency rules and regulations
10. Obstructing or attempting to
obstruct inspection by SLE or by his Q: What constitute visitorial power?
representatives
11. Withholding or denying travel A:
documents from applicant workers before 1. Access to employers records
departure for monetary considerations and premises at any time of the day or
other than authorized by law night, whenever work is being undertaken
12. Granting a loan to an OFW which 2. To copy from said records
will be used for payment of legal and 3. Question any employee and
allowable placement fees investigate any fact, condition or matter
13. Refusing to condone or renegotiate which may be necessary to determine
a loan incurred by an OFW after his violations or which may aid in the
employment contract has been enforcement of the Labor Code and of any
prematurely terminated through no fault labor law, wage order, or rules and
of his or her own regulation issued pursuant thereto.
14. For a suspended
recruitment/manning agency to engage in Q: Give 4 instances where the visitorial power of
any kind of recruitment activity including the SLE may be exercised under the Labor Code.
the
A: Power to:
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

1. Inspect books of accounts and


records of any person or entity engaged in
recruitment and placement, require it to
submit reports regularly on prescribed
forms and act in violations of any
provisions of the LC on recruitment and
placement. (Art. 37)
2. Have access to employers
records and premises to determine
violations of any provisions of the LC on
recruitment and placement. (Art. 128)
3. Conduct industrial safety
inspections of establishments. (Art. 165)
4. Inquire into the financial activities
of legitimate labor organizations (LLO) and
examine their books of accounts upon the
filing of the complaint under oath and
duly supported by the written consent of
at least 20% of the total membership of
the LO concerned.

Q: Can SLE issue search warrants or warrants of


arrest?
Q: What are the remedies under the Migrant
A: No. Only a judge may issue search and arrest
Workers Act and how may they be enforced?
warrants. Art 38 (c) of the Labor Code is
unconstitutional inasmuch as it gives the SLE the
A:
power to issue search or arrest warrants. The labor
authorities must go through the judicial process. CRIMINAL ACTIONS
RTC
d. Penalties for Illegal Recruitment
Province or city:
1. Where the offense was committed or
Q: What is the consequence of conviction of illegal 2. Where the offended party actually resides
recruitment (IR)? at the same time of the commission of the
offense
A:
MONEY CLAIMS
PENALTIES (under R.A. 10022)
NLRC
Original and exclusive jurisdiction to hear and decide
IR as economic claims arising out of an ErEe relationship or by virtue
sabotage of any law or contract involving Filipino workers for
overseas deployment including claims for actual,
Provided: moral, exemplary and other forms of damages.
1. If person illegally The liability of the principal/ Er and the
recruited is below recruitment/ placement agency for any and all
18 years of age or claims shall be joint and several.
2. Illegal The performance bond to de filed by the
recruitment is recruitment/ placement agency shall be answerable
for all money claims or damages that may be
nonlicensee/non awarded to the workers.
holder If the recruitment/placement agency is a
juridical being, the corporate officers and directors
and partners as the case may be, shall themselves be
jointly and solidarily liable with the corporation or
partnership for the claims and damages.
ADMINISTRATIVE ACTIONS
POEA
LABOR LAW TEAM:
16 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT

Original and exclusive jurisdiction to hear and decide: 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: Any compromise/amicable settlement or


voluntary agreement on money claims inclusive of
damages shall be paid within 4 months from the
approval of the settlement by the appropriate
authority.
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

3. When public welfare so requires. 3. It has concluded a bilateral


(Sec. 4 R.A. 10022) agreement or arrangement with the
government on the protection of the
Q: What are the minimum conditions/ provisions rights of OFWs. . (Sec. 3, R.A. 10022
of overseas employment contracts? amending R.A. 8042)

A: Provided, that the receiving country is taking


1. Guaranteed wages for regular positive, concrete measures to protect the rights of
hours and overtime, not lower than the migrant workers in furtherance of any of the
minimum wage prescribed in all of the ff: guarantees.
a. The host country
b. Bilateral agreements or Note: In the absence of a clear showing that any of the
international conventions ratified by guarantees exists in the country of destination of the
the host country and the Philippines migrant workers, no permit for deployment shall be
c. The Philippines issued by the POEA.
2. Free transportation to and from
the worksite or offsetting benefit Q: What is the rule on repatriation?
3. Free food and accommodation or
offsetting benefit A: GR: The repatriation of the:
4. Just/authorized causes of 1. Worker and the transport of his
termination of the contract or services of personal belongings shall be the primary
the worker responsibility of the agency which
recruited or deployed the worker
Note: An agreement that diminishes the Ees pay and overseas.
benefits as contained in a POEAapproved contract is 2. Remains and transport of the
void, unless such subsequent agreement is approved personal belongings of a deceased worker
by the POEA. and all costs attendant thereto shall be
borne by the principal and/or the local
Q: What is the rule on deployment of OFWs? agency.

A: The State shall allow the deployment of XPNs:


OFWs: 1. If the termination of
employment is due solely to the fault of
1. Only in countries where the the worker, the principal/ Er or agency
rights of Filipino migrant workers are shall not be responsible for the
protected. repatriation of the former and/or his
2. To vessels navigating the foreign belongings
seas or to installations located offshore or 2. In cases of war, epidemic,
on high seas whose owners/Ers are disaster or calamities, natural or man
compliant with international laws and made, and other similar event, and where
standards that protect the rights of the principal or recruitment agency
migrant workers. cannot be identified, the Overseas
3. To companies and contractors Workers Welfare Administration, in
with international operations: Provided, coordination with appropriate
That they are compliant with standards, international agencies, shall take charge
conditions and requirements, as of the repatriation. (Sec.15, R.A. 8042)
embodied in the employment contracts
prescribed by the POEA and in accordance Q: What is the rule on mandatory repatriation of
with internationallyaccepted standards. underage migrant workers?
(Sec. 3, R.A. 10022 amending R.A. 8042)
A: Upon discovery or being informed of the
Q: What are the guarantees of the receiving presence of migrant workers whose ages fall below
country for the protection of the rights of OFWs? the minimum age requirement for overseas
deployment, the responsible officers in the foreign
A: service shall without delay repatriate said workers
1. It has existing labor and social and advise the DFA through the fastest means of
laws protecting the rights of workers, communication available of such discovery and
including migrant workers; other relevant information. The license of a
2. It is a signatory to and/or a recruitment/manning agency which recruited or
ratifier of multilateral conventions, deployed an underage migrant worker shall be
declarations or resolutions relating to the automatically revoked and shall be imposed a fine
protection of workers, including migrant
workers; and
LABOR LAW TEAM:
18 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT

of not less than P500,000 but not more than


P1,000,000. (Sec. 9, R.A. 10022) Labor Arbiter

Q: What are the regulatory and adjudicatory Original and exclusive


functions of the POEA? jurisdiction
claims arising out
A: ErEe relationship or
1. Regulatory It regulates the private by virtue of any law or
contract
sector participation in the recruitment
OFWs including claims
and overseas placement of workers
for:
through its licensing and registration
1. Actual
system.
2. Moral
2. Adjudicatory 3. Exemplary
a. Administrativecases 4.Other
involving violations of licensing rules
and regulations and registration of R.A. 8042)
recruitment and employment
agencies or entities
Q: A seafarer was prevented from leaving the
b. Disciplinary action cases port of Manila and refused deployment without
and other valid reason. His POEAapproved employment
special cases which are contract provides that the employeremployee
administrative in character involving relationship shall commence only upon the
employers, principals, contracting seafarers actual departure from the port in the
partners and Filipino migrants. point of hire. Is the seafarer entitled to relief under
the Migrant Workers Act, in the absence of an
Q: What are the grounds for disciplinary action of employeremployee relationship?
OFWs?
A: Yes. Despite the absence of an employer
A: Under R.A. 8042, these are: employee relationship, the NLRC has jurisdiction
1. Prostitution over the seafarers complaint. The jurisdiction of
2. Unjust refusal to depart for the labor arbiters is not limited to claims arising from
worksite ErEe relationships. Sec. 10 of the Migrant Workers
3. Gunrunning or possession of deadly Act provides that the labor arbiters shall have
weapons jurisdiction over claims arising out of an ErEe
4. Vandalism or destroying company relationship or by virtue of any law or contract
property involving Filipino workers for overseas deployment
5. Violation of the laws and sacred including claims for actual, moral, exemplary and
practices of the host country and other forms of damages. Since the present case
unjustified breach of employment involves the employment contract entered into by
contract petitioner for overseas employment, his claims are
6. Embezzlement of funds of the cognizable by the labor arbiters of the NLRC.
company or fellow worker entrusted for (Santiago v. CF Sharp Crew Management,G.R. No.
delivery to relatives in the Phils. 162419, July 10, 2007)
7. Creating trouble at the worksite or
in the vessel Q: What matters fall outside the jurisdiction of the
8. Gambling POEA?
9. Initiating or joining a strike or work
stoppage where the laws of the host A:
country prohibits strikes or similar actions 1. Foreign judgments such claim
10. Commission of felony punishable by must be brought before regular courts.
Philippine laws or by the host country POEA is not a court; it is an administrative
11. Theft or robbery agency, exercising adjudicatory or quasi
12. Drunkenness judicial functions.
13. Drug addiction or possession or 2. Torts falls under the provisions
trafficking of prohibited drugs of the Civil Code.
14. Desertion or abandonment

Q: What is the distinction between the jurisdiction


of the LA and POEA?

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

Employment of NonResident Aliens XPNS:


1. Diplomatic services and foreign
Q: What is required in the employment of non govt officials
resident aliens? 2. Officers and staff of intl
organizations and their legitimate spouses
A: Any alien seeking admission to the Phil. for 3. Members of governing board
employment purposes and any domestic or foreign who has voting rights only
employer (Er) who desires to engage an alien for 4. Those exempted by special laws
employment in the Philippines: 5. Owners and representatives of
1. Shall obtain an employment foreign principals who interview Filipino
permit from the DOLE applicants for employment abroad
2. The permit may be issued to a 6. Aliens whose purpose is to
non resident alien or to the applicant Er teach, present and/or conduct research
after a determination of the non studies
availability of a person in the Phil. who is 7. Resident aliens. (D.O. 7506,
competent, able and willing at the time of May 31, 2006)
application to perform the services for
which the alien is desired Q: May the nonresident alien transfer
3. For an enterprise registered in employment after issuance of the employment
preferred areas of investments, said permit?
permit may be issued upon
recommendation of the govt agency A: After the issuance of an employment permit, the
charged with the supervision of said alien shall not transfer to another job or change his
registered enterprise employer without prior approval of the Secretary of
Labor.
Q: The DOLE issued an alien employment permit
for Earl Cone, a U.S. citizen, as sports consultant Q: What is required for immigrants and resident
and assistant coach for GMC. Later, the Board of aliens?
Special Inquiry of the Commission on Immigration
and Deportation approved Cones application for a A: An Alien Employment Registration Certificate.
change of admission status from temporary visitor
to prearranged employee. A month later, GMC Q: What is the duration of the employment
requested that it be allowed to employ Cone as permit?
fullfledged coach. The Dole Regional Director
granted the request. The Basketball Association of A: GR: Minimum of 1 year
the Phils. appealed the issuance of said permit to
the SLE who cancelled Cones employment permit XPN: Unless revoked and subject to renewal
because GMC failed to show that there is no
person in the Philippines who is competent and Q: May aliens be employed in entities engaged in
willing to do the services nor that the hiring of nationalized activities?
Cone would redound to the national interest. Is
the act of SLE valid? A: GR: No.

A: Yes. GMCs claim that hiring of a foreign coach is XPNs:


an Ers prerogative has no legal basis. Under Art. 40 1. Sec. of Justice specifically
of the LC, an Er seeking employment of an alien authorizes the employment of technical
must first obtain an employment permit from the personnel
DOLE. GMCs right to choose whom to employ is 2. Aliens are elected members of
limited by the statutory requirement of an the board of directors or governing body
employment permit. (GMC v. Torres, G.R. No. 9366, of corporations or associations or
April 22, 1991) 3. Enterprises registered under the
Omnibus Investment Code in case of
Art. 41. Prohibition Against Transfer of Employment technical, supervisory or advisory
positions, but for a limited period.
Q: Who are required to obtain an employment
permit?

A: GR: Only nonresident aliens;

LABOR LAW TEAM:


20 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT

Art. 25. Private Sector Participation in the 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

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

Recruitment and Employment of Land


Based Workers)

Art. 26. Travel Agencies Prohibited to Recruit

Q: What is the rule on recruitment of travel


agencies and sales agencies of airline companies?

A: They are prohibited from engaging in the


business of recruitment and placement of workers
for overseas employment whether for profit or not.

Q: WTTA is a wellknown travel agency and an


authorized sales agent of the PAL. Since majority of
its passengers are overseas workers, WTTA applied
for a license for recruitment and placement
activities. It stated in its application that its
purpose is not for profit but to help Filipinos find
employment abroad. Should the application be
approved?

A: The application should be disapproved, as it is


prohibited by Art. 26 of the LC, to wit: "Art 26.
Travel agencies and sales agencies of airline
companies are prohibited from engaging in the
business of recruitment and placement of workers
for overseas employment whether for profit or
not." Rule I, Part II POEA Rules and Regulations
Governing the Recruitment and Employment of
LandBased Workers (2002) disqualifies any entity
having common director or owner of travel agencies
and sales agencies of airlines, including any business
entity from the recruitment and placement of
Filipino workers overseas, whether they derive
profit or not. (2006 Bar Question)

Art. 32. Fees to be Paid by Workers

Q: When may a worker be charged any fee?

A: Only when:

1. He has obtained work through


recruiters efforts, and
2. The worker has actually
commenced working

Note: A land based agency may charge and collect


from its hired workers a placement fee in an amount
equivalent to 1 month salary, exclusive of
documentation costs.

Q: What are the only authorized payments that


may be collected from a hired worker?

A:
1. Placement fee in an amount
equivalent to one months salary of the
worker and
2. Documentation costs.

LABOR LAW TEAM:


22 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

C. LABOR STANDARDS Q: Who are managerial Ees?

1. HOURS OF WORK A: Those whose primary duty consists of the


management of the establishment in which they are
a. Coverage/ Exclusions employed or a department or subdivision thereof,
and other officers or members of the managerial
Q: Who determines working conditions? staff.

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])

XPN: Q: Why are managerial Ees not covered?


1. Govt employees
2. Managerial employees A: They are employed by reason of their special
3. Field personnel training, expertise or knowledge and for positions
4. The employers family members who requiring the exercise of discretion and
depend on him for support independent judgment. Value of work cannot be
5. Domestic helpers and persons in the measured in terms of hours.
personal service of another, and
6. Workers who are paid by results as Q: Who are field personnel?
determined under DOLE regulations
A: They are:
Q: Who are government employees (Ees)?
1. nonagricultural employees
A: They are Ees of the: 2. who regularly perform their duties
3. away from the principal place of
1. National Government business or branch office of the employer;
2. Any of its political subdivisions and
3. Including those employed in GOCCs 4. whose actual hours of work in
with original charters. the field cannot be determined with
reasonable certainty.
Q: What law governs government Ees?
Q: Who are workers paid by results?
A: The Civil Service Law, rules and regulations.
A: They are:

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

1. paid based on the work A:


completed; and 1. All time during which an Ee is
2. not on the time spent in working required to be:
3. including those who are paid on a. On duty, or
piece work, takay, pakiaw, or task b. At the Ers premises, or
basis if their output rates are in c. At a prescribed workplace
accordance with the standards prescribed.
2. All time during which an Ee is
Q: Who are domestic helpers and persons in the suffered or permitted to work. (Sec. 3,
personal service of another? Rule I, Book III, IRR)

A: Those who: Q: What are the principles in determining hours


worked?
1. perform services in the
employers (Er) home which are usually A:
necessary or desirable for the 1. All hours which the Ee is
maintenance or enjoyment thereof; or required to give to his Er regardless of
2. minister to the personal comfort, whether or not such hours are spent in
convenience or safety of the Er as well as productive labor or involve physical or
the members of his Ers household. mental exertion.
2. Rest period is excluded from
Q: A house personnel was hired by a ranking hours worked, even if Ee does not leave
company official to maintain a staff house his workplace, it being enough that:
provided for the official. The personnel is being a. He stops working
paid by the company itself. Is the house personnel b. May rest completely
a domestic servant of the company official? c. May leave his
workplace, to go elsewhere,
A: No, the personnel is not a domestic helper but a whether within or outside the
regular employee of the company. premises of the workplace
3. All time spent for work is
Q: What are the 3 groups of employees (Ees) considered hours worked if:
under the LC? a. The work performed
was necessary
A: b. If it benefited the Er
1. Managerial Ee One who is c. Or the Ee could not
vested with the powers or prerogatives to abandon his work at the end of
lay down and execute management his normal working hours
policies and/or to hire, transfer, suspend, because he had no replacement
layoff, recall, discharge, assign or d. Provided, the work
discipline Ees. was with the knowledge of his Er
2. Supervisory Ee those who in the or immediate supervisor
interest of the Er, effectively recommend 4. The time during which an Ee is
such managerial actions if the exercise of inactive by reasons of interruptions in his
such authority is not merely routinary or work beyond his control shall be
clerical in nature but requires the use of considered working time:
independent judgment. a. If the imminence of
3. RankandFile Ee all Ees not the resumption of the work
falling within any of the above definitions. requires the Ees presence at the
(Art. 212[m]) place of work or
b. If the interval is too
b. Normal hours of work brief to be utilized effectively
and gainfully in the Ees own
Q: What are the normal hours of work of an interest. (Sec. 4, Rule I, Book III,
Ee? IRR)

A: It should not exceed 8 hours in a general working


day.

Note: Normal hours of work may be shortened or


compressed.

Q: What are considered hours worked?

LABOR LAW TEAM:


24 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

consultations with the workers and supervisors, a


(a) Exceptions: Health consensus is reached on how to deal with
Personnel & Compressed deteriorating economic conditions and it is
Work Week sufficiently proven that the company was suffering
from losses. Under the Bureau of Working
Health Personnel Conditions bulletin, a reduction of the number of
regular working days is valid where the
Q: What are the hours of work of health arrangement is resorted to by the employer to
personnel? prevent serious losses due to causes beyond his
control, such as when there is a substantial slump in
A:GR: 8 hours/5 days (40hour work week), the demand for his goods or services or when there
exclusive of time for meals. is lack of raw materials. There is one main
consideration in determining the validity of
XPN: Where the exigencies of the service reduction of working hours that the company was
require that such personnel work for 6 days or suffering from losses. A year of financial losses
48 hours, they shall be entitled to an additional would not justify a reduced workweek. (Linton
compensation of at least 30% of their regular Commercial v. Hellera, G.R. No. 163147, October 10,
th
wage for work on the 6 day. 2007)

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)

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

Note: Where during meal period, the laborers are


c. Work interruption due to brownoutS required to stand by for emergency work, or where the
meal hour is not one of complete rest, such is
Q: What are the guidelines on power considered OT. (Pan Am vs. Pan Am Ees Association,
interruptions? G.R. No. L16275, Feb. 23, 1961)

A: Rest periods or coffee breaks running from 5 to 20


minutes shall be considered as compensable working
1. Brownouts of short duration but
time. (Sec. 7, Rule I, Book III, IRR)
not exceeding 20 minutes shall be treated
as worked or compensable hours whether
Q: Are meal periods provided during OT work
used productively by the employees (Ees)
compensable?
or not.
A: Yes, since the 1 hour meal period (non
2. Brownouts running for more than
compensable) is not given during OT work because
20 minutes may not be treated as hours
the latter is usually for a short period and to deduct
worked provided any of the following
from the same would reduce to nothing the Ees OT
conditions are present:
work. Thus, the 1 hour break for meals during OT
a. The Ees can leave their
should be treated as compensable.
workplace or go elsewhere within or
without the work premises; or
Q: What are the instances where meal periods
b. The Ees can use the time shortened to not less than 20 minutes is
effectively for their own interest. compensable or not compensable?
3. In each case, the Er may extend A:
the working hours of his Ees outside the 1. Compensable At the instance
regular schedules to compensate for the of Employer, when:
loss of productive manhours without a. Work is nonmanual in nature or
being liable for OT pay. does not involve strenuous physical
exertion;
4. Industrial enterprises with one or b. Establishment regularly
two work shifts may adopt any of the operates less than 16 hours a day;
work shift prescribed for enterprises with c. Work is necessary to prevent
3 work shifts to prevent serious loss or serious loss of perishable goods.
damage to materials, machineries, or d. Actual or impending emergency
equipment that may result case of power or there is urgent work to be
interruptions. (Policy Instruction No. 36) performed on machineries and
equipment to avoid serious loss
d. Meal Break which the Er would otherwise suffer.
(Sec. 7, Rule I, Book III, IRR)
Q: What is the duration of the meal period?
2. Not Compensable Ee
A: Every Er shall give his Ees not less than 60 requested for the shorter meal time so
minutes or 1 hour timeoff for regular meals. that he can leave work earlier than the
previously established schedule.
Q: Is the meal period compensable?
Requisites:
a. Ees voluntarily agree in writing
A: Being timeoff, it is not compensable. Employee
and are willing to waive OT pay for
must be completely relieved from duty.
the shortened meal period;
Q: When is the meal period considered b. No diminution in the salary and
compensable? other fringe benefits of the Ees which
are existing before the effectivity of
A: It is compensable where the lunch period or the shortened meal period;
meal time: c. Work of the Ees does not
involve strenuous physical exertion
1. Is predominantly spent for the and they are provided with adequate
employers benefit; or coffee breaks in the morning and
2. Where it is less than 20 minutes afternoon;

LABOR LAW TEAM:


26 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

d. Value of the benefits to travel to his regular place of


derived by the Ees from the business or some other work site.
proposed work arrangements is b. Done through a conveyance provided
equal to or by the employer (Er).
commensurate with the c. Done under the supervision and
compensation due them for the control of the Er.
shortened meal period as well as the d. Done under vexing and
OT pay for 30 minutes as determined dangerous circumstance.
by the Ees concerned;
e. OT pay will become due 2. Travel that is all in a days work
and demandable after the new time time spent in travel as part of the
schedule employees (Ees) principal activity
f. Arrangement is of e.g. travel from job site to job site during
temporary duration. the work day, must be counted as working
hours.
e. Idle time, waiting time, commuting
time/ travel time, whether part of hours of work 3. Travel away from home
or not GR:
a. Travel that requires an overnight
Q: When is an Ee considered working while on stay on the part of the Ee when it
call? cuts across the Ees workday is clearly
working time.
A: When Ee is required to remain on call in the Ers b. The time is not only hours
premises or so close thereto that he cannot use the worked on regular workdays but also
time effectively and gainfully for his own purpose. during corresponding working hours
on nonworking days. Outside of
Q: When idle time is considered working time? these regular working hours, travel
away from home is not considered
A: When the employee is idle or inactive by reason working time.
of interruptions beyond his control shall be
considered working time. XPN: During meal period or when Ee is
permitted to sleep in adequate facilities
Q: When is waiting time considered working furnished by the Er.
time?
Q: What are the conditions in order for lectures,
A: meetings and training programs to be not
1. If waiting is an integral part of his considered as working time?
work, or
2. The Ee is required or engaged by A: All of the ff. conditions must be present:
the Er to wait (engaged to wait) 1. Attendance is outside of the
employers regular working hours
Note: The controlling factor is whether waiting time 2. Attendance is in fact voluntary and
spent in idleness is so spent predominantly for the Ers 3. The employee does not perform
benefit or for the Ee. any productive work during such
attendance.
Q: When is waiting time not considered working
time? f. Overtime work: Undertime
offset by overtime, Waiver of
A: When the Ee is waiting to be engaged: idle time overtime
is not working time; it is not compensable.
Q: What is overtime work (OT)?
Q: When is travel time considered working
time? A: Work performed beyond 8 hours within the
workers 24 hour workday.
A:
1. Travel from home to work Note: Express instruction from the employer (Er) to the
employee (Ee) to render OT work is not required for
GR: Normal travel from home to work is the Ee to be entitled to OT pay; it is sufficient that the
not working time. Ee is permitted or suffered to work. However, written
authority after office hours during rest days
XPNS:
a. Emergency call outside his
regular working hours where he is
required
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

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):

Q: What is a work day? if done on a special holiday OR rest day:


30% of 130% of RW
A: The 24hour period which commences from the
time the employee regularly starts to work If done on a special holiday AND rest day:
e.g. If the worker starts to work 8 am today, the 30% of 150% of RW
workday is from 8 am today up to 8 am tomorrow.
if done on a regular holiday:
Note: Minimum normal working hours fixed by law 30% of 200% of RW
need not be continuous to constitute the legal working
day. Q: What is the basis of computing the OT pay and
additional remuneration?
Q: What is the rationale behind OT pay?
A: Regular wage which includes the cash wage only,
A: Employee is made to work longer than what is without deduction on account of facilities provided
commensurate with his agreed compensation for by the employer. (Art. 90)
the statutory fixed or voluntarily agreed hours of
labor he is supposed to do. (PNB vs. PEMA and CIR, Q: In lieu of OT pay, the employee was given
G.R. No. L30279, July 30, 1982) permission to go on leave on some other day, is
that valid?
Discourages the employer (Er) from requiring such
work thus protecting the health and wellbeing of A: No. Permission given to the employee (Ee) to go
the worker, and also tend to remedy unemployment on leave on some other day of the week shall NOT
by encouraging Ers to employ others workers to do exempt the employer from paying the additional
what cannot be accomplished during the normal compensation required because it would prejudice
hours of work. the Ee, for he will be deprived of the additional pay
for the OT work he has rendered and which is
Q: Distinguish Overtime pay from premium pay. utilized to offset the undertime he may have
incured. Undertime could be charged against the
A: Ees accrued leave.
OVERTIME PAY
Q: Socorro is a clerktypist in the Hospicio de San
Additional Jose, a charitable institution dependent for its
compensation for existence on contributions and donations from
work performed well wishers. She renders work 11 hours a day but
beyond has not been given OT pay since her place of work
on ordinary days is a charitable institution. Is Socorro entitled to OT
(within pay? Explain briefly.
workers
workday) A: Yes. Socorro is entitled to OT compensation. She
does not fall under any of the exceptions to the
coverage of Art. 82, under the provisions of hours of
Q: What are the OT pay rates? work. The Labor Code is equally applicable to non
profit institutions. A covered Ee who works beyond
A: 8 hours is entitled to OT compensation.
PAY RATES (2002 Bar Question)
OT during a regular working day
Q: Flores applied for the position of driver in the
Additional compensation of 25% of the regular wage motorpool of Gold Company, a multinational
corporation. Danilo was informed that he would
OT during a holiday or rest day frequently be working OT as he would have to
drive for the company's executives even beyond
the ordinary 8hour work day. He was provided
with a contract of employment wherein he would
be paid a monthly rate equivalent to 35 times his
daily wage, regular sick and vacation leaves, 5 day
leave with pay every month and time off with pay

LABOR LAW TEAM:


28 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

when the company's executives using the cars do 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

Q: May an employee be compelled to render OT Q: Can undertime (UT) offset OT?


work?
A: Where a worker incurs undertime hours during
A:GR: No. OT work is voluntary. his regular daily work, said undertime hours should
not be offset against the overtime hours on the
XPN: Compulsory OT work in any of the same day or on any other day. It is both prohibited
following situations: by the statute and by jurisprudence.

1. Urgent work to be performed on (b)Waiver of Overtime pay


machines and installations in order to
avoid serious loss or damage to the Er or Q: Can the right to OT pay be waived?
some other cause of similar nature
2. Work is necessary to prevent loss or A: GR: The right to OT pay cannot be waived as it
damage to perishable goods is governed by law and not merely by the
3. In case of imminent danger to the agreement of the parties.
public safety due to an actual or
impending emergency in the locality XPN:
caused by serious accidents, fire, flood, 1. If the waiver is done in exchange
typhoon, earthquake, epidemic or other for certain valuable benefits and
disaster or calamity privileges, which may even exceed the OT
4. Country is at war Pay, waiver may be permitted.
5. Completion or continuation of the 2. Compressed work week
work started before the 8th hour is
necessary to prevent serious obstruction g.Nightwork
or prejudice to the business operations of
the Er Q: What is nightwork?
6. Any other national or local
emergency has been declared A: Any and all work rendered between 6:00 pm
7. Necessary to prevent loss of life or and 6:00 am. (National Rice & Corn Corp. v. NARIC,
property. 105 Phil 891)
Note: There should be payment of additional Q: What is night work prohibition with regard to
compensation. Ees refusal to obey the order of the Er
women workers?
constitutes insubordination for which he may be
subjected to disciplinary action.
A: GR: No woman regardless of age
shall be employed or permitted to work,
Q: The employment contract requires work for
with or without compensation in any:
more than 8 hours a day with a fixed wage
inclusive of OT pay. Is that valid?
1. Industrial undertaking or branch
thereof between 10pm and 6am of the
A: It depends.
following day.
1. When the contract of employment 2. Commercial or nonindustrial
requires work for more than 8 hours at undertaking or branch thereof, other than
agricultural,

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

between midnight and 6am of the


following day. XPN:
3. Agricultural undertaking at 1. Ees of the Govt and any of its
nighttime unless she is given period of political subdivisions, including GOCCs.
rest not less than 9 consecutive hours. 2. Retail and service
establishments regularly employing not
XPNS: more than 5 workers.
1. Actual or impending emergencies 3. Includes task and contract basis
a. Caused by serious accident, 4. Domestic helpers and persons in
fire, the personal service of another.
flood,typhoon, earthquake, 5. Field personnel and Ees whose
epidemic, other disasters, or calamity time and performance is unsupervised by
the employer
b. To prevent loss of life or property 6. Managerial Ees
or
c. In case of force majeure or Q: May an employee waive the right to NSD?
d. Imminent danger to public safety
2. Urgent work A: GR: No, such waiver is against public
a. To be performed on machineries, policy. (Mercury Drug Co., Inc. vs. Dayao, et al.,
equipment or installations, G.R. No. L30452, Sep. 30, 1982)
b. To avoid serious loss which the Er
would otherwise suffer XPN: Higher/better benefits
3. Work is necessary to prevent
serious loss to perishable goods h.CBA provision visvis overtime work
4. Woman Ees
a. Holds a responsible position of Q: May the overtime rate be subject to stipulation
managerial or technical nature, or of the Ee and Er?
b. Has been engaged to provide
health and welfare services A: Generally, the premium for work performed on
5. Nature of the work the employees rest days or on special days or
a. Requires the manual skill and regular holidays are included as part of the regular
dexterity of women workers and rate of the employee in the computation of
b. The same cannot be performed overtime pay for any overtime work rendered on
with equal efficiency by male said days especially if the employer pays only the
workers minimum overtime rates prescribed by law. The
6. Women Ees are immediate employees and employer, however, may stipulate in
members of the establishment or their collective agreement the payment of overtime
undertaking rates higher than those provided by law and exclude
7. In analogous cases exempted by the premium rates in the computation of overtime
the SLE in appropriate regulations. (Art. pay. Such agreement may be considered valid only if
131) the stipulated overtime pay rates will yield to the
employees not less than the minimum prescribed
Note: The operation of Call Contract Centers which by law.
provides offshore case solutions to US based clients
who phone in to conduct product inquiries and 2.WAGES
technical support, operating for 24/7, has been
exempted from the prohibition considering the Q: What is a wage?
inevitable time difference between the US and the
Phils. and the peak time for its operation is between A: It is the remuneration or earnings, however
8:00 pm to 10:00 am Manila time, thereby making it designated, capable of being expressed in terms of
necessary for 80% of its Ees, including women, to work money, whether fixed or ascertained on a time,
during graveyard shift. (BWCWHSD Opinion No. 491, s. task, piece, or commission basis, or other method
2003) of calculating the same, payable by an employer (Er)
to an employee (Ee) under a written or unwritten
Q: What is night shift differential (NSD)? contract of employment:

A: It is additional compensation of not less than 1. For work done or to be done, or


10% of an Ees regular wage for every hour worked for services rendered or to be rendered;
between 10:00 pm to 6:00 am, whether or not such and includes
period is part of the workers regular shift.

Q: Who are entitled to NSD?

A: GR: NSD applies to all employees (Ees).


LABOR LAW TEAM:
30 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

2. Fair and reasonable value of board, c.Facilities and Supplements


lodging, or other facilities customarily
furnished by the Er to the Ee as Q: Distinguish between facilities and supplement
determined by SLE.
A:
Q: What do you mean by customary?
FACILITIES
A: It is founded on longestablished and constant
practice connoting regularity.
Items
Q: What do you mean by fair and reasonable
value? necessary for the laborers

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

Q: What does a fair days wage for a fair days


labor mean (no work no pay)? Note: Does not include tools

A: GR: If there is no work performed of trade or articles / services


by the Ee, without the fault of the Er, there
can be no wage or pay. primarily
the Er or necessary to the
XPN: The laborer was able, willing and ready to
work but was:
1. Prevented by management;
conduct of the Ers business.
2. Illegally locked out;
3. Illegally suspended;
4. Illegally dismissed Forms part of the wage
5. Otherwise illegally prevented from Deductible from wage
working. (Aklan Electric Coop. v. NLRC, For the benefit of the
G.R. No. 129246, Jan. 25, 2000) worker and his family.

b.Coverage and Exclusions


Q: What is the criterion in determining whether an
Q: To whom does the title on wages apply? item is a supplement or facility?

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

Q: Distinguish between wage and salary?

A:

GR: Not subject to

execution

e.Wage Distortion

Q: What is wage distortion (WD)?

A: A situation where an increase in wage results in


the elimination or severe contraction of intentional
quantitative differences in wage or salary rates
between and among the Eegroups in an
establishment as to effectively obliterate the
distinctions embodied in such wage structure based
on skills, length of service or other logical bases of
differentiation.

Q: What are the elements of WD?

A:
1. 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.

LABOR LAW TEAM:


32 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

Q: Can the issue of WD be raised in a notice of 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?

