2005 CENTRALIZED BAR OPERATIONS

LABOR LAW

SELECTED QUESTIONS in LABOR LAW
LABOR STANDARDS
1. Differentiate labor standards law from labor relations law. Are the two mutually exclusive? Labor standards law is that labor law which prescribes terms and conditions of employment like Book III, Book IV, Title I and Book VI of the Labor Code. These books of the Labor Code deal with working conditions, wages, working conditions for women, minors, house helpers and homeworkers, medical and dental services, occupational health and safety, termination and retirement. On the other hand, labor relations law is that labor law which regulates the relations between employers and workers like Book V of the Labor Code which deals with labor organizations, collective bargaining, unfair labor practices and strikes and lockouts. Labor standards laws and labor relations laws are not mutually exclusive; they complement to each other. Thus the law on strikes and lockouts which is and example of labor relations law includes some provisions on the security of tenure of workers who go on strike or who are locked out. These provisions are clear examples of labor law relations. 2.What is the Constitutional basis of Articles 7-11 regarding emancipation of tenants? “The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the rights of small landowners. The State shall further provide incentives for voluntary land-sharing.” (Article XIII, Section 4, 1987 Constitution) 3. Is a corporation, of which seventy percent (70%) of the authorized and voting capital is owned and controlled by Filipino citizens, allowed to engage in the recruitment and placement of workers, locally or overseas? Explain briefly. NO. Art. 27 of the Labor Code explicitly requires that in order to qualify for participation in the overseas employment program, the corporation must at least possess seventy-five percent (75%) of the authorized and voting capital stock of which is owned and controlled by Filipino citizens. 4. Can a recruiter be convicted of violating a POEA Circular which was implemented without prior publication? NO. The POEA MEMO Circular no. 2, series of 1983 was void. Where the administrative circular in question is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation. Considering that POEA Administrative Circular No. 2, Series of 1983 has not as yet been published or filed with the National Administrative Register, the same is ineffective and ma not be enforced (Philsa International Placement and Services Corp. vs. Secretary of DOLE, G.R. No. 103144, April 4, 2001). 5. Is the absence of an employment a valid defense in a case of illegal recruitment? Explain. NO. the law is clear on the matter. Private respondents further argue that they cannot be held liable by petitioner because no employment contract between him and Step-Up Agency had been approved by the POEA. They also claim that the absence of a Special Power of Attorney and an Affidavit of Responsibility, as required under Sections 1 and 2, Rule 1, Book III of the POEA Rules and Regulations only proves that they did not deploy petitioner to Singapore.

Red Notes in Labor Law
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San Beda LABOR

