Tuazon Labor Rev

Labor Law

o

as the laborer as an individual, but as a group of workers

Bar 2011 Notes o

Roland Glenn T. Tuazon Ateneo de Manila University 

Table of contents: 1. 2. 3. 4. 5. 6. 7. 8. 9.

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occur, such as sickness, injuries, premature death, and final o

death What are the laws covered by social legislation?  1. Employees compensation and State Insurance

o

Fund (ECSIF)  2. SSS Law  3. GSIS Law  4. Limited portability law Which are applicable to what workers?  SSS, to private sector employees  GSIS, to government employees and those in GOCCs  Both, to those employed in both fields  Limited portability provides a “tacking provision” for those who have partially fulfilled GSIS and SSS

the employer and the worker – the two factors of production What is labor standards law? o Establishes the minimum terms and conditions of employment o Rationale: these are necessary for the worker and his family to

 

survive These are beyond then negotiation of the parties; they cannot agree to terms less than those provided in the law. If they do,

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members What is social or welfare legislation? o It solves the problem of avoiding making the worker a charge either in whole or in part if and when some contingencies

What is labor law? o A regulatory devise, which regulates the relationship between

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(union) Two aspects of labor relations law:  1. Union and State relationship  2. Union as an organization and its relationship to the

on society and solves the problem of continuity of income

FUNDAMENTAL PRINCIPLES AND POLICIES RECRUITMENT AND PLACEMENT LABOR STANDARDS TERMINATION SOCIAL LEGISLATION SELF-ORGANIZATION COLLECTIVE BARGAINING CONCERTED ACTS PROCEDURE

FUNDAMENTAL PRINCIPLES AND POLICIES



It is concerned with institutional relationships and does not look

these are void. What is labor relations law?

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1

requirements SSS and GSIS for non-work-connected injuries and

ECSIF for work-connected injuries What is the basis for enacting labor law? o Constitutional provisions mandating the State to protect laborers o Police power of the State What are the sources of labor law? o 1. Contract law – gives rise to rights and obligations

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 A. Civil code provisions on contracts  B. Collective Bargaining Agreements 2. Past practices, which are:  Those given voluntarily by the employer without



what is the educational attainment of each? Was the 

compulsion by law for a sufficient duration What is sufficient period or duration?  Case by case 3. Company policies  Those unilaterally designed and implemented by the 

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employer, stating rules and regulations of the company.  

These can be the source of rights and

obligations. N.B. these are unilaterally imposed by the employer;

otherwise, it would fall under contract law. What is a labor case? o 1. Involves employer and employee o 2. Subject of controversy and laws of resolution fall under labor

law, such as replevin, then it is not a labor dispute What is management function? o These are rules based on the right of ownership, designed for



It

permeates the entire labor code, regardless of field. What is the limit to management function?  The law reserves the right to inquire as to the manner

of exercise of such right. How does the law look upon waivers and compromises? o It looks upon it with disfavor, although not all waivers and o

processes

of

the

establishment where they are employed as

Thus, if the area of resolution is civil law and not labor

efficient and economical management of the enterprise.

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absence of coercion? What are the guaranteed rights of laborers under Art XIII, Sec. 3? o 1. Self-organization o 2. Collective bargaining and negotiations o 3. Peaceful concerted activities, including right to strike o 4. Security of tenure o 5. Humane conditions of work o 6. Living wage o 7. Participation in policy and decision-making processes  How does LC Art. 255 operationalize this?  Workers can participate in policy and

far as it would directly affect their rights, 

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employee in dire need? 3. Freedom on the part of the worker – was there

decision-making

law



2. Relative positions of the employer and employee –

compromises are void under law. What are the tests of validity

of

waivers

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benefits, and welfare What are the other goals set by this provision? o Full protection to labor o Full employment and equality of opportunities o Shared responsibility between ER and EEs o Preferential use of voluntary dispute settlement o Two fold rights:  Right of labor to just share in fruits of production  Right of enterprises to reasonable returns

to

investments What does the NCC say? o Art 1700 – relations between labor and capital are not just contractual, but impressed with public interest – must yield to

and

compromises?  1. Arithmetic measure – is what was received for



settlement unconscionable?

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common good What factors does labor law consider as to contracts? o 1. Due process clause

  o

Labor is considered property Due process and EPC can protect the employer too,



Yes, although certain aspects like Hours of Work do not apply.

not just the employee 2. Liberty of contract and laissez faire  N.B. but the State still retains an interest on the

RECRUITMENT AND PLACEMENT

worker as part of society no matter how reckless he may be; thus, the State continues to interfere in 

RECRUITMENT OF LOCAL AND MIGRANT WORKERS

contract. Laissez faire is not totally adopted. When does the Labor code apply? o 1. There must be an employer-employee relationship o 2. Generally applies to all kinds of employment  N.B. but for GOCCs created and governed by special o



charter, apply the Civil Service Law instead What is the rule on international organizations?  Beyond the coverage of the Labor Code, but the

advertising employment for profit or not, here or

international agreement must contain provisions on 

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method of dispute settlement. N.B. if not provided, the worker can ask for withdrawal of immunity of suit so that Philippine legal processes

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 

Manual But for all matters not covered by these, the Labor Code applies.

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o

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can apply. What about school teachers?  Public school teachers are covered by the Civil Service Law. Private school teachers are covered by the Dep. Ed.

What is recruitment and placement? o Any act of:  Canvassing, enlisting, contracting,  Transporting, utilizing, hiring, procuring workers  Includes referrals, contact services, promising or abroad When is there a presumption of R&P?  When a person or entity offers or promises for a fee How

employment to two or more persons do you harmonize the definition

and

the

presumption?  Any one act under the definition is sufficient to establish R&P, regardless of number of persons. The presumption is only a rule of evidence which operates when there are two persons to whom employment is promised for a fee and the acts defined above cannot

The most important is probationary

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employment. Does the Labor Code apply to religious corporations?  If the nature of the controversy is not religious, then

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the Labor Code applies. Does the Labor Code apply to managerial employees?

clearly be established. Who are “workers”?  All members of the labor force, whether employed or

unemployed What is the State policy under MWA? o Promotion of overseas recruitment is not State policy, because it seeks to create local opportunities.

But while there are

workers deployed abroad, there must be protections for them.

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Does the POEA have jurisdiction over ER-EE relations

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5. Influence employer not to hire worker unless

cases for OFWs?  Not anymore. It’s been retransferred to NLRC. The

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coursed through his agency 6. Engage in R&P for harmful or anti-public policy

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work 7. Obstruct or attempt to obstruct inspection by Sec of

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Labor or representatives 8. Fail to file reports required by Sec of Labor 9. Substitution or alteration of approved contracts

R&P for a fee (charged from employer, worker, or both) Authority is authorization to operate a private recruitment entity.

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without approval of Sec of Labor 10. Becoming officer or being

A Private Recruitment Entity

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management of travel agency 11. Withhold or deny travel documents from workers

POEA only handles administrative cases. What is the nature of employment of seafarers?  They are contractual employees Differentiate license from authority: o License is authorization to operate a private employment o

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agency. A Private Employment Agency is an entity engaged in o



is an entity engaged in R&P

without charging any fee Illegal recruitment o What is the definition of illegal recruitment under the LC?  Any recruitment activities (Art. 13) or prohibitions (Art.

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authority What is the definition of illegal recruitment under the MWA (RA 8042)?  Any recruitment activities (Art. 13) undertaken by non

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from

does not happen without his fault Differentiate simple illegal recruitment, illegal recruitment in large

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individually or as a group By a syndicate – carried out by a group of 3 or more persons

conspiring or confederating with each other What are these two types of illegal recruitment called?  Illegal recruitment as economic sabotage Can illegal recruitment and estafa coincide? o If there are pecuniary damages due to previous o

what has been loaned/advanced) 2. Public false information re: recruitment 3. Misrepresentation to secure license or authority 4. Induce or attempt to induce employed worker to leave job to offer him to another  Except to save him

before departure due to financial considerations  Unless authorized by LC What are the additional grounds added by MWA, apart

scale, illegal recruitment as syndicate: o Large scale – if committed against 3 or more persons

licensees or non-holders of authority Any prohibited acts (Art. 34), whether licensed or non-

licensed What are the prohibited acts (Art. 34)?  1. Overcharging (whether vis-à-vis schedule of fees or   

in

from these?  12. Failure to deploy the worker without valid reason  13. Failure to reimburse worker when deployment

34) undertaken by non-licensees or non-holders of o

involved



or

simultaneous false pretense resorted to by the entity, then the

oppressive

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employment

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latter can be sued for estafa under Art. 315 This suit may prosper aside from illegal recruitment



What are the liabilities of the local employment agency and the



employer? o The agency is solidarily liable for the unpaid salaries of the

the Philippines who is competent, able, and willing at the time of application to perform the services for

worker, along with the principal/employer. This holds true even if the agency agreement has been severed, if no notice was o

given to the employee. What is the theory of imputed knowledge?  The presumption that knowledge of he agent can be

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ascribed to the principal as well. When is an employee of the entity liable as a principal?  When he had knowledge of the offense and had active and conscious participation.

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o

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o

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upon

recommendation

of

the

government agency in charge of that enterprise Upon issuance of the employment permit to the NRA, what are the

NOT liable as

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Secretary Else, punished under the LC and/or deported

REGULATION AND ENFORCEMENT

will be ordered to pay the workers: 1. Full placement fee with 12% interest AND 2. Salary for unexpired portion of the contract OR for 3 months

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What is the rule on remittance of foreign exchange earnings? o Employment contracts must contain a proviso that makes remittance of the following rates mandatory –  1. Seamen – 70% of basic salary  2. Workers of Filipino contractors or construction firms

for every year of the unexpired term, whichever is lesser Isn’t this unconstitutional?  Yes, according to Serrano v. Gallant, but R.A. 10022

passed 1 year after reinstated the provision Is direct hiring allowed for overseas employment? o As a general rule, no, direct hiring is not allowed. It must be



– 70% 3. Doctors,

nurses,

engineers,

teachers,

other

professionals whose contract gives free board and

through boards and authorized entities. What are the exceptions?  1. Diplomatic corps  2. IOs  3. Other employers allowed by the DOLE What is the rule on employment of Non-Resident Aliens? o Either the alien or the employer must obtain an employment o

issued

regulations? o Cannot transfer employment without prior approval from DOLE

o

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which the alien is desired What is the special rule for those preferred areas of investment?  Permit

principal when merely carrying out orders of superior. What is the rule on pre-termination of contract of a MW? o If there was pre-termination without just cause, the employer o o

Upon determination of non-availability or a person in



permit from the DOLE When is the permit issued?

lodging – 70%  4. Professionals without free board and lodging – 50%  5. Domestic and service workers – 50%  6. All others – 50% What are regulations? o 1. Travel agents and sales agencies of airline companies o

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cannot engage in R&P for overseas employment, w/n for profit 2. Citizenship requirement for recruitment entities:  Filipino

 o o

OR 75% Filipino ownership (authorized and voting

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stock) 3. Minimum capitalization as required by Sec. of Labor 4. Non-transferability of authority or license  Cannot transfer to another person or use in another 

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place What if you want to transfer offices?  Get prior approval of Sec. of Labor, as with

3. Prohibited acts – 6 y 1 d to 12 y  And fine of P500K to P1M  If alien, deported without further proceedings 4. In all cases:  Revoke license or authorization

LABOR STANDARDS

appointing an agent or getting additional  

offices What are the prohibited activities? o See above enumeration (Art. 34) What is the nature of the regulatory and visitorial powers of the

Where do benefits come from? o 1. Law (Labor standards law) o 2. Contact (ex. CBA) o 3. Vested benefits

Labor Secretary? o The Secretary can restrict and regulate R&P activities of all o o

HOURS OF WORK

agencies covered Can issue orders and R&Rs Visitorial Powers – Sec of Labor or representatives may inspect

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premises, inspect books/records of entities, require submission 

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of reports, etc. What must be given by those applying for license or authority? o 1. Prescribed registration fees o 2. Cash/surety bonds to guarantee compliance with provisions What is the nature of the license? o It is beyond the commerce of man, and subject to prior

o 

approval What are the penalties for illegal recruitment? o 1. Simple illegal recruitment – 12 y 1 d to 20 y imprisonment  And fine of P1M to 2M o 2. Economic sabotage – life imprisonment  And fine of P2M to 5M  Maximum if the one recruited is less than 18 years, or committed

by

a

non-licensee

or

holder

What is the rationale for the hours of work provisions? o 1. To safeguard health and welfare of the laborer o 2. Prevent unemployment (companies that operate more than 8



hours have to hire more workers or pay more) 3. The employee usually just accepts what the employer says,

so this will prevent begrudging acceptance of long work days Who are covered by the provisions on hours of work? o By default, employees in all establishments and undertakings, whether for profit or not Who are excluded by the provisions? o 1. Government employees  Covered by Civil Service Law  Exception?  Employees of GOCCs incorporated under 

of

the Corporation Code N.B. even GSIS-covered employees are not excluded from the employee’s compensation program under the

authorization

Labor Code

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2. Managerial employees  What are managerial employees?  1. Primary duty is management of the 

establishment, department, or subdivision 2. Customarily or regularly directs work of

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two or more employees 3. Has authority to hire/fire employees of

o o o

relationship?  No. Always follow the four-fold test. This is

lower rank, or at least their suggestions are 



given particular weight N.B. this is not the same definition for



manager in labor relations. This is broader in scope and covers even supervisory employees, 

while

the

labor

5. Domestic helpers 6. Persons in the personal service of another 7. Workers paid by results  Is this determinative of employer-employee

relations

definition does not. Ratio: they are not hired for quantity of hours of work

of time employed What are the normal hours of work? o Not exceeding 8 hours a day  Can normal hours of work be less than 8?  Yes. It says “not exceeding”  Can an employer and employee contractually agree that work must be 12 hours a day, or any number above 8?  Yes, it’s a contractual commitment – but the

put in but the special training, knowledge, or experience that requires discretion and independent o

judgment 3. Field personnel  Who are these?  Non-agricultural



employees

regularly

performing their duties away from the 

o

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principal place of business What is essential?  Actual hours of work cannot be determined

extra 4 hours are covered by OT pay. What is the “day” here?  Work day (24 hour period starting from the

time an employee regularly starts to work)  NOT calendar day What are the exceptions?  1. Health workers –  In cities and municipalities with population at

with reasonable certainty Test: whether the employee is supervised on



the field What about bus conductors and drivers?  NOT field personnel because inspectors

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 

just a method to compute compensation. Ratio: they are paid based on work output, regardless

check their hours of work. 4. Members of the family of the employer who are dependent

least 1 million Or in hospitals/clinics with bed capacity at least 100 What are their hours? o 8 hours a day, 5 days a week  (N.B., it’s doesn’t say “not exceeding” this time, so they really must work 8

on him for support

hours)

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 Excluding meal times Except when exigencies require

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work for 6 days (48 hours) What is the implication on their salary? o 130% of normal salary on the sixth

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day 2. Compressed Work Week  What is this? o When the employer and employee

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with regular work hours. X is a delivery truck driver. Is time spent driving the

vehicle to and fro the bodega time worked?  Yes. How does the law treat work interruption due to brownouts? o It is considered working time, because the time during which an employee is inactive by reasons beyond his control is considered working time if –  Resumption of work is imminent and it requires his

agree that the employee works one day less (ex. from 6 to 5 days) and the hours of the skipped day will be 



added to the other days What is the maximum time allowed for



Meal period:

garner OT pay Otherwise, what is the general? o The work beyond 8 hours but under

12 is not given OT pay What are covered by the counting on hours worked? o 1. All time where an employee is required to be on duty or to be o o

o

o

presence at the place of work Or the interval is too brief to be utilized effectively and gainfully in the employee’s interest

CWW? o 12 hours. Anything in excess will 

Yes, it is when the travel time cuts across or coincides

At least 60 minutes Less than 60 minutes but at least

Default meal period Valid shortened meal time; becomes

20 minutes Less than 20 minutes

compensable Compensable rest period.

Less than 20 minutes, but valid

valid meal period. 1. Non-manual work; involve

compensable meal period:

at a prescribed workplace 2. All time when the employee is suffered or permitted to work 3. Rest periods of short duration during work hours  Does the employee actually need to leave the

strenuous

NOT a

does not physical

2.

exertion Establishment

premises of the workplace?  No. He can stay or go. What about waiting time?  Check the circumstances of the job, if waiting is an

3.

operates at least 16 hours a day Actual or impending

integral part of his work X has to drive to a place outside Metro Manila to do an

4.

regularly

emergencies or urgent work on machineries to avoid serious loss Necessary to avoid serious loss of perishable goods

installation job. Is this part of hours of work?

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Other types of time spent at work:

Is this working time? Yes, because it is done for the

Type of work

Counted as working time?

Idle time

Yes, if the employee was engaged to

Travel incidental in day’s work Travel away from home

wait or he waited to be engaged.

home overnight and it cuts across an

The controlling factor: whether the

EE’s workday.

waiting time was for the employer’s Waiting time

benefit or the employee’s benefit Yes, if waiting is integral part of the

Semestral break, for teachers

wait. Yes. It is when an EE is required to

Attendance in lectures, meetings,

to regular full-time teachers Yes.

trainings, or programs

remain on call that he cannot

Except if the ff requisites concur:

gainfully and effectively use his time Travel from home to work

for his own purposes. No. Except, when: 1.

EE

It substitutes for

normal working time. Yes. It is an interruption beyond their control. N.B. this only applies

work, or if the ER engaged him to “On call” working

employer’s benefit Yes, if part of EE’s regular activity Yes, if it keeps an EE away from

1.

Attendance

2. 3.

regular working hours Attendance is voluntary There is no productive work

is

outside

done during attendance made

to

work

on

emergency call and travel is 2.

necessary to get to work Travel through conveyance

3.

provided by ER Travel under supervision

4.

and control of ER Travel under vexing and

Nightshift differential 



dangerous circumstances

What is the nightshift differential? o 10% of regular wage, for each hour of work between 10 pm and 6 am Who are not covered by nightshift differential? o 1. In government or GOCCs o 2. Managerial employees o 3. Field personnel or other employees whose time/performance

X was a company driver and was engaged to pick up and drop off

o o

other employees to and fro work.

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is unsupervised 4. Domestic helpers 5. Those in personal service

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6. Working on contract basis, purely commission basis, or paid

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fixed amount irrespective of time worked 7. In retail or service establishments regularly hiring only up to

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five workers N.B. So this is just like the hours of work enumeration, but

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would be treated as covering even pay for rest days and holidays? o Yes, as long as the wage is still equal to or above the minimum 

including retail and service establishments hiring only up to 5 o

workers. Reason?  It’s onerous for the small business to pay NSD, but in

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





hours of work just because they have few employees. What is the rationale for the NSD? o 1. Social disarrangement o 2. Lower efficiency and output o 3. Higher risk going to and fro work in darknesss What if it is also overtime work? o The 10% is calculated against OT pay as base



additional compensation Can OT pay be waived? o No. o Unless the waiver was in consideration of other benefits or salary that equals or exceeds the OT pay. What are the emergency situations when OT work can be made mandatory by the ER? o 1. RP is at war, or national/local emergency declared by

What is OT work? o Work performed beyond 8 hours a day What is the rate for each hour of work done beyond 8 hours? o Regular wage + 25%  N.B. Base excludes fringe benefits/bonuses – just

o

Congress or President 2. Necessary to prevent loss of life/property or imminent

o

danger due to disaster or calamity 3. Urgent work on machines, installations, equipment to avoid

o o

serious loss or damage to the employer 4. Necessary to prevent loss or damage to perishable goods 5. Completion or continuation of work started before the 8th hour must be completed to avoid serious obstruction or

regular pay o What if the OT work was done during a holiday?  The +25% becomes +30% o What if the OT work was done during a rest day?  The +25% becomes +30% What are conditions to be entitled to OT pay? o 1. Actual rendition of OT work o 2. Submission of sufficient proof that work was actually o

on another day Neither does permission given to the employee to go on leave some other day of the week exempt the employer from paying

Overtime Work 

wage What is the anti-offset rule? o Under-time work on one day cannot be offset by overtime work o

also, it will be harsh if they don’t have to comply with 

Is it legal for the employment contract that the monthly salary



performed 3. With knowledge and consent of employer

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prejudice to the business 6. Necessary to avail of favorable weather or environmental

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conditions When OT is required under these 6 circumstances, must

there be extra compensation nonetheless?  Yes. It just becomes mandatory, rather than optional. What prevails, CBA provision or OT work rate?

o

CBA may stipulate higher OT pay rate.

The court cannot 3.

impose upon the parties anything beyond what they agreed

WAGES

employee.