A: A: GR: Benefits being given to employees


(Ees) cannot be taken back or reduced unilaterally
by
the employer (Er) because the benefit has
Not become part of the employment contract,
contract. whether written or unwritten.
entered into only by an
exclusive XPN: To correct an error, otherwise, if the error is
agent or unit. not corrected for a reasonable time, it ripens into
If a company policy and Ees can demand it as a
matter of right.
better benefits then the
employees
Q: When is ND of benefits applicable?
entitled to the same.
A: It is applicable if it is shown that the grant of
Q: Can a CBA provision regarding wages prevail benefit:
over a Wage Order?
1. Is based on an express policy of
A: Yes, where the CBA provides a wage or salary to the law; or
be received by the employees which is more than 2. Has ripened into practice over a
the amount set by the Wage Order, whether issued long period of time and the practice is
prior to or after the conclusion of the CBA, it is consistent and deliberate and is not due
incumbent upon the employer to compensate the to an error in the construction/
employees according to the provisions of the CBA application of a doubtful or difficult
with respect to wages. question of law.

h.Workers preference in case of bankruptcy


Q: Meycauayan College Faculty and Personnel
Association as the employees union in
Q: What is bankruptcy?
Meycauayan College, admits that its members
were paid all the increases in pay as mandated
law. It appears however that in 1987, shortly after A: Bankruptcy is referred to in the Philippines as
union President Joy Bugo turned over the Insolvency. It denotes the state of an entity or
presidency, she discovered that Art. IV of the CBA, person that has liabilities greater than its assets.
which provides for higher salary increase was not
implemented. May the union claim the difference Q: What happens if the Er business experiences
between their old salaries and those provided by bankruptcy or liquidation?
said CBA provision?
A: His workers shall enjoy first preference as
regards their wages and monetary claims, any
A: Yes, the terms and conditions of a collective provision of the law to the contrary
bargaining contract constitute the law between the notwithstanding.
parties. Beneficiaries thereof are therefore, by
right, entitled to the fulfillment of the obligation Q: What are the principles underlying the
prescribed therein. Consequently, to deny binding preference?
force to the CBA would place a premium on a
refusal by a party thereto to comply with the terms A:
of the agreement. Such refusal would constitute an
unfair labor practice.

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

1. Declaration of bankruptcy or mortgagee of property. Was the Labor Arbiter


judicial liquidation before enforcement of correct in his decision?
the workers preferential right;
2. Filing of claims by workers; A: No. The preference of credits established
3. The right does not constitute a in Art. 110 of the LC cannot be invoked in the
lien to the property of the insolvent absence of any insolvency proceedings, declaration
debtor in favor of workers. (DBP vs. NLRC, of bankruptcy, or judicial liquidation. (DBP v. Santos,
G.R. No. 82763 Mar. 19, 1990 and G.R. G.R. No. 75801, March 20, 1991). (2003 Bar
No. 97176, Mar. 18, 1993); Question)
4. The preference in favor of the Ees
applies to discharge of funds. The Q: Distinguish the mortgage created under the
st
preference does not only cover unpaid Civil Code from the right of 1 preference created
wages, it also extends to termination pay by the LC as regards the unpaid wages of workers.
and other monetary claims; Explain.
Note: Termination pay, after all, is
considered as additional remuneration for A: A mortgage directly subjects the property upon
services rendered to the employer for a which it is imposed, whoever the possessor may be,
certain period of time; it is computed on the to the fulfillment of the obligation for which it was
basis of length of service. (PNB vs. Cruz, G.R. constituted. It creates a real right which is
No. 80593, Dec. 18, 1989) enforceable against the whole world. It is therefore
5. Applicable only to ordinary a lien on an identified real property.
preferred credit, hence, must yield to
special preferred credits. Mortgage credit is a special preferred credit under
the Civil Code in the classification of credits. The
Q: Are workers preferred than the tax claims of preference given by the LC when not attached to
the Govt? any specific property is an ordinary preferred credit.
(1995 Bar Question)
A: No. Art. 110 did not sweep away the overriding
preference accorded under the scheme of the Civil i.Labor Code provisions for wage protection
Code to tax claims of the government.
Q: What are the Labor Code provisions for wage
Q: Is worker preference applicable if the Er protection
corporation is under rehabilitation?
A:
A: No. Suspension of payments order by the SEC Art. 112. NonInterference in Disposal of WagesNo
mandates the holding in abeyance the filing or the employer shall limit or otherwise interfere with the
proceedings on labor cases against an Er who is freedom of any employee to dispose of his wages.
under rehabilitation to give the Er the chance to He shall not in any manner force, compel or oblige
concentrate on how to revive his business and not his employees to purchase merchandise,
be distracted in trying to defend itself in labor cases commodities or other properties from the employer
filed against it. (Rubberworld, Inc. v. NLRC, G.R. No. or from any other person, or otherwise make use of
126773, April 14, 1999) any store or service of such employer or any other
person.
Q: Premiere Bank, being the creditormortgagee of
XYZ & Co., a garment firm, foreclosed the Art. 113 Wage DeductionNo employer in his own
hypothecated assets of the latter. Despite the behalf or in behalf of any person, shall make any
foreclosure, XYZ & Co. continued its business deduction from the wages of his employees, except:
operations. A year later, the bank took possession
of the foreclosed property. The garment firm's
business operations ceased without a declaration (a) In cases where the worker is
of bankruptcy. Caspar, an employee of XYZ & Co., insured with his consent by the employer,
was dismissed from employment due to the and the deduction is to recompense the
cessation of business of the firm. He filed a employer for the amount paid by him as
complaint against XYZ & Co. and the bank. The premium on the insurance;
Labor Arbiter, after hearing, so found the company (b) For union dues, in cases where
liable, as claimed by Caspar, for separation pay. the right of the worker or his union to
Premiere Bank was additionally found subsidiarily check off has been recognized by the
liable upon the thesis that the satisfaction of labor employer or authorized in writing by the
benefits due to the Ee is superior to the right of a individual worker concerned; and

LABOR LAW TEAM:


34 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

(c) In cases where the employer is 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?

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

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?

LABOR LAW TEAM:


36 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

A: A method of minimum wage adjustment (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?

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

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 is the rule when an Ee volunteers to work


on his rest day under other circumstances?

A: He shall express it in writing subject to additional


compensation. (Sec. 6[2], Rule III, Book III, IRR)

Q: What is premium pay?

A: It is the additional compensation for work


rendered by the employee on days when normally
he should not be working such as special holidays
and weekly rest days.

Q: Can the Er and Ee agree on the rate of premium


pay other than that provided by law?

A: Yes. Nothing shall prevent the Er and his Ee or


their representatives from entering into any
agreement with terms more favorable to the Ees
Provided: It shall not be used to diminish any
benefit granted to the Ees under existing laws,
agreements and voluntary Er practices. (Sec. 9, Rule Note: Holiday work provided under Art.93 pertains to
III, Book III, IRR) special holidays or special days.

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.Right to Holiday Pay

Q: What is holiday pay (HP)?

A: It is a premium given to employees (Ees)


pursuant to law even if he has not been suffered to
work on a regular holiday. It is limited to the 11
regular holidays, also called legal holidays listed by
law. The employee (Ee) should not have been
absent without pay on the working day preceeding
the regular holiday.

Q: What are the classes of special days (SD)?

A:
1. National Special Public
Holiday GR: Non working days

XPN: Otherwise declared by the


President

2. Local Special Public Holiday


Regular working day. (LOI 814 as
amended by LOI 1087)

NATIONAL SPECIAL DAYS


All Saints Day
Last Day of the Year
Ninoy Aquino Day
Other days declared by law
1.

2.
3.

4.

LOCAL SPECIAL DAYS


Those declared by:

Q: What are regular holidays (RH)?


Q: What are Muslim Holidays (MH)?
considered
Proclamation No. 18) A: The MHs, except Eidl Fitr, are observed in
specified Muslim areas. All private corporations,
offices, agencies and entities or establishments
REGULAR HOLIDAYS
operating within the designated Muslim provinces
New Years Day and cities are required to observe MH.

Maundy Thursday Q: When shall Eidl Fitr and/or Eidl Adha be


declared a national holiday?
Good Friday
A: The proclamation declaring a national holiday for
the observance of Eidl Fitr and/or Eidl Adha shall
Eidl Fitr be issued:

Araw ng Kagitingan 1. After the approximate date of the


Islamic holiday has been determined in
accordance with the:
Labor Day a. Islamic Calendar (Hijra) or
Independence Day b. Lunar Calendar or
c. Upon astronomical calculations
National Heroes Day d. Whichever is possible or convenient
2. The Office of Muslim Affairs shall
inform the Office of the President on
Bonifacio Day
which day the holiday shall fall. (Sec.2,
Proc. No. 1841)
Christmas Day
Q: Can a Christian employee (Ee) working within
the Muslim area be compelled to work during MH?
Rizal Day
A: No. Christians working within the Muslim areas
may not report for work during MH. Not only
Muslim but also Christian Ee in the designated
Note: RA 9492 has already been superseded by Presidential provinces and cities are entitled to HP on the MH.
Proclamation No. 18 issued by President Benigno C. Aquino
(SMC v. CA, G.R. 146775, Jan. 30, 2002)
III placing the observance of regular holidays and national
special days according to their respective dates in the
calendar.
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: 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.

Q: Distinguish RH from SD. Q: May an Er require an Ee to work on RH?

A: A: Yes. But Ee shall be compensated twice his


REGULAR HOLIDAY regular rate.

Q: What are the rates of compensation for RH on


Regular pay
Ees regular workday and RH on Ees rest day?
(subject
A:
conditions FORMULAS TO COMPUTE WAGES ON
Ees) REGULAR HOLIDAYS (RH)
(M.C.No.10, Series of 2004)
RH on Ees regular
RH on Ees rest day
workday
2x regular pay (200%)
If unworked
100%
100%
e.g. 300 Php regular wage
Set by law e.g. 300 Php (RW)
(RW)
Limited to those provided
If worked (1st 8 hrs)

under Art. 94, LC


200%
Q: Who are entitled to HP?
e.g. 300(RW)
A: GR: All employees (Ees) are entitled. (Sec.1,
Rule IV, Book III, IRR) + 300
600 = Total Wage (TW)
XPNS:
1. Govt Ees and any of its political
If worked (OT)(excess of 8 hrs)
subdivisions, including GOCCs (with
230%
original charter) 230% + 30% of hourly
2. Retail and service establishments 200% + 30% of hourly rate rate on said date on
regularly employing less than 10 workers said date
3. Domestic helpers and persons in
the personal service of another Q: What is an important condition that should be
4. Ee engaged on task or contract met in order to avail/receive the single HP?
basis or purely commission basis
5. Members of the Family of the Er A: The Ee should not have been absent without pay
who are dependent on him for support on the working day preceding the RH.
6. Managerial Ee and other member
of the managerial staff
7. Field personnel and other Ee
whose time and performance are
unsupervised by the Er
LABOR LAW TEAM:
40 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

Q: Distinguish between monthly paid and daily cleaning of machineries


paid Ees. is undertaken
Due to
A:
Monthly Paid Ees Daily Paid Ees
(cessation

the Sec. of Labor)


One who is paid his wage or One who is paid his
salary for everyday of the wage or salary only
month, including rest days, on those days he (3)Holiday Pay of Teachers, Piece workers,
Sundays, regular or special actually worked, seafarers, seasonal workers
days, although he does not except in cases of
regularly work on these days. regular or special Q: What are the HPs of certain employees?
days, although he
Not excluded from benefit of does not regularly A:
HP. work on these days. EMPLOYEES

Private
Q: What is the effect if a legal holiday falls on a
Sunday?

A: A legal holiday falling on a Sunday creates no


legal obligation for the Er to pay extra to the Ee who
does not work on that day, aside from the usual HP
to its monthly paid Ee. (Wellington v. Trajano, G.R.
114698, July 3, 1995)

(1)In Case of Absences

Q: Discuss the concept of absences.

A:

(2)In Case of Temporary Cessation of Work

Q: What is the effect in case there is a temporary


or periodic shutdown and temporary cessation of
work?

A:
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

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

of work interruptions is defeated when a


regular class day is cancelled on account of a
special public holiday and class hours are held
on another working day to make up for time
lost in the school calendar. Otherwise stated,
the faculty member, although forced to take a
rest, does not earn what he should earn on
that day. Be it noted that when a special public
holiday is declared, the faculty member paid by
the hour is deprived of expected income, and it
does not matter that the school calendar is Q: Is double HP applicable at present?
extended in view of the days or hours lost, for
their income that could be earned from other A: No, because Araw ng Kagitingan is moved to
sources is lost during the extended days. Monday nearest April 9. (R.A. 9242)
Similarly, when classes are called off or
shortened on account of typhoons, floods, Q: What is the concept of successive RH?
rallies, and the like, these faculty members
must likewise be paid, whether or not A:
extensions are ordered. (Jose Rizal College v.
NLRC, G.R. No. 65482, Dec.1, 1987)

Q: Lita, a full time professor in San Ildefonso


University, is paid on a regular monthly basis. She
teaches for a period of 10 months in a school year,
excluding the 2 month summerbreak. During the
semestral break, the University did not pay her
emergency Cost of Living allowance (ECOLA)
although she received her regular salary since the
semestral break was allegedly not an integral part
of the school year and no teaching service were
actually rendered by her. In short, the University
invoked the principle of "no work, no pay". She
seeks your advice on whether or not she is entitled
to receive her ECOLA during semestral breaks. How
would you respond to the query?

A: There is no longer any law making it the legal


obligation of an employer to grant an Emergency Q: What are the conditions so that an Ee may be
Cost of Living Allowance (ECOLA). Effective 1981, entitled to 2 successive HP?
the mandatory living allowances provided for in
earlier Presidential Decrees were integrated into the st
A: On the day immediately preceding the 1 RH, he
basic pay of all covered employees. Thus, whether must be:
the ECOLA will be paid or not during the semestral
break now depends on the provisions of the 1. Present (worked), or
applicable wage order or contract which may be a 2. On LOA with pay. (Sec. 10, Rule IV,
CBA, that many grant said ECOLA. (1997 Bar Book III, IRR)
Question)
Q: What if the conditions are not met?
Q: What is the concept of double HP?
st
A: He must work on the 1 RH to be entitled to HP
A: 2 RH on same day. nd
on the 2 RH. (Sec. 10, Rule IV, Book III, IRR)

5.LEAVES

a.Service Incentive Leave Pay

Q: What is service incentive leave (SIL)?

A: It is 5 days leave with pay for every employee


who has rendered at least 1 yr of service. It is
commutable to its money equivalent if not used or
exhausted at the end of year.

Q: What do you mean by at least 1 year of service?


A: Service for not less than 12 months, absences and paid regular holidays unless the
whether continuous or broken working days in the establishment as a matter of
reckoned from the date the employee
started working, including authorized
LABOR LAW TEAM:
42 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

practice or policy, or that provided in the 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.)

XPNS: Q: Are piecerate workers entitled to the full


1. Government Ees and any of its benefit of the yearly 5 day SIL?
political subdivisions including GOCCs
2. Those already enjoying the benefit A: It depends.
3. Domestic helpers and persons in the
personal services of another 1. Yes. Provided:
4. Those already enjoying vacation a. They are working inside the
leave with pay of at least 5 days premises of the employer (Er) and
5. Managerial Ees b. Under the direct supervision of
6. Field personnel and other Ees the Er.
whose performance is unsupervised by the 2. No. Provided:
Er a. They are working outside the
7. Employed in establishments premises of the Er
regularly employing less than 10 workers b. Hours spent in the performance
8. Exempt establishments of work cannot be ascertained with
9. Engaged on task or contract basis, reasonable certainty
purely commission basis, or those who are c. The are not under the direct
paid in a fixed amount of performing work supervision of the Er
irrespective of the time consumed in the
performance thereof. (Art. 95[b]) Q: Does it apply to Ees with salaries above
minimum wage?
Q: Are teachers of private schools on contract
basis entitled to SIL? A: No. The difference between the minimum wage
and the actual salary received by the Ees cannot be
th
A: Yes. The phrase "those who are engaged on task deemed as their 13 month pay and SIL pay as such
or contract basis" should, however, be related with difference is not equivalent to or of the same
"field personnel" applying the rule on ejusdem import as the said benefits contemplated by law.
generis that general and unlimited terms are (JPL Marketing Promotions v. CA, G.R. No. 151966,
restrained and limited by the particular terms that July 8, 2005.)
they follow. Clearly, Cebu Institute of Technology
teaching personnel cannot be deemed as field Q: Explain the entitlement of terminated Ees to
personnel which refers "to nonagricultural Ees who SIL.
regularly perform their duties away from the
principal place of business or branch office of the Er A:
and whose actual hours of work in the field cannot 1. Illegally dismissed Ees entitled
be determined with reasonable certainty. (Par. 3, to SIL until actual reinstatement.
Art. 82, LC). (CIT vs. Ople, G.R. No. 70203, Dec. 18, (Integrated Contractor and Plumbing
1987) Works, Inc. v. NLRC, G.R.No. Aug.9, 2005)
2. Legally dismissed Ees the Ee
Q: Is SIL commutable to its monetary equivalent if who had not been paid of SIL from outset
not used or exhausted at the end of the year? of employment is entitled only of such
pay after a year from commencement of
A: Yes. It is aimed primarily at encouraging workers service until termination of employment
to work continuously and with dedication to the or contract. (JPL Marketing Promotions v.
company. CA, G.R. No. 151966, July 8, 2005)

Q: What is the basis for cash conversion?

A: The basis shall be the salary rate at the date of


commutation. The availment and commutation of
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
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

b.Maternity Leave said Ee would otherwise have been


entitled to, and the SSS shall in turn pay
Q: What is maternity leave benefit? such amount to the Ee concerned.

A: A covered female employee (Ee) is entitled to a c.Paternity Leave


daily maternity benefit equivalent to 100% of her
present basic salary, allowances and other benefits Q: What is the concept of paternity leave benefits?
or the cash equivalent of such benefits for 60 days
or 78 days in case of caesarian delivery. A: Notwithstanding any law, rules and regulations
to the contrary, every married male employee in the
Q: What are the requirements in order that private and public sectors shall be entitled to a
maternity benefits may be claimed? paternity leave of 7 days with full pay for the first 4
deliveries of the legitimate spouse with whom he is
A: cohabiting.
1. There is childbirth, abortion or
miscarriage Q: What is paternity leave?
2. She has paid at least 3 monthly
contributions A: It refers to the benefits granted to a married
male employee allowing him not to report for work
Q: What are the conditions? for 7 days but continues to earn the compensation
therefore, on the condition that his
A: spouse has delivered a child or suffered a
1. The Ee shall have notified her miscarriage for purposes of enabling him to
employer (Er) of her pregnancy and the effectively lend support to his wife in her period of
probable date of her childbirth which recovery and/or in the nursing of the newlyborn
notice shall be transmitted to the SSS child.

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?

LABOR LAW TEAM:


44 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

A: No. Jemuel is not entitled to paternity 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

1. A woman who gives birth as a result a.Coverage and Exclusion


of rape
and other crimes against chastity even Q: What are service charges (SC)?
without a final conviction of the offender,
provided, That the mother keeps and A: These are charges collected by hotels,
raises the child; restaurants and similar establishments and shall be
2. Parent left solo or alone with the distributed at the rate of:
responsibility of parenthood due to:
a. Death of spouse;
b. Detention or service of sentence of
spouse for a criminal conviction for at
least 1 yr;
c. Physical and/or mental incapacity of
spouse
Equally
d. Legal separation or de facto
separation from spouse for at least 1
yr as long as distributed

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

among them Provided, that they have worked for at least 1


month, during a calendar year. (Revised
th
Guidelines on the Implementation of the 13
Month Pay Law)
Q: Who are covered Ees?
XPN:
A: GR: All Ees are covered, regardless of their 1. Government Ees
position, designation, employment status, 2. Household helpers
irrespective of the method by which their wages are 3. Ees paid purely on commission basis
th
paid. 4. Ees already receiving 13 month pay

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?

b.Distribution A: I will advise the manufacturing company to pay


the casual Ee 13th Month Pay if such casual Ee has
Q: When is the share of employee distributed and worked for at least 1 month during a calendar year.
paid to them? The law on the 13th Month Pay provides that Ees
are entitled to the benefit of said law regardless of
A: Not less than once every 2 weeks or twice a their designation or employment status.
month at intervals not exceeding 16 days.
The SC ruled in Jackson BuildingCondominium
c.Integration Corp. v. NLRC, G.R. No. 112546, March 13, 1996,
interpreting P.D.851, as follows: Ees are entitled to
Q: What happens if the Service Charge is th
the 13 month pay benefits regardless of their
abolished? designation and irrespective of the method by
which their wages are paid. (1998 Bar Question)
A: The share of the covered Ees shall be considered
integrated in their wages on the basis of the average Note: An Er, may give to his Ees of the required 13
th

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.

Note: Service charges form part of the award in illegal th


Q: Is 13 Month Pay legally demandable?
dismissal cases.
A: Yes. It is a statutory obligation, granted to
th
7.13 MONTH PAY AND OTHER BONUSES covered Ees, hence, demandable as a matter of
right. (Sec 1, P.D. 851)
a.Coverage, Exclusion/ exemptions from coverage
th
b.Nature of 13 Month Pay
th
Q: What is 13 month pay or its equivalent?
th
Q: In what form is the 13 month pay paid or
A: Additional income based on wage required by given?
P.D. 851 Requiring all Employers to pay their
th A: It is given in the form of:
Employees a 13 month pay which is equivalent to
1/12 of the total basic salary earned by an
employee (Ee) within a calendar year. 1. Christmas Bonus
2. Midyear Bonus
Q: Who are covered by P.D. 851? 3. Profit Sharing Scheme
4. Other Cash bonuses amounting
A: GR: All rankandfile Ees regardless of the to not less than 1/12 of its basic salary
amount of basic salary that they receive in a
month, if their employers (Er) are not otherwise Note: It must always be in the form of a legal tender.
th
exempted from paying the 13 month pay. Such
th
Ees are entitled to the 13
th
month pay Q: What are not proper substitutes for 13 Month
regardless of said designation of employment pay?
status, and irrespective of the method by which
their wages are paid. A:
1. Free rice

LABOR LAW TEAM:


46 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

2. Electricity last 2 years, subject to the provision


3. Cash and stock dividends of Sec. 7 of P.D. 851;
4. COLA (Sec. 3)
2. The Government and any of its
Q: Concepcion Textile Co. included the OT pay, political subdivisions, including GOCCs,
nightshift differential pay, and the like in the except those corporations operating
computation of its Ees 13thmonth pay. essentially as private subsidiaries of the
Subsequently, with the promulgation of the Government;
decision of the SC in the case of SMC vs. Inciong 3. Ers already paying their Ees 13
(103 SCRA 139) holding that these other monetary month pay or more in a calendar year of
claims should not be included in the computation its equivalent at the time of this issuance:
of the 13th month pay, Concepcion Textile Co.
sought to recover under the principle of solutio 4. Its equivalent shall include:
indebiti the overpayment of the Ees 13thmonth a. Christmas bonus
pay, by debiting against future 13thmonth b. Midyear bonus
payments whatever excess amounts it had c. Profitsharing
previously made. payments and
d. Other cash bonuses
(1) Is the Company's action tenable? amounting to not less than
1/12th of the basic salary
(2) With respect to the payment of the 13th but
month pay after the SMC ruling, what
arrangement, if any, must the Company make in 5. It shall not include:
order to exclude from the 13thmonth pay all a. cash and stock dividends,
earnings and remunerations other than the basic b. COLA
pay? c. all other allowances
regularly enjoyed by the
A: The Company's action is not tenable. The Ee, as well as non
principle of solutio indebiti which is a civil law monetary benefits.
concept is not applicable in labor law. (Davao Fruits
Corp. vs. NLRC, et al., G.R. No. 85073 August 24, 6. Ers of household helpers and
1993). After the 1981 SMC ruling, the High Court persons in the personal service of another
decided the case of Philippine Duplicators Inc. vs. in relation to such workers; and
NLRC, GR 110068, Nov. 11, 1993. Accordingly,
management may undertake to exclude sick leave, 7. Ers of those who are paid on
vacation leave, maternity leave, premium pay for purely commission, boundary, or task
regular holiday, night differential pay and cost of basis, and those who are paid a fixed
living allowance. Sales commissions, however, amount for performing a specific work,
should be included based on the settled rule as irrespective of the time consumed in the
earlier enunciated in Songco vs. NLRC, G.R. No. L performance thereof, except where the
50999, March 23, 1990. (1994 Bar Question) workers are paid on piecerate basis in
which case the employer shall be covered
th
Q: Are all Ers required to pay 13 Month Pay by this issuance insofar as such workers
under P.D. 851? are concerned.(Sec 3, P.D. 851)

A: Q: What are the options of covered Ers?


GR: Yes. It applies to all Ers,
A:
XPN: 1. Pay onehalf of the 13thmonth
1. Distressed Ers: pay required before the opening of the
a. Currently incurring regular school year and the other half on
substantial losses or or before the 24th day of December of
b. In the case of nonprofit every year.
institutions and organizations, where 2. In any establishment where a
their income, whether from union has been recognized or certified as
donations, contributions, grants and the collective bargaining agent of the Ee,
other earnings from any source, has the periodicity or frequency of payment
consistently declined by more than of the 13th month pay may be the subject
40% of their normal income for the of agreement.

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

Manggagawa sa Honda, G.R. No. 145561, June


Q: How are claims adjudicated? 15, 2005)

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

4. Resigned or Separated Ees If Q: What is CBA in relation to 13 month pay?


th
resigned or separated from work before
th
the time of payment of 13 month pay, A: The absence of an express provision in the CBA
entitled to monetary benefit in proportion obligating the employer to pay the members of a
to the length of time he started working union thirteenth month pay is immaterial.
during the calendar year up to the time of Notwithstanding therefore the absence of any
resignation or termination of service. contractual agreement, the payment of a thirteenth
th
(Prorated 13 month pay) month pay being a statutory grant, compliance with
the same is mandatory and is deemed incorporate
th
Q: When does proration of 13 Month Pay in the CBA.
apply?
8.WOMEN WORKERS
A: GR: Proration of this benefit applies only
in cases of resignation or separation from work; a.Discrimination (Art. 135. LC); Prohibited Acts (Art.
computation should be based on length of 137. LC)
service and not on the actual wage earned by
the worker (Honda Phils. v. Samahan ng
LABOR LAW TEAM:
48 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

Q: What are the unlawful acts against women Ee?

A:
1. Discrimination with respect to the terms
and conditions of employment solely on
account of sex

a. Payment of lesser com

female Ee as against a

work of equal value

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

status on the application sheet, contrary to

the fact that she was married. (PT&T Co. v.

NLRC, G.R. No. 118978, May 23, 1997)

3. Dismissing,

prejudice a woman Ee by reason of her

being married. (Art. 136)

4. Denying any woman Ee benefits provided


by law. (Art. 137)

5. Discharge any woman for the purpose of

preventing her from enjoying any of the


benefits provided by law. (Art. 137)
6. Discharging such woman on account of

her pregnancy, or while

confinement due to her pregnancy. (Art.

137)

7. Discharging or refusing the admission of

such woman upon returning to her work

for fear that she may again be pregnant.

(Art. 137)

Note: Discrimination in any form from


employment to post

promotion or assignment,

perceived or suspected HIV status of an individual is

unlawful. (Philippine AIDS Prevention and Control Act


of 1998, [R.A. 8504])

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: 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

LABOR LAW TEAM:


50 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

4. Agent of the (Er) segregating or classifying the Ee


5. Teacher, instructor, professor which in a way would discriminate,
6. Coach, trainer, or deprive or diminish employment
7. Any other person who, having opportunities or otherwise adversely
authority, influence or moral ascendancy affect said Ee;
over another in a work or training or b. The above acts would impair the
education environment: Ees rights or privileges under
a. Demands existing labor laws; or
b. Requests or c. The above acts would result in
c. Requires an intimidating, hostile, or offensive
any sexual favor from the other, environment for the Ee.
regardless of whether the demand,
request or requirement for 2. In an education or training environment:
submission is accepted by the object a. Against one who is under the
of R.A. 7877. (Sec. 3) care, custody or supervision of the
offender;
Q: How is sexual harassment committed? b. Against one whose education,
training, apprenticeship or tutorship
A: Generally, a person liable demands, requests, or is entrusted to the offender;
otherwise requires any sexual favor from the other, c. Sexual favor is made a condition
regardless of whether the demand, request or to the giving of a passing grade, or
requirement for submission is accepted by the the granting of honors and
latter. scholarships, or the payment of a
stipend, allowance or other benefits,
Q: Under the Sexual Harassment Act, does the privileges, or considerations; or
definition of sexual harassment require a d. Sexual advances result in an
categorical demand or request for sexual favor? intimidating, hostile or offensive
environment for the student, trainee
A: No. It is true that the provision calls for a or apprentice.
demand, request or requirement of a sexual favor.
But it is not necessary that the demand, request or Q: What are the duties of the Er or head of office
requirement of a sexual favor be articulated in a in a workrelated, education or training
categorical manner. It may be discerned, with equal environment?
certitude, from the acts of the offender.
A:
Likewise, it is not essential that the demand, 1. Prevent or deter the
request or requirement be made as a condition for commission of acts of sexual harassment
continued employment or for promotion to a higher and
position. It is enough that the respondents acts 2. Provide the procedures for the
result in creating an intimidating, hostile or resolution, settlement or prosecution of
offensive environment for the employee. (Domingo acts of sexual harassment.
v. Rayala, G.R. No. 155831, Feb. 18, 2008)
Towards this end, the Er or head of office shall:
Q: When is sexual harassment committed?
1. Promulgate appropriate rules
A: Specifically: and regulations in consultation with the
jointly approved by the Ees or students or
1. In a workrelated or employment trainees, through their duly designated
environment: representatives, prescribing the
a. The sexual favor is made procedure for the investigation or sexual
as a condition in the hiring or in the harassment cases and the administrative
employment, reemployment or sanctions therefore. (Sec. 4)
continued employment of said
individual, or in granting said Note: Administrative sanctions shall not be a
individual favorable compensation, bar to prosecution in the proper courts for
terms, conditions, promotions, or unlawful acts of sexual harassment.
privileges; or the refusal to grant the The said rules and regulations issued shall
sexual favor results in limiting, include, among others, guidelines on proper
decorum in the workplace and educational
or training institutions.

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

hostile or unfriendly to the applicant's chances for a


2. Create a committee on decorum job if she turns down the invitation. [Sec. 3(a)(3),
and investigation of cases on sexual R.A. No. 7877, AntiSexual Harassment Act]. (2000
harassment. Bar Question)
3. The Er or head of office,
education or training institution shall Q: In the course of an interview, another female
disseminate or post a copy of this R.A. applicant inquired from the same Personnel
7877 for the information of all concerned Manager if she had the physical attributes required
for the position she applied for. The Personnel
Q: What is the liability of the Er, head of office, Manager replied: "You will be more attractive if
educational or training institution? you will wear micromini dresses without the
undergarments that ladies normally wear." Did the
A: Ee shall be solidarily liable for damages arising Personnel Manager, by the above reply, commit an
from the acts of sexual harassment committed in act of sexual harassment? Reason.
the employment, education or training environment
provided: A: Yes. The remarks would result in an offensive or
hostile environment for the Ee. Moreover, the
1. The Er or head of office, remarks did not give due regard to the applicants
educational or training institution is feelings and it is a chauvinistic disdain of her honor,
informed of such acts by the offended justifying the finding of sexual harassment
party; and (Villarama v. NLRC, G.R. No. 106341, Sep. 2, 1994)
2. No immediate action is taken
thereon. (Sec. 5) Q: Pedrito Masculado, a college graduate from the
province, tried his luck in the city and landed a job
Q: Can an independent action for damages be as utility/maintenance man at the warehouse of a
filed? big shopping mall. After working as a casual Ee for
6 months, he signed a contract for probationary
A: Yes. Nothing under R.A. 7877 shall preclude the employment for 6 months. Being wellbuilt and
victim of work, education or trainingrelated sexual physically attractive, his supervisor, Mr. Hercules
harassment from instituting a separate and Barak, took special interest to befriend him. When
independent action for damages and other his probationary period was about to expire, he
affirmative relief. (Sec. 6) was surprised when one afternoon after working
hours, Mr. Barak followed him to the mens
Q: What is the threefold liability rule in sexual comfort room. After seeing that no one else was
harassment cases? around, Mr. Barak placed his arm over Pedritos
shoulder and softly said: You have great potential
to become a regular Ee and I think I can give you a
A: An act of sexual harassment may give rise to civil,
favorable recommendation. Can you come over to
criminal and administrative liability on the part of
my condo unit on Saturday evening so we can have
the offender, each proceeding independently of the
a little drink? Im alone, and Im sure you want to
others.
stay longer with the company. Is Mr. Barak liable
for sexual harassment committed in a workrelated
Q: When does the action prescribe?
or employment environment?
A: Any action shall prescribe in 3 years.
A: Yes, the elements of sexual harassment are all
present. The act of Mr. Barak was committed in a
Q: A Personnel Manager, while interviewing an
workplace. Mr. Barak, as supervisor of Pedrito
attractive female applicant for employment, stared
Masculado, has authority, influence and moral
directly at her for prolonged periods, albeit in a
ascendancy over Masculado.
friendly manner. After the interview, the manager
accompanied the applicant to the door, shook her
Given the specific circumstances mentioned in the
hand and patted her on the shoulder. He also
question like Mr. Barak following Masculado to the
asked the applicant if he could invite her for dinner
comfort room, etc. Mr. Barak was requesting a
and dancing at some future time. Did the
sexual favor from Masculado for a favorable
Personnel Manager, by the above acts, commit
sexual harassment? Reason. recommendation regarding the latter's
employment. It is not impossible for a male, who is
A: Yes, because the Personnel Manager, is in a a homosexual, to ask for a sexual favor from
position to grant or not to grant a favor (a job) to another male. (2000 Bar Question)
the applicant. Under the circumstances, inviting the
applicant for dinner or dancing creates a situation
LABOR LAW TEAM:
52 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

9.MINOR WORKERS iii. the conditions


provided in the first instance
a.Regulation of working hours of a child, are met.
Employment of the child in public entertainment, B. Above 15 but below 18 may be
Prohibition of employing minors in certain employed in any nonhazardous work
undertakings and in certain advertisements C. Above 18 no prohibition

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?

XPN: A: The issuance of a DOLE Certificate to youth aged


A. Below 15 yrs. Old 15 to below 18 years of age is not required by law.
1. The child works directly No employer shall deny opportunity to any such
under the sole responsibility of his youth applying for employment merely on the basis
parents, or guardians who employ of lack of work permit or certificate of eligibility for
members of his family, subject to the employment. Any young person aged 15 to below
following conditions: 18 years of age may present copy of this DOLE
a. Employment does not advisory to any employer, job provider, government
endanger the childs safety, authority, or his/her representative when seeking
health and morals employment or anytime during employment. (DOLE
b. Employment does not Department Advisory No. 0108)
impair the childs normal devt
c. Erparent or legal Q: What is a nonhazardous work?
guardian provides the child with
the primary and/or secondary A: It is any work or activity in which the Ee is not
education prescribed by the exposed to any risk which constitutes an imminent
Dept. of Education danger to his safety and health.
2. The childs employment or
participation in public entertainment Q: What are hazardous workplaces?
or information through cinema,
theater, radio or television is A:
essential provided: 1. Nature of work exposes the workers to
dangerous environmental elements,
a. Employment contract is
contaminants or work conditions
concluded by the childs parents
or legal guardian, 2. Workers are engaged in construction work,
logging, firefighting, mining, quarrying,
b. With the express
blasting, stevedoring, dock work, deepsea
agreement of the child
fishing, and mechanized farming
concerned, if possible, and
3. Workers are engaged in the manufacture or
c. The approval of DOLE, the
handling of explosives and other pyrotechnic
following must be complied
products
with:
4. Workers use or are exposed to heavy or
i. The employment does not
powerdriven tools
involve advertisement or
commercialspromoting
Q: You were asked by a paint manufacturing
alcoholic beverages,
company regarding the possible employment as a
intoxicating drinks, tobacco
mixer of a person, aged 17, who shall be directly
and its byproducts or
under the care of the section supervisor. What
exhibiting violence
advice would you give? Explain briefly.
ii. there is a written contract
approved by DOLE
A: I will advise the paint manufacturing company
that it cannot hire a person who is aged 17. Art 139

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


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

(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.