Their argument is far from persuasive. Surely, they cannot expect us to utilize their noncompliance with the POEA Rules and Regulations as a basis in absolving them. To do so would be tantamount to giving premium to acts done in violation of established rules. At most, private respondents’ act of deploying petitioner to Singapore without complying with the POEA requirements only made them susceptible to cancellation or suspension of license as provided by Section 2, Rule I, Book VI of POEA Rules and Regulations. (Hornales v. NLRC, G.R. No. 118943, September 10, 2001). 6. Is there a requirement that a physician must be accredited by the POEA before he can attend to a sick seaman? This Court also finds no basis on (sic) the petitioners’ contention that the companydesignated [physician] must also be accredited with the POEA before he can engage in the medical treatment of a sick seaman. There is nothing in the Standard Employment Contract that provides this accreditation requirement, and even if there is, this would be absurd and contrary to public policy as its effect will deny and deprive the ailing seaman of his basic right to seek immediate medical attention from any competent physician. The lack of POEA accreditation of a physician who actually treated the ailing seaman does not render the findings of such physician (declaring the seaman permanently disabled) less authoritative or credible. To our mind, it is the competence of the attending physician, not the POEA accreditation, that determines the true health status of the patient-seaman, which in this instant case, is [sic] the attending physicians from the Manila Doctors Hospital (German Marine Agencies, Inc. v. NLRC, G.R. No. 142049, January 30, 2001) . 7. Martina is a clerk typist in Hospicio de San Jose, a charitable institution dependent for its existence on contributions and donations from well wishers. She renders work eleven (11) hours a day but has not been given overtime pay since her place of work is a charitable institution. Is Socorro entitled to overtime pay? Explain briefly. YES. Martina is entitled to overtime compensation. She does not fall under any of the exceptions enumerated under Art. 82 of the Labor Code. Said provision equivocally states that “Title I, Book III of the Labor Code dealing with hours of work, weekly rest periods, holidays, service incentive leaves and service charges, covers all employees in all establishments, whether for profit or not, except the following employees: a. Government employees b. Managerial employees c. Officers and members of the managerial staff d. Field personnel e. Members of the family of the employer who and dependent on him for support f. Domestic helpers g. Persons in the personal service of another h. Workers paid by results. A covered employee who works beyond eight (8) hours is entitled to overtime compensation. 8. Krishna earns P7.00 for every manicure she does in the barbershop of a friend which has nineteen (19) employees. At times, she takes home P175.00 a day and at other times she earns nothing. She now claims holiday pay. Is Krishna entitled to this benefit? NO. Nemia is not entitled to holiday pay. Art. 82 of the Labor Code provide that workers who are paid by results are, among others, not entitled to holiday pay. Nemia is a worker who is paid by results. She earns P7.00 for every manicure she does. 9. As a tireman in a gasoline station, which is open twenty four (24) hours a day with only five (5) employees, Joewa worked from 10:00 p.m. until 7:00 A.M. of the following day. He claims to be entitled to night shift differential. Is he correct? NO. In the Omnibus Rules Implementing the Labor Code (Book III, Rule II, dealing with night shift differential) it is provided that its provisions on night shift differential shall NOT apply to employees of “retail and service establishments regularly employing not more that five (5)

San Beda College of
46

Law

2005 CENTRALIZED BAR OPERATIONS
workers”. Because of this provision, Joewa is not entitled to night shift differential because the gasoline station where he works (being a service establishment) has only five employees. 10. A manufacturing firm with 500 employees schedules Sunday as the latter’s rest day. Fifty workers who were seventh-day adventists and 200 workers who belong to the Iglesia ni Kristo object and propose that their rest days be scheduled on Saturdays and Thursdays, respectively. The company claims that the proposed schedule will seriously prejudice or obstruct its manufacturing operations and refuses to re-schedule the rest day as requested. a. Do the seventh day adventists and members of the Iglesia ni Kristo have any right to choose their own rest days? YES. The employer, under the law, is required to respect the preference of the employee if the same is based on religious grounds. The employee shall make known his preference to the employer in writing at least (7) days before the desired effectivity of the initial rest day preffered (Sec.4, Rule III, Book I, Implementing Rules and Regulations). b. Assuming that the claim of the employer is well-founded, can it legally refuse to re-schedule the rest day of the employees involved? YES. If the employer cannot resort to other remedial measures, it may schedule the rest days of the employees involved on the days of their choice for at least 2 days in a month (Sec.4, Rule III, Book III, Implementing Rule and Regulations). 11. This year, National Heroes Day (August 25) falls on a Sunday. Sunday is the rest day of Bonifacio whose daily rate is P500.00. a. If Bonifacio is required by his employer to work on that day for eight (8) hours, how much should he be paid for his work? Explain. For working on his scheduled rest day, according to Art. 93(a), Bonifacio should be paid P500.00 (his daily rate) plus P150.00 (30% of his daily rate = P650.00. This amount P650.00 should be multiplied by 2 = P1,300.00. this is the amount that Bonifacio as employee working on his scheduled rest day which is also a regular holiday should receive. Art. 94(c) of the Labor Code provides that an employee shall be paid a compensation equivalent to twice his regular rate for working on any regular holiday. The “regular rate” of Bonifacio on May 1,2002 with an additional thirty percent because the day is also his scheduled rest day. Formula: (a) To get rest day pay Step 1: Get hourly wage rate Daily Basic Wage Number of hours worked X special holiday wage rate