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wage or pay. Exceptions to “no work no pay”:  1. The laborer was willing, able, and ready to work but

o

was prevented by management  2. Illegally locked out, suspended, or dismissed. What if the failure to work was the employee’s fault?  He doesn’t get paid What is the principle established under ISA



o o

v.

Supplements

deducted from wages Articles or services

like

Not included in “wages” Over and above wages Extra

remuneration

 or

special

board/lodging which benefit the EE

privileges received over and above

and his family

the EE’s ordinary wages

Requisites:

N.B. For facilities and supplements,

1.

Customarily

in

the nature of the benefit or item is

2.

trade EE voluntarily accepted it in

furnished

not a controlling criterion. It is the

Business entities engaged in producing or processing of products (including agro-processing), whose total



or

Tools of trade or other articles for the

wage boards 3. Domestic service 4. Barangay Micro Business Enterprises (BMBE) under R.A. 9178 

Facilities and supplements:

wages

Usually on the initiative of the ER.

cannot afford to pay the wage rates set by law.  N.B. Consult wage orders established by regional

based on nationality

Included in “wages” Can be credited as

over and above them.

benefit of the ER or the business Who are excluded from the rules on wages? o 1. Farm tenancy/leasehold o 2. Cottage industries and other small businesses that probably

Quisumbing?  Equal work for equal pay; no distinction can be made

Facilities

reasonable

So it’s usually at the

initiative of the EE.

What is the “no work no pay” principle? o If there is no work performed by the employee, there can be no

o

meant to be part of his wages or at

value Generally for the benefit of the

upon. If there is none, impose regular OT rate.



writing Charged

equipment are situated Differentiate wages and salaries: o Wages –  Manual labor, skilled or unskilled  Paid at stated times  Measured by day, week, month, or season  Usually for lower and less responsible character of o

purpose that controls. Check if it’s

employment Salaries –  Higher degree of employment, superior grade of 

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assets do not exceed 3M pesos What does the term “assets” cover?  Includes loans  Excludes land where the office, plant, or

services, and implies position/office Larger and more permanent/fixed compensation



What is the non-diminution rule? o The benefits being given to employees cannot be taken back or



Yes – but that covers those paid by

reduced unilaterally by the employer, because the benefit has



commission, contract basis, or by end-result. That doesn’t include piece-rate workers who

become part of the employment contract (whether written or

are just like normal workers in every respect except they are paid by pieces made.

o

unwritten) When does a benefit set-in and cannot be diminished?  1. When the benefit is based on express policy or has

o

ripened into practice for a long period of time  2. AND that it is consistent and deliberate What can be diminished?  1. Conditional or contingent benefits (ex. bonuses)  2. Those granted due to error or doubtful application or law 



o

o o

What is the exception to this? o When the error has stood so long

o

and has been left uncorrected that it

o o o

has ripened into company policy What is the rule on those paid by results? o If paid according to piece rates in DOLE Pierce Rate Orders:  Wages = number of pieces * Piece Rate  No overtime pay o If paid according to output rates prescribed by the employer



the last seven actual working days  It must not be less than the minimum wage 5. Meal and rest periods 6. OT pay  Conditional 7. Premium pay  Conditional 8. 13th month pay 9. Other benefits granted by law or by agreement N.B. So the rule is that piece-work EEs are entitled to the normal benefits because the difference between them and the



and not yet approved by DOLE:  If number of pieces * Rate is >= to legal daily wage, 

4. Holiday pay  How calculated?  Not less than his average daily earnings for

they receive the former If formula is < than the legal daily wage, they receive

the latter What are piece-rate employees entitled to? o 1. Applicable minimum daily rate o 2. SIL o 3. Night shift differential  Huh? I thought those paid by results are excluded

usual employees is just manner of payment and nothing else What are the legal forms of payment? o Must be legal tender o Cannot be in PNs, vouchers, coupons, tokens, tickets, etc. o What if the employee requested for PNs, vouchers, etc?  Even so. It’s not allowed. o When is payment by check allowed?  1. Customary manner of wage payment in that place  2. Stipulated in CBA  3. Or where all of the following requisites are met:  A. Bank or encashment facility within 1 km 

radius from workplace B. the ER or his agents do not receive pecuniary benefit from the arrangement

by NSD?

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

C. EEs given reasonable time during banking



hours to withdraw wages from bank o This is compensable working time D. Written consent of employee if there is no

o

CBA provision  4. Special circumstances provided in labor regulations o Is payment by ATM allowed?  Yes, under 25 Nov 1996 labor advisory  Requisites for payment through ATM:  1. Written permission of majority of EEs  2. 25 or more EEs in the establishment  3. Establishment is within 1 km from bank What is the time of payment? o At least once every 2 weeks or twice a month at intervals not o o o

o o

written authority given by EE 2. Decease of EE –  Can pay wages to heirs directly without need 

exceeding 16 days What if there is force majeure preventing payment?  Payment made as soon as force majeure disappears In all cases, what is prohibited?  Payment with less frequency than once a month What is the rule for employees made to perform tasks 

proportion to amount of work completed  2. Pay balance upon completion of work o What is required by the IRRs?  1. Individual time record of employees  2. Payroll Where and how must wages be paid? o At or near the place of undertaking  N.B. Remember the ATM exception o When can there be payment in any other place?  1. Impossible to pay in place of work due to  

similar places  Except if the people are employed there Who must receive the payment?  The worker himself Exceptions to this rule?  1. Force majeure – can be paid to another person with 

which cannot be completed in 2 weeks?  1. Payments at intervals not exceeding 16 days, in



 N.B. For all: time spent is compensable work time What are prohibited places of payment?  Bar, night/day club, drinking place, massage clinic,



o

his representatives Sec. of Labor acts as referee to

wages are preferred. It is not a lien, but a reordering of credits (see Concurrence and

be assessed attorney’s fees equal to 10% of wages recovered In any proceeding, cannot recover attorney’s fees exceeding

10% of the wages recovered What is non-interference in disposal of wages? o No employer can limit or interfere with the employee’s disposal of his wages.

13

relationship to deceased ER pays through Sec. of Labor or

Preference of Credits in Civil Law) What is the rule on attorney’s fees? o In case of unlawful withholding of wages –culpable party may o

emergency or calamity 2. ER provides free transportation back and forth 3. Analogous circumstances

o

divide the amount  3. Worker’s family member authorized in writing What is the rule on workers’ preference under Art. 110? o In case of bankruptcy or judicial liquidation, the worker’s unpaid o



of intestate proceedings What is the procedure? o The heirs submit an affidavit stating

o



Can an employer compel his employees to purchase any

o

merchandise or commodity?  No, whether it be from himself or another person Can an employer deduct his employees’ wages? o In general, no. o What are the exceptions under the Labor Code?  1. To pay for insurance premiums that employee 

consented to 2. Union dues, where right to check-off is authorized



in writing by the employee or recognized by the

o



incurred for food, shelter, clothing, or medical   

wages in a week Can wages be withheld by the employer, if the employee violated

wages. Other express prohibitions?  Deduction to ensure employment  Retaliatory deductions  False reporting Which body has the power to prescribe rules and guidelines for determination of wages in the country? o National Wages and Productivity Commission (NWPC) o What is the status of guidelines issued by Regional Tripartite Wages and Productivity Boards?  These are void, if without the approval of or contrary

written

authorization by employee  And agreement by the employer, who is not





the loss/damage 4. Deduction does not exceed 20% of employee’s

o

and demandable 2. Court ordered attachment of wages for debts attendance only 3. Withholding tax 4. Salary deductions for coop members 5. Payment to third persons, upon



deduction 3. Amount is fair and reasonable, and not exceeding

company rules, failed to perform tasks, or for any other reason? o No. It can be dealt with in some way but not by withholding

employer  3. Authorization by the Sec. of Labor What are the exceptions under other laws?  1. Employee is indebted to the employer, and it is due 

If allowed, when can deductions be made (requisites)?  1. Employee is responsible for the loss/damage  2. Employee given chance to show cause against

obliged to do so  6. Agency fee  7. Facilities  8. Loss or damage under Art. 114 (see below)  9. SSS, Medicare, Pag-ibig premiums Can the employer require the employees to make deposits to cover

o



for deductions for loss/damage to tools or equipment? o In general, no. o What is the exception?  When it is shown that such practice is long-

consultation and publication in newspapers?  Void as well Who sets the minimum wage? o Regional Tripartite Wages and Productivity Boards o Is poor financial condition of the company an exemption to

o o

established and recognized in the trade

14

to NWPC guidelines What is the status of a wage order without required public

payment of minimum wage?  No. What does “minimum wage” relate to?  A day’s work which comprises 8 hours at most When is a worker “daily paid”?

o



 Paid only for days he actually worked When is a worker “monthly paid”?  When the monthly rate covers all the days of the

month.  Calculated through the following formula:  Monthly wage x 12 / 365 = daily rate  Must exceed the following formula:  Minimum wage x 365 / 12 Distinguish agricultural from industrial rates: o Agricultural rates – farming in all its branches o Industrial – manufacturing and processing o What determines which rate applies?  Nature of the work. It is permissible for one company

o

to pay agricultural rate to some, and industrial rate to 

order The advantage must thereafter be restored Must there be full elimination of salary differences?  No. A “severe contraction” is enough. Are efforts to rectify mandatory?  Yes, whether the establishment is organized or 



Labor Arbiter (R.A. 6727 says NCMB) 3. In unsolved after 10 days of conciliation,

refer to NLRC Must the new difference be the same as before?  No, not to the last peso. Restoration of appreciable

o

strike or lockout?  No. Check the enumeration – it’s not there. What is the “just and equitable” formula forwarded by the

increase) = distortion adjustment Is there inter-region wage distortion?  No. Just intra-region. The wage-fixing rates are fixed per region, and comparison must be within these

o

regions and not across regions. What if the salary distortion was created due to employerinitiated salary restructuring?  There is no legal duty to rectify the distortion because the legal duty only arises from distortions brought

o

VA)



correct it 2. Any dispute must be resolved through

differential is sufficient. Is any issue involving wage distortion a valid ground for

unorganized What if it’s an organized establishment? (Neg-GM 



o

o

or significantly reduced due adjustment required by a wage

o

1. Employer and union must endeavor to

SC in Metrobank?  (minimum wage / actual salary) * (prescribed

others. What is wage distortion? o When the pay advantage of a position over another is removed

o o



1. Employer and union must negotiate 2. Any dispute must be resolved through

about government wage orders. What are the prohibitions pertinent to wage orders?  1. No TROs or injunctions are allowed for proceedings 

grievance machinery in CBA  3. If unsolved, through voluntary arbitration What if it’s an unorganized establishment? (Neg-

o

Labor-NLRC)

before the NWPC or RTWPBs. 2. Wage orders must respect the statutory minimum

wage set by Congress. Who are not covered by wage orders?  1. Household/domestic workers, personal service

15

and

those

in





o

o

2. Workers in retail/service establishments employing



not more than 10 workers, when exempted from

are none, must schedule the preferred rest

compliance

day on that chosen day at least twice a

for

a

certain

period

fixed

by

commission/boards 3. Workers in new business enterprises, within 2-3



years from start of operations, when exempted and:  Outside NCR  Or in EPZs How often can there be a wage order?  Once every 12 months  Except when there is a Congressional law What are factors considered in wage orders? (don’t



o o o o

of work may result in irreparable injury or loess to employer 6. Analogous circumstances 7. Favorable weather or environmental conditions, when

o

performance is dependent on such (N.B. If you notice, this is the same as the Mandatory OT enumeration, except for “abnormal pressure of work due to

capacity 8. Need to induce investment in rural areas 9. Equitable distribution of income 10. Demand for living wages



special circumstances”) What is the rate of rest-day compensation? o Regular wage plus 30% (“premium pay”) o What if because of the nature of the employee’s job, there are no regular workdays and no regular rest days can be



When does the right to rest day accrue? o For every six consecutive normal work days When is the rest day set? o Depending on the CBA or subject to RRs o What if the employee has preference based on religion?  It is respected, but he must inform the employer at 

calamity, to prevent loss of life/property 2. Urgent work on machinery, equipment, or installation to avoid serious loss 3. Abnormal pressure of work due to special circumstances  And there are no other measures 4. Prevent loss or damage to perishables 5. Nature of work requires continuous operations and stoppage

o

REST DAY 

month. When may an employee be required to work on a rest day? o 1. Actual or impending emergencies caused by disaster or o

memorize but understand and familiarize)  1. Standards of living  2. Needs of workers/families  3. Wage adjustment vis-à-vis consumer price index  4. Prevailing wage levels  5. Effects on employment family income  6. Cost of living and changes  7. Fair return of capital investment and employers’   

Resort to other remedial measures. If there



least 1 week before the day preferred What if it might cause prejudice to business?

16

scheduled?  The extra 30% applies to Sunday work What is the rate for work on a special holiday? o Regular wage plus 30% o What if it is also his scheduled rest day?  Regular wage plus 50%  N.B. if he works OT, then it’s plus 30% of 150% What are the special holidays? o 1. All Saints’ Day (Nov 1) o 2. Last day of the year (Dec 31)

 

o 3. Ninoy Aquino day (Aug 21) What if the employee does not work on a special holiday? o No pay What is the implication when a day is declared as a special



Compensation:

working holiday? o Then no premium pay is given. An employee just earns 100%

Holiday and EE does not work Holiday and EE works

if he works.









(ex.

Double-holiday

HOLIDAYS 

o But must not be less than minimum wage What about seasonal workers? o Not paid holiday pay during off-season

Which employers are not required to pay this holiday pay? o 1. Government and GOCC employees o 2. Domestic helpers o 3. Those in personal service of another o 4. Managerial employees o 5. Field personnel o 6. Those paid based on contract, commission, or for end-result o

regardless of time spent working 7. Those in retail and service establishments employing less

o

than 10 workers (N.B. This is the same as NSD enumeration, and the same as

Maundy

100% pay 200% pay 200% if EE rests; 300% if EE works

Thursday and Araw ng Kagitingan) Holiday falls on Sunday

100% if EE rests; 200% if EE works

Holiday falls on rest day

(no special rule) 100% if EE rests; 230% if EE works; N.B. +30% of 230% if EE works OT



What is the rule in case of absences? o Employee on LOA with pay –  entitled to benefit o Employee on LOA without pay on the day immediately preceding a regular holiday –  not entitled to holiday pay unless he works on such

hours of work exemption + 10 workers-rule) Are monthly-paid employees excluded from holiday pay? o No. They are included. The IRR provision establishing this is

o

void. For hourly-paid teachers, will the calling off of class or declaration

regular holiday If immediately preceding day to a holiday is a non-working day or is the scheduled rest day –  entitled to benefit only if he worked on the day

of special public holiday deprive them of income? o No. They should receive what they would have been paid. o What about when extensions are given?  Then they are paid their hourly rates. Are private school teachers entitled to holiday pay? o Yes if the holiday falls during Christmas vacation o No if the holiday falls during semestral breaks What about employees paid by results? o Paid average daily earnings for 7 days preceding holiday

immediately preceding the rest day or non-working 

day What if there are successive regular holidays, like Maundy Thursday and Good Friday? o To be entitled to two successive holidays, employee must:  1. Be present on the day immediately preceding the 

17

first holiday 2. Or be on paid leave

o



o

the first holiday, what is the consequence?  He may not be paid for the two holidays  What is the remedy?  He can go to work on the first holiday. What is the rule if there is temporary shutdown or cessation of work? o

o



If he absents himself on the day immediately preceding

nearest Monday –  Araw ng Kagitingan  Labor Day  Independence Day  National Heroes Day (becomes Last Monday of

If regular holiday falls in period of temporary shutdown (ex.

  

inventory, repair, etc.) –  Entitled to benefit If it falls in period where operations cease due to business



holiday? o Emergency Cost of Living Allowance, which is not part of the





August) Bonifacio Day Rizal Day Ninoy Aquino Day  Special holiday

LEAVES

reverses, as authorize by Sec. of Labor –  No holiday pay What is an ECOLA? Is the employee entitled to it during a legal

o

For the following seven holidays, the holiday is moved to the

What is the right of Service Incentive Leave? o Every employee who has rendered 1 year of service is entitled o

regular wage Yes, whether or not the employee works on a legal holiday, he

to SIL of 5 days To whom will SIL not apply?  0. USUAL (Government/GOCCs, domestic workers, those in personal service of another, managerial, field,

is entitled to ECOLA What are the legal holidays? o New Year o Maundy Thursday o Good Friday o Araw ng Kagitingan (April 9) o Labor Day (May 1) o Independence Day (June 12) o National Heroes Day (Last Sunday of August) o Bonifacio day (November 30) o Eidul Fitr o Eidul Adha o Christmas Day o Rizal Day (December 30) What is the “holiday economics” rule?

 

contractual/commission/end-result) 1. Those already enjoying this benefit 2. Those with Vacation Leave (VL) with pay of at least



5 days 3. Those in establishments with less than 10



employees 4. Establishments exempt by the Sec. of Labor, after considering viability or financial condition of the

o

18

establishment (N.B. There are actually just three categories: a) those who



already grant it, and b) those who can’t grant it, c) usual) What is the prohibition as to benefits granted in excess of what is



provided herein? o It cannot be the subject of arbitration or any court/admin action Is VL or Sick Leave required to be given?

o



No, it is not required by law. It is dependent on employer policy

and CBAs. o These are voluntary benefits. What are required by law (mandatory benefits)? o 1. SIL o 2. Paternity Leave (RA 8187) o 3. Maternity Leave (SSS Law) o 4. Solo Parent Leave (RA 8972) o 5. Battered Woman Leave (RA 9262) o Does the “less than ten employees” rule apply to Paternity

o

o

o

the SSS of her pregnancy?  Employer pays damages to the SSS equal to what the



o

semester of her childbirth or miscarriage What does she receive?  100% of average daily salary for 60 days  100% of average daily salary for 78 days, if caesarian What are the conditions?  The employee must notify the employer of her



o

SSS Full payment is advanced by the employer within 30 

days from filing the maternity leave application Can the woman recover sickness benefits concurrent with maternity leave?

19

child is born 2. Cohabiting with his legitimate spouse when she

gives birth or suffers miscarriage 3. Applied for paternity leave according to rules 4. Wife gave birth or suffered miscarriage  Is abortion included? o No, not anymore. o For how many deliveries is paternity leave valid?  First 4 deliveries What is Solo Parent Leave?  

pregnancy – and this information is transmitted to the 

male employees in the private/public sectors Are these 7 working days or 7 calendar days?  No. 7 calendar days. What are the conditions to entitlement?  1. Married male employee and is employed when the 

in the 12-month period immediately preceding the

o

employee would have been entitled to Is the identity of the father material?  No, it doesn’t matter who the father is Paternity Leave: o What is given?  Seven days of paternity leave with full pay to married o

many employees are there. What happens to unused SIL? o Converted to cash. Maternity Leave: o Who is covered?  Female who has paid at least 3 monthly contributions

o

 First four deliveries or miscarriages What is the consequence if the employer fails to turnover to the SSS the employee’s contributions, or fails to inform

papapasukin mo pa. It doesn’t matter how



advanced to the employee the benefits required How many times can maternity leave benefits be availed of?

or Maternity Leave?  No. It only applies to SIL.  Why?  Kawawa naman sila, nanganak na nga,



 No. When does the SSS reimburse the employer?  Upon satisfactory proof that the employer has

o

A solo parent employee who has rendered service for at least one year shall be given parental leave of not more than 7

o



o

working days What does a “solo parent” cover?  Women who gave birth as a result of rape  Widow or widower  Spouse separated legally or de facto for at least one

o

year What must the solo parent prove?  He or she is left alone with responsibility of

o

parenthood What must he or she show?  Solo parent identification

card

issued

by

provision as simple money claims) SERVICE CHARGES 

a 

apply for the issuance of a “protection order.” In addition to



other reliefs, if she is an employee, she is entitled to a paid

o

leave of up to 10 days in addition to other leaves. Is it extendible?  Yes, when necessity arises as specified in the

o

is considered integrated in their wages What is covered by the 15% management share? o To answer for losses and breakages, or it can be distribution to

13TH MONTH PAY

protection order. What is a pre-requisite?  Must submit certification from punong brgy, kagawad,





9262 has been filed and is pending Is use of the 10 day leave mandatory?  No. It’s up to the woman employee.  It can be used for days where she attends to medical 

employees, regardless of position or rank  How often is distribution?  Once or twice a month o 15% to management What is the integration rule? o If service charge is abolished, the share of covered employees

managers at management’s prerogative

prosecutor, or clerk of court that an action under RA o

What is the rate of distribution for service charges collected by establishments? o 85% to all covered employees – distributed equally among

representative of the DSWD What is the Battered Woman Leave (BWL) under RA 9262? o A victim of physical, sexual, or psychological violence can

o

 Liable under RA 9262. How is recovery of BWL benefits enforceable?  Under Art. 129, with the Regional Director (same

and legal concerns. Are unused leave days convertible to cash or

cumulative?  No. What if the employer refuses to implement BWL?