LABOR LAW TEAM:


54 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

A: Yes, he should be prohibited from working as a - Not allowed to work between


dealer in casino, because Art. 140 of the LC 8:00 pm 6:00 am
prohibits the employment of persons below 18
years of age in an undertaking which is hazardous or 2. At least 15 years of age but
deleterious in nature identified in the guidelines below 18 years of age will not exceed 8
issued by the SLE. Working as a dealer in a casino is hours a day or 40 hours a week
classified as hazardous under D.O. No. 04 Series of - Not allowed to work between
1999 as it exposes children to physical, 10:00 pm 6:00 am
psychological or sexual abuses. (2006 Bar Question)
Q: What are the worst forms of labor?
b.Act Against Child Labor (RA 9231) and Child Abuse
Law (RA 7610) A:
1. All forms of slavery (Anti
Q: What is child labor? Trafficking of Persons Act of 2003) or
practices similar to slavery such as sale
A: Any work or economic activity performed by a and trafficking of children, debt bondage
child that subjects him or her to any form of and serfdom and forced or compulsory
exploitation or is harmful to his or her health and labor, including recruitment of children for
safety or physical, mental or psychosocial use in armed conflict;
development. 2. The use, procuring, offering or
exposing of a child pornography or for
Q: Who is a working child? pornographic performances;
3. The use, procuring, offering or
A: Any child engaged as follows: exposing of a child for illegal or illicit
activities, including the production and
1. When the child is below 18 years of trafficking of dangerous drugs and volatile
age in substances prohibited under existing laws;
a work or economic activity that is not 4. Employing child models in all
child labor; or commercials or advertisements promoting
2. When the child is below 15 years of alcoholic beverages, intoxicating drinks,
age: tobacco and its byproducts and violence;
a. In work where he/she is and
directly under the responsibility of 5. Work which, by its nature or
his/her parents or legal guardian and circumstances in which it is carried out, is
where only members of the childs hazardous or likely to be harmful to the
family are employed; or health, safety or morals of children.
b. In public entertainment or
information Q: Who can file a complaint for unlawful acts
committed against children?
Q: When may the State intervene in behalf of the
child? A:
1. Offended party
A: 2. Parents or guardians
1. The parent, guardian, teacher or 3. Ascendants or collateral
rd
person having care or custody of the child relatives within the 3 degree of
fails or is unable to protect the child consanguinity
against abuse, exploitation and 4. Officer, social worker or
discrimination; or representative of a licensed childcaring
institution
2. When such acts are committed
against the child by the said parent, 5. Officer or social worker of DSWD
guardian, teacher or person having care 6. Barangay chairman of the place
and custody over the child where the violation occurred, where the
child is residing or employed
Q: What is the limitation on the hours of work of a 7. At least 3 concerned,
working child? responsible citizens where the violation
occurred
A: If the child is:
Q: Which courts have jurisdiction over offenses
punishable under R.A. 9231?
1. Below 15 years of age not more
than 20 hours a week and not more than
A: The Family Courts shall have original jurisdiction
4 hours a day
over all cases involving offenses punishable under
this Act
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

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.

The definition of a househelper cannot be interpreted Q: Is there an OT Pay for househelpers?


to include househelp or laundry women working in
staffhouses of a company. (APEX Mining CO., Inc., v. A: No. The LC is silent on the grant of OT pay, HP,
NLRC, G.R. No. 94951, April 22, 1991)
Premium Pay and SIL to those engaged in the
domestic or household service. Moreover Art. 82 of
b.Benefits accorded househelpers
LC expressly excludes domestic helpers from its
coverage. (Ultra Villa Food Haus v. Geniston, G.R.
Q: What are the rights of househelpers?
No. 120473, June 23, 1999)
A:
Q: Erlinda worked as a cook, preparing the lunch
1. Original contract of domestic
and merienda of the Ees of Remington Industrial
service shall not last for more than 2
Sales Corp. She worked at the premises of the
years but it may be renewed by the
company. When Erlinda filed an illegal dismissal
parties. (Art. 142)
case, Mr. Tan, the managing director of Remington
2. Entitled to minimum wage in
Corp. claimed that Erlinda was a domestic helper,
addition to lodging, food, and medical
and not a regular Ee of Remington Corp. Mr. Tan
attendance. (Art. 144)
argued that it is only when the househelper or
3. Employment contract should be
domestic servant is assigned to certain aspects of
reviewed every 3 years with the end view
the business of the Er that such househelper or
of improving the terms and conditions of
employment. (Art. 143)
4. SSS benefits for those who are
receiving at least P1,000 per month. (Art.
143)
LABOR LAW TEAM:
56 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

domestic servant may be considered as such an d. Reliefs for Unjust Termination


employee. Is Erlinda a domestic or househelper?
Q: What are the rules for indemnity?
A: No, Erlinda is clearly not a househelper. A
househelper or domestic servant under the A:
Implementing Rules of the LC is one who is 1. If the period for household
employed in the Ers home to minister exclusively to service is fixed, neither the Er nor the
the personal comfort and enjoyment of the Ers househelper may terminate the contract
family. A househelper, domestic servant or before the expiration of the term except
laundrywoman in a home or in a company for just cause.
staffhouse is different in the sense that in a 2. If the househelper is unjustly
corporation or a single proprietorship engaged in dismissed, he or she shall be paid the
business or industry or any agricultural or similar compensation already earned plus that
pursuit, service is being rendered in the staffhouses for the 15 days by way of indemnity.
or within the premises of the business of the Er. In 3. If the househelper leaves
such instance, they are Ees of the company or Er in without justifiable reason, he or she shall
the business concerned, entitled to the privileges of forfeit any unpaid salary due him or her
a regular Ee. The mere fact that the househelper or not exceeding 15 days.
domestic servant is working within the premises of
the business of the employer and in relation to or in Q: When can the HH demand for employment
connection with its business, as in its staffhouses for certification?
its guest or even for its officers and Ees, warrants
the conclusion that such househelper or domestic A: Upon the severance of the household service
servant is and should be considered a regular Ee relationship, the househelper may demand from
and not a househelper. (Remington Industrial v. the Er a written statement of the nature and
Castaneda, G.R. Nos. 16929596, Nov.20, 2006) duration of the service and his/ her efficiency and
conduct as househelper.
Q: NBC has a resthouse and recreational facility in
the highlands of Tagaytay City for the use of its top 11.EMPLOYMENT OF HOMEWORKERS
executives and corporate clients. The resthouse
staff includes a caretaker, two cooks and a a.Defintion
laundrywoman. All of them are reported to the SSS
as domestic or household Ees of the resthouse and Q: Who are homeworkers?
recreational facility and not of NBC. Can NBC
legally consider the caretaker, cooks and A: They are those who perform in or about his own
laundrywoman as domestic Ees of the resthouse home any processing or fabrication of goods or
and not of NBC? materials, in whole or in part, which have been
furnished directly or indirectly, by an Er and sold
A: No, they are not domestic Ees. They are NBCs thereafter to the latter.
Ees because the resthouse and recreational facility
are business facilities as they are for use of the top Q: Who is the Er of Homeworker?
executives and clients of NBC. (Traders Royal Bank
v. NLRC, G.R. No. 127864, Dec. 22. 1999). (2000 Bar A: Includes any person, natural or artificial who, for
Question) his account or benefit, or on behalf of any person
residing outside the country, directly or indirectly, or
c.Termination through an Ee, agent contractor, subcontractor or
any other person:
Q: What is the proper procedure in the
termination of a househelper? 1. Delivers or causes to be
delivered, any goods, articles or materials
A: The termination of the employment of a to be processed or fabricated in or about
househelper should be: a home and thereafter to be returned or
to be disposed of or distributed in
a. Upon expiration of the term of accordance with his directions.
employment, or 2. Sells any goods, articles or
b. Based on just cause (Art. 149) materials to be processed or fabricated in
or abut a home and then rebuys them
after such processing or fabrication, either
by himself or through some other person.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


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

4. The deduction is made at such


b.Rights and benefits accorded homeworkers rate that the amount deducted does not
exceed 20% of the HWs earnings in a
Q: What is the duty of the Er in case he contracts week.
with another the performance of his work?

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)

1. Explosives, fireworks and similar 12.APPRENTICES AND LEARNERS


articles;
2. Drugs and poisons; and a.Apprentices
3. Other articles, the processing of
which requires exposure to toxic Q: Who is an apprentice?
substances. (Sec. 13, Rule XIV, Book III, A: Any worker who is covered by a written
IRR) apprenticeship agreement with an individual
employer or any of the entities recognized under
c.Conditions for deduction from homeworkers the LC.
earnings
Q: What is apprenticeship?
Q: Can the Er make deductions on homeworkers
earnings? A: It is practical training on the job supplemented
by related theoretical instruction.
A: GR: No Er, contractor or subcontractor shall
make any deduction from the HWs earnings for Q: What is an apprenticeable occupation?
the value of materials which have been lost,
destroyed, soiled or otherwise damage. A: That which requires more than 3 months of
practical training with theoretical instruction
XPN: Unless the ff. conditions are met:
1. The HW is clearly shown to be Q: What is on the job training (OJT)?
responsible for the loss or damage
A: It is practical work experience through actual
2. The Ee is given reasonable
participation in productive activities given to or
opportunity to show cause why
acquired by an apprentice.
deductions should not be made;
3. The amount of such deduction is
fair and reasonable and shall not exceed
the actual loss or damages; and
LABOR LAW TEAM:
58 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

Q: What are highly technical industries? Q: What is the employment status of apprentices?

A: Those which are engaged in the application of 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

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

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?

A: It may be appealed by any aggrieved person to


Q: May apprentices be hired without the SLE within 5 days from receipt of the decision.
compensation?
Note: The decision of the SLE shall be final and
executory.
A: Required:
Q: What is Exhaustion of Administrative Remedies
1. By school
(EAR)?
2. By the training program
curriculum
A: It is a condition precedent to the institution of
3. For Graduation
action. (Sec. 32b, Rule VI, Book II, IRR)
4. For board examinations
Q: How is the principle of Exhaustion of
Q: What are the rules on working scholars? Administrative Remedies applied in case of breach
of apprenticeship agreement?
A: There is no ErEe relationship between students
on one hand, and schools, where there is written A: No person shall institute any action for the
agreement between them under which the former enforcement of any apprenticeship agreement or
agree to work for the latter in exchange for the damages for breach of any such agreement, unless
privilege to study free of charge. The student is not he has exhausted all available administrative
considered an Ee. (Sec. 14, Rule IX, Book III, IRR) remedies.
Q: Padilla entered into a written agreement with Q: Who shall settle differences arising out of
Gomburza College to work for the latter in apprenticeship agreement?
exchange for the privilege of studying in said
institution. His work was confined to keeping clean A: The plant apprenticeship committee shall have
the lavatory facilities of the school. One school the initial responsibility for settling differences
day, he got into a fist fight with a classmate, arising out of apprenticeship agreement. (Sec. 32b,
Monteverde, as a result of which the latter Rule VI, Book II, IRR)
sustained a fractured arm. Victor filed a civil case
for damages against him, impleading Gomburza Q: What is the procedure for the termination of
College due to the latter's alleged liability as his Er. apprenticeship?
Under the circumstances, could Gomburza College
be held liable by Victor Monteverde as an Padillas
Er?
LABOR LAW TEAM:
60 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

A: The party terminating shall:

1. Serve a written notice on the other at


least 5 days before actual termination,
2. Stating the reason for such decision; and
3. A copy of said notice shall be furnished
the Apprenticeship Division concerned.

b.Learners

Q: Who are 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

supplemented by theoretical instructions.

(Sec. 1a, Rule VII, Book II, IRR)

Q: When may learners be employed?

A:

1. When no experienced worker is available

2. It is necessary to prevent curtailment of

employment opportunities; and

3. Employment
competition in terms of labor costs or
impair or lower working standards.

Q: What is a learnership agreement?

A: Any employer desiring to employ learners shall

enter into a learnership agreement with

which agreement shall include:

1. The names and addresses of the learners;


2. The duration
which shall not exceed 3 months;

3. The wages or salary rates of the learners

which shall begin at not less than 75% of

the applicable minimum wage; and

4. A commitment to employ the learners if

they so desire, as regular employees upon

completion of the learnership.

Q: What is the qualification of a learner?

A: Must be at least 15 years of age.

Note: Those below 18 years of age shall not work in


hazardous occupations.

Q: Who may employ learners?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


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

disability he can still efficiently perform his work, he


13.HANDICAPPED WORKERS (RA 9277) cannot be classified as handicapped; he would be
13. considered a qualified disabled worker entitled to the
a.Definition same treatment as qualified ablebodied workers.

Q: Who are handicapped workers (HW)? b.Rights of disabled workers

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?

A: No, because his disability may not impair his


efficiency or the quality of his work. If despite his
LABOR LAW TEAM:
62 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS

the Department of Health as to his disability, skills


and qualifications

2. Private entities that improve or modify their


physical facilities in order to provide reasonable
accommodation for disabled persons shall also be
entitled to an additional deduction from their net
taxable income, equivalent to fifty percent (50%) of
the direct costs of the improvements or
modifications

Q: Distinguish handicapped from disabled?

A:
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

D. TERMINATION OF EMPLOYMENT suspensions, dismissals and award citations for


meritorious services were all done upon approval
1.EMPLOYEREMPLOYEE RELATIONSHIP by BARON's chief security officer. After the
expiration of the contract with ASIA, BARON did
Q: What determines the existence of an not renew the same and instead executed another
employment relationship? contract for security services with another agency.
ASIA placed the affected security guards on
A: It is determined by law and not by contract. "floating status" on "no work no pay" basis.
Whether or not an ErEe relationship exists between Having been displaced from work, the ASIA
the parties is a question of fact. In this regard, the security guards filed a case against the BARON for
findings of the NLRC are accorded not only respect illegal dismissal, overtime pay, minimum wage
but finality if supported by evidence. differentials, vacation leave and sick leave benefits,
and 13th month pay. BARON denied liability
Note: Taxi or jeepney drivers under the boundary alleging that ASIA is the employer of the security
system are Ees of the taxi or jeepney guards and therefore, their complaint for illegal
owners/operators; so also the passenger bus drivers dismissal and payment of money claims should be
and conductors. (Jardin vs. NLRC and Goodman Taxi, directed against ASIA. Nevertheless, BARON filed a
G.R. No. 119268, Feb. 23, 2000) Third Party Complaint against ASIA.

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

LABOR LAW TEAM:


64 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

the Lastimoso family. The 3 corporations were 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

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

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

2. Voluntary agreement of parties (especially According to Alciras computation, since Art. 13 of


when the nature of work requires a longer the Civil Code provides that 1 month is composed
period) of 30 days, 6 months totaling 180 days, then his
th
3. The Er gives the(Ee a second chance 180 day would fall on Nov. 16, 96 making him a
to pass the standards set. (Mariwasa regular Ee before his termination. Is the contention
Manufacturing, Inc. v. Leogardo, Jr.,G.R. of the petitioner in the computation of 6 months
No. 74246, Jan. 26, 1989) correct?
4. When the same is required by the
nature of the work, e.g. the probationary A: No, the computation of the 6month
period set for professors, instructors and probationary period is reckoned from the date of
teachers is 3 consecutive years of appointment up to the same calendar date of the
th
satisfactory service pursuant to DOLE 6 month following. In short, since the number of
Manual of Regulations for Private Schools. days in each particular month was irrelevant, Alcira
5. When the same is established by was still a probationary Ee when Middleby opted
company policy. not to regularize him on Nov. 20, 1996. (Alcira v.
NLRC, G.R. No. 149859, June 9, 2004)
Note: Period of probation shall be reckoned from the
date the Ee actually started working. (Sec.6 [b], Rule I, Note: In Mitsubishi Motors v. Chrysler Phils. Labor
Book VI, IRR) Union, G.R. No. 148738, June 29, 2004, the SC ruled in
this wise:
After the lapse of the probationary period (6 months),
Ee becomes regular. Applying Art. 13 of the Civil Code, the probationary
period of 6months consists of the 180 days. This is in
Probationary Ees may be dismissed before end of the conformity with par.1, Art. 13 of the Civil Code. The
probationary period. number of months in the probationary period, 6,
should then be multiplied by the number of days
Q: May the Er and Ee validly agree to extend the within a month, 30; hence, the period of 180 days. As
probationary period beyond 6 months? clearly provided for the in last par. of Art. 13, in
computing a period, the first day shall be excluded and
A: Yes. Such an extension may be lawfully agreed the last day included. Thus, the 180 days commenced
upon, despite the restrictive language of Art. 281. A on May 27, 1996, and ended on Nov. 23, 1996. The
voluntary agreement extending the original termination letter dated Nov. 25, 1996 was served on
Paras only on Nov. 26, 1996. He was, by then already a
probationary period to give the Ee a second chance
regular Ee of the company under Art. 281 of the LC.
to pass the probation standards constitutes a lawful
exception to the statutory limit. (Mariwasa
How to resolve the conflict between the Alcira and
Manufacturing, Inc. v. Leogardo, Jr., G.R. No. 74246, Mitsubishi Motors case
Jan.26, 1989)
1. Statutory Construction The latter
Note: By voluntarily agreeing to such an extension, the case prevails (Mitsubishi Motors); or
Ee waived any benefit attaching to the completion of 2. Rule more favorable to the Ee
the period if he still failed to make the grade during the use the computation which would amount
period of extension. (Mariwasa Mfg. Inc. v. Hon. to granting the subject Ee regular
Leogardo, G.R. No. 74246, Jan.26, 1989) employment status (based on Constitutional
and statutory provisions for the liberal
Q:Is double or successive probation allowed? interpretation of labor laws)

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.

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

2. If no standards, under which he A: Yes, there is no dispute that as a probationary


will qualify as a regular Ee, are made employee (Ee), Cruz had but limited tenure.
known to him at the time of his Although on probationary basis, however, Cruz still
engagement. (Sec. 6 [d], Rule I, Book VI, enjoys the constitutional protection on security of
IRR) tenure. During his tenure of employment, therefore,
or before his contract expires, Cruz cannot be
Q: What are the grounds for terminating removed except for cause as provided for by law.
probationary employment?
What makes Cruz dismissal highly suspicious is that
A: it took place at a time when he needs only but a day
1. Just/authorized causes to be eligible as a regular Ee. That he is competent
2. When he fails to qualify as a finds support in his being promoted to a lead
regular Ee in accordance with reasonable gardener in so short span of less than 6 months. By
standards made known by the employer terminating his employment or abolishing his
(Er) to the Ee at the time of his position with but only one day remaining in his
engagement (ICMC v. NLRC, G.R. No. probationary appointment, the hotel deprived Cruz
72222, Jan. 30, 1989) of qualifying as a regular Ee with its concomitant
rights and privileges. (Manila Hotel Corp. v. NLRC,
Note: While probationary Ees do not enjoy permanent G.R. No. L53453, Jan. 22, 1986)
status, they are afforded the security of tenure
protection of the Constitution. Consequently, they
cannot be removed from their positions unless for Q: Colegio San Agustin (CSA) hired the Gela Jose as
cause. Such constitutional protection, however, ends a grade school classroom teacher on a
upon the expiration of the period stated in their
probationary basis for SY 84 85. Her contract
probationary contract of employment. Thereafter, the
was renewed for SYs 8586 and 8687. On Mar.
parties are free to renew the contract or not. (CSA v.
24, 87, the CSA wrote the Gela that "it would be in
NLRC, G.R. No. 87333, Sep. 6, 1991)
the best interest of the students and their families
that she seek employment in another school or
Q: What are the limitations on the employers
(Ers) power to terminate a probationary business concern for next school year".
employment contract? Notwithstanding the said notice, the CSA still paid
Gela her salary for April 15 to May 15, 1987. On
A: April 6, 87, Gela wrote the CSA and sought
1. The power must be exercised in reconsideration but she received no reply.
accordance with the specific reqts of the Thereafter, she filed a complaint for illegal
contract dismissal. Was Gela illegally dismissed?
2. If a particular time is prescribed,
the termination must be within such time A: No. The Faculty Manual of CSA underscores the
and if formal notice is required, then that completion of 3 years of continuous service at CSA
form must be used before a probationary teacher acquires tenure.
3. The Ers dissatisfaction must be Hence, the Gela cannot claim any vested right to a
real and in good faith, not feigned so as to permanent appointment since she had not yet
circumvent the contract or the law achieved the prerequisite 3year period under the
4. There must be no unlawful Manual of Regulation for Private Schools and the
discrimination in the dismissal Faculty Manual of CSA.

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

LABOR LAW TEAM:


68 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

a complaint for illegal dismissal against their Er. 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

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

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

LABOR LAW TEAM:


70 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

or when there would be an unexpected shortage (2)Project Employment


of manpower in any of its work places or an
unusually high volume of work. The practice was Q: What is project employment?
for the workers to wait every morning outside the
gates of the sales office of the company, if thus A: Employment that has been fixed for a specific
hired, the workers would then be paid their wages project or undertaking the completion for which has
at the end of the day. Should the workers be been determined at the time of engagement of the
considered as regular employees (Ees) of CCBPI? employee (Ee). (Sec.5 [a], Rule I, Book VI, IRR). The
period is not the determining factor, so that even if
A: Yes, the repeated rehiring of the workers and the the period is more than 1 year, the Ee does not
continuing need for their services clearly attest to necessarily become regular.
the necessity or desirability of their services in the
regular conduct of the business or trade of the Note: Where the employment of a project Ee is
company. The fact that the workers have agreed to extended long after the supposed project has been
be employed on such basis and to forego the finished, the Ees are removed from the scope of
protection given to them on their security of tenure, project Ees and considered as regular Ees.
demonstrate nothing more than the serious
Repeated hiring on a projecttoproject basis is
problem of impoverishment of so many of our
considered necessary and desirable to the business of
people and the resulting unevenness between labor
the Er. The Ee is regular (Maraguinot v. NLRC, G.R. No.
and capital. (Magsalin & CocaCola v. N.O.W.M., 120969, Jan. 22, 1998 ). However, repeated hiring does
G.R. No. 148492, May 9, 2003) not necessarily mean regular employment. (Filipinas
PreFabricated Building Systems (FILSYSTEMS), Inc. v.
Q: Metromedia Times Corp. entered, for the fifth Puente, G.R. No. 153832,. March 18, 2005 )
time, into an agreement with Efren Paguio,
appointing him to be an account executive of the (a)Indicators of project employment
firm. He was to solicit advertisements for The
Manila Times,. The written contract between the Q: What are the Indicators of Project
parties provided that, You are not an Ee of the Employment?
Metromedia Times Corp. nor does the company
have any obligations towards anyone you may A: Either one or more of the following
employ, nor any responsibility for your operating circumstances, among others, may be considered as
expenses or for any liability you may incur. The indicators that an employee is a project employee.
only rights and obligations between us are those (Hanjin v. Ibaez, G.R. No. 170181, June 26, 2008)
set forth in this agreement. This agreement cannot
be amended or modified in any way except with a. The duration of the
the duly authorized consent in writing of both specific/identified undertaking for which
parties. Is Efren Paguio a regular employee of the worker is engaged is reasonably
Metromedia Times Corporation? determinable

A: Yes, he performed activities which were b. Such duration, as well as the


necessary and desirable to the business of the Er, specific work/service to be performed, is
and that the same went on for more than a year. He defined in an employment agreement and
was an account executive in soliciting is made clear to the employee at the time
advertisements, clearly necessary and desirable, for of hiring.
the survival and continued operation of the
business of the corp. Note: Absent any other proof that the
project employees were informed of their
The corporation cannot seek refuge under the status as such, it will be presumed that they
terms of the agreement it has entered into with are regular employees.
Efren Paguio. The law, in defining their contractual
relationship, does so, not necessarily or exclusively c. The work/service performed by
upon the terms of their written or oral contract, but the employee is in connection with the
also on the basis of the nature of the work of Efren particular project/undertaking for which
has been called upon to perform. A stipulation in an he is engaged
agreement can be ignored as and when it is utilized
to deprive the Ee of his security of tenure. (Paguio d. The employee, while not
v. NLRC, G.R. No. 147816, May 9, 2003) employed and awaiting engagement, is
free to offer his services to any other
employer

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

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?

A: When the business establishment is sold which A:


effectively terminates the employment of the 1. It is an employment where the Ee is engaged in
seasonal Ees, the latter would be entitled to an activity which is not usually necessary or
separation pay. desirable in the usual business or trade of the Er,
provided: such employment is not project nor
Q: Can seasonal employees (Ees) be considered as seasonal (Art. 281).
regular Ees?
Note: But despite the distinction between regular
A: Yes. The fact that seasonal Ees do not work and casual employment, every Ee shall be entitled
continuously for one whole year but only for the to the same rights and privileges, and

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

shall be subject to the same duties as may be A:


granted by law to regular Ees during the period of
their actual employment. PROJECT WORKER

2.An Ee is engaged to perform a job, work or service


which is merely incidental to the business of the Er, Used
and such job, work or service is for a definite period workers
made known to the Ee at the time of engagement construction
(Sec. 5 [b], Rule I, Book VI, IRR)
hired
Note: If he has rendered at least 1 year of service,
whether such service is continuous or broken, he specific undertaking for
is considered as regular Ee with respect to the
activity in which he is employed and his
employment shall continue while such activity a fixed
exists.
terminus with a project
A Casual Ee is only casual for 1 year, and it is the
passage of time that gives him a regular status. or
(KASAMMACCO v. CA, G.R. No. 159828, April 19,
2006)
determined at the time
The purpose is to give meaning to the of the engagement of
constitutional guarantee of security of tenure and the Ee
right to selforganization. (Mercado v. NLRC, G.R. To be considered a true
No. 79868, Sep. 5, 1991)
project
required
Q: Yakult Phils. is engaged in the manufacture of
termination
cultured milk. The workers were hired to cut cogon
grass and weeds at the back of the factory building submitted
used by Yakult. They were not required to work on
fixed schedule and they worked on any day of the nearest
week on their own discretion and convenience.
The services of the workers were terminated by employment
Yakult on less than 1year after. May casual or
temporary Ees be dismissed by the Er before the upon the completion of
expiration of the 1year period of employment?
the
A: Yes, the usual business or trade of Yakult Phils. is
the manufacture of cultured milk. The cutting of the project.
cogon grasses in the premises of its factory is hardly Projects Corp. v. NLRC,
necessary or desirable in the usual business of the G.R. No. 114733,
Yakult. 2, 1997)

The workers are casual Ees. Nevertheless, they may


be considered regular Ees if they have rendered (5)Fixed term employment; Requisites for validity
services for at least 1 year. When, as in this case,
they were dismissed from their employment before Q: What is the nature of term employment?
the expiration of the 1year period they cannot
lawfully claim that their dismissal was illegal. A: A contract of employment for a definite period
(Capule, et al. v. NLRC, G.R. No. 90653, Nov. 12, terminates by its own terms at the end of such
1990) period. (Brent School v. Zamora, G.R. No. L48494,
Feb. 5, 1990)
Q: How is the project worker different from a
casual or contractual worker? Briefly explain your Q: What is the decisive determinant in term
answers. employment?

A: It is the day certain agreed upon by the parties


for the commencement and the termination of their
employment relation.

Q: What is a fixedterm employment?

A: It is an employment where a fixed period of


employment was agreed upon:
1. Knowingly and voluntarily by the 3. Absent any other circumstances
parties, vitiating his consent, or
2. Without any force, 4. Where it satisfactorily appears
duress or improper that the Er and Ee dealt with each other
pressure being brought to on more or less equal terms with no
bear upon the employee moral
(Ee) and
LABOR LAW TEAM:
74 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

dominance whatever being exercised by 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

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

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.

1. The contractor carries on a 2. Contractual Ee One who is employed by


distinct and independent business and a contractor or subcontractor to perform or
undertakes the contract work on his complete a job, work, or service pursuant to an
account under his own responsibility arrangement between the latter and a
according to his own manner and method, principal. (D.O. 1802)
free from the control and direction of his
employer or principal in all matters 3. Principal Any Er who puts out or farms
connected with the performance of his out a job, service, or work to a contractor or
work except as to the results thereof; subcontractor.

2. The contractor has substantial Q: Describe the relationship arising from


capital or investment; and contractual arrangements.

3. The agreement between the A: There is a trilateral relationship between the


principal and contractor or subcontractor principal, contractor and Ee. There exists a
assures the contractual employees contractual relationship between the principal and
entitlement to all labor and occupational the contractor or subcontractor to its Ees.
safety and health standards, free exercise
of the right to selforganization, security Q: What are the rights of a contractual Ee (CEe)?
of tenure, and social welfare benefits.
(Gallego v. BAYER

LABOR LAW TEAM:


76 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

A: They shall be entitled to all the rights and 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.

Q: What is the liability of the principal?

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

A: The contention of SMC holds no basis. Using the


substantial capital doctrine and the right of A: It gives rise to confusion as to who is the real Er
control test, the Court found that the Sunflower of the workers and who is liable to their claims. It
had no substantial capital in the form of tools, also deprives workers of the opportunity to become
equipment, machineries, work premises and other regular Ees.
materials to qualify itself as an independent
contractor. The lot, building, machineries and all Q: How do we determine if one is engaged in
other working tools utilized by private respondents labor/job only contracting?
in carrying out their tasks were owned and provided
by SMC. In addition, the shrimp processing A: The test to determine whether one is a job/labor
company was found to have control of the manner only contracting is to look into the elements of a job
and method on how the work was done. Thus, the contractor. If all the elements of a job contractor are
complainants were deemed Ees not of the present, then he is a job contractor. Absent one of
cooperative but of the shrimp processing company. the elements for a job contractor, then the person is
Since respondents who were engaged in shrimp a laboronly contractor.
processing performed tasks usually necessary or
desirable in the aquaculture business of SMC, they Note: It is the opinion of Dean Antonio H. Abad, Jr. that
should be deemed regular Ees of the latter and as the decisive determinant in job contracting should not
be the fact that the contracted workers are
such are entitled to all the benefits and rights
performing activities which are directly related to the
appurtenant to regular employment. (SMC vs.
main business of the principal, but that the principal
Prospero Aballa, et al., G.R. No. 149011, June 28,
has no right to control the conduct of the employees as
2005, J. CarpioMorales) to the means employed to achieve an end; not the
character of the activities as being usually necessary
Q: What are the conditions before permitting job or desirable in the usual business of the employer.
contracting?
It cannot be gainsaid that the activities of the
A: contracted workers are always necessary or desirable;
1. The labor contractor must be even that they are directly related to the main business
duly licensed by the appropriate Regional of the principal. The primordial consideration should
Office of the DOLE be the control test. Hence, if the arrangement passes
2. There should be a written the control test, it is job contracting. If it fails, it is
contract between the labor contractor laboronly contracting.
and his clientEr that will assure the Ees at
least the minimum labor standards and Q: Distinguish between job contracting and labor
benefits provided by existing laws. only contracting

Note: The Ees of the contractor or subcontractor shall A:


be paid in accordance with the provisions of the LC.
(Art. 106) JOB CONTRACTING

Q: What is laboronly contracting? Liability is limited (shall be


solidarily liable with
A: It refers to an arrangement where the following
conditions concur:
only when the Er fails to
1. The person supplying workers to
an Er does not have substantial capital or comply
investment in the form of tools,
equipment, machineries, work, premises, unpaid
among others, or labor standards violations)
2. Even if such person has
Permissible,
substantial assets, the same are not
actually or directly used by the Ees
contracted out; to certain conditions
3. The workers recruited and placed The
by such person are performing activities
which are directly related to the principal substantial
business of such Er.
investment
Q: Why is labor only contracting prohibited?
Q: SMPC entered into a contract with Arnold for
the milling of lumber as well as the hauling of
waste wood products. The company provided the
equipment and tools because Arnold had neither
tools and equipment nor capital for the job.
Arnold, on the other hand, hired his the job. Their wages were paid by SMPC to Arnold,
friends, relatives and neighbors for based on their

LABOR LAW TEAM:


78 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

production or the number of workers and the time 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])

Q: What are the grounds for delisting of 1.Serious Misconduct


contractors or subcontractors?
Q: What is serious misconduct?
A:
1. Nonsubmission of contracts A: It is an improper or wrong conduct; the
between the principal and the contractor transgression of some established and definite rule
or subcontractor when required to do so; of action, a forbidden act, a dereliction of duty,
2. Nonsubmission of annual report; willful in character, and implies wrongful intent and
3. Findings through arbitration that not mere error in judgment. To be serious within
the contractor or subcontractor has the meaning and intendment of the law, the
engaged in laboronly contracting and misconduct must be of such grave and aggravated
other prohibited activities; character and not merely trivial or unimportant.
4. Noncompliance with labor (Villamor Golf Club v. Pehid, G.R. No. 166152, Oct. 4,
standards and working conditions. (Sec. 2005)
16, D.O. 1802)
Q: What are the elements of serious misconduct?
Q: What are the effects of finding that there is
laboronly contracting? A:
1. It must be serious or of such a
A: A finding that a contractor is a laboronly grave and aggravated character;
contractor is equivalent to declaring that there is an 2. Must relate to the performance
employeremployee relationship between the of the employees (Ee) duties;
principal and the employees of the laboronly 3. Ee has become unfit to continue
contractor. (Assoc. AngloAmerican Tobacco Corp. working for the employer. (Philippine
v. Clave, G.R. No. 50915, Aug. 30, 1990) Aeolus Automotive United Corp. v. NLRC,
G.R. No. 124617, April 28, 2000)
2.TERMINATION OF EMPLOYMENT
Q: Give some examples of serious misconduct.
a.Substantive due process
A:
Q: What is Substantive due process?
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

1. Sexual harassment 2. The disobeyed orders,


2. Fighting within the company regulations or instructions of the Er must
premises be:
3. Uttering obscene, insulting or a. Reasonable and lawful
offensive words against a superior b. Sufficiently made known to the Ee
4. Falsification of time records c. Must pertain to or be in
5. Gross immorality connection with the duties which the
Ee has been engaged to discharge.
Q: Escando, upset at his transfer to the washer (Cosep V. NLRC, G.R. No. 124966 June
section, repeatedly uttered gago ka and 16, 1998)
threatened bodily harm to his superior Mr. Andres.
Is the utterance of the obscene words and threats Note: There is no law that compels an Ee to accept a
of bodily harm gross and willful misconduct? promotion for the reason that a promotion is in the
nature of a gift or reward, which a person has the right
A: Yes. The repeated utterances by Escando of to refuse. The exercise of the Ee of the right to refuse a
obscene, insulting or offensive words against a promotion cannot be considered in law as
insubordination or willful disobedience. (PT&T Corp. v.
superior were not only destructive of the morals of
CA, G.R. No. 152057, Sep. 29, 2003)
his coemployees (Ees) and a violation of the
company rules and regulations, but also constitute
Q: The company vehicle was brought out of the
gross misconduct which is one of the grounds
company premises without authorization twice. In
provided by law to terminate the services of an Ee.
the first instance the company opted not to
(Autobus Workers Union v. NLRC, G.R. No. 11753,
implement any action against Dioks and instead
June 26, 1998)
issued a memorandum reiminding Dioks as well as
Q: Samson made insulting and obscene utterances the security guards of the proper procedure.
towards the General Manager saying Si EDT However, in the second instance the vehicle met
bullshit yan, sabihin mo kay EDT yan among an accident. Is Dioks guilty of willful disobedience
others during the Christmas party. Are the even though he was not the one who personally
utterances towards the General Manager gross brought the company vehicle out of the company
misconduct? premises and was merely a passenger in the
second incident?
A: The alleged misconduct of Samson when viewed
in its context is not of such serious and grave A: Yes. A rule prohibiting Ees from using company
character as to warrant his dismissal. Samson made vehicles for private purpose without authority from
the utterances and obscene gestures at an informal management is a reasonable one. When Dioks rode
Christmas gathering and it is to be expected during the company vehicle he was undoubtedly aware of
this kind of gatherings, where tongues are more the possible consequences of his act and taking into
often than not loosened by liquor of other alcoholic consideration his moral ascendancy over the
beverages, that employees (Ees) freely express their security guards it was incumbent upon him not only
grievances and gripes against their employers (Ers). to admonish them but also to refrain from using the
Ees should be allowed wider latitude to freely company car himself. (Family Planning Org. of the
express heir grievances and gripes against their Er. Phil. v. NLRC, G.R. No. 75907, Mar. 23, 1992)
Ees should be allowed wider latitude to freely
Q: Escobins group were security guards based in
express their sentiments during these kinds of
Basilan. They were placed in floating status and
occasions which are beyond the disciplinary
were asked to report for reassignment in Metro
authority of the Er. (Samson v. NLRC, G.R. No.
Manila by PISI. Upon failure to report or respond
121035, April 12, 2000)
to such directives they were ordered dismissed
from employment by PISI for willful disobedience.
2.Willful Disobedience
Did the failure to report to Manila amount to
willful disobedience?
Q: When is willful disobedience of the Ers lawful
orders a just cause for termination?
A: The reasonableness of the rule pertains to the
kind of character of directives and commands and
A: 2 requisites must concur:
to the manner in which they are made. In this case,
the order to report to the Manila office fails to meet
1. The employees (Ees) assailed
this standard. The order to report to Manila was
conduct must have been willful or
inconvenient, unreasonable, and prejudicial to
intentional, the willfulness being
Escobins group since they are heads of families
characterized by a wrongful and perverse
residing in Basilan and they were not given
attitude.