LABOR LAW

Red Notes in Labor Law

e.g. (P500 / 8 hrs) x 130%

= P81.25 (rest day wage rate)

Step 2: Compute wage between 8:00pm – 5:00 pm using rest day wage rate Number of hours worked e.g. 8hrs x X special holiday wage rate = P650

P81.25

(b) To get regular holiday pay Rest day Wage rate X e.g. P650 x Regular holiday 200% = P1300

45

145 P1300 Total Take Home Pay San Beda College of Law 46 12. except holidays and Sundays. 2000). Sia claims that Damasco’s basic salary of P140. the employer. What other evidences are required to warrant the award of overtime pay? Judicial admissions made by parties in the pleadings. Holiday wage rate + 30% of holiday rate (200%) Step 1: Get hourly wage rate Daily Basic Wage Number of hours worked X special holiday wage rate e.College of Law LAW San Beda LABOR b. the amount that Bonifacio is entitled to receive for his overtime work per hour on May 1.50 no. how much should he receive for his work? Explain. must appear in the manner required by law on how overtime compensation must be determined.00 2hrs x P260. G. 2002 is P325. no further evidence being required to prove the same. admits that Damasco’s work starts at 8:30 in the morning and ends up at 6:30 in the evening daily. the latter is entitled to overtime compensation. of OT hours (5pm – 10pm) = 2hrs -----------P845.00 a day is more than enough to cover the “one hour excess work” which is the compensation they allegedly agreed upon. it does not follow that any additional compensation due her can be offset by her pay in excess of the minimum. (P1300 / 8 hrs. even assuming that Damasco received a wage which is higher than the minimum provided by law. such arrangement.R. 115755. Still. or in the course of the trial or other proceedings in the same case are conclusive. Sia already admitted she worked an extra hour daily. of OT Hours = OT Premium Pay e. No. If he works for ten (10) hours on that day.300. Sia. public respondent gravely erred in deleting the award of overtime pay to Damasco on the pretext that the claim has no factual basis.00. May a Company adopt working hours beyond 8 hours a day? If the workers do not question such an arrangement. However. NLRC. This hourly rate should be multiplied by 2 (the number of hours he worked overtime).g. 13.00 Step 3: COMPUTATION 8am-5pm 2 hours 8hrs x P200. in the absence of an express agreement to that effect. 2002 should be divided by 8 to determine his hourly rate of P162. Moreover. would that scheme be considered valid? . Thus.00 845 -----------P2. Thus.00 which is the amount that Bonifacio is to receive for working on May 1. December 4. (30 % x P325) + P325 = P422. P1. if there be any. No further proof is required.) x 200% = P325 Step 2: Compute OT Premium Pay between 5:00 pm – 10pm [(30% X Wage Per Hour) + Wage Per Hour] No. For it is necessary to have a clear and definite delineation between an employee’s regular and overtime compensation to thwart violation of the labor standards provision of the Labor Code (Damasco vs. In view of Sia’s formal admission that Damasco worked beyond eight hours daily. and cannot be contradicted unless previously shown to have been made through palpable mistake or that no such admission was made.5.g.