20

What is the rule on 13th month pay? o It is required by law. It is not part of the basic wage, but it is based on that wage. What is the value of the 13th month pay? o It is 1/12 of total salary earned within a calendar year.  Are other bonuses included in the base rate?  No. Just the regular wage.  When is it paid?  Not later than December 24  What is not part of the “basic salary” base?  1. Cost of living allowances  2. Profit-shares

 



o

integrated in the basic salary Who is entitled to 13th month pay? o All rank and file employees regardless of designation and o



3. All allowances and monetary benefits not

of total earnings Summary of exemptions:

status – as long as they worked at least one month in that year And irrespective of method of payment (even piece-rate

Hours of

NSD

Wages

Govt,

Govt,

Farm

SIL

13th MP

Govt,

Govt,

Govt,

Holiday

employees) o What about managerial employees?  Excluded by law, but can be included by stipulation What if an employee is terminated or has resigned before payment

work GOCCs

GOCCs

tenancy/

GOCCs

GOCCs

GOCCs

of 13th month pay? o Entitled to 1/12 of what he has earned anyway Which employers are exempted? o 1. Government/GOCCs (usual) o 2. Employers of household helpers o 3. Employers of those under the personal service of another o 4. Employers of those paid on commission, boundary, or end-

Managers

Managers

leasehold Cottage

Managers

Managers

Managers

result basis  Except: piece-rate workers, who are covered  What is the rule on commissions?  If the commissions may properly

o

be

it’s covered by 13th month pay  If it’s not part of the basic salary, it’s excluded 5. Those already paying 13th month pay or its equivalent  Check intent of the bonus to see if it is credited as in lieu of the 13 month pay or if it’s additional N.B. This is almost the usual enumeration + those who already

Field

Field

BMBE

Field

Field

personnel DH Supported

personnel DH Supported

DH

personnel DH Supported

personnel DH Supported

DH Supported

family

family

family

family

family

members Personal

members Personal

members Personal

members Personal

members Personal

service Paid by

service Paid by

service Paid by

service Paid by

service Paid by

results

results Only up to

results Only up to

results Only up to

results

5 EEs

10 EEs

10 EEs Exempted by Labor

get an equivalent. Managers may or may not be given (see o

(may still be given)

th

o

pay

industries

considered as part of the basic salary, then



Can get 13th month pay from all private employers, regardless

above). EXCEPT field workers are supposed to be given 13 th month

Sec Already

Already

have SIL

have 13th MP

pay, because this provision is not re: hours of work. What if someone has multiple employers?

With paid VL of at

21

least 5

o

1. Deny a woman employee benefits here or discharge her to

o

prevent her from enjoying the benefits 2. Discharge a woman due to pregnancy, or while on maternity

days

Compulsory OT work

Compulsory rest day work

War or emergency Prevent loss or imminent danger Urgent work on equipment Prevent loss or damage to

War or emergency Prevent loss or imminent danger Urgent work on equipment Prevent loss or damage to

perishables Completion of work to avoid

perishables Completion of work to avoid

prejudice Favorable weather conditions

prejudice Favorable weather conditions Abnormal pressure to work due to



special circumstances





leave o 3. Discharge or refuse to re-admit a woman after leave What is the special rule on classification? o Woman who is permitted or suffered to work, with or without compensation in night clubs, massage clinics, bars (and similar establishments), if under effective control/supervision of the employer  considered an employee of such establishment For what purposes?  Labor and social legislation Who may be a victim of sexual harassment? o Either a male or female When is sexual harassment committed? o When a person demands, requests, or requires sexual favor o

WOMEN WORKERS 

What is the non-discrimination rule? o Cannot discriminate against a woman as to terms and o

conditions of employment solely due to her sex What are the reliefs available?  Criminal action  Civil action for money claims, with damages, and 





o

o

other affirmative reliefs Are these mutually exclusive?  No. They proceed independently of each

o

from another  Must it be put in an oral or written statement?  No, it can be by inference Who may commit sexual harassment?  Anyone with authority, influence, or moral ascendancy over the person harassed Where may it happen?  In work,  training,  or education environment What if the person harassed refused the demand, request, or requirement?  It does not matter. It’s still sexual harassment.

other. Are stipulations against marriage allowed? o No. An employee cannot be hired with the condition that she

MINOR WORKERS

does not get married, or be terminated due to marriage What are the prohibited acts?



22

Where can minors from 15 to below 18 be hired?

o o

o



For any employment, as long as it is non hazardous. A person

account remuneration, duration, and working

has to be at least 18 years old to perform hazardous work Give examples of hazardous workplaces:  Exposed to contaminants  Construction, logging, fire-fighting, mining,

 o

mechanized farming, deep sea fishing, etc.  Handling explosives or pyrotechnics  Using heavy equipment or machinery  Using power tools What are the allowed working hours?  Not more than 40 hours a week, no more than 8 hours

o



a day  No work from 10 pm – 6 am  N.B. in other words, no OT, no night shift Can children below 15 be employed? o No, except under very strict conditions o What are these exceptions?  1. The child works directly under the sole





as:



 

not endangered Does not impair child’s normal development Parent or guardian gives primary/secondary

a day  No work from 8 pm – 6 am What does RA 7323 provide? o Employers can hire at least 50 students during vacation period through education vouchers to be paid by government o But the wages must meet the legal minimum What are the prohibitions on employment of children in certain advertisements? o Cannot be employed as model in advertisements for alcoholic

only members of the family are employed, and as long The child’s safety, life, health, or morals are

acquisition program for the child What is required for these two situations?  The employer must secure a work permit from DOLE What are the allowed working hours?  No more than 20 hours a week, no more than 4 hours

and pay those students only 60% of their wages, and 40%

responsibility of his/her parents/guardian and where



time Implement continuing skills and training

beverages, tobacco, gambling, violence, or pornography What are the worst forms of child labor? o 1. Slavery o 2. Prostitution o 3. Production and trafficking of dangerous drugs and prohibited o

education to the child 2. Child actors or talents, as long as:  Employment contract is concluded by

substances 4. Work which by its nature or circumstances in which it is carried is hazardous or harmful to health, safety, morals of children

parents or guardian with express agreement

EMPLOYMENT OF HOUSE HELPERS



of child, and if possible, DOLE approval The child’s safety, morals, health are not





endangered Employer takes measures to prevent child

What are house helpers? o Those providing services in the employer’s home which is usually necessary and desirable for the maintenance and enjoyment thereof

exploitation or discrimination – taking into

23



o

Includes ministering personal comfort and

o

this does not allow accumulation – the helper can just get

convenience of the members of the household  Including family drivers Is a driver, laundrywoman, houseboy, etc. who works in



company staff-houses a house helper?  No. He or she is an industrial worker and must be o



paid the industrial rate What is the criterion?  Personal comfort and enjoyment of the family of the



o o

violence must be used. 5. Free lodging, board, and medical attendance 6. Upon termination, given a written statement of the nature









What is a homeworker? o Any person who performs industrial homework for an employer, contractor, or sub-contractor Under what circumstances are persons considered employers of homeworkers? o 1. Delivers or causes to be delivered any goods to be processed or fabricated in or about a home and then returned

and duration of the service and his/her efficiency as house o o

days indemnity What if a house helper leaves without justifiable reason?  Forfeits unpaid salary not exceeding 15 days What if the period of household service is not fixed? o He must give 5 days notice before intended date of termination

EMPLOYMENT OF HOME WORKERS

employer must afford opportunity for at least

o

cause What if a house helper is unjustly dismissed?  Paid compensation already earned plus that of 15

o

agricultural enterprise at a wage lower than what is prescribed 3. What if the house helper is less than 18 years old?  If the house helper is less than 18 years old, the elementary education  Cost of education is part of the helper’s compensation 4. Must be treated in just and humane manner. No physical

monetary value. What if the period of household service is fixed? o Cannot be terminated before end of the period without just o

employer in the home of said employer What benefits are accorded house helpers? o 1. Minimum wage o 2. Cannot be assigned to work in commercial, industrial, or o

Right to 4 days vacation each month with pay. Failure to use

o

helper (employment certification) 7. Contract does not exceed 2 years (renewable) 8. Funeral expenses paid by employer if house helper has no



relatives with sufficient means in the place What are the hours of work allowed? o Not to work for more than 10 hours a day  If the house helper agrees to work OT and there is



additional compensation, it is permissible What is the vacation privilege?

24

or disposed of or distributed according to his directions 2. Sells goods to be processed or fabricated in or about a

home and then re-buys them after such processing Who can be deemed an employer of homeworkers? o Any person, natural or artificial o For his account or benefit, or on behalf of a non-resident o Directly or indirectly Can industrial home workers form a labor organization? o Yes.



What are the conditions before there can be deductions from a

o o o

homeworker’s income, due to loss, damage, or destruction to materials? o 1. Homeworker is clearly shown to be responsible for the loss o 2. Employee is given reasonable opportunity to explain o 3. Amount of deduction is fair and reasonable and not exceed o



 

loss/damage 4. Deduction is made such that it does not exceed 20% of the

earnings in a week o N.B. this is the same rule for breakages for regular employees What is the nature of the liability of the employer vis-à-vis the

 

contractor and the latter’s homeworkers? o Same as in an independent contracting arrangement. The o 

provisions for homeworkers must be inserted in the contract. The employer is held liable when there is failure to pay wages



by the contractor. Prohibitions for homework: o 1. Explosives, fireworks, similar articles o 2. Drugs and poisons o 3. Articles where processing involves exposure to toxic



substances APPRENTICES AND LEARNERS 



What is an apprenticeable occupation? o Any trade, form of employment, or occupation which requires more than 3 months of practical training on the job o







supplemented by theoretical instruction Involving a contract between the apprentice and employer, on

1. At least 14 years of age 2. With vocational aptitude and capacity for appropriate tests 3. And possesses the ability to comprehend and follow

written/oral instructions What is the maximum period of apprenticeship? o 6 months Can there be payment of less than the minimum wage? o Yes, but not below 75% and it must be pursuant to an approved apprenticeship program approved by the DOLE What if there is no prior approval of the DOLE? o The “apprentice” is in fact a regular employee. What are the possible venues of the program? o 1. Entirely within the sponsoring firm o 2. In a DOLE training facility o 3. In a training facility, and then in the sponsoring firm What is the remedy for violation of apprenticeship agreement? o Complaint filed with DOLE o Appeal within 5 days from receipt of decision to Sec. of Labor What the conditions for tax deductibility of training costs? o 1. The program must be approved by the DOLE o 2. The deduction must not exceed 10% of direct labor wage o 3. The apprentices are paid at least the minimum wage o How much can be deducted?  ½ of value of labor training expenses When can apprentices be hired without compensation? o When training on the job is required by the school or curriculum, or as a requisite for graduation/board examination Are students who work for the school for free education deemed employees? o No, as long as they are given real opportunities to finish their

an approved apprenticeable occupation by the TESDA Who may employ apprentices? o Only employers in highly technical industries AND approved by

o

chosen courses What if the student causes damage to a third person in the course of these duties?  The school will be deemed an employer.

the DOLE Who can qualify as an apprentice?

25

 

regards labor regulations, rest periods, etc. What are learners? o Persons hired as trainees in semi-skilled and other industrial o



No commitment to hire after

Commitment to hire after termination

termination of period (no certainty it

of period

will be learned)

occupations which are non-apprenticeable And which may be learned through practical training on the job

HANDICAPPED WORKERS

in a relatively short period of time, not exceeding 3 months When can learners be hired? o 1. When no experienced workers are available o 2. Necessary to prevent curtailment of employment o



The school is only not deemed an employer as



o

opportunities 3. Does not create unfair competition in terms of labor costs or

standards Contents of learnership agreement? o 1. Names and addresses of learners o 2. Duration of learnership period (at most, 3 months) o 3. Wages and salaries of learners, which must be at least 75%

o

of minimum wage  What if the learners are in piecework?  Must be paid in full for the work done 4. Commitment to employ the learners if they want as regular

o

employees after the period When are learners automatically deemed regular

Who are handicapped workers under the LC? o Those whose earning capacity is impaired by age or



handicapped worker Who are handicapped persons under RA 7277 (Magna Carta for Disabled Persons)? o Those suffering from restriction or different abilities as a result of mental, physical, or sensory impairment, to perform an activity in the manner or within the range considered normal for



a human being What is the rule on non-discrimination? o No disabled person can be denied access to opportunities for o

employees?  When they have worked for at least 2 months and



then training is terminated by the employer before the

DSWD, DOH, Dep Ed, and other government agencies o

engaged in social development What if suitable employment for handicapped persons

o

cannot be found through open employment?  State endeavors to provide sheltered employment Can handicapped workers be hired as learners or

learner Contrast:

Apprenticeship

Learnership

Highly skilled or technical jobs Not learnable in less than 3 months Approved by DOLE

Semi-skilled job or industry Learnable in less than 3 months No such requirement

employment If qualified, must be hired under same terms, privileges,

benefits, etc. What are the reserved positions for handicapped workers? o 5% of all casual, emergency, and contractual positions in

end of the stipulated period, through no fault of the 

physical/mental deficiency or injury, disease, or illness What if the disability is not related to the work performed?  Then the employee will not be considered a

apprentices?

26



Yes, if their handicap is not such as to effectively



impede performance in the job for which they are 

compensation, because “wage” is paid no matter how

hired What are the incentives given to employers of handicapped

o

persons? o 1. Tax deduction from employer’s gross income of up to 25% of

o

o

No. EER is not determined by basis of employee’s

amount paid as salaries to handicapped workers  Must present proof of employment  And DOLE certification of worker’s disability 2.Tax deduction from employer’s gross income of up to 50% of

designated. What is the most important?  Control (#4) How do you determine when there is control?  Determine how the employee performs the functions 

direct costs for improvement of facilities for handicapped

o

(manner and means used), not just the end product There is no control under the EER if the employer just

says the end product or goal What about employees working outside the facilities, are they still under control of the employer?  They still can be under the control of the employer.

workers  But does not include improvements under BP 344 (Accessibility Law)



Ex. taxi cab drivers. Distinguish giving details on the work, supervision on the manner of doing the work: o Instructions, no matter how detailed, may not actually indicate

TERMINATION OF EMPLOYMENT

control. If the details pertain to the product itself, then you are not controlling the work. (Ex. you say that you want a barong

EMPLOYER-EMPLOYEE RELATIONSHIP 



that has gold buttons, long sleeves, made of a certain tela,

Why is it important to determine EER? o It determines the legal relationship between the parties, and

o o

their rights and obligations. How do you determine whether there is an EER? o Four-fold test  1. Selection and hiring  2. Payment of wages  3. Power to dismiss the employee  4. Control over how the employee performs his o

etc.) If the details pertain to the work itself, there is control. N.B. So reporting about collections, or progress of the chair being constructed  these reports are really just about the end product, and do not indicate control. So even reports do not

o

always indicate control. What if the alleged employee works more or less at his own

pleasure

and

is

not

subject

to

definite

hours/conditions of work, and is compensated for the end

functions Does it matter what kind of system for payment of wages is present (e.g. by compensation)?

o

result only?  No EER. X was an insurance agent required to solicit business exclusively for Company Y. Is this control?

27



It may seem like it, but it’s not.

In this case, the

o

exclusivity clause stems from an Insurance Memo 

Circular, to protect the public. There was no intention by Corp Y to exercise control over the method and 

education and the student is given real opportunity to finish the o

certain provisions. What if there is no written contract or any proof of the

and it is duly accredited by the government PROBATIONARY EMPLOYMENT 

the company premises. That his presence is required by the company, and he is given an ID, are strong indicators.

Working in a place controlled by the



employers, how do you determine who the employer is? o Control is the strongest factor. For instance, A hires, B fires, C



pays, and D controls. D is the employer. What is the subordinate test? o “Economic Relations Test” – existing economic conditions



agreement for probationary employment. But for probationary employees, after the lapse of the period,

he/she becomes a regular employee. What should the agreement contain? o 1. Apprise employee of the nature of employment o 2. Inform employee of standards to be met to become regular How long should the probationary period be? o Six months. It cannot go beyond the six month period. It is o

between the parties are used to determine whether EER exists:  1. Payment of pag-ibig contributions  2. Payment or remittance of contributions to the State

o

Do all regular employees have to start as probationary employees? o No. There is only probationary employment when there is an o

employer is a good indicator. In the above examples, there are only two parties. But if there are multiple parties involved and there are multiple suspected



course 2. There is EER between resident physicians and training hospital UNLESS there is training agreement between them

instructions given?  Usually you can prove it by the fact that he is within



the holder as a bona fide employee of the corporation. What are the special cases? o 1. No EER between students and their school if there is written agreement that the student works in exchange for free

manner by which X sells insurance. Should the power be exercised? o No, need not be. Just as long as it’s available. o How can you prove it if it’s not exercised?  If there is a written agreement, you can point to o

It’s not just a security measure but it usually mainly identifies

non-extendible. What are the exceptions?  1. Covered by an apprenticeship program stipulating 

Insurance Fund  3. Deduction of withholding tax  4. Deduction or remittance of SSS contributions W/N the employee is dependent on the alleged employer for

longer period 2. Voluntary agreement of parties (esp. when the nature of work requires longer period) (Mariwasa v.



his continued employment in that line of business What is the value of ID cards?



28

Leogardo) 3. Employer gives employee a second chance to pass

the standards test What will make the probationary employment invalid?

o

If the employer did not give reasonable standards for the

Regular employees

employee to meet within that period. The standards have to be given at the start of the employment. What is the legal effect of this?  The employee becomes regular. Before you reach the end of the probationary period, can you still



o o









employee may be terminated? o Yes. When will the employee become regular? o Evaluate within the period. o If there is no evaluation and he is hired beyond the period, then



to

class

of

employment, and “directly related” in contracting only relates to 

whether there is an employer-employee relationship. A worker who performs work usually necessary and desirable to

he becomes a regular employee. You start a probationary work agreement, and the six month period

the company becomes an employee of the company. T/F? o False. The conclusion is off-tangent. o You use the necessity and desirability test to determine what

ended. The employee continues working. There is no evaluation

class of employee he is, and not whether or not he is an

yet. What is the legal implication? o He becomes a regular employee. o At what point?  As soon as you go beyond the six month period. How do you count six months? o There are conflicting decisions, but Atty. MM prefers the same

o 

employee. To determine employer-employee relationship, you apply the

four-fold test. There is a company with security guard A, and security guard B. Can it be that A is a regular employee, and B is not because he was hired by a contractor? o Yes, this is legally possible. o But isn’t the nature of the work of the employee the

day from the sixth month from when you started employment



desirable to the business. How does “usually necessary and desirable” here compare to “directly related” in contracting arrangements? o “Necessary and desirable” here applies

terminate the employee on the grounds for which a regular



When is an employee regular? o When he performs tasks that are usually necessary and

(Jan. 3  July 3) o Although there is another case that says 180 days. Can a person who has been promoted be probationary again? o No. Only probationary as to the position, but you can never be

determinant?  Yes. But you determine the nature of his work in

probationary as to employment in general again. What are the requirements for private school teachers to acquire



relation to the contractor. How do you determine if a particular work is usually necessary and desirable, hence leading to regular employment? o Look at the nature of the business of the employer o What if an employee is tasked to perform a job for at least

permanent employment? o 1. The teacher is full-time o 2. Must have rendered three consecutive years of service o 3. The service must be satisfactory

one year already?

KINDS OF EMPLOYMENT

29



Performance of a job for at least a year – evidence



that the job is necessity and indispensable for 



business How can a regular employee be terminated? o For just or authorized causes only





Seasonal employees

employer, and is not project nor seasonal When do they become regular employees? o After one year of service, continuous or broken. o He becomes regular as to the activity for which he is employed

 

season, drying)? o They become regular. o If you are employed throughout the year, doing different tasks, 

o

must be done  How is this different from project?  Fixed term is time bound, project is task

o 

although all are seasonal, you are regular. What is the status of seasonal workers who are called to work from time to time and are not made to work during off-season? o They are not separated from service. They are considered on

What are the requisites? o 1. They should have agreed upon a time frame for when work

bound.

When will seasonal employees become regular? o After repeated rehiring. What if after harvesting season, they still work FOR the employer but doing other seasonal tasks (ex. harvesting then the next

and is regular as long as the activity exists When does one year period vest?  NOT your one year anniversary.  It must be “cumulative period of service” of one year.