LABOR LAW TEAM:


80 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

transportation money or assurance of availability of A: Yes, failure to observe prescribed standards of


work in Manila. (Escobin v. NLRC, G.R. No. 118159. work, or to fulfill reasonable work assignments due
April 15, 1998) to inefficiency may constitute just cause for
dismissal. Such inefficiency is understood to mean
3.Negligence failure to attain work goals or work quotas, either
by failing to complete the same within the allotted
Q: When is negligence a just cause for reasonable period, or by producing unsatisfactory
termination? results. (Buiser v. Leogardo, G.R. No. L63316, July
31, 1984)
A: When it is gross and habitual.
This ground is considered analogous to those
Q: When is there Gross Negligence? enumerated under Art. 282. (Skippers United Pacific
v. Magud, G.R. No. 166363, Aug. 15, 2006)
A: Gross negligence implies a want or absence of or
failure to exercise slight care of diligence of the Q: Gamido was a quality control inspector of VH
entire absence of care it evinces thoughtless Manufacturing. Gamido was allegedly caught by
disregard of consequences without exerting any the company Pres. Dy Juanco of sleeping and was
effort to avoid them. However, such neglect must dismissed from employment. Did Gamidos act of
not only be gross but habitual in character. (Judy sleeping on the job constitute a valid cause of
Phils. v. NLRC, G.R. No. 111934, April 29, 1998) dismissal?

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

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

more determinative factor, being money or property to this class


manifested by some overt acts. (Sta. belong cashiers, auditors, property
Catalina College s. NLRC, G.R. No. 144483, custodians, etc., or those who, in the
Nov. 19, 2003) normal and routine exercise of their
functions, regularly handle
Q: How to prove abandonment? significant amounts of money or
property. (Mabeza v. NLRC, G.R. No.
A: To prove abandonment, the Er must show that 118506 April 18, 1997)
the Ee deliberately and unjustifiably refused to
resume his employment without any intention of 2. The loss of trust and confidence
returning. There must be a concurrence of the must be based on willful breach.
intention to abandon and some overt acts from
which an Ee may be deduced as having no more Note: A breach is willful if it is done
intention to work. The law, however, does not intentionally, knowingly, and purposely
enumerate what specific overt acts can be without justifiable excuse, as distinguished
considered as strong evidence of the intention to from an act done carelessly, thoughtlessly,
sever the EeEr relationship. (Sta. Catalina College heedlessly, or inadvertently (De la Cruz v.
v. NLRC, G.R. No. 144483. Nov. 19, 2003) NLRC, G.R. No. 119536, Feb. 17, 1997)

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

4. Must be genuine, not a mere An investigation was promptly launched by the


afterthought to justify earlier action taken companys officers. Abel attended the meetings
in bad faith and but claimed that he was neither asked if he
5. The Ee involved holds a position of needed the assistance of counsel nor allowed to
trust and confidence properly present his side. By memo, the company
found Abel guilty of (1) fraud resulting in loss of
Note: The breach of trust must rest on substantial trust and confidence and (2) gross neglect of duty,
grounds and not on the Ers arbitrariness, whims, and was meted out the penalty of dismissal from
caprices, or suspicion; otherwise, the Ee would employment. Was Abel validly dismissed for any of
eternally remain at the mercy of the Er. It should be the causes provided for in Art. 282 of the LC?
genuine and not simulated, nor should it appear as a
mere afterthought to justify earlier action taken in bad A: No. The 1st requisite for dismissal on the ground
faith of a subterfuge for causes which are improper, of loss of trust and confidence is that the Ee
illegal, or unjustified. It has never been intended to concerned must be holding a position of trust and
afford and occasion for abuse because of its subjective confidence. Abel was a contract claims assistant at
nature. There must, therefore, be an actual breach of the time he allegedly committed the acts which led
dully committed by the employee which must be
to its loss of trust and confidence. It is not the job
established by substantial evidence. (Dela Cruz v.
title but the actual work that the Ee performs. It
NLRC, G.R. No. 119536, Feb. 17, 1997)
was part of Abels responsibilities to monitor the
performance of the companys contractors in
Q: Mabeza a chambermaid at Hotel Supreme was
relation to the scope of work contracted out to
terminated from employment because of her
them.
refusal to sign an affidavit attesting to their
employers (Ers) compliance with minimum wage
The 2nd requisite is that there must be an act that
and other labor standards. Mabeza filed a
would justify the loss of trust and confidence. Loss
complaint for illegal dismissal against Hotel
of trust and confidence, to be a valid cause for
Supreme. As a defense, Hotel Supreme claimed
dismissal, must be based on a willful breach of trust
that she abandoned her work and belatedly
and founded on clearly established facts. The basis
claimed loss of confidence as the ground for the
for the dismissal must be clearly and convincingly
dismissal of Mabeza because she stole some of the
established but proof beyond reasonable doubt is
properties of her Er. Is loss of confidence a valid
not necessary. The companys evidence against Abel
ground for dismissal of a hotel chambermaid?
fails to meet this standard. Its lone witness, Lupega,
did not support his affidavit and testimony during
A: No. Loss of confidence as a just cause for
the company investigation with any piece of
dismissal was never intended to provide Ers with a
evidence at all. It could hardly be considered
blank check for terminating their Ees. Evidently, an
substantial evidence. (Abel v. Philex Mining Corp.,
ordinary chambermaid who has to sign out for linen
G.R. No. 178976, July 31, 2009, J. CarpioMorales)
and other hotel property from the property
custodian each day and who has to account for each
6.Termination of Employment pursuant to Union
and every towel or bed sheet utilized by the hotel's
Security Clause
guests at the end of her shift would not fall under
any of these two classes of Ees for which loss of
Q: MSMG was a local union affiliated with ULGWP
confidence, if ably supported by evidence, would
a national federation. MSMG had a dispute with
normally apply. (Mabeza v. NLRC, G.R. No. 118506,
ULGWP over an imposition of a fine prompting
April 18, 1997)
MSMG to declare independence from ULGWP.
Because of the dispute, ULGWP asked for the
Q: Abelardo Abel was first hired by Philex Mining
dismissal from employment of the officers of
Corp. in Jan. 88. He was later assigned to the
MDMG from the company by virtue of a union
companys Legal Dept as a Contract Claims Asst.,
security clause in the CBA. The company dismissed
and held the position for 5 yrs prior to his transfer
the officers. Does a union security clause absolve
to the Mine Engg and Draw Control Dept wherein
the company form observing the requirement of
he was appointed Unit Head. In 02, he was
due process?
implicated in an irregularity occurring in the
subsidence area of the companys mine site at
A: Although union security clauses embodied in the
Benguet. His coworker Danilo, executed an
CBA may be validly enforced and dismissals
affidavit known as the Subsidence Area
pursuant thereto may likewise be valid, this does
Anomaly. The incidents in Lupegas affidavit
not erase the fundamental requirement of due
supposedly took place when Abel was still a
process. An employer cannot merely rely upon a
Contract Claims Asst. at the companys legal dept.
labor federations allegations in terminating union

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

officers expelled by the federation for allegedly 9.Analogous Cases


committing acts of disloyalty and/or inimical to the
interest of the federation and in violation of its Q: What is required for an act to be included in
constitution and by laws. analogous cases of just causes of termination?

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.

LABOR LAW TEAM:


84 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

4. Retrenchment cutting of expenses Purpose: To enable it to ascertain the


and includes the reduction of personnel; verity of the cause of termination.
It is a management prerogative, a means
to protect and preserve the Ers viability 2. Written notice to Ee concerned
and ensure his survival. To be an 30 days prior the intended date of
authorized cause it must be affected in termination.
good faith (GF) and for the retrenchment,
which is after all a drastic recourse with 3. Payment of separation pay
serious consequences for the livelihood of Serious business losses do not excuse the
the Ees or otherwise laidoff. Er from complying with the clearance or
report required in Art. 283 of the LC and
Note: The phrase to prevent losses means its IRR before terminating the
that retrenchment or termination from the employment of its workers. In the
service of some Ees is authorized to be absence of justifying circumstances, the
undertaken by the Er sometime before the failure of the Er to observe the procedural
anticipated losses are actually sustained or reqts under Art. 284 taints their
realized. Evidently, actual losses need not set actuations with bad faith if the layoff was
in prior to retrenchment. (Cajucom VII v. TP temporary but then serious business
Phils Cement Corp., et al, G.R. No. 149090, losses prevented the reinstatement of
Feb. 11, 2005) respondents, the Ers should have
complied with the reqts of written notice.
5. Closing or cessation of operation of
the establishment or undertaking must
Redundancy
be done in good faith and not for the
purpose of circumventing pertinent labor
Q: What are the requisites of a valid redundancy?
laws.
A:
6. Disease must be incurable within
1. Written notice served on both
6 months and the continued employment
the employees (Ees) and the DOLE at least
is prohibited by law or prejudicial to his
1 month prior to separation from work
health as well as to the health of his co
2. Payment of separation pay
Ees with a certification from the public
equivalent to at least 1 month pay or at
health officer that the disease is incurable
least 1 month pay for every year of
within 6 months despite due to
service, whichever is higher
medication and treatment
3. Good faith in abolishing
redundant position
Q: What are other authorized causes?
4. Fair and reasonable criteria in
ascertaining what positions are to be
A:
declared redundant:
1. Total and permanent disability of Ee
a. Less preferred status, e.g.
2. Valid application of union security
temporary Ee
clause
b. Efficiency and
3. Expiration of period in term of
c. Seniority
employment
4. Completion of project in project
Q: Ong, a Sales Manager of Wiltshire File Co., Inc.,
employment
was informed of the termination of his
5. Failure in probation
employment due to redundancy upon returning
6. Relocation of business to a distant
from a trip abroad. Ong maintains that there can
place
be no redundancy since he was the only person
7. Defiance of returnto workorder
occupying his position in the company.
8. Commission of Illegal acts in strike
9. Violation of contractual agreement
Is there redundancy even though Ong was the only
10. Retirement one occupying his position.
Q: What are the procedural steps required in A: Redundancy in an employers (Ers) personnel
termination of an employee for authorized causes? does not necessarily or even ordinarily refer to
duplication of work. The characterization ofOngs
A: services as no longer necessary or sustainable and
1. Written Notice to DOLE 30 days therefore properly terminable, was an exercise of
prior to the intended day of termination. business judgment on the part of Wiltshire.

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

Furthermore, a position is redundant where it is


superfluous, and superfluity of a position or Retrenchment is a means of last resort.
positions may be the outcome of a number of
factors, such as over hiring of workers, decreased Q: What are the requisites of a valid
volume of business, or dropping of a particular retrenchment?
product line or service activity previously
manufactured or undertaken by the enterprise. The A:
Er has no legal obligation to keep in its payroll more 1. Written notice served on both
employees that are necessary for the operation of the Ee and the DOLE at least 1 month
its business. (Wiltshire File Co., Inc. v. NLRC, G.R. No. prior to the intended date of
82249, Feb. 7, 1991) retrenchment
2. Payment of separation pay
Retrenchment equivalent to at least one month pay or at
least 1/2 month pay for every year of
Q: What are the circumstances that must be service, whichever is higher
present for a valid retrenchment? 3. Good faith
4. Proof of expected or actual losses
A: 5. The employer used fair and
reasonable criteria in ascertaining who
1. The losses expected should be would be retained among the Ees, such as
substantial and not merely de minimis in status, efficiency, seniority, physical
extent If the loss purportedly sought to fitness, age, and financial hardship of
be forestalled by retrenchment is clearly certain workers (Asian Alcohol Corp. v.
shown to be insubstantial and NLRC, G.R. No. 131108, Mar. 25, 1999).
inconsequential in character, the bona
fide nature of the retrenchment would Q: What are the criteria in selecting employees
appear to be seriously in question. (Ees) to be retrenched?

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

LABOR LAW TEAM:


86 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

company from closing shop. In determining these 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.

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

(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

LABOR LAW TEAM:


88 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

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.

One of the prerogatives

of

decision

entire establishment or

to

department

thereof

reasons,

minimize expenses and

reduce capitalization.

Does not obligate the Er

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)

Q: What is the procedure in terminating an employee Q: Is the requirements of a medical certificate


(Ee) on the ground of disease? mandatory?

A: A: Yes, it is only where there is a prior certification


1. The employer (Er) shall not terminate from a competent public authority that the disease
his employment unless:

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

afflicting the employee sought to be dismissed is of Closures or cessation


such nature or at such stage that it cannot be cured
within 6 months even with proper medical of operation not due
treatment that the latter could be validly
terminated from his job. (Tan v. NLRC, G. R. No.
to
116807, April 14, 1997)

Note: Termination from work on the sole basis of business


actual perceived or suspected HIV status is deemed
unlawful. (Sec. 35, R.A. 8504 HIV/AIDS Law) losses/financial

Q: Anna Ferrer has been working as bookkeeper reverses


at Great Foods, Inc., which operates a chain of
highend restaurants throughout the country,
since 1970 when it was still a small eatery at
Binondo. In the early part of the year 2003, Anna, Disease
who was already 50 years old, reported for work
after a weeklong vacation in her province. It was
the height of the SARS scare, and management
learned that the first confirmed SARS death case Note: A fraction of at least 6 months shall be
in the Phils, a balikbayan nurse from Canada, is considered 1 whole year.
a townmate of Anna. Immediately, a
memorandum was issued by management There is no separation pay when the closure is due to
terminating the services of Anna on the ground an act of the govt.
that she is a probable carrier of SARS virus and
that her continued employment is prejudicial to Q: What is the purpose of the 2 notices served to
the health of her coEes. Is the action taken by the the Ee and DOLE 1 month prior to termination?
employer (Er) justified?
A:
A: The Ers act of terminating the employment of 1. To give the Ees some time to
Anna is not justified. There is no showing that said prepare for the eventual loss of their jobs
employee is sick with SARS, or that she associated or and their corresponding income, look for
had contact with the deceased nurse. They are other employment and ease the impact of
merely town mates. Furthermore, there is no the loss of their jobs.
certification by a competent public health authority 2. To give DOLE the opportunity to
that the disease is of such a nature or such a stage ascertain the verity of the alleged cause of
that it cannot be cured within a period of 6 months termination. (Phil. Telegraph & Telephone
even with proper medical treatment. (Implementing Corp. v. NLRC, G.R. No. 147002, April 15,
Rules, Book VI, Rule 1, Sec. 8, LC) (2004 Bar 2005)
Question)
Note: Notice to both the Ees concerned and the DOLE
Q: Discuss the rules on separation pay with regard are mandatory and must be written and given at least
to each cause of termination. 1 month before the intended date of retrenchment
and the fact that the Ees were already on temporary
A: layoff at the time notice should have been given to
them is not an excuse to forego the 1month written
notice. (Sebuguero v. NLRC, G.R. No.115394, Sep. 27,
1995)

Q: DAP Corp. ceased its operation due to the


termination of its distribution agreement with Intl
Distributors Corp. which resulted in its need to
cease its business operations and to terminate the
Automation employment of its Ees. Marcial et al. filed a
complaint for illegal dismissal and for failure to
give the Ees written notices regarding the
termination of their employment. On the other
hand, DAP claims that their Ees actually knew of
Redundancy the termination therefore the written notices were
no longer required. Are written notices dispensed
with when the Ees have actual knowledge of the
redundancy?
Retrenchment
A: The Ees actual knowledge of the termination of
a companys distributorship agreement with
another company is not sufficient to replace the
formal and written notice required by
law. In the
LABOR LAW TEAM:
90 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

written notice, the Ees are informed of the specific 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?

LABOR LAW TEAM:


92 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

A: No, In Agabon v. NLRC, G.R. No. 158693, Nov. 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?

A: An Ee who is unjustly dismissed from work shall A:


by entitled to:
1. Reinstatement without loss of
Art. 279
seniority rights and
2. Full backwages. (Sec. 3, Rule I, Book Presupposes
VI, IRR) judgment
3. Separation pay in lieu of become
reinstatement, if the latter is no longer executory.
feasible
Consequently,
Q: What is reinstatement? nothing left to be done
except
A: It is the restoration of the employee to the state
thereof.
from which he has been unjustly removed or
separated without loss of seniority rights and other
Note: An award or order for reinstatement is self
privileges.
executory. It does not require the issuance of a writ of
execution. (Pioneer Texturizing Corp. v. NLRC, G.R. No.
(a)Immediately executory: actual reinstatement and 118651, Oct. 16, 1997)
payroll reinstatement
Q: PAL dismissed Garcia, for violating PALs Code of
Q: What are the forms of reinstatement? Discipline for allegedly sniffing shabu in PALs
Technical Center Toolroom Section. Garcia then
A: filed for illegal dismissal and damages where the
1. Actual or physical the employee Labor Arbiter (LA) ordered PAL to immediately
(Ee) is admitted back to work reinstate Garcia. On appeal, the NLRC reversed the
2. Payroll the Ee is merely reinstated decision and dismissed Garcias complaint for lack
in the payroll of merit. Garcias motion for reconsideration was
denied by the NLRC. It affirmed the validity of the
writ and the notice issued by the LA but suspended
and referred the action to the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


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

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.

LABOR LAW TEAM:


94 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

3. 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

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

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: Differentiate Art. 279 of the LC from Sec. 7 of 1. Actual reinstatement, or if


R.A. 10022. reinstatement is no longer feasible
2. Finality of judgment awarding
A: backwages (Buhain v. CA, G.R. 143709,
July 2, 2002)

Note: The backwages to be awarded should not be


diminished or reduced by earnings elsewhere during
the period of his illegal dismissal. The reason is that the
Ee while litigating the illegality of his dismissal must
earn a living to support himself and his family.
(Bustamante v. NLRC, G.R. No. 111651, Mar. 15, 1996;
Buenviaje v. CA, G.R. No. 147806, Nov. 2002)

(a)Components of the amount of backwages

Q: What is included in the computation of


backwages?

A: They cover the following:

(3)Backwages 1. Transportationand emergency


allowances
Q: What are backwages?
2. Vacation or service incentive
A: It is the relief given to an employee (Ee) to leave and sick leave
th
compensate him for the lost earnings during the 3. 13 month pay
period of his dismissal. It presupposes illegal
termination. Note: Facilities such as uniforms, shoes, helmets and
ponchos should not be included in the computation of
Note: Entitlement to backwages of the illegally backwages because said items are given for free, to be
dismissed Ee flows from law. Even if he does not ask for use only during official tour of duty not for private or
it, it may be given. The failure to claim backwages in personal use.
the complaint for illegal dismissal is a mere procedural
lapse which cannot defeat a right granted under The award of backwages is computed on the basis of
substantive law. (St. Michaels Institute v. Santos, G.R. 30day month. (JAM Trans Co. v. Flores, G.R. No. L
No. 145280, Dec. 4, 2001) 63555, Mar. 19, 1993)

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

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 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

LABOR LAW TEAM:


98 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

unconscionably low and that the petitioners had 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)

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: 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)

A: Q: What comprises month salary or retirement


1. Optional 60 years old / 5 years in pay?
service (includes authorized absences,
vacations, regular holidays, mandatory A: Unless parties provide for broader inclusions:
military or civic service) 1. 15 days salary based on latest salary rate;
2. Cash equivalent of not more
Note: The option to retire upon reaching the than 5 days of service incentive leaves
age of 60 years or more but not beyond 65 is (22.5/year of service)
th
the exclusive prerogative of the employee 3. 1/12 of the 13 month pay
(Ee) if there is no provision on retirement in 4. All other benefits as may be
a CBA or any other agreement or if the agreed upon by the employer and
employer (Er) has no retirement plan. (R.A. employee (Ee). (Sec.5.2, Rule II, Book VI,
7641; Capili v. NLRC, G.R. No. 117378, Mar. IRR)
26, 1997)

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

LABOR LAW TEAM:


100 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

years of service, whichever comes first. Rivera 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.

A: No. Whether these terms included renewed


coverage in the retirement plan is an evidentiary Should the gratuity pay be deducted from the
gap that could have been conclusively shown by retirement benefits?
evidence of deductions of contributions to the plan
after 1988. Two indicators, however, tell us that no A: No. As for the ruling of the CA affirming that of
such coverage took place. The first is that the terms the NLRC that the P12,000 gratuity pay earlier
of the retirement plan, before and after its 1992 awarded to Hilaria should not be deducted from the
amendment, continued to exclude those who have retirement benefits due her, the same is in order.
rendered 30 years of service or have reached 60 Gratuity pay is separate and distinct from
years of age. Therefore, the plan could not have retirement benefits. It is paid purely out of
covered her. The second is the absence of evidence generosity.
of, or of any demand for, any reimbursement of
what Rivera would have paid as contributions to the Q: What is the difference between gratuity pay
plan had her coverage and deductions continued and retirement benefits?
after 1988. Thus, the Court concludes that her
renewed service did not have the benefit of any A:
retirement plan coverage. (Rivera v. United
Laboratories, Inc., G.R. No. 155639, April 22, 2009)

Q: Is a special retirement plan different from those


contemplated under the LC as agreed upon by the
parties valid?

A: Yes. A pilot who retires after 20 years of service


or after flying 20,000 hours would still be in the
prime of his life and at the peak of his career,
compared to one who retires at the age of 60 years
old. Based on this peculiar circumstance that PAL
pilots are in, the parties provided for a special
scheme of retirement different from that
contemplated in the LC. Conversely, the provisions
of Art. 287 of the LC could not have contemplated
the situation of PAL's pilots. Rather, it was intended
for those who have no more plans of employment
after retirement, and are thus in need of financial b. Retirement pay under RA 7641 vis
assistance and reward for the years that they have
vis retireent benefits under SSS and GSIS
rendered service. (PAL v. Airline Pilots Assn of the
laws
Phils., G.R. No. 143686, Jan.15, 2002)
Q: What is retirement pay under the LC in relation
to retirement benefits under SSS and GSIS laws?

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:

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.

Note: The Ees Compensation Commission shall ensure


adequate coverage of Filipino Ees employed abroad,
subject to regulations as it may prescribe. (Art. 170)
Any person compulsorily covered by the GSIS
including the members of the AFP, and any person
employed as casual, emergency, temporary, substitute
or contractual, or any person compulsorily covered by
the SSS are covered by the Ees Compensation Program.
(1997 Bar Question)
LABOR LAW TEAM:
102 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
MANAGEMENT PREROGATIVE

E. MANAGEMENT PREROGATIVE the school's laudable mission which, as


already stated, accords with high
Q: What is Management Prerogative? constitutional precepts. This answer does
not contradict the ruling in ChuaQua
A: where the teacher merely fell in love with
GR: It is the right of an Er to regulate, a bachelor student and the teacher, also
according to his own discretion and judgment, single, did not get pregnant out of
all aspects of employment, including: wedlock. (2000 Bar Question)
1. Hiring
2. Work assignments Q: Little Hands Garment Company, an unorganized
3. Working methods manufacturer of children's apparel with around
4. Time, place and manner of work 1,000 workers, suffered losses for the 1st first time
5. Tools to be used in history when its US and European customers
6. Processes to be followed shifted their huge orders to China and Bangladesh.
7. Supervision of workers The management informed its Ees that it could no
8. Working regulations longer afford to provide transportation shuttle
9. Transfer of Ees services. Consequently, it announced that a
10. Work supervision normal fare would be charged depending on the
11. Layoff of workers distance traveled by the workers availing of the
12. Discipline service.
13. Dismissal
14. Recall of workers Was the Little Hands Garments Company within its
rights to withdraw this benefit which it had
XPNs: Otherwise limited by special laws. unilaterally been providing to its Ees?

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?

LABOR LAW TEAM:


104 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
MANAGEMENT PREROGATIVE

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)

5.CHANGE OF WORKING HOURS Q: Peds was employed by Glaxo as medical


representative who has a policy against Ees having
Q: Discuss briefly the Ers right to change working relationships against competitors Ees. Peds
hours. married Jali, a Branch coordinator of Astra, Glaxos
competitor. Peds was transferred to another area.
A: Wellsettled is the rule that management retains Peds did not accept such transfer. Is the policy of
the prerogative, whenever exigencies of the service Glaxo valid and reasonable so as to constitute the
so require, to change the working hours of its Ees. act of Peds as willful disobedience?

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 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

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?

A: No. There is a distinction between restrictive


covenants barring an Ee to accept a post
employment competitive employment or restraint
on trade in employment contracts and restraints on
postretirement competitive employment in
pension and retirement plans either incorporated in
employment contracts or in collective bargaining
agreements between the Er and the union of Ees, or
separate from said contracts or collective bargaining
agreements which provide that an Ee who accepts
post retirement competitive employment will forfeit
retirement and other benefits or will be obliged to
restitute the same to the employer. The strong
weight of authority is that forfeitures for engaging
in subsequent competitive employment included in
pension and retirement plans are valid even though
unrestricted in time or geography. A postretirement
competitive employment restriction is designed to
protect the Er against competition by former Ee
who may retire and obtain retirement or pension
benefits and, at the same time, engage in
competitive employment. (Rivera vs. Solidbank,
G.R. No. 163269, April 19, 2006)

8.LIMITATIONS IN ITS EXERCISE

Q: Is the exercise of management prerogative


unlimited?

A: No. It is circumscribed by limitations found


in:
1. Law,
2. CBA, or

LABOR LAW TEAM:


106 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION

F. SOCIAL LEGISLATION A:
DISPUTE SETTLEMENT
Q: What is Social Legislation? Disputes involving:

A: It consists of statutes, regulations and


jurisprudence that afford protection to labor,
especially to working women and minors, and is in
full accord with the constitutional provisions on the
promotion of social justice to insure the well being
and economic security of all the people.

1.SOCIAL SECURITY LAW


(RA 8282)

Q: What is the policy objective in the enactment


of
(SSS) Law?

A: It is the policy of the State to establish, develop,


promote and perfect a sound and viable taxexempt
SSS suitable to the needs of the people throughout
the Phils., which shall promote social justice and
provide meaningful protection to members and
their beneficiaries against the hazards of disability,
sickness, maternity, old age, death, and other
contingencies resulting in loss of income or financial
burden. (Sec. 2)

The enactment of SSS law is a legitimate exercise of


the police power. It affords protection to labor and
is in full accord with the constitutional mandate on
the promotion of social justice. (Roman Catholic
Archbishop of Manila v. SSS, G.R. No. 15045 Jan. 20,
1961)

Q: Are the premiums considered as taxes?


Q: Can the SSC validly reevaluate the findings of
A: No. The funds contributed to the System belong the RTC, and on its own, declare the latters
to the members who will receive benefits, as a decision to be bereft of any basis?
matter of right, whenever the hazards provided by
the law occur. (CMS Estate, Inc., v. SSS, G.R. No. A: No. It cannot review, much less reverse,
26298 Sep.28, 1984) decisions rendered by courts of law as it did in the
case at bar when it declared that the CFI Order was
Q: Are benefits received under SSS Law part of the obtained through fraud and subsequently
estate of a member? disregarded the same, making its own findings with
respect to the validity of Bailon and Alices marriage
A: No. Benefits receivable under the SSS Law are in on the one hand and the invalidity of Bailon and
the nature of a special privilege or an arrangement Teresitas marriage on the other. In interfering with
secured by the law pursuant to the policy of the and passing upon the CFI Order, the SSC virtually
State to provide social security to the workingman. acted as an appellate court. The law does not give
The benefits are specifically declared not the SSC unfettered discretion to trifle with orders of
transferable and exempt from tax, legal processes regular courts in the exercise of its authority to
and liens. (SSS v. Davac, et. al., G.R. No.21642, July determine the beneficiaries of the SSS. (SSS vs.
30, 1966) Teresita Jarque Vda. De Bailon, G.R. No. 165545,
Mar. 24, 2006, J. CarpioMorales)
Q: How are disputes settled?
Q: Who is an employer (Er)?

A: Any person, natural or juridical, domestic or


foreign, who carries into the Phils. any trade,
business, industry, undertaking or activity of any
kind and uses the services of another person who is
under his orders as regards the employment, except
the Government and any of its political subdivisions,
branches or instrumentalities, including
corporations owned or controlled by the
Government: Provided, That a selfemployed person
shall be both Ee and Er at the same time. (Sec 8[c])
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

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

LABOR LAW TEAM:


108 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION

instrumentality employing workers in the 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.

A: b.Exclusions from coverage


1. Employer on the first day of
operation Q: Enumerate the kinds of employment which are
2. Employee on the day of his excepted from compulsory coverage under the SSS
employment Law.
3. Compulsory coverage of self
employed upon his registration with the A: Under Section 8(j) of R.A. 1161, as amended, the
SSS following services or employments are excepted
from coverage:
Q: What is the effect of separation of an employee
from his employment under compulsory coverage? 1. Employment purely casual and
not for the purpose of occupation or
A: business of the employer;
1. His Ers obligation to contribute
arising from that employment shall cease 2. Service performed on or in
at the end of the month of separation, connection with an alien vessel by an
2. But said Ee shall be credited with all employee if he is employed when such
contributions paid on his behalf and vessel is outside the Philippines;
entitled to benefits according to the
provisions of R.A. 9282. 3. Service performed in the
3. He may, however, continue to pay employ of the Philippine Government or
the total contributions to maintain his instrumentality or agency thereof;
right to full benefit. (Sec. 11)
4. Service performed in the
Note: The above provision recognizes the once a employ of a foreign government or
member, always a member rule. international organization, or their wholly
owned instrumentality:
Q: What is the effect of interruption of business or
professional income? Provided, however, That this exemption
notwithstanding, any foreign government,
A: If the selfemployed member realizes no income international organization or their wholly
in any given month: owned instrumentality employing workers
in the Philippines or employing Filipinos
1. He shall not be required to pay outside of the Philippines, may enter into
contributions for that month. an agreement with the Philippine
2. He may, however, be allowed to Government for the inclusion of such
continue paying contributions under the employees in the SSS except those already
same rules and regulations applicable to a covered by their respective civil service
separated Ee member: retirement systems:Provided, further, That
3. Provided, that no retroactive the terms of such agreement shall
payment of contributions shall be allowed conform with the provisions of this Act on
other than as prescribed under Sec.22A. coverage and amount of payment of
(Sec. 11A) contributions and benefits: Provided,
finally, That the provisions of this Act shall
Q: On her way home from work, Asteria be supplementary to any such agreement;
Benedicta, a machine operator in a sash factory, and
enters a movie house to relax. But she is stabbed
by an unknown assailant. Her claim for benefits
under the SSS Law is denied on the ground that
her injury is not workconnected. Is the denial
legal? Why?