alleging that that there was no employer-employee relationship between A and the guards. Insular Life Assurance Co. G.R. It would neither be fair nor just to allow private respondents to recover something they have not earned and could not have earned because they did not render services at the Kalibo office during the stated period (Aklan Electric Cooperative Incorporated v. No. The facts indicate a concerted effort on the part of respondents to remove petitioners from the company and thus abate the growth of the union and block its actions to enforce their demands in accordance with the Labor Standards laws. It is evident from the foregoing provision that the working hours may be changed..M. justify wrong. It was established that the employees adhered to the said work schedule since 1988. Employees Association-NATU vs. the two-shift schedule while their CBA was still in force and even prior thereto. 2000). or management and employee of a "fair day's wage for a fair day's labor" remains as the basic factor in determining employees' wages. they cannot now be heard to claim that the overtime boycott is justified because they were not obliged to work beyond eight hours. Regular Working Hours — A normal workday shall consist of not more than eight (8) hours. the laborer was able. however the company may change the prevailing work time at its discretion. a. when the concept of separate legal entity is used to defeat public convenience. the law will regard the corporation as an association of persons. December 19. of course. should such change be necessary in the operations of the Company. As the employees assented by practice to this arrangement. or in case LABOR LAW Red Notes in Labor Law 45 .. When the guards filed a case of illegal dismissal and ULP against both A and B. However. 15. Ltd. The employees are deemed to have waived the eight-hour schedule since they followed. The regular working hours for the Company shall be from 7:30 A.. protect fraud or defend crime. 142824. The schedule of shift work shall be maintained.2005 CENTRALIZED BAR OPERATIONS YES. No. Brillantes. When the employees of B formed a union. 14. In the case before us. 121439. Ltd. or otherwise illegally prevented from working (Caltex Refinery Employees Association (CREA) vs. A Co. and it is not necessary that there be direct evidence that any employee was in fact intimidated or coerced by statements of threats of the employer if there is a reasonable inference that anti-union conduct of the employer does have an adverse effect on selforganization and collective bargaining. at the discretion of the company. January 25.37 SCRA 244 (1971). X who also owned B Security Agency (BSA). Is the doctrine of piercing the veil of corporate fiction applicable hereto? It is a fundamental principle in corporation law that a corporation is an entity separate and distinct from its stockholders and from other corporations to which it is connected. Should the MOTION be granted? Explain. without any question or complaint. All employees shall observe such rules as have been laid down by the company for the purpose of effecting control over working hours.” b. If there is no work performed by the employee there can be no wage or pay unless. a tobacco manufacturing firm. NLRC. is owned by Mr. A’s management preterminated the security contract between A and B firms. Explain the principle of “A FAIRS DAY WAGE FOR A FAIRS DAY’S LABOR” The age-old rule governing the relation between labor and capital. 279 SCRA 218) . should such change be necessary for its operations. In Interphil Laboratories Employees Union FFW v..M. Interphil (G. to 4:30 P. that “the test of whether an employer has interfered with and coerced employees within the meaning of section (a) (1) is whether the employer has engaged in conduct which it may reasonably be said tends to interfere with the free exercise of employees' rights under section 3 of the Act.R. The Court held in Insular Life Assurance Co. suspended or dismissed. a situation which we find is not present in the instant case. NO. Labor Arbiter Caday found that respondent company had to adopt a continuous 24-hour work daily schedule by reason of the nature of its business and the demands of its clients.. the counsel of A filed a Motion to Dismiss. The Motion should not be granted. The two-shift schedule effectively changed the working hours stipulated in the CBA. 2001) it was held by the Court that: Section 1. willing and ready to work but was illegally locked out. and that the employees shall observe such rules as have been laid down by the company.