Fixed term employment

o

If you are hired but not placed under a special

category, you are regular.

Who is a casual employee? o One doing work not “usually necessary or desirable” to the

o



employer is seemingly circumventing the law. Is there a conversion? o If you work beyond this period, you become regular Remember the general rule: you are regular if you are not covered by a special agreement.

Casual employee 

If all the employees are fixed-term, it is proof of illegality, because the

leave until re-employed. They are seasonal workers. But if they have repeatedly done that job for years, they become regular.

Project employees

Fixed term does not care if the

project or job is done. 2. The agreement was voluntarily entered into by parties  Consider level of parity 3. Employment scheme is not designed to circumvent the



law/Labor Code What if the job is usually necessary and desirable to the business

What are project employees? o They are hired for a specific undertaking or project. o His employment ends after the project ends. o They cannot be terminated without just cause before the o

of the employer? o The employee is deemed regular

30

project ends. What is the “day certain” rule?



It ends on a certain date, but not an exact date – just



upon completion of project If there is a construction project ongoing, can we assume the



construction workers are project employees? o No, it doesn’t follow. What is an example of a project within a company that is different

o 



a

for irrigation. When can project employees become regular employees? o Working beyond the project o Repeated rehiring, for the same task or tasks that are o

principal.

necessary for the business Is a second project a repeated rehiring?  No, it’s the first rehiring. A third project will be the first

determinable. What if there is no such given standard?  Considered a regular employee. Is a long gap between projects material to determine whether you o

line,

where

For

instance,

some

outsourcing



take note of this. The principal has no liability to the employee if you have a



legitimate contracting arrangement. T/F? o False. The principal is solidarily liable for failure to pay wages. What are the rights of the parties in a legitimate contracting



can be converted to a regular employee? o No, lapse of time is immaterial. As long as there is repeated



rehiring. What if the period is more than one year?  Again, time is immaterial.

arrangement? o The principal is the indirect employer. o Contractor is the direct employer. o Employee is, well, the employee. In an illegitimate contracting relationship? o Principal is the direct employer o Contractor is the agent of the principal o Employee is still the employee How different are the responsibilities of the principal is the two relationships? o Legitimate – principal is solidarily responsible if the employer-

CONTRACTING ARRANGEMENT 

process/production

transactions are not contracting arrangements. Just

instance of repeated rehiring. Is the date material? o Not always, because it can also be another determinant, such

o

complicated

ultimately, what is produced by employer goes to the

as the completion of the project, even if the date is not



and the contractor and the employee What is the relationship between the principal and the worker? o The principal is the indirect employer. o Principle why this is so: the work is always for the principal. It redounds to his benefit.  N.B. This does not refer to all situations where there is

from its main line of business? o Mango Orchard owner hiring workers to build a water pipeline 

There are two contracts – between the principal and contractor,



What’s a contracting arrangement? o There are three parties: the principal, the contractor, and the

contractor cannot pay the wages due o Illegitimate – principal is principally liable for the wages When is there solidary liability? o In EITHER contractual arrangement. o But in the illegitimate contractual arrangement, the solidary liability is not as important, because they are targeting the

employee

principal usually. But it is wrong to say that the contractor is

31

not solidarily liable. It is solidarily liable; otherwise it will be in a

o o

better position than the legitimate contractor. But for all intents 

and purposes they just go to the principal anyway. What is the difference though? o In legitimate labor contracting, the principal is only liable if the



business of the principal o 3. Contractor has control When does it become a labor-only contracting arrangement? Does

contractor fails to pay wages.  NOTE: Under Art. 106, the principal is ONLY liable for

it have to violate all three grounds or just one? o Do not be confused by the structure of the definition in Dept.

failure to pay wages by the contractor for work

Order 18-02. You go back to Art. 100. “One disqualification

performed, but the principal is NOT their employer for any other purpose. 

Nothing else.

o o o

Not even back-

wages stemming from illegal termination. Note: Under Art. 109, solidary liability is established difference

between

legitimate

and

illegitimate



contractors, as to solidary liability. In illegitimate labor contracting, the principal is employer even beyond this single circumstance.

It is, for all intents and

payment but for responsibilities of the employer. If the illegitimate contractor already paid the wages, is the

has paid. What if there a violation of the Labor Code? o For legitimate contracting arrangement, the principal is generally not liable, unless it has participated or connived in

good faith – resulting in termination of

the violation. Remember, the principal is just liable under one

regular employees and reduction of work

circumstance: payment of wages for work performed. Nothing

hours or affects bargaining unit 2. Contracting out a work with a cabo – a

o

o

else. Take note of Rosewood case, which laid down that there must



person or group which is disguised as a

be finding of fault in the principal to hold it liable for violation of 

contractor. When will you consider the principal the direct employer of the

principal’s business 2. Commission of a prohibited activity  What are these prohibited activities?  Those mentioned under DO 18  What in particular?  1. Contracting out a job when not done in

principal still liable?  Not anymore, because the principal/employer’s agent 

We only have the definition of a labor-only

employee? o 1. Labor-only contracting arrangement  1. Principal actually controls the employees  2. Contractor does not have sufficient capital  3. Employees perform work directly related to the

purposes, just like any other employer. It is liable not just for o

out of three” is the more reasonable interpretation. For legitimate contractor – you have to meet ALL requirements. For illegitimate – you miss just one, you are illegitimate. N.B. In the old rules, there was a definition of an “independent contractor.”

between principal and contractor. In 109, there is no

o

1. The contractor has sufficient capital 2. Employees do not perform work directly related to the

labor organization but supplies workers to an

Labor Code. What is a legitimate contracting arrangement?

employer (with or without consideration)

32



3. Exploitative acts: o Requiring contractual employees to o



to ensure that the contractor is a good

perform tasks of regular employees Requiring signing of antedated

employer to its employees, otherwise you

resignation, blank payroll, waiver of o



become liable as a principal. What is the rule regarding lack of registration? o It only creates a presumption that the contractor is a labor-only



contractor What is the rule on posting bonds? o The principal may require the contractor to furnish a bond

labor standards, or quitclaim Requiring signing of contract fixing employment period to term shorter than

the

principal-contractor

equal to the cost of labor under contract, on condition that the

contract (unless the contract is in 

bond will answer for the wages due the employees if the

phases) 4. Contracting out a job through in-house 

agency which refers to a contractor owned, managed, or controlled by the principal and 

 



contractor fails to pay them Can an individual be an independent contractor for himself? o Yes. (Remember the Jay Sonza case)

operates solely for the principal 5. Contracting out a job directly related to

TERMINATION OF EMPLOYMENT

principal’s business due to strike/lockout,

Security of tenure of the following EEs:

actual or imminent 6. Contracting out a job to interfere with right

to self-organization of employees Summarize!  1. Labor-only  2. Contracting in bad-faith  3. Contracting with a cabo  4. Contracting with an in-house agency  5. Contracting due to strike or lockout  6. Contracting that constitutes ULP So a contracting arrangement may be legitimate, but if

Employee type

Security of tenure duration

Regular Project Seasonal Fixed term Probationary

Duration of employment Duration of the project Duration of the season Duration of the term During probationary period, because they can only be terminated if they do not meet the standard, or for

Casual

there is the commission of any of these prohibited 

NO. Not under DO 18. So the principal has

just/authorized causes None, because their work is not usually necessary nor desirable

activities, the principal becomes the direct employer. Do you need proof that the principal connived



with the contractor in doing any of the prohibited activities?

33

For what can you be terminated? o For just and authorized causes

What are the differences? Just cause

Authorized cause

Due to EE’s actions

Due to independent reasons (e.g.

No separation pay unless based on

business reasons) Separation pay required by law,

compassion

except for closure due to serious

Due process requires notice (two-

business losses No hearing; just notice given to EE

notice requirement) and hearing

and

Dismissal’s effectivity determined by

separation Dismissal effective 30 days after

the ER

notice



DOLE

30

days



Willful disobedience  a single act is



enough There is willful intent to not follow authority.

It is a defiance of authority. What is the more accurate term for “willful disobedience?”  Insubordination.



before

That’s why it is called

“willful.” Must the disobedience be gross?  No, as long as it’s willful. Look not at the effect, but at the act of disobedience. (ex. it



What are just causes? o 1a. Gross misconduct  What is gross misconduct?  It must be serious in nature  Give an example?  Employee attacks another employee  Causing serious disruption in the workplace

o





doesn’t matter how much is involved) Must it be habitual?  No. Even a single act of disobedience is enough. What is the difference between disobedience and neglect?  Disobedience is an act contravening the 

during business hours  Sexual harassment (Libres)  Falsification of time card (Felix)  What if it happens outside company premises?  It can be (examine the circumstances)  Must it be habitual?  No need. 1b. Willful disobedience  A single act can fall under both willful disobedience

employer’s orders Negligence is an omission, failure to exercise



diligence What must be the character of the order or



instruction of the employer?  1. Reasonable and lawful  2. Sufficiently known to the EE  3. In connection with the EE’s duties What if an employee refuses to follow order for transfer of assignment or location?  It’s willful disobedience, unless the EE proves that it was motivated by discrimination

and neglect of duties (ex. failure to deposit money that o

employee needs to deposit)

34

or bad faith, or it is actually a demotion 2. Gross and habitual neglect  Obviously there are past infractions.  What is gross neglect?

 

Absence of diligence that an ordinary



prudent man would use in his own affairs Give an example.  The rule is to make a deposit of the



o

did not make such deposits consistently Failure to fulfill reasonable work standards or

o

reasonable work assignments Abandonment of job:  1. Failure to report for work without just 

reason, and 2. Clear intention

to

sever

ER-EE



relationship There has to be habitualness here. It also has to be



gross (so look at the effect). What must be the nature

of

these



past

infractions?  Obviously the employee was not terminated



for these causes (because they are not enough 

to

terminate

him,

but

the

employee

for

these

o

involved,

for

or

non-

cashiers) 4. Commission of a crime or offense against the employer, his representatives, or immediate family  Up to fourth civil degree 5. Analogous causes  Can an employee be terminated from being found

acts/omissions that may cause dismissal  2) subsequent notice of the employer’s decision What does the first notice contain? o First notice (1) apprises the employee of the ground for termination and that there is intent to terminate, and that (2) the employee is given opportunity to submit written explanation o

past

infractions because this is proof that there is habitualness

employees

positive in random drug testing?  Yes.  What about if he is found to be HIV positive?  No. How do you terminate an employee for just cause? o There is a 2-notice requirement:  1) notice charging employee of particular

the

cumulativeness of such will) Must he have been punished for these?  No need. But it’s better for employer to penalize

managerial

managerial but those holding funds (like

collection everyday and the employee here 

Ex.

evidentiary

o

purposes. 3. Fraud or willful breach of trust  To whom is this applicable?  Only to those holding positions of trust and



confidence

within a reasonable period. What must be included?  1. Facts constituting the offense  2. The Offense charged  3. The possible termination How much time is given to the employee?  Reasonable time  As long as the employee has enough time to get

evidence and present his defenses. What happens after? o The employee presents his defenses and rebuts the allegations against him

35

o o

There will be a meeting or conference, or at least the chance

o

the present his evidence and rebut the employer’s allegations Must there be a meeting or conference at all times?  No.  The law says ample opportunity to be heard must be given.

There is no reference to face-to-face

confrontation. 

o



But the rules require a meeting or

conference. The SC said the law only requires ample opportunity to be heard, and this can be had even without face-to-

o



face meeting. When must it be required?  1. When the employee requested for it in his  

explanation 2. When company policy requires it 3. There is an issue that requires face-to-face confrontation depending on the issue involved  Ex. habitual tardiness is the issue – no need for hearing or conference, because you just employee requests for it)





beyond 30 What are authorized causes? o 1. Redundancy o 2. Retrenchment o 3. Closure of business What is the redundancy? o Superfluity of the need to have that employee perform such o

duty What are labor saving devices?  Installation of automated means or the like that would

o

render the employee superfluous Who do you terminate?  Use standards like seniority, efficiency, or nature of

o

check the records (unless of course the After this? o If there is ground to terminate, give SECOND notice o What are contents?  1. Circumstances are considered  2. There is sufficient ground to establish the offense o Is there a waiting period for termination?  No, it is immediate. When is preventive suspension allowed? o Allowed if the employee’s continued employment poses a



What is the maximum period?  30 days What if the preventive suspension exceeds 30 days?  It is deemed as constructive dismissal  Or the ER will be required to pay the EE for the days

contract Can redundancy be prompted by the contracting out of

services?  Yes, unless the CBA provides otherwise (Serrano) o Do you need to have losses for redundancy?  No. What is retrenchment? o Termination due to losses, reversals, economic downturns, etc. o What are the requirements?  1. Undertaken to prevent losses  2. Losses are proven by sufficient and convincing  

threat to the life or property of the ER or co-workers. Note that it is an incident of the investigation and is not the penalty per

evidence 3. Losses are actual and imminent 4. It is reasonably necessary and is likely to prevent expected losses

se.

36



Evidence must not only be about the past but



ALSO about the future, to prove that you o

would not be able to recover Do you need actual losses to retrench?  Even if you have not incurred actual losses, but losses



needed?  101 – 100 for employees, 1 for DOLE with

are certain and imminent unless you retrench, you can do so. Not just a projection, but one supported by o o



o

evidence. It must be a last resort. How do you choose whom to terminate?  You need to have a set of reasonable criteria or 

the list of employees 2. Give separation pay:

Ground

Separation pay given

Redundancy or labor-saving devices

1 month salary for each year of service,

standards as re: who can be terminated. Many retrenchment programs have been invalidated

o

terminated It must be done in good faith. As long as not done to just

o

circumvent the law (“fake closure just to hire new guys”). What is the obligation of a purchaser of a business in a GF

or

1

month

salary

(whichever is higher)

due to the company not having set criteria. What is closure? o When the business closes, obviously, the employees can be

o

N.B. for this ground and all the others, Retrenchment

at

least

6

months

is

equivalent to 1 year ½ month salary for each year of service,

or

1

month

salary

(whichever is higher)

sale?  No obligation to absorb the employees. What about in mergers?  There is succession to the employment contract,

N.B. there is always separation pay in retrenchment, even due to serious

unlike in sale to another new entity, so the employees

Closure not due to serious losses

are absorbed. (Of course there can be declaration of 

Do you have to wait for DOLE determination?  No.  After 30 days you can terminate If you have 100 employees, how many notices are

losses ½ month salary for each year of service,

redundancy, etc.) What is the procedure for authorized causes? o 1. Give notice to the DOLE and employees at least 30 days

Closure due to serious losses

before intended termination  Is this the same notice as for just causes?  No.  What is the role of the DOLE?  To determine if it is justified.



or

1

month

(whichever is higher) No separation pay

What is a constructive dismissal? o Unwarranted transfer or demotion, or unjustified action that results into involuntary resignation by the employee

37

salary

o 

Includes imposing “floating status” on employee beyond 6



months What if the employee is found to be suffering from disease and his

EE.

continued employment will prejudice his health or that of his co-



employees? o He can be terminated. o What is his separation pay?  1 month salary or ½ month salary for each year of o

o

service, whichever is higher What does the IRR provide?  There must be certification from competent public 

health authority that the disease is incurable within a 

 





month for every year of service. 2. Backwages  Represents wages he should have earned  How is it computed?  From actual termination until the case for

illegal termination is finally resolved Employee is hired on year 1 and is fired year 5. The case was

thirteenth month What about separation pay? o 1 month for every year of service: P120,000 o He rendered service for 12 years, not 5, because he does not lose seniority rights during the 7 years when the case was

Ex.



terminated for repeated absences or laziness. What are the consequences of illegal dismissal? o 1. Reinstatement to former position without loss of seniority rights 

the EE is holding a position of confidence. What is thus the alternative?  Instead you get separation pay equal to 1

How do you count? o (P10,000 x 13 x 7) = P910,000 o You calculate it against 13 months because you factor in the

This is for those who are not

morally depraved (“perverse mental attitude”).

Strained relations usually apply when

resolved after 7 years, which is year 12. His salary was P10,000.

period of 6 months even with proper treatment What are the types of dismissal? o 1. Valid dismissal o 2. Illegal dismissal – no valid ground o 3. Valid ground, but improper dismissal What is an ineffectual dismissal? o No longer applicable now. There is no such thing. If there is a valid dismissal, will the employee get anything? o Separation pay, if terminated for authorized causes o What if it’s for a just cause?  You don’t get anything, in general. o Exception?  But you can get financial assistance if justice and equity require this.

2. Strained relations between the ER and

o

pending. If you are entitled to other benefits, you also calculate it against

o

the 12 years, not 5. (But if wages increased to P12,000 in the middle of the period

and there is proof, it becomes P12,000 x 12 = P144,000) Will the P10,000 monthly salary remain constant regardless of increases in salary of other employees or other factors that would increase salary? o In practice, if you are a minimum wage worker during termination and the MW is adjusted, your salary will also be

When is there no reinstatement?  1. If the position is not anymore available,

adjusted to reflect the increase.

38

o

If you are not a minimum wage worker, it’s difficult because there is no basis to assume you will get an increase. In that

When are moral damages awarded?  Where there is BF or fraud in the dismissal,

case, your compensation is fixed at P10,000. But if there is

or acts contrary to morals, good customs,



proof that your salary would have increased had you stayed, 

then apply this (ex. there is a CBA that should have included the employee, increasing the salary). What is the difference in calculation for backwages and separation

o

pay, if there is an intermediate increase? o Separation pay  use the latest amount to multiply against o



2 years; P12,000 x 5 years, etc.) What are the consequences of dismissal where there is valid



ground, but defective procedure? o No reinstatement. o What else do you get?  Nominal damages.  P50,000  authorized cause  P30,000  just cause o Backwages?  No o Separation pay?  No, if just cause.  Yes, if authorized cause – but it’s not because of the



the formula for dismissal with defective procedure. What is reinstatement pending appeal? o The L.A. will provide that there is reinstatement pending appeal upon finding in favor of the employee. Employer has two options: o 1. Actual reinstatement (without loss of seniority rights) o 2. Payroll reinstatement  Reinstated in payroll but not required to report The Labor Arbiter decides that it was an illegal dismissal. It was appealed to the NLRC, and the NLRC said the dismissal was valid. What will happen to the reinstatement? o The employer can have the employee stop reporting to work. It is not a new termination because the NLRC simply effected the o

original dismissal. There must be notice. What if the CA reversed the NLRC? Does the employee go back? 

defective procedure, but it will arise from the authorized cause itself (which requires separation o

or malevolent manner Are there actual damages in an illegal dismissal case?  Before, the SC said full backwages is more exemplary than compensatory. But this is now inconsistent with

years of service, blanketly Backwages  for the years with lower salary, use that; for the years with higher salary, use the higher amount (e.g. P10,000 x



public policy When are exemplary damages awarded?  Dismissal was done in wanton, oppressive,

There

is

NO

reinstatement

pending

appeal.

Reinstatement pending appeal only applies to Labor

pay). Employees that are illegally dismissed (second category) can get damages. T/F?  Yes, you can get moral damages. This, however, is



Arbiter. Since you go up to the SC through rule 45, it’s an appeal (unlike 65 which is a SCA), so the CA decision is not executory.

not a standard of the package, you have to prove it, and the courts have discretion.