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

5. Such other services performed by iv. 2% of the average


temporary and other employees which monthly salary credit for each
may be excluded by regulation of the credited year of service in
Commission. Employees of bona fide excess of 10 years; or
independent contractors shall not be b. 40% of the average monthly
deemed employees of the employer salary credit; or
engaging the service of said contractors. c. P1,000.00, provided that the
monthly pension shall in no case be
c.Benefits paid for an aggregate amount of less
than sixty (60) months (Sec. 12 [a])
Q: What are the benefits under the SSS Act? 2. Minimum Pension
a. P1,200.00 members with at least
A: 10 credited years of service
1. Monthly Pension b. P2,400.00 for those with 20
2. Retirement Benefits credited years of service. (Sec. [b])
3. Death Benefits
4. Disability Benefits Q: What will happen to the monthly pension of a
5. Funeral Benefits retiree in case of death?
6. Sickness Benefits
7. Maternity Benefits A:
1. Upon the death of the retired
Q: Are the benefits provided for in the SSS Law member, his primary beneficiaries as of
transferable? the date of his retirement will get 100% of
his monthly pension plus the dependent's
A: Benefits provided for in the SSS Law are not pension for each child.
transferable and no power of attorney or other
document executed by those entitled thereto in Note: The above phrase primary
favor of any agent, attorney or any other person for beneficiaries (as of the date of his
the collection thereof on their behalf shall be retirement) was declared unconstitutional
by the SC in Dycaico v. SSS and SSC (G.R. No.
recognized, except when they are physically unable
16137, June 6, 2006) because it is in
to collect personally such benefits. (Sec.15, R.A.
violation of the equal protection, due
1161, as amended) process and social justice.

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

LABOR LAW TEAM:


110 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION

respective marriages to the SSS members were


contracted after the latters retirement; (2) due 3. A member
process clause because it outrightly deprives a. At least 60 years old at
spouses who married the SSS members after their retirement; and
retirement of the survivors pension, a property b. Does not qualify for pension
interest, without giving them opportunity to be benefits under paragraph (a) above
heard; and (3) social justice. entitled to a lump sum benefit equal
to the total contributions paid by him
Further, the survivorship pension applied for was and on his behalf;
classified as death benefits. Hence, the contingency c. Must be separated from
that gives rise to the entitlement of Elena is the employment and is not continuing
death of Bonifacio and not his retirement. (Dycaico payment of contributions to the SSS
v. SSS, G. R. No. 16137, June 6, 2006) on his own. (Sec. 12B [b])

Q: When is the monthly pension and dependents Q: What happens when the retirement pensioner
pension suspended? is reemployed or resumes selfemployment?

A: A: The monthly pension of a retirement pensioner


1. Upon the reemployment or who resumes employment and is less than 65 years
resumption of selfemployment old will be suspended. He and his Er will again be
2. Recovery of the disabled member subject to compulsory coverage. (Sec. 12B [c])
from his permanent total disability
3. Failure to present himself for Q: Are the children of a retiree member entitled
examination at least once a year upon to the dependent's pension?
notice by the SSS. (Sec. 13A [b])
A: Yes (Sec. 12[A]). However, only 5 minor children,
Retirement Benefit beginning from the youngest, are entitled to the
dependents' pension. No substitution is allowed.
Q:What is a retirement benefit? Where there are more than 5 legitimate and
illegitimate children, the legitimate ones will be
A: It is a cash benefit paid to a member who can no preferred.
longer work due to old age.
Q: For how long will the dependent child receive
Q:What are the types of retirement benefits? the pension?

A: A: Until the child reaches 21 years of age, gets


1. Monthly Pension Lifetime cash married, gets employed and earns P300 a month or
benefit paid to a retiree who has paid at more, or dies.
least 120 monthly contributions to the SSS
prior to the semester of retirement . However, the dependent's pension is granted for
2. Lump Sum Amount Granted to a life to children who are over 21 years old, provided
retiree who has not paid the required 120 they are incapacitated and incapable of selfsupport
monthly contributions. due to physical or mental defect which is congenital
or acquired during minority.
Q: Who are entitled for retirement benefits?
Death Benefit
A:
1. A member who Q: When is a beneficiary entitled to death
a. has paid at least 120 monthly benefits?
contributions prior to the semester of
retirement; A:
b. at least 60 years old; and 1. Upon death of a member, if he
c. already separated from has paid at least 36 monthly contributions
employment or has ceased to be self prior to the semester of death:
employed, OR a. primary beneficiaries shall be
entitled to the monthly pension; or
2. At least 65 years old, shall be b. If there are no primary
entitled for as long as he lives to the beneficiaries, secondary beneficiaries
monthly pension; (Sec 12B [a]) shall be

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

entitled to a lump sum benefit


equivalent to 36 times the monthly A: Disability pension shall cease upon his
pension. retirement or death. (Sec 13A [j])
2. Upon death of a member If he has
not paid the required 36 monthly Funeral Benefit
contributions prior to the semester of
death: Q: What is the funeral benefit?
a. Primary or secondary beneficiaries
shall be entitled to a lump sum A: A funeral grant equivalent to P12, 000.00 shall be
benefit equivalent to the monthly paid, in cash or in kind, to help defray the cost of
pension multiplied by the number of expenses upon the death of a member or retiree.
monthly contributions paid to the (Sec. 13B)
SSS: or
b. 12 times the monthly pension, Sickness Benefit
whichever is higher. (Sec. 13)
Q: What is sickness benefit?
Disability Benefit
A: It is a daily cash allowance paid for the number
Q: What is a disability benefit? of days a member is unable to work due to sickness
or injury.
A: It is a cash benefit paid to a member who
becomes permanently disabled, either partially or Q: What are the requirements to be entitled for
totally. sickness benefit?

Q: What is the difference between death benefits A:


and Permanent Total Disability benefits? 1. The member paid at least 3
monthly contributions in the 12month
A: period immediately preceding the
semester of sickness or injury
2. Confined for more than 3 days
in a hospital or elsewhere with the
Requisite
approval of the SSS
at least 36 monthly contributions 3. He has used all current
company sick leaves with pay for the
Benefits payable to whom current year
4. Notified his Er or the SSS, if he is
a separated, voluntary or selfemployed
member
Failure to make 36 monthly payments
Benefits shall be in lump sum equivalent to the Q: Who will pay sickness benefits? and how much
monthly pension times the number of monthly is the benefit?
contributions paid to SSS or 12 times the monthly
pension, whichever is higher.
A: The Er shall pay the:
1. Ee for each compensable
Q: What is the effect of the death of the PTD confinement or fraction thereof or
pensioner?
2. SSS if member is selfemployed
A: daily sickness benefit equivalent to 90% of
1. Primary beneficiaries are entitled his average daily salary credit, subject to
to receive monthly pension as of the date the following conditions:
of disability. a. In no case shall the daily
2. No primary beneficiaries and he sickness benefit be paid longer than
dies within 60 months from the start of 120 days in 1 calendar year, nor shall
his monthly pension secondary any unused portion of the 120 days
beneficiaries shall be entitled to a lump of sickness benefit granted be carried
sum benefit equivalent to the total forward and added to the total
monthly pensions corresponding to the number of compensable days
balance of the 5 year guaranteed period allowable in the subsequent year;
excluding the dependents pension. (Sec.
13A [c])

Q: What is the effect of retirement or death to


partial disability pension?
LABOR LAW TEAM:
112 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION

b. Not paid for more than 2. Er shall be reimbursed only for


240 days on account of the same each day of confinement starting from the
th
confinement; and 10 calendar day immediately preceding
c. Ee member shall notify his the date of notification to the SSS if the
Er of the fact of his sickness or injury notification to the SSS is made beyond 5
within 5 calendar days after the start calendar days after receipt of the
of his notification from the Ee member. (Sec. 14
confinementunless such [c])
confinement:
Q: When will reimbursement be made by SSS?
i. is in a hospital
ii. the Ee became sick or was A:GR: SSS shall reimburse the Er or pay the
injured while working or unemployed member only for confinement
within the premises of the Er within 1 year immediately preceding the date the
(notification to the Er not claim for benefit or reimbursement is received by
necessary); the SSS

3. If the member is unemployed or XPN: Confinement in a hospital in which case the


self employed, he shall directly notify the claim for benefit or reimbursement must be filed
SSS of his confinement within 5 calendar within 1 year from the last day of confinement.
days after the start thereof unless such (Sec. 14[c])
confinement is in a hospital in which case
notification is also not necessary; Maternity Benefit

4. Where notification is necessary, Q: What is the maternity benefit?


confinement shall be deemed to have
started not earlier than the 5th day A: The maternity benefit is a daily cash allowance
immediately preceding the date of granted to a female member who was unable to
notification. (Sec.14 [b]) work due to childbirth or miscarriage.

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?

Q: When will compensable confinement A:


commence? 1. She has paid at least three
monthly contributions within the 12
A: month period immediately preceding the
1. Begins on the 1st day of sickness semester of her childbirth or miscarriage.
2. Payment of such allowances shall be 2. She has given the required
promptly made by the Er: notification of her pregnancy through her
a. every regular payday or employer if employed, or to the SSS if
th
on the 15 and last day of each separated, voluntary or selfemployed
month, member.
b. in case of direct payment
by the SSS as long as such Q: Is the voluntary or selfemployed member also
allowances are due and payable. entitled to the maternity benefit?
(Sec. 14[b])
A: Yes, A voluntary or a selfemployed member is
Q: What are the requirements in order that Er may entitled to the maternity benefit provided that she
claim reimbursement of the sickness benefit? meets the qualifying conditions.

A: Q: How much is the maternity benefit?


1. 100% of daily benefits shall be
reimbursed by SSS if the following A: The maternity benefit is equivalent to 100 per
requirements are satisfied: cent of the members average daily salary credit
a. Receipt of SSS of multiplied by 60 days for normal delivery or
satisfactory proof of such payment miscarriage, 78 days for caesarean section delivery.
and legality thereof:
b. The Er has notified the SSS Q: How is the maternity benefit computed?
of the confinement within 5 calendar
days after receipt of the notification
from the Ee member:

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

any gainful occupation for


A: a continuous period
1. Exclude the semester of exceeding 120 days
contingency (delivery or miscarriage). regardless of whether he
loses the use of any of his
Note: Semester refers to two consecutive body parts.
quarters ending in the quarter of
contingency. Quarter refers to three d.Beneficiaries
consecutive months ending March, June,
September or December. Q: Who are primary beneficiaries?

2. Count 12 months backwards A:


starting from the month immediately 1. The dependent spouse until he
before the semester of contingency. or she remarries

3. Identify the six highest monthly 2. The dependent legitimate,


salary credits within the 12month period. legitimated or legally adopted, and
illegitimate children,: Provided, That the
Note: Monthly salary credit means the dependent illegitimate children shall be
compensation base for contributions entitled to 50% of the share of the
benefits related to the total earnings for the legitimate, legitimated or legally adopted
month. children.

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])

6. Multiply the daily maternity Q: Who are considered dependents?


allowance by 60 (for normal delivery or
miscarriage) or 78 days (for caesarean A:
section delivery) to get the total amount 1. The legal spouse entitled by law
of maternity benefit. to receive support from the member;
2. The legitimate, legitimated, or
Q: What is the difference of compensability under legally adopted, and illegitimate child
the Labor Law and the Social Security Law? who:
a. Is unmarried,
A: The claims are different as to their nature and b. Not gainfully employed, and
purpose. (Ortega vs. Social Security Commission, c. Has not reached 21 years of age,
G.R. No. 176150, June 25, 2008) or if over 21 years of age, he is
congenitally or while still a minor has
been permanently incapacitated and
incapable of selfsupport, physically
or mentally.
of : 3. The parent who is receiving
regular support from the member.

Q: What is meant by dependent for support?

A: The entitlement to benefits as a primary


beneficiary requires not only legitimacy but also
dependence upon the member Ee. (Gil v. SSC CA
GR SP. 37150, May 8, 1996)

If a wife who is already separated de facto from her


husband cannot be said to be "dependent for
Ee is support" upon the husband, absent any showing to

LABOR LAW TEAM:


114 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION

the contrary. Conversely, if it is proved that the 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

Q: What is compensation? Q: Who are considered employers (Er) under the


GSIS Act?
A: All actual remuneration for employment,
including the mandated cost of living allowance, as A:
well as the cash value of any remuneration paid in 1. National Government
any medium other than cash except that part of the 2. Its political subdivisions,
remuneration received during the month in excess branches, agencies, instrumentalities
of the maximum salary. 3. GOCCs, and financial institutions
with original charters
Q: The owners of FALCON Factory, a 4. Constitutional Commissions and
company the Judiciary (Sec. 2[c])
engaged in the assembling of automotive
components, decided to have their building Q: Can SSS Ees be covered by GSIS?
renovated. (50) persons, composed of engineers,
architects and other construction workers, were A: Yes.
hired by the company for this purpose. The work
was estimated to be completed in 3 years. The Ees Q: Who is an Employee or member?
contended that since the work would be
completed after more than 1 year, they should be A: Any person, receiving compensation while in the
subject to compulsory coverage under the Social service of an Er, whether by election or
Security Law. Do you agree with their contention? appointment, irrespective of status of appointment,
Explain your answer fully. including barangay and sanggunian officials. (Sec.
2[d])

A: No. Under Sec. 8 (j) of R.A. 1161, as amended, Q: What is compensation?


employment of purely casual and not for the
purpose of the occupation or business of the A: The basic pay or salary received by an Ee,
employer are excepted from compulsory coverage. pursuant to his or her election or appointment,
An employment is purely casual if it is not for the excluding per diems, bonuses, OT pay, honoraria,
purpose of occupation or business of the Er. allowances and any other emoluments received in
addition to the basic pay which are not integrated
In the problem given, Falcon Factory is a company into the basic pay under existing laws. (Sec. 2[i])
engaged in the assembly of automotive
components. The 50 persons (engineers, architects Q: Baradero is a member of the Sangguniang
and construction workers) were hired by Falcon Bayan of the Municipality of La Castellana, Negros
Factory to renovate its building. The work to be

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

Occ. and is paid on a per diem basis. On the other a.Coverage


hand, Belo a ViceGovernor of Capiz is in a hold
over capacity and is paid on a per diem basis. Are Q: What government Ees are subject to coverage
the services rendered by Baradero and Belo on a under the GSIS?
per diem basis creditable in computing the length
of service for retirement purposes? A:
GR: All Ees receiving compensation who have
A: Yes. The traditional meaning of per diem is a not reached the compulsory retirement age,
reimbursement for extra expenses incurred by the irrespective of employment status.
public official in the performance of his duties.
Under this definition the per diem is intended to XPNs:
cover the cost of lodging and subsistence of officers 1. Uniformed members of the:
and employees when the latter are on a duty a. AFP; and
outside of their permanent station. On the other b. PNP.
hand, a per diem could rightfully be considered a 2. Contractuals who have no Er
compensation or remuneration attached to an and Ee relationship with the agencies they
office. serve.

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.

LABOR LAW TEAM:


116 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION

b. Covered for the entire Separation Benefits


package benefits and privileges being
extended by GSIS. Q: When will a member be entitled to separation
benefits and what comprises these separation
2. Policyholders benefits?
a. Covered for life insurance
only A: A member who has rendered a minimum of 3
b. Can avail of policy loan years creditable service shall be entitled to
privilege only separation benefit upon resignation or separation
c. May also apply for housing under the following terms:
loans
d. Judiciary and 1. A member with at least 3 years
Constitutional Commissions but less than 15 years: Cash payment
equivalent to 100% of the AMC for every
3. Retired Members year of service the member has paid
a. Former active members contributions:
who have retired from the service a. not less than P12,000.00
and are already enjoying the b. Payable upon reaching 60 years
corresponding retirement benefits of age or upon separation, whichever
applied for comes later.
b. Not entitled to any loan
privilege, except stock purchase loan 2. A member with less than 15
(Sec. 2.2, Rules II, IRR) years of service and less than 60 years of
age at the time of resignation or
c.Benefits separation:
a. Cash payment equivalent to 18
Q: What are the benefits provided by the GSIS times the basic monthly pension
Act? (BMP), payable at the time of
resignation or separation
A: b. An oldage pension benefit
1. Separation equal to the basic monthly pension,
2. Unemployment or involuntary payable monthly for life upon
separation reaching the age of 60.
3. Retirement
4. Permanent disability Q: What are the effects of separation from service
5. Temporary disability with regard to membership?
6. Survivorship
7. Funeral A: A member separated from the service shall
8. Life Insurance continue to be a member and shall be entitled to
9. Such other benefits and protection whatever benefits he has qualified to.
as may be extended to them by the GSIS
such as loans. Note: A member separated for a valid cause shall
automatically forfeit his benefits, unless the terms of
Q: What are the benefits under P.D. 1146 (Revised resignation or separation provide otherwise.
GSIS Act of 1977) that may be granted to the
In the case of forfeiture, the separated employee shall
separated members of the PNP, BJMP and BFP?
be entitled to receive only of the cash surrender
value of his insurance.
A: GR:
1. Oldage benefit
Unemployment Benefits
2. Permanent disability benefit
3. Survivorship benefit
Q: What are the conditions for entitlement to
4. Funeral benefit unemployment benefits?
5. Retirement benefit
A:
XPN: Judiciary (Life insurance only tax exempt)
1. The recipient must be a
permanent employee at the time of
Q: What are the reportorial separation;
requirements of the 2. His separation was involuntary
Er? due to the abolition of his office or
position resulting from reorganization;
A: Er must report to GSIS the names, employment and
status, positions, salaries of the employee and such
other matter as determined by the GSIS.
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
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VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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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 are the conditions in order to be entitled Permanent Disability Benefits


to retirement benefits?
Q: What is disability?
A:
1. A member has rendered at least A: Any loss or impairment of the normal functions
15 years of service; of the physical and/or mental faculty of a member,
2. He is at least 60 years of age at the which reduces or eliminates his/her capacity to
time of retirement; and continue with his/her current gainful occupation or
3. He is not receiving a monthly engage in any other gainful occupation.
pension benefit from permanent total
disability. (Sec. 13A) Q: What is total disability?

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)

LABOR LAW TEAM:


118 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION

Q: What are the two types of permanent contribution prior


disability? his disability
e. He is not
A: receiving oldage
1. Permanent total disability (PTD) retirement
accrues or arises when recovery from any pension benefits
loss or impairment of the normal
2. If the member does not
functions of the physical and/or mental
satisfy the conditions
faculty of a member which reduces or
above but has rendered at
eliminates his capacity to continue with least 3 years service, he
his current gainful occupation or engage shall be advanced the cash
in any other gainful occupation is payment equivalent to
medically remote. [Section 2 (q) and (s)] 100% of his average
monthly compensation for
2. Permanent partial disability (PPD) each year of service he has
accrues or arises upon the irrevocable loss pad contributions but not
or impairment of certain portion/s of the less than P12,000.00
physical faculties, despite which the which should have been
member is able to pursue a gainful his separation benefit (he
occupation. (Sec. 2[u]) shall no longer receive
separation benefits)

Q: When will the payment of these benefits be


1. Complete loss of sight suspended?

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])

5. Such other cases as Q: Manioso was suffering from several diseases


from 1959 to 1994 when he worked as Accounting
Clerk I at the Budget Commission up to the time he
was transferred and promoted to the DENR as
Senior Bookkeeper. On 95, he was hospitalized.
The results of his examinations showed that he
was suffering from Acute Myocardial Infarction
and Hypertensive Vascular Disease. From Jan May
1. A member is entitled to
the
95 when he compulsory retired from government
benefit for life equivalent service and after serving for 36 yrs, he no longer
to the BMP when: reported for work. His sick leave covering said
a. period was duly approved. In the meantime,
Manioso filed a claim for income benefits with the
GSIS which found his ailments workrelated. He
b. was granted Temporary Total Disability benefits for
2 months. He was later granted Permanent Partial
c. Disability benefits for 8 months. It appears that he
appealed for more disability benefits with the GSIS
which subjected him to a series of medical tests. In
97, he was brought to the PGH several times due
to Chronic Renal Infection 2 to Obstructive
Uropathy 2 to Staghorn Calculi (L) and Benign
Prostatic Hypertrophy; Diabetes Mellitus
d. Neprophaty, Stage IV, and Hypertensive
Nephrosclerosis. He then filed a request with the
GSIS for additional disability benefits, claiming that
the ailments for
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

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:

Q: When does temporary total disability arises? 1. Survivorship pension: Provided,


That the deceased:
a. was in the service at the time of
A: It accrues or arises when the impaired physical
his death; or
and/or mental faculties can be rehabilitated and/or
restored to their normal functions. (Sec 2[t]) b. if separated from the service,
has rendered at least 3 years of
service at the time of his death and
Q: What benefits are given for temporary
has paid 36 monthly contributions
disability?
within the
fiveyear period immediately
A:
preceding his death; or has paid a
1. Member is entitled to 75% of his
current daily compensation for each day total of at least 180 monthly
or fraction thereof of total disability contributions prior to his death; or
th
benefit, to start at the 4 day but not
2. The survivorship pension plus a cash
exceeding
payment equivalent to 100% of his
120 days in one calendar year when:
average monthly compensation for every
year of service: Provided, That the
deceased was in the service at the time of

LABOR LAW TEAM:


120 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION

his death with at least 3 years of service; 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
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

due to accidental electrocution in his house)


compensable? Why? Funeral Benefits

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;

LABOR LAW TEAM:


122 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION

3. For those without any life insurance 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?

1. The GSIS, in appropriate cases, or A:


any person whose rights are or may be 1. Legitimate spouse dependent
prejudiced by the operations or for support upon the member or
enforcement of R.A. 8291 and other laws pensioner;
administered by the GSIS, may file a 2. Legitimate, legitimated, legally
petition before the GSIS either personally adopted child, including the illegitimate
or through counsel. child,
a. who is unmarried,

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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

b. not gainfully employed, 4.EMPLOYEESS COMPENSATION


c. not over the age of majority, or if
over the age of majority, Q: Discuss briefly the Employees Compensation
incapacitated and incapable of self Program (ECP).
support due to a mental or physical
defect acquired prior to age of A: It is the program provided for in Article 166 to
majority; and 208 of the Labor Code whereby a fund known as the
3. Parents dependent upon the State Insurance Fund (SIF) is established through
member for support. (Sec. 2[f]) premium payments exacted from Ers and from
which the Ees and their dependents in the event of
3.LIMITED PORTABILITY LAW workconnected disability or death, may promptly
(RA 7699) secure adequate income benefit, and medical or
related benefits.
Q: What is the Limited Portability Rule?
Coverage
A: A covered worker who transfers employment
from one sector to another or is employed on both Q: Who are subject to coverage under the ECP?
sectors, shall have creditable services or
contributions on both Systems credited to his A: Ers and their Ees not over sixty (60) years of age
service or contribution record in each of the are subject to compulsory coverage under this
Systems and shall be totalized for purposes of old program.
age, disability, survivorship, and other benefits in
either or both Systems. (Sec. 3) The Er may belong to either the:

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

LABOR LAW TEAM:


124 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION

occupation a hazard which distinguishes it from the 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: Abraham Dino works as a delivery man in a


Q: What is Sickness? construction supply establishment owned by
Abraham Julius. One day, while Dino was making
A: It means any illness definitely accepted as an reports on his delivery, he had an altercation with
occupational disease listed by the Commission or Julius; irked by the disrespectful attitude of Dino,
any illness caused by employment, subject to proof Julius pulled out his gun and shot Dino, hitting him
that the risk of contracting the same is increased by in the spinal column and paralyzing him
working conditions (Art. 167(l), LC). completely. Julius was prosecuted for the act.

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

1. Where the Ee is proceeding to or 2. Disability Benefits


from his work on the premises of the Er; 3. Death Benefits
2. Proximity Rulewhere the Ee is 4. Funeral Benefits
about to enter or about to leave the
premises of his Er by way of exclusive or Medical Benefit
customary means of ingress and egress;
3. Ee is charged, while on his way to Q: What are the conditions of entitlement to
or from his place of employment or at his Medical Services?
home, or during this employment with
some duty or special errand connected A: For an Ee to be entitled to medical services, the
with his employment; and following conditions must be satisfied:
4. Where the Er as an incident of the 1. He has been duly reported to
employment provides the means of the System (SSS or GSIS);
transportation to and from the place of 2. He sustains a permanent
employment. disability as a result of an injury or
sickness; and
Q: Who are entitled to benefits under the 3. The System has been notified of
ECP? the injury or sickness which caused his
disability.
A: The covered Ee, his dependents, and in case of
his death, his beneficiaries. Disability Benefit

Q: Who are the dependents of the Ee? Q: What are disability benefits?

A: A: They are income benefits in case of temporary


1. Legitimate, legitimated, legally total disability, permanent total disability and
adopted or acknowledged natural child permanent partial disability
who is unmarried, not gainfully employed,
and not over twentyone (21) years of age Q: What are the disabilities that are considered
or over twentyone (21) years of age total and permanent?
provided he is incapacitated and
incapable of selfsupport due to a physical A: The following disabilities shall be deemed total
or mental defect which is congenital or and permanent:
acquired during minority; 1. Temporary total disability lasting
2. Legitimate spouse living with the continuously for more than one hundred
Ee; and twenty days, except as otherwise
3. Parents of said Ee wholly provided for in the Rules;
dependent upon him for regular support. 3. Complete loss of sight of both eyes;
(Art.167(i), LC, as amended by P.D. 1921) 4. Loss of two limbs at or above
the ankle or wrist;
Q: Who are included in the term beneficiaries? 5. Permanent complete paralysis
of two limbs;
A: "Beneficiaries" means the dependent spouse 6. Brain injury resulting in
until he remarries and dependent children, who are incurable imbecility or insanity; and
the primary beneficiaries. In their absence, the 7. Such cases as determined by the
dependent parents and subject to the restrictions Medical Director of the System and
imposed on dependent children, the illegitimate approved by the Commission. (Art.192(c),
children and legitimate descendants who are the LC)
secondary beneficiaries; Provided, that the
dependent acknowledged natural child shall be Q: May a permanent partial disability be
considered as a primary beneficiary when there are converted to permanent total disability after the
no other dependent children who are qualified and Ees retirement? Why?
eligible for monthly income benefit. (Art. 167, LC, as
amended by Sec. I, P.D. 1921) A: Yes. This is in line with the social justice provision
in the Constitution. A persons disability may not
Q: What are the benefits which may be enjoyed manifest itself fully at one precise moment in time
under the SIF? but rather over a period of time. And disability
should not be understood more on its medical
A: significance but on the loss of earning capacity.
1. Medical Benefits

LABOR LAW TEAM:


126 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
SOCIAL LEGISLATION

Q: May permanent total disability arise although 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)

A: Q: When does the right to compensation or


1. Dependent Spouseuntil he or she benefit for loss or impairment of an Ees earning
remarries. capacity due to workrelated illness or injury
2. Dependent Childrenuntil they get arise?
married, or find gainful employment, or
reach twentyone (21) years of age. A: It arises or accrues upon, and not before, the
3. Dependent Child suffering from happening of the contingency. Hence, an Ee
physical or mental defectuntil such acquires no vested right to a program of
defect disappears. compensation benefits simply because it was
operative at the time he became employed. (San
Q: If an Ee suffers disability or dies before he is Miguel Corporation vs. NLRC, G.R. No. 57473,
duly reported for coverage to the System (SSS or August 15, 1988)
GSIS), who will be liable for the benefits?
Q: Does recovery from the SIF bar a claim for
A: The Er (Sec.1, Rule X; Sec.1, Rule XI; Sec. 1, Rule benefits under the SSS Law? Why?
XII; Sec. 1, Rule XIII; ECC Rules )
A: No, as expressly provided for in Article 173 of the
Funeral Benefit Labor Code, payment of compensation under the
SIF shall not bar the recovery of benefits under the
Q: What is the funeral benefit? SSS Law, Republic Act No. 1161, as amended.
Benefits under the SIF accrue to the Ees concerned
A: A funeral benefit of P10, 000.00 shall be paid due to hazards involved and are made a burden on
upon the death of a covered Ee or permanently the employment itself. On the other hand, social
totally disabled pensioner. security benefits are paid to SSS members by reason
of their membership therein for which they
Q: When is an Er liable to pay a penalty to the contribute their money to a general fund. (Maao
State Insurance Fund (SIF)? Sugar Central Co., Inc. vs. CA, G.R. No. 83491,
August 27, 1990)

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

G.LABOR RELATIONS LAW 4. Members of the AFP including


the police officers, policemen, firemen,
1.RIGHT TO SELF ORGANIZATION and jail guards. (Sec. 4, E.O. 180)
5. Confidential Employees.
a.Who may unionize for purposes of collective (Metrolab Industries Inc. v. Confesor, G.R.
bargaining No. 108855, Feb. 28, 1996)
6. Employees of cooperatives who
Q: What is the extent of the right to self are its members. (Benguet Elec. Coop. v.
organization? Ferrer Calleja, G.R. No. 79025, Dec. 29,
1989); However they may form workers
A: It includes the right: association. (NEECO Ees Assoc. v. NLRC,
G.R. No. 16066, Jan. 24, 2000)
1. To form, join and assist labor 7. NonEes. (Rosario Bros. v. Ople,
organizations for the purpose of G.R. No. L5390, July 31, 1984)
collective bargaining (CB) through 8. Govt Ees, including GOCCs
representatives of their own with original charters. (Arizala v. CA, G.R.
choosing; and Nos. 43633 34, Sep. 14, 1990)
2. To engage in lawful and concerted 9. Aliens without a valid working
activities for the purpose of CB or for permit or aliens with working permits but
their mutual aid and protection. (Art. are nationals of a country which do not
246) allow Filipinos to exercise their right of
self organization and to join or assist
Q: Who are the persons/Ees eligible to join a labor organizations. (Art. 269 of LC; D.O.
labor organization (LO) for purposes of CB? No. 9 [1997], Rule II, Sec. 2)

A: The entities covered are all persons b.Bargaining Unit


employed in:
1. Commercial industrial, and Q: What is a bargaining unit?
agricultural enterprises; and
2. In religious, charitable, medical A: It is a group of Ees of a given Er, comprised of all
or or less than all of the entire body of the Ees which
educational institutions whether the collective interest of all the Ees consistent with
operating for profit or not. (Art. 243) equity to the employer, indicate to be best suited to
serve the reciprocal rights and duties of the parties
Q: Who are the persons/Ees eligible to join a under the collective bargaining provisions of the
labor organization for mutual aid and protection? law.

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)

LABOR LAW TEAM:


128 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

2. Affinity and unity of the Ees 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)

A: 1. Similarity in the scale and manner Q: What is oneunion, onecompany policy?


of determining earnings
2. Similarity in employment benefits, A: GR: It is the proliferation of unions in an
hours of work, and other terms and Er unit. Such is discouraged as a matter of policy
conditions of employment unless there are compelling reasons which
3. Similarity in the kinds of work would deny a certain class of Ees to the right to
performed self organization for purposes of collective
4. Similarity in the qualifications, skills bargaining (CB).
and training of Ees
5. Frequency of contract or XPNs:
interchange among the Ees 1. Supervisory Ees who are
6. Geographical proximity allowed to form their own unions apart
7. Continuity and integration of from the rank andfile Ees and
production processes 2. The policy should yield to the
8. Common supervision and right of Ees to form union for purposes
determination of laborrelations policy not contrary to law, selforganization and
9. History of CB to enter into CB negotiations.
10. Desires of the affected Ees or
11. Extent of union organization Note: Two companies cannot be treated into a single
bargaining unit even if their businesses are related.
Q: A registered labor union in UP, ONAPUP, filed a
Subsidiaries or corporations formed out of former
petition for certification election (PCE) among the
divisions of a mother company following a re
nonacademic Ees. The university did not oppose,
organization may constitute a separate bargaining unit.
however, another labor union, the All UP Workers
Union assents that it represents both academic
and nonacademic personnel and seeks to unite all Q: Union filed a PCE among the rank and file Ees
workers in 1 union. Do Ees performing academic of three security agencies including the Veterans
functions need to comprise a bargaining unit Security. The latter opposed alleging that the three
distinct from that of the nonacademic Ees? security agencies have separate and distinct
corporate personalities. May a single PCE filed by a
A: Yes. The mutuality of interest test should be
labor union in the three corporations instead of
taken into consideration. There are two classes of
filing 3 separate petitions?
rank and file Ees in the university that is, those who
perform academic functions such as the professors A: Yes. The following are indications that the 3
and instructors, and those whose function are non agencies do not exist and operate separately and
academic who are the janitors, messengers, clerks distinctly from each other with different corporate
etc. Thus, not much reflection is needed to perceive direction and goals: 1) Veterans Security failed to
that the mutuality of interest which justifies the rebut the fact that they are managed through the
formation of a single bargaining unit is lacking Utilities Management Corp with all their Ees
between the two classes of Ees. (U.P. v. Ferrer drawing their salaries and wages from the said
Calleja, G.R. No.96189, July 14, 1992) entity; 2) that the agencies have common and
interlocking incorporators and officers; 3) that they
Q: Is the bargaining history a decisive factor in the have a single mutual benefit system and followed a
determination of appropriateness of bargaining
single system of compulsory retirement. 4) they
unit?
could easily transfer security guards of one agency

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

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

LABOR LAW TEAM:


130 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

organization for a period of 1 year from 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 is the nature of certification election?

A: A certification election is not a litigation but


merely an investigation of a nonadversarial fact
finding character in which BLR plays a part of a
disinterested investigator seeking merely to
ascertain the desire of the employees as to the
matter of their representation. (Airline Pilots Assn
of the Philippines v. CIR, G.R. No. L33705, April 15,
1977)

Q:What is the purpose of a certification


election?

A: It is a means of determining the workers


choice
of:

1. Whether they want a union to


represent them for collective bargaining
or if they want no union to represent
them at all.
2. And if they choose to have a union
to represent them, they will choose which
among the contending unions will be the
soleand exclusive bargaining
representative of the employees in the
appropriate bargaining unit.

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

2. A national union or federation


which has already issued a charter
certificate to its local chapter participating
in the CE
3. A local chapter which has been
issued a charter certificate
4. An Er only when requested to
bargain collectively in a bargaining unit
where no registered CBA exists. (Sec. 1,
Rule VIII, Book V, IRR as amended by D.O.
40F03)

Note: A national union or federation filing a petition in


behalf of its local/chapter shall not be required to
Note: Both in CE and union election, the prescribed
disclose the names of the local/chapters officers and
procedures should be followed.
members, but shall attach to the petition the charter
certificate it issued to its local/chapter. (Sec. 1, Rule
VIII, Book V, IRR as amended by D.O. 40F03) Q: Can a "nounion" win in a certification Election
(CE)?
Q: May an employee intervene in the petition for
A: Yes. Because the objective in a CE is to ascertain
certification election (PCE)?
the majority representation of the bargaining
representative, if the Ees desire to be represented
A: Yes, for the purpose of protecting his individual
at all by anyone. Hence, no union is one of the
right. (Sec. 1, Rule VIII, Book V, IRR as amended by
choices in a CE. (2006 Bar Question)
D.O. 4003)
Alternative Answer:
Q: Where is PCE filed?
No. A no union cannot win in a CE. The purpose of a
A: It shall be filed with the Regional Office which CE is to select an excusive bargaining agent and a no
issued the petitioning union's certificate of union vote would precisely mean that the voter is
registration/certificate of creation of chartered not choosing any of the contending unions. If the
local. (Implementing Rules, as amended by D.O. 40 nounion votes constitute a majority of the valid
03) votes cast, this fact will all the more mean that no
union won in CE. A oneyear bar will consequently
Q: Who shall hear and resolve the PCE? stop the holding of another CE to allow the Er to
enjoy industrial peace for at least one year.
A: The MediatorArbiter.
Q: In what instance may a PCE be filed outside the
Q: When to file PCE? freedom period of a current CBA?