as he did not perform work for anyone else. Pandoy was an electrician who worked within the premises of Ushio's car accessory shop. the Court cannot allow A Co.” It further claimed that it was a recognized and accepted trade practice peculiar to the auto spare parts shop industry operating along the stretch of Banawe Street that shop owners would collect the service fees from its customers and disburse the same to the independent contractor at the end of a week. However. Quezon City. taking into account permanency of the relations. according to his own manner and methods and free from the control and direction of his principal. tools. but in the application of social legislation. the duty to supply the premises. 2001) 16. the skill required. Ushio argues that in fine. Pandoy was free to position himself near other car accessory shops to offer his services to customers of said shops. provided A Co. and bust their newly-organized union which was then beginning to become active in demanding the company's compliance with Labor Standards laws. the nature and extent of the work. Discuss the doctrine on the “economic reality of the relations of parties” test with respect to the existence of employer-employee relationship. (De Leon vs. and terms of payment. there are independent. and other benefits against Ushio. to use its separate corporate personality to shield itself from liability for illegal acts committed against its employees. May 30. in Banawe Street. and other companies belonging to its owners. It is the total situation that controls. firing. (Investment Planning Corp. the shop owner and the free lance operator. holiday pay. He filed a complaint for illegal dismissal. The relationship of employer-employee. Is he correct? NO. as an independent contractor. employees are those who as a matter of economic reality are dependent upon the business to which they render service. the control and supervision of the work. Under these circumstances. The concept of independent contractor is interminably linked with the economic reality test when we consider the fact that such person is one who carries on a distinct and independent business and undertakes to perform the job to do a piece of work on his own account and under his own responsibility. were partners in trade. whether the work is part of the employer's general business. non-payment of overtime pay. Control is characteristically associated with the employer -employee relationship. by virtue of a contract for security services. vs. the control of the premises. with security guards to safeguard its premises. and payment of the contractor's servants-. The purported sale of the shares of the former stockholders to a new set of stockholders who changed the name of the corporation appears to be part of a scheme to terminate the services of BSA’s security guards posted at the premises of A Co.College of Law LAW San Beda LABOR of two corporations. have the same owners and business address. material and labor. records show that BSA and A Co. Ople. the term and duration of the relationship. the power to terminate the relationship. 112661. On the other hand. In the case at bar. and the mode. freelance operators who are permitted by the Company to position themselves proximate to the San Beda College of 46 Law . and BSA provided security services only to A Co. the right to assign the performance of the work to another. the skills required and the investments in the facilities for work and opportunities for profit or loss from activities. "both benefiting from the proceeds of their joint efforts. which determines the liability for employment taxes under the Social Security Act was not to be determined solely by the idea of control which an alleged employer may or could exercise over the details of the service tendered to his business by the worker or workers. appliances. which moved to dismiss the complaint claiming that Pandoy was not an employee but a free lance operator who waited on the shop's customers should the latter require his services. The separate juridical personality of a corporation may also be disregarded when such corporation is a mere alter ego or business conduit of another person. Pandoy insists that he is entitled to the benefits because he was loyal to Ushio. BSA. Moreover. manner. 70 SCRA 139) 17. except as to the result of the work. it was shown that BSA was a mere adjunct of A Company.R. the employer's powers and duties with respect to the hiring. Among the factors to be considered are whether the contractor is carrying on an independent business. the existence of a contract for the performance of a specified piece of work. (MAFINCO Corporation v. SSS. NLRC. G. merge them into one. In stark contrast to the Company’s regular employees. No. 21 SCRA 924).