39

o

The SC finally reversed the CA, and said the dismissal was valid.



reinstatement. 1. If it’s actual reinstatement, no need to return the



wages because he actually rendered service 2. If it’s payroll reinstatement, there’s still no

o



judicial courtesy. Relate this with the calculation of backwages and separation pay

the backwages period will take out whatever period was

reinstatement pending appeal. There is reinstatement unless

covered by the reinstatement pending appeal (because the

there is a TRO. The employee can ask for a writ of execution from the NLRC



employee was paid during that period). Bago v. NLRC: EE won an illegal dismissal case with a favorable

There can be no payroll

decision with the LA. The LA ordered immediate reinstatement. The

reinstatement because it’s not a reinstatement pending appeal. What if the CA reversed, upholding the dismissal, and the

ER opted payroll reinstatement pending appeal. The NLRC reversed

SC upheld the dismissal too?  The employee is not obliged to reimburse the salaries

stopped payroll reinstatement. The EE elevated the case to the CA, and

that he be ordered back to work.

the decision of the LA and ruled that the dismissal was valid. The ER eventually the SC. The SC upheld the dismissal. Is the EE entitled to

received in between LA’s reversal by the NLRC and

continued payroll reinstatement after the NLRC decision? o No. The EE is not entitled to continued payroll reinstatement.

the NLRC’s reversal by the CA. What if the employer did not reinstate the employee

The decision of the NLRC on appeals from decisions of the LA

between the NLRC and CA stages, even if there is a valid

is final and executory after 10 calendar days from the receipt

order? Can the employee recover backwages?  Yes. Because even if he is ultimately dismissed, he  o

thus an appeal.] But SHOULD the NLRC issue a writ of execution?  The SC advises against it, because it might violate

above (“in the year 5, year 12” example): o If there was reinstatement pending appeal somewhere there,

first and the NLRC reversed? Is it reinstatement pending appeal? o No. It is a reversal of the Labor Arbiter’s case, but not a

o

attains finality after the MR fails. [Note that LA  NLRC is appeal. Then it becomes original action. The appeal to SC is Rule 45 and is

that led to payroll reimbursement DIFFERENT SITUATION: What if the LA upheld the dismissal at

o



final. The Rule 65 to the CA is an SCA, an is thus an

reimbursement because it was the employer’s choice

o

Yes, because the nature of the decision of the NLRC

What happens to the salaries/wages received

pending appeal?  No need to return them, whether actual or payroll





thereof by the parties. (Note: the CA is operating under Rule

still should have been reinstated in this period. This is a case where an employee who was validly



65 – it’s an SCA, not an appeal) Salas v. Aboitiz: Can the award of backwages in illegal dismissal be limited even if there is a finding there is no just cause for dismissal? o Yes. AN exception to the general rule is where the EE is not

dismissed can still recover backwages. Can the NLRC issue a writ of execution after reversing the

entirely faultless, but the fault is not sufficient to justify

LA?

termination. In such case, the EE’s fault cannot be condoned,

40

much less tolerated. The award of backwages in favor of the



EE can be limited and the period for such award shall start from the date of the NLRC’s promulgation of its decision, o

instead of the termination. Moreno v. San Sebastian College: A case where all the backwages were removed, and the EE was just reinstated because the EE was also 

at fault. (Same principle) Lansangan v. Amkor: In an illegal dismissal case, the LA dismissed



the complaint for illegal dismissal as he found the dismissed employee guilty of dishonesty as a form of serious misconduct and fraud. The Arbiter, however, ordered the reinstatement of the EE without ER appealed the decision to the NLRC. The EE claims that he is

o

entitled to reinstatement pending appeal. Is he? o No. The provision in Article 223 says that the provisional declaration. The reinstatement aspect in 223 is for a decision

o

that states the dismissal is illegal. In this case, the Arbiter did not find the dismissal illegal but merely ordered reinstatement



for compassionate relief. Resignation, temporary lay-off, retirement



What is the general rule for voluntary resignation? o EE can terminate ER-EE relationship without just cause by o o

service 1 month notice What if there is no notice given?  EE can be liable for damages When is notice not required?  1. Serious insult by ER/representative on honor or 

of

crime

or

offense

by

ER/representative to EE or family members  4. Analogous causes The EE submitted an irrevocable resignation. Can it still

is in military service, or analogous causes How long can it last?  Up to 6 months After which?  ER must either reinstate the EE or retrench. If floating status lasts beyond 6 months, it can be deemed

remedy is given to an EE who secures an illegal dismissal



Commission

be withdrawn?  Yes, notwithstanding the appellation. o What if the ER already accepted the resignation?  The withdrawal needs the ER’s consent. What is the rule on “floating status”? o If the employer temporarily suspends business or the employee o

backwages “as a measure of equitable and compassionate relief.” The

3.

business or cessation of military service What is the rule on mandatory retirement? o Follow any provision in the CBA or retirement plan.

o

o

41

The

benefits must not be below those in the LC. What if there is no CBA provision or retirement plan? o An employee who has reached at least 60 years of age and o

person of employee 2. Inhuman and unbearable treatment

constructive dismissal. How does an EE return to work?  Give notice to ER within 1 month from resumption of

has served at least 5 years may retire. What is the mandatory retirement age?  65 years old. What does the employee receive?  ½ month salary for every year of service (6 months fraction is one year) What is “1/2 month salary”?  15 days salary +  1/12 of 13th month pay +





 Cash equivalent of not more than 5 days of SIL What is the change in age for mining workers? o Retirement is at least 50 years o Mandatory retirement age is 60 years Who are exempted from complying with retirement pay provisions? o Establishments employing not more than 10 employees or

income of at least P1000 4. individual farmers and

workers

Voluntary

fishermen 1. Filipinos recruited by

coverage

foreign-based employers for employment abroad 2. Employee separated from

SOCIAL LEGISLATION

employment, to maintain right SSS

GSIS

Coverage, in

1. Employer – any natural or

1. Employer – the national

general

juridical person with any

government, subdivisions,

business that hires services

including GOCCs and

of another person

financial institutions with

to full benefits 3. self-employed, who realized no income for a certain month

original charters

4. spouses who devote full

2. Employee – person who performs services for an

2. Employee – whether

employer, receives

elected or appointed

time to managing household and family

compensation, and there’s an

5. foreign governments or

ER-EE relationship

institutions hiring Filipinos abroad may enter into an

3. Self-employed –

agreement with the

Compulsory

considered ER and EE 1. All employees not over 60

All employees irrespective

coverage

years old and their employers

of employment status

Philippines to include their workers in SSS – EXCEPT if they are already covered by the civil service retirement

2. self-employed persons Not covered

3. domestic helpers not over

system there 1. employment is purely casual, and not for purpose of

60 years old with monthly

42

1. AFP members

occupation or business of

2. PNP members

child

2. Not gainfully employed

2. not gainfully employed

employer (ex. hiring a tubero) 3. contractual employees

3. not reached 21 years of

3. not reached 18 years of

2. service in an alien vessel,

with no ER-EE relationship

age

age

when the vessel is outside the

with agency 4. or incapable of supporting

4. or incapable of

self physically or mentally

supporting self physically

1. Monthly pension

or mentally ALL MEMBERS

2. Dependents pension

1. Life insurance

3. Retirement

2. Retirement

4. Death

3. Disability

5. Permanent disability

4. Survivorship

Philippines 4. members of judiciary 3. covered by GSIS

and constitutional Benefits

commissions – (just 4. services by temporary

covered by life insurance)

employees and others excluded by SSS regulation 5. See #5 above: default rule Beneficiaries

is exclusion 1. Primary: a) dependent

1. Primary: a) dependent

spouse until remarriage AND

spouse until remarriage

b) dependent children

AND b) dependent

(regardless of status)

children

6. Funeral

5. Separation

2. Secondary: a) dependent

2. Secondary: a)

7. Sickness

6. Unemployment

parents, b) in default of

dependent parents AND b)

others, any other person

legitimate descendants

8. Maternity (first four

JUDICIARY

designated as beneficiary

(subject to limitations and

deliveries – see maternity

qualifications on

leave)

3. As to death benefits, if

1. Life insurance (only)

dependent children)

there are none qualified

9. Loan grant

under the act, follow intestate Who is a

succession rules 1. unmarried

N.B. See bolded items for

1. unmarried

dependent

Base

43

unusual/unique enumerations All actual remuneration,

Basic pay or salary

compensatio

including COLA, cash value

excluding per diems,

n which is

of remuneration not paid in

bonuses, OT pay,

1. SS Commission decides

hearing officer

basis of

cash except remuneration in

honoraria, allowances, all

within 20 days of receipt of

2. Rule 43 to CA

contributions

excess of maximum salary

received in addition to

evidence

3. Rule 45 to SC

credit Non-work connected

basic pay Disability must not be due

2. Rule 43 to CA

When can there be a

disability, sickness, maternity,

to own grave misconduct,

Prescriptive

valid claim

death, old age, and other

habitual intoxication, or

period for

contingency

contingencies

willful intention to kill self

claims for

EXCEPT: life and

dispute

retirement benefits

Effects of

1. contribution to account

or another person Separated member

separation

ceases

continues to be a member

from employment

evidence and findings of

3. Rule 45 to SC 20 years from delinquency

settlement Funding

1.

and shall be entitled to 2. obligation to contribute also

benefits he is qualified to

ceases at the end of the

in the event of any

month of separation

contingency

4 years from date of

Employer’s contributions

Exemption

2. Employee’s/member’s contributions All property of SSS and GSIS are exempt from taxes, all

from tax,

benefits paid by SSS or GSIS are exempt from taxes, fees,

legal process,

charges, duties, etc.

lien

3. credited with all contributions paid on his behalf and entitled to benefits

SSS LAW

under the SSS law



Does the existence of a welfare plan funded solely by the employer exempt its employees from compulsory SSS coverage? o No, even if the benefits are better than those under the SSS

4. may continue to pay contributions to maintain right Dispute

to full benefits Where disputes arise from:

“Any dispute arising from

settlement

1. coverage

this Act and other laws

2. benefits

administered by GSIS”

o

employer only pays to the SSS what is required of his, and then 

3. contributions 4. penalties

1. GSIS decides within 30

5. any related matters

days from receipt of

Law. Remedy: integrate private plan with the SSS so that the

44

continue contributing to the private plan the excess. Does “employer” cover even religious organizations not for profit? o Yes. It is comprehensive enough to cover them.



A factory hires 10 carpenters to repair the roof of its factory which 

was destroyed by a typhoon. Are the carpenters subject to compulsory coverage under SSS Law? o No. The employment was “purely casual” (#1 in the excluded 

group) When does compulsory coverage of an employer, employee, and



self-employed person take effect? o 1. Employer: first day of operation o 2. Employee: day of employment o 3. Self-employed: upon registration with SSS What is the effect of an employee’s separation of employment

o Yes. The injury need not be work-connected. What is the sickness benefit? o Daily allowance of 90% of daily salary given to covered o

employee who becomes sick What are the prerequisites?  1. Payment of at least 3 monthly contributions in the 12 month period immediately preceding the semester 

days in a hospital or elsewhere with the

upon his membership in the SSS? o His employer’s contribution and that employee’s obligation to



will be credited with all contributions already paid and entitled to benefits under the law. But he may continue paying the total contributions to maintain



his right to full benefit. N.B. this is the “once a member, always 

o

a member” rule. What if X was fired without just cause, and his dismissal affected him so much that after 2 months, he suffered a stroke that led to paralysis. Can he get disability benefits? o Yes. Once a member, always a member – even if he has



o

stopped paying contributions and has stopped working. What if a self-employed member realizes no income in a given



days of start of confinement, except:  If confined in a hospital  Or injured in the work premises 4. Exhaustion of sick leaves of absence with pay to

the credit of the employee Limits?  No more than 120 days in one calendar year  No more than 240 days for the same confinement  No carry-over of unused days How does it work?  ER pays the allowance every regular payday or on the 

month? o Not required to pay contributions that month but he can still 

Commissioner’s approval 3. Notice of fact of sickness by the employee to the employer (or SSS if unemployed) within 5 calendar

pay contribution shall cease at the end of that month, but he

o

of sickness 2. Sickness or injury and confinement for more than 3

15th-30th of each month Subject to 100% reimbursement by SSS upon receipt of proof of payment, provided the ER informed the SSS within 5 days after receipt of notification from the

continue paying, just like a separated member could. What is the employer’s duty? o Give contributions as well, and may not deduct from the

EE 

Failure to notify within this period: ER reimbursed only for each day of confinement

compensation of the employee such employer’s contribution. X, a sash factory worker, got stabbed in a movie house. Can he

starting from the 10th calendar day

recover benefits under SSS?

45

immediately preceding the date of notification 







to the SSS When will there be no reimbursement?  If clam is made after 1 year from date of

o

before he turns 65 2. Covered member who is 60 years old and separated from employment but not qualified above – lump sum benefit to his

confinement What disabilities are “permanent total”? o 1. Complete loss of sight in both eyes o 2. Loss of two limbs at or above the ankle or wrists o 3. Permanent complete paralysis of two limbs o 4. Brain injury resulting to incurable imbecility or insanity o 5. Cases determined and approved by the SSS What are the permanent disability benefits? o Permanent total disability of member who has paid at least 36

total contributions paid by him and on his behalf  As long as he does not choose to continue paying 

contributions What are the death benefits? o Death of a member who has paid at least 36 monthly contributions prior to semester of death: primary beneficiaries entitled to monthly pension  If no primary beneficiaries – secondary beneficiaries entitled to lump sum benefit of 36 times the monthly

monthly contributions prior to the semester of disability – o

entitled to monthly pension What if he has not paid the 36 monthly contributions?  Entitled to lump sum benefit equal to the monthly



o

times 12, whichever is higher What is the rule if one has received a lump sum benefit

contributions or times 12, whichever is higher Who are the primary beneficiaries?  Dependent spouse until remarriage, dependent legitimate and illegitimate children  What is a “dependent spouse”? o Not just under a valid marriage but

and is re-employed or resumes self-employment not earlier than 1 year from the date of disability?  Again subject to compulsory coverage and is 

pension If not yet paid the 36 month contributions – lump sum benefit to monthly pension times number of monthly

pension times number of monthly contributions paid or o

Monthly pension suspended if a person is reemployed

also dependent for support from

considered a new member What are the retirement benefits? o 1. One who has paid at least 20 monthly contributions prior to

o

the semester of retirement and has 1) reached 60 years and is separated from employment/no longer self-employed, or 2)

o

reached 65 years old – entitled to monthly pension as long as

him Who are the secondary beneficiaries?  Dependent parents or any other person designated by the covered employee as beneficiary X, a bachelor, died after being an SSS member for 10 years. He designated his girlfriend Y as beneficiary. Z, his

he lives  Can receive first 18 monthly pensions in lump sum

brother, is claiming the monthly pension. B, C, D, his children who are already married, also claimed it. Who

discounted at a preferential rate

gets it?

46



Y. Z is not a primary beneficiary. B, C, and D are no

o

longer dependent children. So Y is a valid secondary o

beneficiary. What if a permanently disabled pensioner or retiree pensioner dies?  The beneficiaries receive monthly pension  But if he has no primary beneficiaries and he dies



within 60 months from start of monthly pension, secondary beneficiaries receive balance of the 5-year o

guaranteed period as lump sum benefit What if no beneficiary qualifies for entitled to the death



benefits under SSS Law?  Paid to the legal heirs of the deceased according to 

 



law of succession What are funeral benefits? o Funeral grant equivalent to 12K paid in cash or in kind Maternity leave – see Labor Standards section What are the loans that may be extended by the SSS to its



regards benefits, contributions, penalties, etc.? o The SSS Commission. o Where to appeal?  Court of Appeals, Rule 43  If purely questions of law, SC Rule 45 Are SSS benefits transferable? o No, except when physically unable to collect personally the benefits What is the prescriptive period against an ER? o Within 20 years from the time the delinquency (ex. failure to

o

SSS, or when the benefit accrues. It does not commence when the obligation to pay premiums accrues.

GSIS LAW 

What is the effect of separation of the EE from the ER? o A member separated from service shall continue to be a member and is entitled to whatever benefits he has qualified to

a Filipino beneficiary residing in the Philippines or not



the employee would have been entitled to  For pension – equivalent to 5 years monthly pension o 2. Pay corresponding unremitted contributions and penalties o 3. Criminal liability for failure to comply with SSS Law Who has jurisdiction over disputes arising under SSS Law as

turn-over contributions) is known, or assessment made by the

members? o 1. Salary loan o 2. Educational loan o 3. Housing loan o 4. Community hospital loan Who are disqualified beneficiaries under the SSS Law? o Foreign national of a country which does not extend benefits to

o

1. Pay to the SSS damages equivalent to the benefits which

in the event of compensable contingencies under the GSIS

recognized by the Philippines But in the best interest of the SSS, the Commission may direct



payments without regard to nationality or country of residence What if the covered employee dies, or retires, becomes

Law Differentiate permanent total disability from permanent partial disability: o In the latter, the member can still pursue a gainful occupation

permanently disabled or sick without the ER reporting about him to the SSS or giving contributions on his behalf?



notwithstanding the permanent disability What are the conditions for entitlement to permanent disability benefits?

47

o 



Must not be due to grave misconduct, notorious negligence,

o

habitual intoxication, or willful intent to kill another or himself When is retirement compulsory? o At least 65 years old with at least 15 years service o If he has less than 15 years of service, he shall be allowed to

1. Compulsory – all employees (except AFP, PNP) compulsorily covered with life insurance which takes effect as follows:  1. Upon date of employment for those who are hired

continue until he completes the 15 years What is the unemployment or involuntary separation benefit? o Monthly cash payments of 50% of average monthly salary paid



of revised GSIS Law – insurance deemed renewed on the day following the maturity or expiration of their

to permanent employee who is involuntarily separated from service due to abolition of office provided he has paid o





contributions at least 1 year prior to separation How long will he receive these for?  Depending on how long he has made contributions,

o

for him or his dependents  Paid to the GSIS  GSIS can also formulate group insurance coverage

benefit? o The GSIS What is the basis of computation of the retirement benefits of a



the same contingency? o The member can choose either the GSIS plan or the other plan. If the other plan provides benefits less than that of the

basic monthly) and dependent’s pension (not exceeding 50% of basic monthly) Who are the beneficiaries?  Primary – legal dependent spouse until she remarries  

for its employees Can a GSIS member enjoy the benefits provided for in the Revised GSIS Act simultaneously with other benefits under other laws for

(excluding OT pay, bonuses, per diems, etc.) Who is entitled to survivorship benefits? o Beneficiaries – entitled to basic survivorship pension (50% of

o

effectivity of revised GSIS Law 2. Optional – member may apply for insurance or pre-need memorial plans, and other such plans as designed by the GSIS

government employee? o Based on highest salary rate actually received by the employee 

insurance 3. Those without life insurance: take effect after

coverage embracing life, health, hospitalization, education,

maximum is 6 months (for 11-15 years) Which body has original and exclusive jurisdiction to determine whether a member is qualified or not to avail of old-age pension



after effectivity of revised GSIS Law 2. Those whose insurance will mature after effectivity

and dependent children Secondary – dependent parents and legitimate

descendants What are the classes of life insurance coverage under the GSIS Law?

48



GSIS law, the GSIS will only pay the difference. Which body has jurisdiction over disputes under the GSIS Act? o GSIS has original and exclusive jurisdiction to settle the



disputes arising from this Act What is the prescriptive period for claims? o 4 years from date of contingency, except for life and retirement



benefits How are decisions of the GSIS appealed? o To the CA, under Rule 43

LIMITED PORTABILITY LAW (RA 7699) 



SOCIAL LEGISLATION JURISPRUDENCE

To whom does LPL apply? o For those who transfer employment from one sector (i.e.

SOCIAL SECURITY LAW Coverage

private/public) into another What situation is covered? o When the person would not qualify for particular benefits

o

Coverage is not based on a bilateral, consensual agreement between

unless the contributions/services for both SSS and GSIS are

employer and employee.

totalized, then it shall be done What if there are overlapping periods of membership?  Only credited once

to police power of the State. (Philippine Blooming Mills v. SSS)

COVERAGE of employers and employees. It is a legal imposition, pursuant

Reporting

EMPLOYEE’S COMPENSATION ACT 

It is the duty of the employer to report immediately to SSS the name, age, civil status, occupation, salary, and dependents of a deceased worker. This

What is the coverage of ECA? o 1. Every employer o 2. Every employee not over 60 years old o 3. Any employee over 60 years of age if he had been paying

duty to report is not affected if the employee did not want to make contributions. If the employer failed to report death, sickness, or disability, the employer is liable to the amount equivalent of what the employee should

contributions prior to age 60 and has not been compulsorily o 

have received. (Poblete Construction v. Asiain)

retired 4. Employee coverable by both GSIS and SSS are covered by

Funding

both Grounds for compensability? o For injury and resulting disability or death: must be the result of o

Contributions are not in the nature of taxes, but are intended to protect the employees in case of disability, sickness, old age, and death. The funds

accident arising out of and in the course of employment For sickness and resulting disability or death: must be result of

belong to the members, and not to the State, which just hold the money in trust. (CMS Estate v. SSS)

occupational disease  Must be listed under Annex of the IR dealing with  

R.A. 1161 (SSS) requires COMPULSORY

Effect of non-remittance

occupational diseases Must meet conditions stated therein Otherwise, what is allowed?  Show proof that the risk of contracting the

If the employer fails to pay the contributions, the State may collect them in the same manner as unpaid taxes. Non remittance by employers should not prejudice covered employees. (Santiago v. CA)

disease was increased by the working

Benefits

conditions

49

The benefits under the SSS are not part of the estate of the covered

Compensability formula

members. It is non transferable, and exempted from tax, legal processes,

Grounds for compensability:

and lien. (SSS v. Davao)

Injury, disability, or death:

Dispute settlement Any dispute as to coverage, benefits, contributions, and penalties are cognizable by the SSS. But the SSS cannot adjudicate criminal complaints – the regular courts should. (De Jesus v. CA) ECSIF (EMPLOYEE’S COMPENSATION AND STATE INSURANCE FUND)

Employee must have been injured at place where work requires him to

 

be Employee must have been performing official functions If injury is sustained elsewhere, it must be based on order of employer

Sickness and resulting disability or death:

Concept

 

A compensable sickness means: a) any illness accepted as an occupational disease by the Employees’ Compensation Commission, or b) any illness

Occupational disease listed in Annex “A” of rules Or risk of contracting disease increased by working conditions

Use rules on proximate cause. All medical consequences and sequels that

caused by employment, with proof that the working conditions increased the

flow from primary injury are compensable. (Belarmino v. ECC)

risk.