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

LABOR LAW TEAM:


132 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

freedom period of the old CBA which is outside the 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

7. In case of an organized ng Manggagawa sa Pacific Plastic vs. Laguesma,


establishment, failure to submit the 25% G.R. No. 111245, Jan. 31, 1997) and that the law is
support reqt for the filing of the PCE. indisputably partial to the holding of a CE. (Western
8. Nonappearance of the petitioner Agusan vs. Trajano G.R. No. 65833, May 6, 1991)
for 2 consecutive scheduled conferences
before the medarbiter despite due At any rate, UNIDAD completed all the reqts for
notice, and union registration on July 14, 2001, and legitimate
9. Absence of ErEe relationship union status was accorded on July 15, 2000, or at
between all the members of the least 10 days before the scheduled date for holding
petitioning union and the owner of the the CE. (2001 Bar Question)
establishment where the proposed
bargaining unit is sought to be Q: What is meant by contractbar rule?
represented. (Sec.14[a], Rule VIII, Book V,
IRR, as amended by D.O. 40F03) A: Contractbar rule means that while a valid and
registered CBA is subsisting, the BLR is not allowed
Q: What is a prohibited ground for the to hold an election contesting the majority status of
denial/suspension of the petition for certification the incumbent union except during the 60day
election? period immediately prior to its expiration, which
period is called the freedom period.
A: The inclusion as union members of Ees outside
the bargaining unit. Said Ees are automatically Note: In the absence of such timely notice or filing of
petition, the contract executed during the automatic
deemed removed from the list of membership of
renewal period is a bar to CE.
said unions.
There shall be no amendment, alteration, or
Q: Does the filing of a petition to cancel the termination of any of the provisions of the CBA except
petitioners registration cause the suspension or to give notice of one partys intention to amend, alter
dismissal of the petition for certification election? and terminate the provisions within the freedom
period.
A: No. To serve as a ground for dismissal of a PCE,
the legal personality of the petitioner should have Q: What are the requirements in order to invoke
been revoked or cancelled with finality. the contract bar rule?

Q: UNIDAD, a labor organization claiming to A: The existing CBA must:


represent the majority of the rank and file workers
of BAGSAK Toyo Manufacturing Corp. (BMTC), filed 1. Be in writing and signed by all
a petition for CE during the freedom period contracting parties
obtaining in said corp. Despite the opposition 2. Contain the terms and
thereto by SIGAW Federation on the ground that conditions of employment
UNIDAD was not possessed with all the attributes 3. Cover employees in an
of a duly registered union, the MedArbiter issued appropriate bargaining unit
an order calling for a CE on July 25, 2001. This 4. Be for a reasonable period or duration
order was promulgated and served on the parties 5. Be ratified
on July 12, 2001. On July 14, 2001, UNIDAD 6. Be registered with the BLR; and
submitted and served the required documents for 7. The violation of the contract bar
its registration as an independent union, which rule or the existence of a duly registered
documents were approved by the DOLE on July 15, CBA must be specially pleaded as a
2001. defense.

Q: What is the effect of an invalid or unregistered


During the elections, UNIDAD won over SIGAW. CBA?
SIGAW questioned UNIDAD's victory on the ground
that UNIDAD was not a duly registered union when A: There is no bar and therefore a certification
it filed the petition for a CE. Shall SIGAWs case election may be held.
prosper or not? Why?
Note: Registration of CBA only puts into effect the
A: No, SIGAW's case will not prosper. The contractbar rule but the CBA itself is valid and binding
application of technicalities of procedural reqts in even if unregistered.
CE disputes will serve no lawful objective or
purpose. It is a statutory policy that no obstacles Q: What are the exceptions to the contract bar
should be placed on the holding of a CE, (Samahang rule?

LABOR LAW TEAM:


134 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

A: bargaining which, despite noble intentions, did not


1. The CBA is unregistered conclude in an agreement between the parties.
2. The CBA is inadequate and
incomplete Q: What is deadlock bar rule?
3. The CBA was hastily entered into
(Doctrine of premature extension) A: A petition for certification election (PCE) cannot
4. Withdrawal of affiliation from the be entertained if, before the filing of the PCE, a
contracting union brought about by bargaining deadlock to which an incumbent or
schism or mass disaffiliation certified bargaining agent is a party, had been
5. Contract where the identity of the submitted to conciliation or arbitration or had
representative is in doubt. (ALU v. Ferrer become the subject of a valid strike or lockout.
Calleja, G.R. No. 85085, Nov. 6, 1989)
6. CBA entered into between the Er Q: What are the indications of a genuine
and the union during the pendency of a deadlock?
petition for CE (Vassar Industries Ees
A:
Union v. Estrella, G.R. No. L46562, Mar.
31, 1978) 1. The submission of the deadlock
to a third party conciliator or arbitrator;
7. CBA conducted between the Er and
and
the union is not bar to a certification
2. The deadlock is the subject of a
election filed by another union and said
valid notice strike or lockout.
CBA can be renegotiated at the option of
the new bargaining agent. (ATU v. Hon.
Q: Capitol Medical Center Ees AssociationAlliance
Noriel, G.R. No. L48367, Jan. 16, 1979)
of Filipino Workers (CMCEAAFW) emerged as the
8. A CBA registered with falsified
certified representative of the rankandfile Ees at
supporting documents
Capitol Medical Center (CMC). Due to CMCs
9. CBA was concluded in violation of
refusal to bargain collectively, CMCEAAFW filed a
an order enjoining the parties from
notice of strike and later on staged the strike after
entering into a CBA until the issue of
complying with the other legal reqts. The SLE
representation is resolved
assumed jurisdiction over the case and issued an
10. Petition is filed during the 60day
order certifying the same to the NLRC for
freedom period.
compulsory arbitration. During all of these events
Capitol Medical Center Alliance of Concerned
Note: Basic to the contract bar rule is the proposition
employees (Ees)Unified Filipino Service Workers
that the delay of the right to select representatives can
be justified only where stability is deemed paramount. filed a petition for CE among the regular rankand
Excepted from the contract bar rule are certain types file Ees of CMC. The petition for CE was dismissed
of contracts which do not foster industrial stability, and the CMC was directed to negotiate with
such as contracts where the identity of the CMCEAAFW. Was the dismissal of the PCE proper?
representative is in doubt. Any stability derived from
such contracts must be subordinated to the Ees A: Yes, if the law proscribes the conduct of a CE
freedom of choice because it does not establish the when there is a bargaining deadlock submitted to
type of industrial peace contemplated by law. conciliation or arbitration, with more reason should
(Firestone Tire & Rubber Company Ees Union v. it not be conducted if, despite attempts to bring an
Estrella, G.R. No. L4551314, Jan. 6, 1978) Er to the negotiation table by the certified
bargaining agent, there was "no reasonable effort in
Q: Can the BLR certify a union as the exclusive good faith" on the Er to bargain collectively.
bargaining representative after showing proof of
majority representation thru union membership The circumstances in this case should be considered
cards without conducting an election? as similar in nature to a "bargaining deadlock"
when no CE could be held. This is also to make sure
A: No. The LC (In Arts. 256, 257 and 258) that no floodgates will be opened for the
provides circumvention of the law by unscrupulous Ers to
only prevent any certified bargaining agent from
the negotiating a CBA. Sec. 3, (Rule VIII), Book V of the
if there IRR should be interpreted liberally so as to include a
appropriate bargaining unit. (1998 Bar Question) circumstance where a CBA could not be concluded
due to the failure of one party to willingly perform
Q: When does deadlock arise? its duty to bargain collectively. (Capitol Medical
Center Alliance of Concerned Ees v. Laguesma, G.R.
A: It arises when there is an impasse, which No. 118915, Feb. 4, 1997)
presupposes reasonable effort at good faith
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

votes will be declared the winner


Q: Should the certification election proceedings be provided they get the majority votes of
suspended in view of the pending case for the total votes cast.
cancellation of the unions certificate of
registration? Q: Who are the choices in a runoff election?
nd
A: No, the pendency of a cancellation case is not a A: The unions receiving the highest and 2 highest
ground for the dismissal or suspension of a number of the votes cast. (Sec.2, Rule X, Book V,
representation proceeding considering that a IRR)
registered labor organization (LO) continues to be a
legitimate one entitled to all the rights appurtenant Note: No Union shall not be a choice in the runoff
thereto until a final valid order is issued cancelling election
such registration.
Once a LO attains the status of a LLO it begins to (5)Rerun Election
possess all of the rights and privileges granted by
law to such organizations. As such rights and Q: When does Rerun Election take place?
privileges ultimately affect areas which are
constitutionally protected, the activities in which LO, A: 1. If one choice receives a
associations and unions are engaged directly affect plurality of the vote and the remaining
the public interest and should be zealously choices results in a tie; or
protected. (Progressive Devt Corp. v. SLE, G.R. No. 2. If all choices received the same number
115077, April 18, 1997) of votes.

Q: What is negotiation bar rule? Note: In both instances, the no union is also a choice.

A: A PCE cannot be entertained if, before the filing (5)Consent Election


of the PCE, the duly recognized or certified union
has commenced negotiations with the Er in Q: What is a consent election?
accordance with Art. 250 of the LC.
A: An election voluntarily agreed upon by the
Q: What is certification year rule? parties, with or without the intervention by DOLE.
(Sec.1 [h], Rule I, Book V, IRR)
A: No PCE may be filed within one year from the
Note: To afford an individual employeevoter an
date of a valid certification, consent, or runoff
informed choice where a local/chapter is the
election or from the date of voluntary recognition. petitioning union, the local/chapter shall secure its
certificate of creation at least 5 working days before
(4)Runoff Election the date of the consent election. (Sec.1, Rule VIII, Book
V, IRR as amended by DO 40F03)
Q: What is a runoff election?
Q: What are the requisites before a labor union
A: An election conducted when: can be declared a winner (double majority rule)?

1. An election which provides for 3 or A:


more choices results in none of the 1. Majority of the eligible voters
contending unions receiving a majority of cast their votes.
the valid votes cast, and 2. Majority of the valid votes cast
2. There are no objections or is for such union.
challenges which if sustained can
materially alter the results, provided Q: How to determine the double majority rule?
3. The total number of votes for all
the contending unions is at least 50% of A:
the number of votes cast. (Sec. 1, Rule X, 1. In determining the eligible votes
Book V, IRR) cast (first majority) include spoiled ballots
4. Not one of the choices obtained 2. In determining valid votes
the majority of the valid votes cast (50%+ (second majority), eliminate spoiled
1 second majority); ballots but included the challenged votes.
5. The two choices which garnered
the highest votes will be voted and the
one which garners the highest number of
LABOR LAW TEAM:
136 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

Q: A certification election was conducted among


the rankandfile Ees of Holiday Inn Manila Pavilion
Hotel. In view of the significant number of
segregated votes, contending unions, National
Union of Workers in Hotels, Restaurants and Allied
IndustriesManila Pavilion Hotel Chapter
(NUWHRAINMPHC) and Holiday Inn Manila
Pavilion Hotel Labor Union (HIMPHLU), referred
the case back to the MedArbiter to decide which
among those votes would be opened and tallied.
11 votes were initially segregated because they
were cast by dismissed Ees, albeit the legality of
their dismissal was still pending before the CA. 6
other votes were segregated because the Ees who
cast them were already occupying supervisory
positions at the time of the election. Still 5 other
votes were segregated on the ground that they
were cast by probationary Ees and, pursuant to the
existing CBA, such Ees cannot vote. NUHWHRAIN
MPHC further avers that HIMPHLU, which garnered
169 votes, should not be immediately certified as
the bargaining unit, as the opening of the 17
segregated ballots would push the number of valid
votes cast to 338, hence, the 169 votes which
HIMPHLU garnered would be 1 vote short of the
majority which would then become 170.

Was HIMPHLU able to obtain the required majority


for it to be certified as the exclusive bargaining
agent?

A: No, it is wellsettled that under the double


majority rule for there to be a valid certification
election, majority of the bargaining unit must have
voted and the winning union must have garnered
majority of the valid votes cast.

Following the ruling that all the probationary Ees votes


should be deemed valid votes while that of the
supervisory Ees should be excluded, it follows that the
number of valid votes cast would increase. Under Art.
256 of the LC, the union obtaining the majority of the
valid votes cast by the eligible voters shall be certified
as the sole exclusive bargaining agent of all the
workers in the appropriate bargaining unit. This
majority is 50% + 1, in this case at least 170. HIMPHLU
obtained 169, clearly it was not able to obtain a
majority vote. (NUWHRAIN MPHC v. SLE, G.R. No.
181531, July 31, 2009)

Q: Distinguish certification election, consent


election, direct certification, and runoff and re
run elections.

A:
Participation of
Purpose
MedArbiter
Certification Election
plurality of
and
choices results in a tie;
or
Takes
instances: the

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

votes. processed by the Labor Relations Division


at the RO.
In both instances, the no
union is also a choice. 2. Federations, national unions or
workers association operating in more
Note: Petition for cancellation of registration is not a than one region It is filed with the BLR of
bar to a PCE. No prejudicial question shall be the RO, but shall be processed by the BLR.
entertained in a petition for certification election. (D.O.
4003) Q: What is the duty of the BLR after a LO had filed
the necessary papers and documents for
(7)Affiliation and Disaffiliation of the Local Union registration?
from the Mother Union
A: It becomes mandatory for the BLR to check if the
Q: How is a local chapter created? reqts under Art. 234 of the LC have been sedulously
complied with. If its application for registration is
A: A duly registered federation or national union vitiated by falsification and serious irregularities,
may directly create a local/ chapter by issuing a especially those appearing on the face of the
charter certificate indicating the establishment of a application and the supporting documents, a LO
local/chapter. should be denied recognition as a LLO. (Progressive
Devt Corp.Pizza Hut v. Laguesma, G.R. No. 115077,
1. The chapter shall acquire legal April 18, 1997)
personality only for purposes of filing a
petition for certification election from the Q: Within what period should the BLR act on the
date it was issued a charter certificate applications submitted before it?
2. The chapter shall be entitled to all
other rights and privileges of a legitimate A: It shall act on all applications for registration
labor organization (LLO) only upon the within 10m days from receipt either by:
submission of the following documents in
addition to its charter certificate: 1. Approving the application and
a. Names of the chapters officers, issuing the certificate of
their addresses, and the principal registration/acknowledging the
office of the chapter notice/report; or
b. Chapters constitution and bylaws 2. Denying the application/notice
c. Where the chapters constitution for failure of the applicant to comply with
and bylaws are the same as that of the requirements for registration/notice
the federation or the national union, (D.O. 4003, Rule IV, Sec.4, series of 2003)
this fact shall be indicated
accordingly Note: All requisite documents shall be:
3. The genuineness and due 1. Certified under oath by the
execution of the supporting requirements secretary or treasurer of the organization, as
shall be: the case may be and
a. Certified under oath by the 2. Attested to it by its President.
secretary or treasurer of the
local/chapter, and Q: May the BLR review the issuance of a certificate
b. Attested to by its president of registration?
(Sec.2[e], Rule III, Book V, IRR, as
amended by D.O. 40F03) A: No. The BLR has the duty to review the
application for registration not the issuance of a
Note: Under the LC and the rules, the power granted certificate of registration.
to LOs to directly create a chapter or local through
chartering is given to a federation or national union Q: Why is a lesser requirement imposed for a
only, not to a trade union center. (SMCEU v. San Miguel chartered local?
Packaging Products Ees Union, G.R. No. 171153, Sep.
12, 2007) A: The intent of the law in imposing lesser reqts in
the case of branch or local of a registered federation
Q: Where is the application for registration filed? or national union is to encourage the affiliation of a
local union in order to increase the local unions
A: bargaining power respecting terms and conditions
1. Independent labor unions, of labor. (Progressive Devt Corp v. SLE, G.R. No.
chartered locals or workers associations 96425, Feb. 4, 1992)
It is filed with the Regional Office (RO).
where the applicant principally operates.
It shall be
LABOR LAW TEAM:
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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 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

constitution preventing disaffiliation of a local CHARTERED LOCAL UNION


union. (Tropical Hut Ees Union v. Tropical Hut, G.R. Independently
Unregistered
Nos. L4349599, Jan. 20, 1990) Registered
How to affiliate?
Note: A prohibition to disaffiliate in the Federations By application of with the
constitution and bylaws is valid because it is intended federation for the
By signing contract of
for its own protection. issuance of a charter
affiliation
certificate to be
Q: What is the effect of cancellation of registration submitted to the BLR
of a federation or a national union? Effect of Disaffiliation to the union (local)

A:
GR: It shall operate to divest its locals/chapters
of their status as LLO.

XPN: Locals/chapters retain status as LLO if they


arecovered by a duly registered CBA.

Note Locals or chapters who retained status as LLO


shall be allowed to register as independent unions. If
they fail to register, they shall lose their legitimate Effect of Disaffiliation to the CBA
status upon the expiration of the CBA.

Q: PSEA is a local union in Skylander company


which is affiliated with PAFLU. PSEA won the
certification election among the rank and file Ees
of the Skylander company but its rival union PSEA
WATU protested the results. Pending the
resolution of such controversy, PSEA disaffiliated
with PAFLU and hence affiliated with NCW which
was supported by its members. May a local union
disaffiliate with its mother federation pending the Entitlement to union dues after Disaffiliation
settlement of the status as the sole and exclusive
bargaining agent?

A: Yes. The pendency of an election protest does


not bar the valid disaffiliation of the local union
which was supported by the majority of its
members.

The right of a local union to disaffiliate with the


federation in the absence of any stipulation in the Q: What is the form of the decision of the denial of
constitution and bylaws of the federation application for registration?
prohibiting disaffiliation is well settled. Local unions
remain as the basic unit of association, free to serve A: It shall be:
their own interest subject to the restraints imposed 1. In writing
by the constitution and bylaws of national 2. Stating in clear terms the reason
federation and are free to renounce such affiliation for the decision
upon the terms and conditions laid down in the 3. Applicant union must be
agreement which brought such affiliation to furnished a copy of said decision.
existence. In the case at bar, no prohibition existed
under the constitution and bylaws of the Q: Is the denial of registration appealable?
federation. Hence, the union may freely disaffiliate
with the federation. (Philippine Skylanders v. NLRC, A: Yes.
G.R. No. 127374, Jan. 31, 2002) 1. Decisions of the Regional Office
shall be appealable to the BLR and CA.
Q: Distinguish between an independently 2. The BLRs decisions on cases
registered and unregistered chartered local union. appealed from Regional Director are final
and not appealable to the SLE.
A: 3. Decisions of the BLR denying the
registration of a LO (federation or national
union) is appealable to the SLE within 10
days from receipt of the decision, on
grounds of:
a. Grave abuse of discretion; or
b. Gross incompetence.
4. Decision of SLE appealable to CA.

LABOR LAW TEAM:


140 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

Q: How is appeal taken with regard to denial or 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:

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: 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,

LABOR LAW TEAM:


142 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

benefits given to them by the CBA and to finance 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

Q: What are special assessments or extraordinary


fees?

A: These are assessments for any purpose or object


other than those expressly provided by the labor
organizations constitution and bylaws.

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

(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

A: It is an amount equivalent to union dues, which a 2. The settlement of disputes by


nonunion member pays to the union because he negotiation between an Er and the
benefits from the CBA negotiated by the union. representative of his employees (Ee)
Note: Agency fee cannot be imposed on Ees already in
the service and are members of another union. If a
3. It is the obligation to meet and
closed shop agreement cannot be applied to them, convene promptly and expeditiously in
neither may an agency fee, as a lesser form of union good faith for the purpose of negotiating
security, be imposed to them. Payment by nonunion an agreement with respect to wages,
members of agency fees does not amount to an unjust hours of work and all other terms and
enrichment basically the purpose of such dues is to conditions of employment including
avoid discrimination between union and nonunion proposals for adjusting any grievances or
members. questions arising under such agreement
and executing a contract incorporating
Q: What are the requisites for assessment of Agency such agreements if requested by either
fees (Art. 248 [e], LC)? party but such does not compel any party
to agree to a proposal or to make any
A: concession. (Art. 252, LC)
1. The employee is part of the bargaining
unit Note:
2. He is not a member of the union GR: No court or administrative agency or official
3. He partook of the benefits of the CBA shall have the power to set or fix wages, rates of
pay, hours of work, or other terms and conditions
Note: The individual authorization required under Art. of employment
242, par. O of the LC shall not apply to the non
members of the recognized collective bargaining agent. XPNs: As otherwise provided under the LC:

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:
144 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

Q: What is the purpose behind this rule? 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:

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

1. Preliminary process: Sending a 2. Parties cannot stipulate terms


written notice for negotiation which must and conditions of employment which are
be clear and unequivocal below the minimum reqts prescribed by
2. Negotiation process. law.
3. Execution process: The signing of
the agreement Q: May either party bargain to an impasse?
4. Publication for at least 5 days
before ratification A: It depends:
5. Ratification by the majority of all
the workers in the bargaining unit 1. Where the subject of a dispute
represented in the negotiation (not is a mandatory bargaining subject, either
necessary in case of arbitral award) party may bargain to an impasse as long
6. Registration process. as he bargains in GF.
7. Administration process: The CBA
shall be jointly administered by the 2. Where the subject is non
management and the bargaining agent for mandatory, a party may not insist in
a period of 5 years. bargaining to the point of impasse. His
8. Interpretation and Application instance may be construed as evasion of
process. duty to bargain.

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

LABOR LAW TEAM:


146 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

agreement. While the law makes it an obligation for 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.

Q: May economic exigencies justify refusal to Q: When to file CBA?


bargain?
A: Within 30 days from execution of CBA.
A: No. An employer is not guilty of refusal to
bargain by adamantly rejecting the unions Q: What are the requirements for registration?
economic demands where he is operating at a loss,
on a low profit margin, or in a depressed industry, A: The application for CBA registration shall be
as long as he continues to negotiate. But financial accompanied by the original and 2 duplicate copies
hardship constitutes no excuse for refusing to of the following reqts:
bargain collectively.
1. CBA
Q: What is the duty to bargain collectively when 2. A statement that the CBA was
there is a CBA? posted in at least 2 conspicuous places in
the establishment concerned for at least 5
A: days before its ratification
1. When there is a CBA the duty to 3. Statement that the CBA was
bargain collectively shall also mean that ratified by the majority of the Ees in the
neither party shall terminate nor modify bargaining unit.
such agreement during its lifetime.
2. Either party can serve a written Note: The following documents must be certified
notice to terminate or modify the under oath by the representative of the Er and the
agreement at least 60 days prior to its labor union. No other document shall be required in
expiration date. the registration of the CBA.
3. It shall be the duty of both parties
to keep the status quo and to continue in Q: What is a single enterprise bargaining?
full force and effect the terms and
conditions

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: It involves negotiation between one certified


labor union and one Er. Any voluntarily recognized 3. Those not made within 6
or certified labor union may demand negotiations months, the parties may agree to the date
with its Er for terms and conditions of work of retroaction.
covering Ees in the bargaining unit concerned.
Note: This rule applies only if there is an existing
Q: What is a multiEr bargaining scheme? agreement. If there is no existing agreement, there is
no retroactive effect because the date agreed upon
A: It involves negotiation between and among shall be the start of the period of agreement.
several certified labor unions and Ers.
Art. 253A on retroactivity does not apply if the
provisions were imposed by the SLE by virtue of
Q: What is the duration of a CBA?
arbitration. It applies only if the agreement was
voluntarily made by the parties.
A:
1. With respect to the representation Q: May the economic provisions of an existing CBA
aspect (refers to the identity and majority be extended beyond the 3 year period as
status of the union that negotiated the prescribed by law in the absence of a new
CBA as the exclusive bargaining agreement?
representative): 5 years
2. With respect to all other A: Yes. Under the principle of hold over, until a new
provisions (refers to the rest of the CBA, CBA has been executed by and between the parties,
economic as well as noneconomic they are duty bound to keep the status quo and
provisions other than representational must continue in full force and effect the terms and
provisions): 3 years after the execution of conditions of the existing agreement. The law does
the CBA not provide for any exception or qualification as to
which of the economic provisions of the existing
Q: What are the economic provisions of a agreement are to retain force and effect. Therefore,
CBA? it must be encompassing all the terms and
condition in the said agreement. (New Pacific
A: Timber v. NLRC, G.R. No. 124224, Mar. 17, 2000)
1. Wages
2. Family planning Q: Mindanao Terminal Company and respondent
3. Effectivity of the agreement union has an existing CBA which was about to
4. Other terms and conditions of expire. Thus, negotiations were held regarding
employment certain provisions of the CBA which resulted in a
deadlock. Thus the union filed a notice of strike.
Q: What are the noneconomic provisions of a During the conference called by the NCMB the
CBA? company and the union were able to agree on all
of the provisions of the CBA except for one.
A: However, the last unresolved provision was
1. Coverage of the bargaining unit subsequently settled but no CBA was signed.
2. Union security clauses Hence, in the records of the Mediation Arbiter, all
3. Management prerogatives and/or issues were settled before the lapse of the 6
rights/responsibilities of employees month period after the expiration of the old CBA.
4. Grievance machinery and Does the signing of the CBA determine the date it
voluntary arbitration was entered into within the 6 month period?
5. No strike no lock out provision
A: No. The signing of the CBA does not determine
Q: What is the effectivity and retroactivity date of whether the agreement was entered into within the
other economic provisions of the CBA? 6 month period from the date of expiration of the
old CBA. In the present case, there was already a
A: meeting of the minds between the company and
1. If the CBA is the very first for the the union prior to the end of the 6 month period
bargaining unit, the parties have to decide after the expiration of the old CBA. Hence, such
the CBA effectivity date. meeting of the mind is sufficient to conclude that an
agreement has been reached within the 6 month
2. Those made within 6 months after period as provided under Art. 253A of the LC.
date of expiry of the CBA are subject to
automatic retroaction to the day
immediately following the date of expiry.

LABOR LAW TEAM:


148 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

(Mindanao Terminal and Brokerage Services Inc., v. 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

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

b. Interpretation/ enforcement of days from receipt, VA/panel designated in


company personnel policies. (Art. the CBA shall commence arbitration
260, par. 1). proceedings
2. If the CBA does not designate or
(1)Grievance Procedure if the parties failed to name the VA/panel,
the regional branch of NCMB appoints
Q: What is grievance machinery? VA/panel

A: It refers to the mechanism for the adjustment (2)Voluntary Arbitration


and resolution of grievances arising from the
interpretation or enforcement of company Q: What is voluntary arbitration?
personnel policies. It is part of the continuing
process of collective bargaining (CB). A: It refers to the mode of settling labor
management disputes by which the parties select a
Note: It is a must provision in any CBA and no competent, trained and impartial third person who
collective agreement can be registered in the absence shall decide on the merits of the case and whose
of such procedure. decision is final and executory. (Sec.1 [d], Rule II,
NCMB Revised Procedural Guidelines in the Conduct
Q: How is grievance machinery established? of Voluntary Arbitration Proceedings, Oct. 15, 2004)

A: Q: What is the difference between compulsory


1. Agreement by the parties and voluntary arbitration?
2. A grievance committee
composed of at least 2 representatives B: Compulsory arbitration is a system whereby the
each from the members of the bargaining parties to a dispute are compelled by the
unit and the employer, unless otherwise government to forego their right to strike and are
agreed upon by the parties shall be compelled to accept the resolution of their dispute
created within 10 days from the signing of rd
through arbitration by a 3 party. The essence of
CBA arbitration remains since a resolution of a dispute is
arrived at by resort to a disinterested third party
Note: Although Art. 260 of the Labor Code mentions whose decision is final and binding on the parties,
parties to a CBA, it does not mean that a grievance but in compulsory arbitration, such a third party is
machinery cannot be set up in a CBAless enterprise. In normally appointed by the government.
any workplace where grievance can arise, a grievance
machinery can be established. Under voluntary arbitration, on the other hand,
referral of a dispute by the parties is made,
Q: What is grievance procedure? pursuant to a voluntary arbitration clause in their
collective agreement, to an impartial third person
A: It refers to the internal rules of procedure for a final and binding resolution. Ideally, arbitration
established by the parties in their CBA which usually awards are supposed to be complied with by both
consists of successive steps starting at the level of parties without delay, such that once an award has
the complainant and his immediate supervisor and been rendered by an arbitrator, nothing is left to be
ending, when necessary, at the level of the top done by both parties but to comply with the same.
union and company officials and with voluntary After all, they are presumed to have freely chosen
arbitration as the terminal step. arbitration as the mode of settlement for that
particular dispute. Pursuant thereto, they have
Q: What will happen to grievances submitted to chosen a mutually acceptable arbitrator who shall
the grievance machinery which are not settled hear and decide their case. Above all, they have
within 7 calendar days from the date of their mutually agreed to be bound by said arbitrator's
submission? decision. (Luzon Devt Bank v. Assn of Luzon Devt
Bank Ees, G.R. No. 120319, Oct. 6, 1995)
A: They shall automatically be referred to voluntary
arbitration prescribed in the CBA. (Art. 260, par.2, Q: What is the basis for voluntary arbitration and
Labor Code) its rationale?

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:
150 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

the preferential use of voluntary modes in settling


disputes, including conciliation, and shall enforce A:
their mutual compliance therewith to foster 1. Failure to meet and convene
industrial peace (Sec. 3, Art. XIII, 1987 Constitution). 2. Evading the mandatory subjects
of bargaining.
(3)No StrikeNo Lockout Clause 3. Bad faith in bargaining
(boulwarism), including failure to execute
Q: When does the No StrikeNo Lockout clause in the CBA if requested
the CBA apply? 4. Gross violation of the CBA
5. Surface Bargaining
A: The no strikeno lockout clause in the CBA 6. Blue sky bargaining
applies only to economic strikes. It does not apply
to ULP strikes. Hence, if the strike is founded on an Note: Violations of CBA, except those which are gross
unfair labor practice of the employer, a strike in character, shall no longer be treated as ULP but a
declared by the union cannot be considered a grievance under CBA. (Art. 261, LC, Silva v. NLRC, G.R.
violation of the no strike clause. (Master Iron Labor No. 110226, June 19 1997)
Union v. NLRC, G.R. No. 92009, Feb. 17, 1993)
Q: When is there refusal to bargain?
(4)Labor Management Council
A: A union violates its duty to bargain collectively by
Q: What is the role of the Department of Labor entering negotiations with a fixed purpose of not
and Employment in the creation of Labor reaching an agreement or signing a contract.
Management Councils?
Q: What is featherbedding/ make work activities?
A: The Department shall promote the formation of
A: It refers to the practice of the union or its agents
labormanagement councils in organized and
in causing or attempting to cause an employer (Er)
unorganized establishments to enable the workers
to pay or deliver or agree to pay or deliver money or
to participate in policy and decisionmaking
other things of value, in the nature of an exaction,
processes in the establishment, insofar as said
for services which are not performed or not to be
processes will directly affect their rights, benefits
performed, as when a union demands that the Er
and welfare, except those which are covered by
maintain personnel in excess of the latters
collective bargaining agreements or are traditional
requirements.
areas of bargaining.
Note: It is not featherbedding if the work is performed
The Department shall promote other labor no matter how unnecessary or useless it may be.
management cooperation schemes and, upon its
own initiative or upon the request of both parties, Q: What is the sweetheart doctrine?
may assist in the formulation and development of
programs and projects on productivity, occupational A: It is when a LO asks for or accepts negotiations or
safety and health, improvement of quality of work attys fees from employers as part of the settlement
life, product quality improvement, and other similar of any issue in CB or any other dispute.
schemes. (Sec. 1, Rule XXI, Book V, IRR)
Note: The resulting CBA is considered as a sweetheart
Q: How is the representative in the Management contract a CBA that does not substantially improve
Council Selected? the employees wages and benefits and whose benefits
are far below than those provided by law.
A: In organized establishments, the workers
representatives to the council shall be nominated by Q: What is bluesky bargaining?
the exclusive bargaining representative. In
establishments where no legitimate labor A: It is defined as making exaggerated or
organization exists, the workers representative shall unreasonable proposals.
be elected directly by the employees at large. (Sec.
2, Rule XXI, Book V, IRR) Note: Whether or not the union is engaged in bluesky
bargaining is determined by the evidence presented by
the union as to its economic demands. Thus, if the
c.ULP in Collective Bargaining
union requires exaggerated or unreasonable economic
demands, then it is guilty of ULP. (Standard Chartered
Q: What are the forms of ULP in bargaining? Bank v. Confessor, G.R. No. 114974, June 16, 2004)

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: When does boulwarism occur? 1. The circumstances under which


they were uttered
A: It occurs when employer (Er) directly bargains 2. The history of the particular Ers
with the employee (Ee) disregarding the union; the labor relations or antiunion bias
aim was to deal with the labor union through Ees 3. Their connection with an
rather than with the Ees thru the union. Er submits established collateral plan of coercion or
its proposals and adopts a takeitorleaveit stand. interference. (The Insular Life Assurance
NATU v. The Insular Life Co. Ltd, G.R. No.L
d.Unfair Labor Practice 25291, Jan. 30, 1971)

(1)ULP of Employers Q: Phil. Marine Officers Guild (PMOG) is a union


representing some of Philsteams officers and Cebu
Q: What are the ULP that may be committed by Seamens Association (CSA) is another union
Ers? representing some of Philsteams officers. PMOG
sent a letter to Philsteam requesting for CB but the
A: company asked the former to first prove it
1. Interference represents the majority. Simultaneously, Philsteam
2. Yellow dog condition interrogated its captains, deck officers and
3. Contracting out engineers while CSA likewise sent its demands to
4. Company unionism Philsteam. The company recognized CSA as
5. Discrimination for or against union representing the majority and entered into a CBA.
membership Hence PMOG declared a strike. PMOG was
6. Discrimination because of subjected to vilification and Philsteams pier
testimony superintendent participated in the solicitation of
7. Violation of duty to bargain membership for CSA. Is the company guilty of ULP?
8. Paid negotiation
9. Gross violation of CBA A: Yes. Although the company is free to make
interrogations as to its Ees union, the same should
(a)Interference be for a legitimate purpose and must not interfere
with the exercise of selforganization otherwise it is
Q: What is meant by interference? considered as ULP. Moreover, Philsteams
supervisory Ees statement that PMOG is a money
A: The act of Er to interfere with, restrain or coerce making union, which is made to appear to be said
Ees in the exercise of their right to self organization. in behalf of the union and the participation of the
companys pier superintendent in soliciting
Q: What is the test of interference? membership for the competing union, is ULP for
interfering with the exercise of the right to self
A: Whether the Er has engaged in conduct which, it organization. (Philsteam and Navigation v.
may reasonably be said, tends to interfere with the Philippine Marine Officers Guild, G.R. Nos. L20667
free exercise of the Ees right to selforganization. and L20669, Oct. 29, 1965)

Note: Direct evidence that an Ee was in fact intended Q: What is a lockout?


or coerced by the statements of threats of the Er is not
necessary if there is a reasonable interference that the A: It means any temporary refusal of an Er to
antiunion conduct of the Er does have an adverse furnish work as a result of an industrial or labor
effect on selforganization and CB. (The Insular Life dispute. (Art.212[p])
AssuranceNATU v. The Insular Life Co. Ltd, G.R. No.L
25291, Jan. 30, 1971) Q: When does lockout or closure amount to ULP?