In the employment of workers. These operators are not supervised by any employee of the Company since the results of their work is controlled by the customers who hire them. They are not subject to any disciplinary measures from the Company. These independent operators are allowed by the Company to wait on Company customers who would be requiring their services. 18. the Company has no control as an employer over these operators. the principal then becomes the employer of the employees engaged to accomplish the job or service. the contractor or subcontractor is also referred to as an independent contractor. Has the power to select and hire the employee.2005 CENTRALIZED BAR OPERATIONS company premises. 294 SCRA 673 (1998)]. under which the employer: a. save merely for the inherent rules of general behavior and good conduct [Ushio Marketing v. A job contractor or subcontractor directly undertakes a specific job or service for a principal. What exists is not job contracting or subcontracting but a direct employer-employee relationship between the principal and the employees and the job contractor becomes merely the agent of the principal or the subcontractor. Has the power to transfer and dismiss or discharge employees. The employees engaged by the job contractor or subcontractor to accomplish the job or service. is there a difference between an ordinary employeremployee relationship and independent job contracting/ subcontracting? YES. c. It is enough that the employer retains the right to exercise this power. In job contracting or subcontracting. In exchange for the privileges of favorable recommendation by the Company and immediate access to the customers in need of their services. This relationship is established through a four-fold test. as it may deem necessary or appropriate. In effect. there are only two parties involved the employer and the employee. In job contracting / subcontracting. Is there a difference between a job contractor or subcontractor and a private recruitment and placement agency (PRPA)? YES. and for this purpose employs its own workers. A private recruitment and placement agency is governed by Articles 25 to 39 of the Labor Code and the rules implementing these articles. The principal who decides to farm out a job or service to a subcontractor. the four-fold test of employer-employee relationship should be satisfied by the contractor or subcontractor in relation to the employee it engages to accomplish the contracted or subcontracted job or service. They are not subject to regular hours and days of work and may come and go as they wish. The employer need not actually exercise this power. If the four-fold test is satisfied not by the job contractor or subcontractor but by the principal. The job contractor or subcontractor which has the capacity to independently undertake the performance of the job or service. NLRC. 19. A job contractor or subcontractor is governed primarily by Articles 106-109 of the Labor Code. these independent operators allow the Company to collect their service fee from the customer and this fee is given back to the independent operator at the end of the week. LABOR LAW Red Notes in Labor Law 45 . Directly exercises control and supervision over the employee not only as to the results of the work but also as to the means employed to attain this result. d. Has the obligation to pay the employees his or her wages and other benefits. the agent of his contractor. The Company has no control over and does not restrict the methodology or the means and manner by which these operators perform their work. b. b. there are three parties involved: a. In such cases. as the case may be. It simply recruits workers for the purpose of placing them with another employer so that the workers recruited will not become the PRPA's employees. and c. Likewise. they do not earn fixed wages from the Company as they earn their variable fees from the customers of the Company. A PRPA cannot be a subcontractor. The power of control is the most important factor in determining the existence of an employer-employee relationship. In an ordinary employer-employee relationship .

restrain or coerce employees in the exercise of their right to self-organization. Series of 1993. which disallows contracting out of services or functions being performed by union members when such will interfere with. 20. Article 280. particularly Articles 106 to 109 thereof. Vinoy v. G. Article 2180 of the Civil Code. No. Article 248 (c) of the Labor Code.R.O. e. Series of 1997. 1999 . b. 19. The agreement between the principal and the contractor or subcontractor assures the contractual employees entitlement to all occupational safety and health standards. The contractor or subcontractor has substantial capital or investment. 10 was still in force. It recognizes the continuing validity of contracts entered into when D. The contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job. 5487. 3 and 19. G. and h. A PRPA needs an authority or license from DOLE to legally undertake recruitment and placement activities. by which a new set of rules shall be formulated. and D. No. Contractual stipulations provided these are not in conflict with Labor Code provisions. c. 10. which was then the implementing rules on Articles 106 to 109. February 19. It sets the process and mechanism. What are the important features of D. which regulates the operation of security agencies. Jurisprudence interpreting the foregoing laws. 3? The following are the important features of D. 126586. Department Order No.O. and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof. which took effect on 29 May 2001 was the latest set of rules released by the DOLE implementing Articles 106 to 109. February 02. project or seasonal employees. No. the definition of legitimate subcontracting is as follows: Contracting or subcontracting shall be legitimate if the following conditions concur: a.O. under which the principal. 21. for subcontracting arrangements in the construction industry. It prohibits labor-only contracting. e. free exercise of the right to self organization. which classifies employees into regular.O. 22. What law or rules govern job contracting or subcontracting? The basic law governing job contracting or subcontracting is the Labor Code. It is a temporary measure. and social and welfare benefits.R. Labor Code. NLRC.College of Law LAW San Beda LABOR A job contractor or subcontractor does not need authority from the Department of Labor and Employment (DOLE) to undertake a subcontracted job or service. Is job contracting or subcontracting illegal? NO. San Beda College of 46 Law . b. NLRC. 3. Nos. The following laws and rules also apply in addition to Articles 106 to 109 of the Labor Code: a. in a civil suit for damages instituted by an injured person. can be held liable for any negligent acts of the employees of a labor-only contractor. c. No. provided the requirements for legitimate job contracting or subcontracting are satisfied and the prohibition against labor-only contracting or subcontracting is observed. d. 3: a.2000. and its implementing rules. according to its own manner and method. No. These provisions prescribe the conditions for the regulation of job contracting or subcontracting and the rights and obligations of parties to this arrangement. Republic Act No. D. b. jurisprudence. c. security of tenure. No. In two recent cases decided by the Supreme Court. f. d. which is through consultations through the Tripartite Industrial Peace Council. and Lim v. 124630.O. work or service on its own account and under its own responsibility. It revoked Department Order No.