Need not actually be in place of employment. If the worker was acting within

Before, there was presumption of compensability. Now, under the Labor

the purview of his employment, performing an act reasonably necessary or

Code, the law has abandoned this, and to recover compensation for

incidental thereto, the injury sustained is compensable. (Ex. teacher tasked

sickness/disability/death, one must prove either one of the two requisites

to work at home) (Lopez v. ECC)

above. (Sulit v. Employees’ Compensation Commission)

Disability

Interpretation of the Law

There must be loss or impairment of a physical or mental function, resulting

Under social justice policy, there must be liberal and sympathetic approach

from injury arising out of, or in the course of employment, a disease listed as

to legitimate appeals of disabled public servants. (Diopenes v. GSIS)

occupational by the Commission, or working conditions increasing risk of disease. (Hatta Halale v. ECC)

Even if the presumption of compensability was abandoned, still interpret the law in favor of the working man, especially if there is some basis in the facts for inferring a work connection to the cause of death.



Sickness

(Santos v.

See above – must either prove it is in the list of occupational diseases, or

Employees Compensation Commission)

from work-related conditions increasing risk of disease

50

Official functions

o

Place hardly matters, when the task the worker was doing was work-

o

connected. (Enao v. ECC) On vacation

Anyone, whether for profit or not, and regardless of nature (commercial, industrial, charitable, educational, etc.) Exceptions:  1. managerial employees  Those with power to lay down management policies and execute them; have power to

While days when an employee is on vacation is part of his employment

 

period, not everything which transpires during vacation are work-connected and compensable. (De la Rea v. ECC)

hire, suspend, transfer, layoff, etc. employees 2. supervisory – only by themselves 3. Confidential employees  Assist or act in confidential capacity with regard to persons who formulate, determine,

Military personnel

effectuate management policies, esp. those

A soldier on active duty status is really on 24 hours a day official duty, and is



subject to military discipline and military law 24 hours a day. He is subject to the call and orders of his superiors at all times, 7 days a week, except when on vacation leave. Thus, a soldier going to another soldier’s house is still

o

highly confidential records Who are excluded by EO 180 (guidelines for exercise of

o

right to organize for government employees)?  1. AFP members  2. Police officers, policemen  3. Firemen  4. Jail guards What about ambulant, intermittent, itinerant, rural, of self-

doing official functions. (Hinoguin v. ECC) Coming and going rule Injury sustained by the employee while on his way to or from his place of work, and which is otherwise compensable, is deemed to have arisen out of

connected to LR Meaning, they are privy to sensitive and

employed workers, who do not have definite employers?  They may still form labor organizations for the

and in the course of his employment. The death or injury is compensable whether is arose from accident or from an intentional assault. (Lentejas v.

purpose of mutual aid and protection (but obviously,

ECC) 

LABOR RELATIONS

they cannot CB and perform concerted activities) What is a union? o An organization that exists in whole or in part for collective bargaining or for dealing with the employer concerning terms

RIGHT TO SELF-ORGANIZATION  

Who can join a union?

51

and conditions of employment How do you form a union? o 1. Identify the bargaining unit  What is a bargaining unit?









A group of employees sharing mutual



interests within a given ER unit Less/all of entire body of employees in the

20%? Why only make it easier for chartered locals?  You privilege chartered locals. You want unions that

ER unit, or according occupational or

are attached to parent federations, which already

o

geographical grouping within the unit How many bargaining units can there be?  The law fixes no minimum or maximum.



national level (there are industry unions, ex. Banking unions;

one CBU. The union is the representative, and the represented group is the CBU. What is the Globe doctrine?  If units in one industry cannot be determined,



while there are national federation from different industries) An independent union is not part of a federation. T or F? o False. An independent union can join a federation, after

the employees can decide how to organize



independently organizing itself. A chartered local is not an affiliate. T or F? o True, because it has to be created by the federation.

themselves into units.  Best way is referendum/plebiscite What is the “community of interests” rule?  Employees in a BU must have commonality



perform 2. Register the union –  20% of members of bargaining unit  Constitution and by-laws If you do not have 20% of the membership of the bargaining unit,



you cannot organize. T or F? o False. You can still have a union, although not a legitimate labor organization. You can still receive a charter from a federal union – you do not



need to meet the 20% requirement to become a chartered o

See

below for the types of affiliates. Can a chartered local register as an independent union while within the federation? o Yes. It becomes an affiliate. o There are two types of affiliates:  1. Independent first, then joined federation.  2. Part of federation, then became independent but

o

o

have systems and support in place. What is a federation? o An umbrella organization – a group of local unions forming the

There can be several unions coming from

of CB interests as evidenced by work they



But why is an independent union still required to have the

did not leave the union. What can a federation do versus other types? o ONLY a federation can create another labor organization. o An independent union cannot create another union.

chartered local cannot, as well. o N.B. A Trade union is not a legitimate labor organization. What’s the difference between procedure for acquisition of legal personality of an independent union and a chartered local? o Independent union:  Obtain a certificate of registration  What do you have to submit?  1. P50 fee

local. What is the significance of removing the 20% requirement for chartered locals?  Consistent with policy that makes it easier to selforganize.

52

A



2. Names of officers, addresses, LO address,

o

minutes of organizational meetings, list of 

workers who participated in those meetings 3. Names of members comprising at least



20% of bargaining unit 4. If existing for at least one year, annual



financial reports 5. Four copies of constitution and by-laws,







not

encountering

an

entirely

new

They do not possess all the rights of legitimate labor organizations



(which

a

chartered

local

becomes

after

submission of documents):  Ex. Cannot conduct a strike All chartered locals, upon filing for petition for certification election have limited legal personality. T or F? o False. Limited legal personality is an option that can be exercised by a chartered local.

Meaning, you can either

legal

acquire full legal personality first before filing for certification

personality vest upon issuance of the certificate?  Just upon the moment of issuance of charter

election (by submitting the documents: a) list of officers, b)



certificate. No need for submission or filing. Why is the personality limited?  Personality is only to apply for certification



election. What documents must be submitted?  1. Chapter’s officers, addresses, principal



are

existing union. How do you illustrate “limited legal personality” of a chartered local? o

who participated in it Chartered local:  Issuance of charter certificate – has limited legal personality (to apply for certification election) Do you need submission, or does

you

organization; the chartered local is merely the creature of an

minutes of adoption/ratification, members o

Because

constitution and by-laws); or you can do it the “normal way” and 

obtain limited legal personality first. In the amendment introduced by RA 9481, R&F and supervisors can be part of the same union. T or F? o False. Only same federation, not same union. o RA 9481 removed the prohibition against the joining together of supervisory and R&F unions in a federation.

office of the chapter  2. Constitution, by-laws Upon submission, what happens?  You obtain all rights and privileges of a

Atlas.

It overturned

This is not in Art. 245, but merely a jurisprudential

prohibition. So they can now mix in the same federation.  N.B. De La Salle qualified the Atlas doctrine by providing

legitimate labor organization. What’s the reason behind the difference in requirements? o Note that you need to wait for the certificate for independent



union; while for a chartered local, you just need to submit.



(IMPT!)

qualifications

professional

relationship between supervisors and R&F, etc.). So when Atlas was killed, the De La Salle

qualifications also died. Did RA 9481 allow comingling between R&F and supervisors? o Yes. Allow within the same federation, without qualifications set in law before.

53

(direct

the

o

But no comingling within union or chartered local, because this

o

is prohibited by the Labor Code. What is the effect of this comingling?  Those not supposed to be part of the union are 

o

directly attack it. Is this an absolute rule?  No. Wait for this in the part on certification elections. What is the nature of the right to disaffiliate? o It is part of the constitutional guarantee of freedom of o



The Labor Code only

association. To disaffiliate is a right, but to observe terms of

provides three grounds for cancellation of a union’s



registration – comingling is not one of these. N.B. Art 245 speaks of eligibility of employees to

o

become union members. Even before RA 9481, the SC clarified that because the LC speaks of “eligibility

o

of employees” and not “legitimacy of unions.” So it should not adversely impact the union, just the o

employees. What are these three grounds?  1. Misrepresentation, false statement, or fraud in

o

amendments to such; minutes of ratification, or list of



members taking part in the ratification 2. Misrepresentation, false statement, or fraud in



to form a local/independent union?  Only during 60 day freedom period What is the exception?  Shift of allegiance of majority  But the existing CBA is still valid until it expires What is the substitutionary doctrine?  Precisely this. Even with a shift in representation, the

ER can negotiate to shorten the CBA’s term. What is a trade union? o It is the “third level.” It is a group of federations. This is why is it not a legitimate labor organization. It’s just a grouping of

election of officers, minutes of election, and list of



affiliation is an obligation. When can a labor union disaffiliate from the mother union

CBA still exists and binds. But the new agent and the

adoption/ratification of constitution or by-laws or



You cannot attack the validity of an organization

collaterally in a procedure for certification election. You have to

deemed to be not included or part of the union. BUT it is not a ground for cancellation of the registration of the union.

No.

voters 3. Voluntary cancellation  2/3 of general membership  In a meeting duly called for that purpose  Submitted by labor organization’s board,



different federations. If a chartered local disaffiliates, does it lose its legal personality? o Yes. Because its existence is dependent on the federation. The legal personality is “tacked” on the point of creation, which is the federation issuing a charter certificate. (Consistent with

attested by president of org Can an opposition be filed by another union or party, alleging any



policy of RA 9481 on encouraging membership in federations) What if a petition for cancellation is filed against the federation and the federation’s personality is indeed cancelled? o It also erases the legal personality of all the chartered locals. o OLD EXCEPTION (does not apply anymore… this is missing in

of the grounds for cancellation against another union during the filing for certification election?

the new DO): if there is an existing CBA and the chartered local

54

is the administrator of the CBA, the chartered local will not exist 



only until after the CBA expires. How long does the BLR have to act on an application for registration? o 10 days. o Upon receipt of denial of registration, how long and to

o 

whom must appeal be made?  Within 10 days of receipt of notice of denial of director, and then to the CA What if it is a federation that is registering?  Since it operates in more than one region, it receives



its denial from the BLR director, so it appeals to the 

What

are

DOLE secretary, and then to the CA. the additional requirements for registration

o

of

the

companies

where

of 

the

locals/chapters operate, and list of members BARGAINING AGENT AND CERTIFICATION ELECTION 



File verified petition questioning majority status of incumbent with the Regional Office, within 60 day

 o

who

formulate,

determine,

and

effectuate

management policies in labor relations o Both requisites must concur What is a bargaining unit? o Determined by the applicant bargaining agent. o A group of employees sharing mutual interests within a given employer unit. Organized by

either

geographical

grouping,

specific

occupational grouping, or by manner of payment At what point should you determine the bargaining unit? o Early stage of organization phase – because even the name of o

the LO matters to determine the BU Petition for certification elections (PCE) – only those part of the

o

BU will vote CBA negotiations – only those covered by the BU benefit from the provisions of the CBA, even those not members of the

How do you start a certification election? o For an organized establishment, where there is an incumbent EBR – 

of the 5th year of the current CBA What are confidential employees? o Those who 1) assist or act in a confidential capacity, 2) to

o

federations/national unions? o Proof of affiliation of at least 10 locals/chapters, which must all be EBRs there Names and addresses

of previous CE Organized – only within 60 day freedom period before the end

persons

registration by the regional director, to the BLR o

When can a certification election be held? o Unorganized establishment – anytime, except within 12 months



freedom period before the expiration of the CBA Must be supported by signatures of 25% of the

union How do you appeal from the decision of the med-arbiter? o Appeal to the DOLE secretary o Then to the CA, under rule 65 o Then to the SC, under rule 45 What is a forced intervenor? o In a petition for certification election, where an LLO is contesting the incumbent, the incumbent becomes a forced

employees in the bargaining unit For unorganized establishment –  No 25% signature requirement  Petition need not be verified



55

intervenor to the elections. What are the three types of certification? o 1. Voluntary recognition

o o

2. Certification election 3. Consent election

o

Voluntary recognition 

What is voluntary recognition? o In an enterprise being unionized for the first time, and where there is only one LLO, the employer may voluntarily recognize o



o

the EBR status of that LLO. Within 30 days of recognition, submit notice of voluntary

recognition to the Regional Office What are the contents of the notice? o 1. The fact of voluntary recognition (joint statement) o 2. Certificate of posting of joint statement for 15 consecutive



 



dates in two conspicuous places in the establishment 3. Approximate number of employees in the BU  Majority must support the voluntary recognition o 4. Statement that it is the only LLO in the BU What if the notice is insufficient? o Notify the union of it and advise compliance with what is

o

needed What if the requirements are incomplete? o Return notice, without prejudice to re-submission What are the effects of voluntary recognition? o 1 year certification bar o LLO becomes EBR

Certification election 

What is the role of the employer? o It is a mere bystander. It is just notified or informed of petitions.

o

It just submits list of EEs during pre-election conference should 

granting or denying petition N.B. no decision can come out during freedom period (obviously, you have to wait for the others to file too, if

o



 Within 10 days from receipt of petition What does the MA determine?  1. Bargaining unit  2. Contending unions  3. Possibility of consent elections  4. Existence of bars  5. Other relevant matters What action can the MA take?  Within 10 days of last hearing, MA issues formal order

the Med-Arbiter have the petition prosper. Preliminary conference o When is the preliminary conference held?

10 days the certified list of EEs in the BU When can a petition for CE be denied?  1. Petitioner union does not appear in two successive 

conferences called by MA (and it was notified) 2. Petitioner not listed in the DOLE’s registry of LLOs



or its legal personality has been revoked with finality 3. Failure of chapter or national union to submit a duly



issued charter prior to filing petition of CE 4. Absence of ER-EE relationship between the

   

members of the union and the establishment 5. Contract bar 6. Certification year bar 7. Negotiation/Deadlock bar 8. For organized establishment, failure to submit 25%

support requirement What are not grounds to deny the petition?  1. Validity of petitioning union’s  

56

there are) The order directs the ER and unions to submit within

registration 2. Legal personality as LO 3. Validity of registration

certificate

of

 

4. Execution of CBA N.B. these must be heard and resolved by the



Regional Director in an independent petition N.B. the difference between these grounds and the





one above (#2) is that there, the LLO is not listed in list. Here, there must be hearing. When is appeal allowed?  NOT allowed to appeal order granting CE in  

 

unorganized establishments For others – appealable to DOLE Secretary within 10

days from receipt Pre-election Conference (PEC) o What are the matters set in PEC?  1. Date, time, place of election  Not later than 45 days from first PEC  Regular working day  In work premises  2. List of eligible voters  3. Mechanics of election o What is the effect of failure to appear in PEC?  Waiver of objections or questions as to agreements



o

during pre-election?  Yes. Who can challenge?  Authorized representative of any of the  When?  Before deposited in ballot box What grounds?  1. No ER-EE relationship  2. Not member of the BU Normally, what’s the status of the challenged names?  They can vote. But the Med-Arbiter decides 

after certification election. But how can you exclude them? o You segregate their votes,

in

separate envelopes, because their 

votes are otherwise anonymous. Election proceedings o If there are 500 voters, how many must vote for there to be

reached there.  N.B. this is unlike Preliminary Conference,

o

Can there be removal

contending unions Employer

the DOLE registry, so it’s just a matter of checking the o

But what if they agree?

o

where two absences kills the petition  Still given notice of subsequent PECs and can attend Includes matters such as exclusion and inclusion of voters  Ex. when there is no employer-employee relationship;

valid elections?  At least 251. What if there is a failure of election?  This happens when there is 50% or less valid votes 

from the voters in the bargaining unit. You DON’T have to file another petition. You can just request through a motion to repeat the conduct of a

when he is not a member of the bargaining unit How do you do undergo inclusion/exclusion?  Report to Med-Arbiter, who will note it in the minutes.

o

Undergo with normal conduct of elections. But actual

certification election (6 months, according to the DO) What are you voting on?  Either you vote for a union (“Union A” or “Union B”), or vote for “no union.”

exclusion/inclusion only happens after the elections.

57

 o

If there is just one union, it’s “yes” or “no” in favor of

o o o o

Union X. How do you determine the winner?  Get the majority of those who actually voted with valid

votes. What do you mean “valid votes”?  Those which are not spoiled ballots. For instance, of the 500 voters, 400 voted. 390 are valid votes. o Union A – 150 o Union B – 200 o No Union – 40 o Spoiled – 10 o …Is there a winning Union?  Yes. Union B got majority of 390 votes (at least 196

o







votes (200 out of 400). (You count the spoiled ballots in the total, but you don’t care about what their o o

votes). For instance, of the 500 voters, 400 voted. 390 are valid votes. o Union A – 150 o Union B – 150 o No Union – 90 o Spoiled – 10 o …Is there a winning Union?  No. There will be a run-off election. o What is your basis for determining whether there should



be a union, even if there is no majority?  At least 50% of ALL votes, including spoiled ballots, 



Union B – 100 No Union – 190 Spoiled – 10 …Is there a winner?  No, no choice got the magic number of 196. Will there be a run-off?  Yes, because the two unions got 50% of ALL the

ONLY unions can participate in run off elections. For instance, of the 500 voters, 400 voted. 390 are valid votes. o Union A – 100 o Union B – 95 o No Union – 195 o Spoiled – 10 o …Is there a winner?  No. Nobody got a majority. o Is there a run-off election?  No, because the two unions did not get at least 50% o

voted for unions, For instance, of the 500 voters, 400 voted. 390 are valid votes. o Union A – 90 o Union B – 100 o No Union – 200 o Spoiled – 10 o …Is there a winner?  Yes. “No Union” won. For instance, of the 500 voters, 400 voted. 390 are valid votes. o Union A – 100

o





58

contents are [G’s question]) What happens?  “No union” choice will be removed. N.B. In this situation, even if “no union” got most of the votes,

of ALL the votes (200 out of 400). Is there a valid election?  Yes. What is the effect of this particular certification election?  The one-year bar applies. The certification election

has ended. It is as if “no union” won. NOTE: Different base figures based on example: o 500 (for total amount of voters – need 251 for valid elections) o 390 (for majority – need 196 which is 50%+1) o 400 (whether there will be a run-off elections – just 50%, not 50%+1) For instance, of the 500 voters, 400 voted.

o o o o o

be another petition for CE within 6 months

Union A – 100 Union B – 95 No Union – 195 CHALLENGED (not spoiled) – 10 …what happens here?  You put Challenged person’s X in one envelope and

o

put his/her name. You put Challenged person’s Y in o

o

another SEPARATE envelope and put the name. Do you open the segregated envelopes immediately after

arbitration, or has become the subject of a valid notice

elections. In this case, does it apply?  Yes, because there is no winner and any of those

o

particular). Also, if none of the 10 votes is for “no union” it can



run-off elections. N.B. When they are qualified as valid votes, 196 will

won the CE, through a one-year protection to give it a chance

not be the majority number, because the base number o



o

will increase. What is the reason why challenged ballots are treated this way? 

bars a subsequent CE There is no incumbent EBR. So there was a certification election (or consent election). o From the CE, you have 1 year bar. This protects the union that

also help the two unions reach 200 votes to enable 

of strike or lockout 4. Negotiation bar  Once negotiations are started within the 1st year, even if there is no CBA at the end of the 1-year period, it

challenged votes could lead to a winner (“no union” in 

period expires 3. Deadlock bar  No CE may be held if there is a pending bargaining deadlock which has been submitted to conciliation or

elections?  Only if it will materially affect the result of the o

(D.O. 40-03)  Bar applies too when “no union” wins 2. Contract bar  Wait for the 60-day freedom period before the 5 year

to negotiate with the employer as regards a CBA. After 1 year, the ideal situation is that there is CBA.