Q: What is the totality of conduct doctrine? A: A lockout, actual or threatened, as a means of


dissuading the Ees from exercising their rights is
A: It states that the culpability of Ers remarks is to clearly an ULP. However, to hold an Er guilty, the
be evaluated not only on the basis of their evidence must establish that the purpose was to
implications, but against the background of and in interfere with the Ees exercise of their rights.
conjunction with collateral circumstances.
Q: What are other examples of acts of
Under this doctrine, expressions of opinion by an Er, interference?
though innocent in themselves, frequently were
held to be ULP because of:

LABOR LAW TEAM:


152 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

A: Q: What are the 3 usual provisions under a yellow


1. Outright and unconcealed dog contract?
intimidation
2. In order that interrogation would A:
not be deemed coercive: 1. A representation by the Ee that
a. The Er must communicate he is not a member of a labor union.
to the Ee the purpose of questioning 2. A promise by the Ee not to join
b. Assure him that no a labor union.
reprisal would take place 3. A promise by the Ee that upon
c. Obtain Ee participation joining a labor union, he will quit his
voluntarily employment.
d. Must be free from Er
hostility to union organization (c)Contracting Out
e. Must not be coercive in
nature Q: What is contracting out as a form of ULP?
3. Intimidating expressions of opinion
by Er A: It is to contract out services or functions being
performed by union members when such will
Note: An Er who interfered with the right to self interfere with, restrain or coerce Ees in the exercise
organization before a union is registered can be held of their rights to selforganization.
guilty of ULP. (Samahan ng mga Manggagawa sa
BandolinoLMLC v. NLRC, G.R. No. 125195, July 17, Q: Does it mean that an Er cannot contract out
1997) work?

It is the prerogative of the company to promote, A:


transfer or even demote its Ees to other positions GR: Contracting out services is not ULP per se.
when the interests of the company reasonably demand
it. Unless there are circumstances which directly point XPNs: It is ULP only when the ff. exists:
to interference by the company with the Ees right to 1. The services contracted out are
selforganization, the transfer of an Ee should be
being performed by union members; and
considered as within the bounds allowed by law.
2. Such contracting out interferes
(Rubberworld Phils. v. NLRC, G.R. No. 75704, July 19,
1989) with, restrains, or coerce Ees in the
exercise of their right to selforganization.
(b)Yellow Dog
Note: When the contracting out is being done for
business reasons such as decline in business,
Q: What is a yellow dog condition?
inadequacy of equipment or to reduce cost, then it is a
valid exercise of management prerogative.
A: It is to require as a condition of employment that
a person or an Ee shall not join a labor organization Q: Company "A" contracts out its clerical and
or shall withdraw from one to which he belongs. janitorial services. In the negotiations of its CBA,
the union insisted that the company may no longer
Q: What is a yellow dog contract? engage in contracting out these types of
services, which services the union claims to be
A: It is a promise exacted from workers as condition necessary in the company's business, without prior
of employment that they are not to belong to or consultation. Is the union's stand valid or not? For
attempt to foster a union during their period of what reason(s)?
employment.
A: The union's stand is not valid. It is part of
Q: Is yellow dog contract valid? management prerogative to contract out any work,
task, job or project except that it is an ULP to
A: No. It is null and void because: contract out services or functions performed
1. It is contrary to public policy for it is by union members when such will interfere with,
tantamount to involuntary servitude. restrain or coerce Ees in the exercise of their rights
2. It is entered into without to selforganization. (Art. 248[c] of the LC).
consideration for Ees in waiving their right (2001 Bar Question)
to self organization.
3. Ees are coerced to sign contracts Q: What is a runaway shop?
disadvantageous to their family.

Note: This is one of the cases of ULP that may be


committed in the absence of an ErEe relationship.

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: 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

LABOR LAW TEAM:


154 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

A: The employer is not guilty of ULP if it merely 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 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: What are the examples of ULP in bargaining? being a majority union. (1997 Bar Question)

A: Q: What is surface bargaining?


1. Delaying negotiations by
discussing unrelated matters A: It is the act of going through the motions of
2. Refusal to accept request to negotiating without any legal intent to reach an
bargain agreement. It involves the question of whether or
3. Rejecting a unions offer to prove not the Ers conduct demonstrates an unwillingness
its majority claim to bargain in good faith or is merely hard
4. Shutdown to avoid bargaining bargaining. (Standard Chartered Bank v. Confessor,
5. Engaging in surface bargaining G.R. No. 114974, June 16, 2004)

Note: Occurs when the Er constantly changes its


Q: Balmar Farms Ees Association (BFEA) is
position over the agreement.
affiliated with Associated Labor Union (ALU). ALU
won in the certification election held in the
(g)Paid Negotiation
company. Thus, ALU sent its proposal for a CBA,
but the company refused to act on it alleging that Q: What is meant by paid negotiation as a form of
BEA is the sole and exclusive bargaining ULP?
representative and that BFEA through its president
had sent a letter informing the company of its A: It is the act of the employer to pay negotiation or
disaffiliation with ALU. Is the company guilty of attys fees to the union or its officers or agents as
ULP for refusing to bargain collectively? part of the settlement of any issue in collective
bargaining or any other dispute.
A: Yes. ALU is the certified exclusive bargaining
representative after winning the certification (h)Gross Violation of CBA
election. The company merely relied on the letter of
disaffiliation by BFEAs president without proof and Q: When is the violation of CBA considered as
consequently refusing to bargain collectively ULP?
constitutes ULP. Such refusal by the company to
bargain collectively with the certified exclusive A: Only when the violation is gross There must be
bargaining representative is a violation of its duty to a flagrant and/or malicious refusal to comply with
collectively bargain which constitutes ULP. (Balmar the economic provision of the CBA.
Farms v. NLRC, G.R. No.73504, Oct. 15, 1991)
Note: All the ULP acts must have a relation to the Ees
Q: The Kilusang Kabisig, a newlyformed labor exercise of their right to selforganization. Antiunion
union claiming to represent a majority of the or antiorganization motive must be proved because it
workers in the Microchip Corp., proceeded to is a definitional element of ULP.
present a list of demands to the management for
purposes of collective bargaining (CB). The If violation is not gross, it is not ULP but a grievance
Microchips Corp., a multinational corp.engaged in under CBA. The grossly violate phrase is an
amendment by R.A. 6715.
the production of computer chips for export,
declined to talk with the union leaders, alleging
Q: A complaint for ULP was filed by a prosecutor of
that they had not as yet presented any proof of
the CIR against Alhambra company, upon the
majority status. The Kilusang Kabisig then charged
charges of the union that 15 of its members
Microchip Corp. with ULP, and declared a
employed as drivers and helpers are discriminated
"wildcat" strike wherein means of ingress and for being deprived of the benefits under the CBA
egress were blocked and remote and isolated acts with no justifiable reason other than union
of destruction and violence were committed. Was membership. Is the company guilty of ULP?
the company guilty of an ULP when it refused to
negotiate with the Kilusang Kabisig? A: Yes. The refusal to extend the benefits and
privileges under the CBA to Ees constitutes ULP.
Failure on the part of the company to live up in
A: No. It is not an ULP not to bargain with a union good faith to the terms of the CBA is a serious
which has not presented any proof of its majority violation of the duty to collectively bargain which
status. The LC imposes on an Er the duty to bargain again amounts to ULP. The 15 drivers and helpers
collectively only with a legitimate labor organization are found to be Ees of the company, hence, the
designated or selected by the majority of the Ees in benefit and privileges under the CBA should be
an appropriate CB unit. It is not a ULP for an Er to
ask a union requesting to bargain collectively that
such union first show proof of its
LABOR LAW TEAM:
156 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

extended to them. (Alhambra Industries v. CIR, G.R. 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.

A union member may not be expelled from the


union, and consequently from his job, for personal
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

and impetuous reasons or for causes foreign to the


closed shop agreement. (Manila Mandarin Ees A: Yes, assuming that they acted in their individual
Union v. NLRC, G.R. No. 76989, Sep. 29, 1987) capacities when they wrote the letter, they were
nonetheless protected, for they were engaged in a
Labor unions are not entitled to arbitrarily exclude concerted activity, in their right of selforganization
qualified applicants for membership and a closed that includes concerted activity for mutual aid and
shop applicants provision will not justify the protection. Any interference made by the company
employer in discharging, or a union in insisting upon will constitute as ULP.
the discharge of an employee whom the union thus
refuses to admit to membership without any The joining in protests or demands, even by a small
reasonable ground thereof. (Salunga v. CIR, G.R. No. group of Ees, if in furtherance of their interests as
L22456, Sep. 27, 1967) such is a concerted activity protected by the
Industrial Peace Act. It is not necessary that union
Q: When is there refusal to bargain? activity be involved or that collective bargaining be
contemplated. (Republic Savings Bank v. CIR, G.R.
A: A union violates its duty to bargain collectively by No. L20303, Oct. 31, 1967)
entering negotiations with a fixed purpose of not
reaching an agreement or signing a contract. Q: What is a strike?

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?

LABOR LAW TEAM:


158 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

even in the absence of ErEe relationship. (PAFLU v. Q: What is a slowdown?


Cloribel, G.R. No. L25878, Mar. 28, 1969)
A: It is a method by which ones employees,
Q:Is the right to picket an absolute right? without seeking a complete stoppage of work,
retard production and distribution in an effort to
A: No, while peaceful picketing is entitled to compel compliance by the employer with the labor
protection as an exercise of free speech, the courts demands made upon him.
are not without power to confine or localize the
sphere of communication or the demonstration to Q: Does an overtime boycott or work
the parties to the labor dispute, including those slowdown by the employees constitute a strike
with related interests, and to insulate and hence a violation of the CBAs No strike, no
establishments or persons with no industrial lockout clause?
connection or having interest totally foreign to the
context of the dispute. (Liwayway Pub., Inc. v. A: Yes, the concept of a slowdown is a "strike on
Permanent Concrete Workers Union, G.R. No. L the installment plan." It is a willful reduction in the
25003, Oct. 23, 1981) rate of work by concerted action of workers for the
purpose of restricting the output of the employer
The right to peaceful picketing shall be exercised by (Er), in relation to a labor dispute; as an activity by
the workers with due respect for the rights of which workers, without a complete stoppage of
others. No person engaged in picketing shall work, retard production or their performance of
commit any act of violence, coercion or duties and functions to compel management to
intimidation. Stationary picket, the use of means grant their demands.
like placing of objects to constitute permanent
blockade or to effectively close points of entry or Such a slowdown is generally condemned as
exit in company premises are prohibited by law. inherently illicit and unjustifiable, because while the
employees (Ees) "continue to work and remain at
Q:Who is a strikebreaker? their positions and accept the wages paid to them,"
they at the same time "select what part of their
A: Any person who obstructs, impedes, or allotted tasks they care to perform of their own
interferes with by force, violence, coercion, threats, volition or refuse openly or secretly, to the Er's
or intimidation any peaceful picketing affecting damage, to do other work;" in other words, they
wages, hours or conditions of work or in the "work on their own terms." (Interphil Laboratories
exercise of the right of selforganization or Ees UnionFFW v. Interphil Laboratories, Inc., G.R.
collective bargaining. (Art. 212 [r]) No. 142824, Dec. 19, 2001)

Q: What is a strike area? Q: What are the characteristics of a strike?


A:
A: It means the establishment, warehouses, depots, 1. Existence of an ErEe relationship
plants or offices, including the sites or premises 2. Existence of a labor dispute
used as runaway shops, of the Er struck against, as 3. Employment relation is deemed
well as the immediate vicinity actually used by to continue although in a state of
picketing strikers in moving to and fro before all belligerent suspension
points of entrance to and exit from said 4. Temporary work stoppage
establishment. (Sec. 1 [vv], Rule I, Book V, IRR) 5. Work stoppage is done through
concerted action
Q: What is an internal union dispute? 6. The striking group is a legitimate
labor organization; in case of a bargaining
A: It includes all disputes or grievances arising from deadlock, it must be the employees sole
any violation of or disagreement over any provision bargaining representative
of the constitution and by laws of a union, including
any violation of the rights and conditions of union Q: PAL dismissed strike leader Capt. Gaston as a
membership provided for in this LC. (Art. 212 [q]) result of which the Union resolved to undertake
the grounding of all PAL planes and the filing of
Q: What is a boycott? applications for protest retirement of members
who had completed 5 years of continuous service,
A: It is an attempt, by arousing a fear of loss, to and protest resignation for those who had
coerce others, against their will to withhold from rendered less than 5 years of service in the
one denominated unfriendly to labor their company. PAL acknowledged receipt of said letters
beneficial business intercourse. and among the pilots whose protest
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

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:

LABOR LAW TEAM:


160 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

A: Yes, the concerted efforts of the members of the 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,

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

Omnibus Rules Implementing The Labor In case of dismissal from employment of


Code, as amended). union officers which may constitute union
busting, the time requirement for the
filing of the Notice of Strike shall be
c.Requisites for a valid strike/ lockout
dispensed with but the strike vote
requirement, being mandatory in
Q: What are the requisites of a lawful strike / character, shall in every case be
lockout? complied with.

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.

4. A strike must be approved by a Q: What is conversion doctrine?


majority vote of the members of the
Union and a lockout must be approved by A: It is when a strike starts as economic and later, as
a majority vote of the members of the it progresses, it becomes a ULP, or vice versa.
Board of Directors of the Corporation or
Association or of the partners in a Q: Can a strike be converted into a lockout?
partnership, obtained by secret ballot in a
meeting called for that purpose. A: No, a strike cannot be converted into a pure and
simple lockout by the mere expedient of filing
5. A strike or lockout VOTE shall be before the trial court a notice of offer to return to
reported to the NCMBDOLE Regional work during the pendency of the labor dispute
Branch at least 7 days before the intended between the union and the employer. (Rizal Cement
strike or lockout subject to the coolingoff Workers Union v. CIR, G.R. No. L18442, Nov. 30,
period. 1962).

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.

LABOR LAW TEAM:


162 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

Illegal Amounts to a criminal


act because of the Ees trespass Illegal It is a political rally
on the premises of the Er
7. Quickie strikes brief and
2. Wildcat strike A work stoppage unannounced temporary work stoppage
that violates the labor contract and is not
authorized by the union. Illegal failure to comply with notice
requirements and etc.
Illegal Because it fails to
comply with certain reqts of Q: Two unions, joined a welga ng bayan. The
the law, to wit: notice of strike, unions, led by their officers, staged a work
vote and report on strike vote stoppage which lasted for several days, prompting
FILFLEX and BIFLEX Corporations to file a petition
3. Slowdown Strike on an installment to declare the work stoppage illegal for failure to
plan; an activity by which workers, comply with procedural reqts. Whether the Ees
without complete stoppage of work, committed an illegal work stoppage?
retard production or their performance of
duties and functions to compel A: Yes. Ees, who have no labor dispute with their Er
management to grant their demands but who, on a day they are scheduled to work,
refuse to work and instead join a welga ng bayan
Illegal Ees work on their own commit an illegal work stoppage. There being no
terms; while the Ees continue to showing that the two unions notified the
work and remain in their corporations of their intention, or that they were
positions and accept wages paid allowed by the corporations, to join the welga ng
to them, they at the same time bayan, their work stoppage is beyond legal
select what part on their protection.(BIFLEX Phils. Inc. Labor Union (NAFLU)
allotted tasks they care to vs. FILFLEX Industrial and Manufacturing Corp., G.R.
perform on their own volition or No. 155679, Dec. 19, 2006)
refuse openly or secretly
Q: What are the tests in determining the legality of
4. Sympathetic strike Work strike?
stoppages of workers of one company to
make common cause with other strikers A: The following must concur:
or other companies without demands or 1. Purpose test the strike must
grievances of their own against the Er be due to either bargaining deadlock
and/or the
Illegal There is no labor ULP
dispute between the workers 2. Compliance with the procedural
who are joining the strikers and and substantive reqts of the law. (See
the latters Er requisites of a valid strike)
3. Means employed test It states
5. Secondary strike Work stoppages that a strike may be legal at its inception
of workers of one company to exert but eventually be declared illegal if the
pressure on their Er so that the latter will strike is accompanied by violence which is
in turn bring pressure upon the Er of widespread, pervasive and adopted as a
another company with whom another matter of policy and not mere violence
union has a labor dispute which is sporadic which normally occur in
a strike area.
Illegal There is no labor
dispute involved. Q: What are the instances when a strike or lockout
cannot be declared?
Note: A strike can validly take
place only in the presence of and A: Nonstrikable issues:
in relation to a labor dispute 1. CBA violations not gross in character
between Er and Ee. 2. Grounds involving inter/intra
union disputes
6. Welga ng bayan (Cause Oriented 3. When there is no notice of
Strikes) strike or lockout or without the strike or
A political strike and therefore there is lockout vote
neither a bargaining deadlock nor any ULP
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

4. After assumption of jurisdiction by its own initiative or upon request of


the any party.
SLE
5. After certification or submission of 4. Furnish the regional branch of
dispute to compulsory or voluntary the NCMB with a notice to conduct a
arbitration or during the pendency of strike vote, at least 24hours before the
cases involving the same grounds for meeting for such purpose (Sec. 10, Rule
strike or lockout XXII of the Omnibus Rules of the NLRC).
6. Labor standards cases such as
wage orders. (Guidelines governing Labor 5. 7Day strike ban a 7day
Relations [Oct. 19, 1987] issued by Sec. waiting period before the date of the
Drilon. See also Art. 261, LC) purported strike (within which the union
intending to conduct a strike must at least
submit a report to DOLE as to the result of
Q: What are the procedural and substantive the strike vote)
requisites before a strike may be declared?
Note: To give DOLE an opportunity to verify
A: whether the projected strike really carries
1. Notice of strike filed with the the imprimatur of the majority of the union
NCMB taking into consideration the members in addition to the coolingoff
period before the actual strike. (Lapanday
coolingoff period
Workers Union, et.al. v. NLRC, G.R. Nos.
9549497, Sep. 7, 1995)
Note: The failure of the union to serve the
company a copy of the notice of strike is a
clear violation of Section 3, Rule XXII, Book V Q: What is a coolingoff period?
of the Rules Implementing the LC. The
Constitutional precepts of due process A: It is the period of time given the NCMB to
mandate that the other party be notified of mediate and conciliate the parties. It is the span of
the adverse action of the opposing party. time allotted by law for parties to settle their
(Filipino Pipe and Foundry Corp. v. NLRC, disputes in a peaceful manner before staging a
G.R. No. 115180, Nov.r 16, 1999) strike or lockout.

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

LABOR LAW TEAM:


164 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

A: Yes, but it is applicable only to economic strikes, 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)

A: Q: NFSW, the bargaining agent of Central


1. Name and addresses of Er Azucarera de la Carlota (CAC) rank and file
2. Union involved employees, filed a notice of strike based on non
th
3. Nature of the industry to which the payment of the 13 month pay and 6 days
Er belongs thereafter they held the strike. A day after the
4. Number of union members commencement of the strike, a report of the
5. Workers in the bargaining unit strikevote was filed by NFSW with MOLE. CAC
6. Other relevant date filed a petition to declare the strike illegal due to
7. In case of bargaining deadlocks: noncompliance with the 15day cooling of period
unresolved issues, written proposals of and the strike was held before the lapse of 7 days
the union, counterproposals of the Er and from the submission to the MOLE of the result of
proof of request for conference to settle the strike vote. Was the strike held by NFSW legal?
differences
8. In case of ULP: The acts complained A: No. The coolingoff period in Art. 264(c) and the
of, and the efforts taken to resolve the 7day strike ban after the strikevote report
dispute prescribed in Art. 264 (f) were meant to be
mandatory. The law provides that the labor union
Note: NCMB shall inform the concerned party in case may strike should the dispute remain unsettled
notice does not conform with the reqts. until the lapse of the requisite number of days from
the filing of the notice, this clearly implies that the
Q: What action will the board take on the notice of union may not strike before the lapse of the
strike of strike or lockout? coolingoff period. The coolingoff period is for the
Ministry of Labor and Employment to exert all
A: efforts at mediation and conciliation to effect a
1. Upon receipt of notice, the regional voluntary settlement.
branch of the Board shall exert all efforts
at mediation and conciliation to enable The mandatory character of the 7day strike ban is
the parties to settle the dispute amicably. manifest in the provision that in every case the
It shall also encourage the parties to union shall furnish the MOLE with the results of the
submit the dispute to voluntary voting at least 7 days before the intended strike.
arbitration. This period is to give time to verify that a strike vote

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

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?

Q: Fil Transit Ees Union filed a notice of strike with A:


the BLR because of alleged ULP of the company. 1. When the Ees were illegally
Because of failure to reach an agreement the locked thus compelling them to stage a
union went on strike. Several employees (Ees) strike
were dismissed because of the strike. The union 2. When the Er is guilty of the
filed another notice of strike alleging ULP, massive grossest form of ULP
dismissal of officers and members, coercion of Ees 3. When the Er committed
and violation of workers rights to self discrimination in the rehiring of strikers
organization. The Ministry of Labor and refusing to readmit those against whom
Employment, after assuming jurisdiction over the there were pending criminal cases while
dispute, ordered all striking Ees including those admitting nonstrikers who were also
who were dismissed to return to work. The criminally charged in court;
company however countered that no strike vote
had been obtained before the strike was called and 4. When the workers who staged a
the result of the strike vote was not reported to voluntary ULP strike offered to return to
Ministry of Labor and Employment. Was the strike work unconditionally but the Er refused to
held by the union illegal for failure to hold a strike reinstate them. (Manila Diamond Hotel
vote? vs. Manila Diamond Hotel Ees Union, G.R.
No. 158075, June 30, 2006)
A: Yes, there is no evidence to show that a strike
vote had in fact been taken before a strike was d.Assumption of Jurisdiction by the Secretary of
called. Even if there was a strike vote held, the strike Labor or Certification of the Labor dispute to the
called by the union was illegal because of non NLRC for compulsory arbitration
observance by the union of the mandatory 7 day
strike ban counted from the date the strike vote Q: Discuss the assumption of jurisdiction by the
should have been reported to the DOLE. (First City Secretary of Labor and Employment (SLE) on
Interlink Transportation Co., Inc. v. Confessor, G.R. strikes/lockouts.
No. 106316, May 5, 1997)
A:
Q: The company conceived and decided to 1. Discretionary
retrench its Ees and selected about 40 Ees to be a. If in his opinion there exists a
dismissed because of the lack of work. Because of labor dispute causing or likely to cause
this about 200 Ees during breaktime boarded a strike or lockout in an industry
buses and went to the Ministry of Labor but they indispensable to the national interest.
were advised to return to work. b. He may certify the same to the
NLRC for compulsory arbitration
Upon returning to the companys premises, the Ees c. Effect Automatically enjoins
were only allowed to stay in the canteen and were the intended or impending
not given work because according to the company strike/lockout but if one has already
the machines were undergoing repairs. Are the Ees taken place, all striking or locked out
entitled to reinstatement and backwages? Ees shall immediately return to work
and the Er shall immediately resume
A: The Ees are entitled to reinstatement but not to operations and readmit all workers
backwages. Both parties being in pari delicto, having under the same terms and conditions
conducted an illegal strike and lockout respectively, prevailing before the strike or lockout
there must be a restoration of the status quo ante (Trans Asia Shipping Lines, Inc.
and must bring the parties back to their respective Unlicensed Crews Ees Union v. CA,
positions prior to the illegal strike and lockout which G.R. No. 145428, July 7, 2004)
shall be done by reinstating the remaining Ees.
However, it is the general rule that strikers are not Note: A motion for reconsideration does not
entitled to backwages. The principle of no work, no suspend the effects as the assumption order is
pay is applicable in view of the finding of the immediately executory.
illegality of the strike. (Philippine InterFashion, Inc
v. NLRC, G.R. No. L59847, Oct. 18, 1982) 2. Mandatory (within 24 hours)
a. In labor disputes adversely
affecting the continued operation of
hospitals, clinics or medical
institutions.

LABOR LAW TEAM:


166 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

b. 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)?

A: A: The assumption of jurisdiction is in the nature of


1. Issues submitted to the SLE for a police power measure. This is done for the
resolution and such issues involved in the promotion of the common good considering that a
labor dispute itself. (St. Scholasticas prolonged strike or lockout can be inimical to the
College v. Torres, G.R. No. 100158, June 2, national economy. The SLE acts to maintain
1992) industrial peace. Thus, his certification for
2. SLE may subsume pending labor compulsory arbitration is not intended to impede
cases before LAs which are involved in the the workers right to strike but to obtain a speedy
dispute and decide even issues falling settlement of the dispute. (Philtread Workers Union
under the exclusive and original v. Confesor, G.R. No. 117169, Mar. 12, 1997)
jurisdiction of LAs such as the declaration
of legality or illegality of strike (Intl. Art. 263(g) does not interfere with the workers right
Pharmaceuticals v. SLE, G.R. Nos. 92981 to strike but merely regulates it, when in the
83, Jan. 9, 1992) exercise of such right national interest will be
affected. The LC vests upon the SLE the discretion to
Note: Power of SLE is plenary and discretionary. (St. determine what industries are indispensable to
Lukes Medical Center v. Torres, G.R. No. 99395, June national interest.
29, 1993)
Q: What is the nature of assumption and
Q: Is it necessary for the SLE to issue a returnto certification orders of the Secretary of Labor?
work order in an assumption order?
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

meetings were conducted but to no avail so the


A: The underlying principle embodied in Art. union staged a strike while the company
264 terminated 383 union members from service
(g) on the settlement of labor disputes is that pursuant to its redundancy program. Pursuant to
assumption and certification orders are executor in Art. 263(g) of the LC the SLE certified the labor
character and are strictly complied with by the dispute for compulsory arbitration. Accordingly
parties even during the pendency of any petition the SLE enjoined the strike staged by the union
questioning their validity. This extraordinary and all striking workers were directed to return to
authority given to the Secretary of Labor is aimed at work within 24 hours except for those who were
arriving at a peaceful and speedy solution to labor terminated due to redundancy.
disputes, without jeopardizing national interests.
Was the SLE correct in excepting from the return
Q: A notice of strike was filed by the PSBA Ees towork order those who were terminated due to
UnionFFW, alleging union busting, coercion of Ees redundancy?
and harassment on the part of PSBA. The
conciliation being ineffective, the strike pushed A: No, Art. 263(g) is clear and unequivocal in
through. A complaint for ULP and for a declaration stating that all striking or lockout Ees shall
of illegality of the strike with a prayer for immediately return to work and the Er shall
preliminary injunction was filed by PSBA against immediately resume operations and readmit all
the union. workers under the same terms and conditions
prevailing before the strike or lockout. Records of
While the cases were pending, a complaint was the case would show that the strike occurred one
filed in the RTC of Manila by some PSBA students day before the members of the union were
against PSBA and the union, seeking to enjoin the dismissed due to alleged redundancy. Thus the
union and its members from picketing and from abovementioned article directs that the Er must
barricading themselves in front of the schools readmit all workers under the same terms and
main gate. A TRO was then issued by the RTC, conditions prevailing before the strike. (PLDT v.
which the union opposed on the ground that the Manggagawa ng Komunikasyon sa Pilipinas, G.R.
case involves a labor dispute over which the RTC No. 162783, July 14, 2005)
had no jurisdiction. The Acting SLE later on
assumed jurisdiction over the labor dispute and f.Effect of defiance of Assumption or Certification
ordered the striking Ees to return to work. Was Order
the SLE correct in ordering the striking Ees to
return to work? Q: What is the effect of defiance to the return to
work order?
A: Yes. In the opinion of the Acting SLE, the labor
dispute adversely affected the national interest, A: It shall be considered an illegal act committed in
affecting as it did 9,000 students. He is authorized the course of the strike or lockout and shall
by law to assume jurisdiction over the labor dispute, authorize the SLE or the NLRC, as the case may be,
after finding that it adversely affected the national to enforce the same under pain or loss of
interest. This power is expressly granted by Art. 263 employment status or entitlement to full
(g) of the LC, as amended by B.P. Blg. 227. employment benefits from the lockingout Er or
backwages, damages and/or other positive and/or
Q: Does the RTC have jurisdiction to decide on the affirmative reliefs, even to criminal prosecution
case filed by the PSBA students? against the liable parties. (Sec. 6, Rule IX, of the
New Rules of Procedure of the NLRC; St.
A: No, the RTC was without jurisdiction over the Scholasticas College v. Torres, G.R. No. 100158,
subject matter of the case filed by some PSBA June 2, 1992)
students, involving as it does a labor dispute over
which the labor agencies had exclusive jurisdiction.
That the regular courts have no jurisdiction over g.Illegal Strike
labor disputes and to issue injunctions against
strikes is wellsettled. (PSBA v. Noriel, G.R. No. Q: When is a strike illegal?
80648, Aug. 15, 1988)
A:
Q: Members of the union learned that a 1. Contrary to specific prohibition
redundancy program would be implemented by of law, such as strike by employees (Ees)
the company. Thereupon it filed a Notice of strike performing governmental functions;
on the grounds of ULP. A number of conciliation 2. Violates a specific reqt of law;

LABOR LAW TEAM:


168 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

3. Declared for an unlawful purpose, Q: What is the rule on reinstatement of striking


such as inducing the employer (Er) to workers?
commit ULP against nonunion Ees;
4. Employs unlawful means in the A: Striking employees are entitled to reinstatement,
pursuit of its objective, such as regardless of whether or not the strike was the
widespread terrorism of nonstrikers; consequence of the employers ULP because while
5. Declared in violation of an existing out on strike, the strikers are not considered to have
injunction; abandoned their employment, but rather have only
6. Contrary to an existing agreement, ceased from their labor; the declaration of a strike is
such as a no strike clause or conclusive not a renunciation of employment relation.
arbitration clause
Q: Who are not entitled to reinstatement?
Q: What is good faith (GF) strike doctrine?
A:
A: A strike may be considered legal where the union 1. Union officers who knowingly
believed that the company committed ULP and the participate in the illegal strike
circumstances warranted such belief in GF, although 2. Any striker or union who
subsequently such allegations of ULP are found out knowingly participates in the commission
as not true. (Bacus v. Ople, GR No. L 56856, Oct. of illegal acts during the strike
23, 1984, Peoples Industrial and Commercial Ees
and Organization (FFW) v. Peoples Industrial and Note: Those union members who have joined an illegal
Commercial Corp., G.R. No.37687, Mar. 15, 1982) strike but have not committed any illegal act shall be
reinstated but without back wages.
Q: What is the effect of the GF of strikers on the
legality of strike? The responsibility for the illegal acts committed during
the strike must be on an individual and not on a
collective basis. (First City Interlink Transportation Co.,
A:
Inc. v. Confesor, G.R. No. 106316, May 5, 1997)
GR: A strike grounded on ULP is illegal if no such
acts actually exist.
Q: Are strikers entitled to their backwages or
strike duration pay?
XPN: Even if no ULP acts are committed by the
Er, if the Ees believe in GF that ULP acts exist so
A:
as to constitute a valid ground to strike, then
GR: No, even if such strike was legal.
the strike held pursuant to such belief may be
legal. Where the union believed that the Er
XPN:
committed ULP and the circumstances
1. Where the strikers voluntarily
warranted such belief in GF, the resulting strike
and unconditionally offered to return to
may be considered legal although, subsequently,
work, but the employer refused to accept
such allegations of ULP were found to be
the offer workers are entitled to back
groundless. (NUWHRAINInterim Junta v. NLRC,
wages from the date their offer was made
G.R. No. 125561, Mar. 6, 1998)
2. When there is a returntowork
order and the Ees are discriminated
(1)Liability of Officers of the Union and Ordinary
against other Ees, workers are entitled to
Workers
back wages from the date of
discrimination
Q: Should separation pay and backwages be
3. In case of a ULP strike, in the
awarded to the participants of an illegal strike?
discretion of the authority deciding the
case
A: No backwages will be awarded to union
members as a penalty for their participation in the
Q: What is the rule in strikes in hospitals?
illegal strike. As for the union officers, for knowingly
participating in an illegal strike, the law mandates
A:
that a union officer may be terminated from
1. It shall be the duty of the
employment and they are not entitled to any relief.
striking employees or lockingout
(Gold City Integrated Port Services, Inc. v. NLRC, G.R.
employer to provide and maintain an
No. 86000, Sep. 21, 1990 )
effective skeletal workforce of medical
and health personnel for the duration of
the strike or lockout.
2. SLE may immediately assume
jurisdiction within 24 hours from
knowledge of the
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

occurrence of such strike or lockout A: When an employer accedes to the peaceful


certify it to the NLRC for compulsory settlement brokered by the NLRC by agreeing to
arbitration. accept all employees who had not yet returned to
work, it waives the issue of the illegality of the
Q: More or less 1400 Ees of the company staged a strike. (Reformist Union v. NLRC, G.R. No.
mass walkout, allegedly without anybody leading 120482,Jan. 27, 1997)
them as it was a simultaneous, immediate and
unanimous group action and decision, to protest j.Injunctions
the nonpayment of their salaries and wages. The
Minister of Labor and Employment who found the Q: What is an injunction?
strike to be illegal granted the clearance to
terminate the employment of those who were A: It is an order or a writ that commands a person
instigators in the illegal strike. Was the decision of to do or not to do a particular act. It may be a
the Minister of Employment in granting the positive (mandatory) or a negative (prohibitory)
clearance correct? command.

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

LABOR LAW TEAM:


170 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR RELATIONS LAW

courts have no jurisdiction to act on labor cases or


various incidents arising therefrom, including the
execution of decisions, awards or orders.
rd

A party, by filing its 3 party claim with the deputy


sheriff, it submitted itself to the jurisdiction of the

The broad powers granted to the LA and to the


NLRC by Art. 217, 218 and 224 of the LC can only be
interpreted as vesting in them jurisdiction over
incidents arising from, in connection with or
relating to labor disputes, as the controversy under
consideration, to the exclusion of the regular
courts. The RTC, being a coequal body of the NLRC,
has no jurisdiction to issue any restraining order or
injunction to enjoin the execution of any decision of
the latter. (Deltaventures v. Cabato, G.R. No.
118216, Mar. 9, 2000)

Q: The employer filed with the RTC a complaint for


damages with preliminary mandatory injunction
against the union, the main purpose of which is to
dispense the picketing of the members of the
union. The union filed a motion to dismiss on the
ground of lack of jurisdiction. The RTC denied the
motion to dismiss and enjoined the picketing, it
said that mere allegations of ErEe relationship
does not automatically deprive the court of its
jurisdiction and even the subsequent filing of
charges of ULP, as an afterthought, does not
deprive it of its jurisdiction. Was the issuance by
the RTC of the injunction proper?

A: No, the concerted action taken by the members


of the union in picketing the premises of the
department store, no matter how illegal, cannot be
regarded as acts not arising from a labor dispute
over which the RTCs may exercise jurisdiction.
(Samahang Manggagawa ng Liberty Commercial v.
Pimentel, G.R. No. L78621, Dec. 2, 1987)

VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE


ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

H. PROCEDURE AND 8. Wage distortion disputes in


unorganized establishments not
JURISDICTION 1.LABOR voluntarily settled by the parties pursuant
to RA 6727
ARBITER 9. Enforcement of compromise
agreements when there is non
a.Jurisdiction compliance by any of the parties pursuant
Q: What is the distinction between the jurisdiction to Art. 227 of the Labor Code (LC), as
of the labor arbiter (LA) and the National Labor amended; and
Relations Commission (NLRC)? 10. Other cases as may be provided by law

A: Note: Although the provision speaks of exclusive and


1. The NLRC has exclusive appellate original jurisdiction of LAs, the cases enumerated may
jurisdiction on all cases decided by the LA. instead be submitted to a voluntary arbitrator by
agreement of the parties under Art. 262 of the LC. The
2. The NLRC does not have original
law prefers voluntary over compulsory arbitration.
jurisdiction on the cases over which the
LA have original and exclusive jurisdiction.
Q: What is the nature of the cases which the labor
3. The NLRC cannot have appellate
arbiter (LA) may resolve?
jurisdiction if a claim does not fall within
the exclusive original jurisdiction of the
A: The cases that an LA can hear and decide are
LA.
employment related. Where no ErEe relationship
exists between the parties and no issue is involved
Q: What is the nature of jurisdiction of labor
which may be resolved by reference to the LC, other
arbiters (LAs)?
labor statutes, or any collective bargaining
agreement, it is the RTC that has jurisdiction.
A: It is original and exclusive. LAs have no appellate
(Lapanday Agricultural Devt. Corp v. CA, G.R. No.
jurisdiction.
112139, Jan.31, 2000)
Q: What are the cases falling under the jurisdiction
The LA has jurisdiction over controversies involving
of labor arbiters (LAs)?
Ers and Ees only if there is a reasonable causal
connection between the claim asserted and the Er
A: Exclusive and original jurisdiction to hear and
Ee relations. Absent such link, the complaint is
decide the following cases involving all workers:
cognizable by the regular court. (Eviota v. CA, G.R.
1. ULP cases No. 152121, July 29, 2003)
2. Termination disputes
Q: Do labor arbiters exercise concurrent
3. If accompanied with a claim for
jurisdiction with the NLRC?
reinstatement, those that workers file
involving wages, rates of pay, hours of
A: Yes, with respect to contempt cases.
work and other terms and conditions of
employment
Q: What are the cases referred to grievance
4. Claims for actual, moral, machinery and voluntary arbitration?
exemplary and other forms of damages
arising from Er Ee relations A: Disputes arising from the:
5. Cases arising from any violation of
Art. 264, including questions involving the 1. Interpretation or implementation of the
legality of strikes and lockouts; CBA
6. Except claims for Employment 2. Interpretation or enforcement
Compensation, Social Security, Philhealth of company personnel policies
and maternity benefits, all other claims
arising from ErEe relations, including Q: What is the extent of the jurisdiction of the
those of persons in domestic or labor arbiter (LA) if there are unresolved matters
household service, involving an amount arising from the interpretation of the CBA?
exceeding P5000 regardless of whether
accompanied with a claim for A:
reinstatement GR: LAs have no jurisdiction over unresolved or
7. Monetary claims of overseas unsettled grievances arising from the
contract workers arising from ErEe interpretation or implementation of the CBA and
relations under the Migrant Workers Act those arising from the interpretation or
of 1995 as amended by RA 10022 enforcement of company personnel policies.

LABOR LAW TEAM:


172 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION

City Water District v. Buat, G.R. No.


XPN: Actual termination disputes 104389, May 27, 1994)
7. The aggregate money claim
Note: Where the dispute is just in the interpretation, does not exceed P5000 and without claim
implementation or enforcement stage of the for reinstatement (Rajah Humabon Hotel,
termination, it may be referred to the grievance Inc. v. Trajano, G.R. Nos. 10022223,
machinery set up by the CBA or by voluntary Sep.14, 1993)
arbitration. Where there was already actual 8. Claim of employee (Ee) for cash
termination, i.e., violation of rights, it is already prize under the Innovation Program of the
cognizable by the LA. (Maneja v. NLRC, G.R. No. company, although arising from ErEe
124013, June 5, 1998) relationship, is one requiring application
of general civil law on contracts which is
Q: Does the use of the word may in the within the jurisdiction of the regular
provisions of the Grievance Procedure allow the courts (SMC v. NLRC, G.R. No. 80774, May
alternative of submitting the case before the labor 31, 1988)
arbiter (LA)? 9. Cause of action based on quasi
delict or tort which has no reasonable
A: Yes. The use of the word may shows the connection with any of the claims
intention of the parties to reserve the right to enumerated in Art.217 of the LC (Ocheda
submit the illegal termination dispute to the v. CA, G.R. No. 85517, Oct. 16, 1992)
jurisdiction of the LA, rather than to a voluntary 10. Complaint arising from violation
arbitrator. Petitioner validly exercised his option to of training agreement (Singapore Airlines
submit his case to a LA when he filed his complaint v. Pano, G.R. No. L47739, June 22, 1983)
before the proper government agency. In other
words, the CA is correct in holding that voluntary Q: FASAP, the sole and exclusive bargaining
abitration is mandatory in character if there is a representative of the flight attendants, flight
specific agreement between the parties to that stewards and pursers of PAL, and respondent PAL
effect. It must be stressed however that, in the case entered into a CBA incorporating the terms and
at bar, the use of the word may shows the conditions of their agreement for the years 01
intention of the parties to reserve the right of 05. Sec. 144, Part A of the CBA provides that
recourse to LAs. (Vivero v. CA, G.R. No. 138938, compulsory retirement shall be 55 for females and
Oct.24, 2000) 60 for males. They filed an action with the RTC
claiming that the CBA provision is discriminatory
Q: What are the cases which do not fall under the and hence unconstitutional. The RTC issued a TRO.
jurisdiction of the labor arbiters (LA)? The appellate court ruled that the RTC has no
jurisdiction over the case at bar. Whether RTC has
A: LAs have no jurisdiction over the ff: jurisdiction over the petitioners' action challenging
the legality of the provisions on the compulsory
1. Foreign governments (JUSMAG retirement age contained in the CBA?
Phils. v. NLRC, G.R. No. 108813, Dec. 15,
1994) A: Yes. The subject of litigation is incapable of
2. Intl agencies (Lasco v. NLRC, G.R. pecuniary estimation, exclusively cognizable by the
Nos. 109095109107, Feb. 23, 1995) RTC, pursuant to Sec. 19 (1) of BP Blg. 129, as
3. Intracorporate disputes which fall amended. Being an ordinary civil action, the same is
under P.D. 902A and now falls under the beyond the jurisdiction of labor tribunals.
jurisdiction of the regular courts pursuant
to the new Securities Regulation Code Not every controversy or money claim by an
(Nacpil v. IBC, G.R. No. 144767, Mar. 21, employee (Ee) against the employer (Er) or vice
2002) versa is within the exclusive jurisdiction of the LA.
4. Executing money claims against Actions between Ees and Er where the ErEe
government (Dept of Agriculture v. NLRC, relationship is merely incidental and the cause of
G.R. No. 104269, Nov. 11, 1993) action precedes from a different source of
5. Cases involving GOCCs with original obligation is within the exclusive jurisdiction of the
charters which are governed by civil regular court. Here, the ErEe relationship between
service law, rules or regulations (Art. IXB, the parties is merely incidental and the cause of
Sec.2, No.1, 1987 Constitution) action ultimately arose from different sources of
6. Local water district (Tanjay Water obligation, i.e., the Constitution and CEDAW.
District v. Gabaton, April 17, 1989) except (Halaguena vs. PAL Incorporated, G.R. No. 172013,
where NLRC jurisdiction is invoked Oct. 2, 2009)
(Zamboanga
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:
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.

LABOR LAW TEAM:


174 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION

2. 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 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: Can the Labor Arbiter (LA) conduct compulsory


arbitration? 2.NATIONAL LABOR RELATIONS COMMISSION
(NLRC)
A: Yes. Under the Labor Code, it is the LA who is
clothed with the authority to conduct compulsory Q: What is the NLRC?
arbitration on cases involving termination disputes
[Art.217, P.D. 442, as amended]. (PAL v. NLRC, G.R. A: It is an administrative body with quasijudicial
No. 55159, Dec. 22, 1989) functions and the principal government agency that
hears and decides labormanagement disputes; it is
Q: What are the rules on venue of filing cases? attached to the DOLE solely for program and policy
coordination only.
A:
1. All cases which the Labor Arbiters Q: How are the powers and functions of the NLRC
(LAs) have authority to decide may be allocated?
filed in the Regional Arbitration Branch
(RAB) having jurisdiction over the A:
workplace of the complainant /petitioner. 1. En Banc
a. Promulgating rules and
Note: Workplace is understood to be the regulations and governing the
place or locality where the employee (Ee) is hearings and disposition of cases
regularly assigned when the cause of action before any of its divisions and
arose. It shall include the place where the Ee regional branches.
is supposed to report back after a temporary b. Formulating policies affecting its
detail, assignment or travel. administration and operations.
In case of field Ees, as well as ambulant or
c. On temporary or emergency
itinerant workers, their workplace is where
basis, to allow cases within the
they are
jurisdiction of any division to be
a. Regularly assigned
b. Supposed to regularly receive their heard and decided by any other
salaries and wages division whose docket allows the
c. Receive their work instructions from additional workload and such transfer
d. Reporting the results of their will not expose litigants to
assignment to their employers (Er) unnecessary additional expense.
2. Division (8 Divisions with 3 members)
2. Where 2 or more RABs have a. Adjudicatory;
jurisdiction over the workplace, the first b. All other powers, functions and
to acquire jurisdiction shall exclude duties;
others. c. Exclusive appellate jurisdiction
over cases within their respective
3. Improper venue when not territorial jurisdiction.
objected to before filing of position
papers shall be deemed waived. Q: Does an individual Commissioner have
adjudicatory power?
4. Venue may be changed by written
agreement of the parties or when the A: No. The law lodges the adjudicatory power on
NLRC or the LA so orders, upon motion by each of the eight divisions, not on the individual
the proper party in meritorious cases. commissioners nor on the whole commission. The
division is a legal entity, not the person who sits in
5. For Overseas Contract Workers it. Hence, an individual commissioner has no
where the complainant resides or where adjudicatory power, although of course, he can
the principal office of the respondent Er is concur or dissent in deciding a case.
located, at the option of the complainant.
a.Jurisdictions
Note: The Rules of Procedure on Venue is
merely permissive, allowing a different Q: What are the two kinds of jurisdiction of the
venue when the interest of substantial NLRC?
justice demands a different one. (Dayag v.
Canizares, GR. No. 124193, Mar. 6, 1998) A:
1. Exclusive Original Jurisdiction
a. Certified labor disputes causing
or likely to cause a strike or lockout in
an industry indispensable to national

LABOR LAW TEAM:


176 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION

interest, certified to it by the valid judgment.


Secretary of Labor or the President
for compulsory arbitration Note: Whenever the required membership in
b. Injunction in ordinary a division is not complete and the
labor disputes to enjoin or restrain concurrence of the Commissioners to arrive
any actual or threatened commission at judgment or resolution cannot be
of any or all prohibited or unlawful obtained, the Chairman shall designate such
number of additional Commissioners from
acts or to require the performance of
the other divisions as may be necessary.
a particular act in any labor dispute
which, if not restrained or performed
2. It shall be mandatory for the
forthwith, may cause grave or
division to meet for purposes of
irreparable damage to any party
consultation.
c. Injunction in strikes or
lockouts under Art. 264 of the Labor
Note: The conclusion of a division on any
Code (LC) case submitted to it for decision should be
d. Contempt cases reached in consultation before the case is
2. Exclusive Appellate Jurisdiction assigned to a member for the writing of the
a. All cases decided by the opinion.
Labor Arbiters under Art. 217(b) of
the LC and Sec. 10 of R.A.8042 3. A certification that a consultation
(Migrant Workers Act); and has been conducted, signed by the
b. Cases decided by the presiding commissioner of the division,
Regional Offices of DOLE in the shall be issued (copy attached to the
exercise of its adjudicatory function record of case and served upon the
under Art.129 of the LC over parties).
monetary claims of workers
amounting to not more than P5000 Q: What are the qualifications of the Chairman and
and not accompanied by claim for the Commissioners?
reinstatement.
A:
Q: What is the composition of the NLRC? 1. Member of the Philippine Bar
2. Engaged in the practice of law in
A: the Philippines for at least 15 years
1. Chairman 3. At least 5 years experience or
2. 23 Members exposure in handling labor management
a. 8 members each, shall be relations
chosen only from among the 4. Preferably a resident of the
nominees of the workers and region where he is to hold office
employers (Er) organization
respectively. Q: What are the qualifications of an Executive
b. The Chairman and the 7 Labor Arbiter?
remaining members shall come from
the public sector, with the latter to be A:
chosen preferably from among the 1. Member of the Philippine Bar
incumbent Labor Arbiters. 2. Engaged in the practice of law in
c. Upon assumption into the Philippines for at least 10 years
office, the members nominated by 3. At least 5 years experience or
the workers and Ers organization shall exposure in handling labor management
divest themselves of any affiliation relations
with or interest in the federation or
association to which they belong. Q: What is the term of office of the Chairman,
Commissioners and Labor Arbiters (LAs)?
Note: There is no need for the Commission on
Appointments to confirm the positions in the NLRC. A: They shall hold office during good behavior until
Such requirement has no constitutional basis. (Calderon they reach the age of 65 unless removed for causes
v. Carale, GR. No. 91636, April 23, 1992) as provided by law or become incapacitated to
discharge the function of his office.
Q: How does the NLRC adjudicate cases?
Provided, however, that the President of the
A: Philippines may extend the services of the
1. The NLRC adjudicates cases by Commissioners and LAs up to the maximum age of
division. A concurrence of 2 votes is 70 years upon the recommendation of the
needed for a
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

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?

LABOR LAW TEAM:


178 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION

A: Yes. Par. 3 of Art. 223 of the Labor Code 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

injunction or TRO shall be issued on 4. POEA


account of any threat, prohibited or 5. OWWA
unlawful act, except against the 6. SSSECC
persons, association or organization 7. RTWPB
making the threat or committing the 8. NWPC
prohibited or unlawful act or actually 9. Regular courts over intra
corporate disputes.
authorizing or ratifying the same
after actual knowledge thereof.
Q: Who is a mediatorarbiter?
b. The substantial and irreparable
injury to the complainants property.
A: An officer in the Regional Office or Bureau
Note: Irreparable Injury an injury
authorized to hear, conciliate and decide
which cannot be adequately
compensated in damages due to the
representation cases or assist in the disposition of
nature of the injury itself or the nature intra or interunion disputes.
of the right or property injured or when
there exist no pecuniary standard for Q: What kinds of cases fall within BLRs
the measurement of damages. jurisdiction?

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

LABOR LAW TEAM:


180 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION

noncompliance with the reportorial 5. Lack of jurisdiction of the


requirements under Rule V; investigating body; action for the
13. Such other disputes or conflicts administrative agency is patently illegal,
involving the rights to selforganization, arbitrary and oppressive;
6. Issue is purely a question of law;
union membership and CB
7. Where the administrative agency
a. Between and among LLO
had already prejudged the case; and
and 8. Where the administrative agency
b. Between and among was practically given the opportunity to act
members of a union or workers on the case but it did not.
association. (Sec.1, Rule XI, Book V,
IRR as amended by D.O. 40F03) Q: May a decision in an inter/intraunion dispute
be appealed from?
Q: What is covered by the phrase other related
labor relations disputes? A: Yes.

A: Q: Within what period may an appeal to a decision


1. Any conflict between: of the medarbiter or regional director in an
a. A labor union and the employer inter/intraunion dispute be filed?
(Er); or
b. A labor union and a group that is A: The decision may be appealed by any of the
not a labor organization (LO); or parties within 10 days from receipt thereof. (Sec.
c. A labor union and an individual who 16, Rule XI, D.O. 4003)
is not a member of such union
2. Cancellation of registration of Q: To whom is the decision appealable?
unions and workers associations filed by
individual/s other than its members, or A: The decision is appealable to the:
group that is not a LO. 1. Bureau of Labor Relations (BLR):
3. A petition for Interpleader involving if the case originated from the Med
labor relations. (Sec. 2, Rule XI, Book V, Arbiter or Regional Director;
IRR as amended by D.O. 40F03) 2. SLE: if the case originated from the BLR.

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?

A: A legitimate labor organization or its members. A:


(Sec. 5, Rule XI, D.O. 4003) 1. It may hold a referendum
election among the members of a union
Q: What if the issue involves the entire for the purpose of determining whether
membership? or not they desire to be affiliated with a
federation.
A: The complaint must be signed by at least 30% of
the entire membership of the union. 2. But the BLR has no authority to:

Q: What if the issue involves a member only? a. Order a referendum among


union members to decide whether to
A: Only the affected member may file the expel or suspend union officers.
complaint. (Sec. 5, Rule XI, D.O. 4003) b. Forward a case to the Trade
Union Congress of the Philippines for
Note: arbitration and decision.
GR: Redress must first be sought within the union
itself in accordance with its constitution and by Q: Is Katarungang Pambarangay applicable to
laws labor disputes?
XPNs:
A: No. Art. 226 of the LC grants original and
1. Futility of intraunion remedies;
exclusive jurisdiction over the conciliation and
2. Improper expulsion procedure;
3. Undue delay in appeal as to constitute mediation of disputes grievances or problems in the
substantial injustice; regional offices of the DOLE. It is the Bureau and its
4. The action is for damages; divisions (now the NCMB) and not the Barangay
Lupong Tagapamayapa which are vested by law
with original and exclusive authority to conduct
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

conciliation and mediation proceedings on labor 3. To whom appealable


controversies before endorsement to the a. BLR if the case originated from
appropriate labor arbiter for adjudication. the MedArbiter/Regional Director.
b. SLE if the case originated from
Note: ConciliationMediation is now done by the the BLR.
NCMB, not Bureau Labor Relations. 4. Where Filed Regional Office or to
the BLR, where the complaint originated
Q: What are the administrative functions of the (records are transmitted to the BLR or Sec.
Bureau Labor Relations (BLR)? within 24 hours from the receipt of the
memorandum of appeal). (Rule XI, D.O.
A: 4003)
1. Regulation of the labor unions
2. Keeping the registry of labor
unions 4.NATIONAL CONCILIATION AND MEDIAITON
3. Maintenance of a file of the CBA BOARD (NCMB)
4. Maintenance of a file of all
settlements or final decisions of the SC, Q: What are the alternative modes of settlement
CA, NLRC and other agencies on labor of labor dispute under Art. 211 of the Labor Code?
disputes
A:
Q: What are the effects of filing or pendency of 1. Voluntary Arbitration
inter/intraunion dispute and other labor relations 2. Conciliation
disputes? 3. Mediation

A: a.Conciliation vs. Mediation


1. The rights relationships and
obligations of the partylitigants against Q: What is Conciliaton and Mediation?
each other and other partiesininterest
prior to the institution of the petition shall A:
continue to remain during the pendency
of the petition and until the date of the
decision rendered therein. Thereafter, the Is conceived of as a
rights, relationships and obligations of the
mild
party litigants against each other and
intervention
other partiesininterest shall be governed
by the decision ordered. neutral third party
The
2. The filing or pendency of any Mediator, relying
inter/intra union disputes is not a his
prejudicial question to any petition for expertise, who takes
certification election, hence it shall not be an
a ground for the dismissal of a petition for assisting
certification of election or suspension of
trying
the proceedings for the certification of
disputants
election. (Sec. 3, Rule XI, DO 4003)
facilitating
Q: State the rules on appeal in intra/interunion procedural
disputes. carrying
back
A: between the parties,
1. Formal Requirements and generally being a
a. Under oath good fellow who tries
b. Consist of a memorandum of to keep
appeal.
and
c. Based on either of the following
in a tense situation
grounds:
i. Grave abuse of It
discretion where a disinterested
ii. Gross violation of the 3rd party meets with
rules management
iii. With supporting labor,
arguments and evidence request or otherwise,
2. Period within 10 days from during
receipt of decision.
dispute
LABOR LAW TEAM:
182 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION

collective bargaining of the problem, a request may be filed in the


conferences, and form of consultation, notice of preventive
cooling tempers, aids mediation or notice of strike/lockout.
in
agreement Q: Where can a request for Conciliation and
Mediation be filed?

Conciliation is conceived of as a mild form of A: An informal or formal request for conciliation


intervention by a neutral third party, the and mediation service can be filed at the NCMB
ConciliatorMediator, relying on his persuasive Central Office or any of its Regional Branches.
expertise, who takes an active role in assisting There are at present fourteen (14) regional offices
parties by trying to keep disputants talking, of the NCMB which are strategically located all
facilitating other procedural niceties, carrying over the country for the convenient use of
messages back and forth between the parties, prospective clients.
and generally being a good fellow who tries to
keep things calm and forwardlooking in a tense b.Preventive Mediation
situation.
Q: What is Preventive Mediation Cases?
rd
It is the process where a disinterested 3 party
meets with management and labor, at their request A: Refer to the potential labor disputes which
or otherwise, during a labor dispute or in collective are the subject of a formal or informal request for
bargaining conferences, and by cooling tempers, conciliation and mediation assistance sought by
aids in reaching an agreement. either or both parties or upon the initiative of the
NCMB to avoid the occurrence of actual labor
Mediation is a mild intervention by a neutral third disputes.
party, the ConciliatorMediator, whereby he starts
advising the parties or offering solutions or Q: What are the valid issues for a notice of
alternatives to the problems with the end in view of strike / lockout or preventive mediation case?
assisting them towards voluntarily reaching their
own mutually acceptable settlement of the dispute. A: A notice of strike or lockout maybe filed on
ground of unfair labor practice acts, gross
rd
It is when a 3 party studies each side of the violation of the CBA, or deadlock in collective
dispute then makes proposals for the disputants to bargaining. A complaint on any of the above
consider. The mediator cannot make an award nor ground must be specified in the NCMB Form or
render a decision. the proper form used in the filing of complaint.

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?

Note: A similar provision is echoed in the A: Conciliation and mediation is non


Declaration of Policy under Article 211 (a) of the litigious/nonadversarial, less expensive, and
Labor Code, as amended. expeditious. Under this informal setup, the
parties find it more expedient to fully ventilate
Q: Who can avail of Conciliation and Mediation their respective positions without running around
Services of the NCMB? with legal technicalities and, in the course
thereof, afford them a wider latitude of possible
A: Any party to a labor dispute, either the union approaches to the problem.
or management, may seek the assistance
of NCMB or any of its Regional Branches by Q: Are the parties bound by the agreement
means of formal request for conciliation and entered into by them?
preventive mediation. Depending on the nature
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: It is the submission of a dispute to an impartial


A: Certainly, the parties are bound to honor any person for determination on the basis of evidence
agreement entered into by them. It must be and arguments of the parties. The arbiters decision
pointed out that such an agreement came into or award is enforceable upon the disputants. It may
existence as a result of painstaking efforts among be voluntary (by agreement) or compulsory
the union, management, and the Conciliator (required by statutory provision). (Luzon Devt Bank
Mediator. Therefore, it is only logical to assume v. Assn of Luzon Devt Bank Employees, G.R. No.
that the Conciliator assigned to the case has to 120319, Oct. 6, 1995)
follow up and monitor the implementation of the
agreement. Q: Can the court fix resort to voluntary arbitration
(VA)?
Q: Is conciliation and mediation service still
possible during actual strike or lockout? A: Resort to VA dispute, should not be fixed by the
court but by the parties relying on their strengths
A: Definitely, it is possible to subject an actual and resources.
strike or actual lockout to continuing conciliation
and mediation services. In fact, it is at this critical Q: Who are the parties to labor relations cases?
stage that such conciliation and mediation
services by fully given a chance to work out A:
possible solution to the labor dispute. With the 1. Employees organization
ability of the ConciliatorMediator to put the 2. Management
parties at ease and place them at a cooperative 3. The public
mood, the final solutions of all the issues
involved may yet be effected and settled. Note: Employer and Ees are active parties while the
public and the State are passive parties. (Poquiz, 2006,
Q: When the dispute has already been assumed p.3)
or certified to the NLRC, is it also possible to
remand the same to conciliation and mediation Q: What is the concept of tripartism?
services?
A: It is the representation of 3 sectors. These are:
A: Yes, the parties are not precluded from 1. The public or the government
availing the services of an NCMB Conciliator 2. The employers
Mediator as the duty to bargain collectively 3. The workers
subsists until the final resolution of all issues in policymaking bodies of the govt.
involved in the dispute. Conciliation is so
pervasive in application that, prior to a Q: Can workers insist that they be represented in
compulsory arbitration award, the parties are the policy making in the company?
encouraged to continue to exhaust all possible
avenues of mutually resolving their dispute, A: No. Such kind of representation in the policy
especially through conciliation and mediation making bodies of private enterprises is not
services. ordained, not even by the Constitution. What is
provided for is workers participation in policy and
Q: What benefit can the parties have in decisionmaking process directly affecting their
appearing during conciliation conferences? rights, benefits, and welfare.

A: Generally speaking, any party appearing 5.DOLE REGIONAL DIRECTORS


during scheduled conciliation conferences has the
advantage of presenting its position on the labor a.Small Money Claims
controversy. The issue raised in the complaint can
be better ventilated with the presence of the Q: What is the rule on the recovery of simple
concerned parties. Moreover, the parties can money claims?
observe a norm of conduct usually followed in
like forum. A:
1. The aggregate money claim of
c.Artbitration each employee (Ee) or househelper (HH)
does not exceed P5,000.
Q: What is arbitration? 2. The claim is presented by an Ee
or person employed in the domestic or
household service or HH.

LABOR LAW TEAM:


184 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION

3. The claim arises from ErEe


relationship.
4. The claimant does not seek
reinstatement.

Note: In the absence of any of the ff. requisites, it is


the labor arbiter (LA) who shall have the jurisdiction
over the claims arising from ErEe relations, except
claims for Ees compensation, SSS, Philhealth, and
maternity benefits, pursuant to Art.217 of the Labor
Code.

The proceedings before the Regional Office shall be


summary and nonlitigious in nature.

Q: What is the adjudicatory power of the Regional


Director (RD)?

A: The RD or any of his duly authorized hearing


officer is empowered through summary proceeding
and after due notice, to hear and decide cases
involving recovery of wages and other monetary
claims and benefits, including legal interests.

Q: An airline which flies both the international and


domestic routes requested the SLE to approve the
policy that all female flight attendants upon
reaching age 40 with at least 15 years of service
shall be compulsorily retired; however, flight
attendants who have reached age 40 but have not
worked for 15 years will be allowed to continue
working in order to qualify for retirement benefits,
but in no case will the extension exceed 4 years.
Does the SLE have the authority to approve the
policy?

A: Yes. Art.132 (d) of the Labor Code provides that


the SLE shall establish standards that will ensure the
safety and health of women employees including the
authority to determine appropriate minimum age
and other standards for retirement or termination in
special occupations such as those of flight attendants
and the like. (1998 Bar Question)

Q: What is the difference between the power of


Secretary of Labor and Employment (SLE), Regional
Director (RD) and Labor Arbiter (LA)?

A:
6.DOLE SECRETARY

a.Visitorial and Enforcement Powers

Q: What are the 3 kinds of powers of the Secretary


of Labor and Employment (SLE)?

A:
1. Visitorial powers
2. Enforcement powers
3. Appellate or power to review

Q: What constitute visitorial power?

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: 4. Require Ers to keep and


1. Access to employers records and maintain such employment records as
premises at any time of the day or night, may be necessary in aid to the visitorial
whenever work is being undertaken and enforcement powers
2. To copy from said records 5. Conduct hearings within 24
3. Question any employee and hours to determine whether:
investigate any fact, condition or matter a. An order for stoppage of work
which may be necessary to determine or suspension of operations shall be
violations or which may aid in the lifted or not; and
enforcement of the Labor Code and of any b. Er shall pay employees
labor law, wage order, or rules and concerned their salaries in case the
regulation issued pursuant thereto. violation is attributable to his fault.
(As amended by RA 7730; Guico v.
Q: Give 4 instances where the visitorial power of Secretary, G.R. No. 131750, Nov.16,
the SLE may be exercised under the Labor Code. 1998)

A: Power to: Q: What are the violations under Art. 128?

1. Inspect books of accounts and A:


records of any person or entity engaged in 1. Obstruct, impede, delay or
recruitment and placement, require it to otherwise render ineffective the orders of
submit reports regularly on prescribed the SLE or his authorized representatives
forms and act in violations of any 2. Any government employee
provisions of the LC on recruitment and found guilty of, or abuse of authority, shall
placement. (Art. 37) be subject to administrative investigation
2. Have access to employers records and summary dismissal from service.
and premises to determine violations of
any provisions of the LC on recruitment Q: What are the limitations to other courts?
and placement. (Art. 128)
3. Conduct industrial safety A: In relation to enforcement orders issued under
inspections of establishments. (Art. 165) Art. 128, no inferior court or entity shall:
4. Inquire into the financial activities
of legitimate labor organizations (LLO) and 1. Issue temporary or permanent
examine their books of accounts upon the injunction or restraining order or
filing of the complaint under oath and 2. Assume jurisdiction over any case
duly supported by the written consent of
at least 20% of the total membership of Q: What are the instances when enforcement
the LO concerned. power may not be used?

Q: What is enforcement power? A:


1. Case does not arise from the
A: It is the power of the SLE to: exercise of visitorial power
2. When ErEe relationship ceased
1. Issue compliance orders to exist at the time of the inspection
2. Issue writs of execution for the 3. If employer contests the finding
enforcement of their orders, except in of the Labor Regulation Officer and such
cases where the employer (Er) contests contestable issue is not verifiable in the
the findings of the labor officer and raise normal course of inspection
issues supported by documentary proof
which were not considered in the course b.Power to Suspend Effects of TerminationArt. 277
of inspection (b), LC
3. Order stoppage of work or
suspension of operation when non Q: Does the DOLE Secretary have the power to
compliance with the law or implementing suspend the effects of termination?
rules and regulations poses grave and
imminent danger to health and safety of A: Yes, under Article 277 (b) of the Labor Code, the
workers in the workplace Secretary of Labor may suspend the effects of the
termination pending resolution of the dispute in the
event of a prima facie finding by the appropriate

LABOR LAW TEAM:


186 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION

official of the Department of Labor and 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)?

A: A: Yes. There is nothing in the law that prohibits LAs


1. Submission agreement Where the from also acting as VAs as long as the parties agree
parties define the disputes to be resolved to have him hear and decide their dispute. (Manila
2. Demand notice Invoking collective Central Line Free Workers Union v. Manila Central
agreement arbitration clause Line Corp., G.R. No. 109383, June 15, 1998)

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 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

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)

Q: May the NLRC and DOLE entertain XPNs:


disputes/grievances/matters under the exclusive 1. Appeal to the CA via Rule 43 of
and original jurisdiction of the voluntary the Rules of Court within 15 days from the
arbitrator? date of receipt of VAs decision. (Luzon
Devt Bank v. Assn of Luzon Devt Bank
A: No. They must immediately dispose and refer the Ees, G.R. No. 120319, Oct. 6, 1995)
same to the grievance machinery or voluntary 2. If decision of CA is adverse to a
arbitration provided in the CBA party, appeal to the SC via Rule 45 on pure
questions of law.
The parties may choose to submit the dispute to
voluntary arbitration proceedings before or at the Note: A VA by the nature of her functions acts in quasi
stage of compulsory arbitration proceedings. judicial capacity. There is no reason why the VAs
decisions involving interpretation of law should be
Q: What is the effect of the award of voluntary beyond the SCs review. Administrative officials are
arbitrator (VA)? presumed to act in accordance with law and yet the SC
will not hesitate to pass upon their work where a
question of law is involved or where a showing of
A: The decision or award of the VA acting within the abuse of authority or discretion in their official acts is
scope of its authority shall determine the rights of properly raised in petitions for certiorari. (Continental
the parties and their decisions shall have the same Marble Corporation v. NLRC, G.R. No. L43825, May 9,
legal effects as judgment of the courts. Such matters 1988)
on fact and law are conclusive.
Q: PSSLU had an existing CBA with Sanyo Phils.,
Q: Are both the employer and the bargaining Inc. which contains a union security clause which
representative of the employees required to go provides that: all members of the union covered
through the grievance machinery in case a by this agreement must retain their membership in
grievance arises? good standing in the union as condition of his / her
continued employment with the company. On
A: Yes, because it is but logical, just and equitable account of antiunion activities, disloyalty and for
that whoever is aggrieved should initiate settlement joining another union, PSSLU expelled 12
of grievance through the grievance machinery. To employees (Ees) from the Union. As a result, PSSLU
impose compulsory procedure on employers alone recommended the dismissal of said Ees pursuant
would be oppressive of capital. to the union security clause. Sanyo approved the
recommendation and considered the said Ees
Q: Who has jurisdiction over actual termination dismissed. Thereafter, the dismissed Ees filed with
disputes and complaints for illegal dismissal filed the Arbitration Branch of the NLRC a complaint for
by workers pursuant to the union security clause? illegal dismissal.

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

LABOR LAW TEAM:


188 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
PROCEDURE AND JURISDICTION

involve the interpretation or implementation of a 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 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

(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

Q: How does a party appeal from a judgment, or


final order or resolution, of the Court of Appeals?

A: A party desiring to appeal may file with the


Supreme Court a verified petition for review on
certiorari under Rule 45 within fifteen (15) days
from notice of the judgment, final order or
LABOR LAW TEAM:
190 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
effectivity of the LC and
between Nov. 1, 1974
Dec. 31, 1974

Illegal Dismissal Cases

VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE


ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

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