This

extends the 1 year period to a 5-year period.  There is a short window period (60 day freedom period before the expiration of the 5 year term of the

So you don’t unduly expose their votes to scrutiny if

there is no need to do so. Aside from the one-year bar from certification election, is there any

o

CBA) N.B. (very important) – If you don’t have a CBA and you are nearing the end of the first year, in the past, you need a

other bar for certification election? o 1. Certification election bar  - one year bar  N.B. if there is failure of election because

deadlock to bar subsequent CE. NOW, there is no more need for a CBA or a deadlock, because as long as you have started negotiations and you have sustained negotiations beyond the first year, you are still protected.

less than majority of CBU voted, there can

Consent Election

59





What is a consent election? o One where the contending unions voluntarily agree upon elections, with or without the intervention of the DOLE. o The result binds the parties. What are the two kinds of consent elections? o If Union A and B decide to have elections without participation





of DOLE, it has no effect of a valid CE. It only determines the o

majority. But if Union A and B agree to have elections, but involve the Med-Arbiter and the DOLE, then it has effect of valid CE.







What is the effect of consent election? o Will have the same effect as the conduct of a certification election if done under the supervision of DOLE (selecting an EBR). o Before DO 40, it is an internal contest which will not have the effect of choosing an EBR. What if there is no DOLE supervision: o Valid election o But will not gave effect of a CE o Unofficial election (thus, not a bar to CE) What is the difference between consent and certification election? o Consent election dispenses with the need for an order from the Med-Arbiter o Med-Arbiter will just note the fact in the minutes that the contending unions agreed to hold the consent elections.

COLLECTIVE BARGAINING 

What is collective bargaining? o Agreement between employer and employee as to terms of employment (benefits, conditions of work), and dispute





Union Dues and Agency fees 

What are agency fees? o Equivalent to union dues, but paid by non-members, because the union represents him too as part of the BU and accords benefits What are requisites for valid Special Assessments? o 1. Authorization by written resolution of majority of members at a general meeting for this purpose o 2. Secretary records minutes  Members present and votes cast  Purpose of special assessment and recipient thereof o 3. Individual written authorization for check-off, signed by the EE

How does the check-off system operate? o The employee’s pay is deducted at prescribed periods to pay for union fees, fines, or assessments o Must there be individual authorizations?  No. Deductions for union service fees are authorized by law.



60

settlement (ex. grievance machinery). What are the jurisdictional requirements for CB-ing? o 1. Status of majority representation of EE’s representative o 2. Proof of majority representation o 3. Demand to bargain given to ER How do you start collective bargaining? o Submission of the EBR to the employer of notice to collectively o

bargain, along with proposal Then the employer will submit a counterproposal within 10

o

days What if there is a pending petition for cancellation of union

registration?  It does not prevent the filing of petition for CB-ing. o When is it commenced?  During the certification period (12 months) What next?

o

They will negotiate (do not proceed to the NCMB immediately,

o

It can be fixed by the parties. It can be 20 years, whatever, but

o

subject to the five-year period. What happens after five years?  There is a freedom period (60-days before the end of

contrary to what the provision of law suggests!). You can meet several times, over a period, until you have discussed each o

provision. If you have exhausted all efforts, you will reach a point where



there can be no agreement or movement in the positions of the o



parties as to particular provisions. What is the procedure for CB under the code?  1. Serve proposal to other party  2. Reply by other party within 10 calendar days  3. Conference between parties  4. If not settled, NCMB intervenes upon request of

enjoining the parties from entering into CBA

parties or motu propio  conciliation meetings  Can issue subpoenas to parties What if the employer refuses to respond to the EBR’s proposal? o There is Unfair Labor Practice – violation of the duty to bargain

o

collectively:  1. It can be submitted to the Labor Arbiter.  2. Or alternatively, you can use it as a ground to file

o

the five years) to possibly hold another CE. When does contract bar rule not apply?  1. CBA not registered  2. CBA de-registered  3. CBA incomplete it itself  4. CBA does not foster industrial peace  5. CBA concluded in violation of order

until representation conflict is settled What happens before the end of the third year?  N.B. Use the term underlined to be precise.  You can renegotiate the economic provisions of the 

notice of strike  N.B. 1 and 2 are mutually exclusive What is the penalty for management for refusing to

CBA. How do you do the renegotiation?  The terms of the CBA will be reexamined.  Who will start it? o The union. You will not expect the o

bargain?  The proposal becomes the new CBA (Kiok Loy o

o 

employer to start it. The union submits a proposal for modification.

The

same

principle/penalty for management

doctrine) What are the four forms of “violation of duty to bargain”?  1. Failure or refusal to meet and convene  2. Evading mandatory subjects of bargaining  3. Bad faith in bargaining  4. Gross violation of CBA As a corollary, this duty also means respecting an existing

refusing to bargain will apply – the proposal becomes the new CBA if 

CBA, with exception to the 60 day freedom period What is the term of the CBA?

o

proposal? o Then the existing CBA will persist. Can the parties renegotiate on the first year? The second year? 

61

management refuses to respond. What if the union does not submit a

Yes, but only if the parties both agree.

o

 But on the third year, the law mandates bargaining. When is registration done?  Within 30 days from execution of the CBA, with the

o

provision only speaks of “expiration” so it must involve a new

Regional Office which issued the certificate of



registration (if single ER) or the BLR (if multiple 



employers in the CBA) Where is appeal done?  Regional office  BLR  BLR (multiple ERs)  Sec. of Labor Both within 10 days of denial

day after the end of the six month period. BUT there is no 



a gap (ex. 10 months). What happens? o There is a hold-over principle where the first CBA will be

years open. Or it can provide for wage increases in years four and five, but

o

subject to renegotiation. What is the period before the expiration of the CBA? o The 60 day period is for either party to notify to the other that it

meantime. But since there is an agreement within six months, the new CBA retroacts to replace the effects of the first



(Alternatively, renegotiations, if the CBA is not yet

CBA. (Ex. “Back pay” of wage differentials) What is the difference in impasse rules between mandatory and non-mandatory CBA provisions? o If mandatory, either party may bargain to an impasse as long

expiring, but after 3 years.) What is the relevance of the six month period? o Agreement between the parties on the new CBA will retroact to

o

the beginning of the first date after expiration, if they agree

o

deemed to exist in the meantime. What if there is a four month interim instead?  In the interim, the first CBA will hold-over for the 

seeks to terminate or modify the current CBA. A CBA expires after five years. You commence negotiations for a new CBA.

within 6 months from expiration.  Here, the law mandates retroactivity. If they agree after six months post expiration of the CBA, the



as he is in GF If non-mandatory, a party may not bargain to the point of

impasse; it may be construed as evasion of duty to bargain Union of Filipro Employees v. Nestle: ER’s insistence to exclude a particular provision in the negotiations is not a refusal to bargain. Obligation to bargain does not include the commitment to precipitately

parties will determine when the CBA is deemed to have



basis for this. This seems like an invention of the SC. In case you have a situation when there is a new CBA entered into after the six month period and there is no retroactivity. So there is

for the first, second, and third years, leaving the fourth and fifth



CBA. If there is no agreement on retroactivity, what must the Secretary of Labor do after he assumes jurisdiction? o There is an SC case that says the CBA must retroact to the first

 This is valid: o There is a CBA that covers five years, giving wage increases

o

No. The six month period only applies to a new CBA. The

commenced.  There can still be retroactivity, but optional. Does the six month period apply to mid-term renegotiation period?



accept the proposals of the other party. What are the mandatory provisions of the CBA? o 1. Grievance Machinery (GM)  For the interpretation or implementation of the CBA provisions and personnel policies

62

 

o

Established within 10 days from signing CBA Composition: Includes at least 2 representatives



Issue decision within 20 calendar days (or ground to

from the members of the BU, designated by union and



discipline the VA) What if the VA decides de-listing as sanction?  Must turn over records of the case within 10

the employer, unless otherwise agreed upon 2. Voluntary Arbitration (VA)  All grievances submitted to GM which are not settled

calendar days to the NCMB for further

within 7 calendar days are automatically referred to 

VA prescribed in CBA How selected?  Selected through

CBA

provision



or



procedure, or if there is no agreement, by NCMB according to selection procedure in 

CBA What is the VA’s jurisdiction?  1. Grievances from

implementation

or



interpretation of CBAs 2. Arising from interpretation or enforcement



of company personnel policies 3. Wage distortion issues from application of



wage orders, in organized establishments 4. Arising from interpretation and implementation



of

productivity

10 days from signing CBA Grievances not settled within 7

VA decision VA decides de-listing as sanction

calendar days Within 20 calendar days Turn over records of case to NCBM

Decision of VA final and executory MR of VA decision

within 10 calendar days Within 10 calendar days from receipt Not allowed

o

incentive

3. No Strike-No Lockout Clause  It is a valid stipulation, although it may only be invoked by an ER when the strike is economic in nature or one which is conducted to force wage/other concessions

CB deadlocks, if agreed upon by

not mandated by law to be granted. What if the strike is based on ULP?  NSNL cannot be invoked 4. Labor-Management Council  Purpose: enable workers to participate in policy 

parties A dispute before or at the stage of

o

compulsory arbitration 

parties No MR is allowed

Establish Grievance Machinery GM elevate to VA

programs under RA 6971 What else, optionally? o Other labor disputes like ULP and

o

disposition When is a decision final and executory?  After 10 calendar days from receipt by

Powers of VA?  1. Hold hearings  2. Receive evidence  3. Take necessary action to resolve dispute



63

making and decision processes What are not covered by LMC?  1. Covered by CBAs  2. Traditional areas of bargaining

EE Representative Nominations made by:  EBR if organized  Employees at large if unorganized What are the ULPs in CB? o 1. Bargaining in BF  It must be raised while bargaining is in progress  Based on facts o 2. Refusal to bargain  Refusal to reply to proposal  See Kiok Loy implication o 3. Individual bargaining  Can only bargain with the EBR o 4. Blue sky bargaining  Making of exaggerated or unreasonable proposals in

o







EEs when the interests of the company need it. There is only ULP when instances directly point to interference by the o

is done against the right to SO. Thus, granting benefits to nonunion EEs outside the BU because the union members already o

 

derive benefits from the CBA is valid. What is the determining factor for validity of exercise of management rights?  The ER’s motives  Generally, no need for the ER to explain motives

CB o 5. Surface bargaining  Mere cosmetic pretense of bargaining What are the elements of ULP? o 1. ER-EE relationship between offender and offended o 2. Defined in the LC as ULP  Not an exhaustive listing, because it is impossible to

behind exercise of management acts, but if there is history of enmity between the ER and EE then there is 

(HSBC employees v. NLRC) Who are liable for ULP committed by a juridical person? o If by corporation, partnership, etc. the penalty is imposed on o

company with the EE’s right to SO. The ER can treat union and non-union employees differently; discrimination per se is not unlawful. It is only unlawful when it

cover all acts that are infirm to self-organization 

As a rule the management can promote, transfer, or demote its

the guilty officers of that entity If by a LO, the officers and members who have actually

greater suspicion for ER’s acts. What are the ULPs of ERs? o 1. Interference  Interfering with formation of

such

as

 

membership Refusal to give salary adjustments according to CBA



participated in, authorized, or ratified such What is the prescriptive period? o 1 year When is there no ER ULP? o When there is valid exercise of management rights. The only

union,

threatening pay cuts for EEs who join the union Dismissal of union members upon refusal to give up

scale for years What is the totality of conduct doctrine?  Culpability of ER is evaluated on the basis of implication, against background of and in 

 

condition is that it must not violate the act and its prohibitions.

64

conjunction with collateral circumstances So the statement by one ER may become

ULP if uttered by another, hostile ER Lockout or closure amounting to ULP Sale of the enterprise in bad faith  What is the implication?

o

The

general

rule

that

labor



contracts are in personam and non-

without determining if it represents majority

binding to the transferee changes.

of EEs  D. Supervisory assistance 5. Discrimination  Must be in the terms of employment or treatment of

It can be enforced even against the 

What

o

transferee in bad faith. is the doctrine of successor-

the union members vis-à-vis the non-members  Or in bonus allocation  Or in layoff – even if there is valid basis for

employer? o A new company that engaged in the same

business

as

the

closed

layoff, but all those laid off were union

company and is owned by the same people is treated as a continuation



of the one that closed, so the ER cannot avoid liability. o

o



costs,

decline

in

activities What is a union security clause?  It is a valid discrimination favoring unionism. continued existence such as where new EEs  

union members as to interfere with right to self-org. When is it not ULP?  When it is done for business reasons (to on

members Test of discrimination: underlying reason is union

This is a clause where the union is assured

employment, they must not join or form a union 3. Contracting out as ULP  This involves contracting out services performed by

save

o



2. Yellow dog contract  A promise exacted from the EE that as condition for



Ex. giving exclusive recognition as EBR

business,

inadequate equipment, etc.) What is a runaway shop?  Transfer of business to discriminate against

union members in old plant. This is ULP. 4. Company domination of union  A. Initiation of company union idea  Outright formation by the ER  EE formation out of ER demand  Managerially motivated formation by EEs  B. Financial support to union  C. ER encouragement and assistance

are compelled to join the union. These are VALID. So again, ER terminating those who refuse



to join the union is valid. What are the kinds of union security clause?  Closed shop, union shop, maintenance of



membership, etc. Who are not covered by closed shop provision?  EE who at the time of the closed-shop agreement is a member of a religion that 

prohibits members from joining unions EEs already in service and members of labor union other than the majority upon taking



65

effect of closed-shop agreement Confidential EEs excluded from BU

 

EEs

excluded

from

closed

shop

by

o

agreement General rule: closed shop only applies to future EEs,

Cannot split cause of action and file subsequent and

not current ones because they’d be force to jump 

o

o

o





unions in violation of right to self-org What is agency shop?  The EE is not required to join the union but 

the complaint or testimony 7. Violation of duty to bargain  1. Failure or refusal to meet/convene  2. Evading mandatory subjects  3. BF bargaining, or failure to execute collective

continuous charges. What are the reliefs against ULP? o 1. Cease and desist order o 2. Affirmative order o 3. Order to bargain or imposition of CBA o 4. Strike by union What are the ULPs of unions? o 1. Restraint or coercion by LOs  What about interference by EEs?  It’s not ULP unless it amounts to coercion or  o

agreement 4. Gross violation of CBA (must be economic

provision) 8. Paid negotiation  This is corrupt and ethically reprehensible  Neither may the ER pay on its own volition nor can the

o

EE ask or accept payments o 9. GROSS violation of the CBA You’re not being paid OT pay. Is this ULP? o No, not in itself. It must be done in order to discourage o





has to pay the union service fee. 6. Discrimination due to testimony  A retaliatory act by the ER regardless of the subject of



Claim of ULP must include all acts within a given period.

o

membership in a labor organization. TEST: It must be related to the exercise of an employee’s right

restraint Union cannot coerce EEs to join a strike. This is done

through assault, threats, blockages, etc. 2. Union-induced discrimination  When is a union security clause ULP?  When it is arbitrarily used  Union security clauses must be governed by justice, fair play, legality 3. Refusal to bargain  Ex. entering negotiations with fixed purpose of not reaching an agreement 4. Featherbedding and Make-Work Arrangements  What is featherbedding?  EE practices which create

or

spread

employment by unnecessarily maintaining or increasing the number of EEs used, amount

to self-organize. Can ULP cases be compromised? o No. Labor contracts are impressed with public interest, so



of time consumed, or work on a particular job Make-work: minimum-crew regulations on railroads, setting and prompt destruction of bogus type in

labor contracts must yield to the common good. What is the “single charge” rule?

newspapers, stand-by pay for musicians when a radio o

66

station broadcasts music from records, etc. 5. Ask or accept negotiation or attorney’s fees from ER

o

6. Gross violation of CBA



Employer

Employee

Inference Yellow dog

Restraint or coercion by LO Feather-bedding and make-work



arrangements Contracting out as ULP Company domination of union Discrimination Discrimination due to testimony Violation of duty to bargain Paid negotiation Gross violation of CBA

 Union-induced discrimination Refusal to bargain Asking or accepting negotiating or attorney’s fees Gross violation of CBA 

STRIKES 



What is the definition of strike? o Temporary stoppage of work by concerted action arising from a labor dispute between employer and employee. What is a strike? o Temporary stoppage of work by concerted action of employees o



behalf of others What is a lockout? o Temporary refusal of ER to furnish work as a result of industrial or labor dispute When can you strike? o There are only two. No other: o 1. ULP o 2. Deadlock in collective bargaining o What is the conversion doctrine?  The strike can start as economic and is converted to ULP, or vice-versa o T/F – You cannot strike before negotiation.  False, you can strike on ULP. Who can strike? o 1. EBR, if there is one o 2. Any LLO, if there is none o T/F – You cannot strike before certification election.  False. If there is no EBR, an LLO can strike on ULP. o T/F – You cannot strike before you register in the DOLE.  True. Because an LLO has to be registered with o

as a result of industrial or labor dispute Characteristics:  1. There must be an ER-EE labor dispute  2. Employment relation is deemed to continue 

What is a concerted action? o An activity undertaken by two or more employees, by one on

DOLE. T/F – If you are not an independent union, hence a chartered

union, you cannot strike

without having

registered with DOLE.  True. Because the charter certificate only gives your

although in a state of belligerent suspension 3. Temporary work stoppage through concerted action  Can an employee on official LOA strike? o No, because he cannot stop

o

personality to file for certification. T/F – If you are a chartered local, and you submitted all requirements, can you strike?  Yes. Upon submission, you have all the rights of an

working when he’s not even working 4. Striking group is LLO. If there is a deadlock, it must



be by the EBR.

67

LLO. (No need to wait for approval) Can there be a strike when there is no union? o No. There has to be a union.

deemed illegal because the LO didn’t follow procedure –

If not initiated by a labor union, is it still a strike?  Yes, but it’s not a valid strike. Is a violation of a CBA an ULP? o If it amounts to ULP (Economic provision + malice). o All other violations are just grievances – it’s still an actionable o



o o 

requirements when it didn’t think it was a strike in the first 

wrong, but not ULP. You go to the grievance machinery. If you strike on the basis of a grievance, what happens?  It is not a valid strike. N.B. The distinction between “gross” and simple violations only

case, it seems unclear if these will already be considered as work stoppage or mass action. (NUWHRAIN Dusit Hotel Nikko Chapter v. CA, November 11, 2008) o NUWHRAIN-Dusit Hotel v. CA: Even without stoppage of

o

work, when the employees showed up to work bald and the employer refused to let them enter the hotel and give them

True. Is a welga ng bayan a strike?  No. There is no employer-employee dispute. It is a 

place?] The SC has upheld certain actions by employees, ex. wearing armbands, having placards as valid expressions. But after the Dusit

applies to violations of the CBA. Do not get confused. T/F – If there is no dispute with the employer, there can be no strike. o o



because how would it know that it should comply with the

o

mere sympathy strike. (BUT see Biflex case below) It’s a mass action that could lead to possible



work – this was considered a strike. [This is weird because there is no work-stoppage, but it’s a

strike.] There was a case where the employees did not apply for a permit to

dismissal. Is it proper to call it an illegal strike?  No. Because it’s not a strike in the first place, so you

strike, but just applied for a mayor’s permit to hold a rally, on the theory

don’t even go into the inquiry whether it’s a legal or

stoppage; because they applied for work leaves, and there is a

that it is not a strike, but a mass action. o But the SC held that it is a strike because there is work



illegal strike. “If it’s not an egg, do not call it a rotten egg. It’s not an egg.” The SC is guilty of doing this a lot. Although jurisprudence calls it a “strike.” Be careful.

Employee’s refusal to work on three consecutive holidays, prompted by



But in the Bar exam, follow this classification. Biflex v. Filflex: EEs who have no labor dispute their employer, but who

considered a strike that was grounded on a non-strikeable issue, and a



dispute existing. A. Soriano Aviation v. Employees Association of A. Soriano: their disagreement with management-imposed work schedule is violation of the No-Strike Clause in the CBA. o [This is weird, because the court is in effect requiring

on a day they are scheduled to work, refuse to work and instead join a welga ng bayan to protest the accelerating prices of oil commit an illegal work stoppage. o [Overturning the old doctrine that a welga ng bayan is not a



strike. Here it was deemed a strike, but an illegal one because

employees to work on holiday.] Is a prayer rally a strike? o No, as long as it does not disrupt the work of those in duty. A hot tip is to include as well non-members of the union. And it is

they didn’t file notice to strike. Inevitably for this case it’s

68

no question, valid, if done after work hours. If done during 

work hours, do not disrupt. T/F – If there is no actual ground for a strike, there is no legal strike. o

o

False. You can have a good faith strike, when the union in good faith believed there is a ground to strike, even if it is found

o 

not to have actually existed. There must be actions done by the employer that would justify



the belief that there was ULP committed. What do you do? o 1. File notice to strike stating that you intend to hold a strike on

 

the stated ground to the Regional Office of the DOLE  What is the cooling off period?  At least 30 days before intended date of 

strike for CBA deadlock At least 15 days for ULP o Exception: No cooling-off period for

o

o

(take note: “duty elected”) Does termination of an appointed

officer fall within this exception?  No. What is the reason for 30 and 15 days?  To give the parties chance to cool-off, in

should be complied with. But what if there is absence of notice of

strike vote itself is not illegal. 4. 7 day strike ban  Count this 7-day ban from the time you submitted the 

strike-vote results Can it be counted within the cooling off period?  It can be wholly within, partly within, or 

order to reconcile.  What if you don’t have an intended date?  It’s not required in the IRR. 2. Inform the NCMB (DOLE) at least 24 hours before the strike



entirely outside the cooling off period. Just use the submission of the results of the

strike-vote as the starting point. What is the purpose of this?  Allow DOLE to confirm the results of the vote, and allow any party to contest the

vote 

certification election Third notice: notice of result of strike vote Can there be an illegal strike vote?  No such thing; there is no requirement that

strike vote? o There is defect in notice, but the

union officers who are duly-elected o

no specific period. Majority vote of whom?  Union members only  This is different from the eligible voters in a



union-busting, such as dismissal of



When do you file this?  Anytime after notice to strike.  Should the union wait for a DOLE representative?  No, because it is not mandatory. 3. Hold strike vote  It has to be done after filing notice of strike. There is 

This is the second notice. The purpose is to inform



the NCMB and give it a chance to supervise the strike

results. Can they wait several weeks after to conduct the actual strike?  Yes.

vote, and give it ample time to deploy personnel

69



What if the strike ban is over but the cooling off

o

engaging in picketing or obstruction of ingress or egress from

period is not?  You cannot strike yet. Wait for the cooling off 





period to end. What if the cooling off period is done, but the



strike ban is not?  Same. Wait for the strike ban to end. How many notices all-in-all do you need for a valid strike? o Three – notice of strike, notice of conduct of strike vote, notice

for a determination that the strike is illegal? o No. The act is illegal, independent of whether the strike is illegal or not. So the employer just has to follow the regular procedure of terminating an employee, independent of any

of strike vote results [Class question] What if the employer commits ULP against the



convert an otherwise valid strike into an illegal strike. o Ex. Libelous, statements against products or services o Although general rule is that a strike is a conflict situation, so

Especially when the EBR is in cahoots with the employer. After complying with all the four steps, what else do you have to



comply with? o Cannot perform acts that would render a strike illegal. What are the prohibited acts during strikes? o 1. Strike or lock-out after assumption of jurisdiction o 2. Knowingly participating in illegal strike or participating in

o

commission of illegal acts during strike  Ground for termination of employment 3. Obstruct, impede, or interfere with through force, violence,

o

coercion, threats, or intimidation any peaceful picketing 4. Employment or strikebreaker or being employed as

o

strikebreaker 5. Bringing in, introducing, or escorting by public officer or

holding in a case. Recent case: statements or charges made by strikers against management or company were considered illegal activities that would

union. Can the minority strike? o Jurisprudence – No, they cannot. o Sir. MM – Yes they should be able to, based on ULP.



ER’s premises for lawful purposes or obstruct thoroughfares Should the employer wait for a case to be filed in order to fire an employee who committed an illegal act? Should the employer wait

minority union but the EBR doesn’t strike on behalf of the minority



6. Commit any act of violence, coercion, intimidation while

the language used is expected to be strong. So when does a strike change from valid to illegal due to the acts of the strikers? o It is a factual question. It is case-to-case basis. o A single or isolated act of violence does not convert. Only if



the violence is pervasive. What is improved offer balloting? o 1. In case of strike  Regional branch of Board conducts referendum by   

secret balloting on the ER’s improved offer On or before 30th day of strike At its own initiative or upon any party’s request When at least majority of union members accept the improved offer, the strikers must immediately return to

employee (including AFP/PNP) or armed persons any individual who seeks to replace strikers in entering or leaving

o

premises

work 2. In case of lockout  Same, except the BOD is the one that votes on the reduced offer (“Reduced offer balloting”)

70



What are the requisites of lawful picketing? o 1. Aim is to inform public about dispute o 2. Conducted peacefully  No threats, intimidation, coercion, force  No vandalism  No obstruction of ingress/egress o What is the court’s power to control picketing?  In general, it cannot restrict it because it’s exercise of 



out ER?  Must provide and maintain effective skeletal workforce of medical and other health personnel to handle emergency cases during 

o

establishments with totally no interest. A third party thus may have the right regulated when it would

o

appear that the labor dispute exists between the union and the random third party. What if there is no EER?  Picketing is still valid, because it’s free speech. What is assumption of jurisdiction? o The Secretary will decide the conflict him or herself. o Without the assumption order, the dispute will not be decided



o



respectively. What are the implications/effects of assumption order? o Immediately return to work. o Secretary of Labor issues a Return to Work Order in addition to o

arbitration  results into RTWO (see below) Mandatory (within 24 hours)   Labor disputes affecting hospitals, clinics, medical 

refers the matter to the NLRC. The NLRC will decide the case. Both are interventions of government that convert the issue into a case to be decided upon by the Secretary or NLRC

decide the conflict themselves. When is it discretionary? When is it mandatory? o Discretionary   For industries indispensable to national interest  Assume jurisdiction or certify to NLRC for compulsory

o

in. Is it still an assumption even if a petition is filed?  Yes. What happens in an assumption order?  Enjoin pending strike or ongoing strike. Workers have

to return to work or cannot pursue the strike. How different is assumption from certification order? o Assumption: Secretary will decide the case. Certification: o

by government. Patagalan at patigasan. The parties have to 

the strike/lock-out Distinguish assumption of jurisdiction from court jurisdiction over a case. o In assumption, the parties do not initiate it; the Secretary steps

free speech. But it can also localize the sphere of picketing to establishments with related interest and insulate those



What is the duty of the striking union or locking-

the assumption order. Can you have an assumption order without a return to work order? What if there is no return to work order?  The return to work order is automatic with the assumption

order.

It

is

necessarily

implied.

Otherwise, it’s a free vacation for the laborers! Steel

institutions Assume jurisdiction or certify to NLRC for compulsory

o

arbitration

Corp. v. SMP Go back to status quo ante. The employer must accept the employees under the same terms and conditions as before.

71

o





What if there is defiance of the Sec. of Labor’s orders?  There can be disciplinary actions including dismissal,



loss of employment, payment of damages, etc. To whom do you serve the assumption order? o To the union, and to the employer. o Serve to the president usually, as agent. What is the effect of declaration of illegality of a strike? What if the

  

union officers did not participate in the strike and were reporting for work, but then the rest of the union were striking? o Union members will not be terminated, unless they performed o o

illegal acts during the strike. Union officers can be terminated. Even if they did not actually

o

an Assumption or Certification. So mass termination cannot happen in



RWO, which can only be issued in an

o

Assumption or Certification Order. 2. If everyone committed illegal activities, everyone

o

will be terminated not because of the strike per se, but

constitute proper basis for injunction 2. Injunction is reasonably necessary to protect legal

rights of the plaintiff pending litigation Who issues?  The NLRC Can an injunction be issued ex parte?  As a general rule, no. There must be testimony of witnesses and cross-examination. And there must be

because of individual actions, even if the strike per se is legal. Is there payment of wages during strikes? o No, even if the strike is legal. o Exceptions?  1. ULP strike, in the discretion of the authority 

damages  2. National interest What are the essential conditions to grant temporary injunctive relief?  1. Complaint alleges facts which appear sufficient to

ordinary strikes – there has to be defiance of



are

discriminated against When is there an award of back wages? o There is no reward of backwages, even if the strikers win. Can employers hire replacement workers? o Yes, employers can. What is the rule on injunctions? o No court or entity can enjoin a strike, picket, or lockout o What are the exceptions?  1. Prohibited or unlawful acts are being or about to be

refused to comply with it.  And this RWO only happens when there is



 Back wages from when offer was made When there is RTWO and the EEs

committed that would cause grave or irreparable

physically participate in the strike. When can you terminate all strikers?  1. When there is a Return to Work Order and they



3.

o

finding by the NLRC of the grounds above. When can it be issued ex parte and what are the limitations?  Substantial and irreparable injury to complainant’s

deciding the case 2. Strikers voluntarily and unconditionally offered to return to work, but the ER refused to accept the offer

72



property There is testimony under oath sufficient to justify if



proved that a TRO must issue What are the safeguards?



1. Filing of adequate security to cover for

o

7. All monetary claims of OFWs from ER-EER or by virtue of

o o o

law/contract, including damages (RA 8042) [Misc] 8. Wage distortion cases in unorganized establishments 9. Enforcement of compromise agreements when there is non-

damages if the TRO is granted erroneously



or improvidently  2. TRO is no longer than 20 days What is the Innocent Bystander Rule? o Peaceful concerted activities may be regulated at the instance 

of innocent bystanders if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with 

which they have no connection with involves them. In sum, what are the four grounds to make a strike valid? o 1. Grounds o 2. Procedure o 3. Conduct o 4. Compliance with return to work

DISPUTE SETTLEMENT 

Labor Arbiter 



What is jurisdiction of LAs? o [Labor disputes] o 1. ULP o 2. Termination disputes  What about termination of cooperative members?  Not covered by LA; no ER-EER o 3. Cases from prohibited activities during strikes, including o o

questions on legality of strike/lock-out [Claims against ER] 4. Claims for wages, rates of pay, hours of work, and other

o o

terms of employment 5. Claims for damages arising from ER-EE relationship 6. Money claims from ER-EE relationship in amount exceeding

 



compliance of parties LA has no jurisdiction over: o 1. Intra-corporate disputes  RTC o 2. Cases involving corporate officers (they are not EEs)  But an EE who rose from the ranks can be treated as a regular EE o 3. Cases involving GOCCs with original charters  CS Law o 4. Cases involving entities immune from suit o 5. Local water districts (quasi-public corporations) o 6. Actions based on tort  Regular courts have J Where do you appeal the LA’s decision? o Within 10 days, to NLRC What’s the next step? o Rule 65 to the CA And then? o Rule 45 to SC What is the general rule? o Period for appeals is 10 days to the NLRC from the LA. o You can’t file an MR in LA level. How is appeal to the NLRC from the LA done? o File a notice of appeal + memorandum of appeal (together) within 10 days.  This is how it is different from ordinary appeal where the notice of appeal and the memorandum are o

P5000

73

separately filed. What is the rule on the bond filed?



In NLRC, amount of bond filed by losing ER is the



based on the amount in the judgment appealed from, and not based on the amount you want to appeal.  So if the judgment is P500k, but you’re only appealing the P200k – the bond is based on 

o

the P500k. The rule is applied strictly. The Bond has to be filed together with the appeal and

else appeal will be dismissed. Does petition to reduce the bond excuse the ER from filing one? 



No. Even with petition for reduction of bond, you still



have to file bond first in substance, and just attach

o

 

appeal. Motion to reduce bond also does not toll the running

of the period to appeal. Who has no jurisdiction to accept a reduced bond?  SECRETARY OF LABOR: NO JURISDICTION TO

to

cause

interest as certified by the DOLE Secretary What is the exclusive appellate J of the NLRC? o 1. All cases decided by the LA, including contempt cases o 2. Money claims decided by RDs (P5000 and below) See notes in termination for effects of NLRC reversal of LA decision

Independent unions

Federations and national unions

Regional Director BLR CA SC

BLR Sec. of Labor CA SC



the Court of Appeals, within 60 days. After CA, you can file an MR. Then you can file a Rule 45 appeal to the Supreme Court,

What is the BLR’s jurisdiction? o 1. Inter-union conflicts (includes registration, cancellation, etc.) o 2. Intra-union conflicts (includes registration, cancellation, etc.) o 3. All disputes, grievances, problems from labor-management relations in workplaces except those falling under the GM and

within 15 days, together with the filing fees; you can file motion 

causing/likely

Bureau of Labor Relations (BLR)

ACCEPT A REDUCED BOND. Is an MR allowed in the NLRC? o Yes, MR allowed in NLRC. What is the next step? o The next step is to file a special civil action under Rule 65 to

o

dispute

allowing reinstatement

your petition for reduction of bond together with your 

strikes part 3. Certification case  Certified labor

strike/lockout in an industry indispensable to national

the memorandum, ALL within the 10 day period. Or o

What is the original J of the NLRC? o 1. Injunction in ordinary labor disputes o 2. Injunction in strikes or lockouts  See the special requisites when this is allowed in the

for extension for 30 days. Then MR. and MR. and MR. See notes on termination for reinstatement pending appeal

o 

NLRC

VA (CBA provisions) 4. Complaint re: federations, national unions, industry

unions, their officers/member organizations Does the BLR have jurisdiction for claim of damages arising from intra- or inter-union conflicts?

74

o 





No, the BLR is not empowered to adjudicate claims for

damages. When is jurisdiction original? o If the case involves federations o Appeal is to DOLE Sec (10 days), and then to CA, and then SC When is jurisdiction appellate? o If the case involves independent unions (original J is with RD) o Appeal is to BLR, and then to CA, and then SC What if parties entered into a compromise agreement with the

o o

Failure to come to agreement in CBA negotiations For voluntary arbitration, when there is no agreement as to

o

who are the VAs, the NCMB does it Given the notice of strike vote in concerted acts

Regional Directors (RDs) 

What is the jurisdiction of RDs? o 1. Visitorial powers (actually exercised by Labor Secretary, but

assistance of BLR or Regional Office of DOLE? o Binding upon parties o The NLRC can only interfere when there is non-compliance or

o o

usually delegated to RDs) 2. Small money claims (P5000 and below) 3. Violation of constitution, by-laws, rights and conditions of

prima facie evidence of fraud/misrepresentation/coercion What if the compromise agreement is already done and

o

members 4. Inter-union and intra-union disputes involving independent

o

then the parties just appear before the BLR or Regional Office to file it?  NOT valid.



Note that the provisions say the

unions and chartered locals (see above, BLR) What are the visitorial powers of the Labor Secretary? o Power of the Sec of Labor or authorized representative to visit/check the premises of the employer to check compliance

compromise must be assisted by the BLR/Regional  

Office. Can the BLR issue a subpoena? o Yes, when relevant to the labor dispute What is the rule on privileged communication? o Statements or information given in conciliation meetings cannot be used as evidence in the NLRC.

o 

Even the conciliators



cannot be asked to testify on matters taken up in the conciliation meetings.



interviews,

can

require

to

produce

records/documents What kind of rule should be violated? o Ruling of Labor Arbiter or law on labor standards or other laws identified by Congress What can the Secretary do given those powers? o Secretary will give compliance orders for the employer to follow  Is this retroactive? (i.e. can the compliance order, say for back wages due to salary less than

National Conciliation and Mediation Board (NCMB) 

with the law Ocular inspection,

What is the NCMB’s jurisdiction? o 1. Conciliation o 2. Mediation o 3. Voluntary arbitration cases Recall provisions mentioning the NCMB:

o

minimum wage, retroact to the past months)  Yes. What if the employer admits to the adverse findings?  Compliance order must be complied with and 

75

there can be writ of execution What if the employer contests?

 As a general rule the employer need not





o

explain because it’s a simple compliance

the purpose of determining violations of and enforcing the

matter. As an exception, sometimes, the employer is

Labor Code and any labor law, wage order, or rules and regulations. If there is no ER-EE relationship in the first place,

given a chance to be heard  In this case, a writ of execution cannot issue What is required for a contest?  There must be a contest and he must raise

the duty of the ER to adhere to labor standards with respect to the non-employees is questionable. The Secretary’s power

issues that are supported by documentary proofs not considered during course of o





stoppage of work What if there is no danger to life or safety, can

o

determine w/n the stoppage must be lifted Are the workers paid during stoppage?  Yes, if the violation is due to the fault of the

ER. Why does 218(b) start with “notwithstanding”…? o Because 129 and 217 seem to be contrary to 218, but this



would have no effect What if the employer denies the employer-employee relationship? o Likewise, this is not a proper defense. There can still be

under Art. 128 does not apply in two instances:  A. Where the ER-EE relationship has ceased  B. Where no such relationship ever existed What is the power described in 129? o Recovery of wages, simply money claims, and other benefits. o Who has the right to exercise this power?  Regional director of the DOLE o What’s the commonality with 128 and difference?  The Regional director can exercise 128 powers (as a “duly authorized officer”) and 129 powers, by

there be closure or stoppage?  No. What is the safeguard?  Within 24 hours, a hearing must be had to







inspection. What if there is danger to the life/safety of the employees?  The Secretary of Labor can authorize closure or 

No. Art 128’s grant of visitorial and enforcement power is for



provision. Differentiate this power from 128.  Here, the employee files a claim against the employer.

In 128, the Labor Secretary/officer acts motu propio. What is covered by 129? o Money claims and benefits only. No reinstatement issues must be included. It must not exceed P5000.  It must be the main action and not complicated by 

other actions, thus “simple.” What’s the significance of the amount?  It determines who has jurisdiction.

If it’s

beyond 5000, it goes to the Labor Arbiter.

exercise of powers by the Secretary of Labor. People’s Broadcasting v. Secretary: Does the Secretary of Labor

o

have jurisdiction to determine the existence of ER-EE relationship (when

o

there is none) in the exercise of the visitorial and enforcement powers under Art. 128?

76

Is ULP covered?  No. What about non-payment of CBA benefits?



No.

Violation of CBA falls under Grievance

o

Machinery. (Or ULP, if it is a gross violation of o

o

economic provision) What if you have resigned and you still want to claim

enforcement of orders  Except when the ER contests findings of the officer

unpaid wages accrued during employment? You do not

 

and raises issues supported by documentary proof

want reinstatement.  Covered by 129. So why does 128 say “notwithstanding 129…”? o See below. If the regional director receives a report from an employee, asking

not considered during inspection  raise this to the 

for help due to non-payment of wages and benefits, and he, as





Voluntary arbitrator (VA)

what were exercised were the visitorial and inspection powers. Even the compliance order will be based not on the letter



complaint, but on the findings. From the regional office, where do you go? And how much time? o If 128 – go to Sec. of Labor  5 days o If 129 – go to NLRC  5 days N.B. For labor, it’s always ten days for exercise of appellate powers. These are the exceptions

What is the scope of visitorial powers of the DOLE Secretary, as



discussed above? o 1. Access to ER’s records and premises at any time of day or o o o

What is the jurisdiction of VAs? o 1. Grievances from interpretation of CBAs (from GM) o 2. Arising from interpretation or enforcement of company o

personnel policies (from GM) 3. Wage distortion issues from application of wage distortion

o

orders in organized establishments  If unorganized, go to LA 4. Arising from interpretation and implementation of productivity

incentive programs in RA 6971 5. Any other labor disputes upon agreement of the parties 6. Dispute before or during compulsory arbitration proceedings  Can be submitted to VA instead How is the VA’s decision appealed? o Through Rule 43 to the CA o And then, to the SC through Rule 65 o o

DOLE Secretary 

LA What cannot be done vis-à-vis the Sec. of Labor’s powers in 128? o Cannot be subject of injunction o Unlawful for any person/entity to obstruct or impede the orders of the Sec. of Labor issued pursuant to 128

authorized, inspected the premises – what power was exercised? o 128 applies. Even if it was prompted by a letter complaint, o

5. Issue compliance orders  See discussion above 6. Issue writs of execution to appropriate authority for

night when there is work 2. Copy records 3. Question any EE 4. Investigate matters to determine w/n there are violations of

In sum: Labor

Labor Code

77

128

129

CBA

Indep

Feds,

Cert.

dispute

dispute

unions

(org’ed)

nationa

elec.  

l unions

LA

RD

(5

RD

(5

days

days

NLRC

up) Labor

up) NLRC

CA (65)

Sec CA (65)

CA (65)

SC (45)

SC (45)

SC (45)

GM

RD

BLR

Med-



Arbiter VA

BLR

Labor

Labor

CA (43)

CA (65)

Sec CA (65)

Sec CA (65)

SC (65)

SC (45)

SC (45)

SC (45)

Prescription of cases Case

Prescriptive period

ULP Money claims arising from ER-EER Offenses penalized by the Labor

1 year from the act 3 years from cause of action 3 years from cause of action

Code (except ULP) Illegal dismissal

4 years (based on injury to rights,

Simple illegal recruitment Economic sabotage

under NCC) 5 years 20 years

Rules in Labor Cases 

 

Rules of Evidence in ROC do not control o Use reasonable means to ascertain facts o Without regard to deep technicalities of law Parties may be represented by legal counsel but the LA, commissioner, or chairman has complete control of proceedings at all stages How is jurisdiction acquired? o 1. Service of summons  general rule

78

o 2. Voluntary appearance Failure to implead substitute party is not a fatal defect When are docket fees not required? o Labor standards claims When are docket fees shared by the parties? o Bargaining deadlock