25. it cannot independently undertake to perform a contracted or subcontracted job or service. the “Phenomenon. Article 106 of the Labor Code. Nabisco Biscuits and Licron. A labor-only contractor is one who presents itself as an employer even if it does not have capital to run a business or capacity to ensure that its workers are paid their wages and other benefits as prescribed by law. which allows the Secretary of Labor to distinguish between labor-only contracting and job contracting to prevent any violation or circumvention of the Labor Code. machineries. work premises. tools. It had an authorized capital stocks of P500. equipment. That is. What is substantial capital? Is substantial capital sufficient to establish legitimate subcontracting? Substantial capital refers to such investment.R.L. The SEC registration certificate of D. marketing and merchandising. to wit: “D. machineries. For example. among others. It owned several motor vehicles and other tools. Red Notes in Labor Law 45 . NLRC. Where a job contractor or subcontractor is highly capitalized. what evidence will you present to refute the charge? Explain.L. or subscribed capital stock that would indicate the subcontractor's capacity to undertake the contracted or subcontracted work or service independently.” d. equipment. work premises. which provides that the State shall protect labor and promote its welfare. 2000. 24. The service contract between CMC and D. To allow a labor-only contractor to operate is to give it an opportunity to circumvent the law and to exploit workers. It had several merchandising contracts with companies like Purefoods. Admark is a legitimate independent contractor. and shall guarantee basic labor rights including just and humane terms and conditions of employment and the right to self-organization. b.L.2005 CENTRALIZED BAR OPERATIONS LABOR LAW 23. materials and equipment to service its clients. c. it can undertake the performance of the contract according to its own manner and method. It paid rentals of P30. The Constitution. to be considered legitimate. publication. It was likewise engaged in the publication business. b. June 8. Corona supply. The objective of the State in prohibiting labor-only contracting is to ensure that labor laws are followed and to prevent the exploitation of workers. It then had current assets amounting to P6 million and is therefore a highly capitalized venture. Admark states that it is a firm engaged in promotional. No. I would present the same documents shown in the case of Escario vs. However. What is the basis of the State in prohibiting labor-only contracting? What is the objective and the prohibition? The basis of the State in prohibiting labor-only contracting are: a. Admark was actually engaged in several activities such as advertising. Admark as a legitimate job contractor are: a. It had its own capital assets to carry out its promotion business. as evidenced by its magazine. a contractor or subcontractor with a capital stock of P1 Million which is fully subscribed and paid for has been deemed by the Supreme Court to be a highly capitalized venture which satisfies the requirement of substantial capital. advertising. As such. facilities.L. promotions. 124055.020 for the office space it occupied. D. the Supreme Court has held that it need not show evidence that it has investment in the form of tools.L. G. If you are the counsel of an agency which is being charged of LABOR-ONLY CONTRACTING. Admark clearly provides that the agreement is for the supply of sales promoting merchandising services rather than one of manpower placement.000. Among the circumstances which tend to establish the status of D. marketing and merchandising activities. it is still necessary for it to show that it has the capacity to be an independent contractor. whether it is in the form of money. free from the supervision of the principal in all matters except as to the results of the work.

c. b. The second type of liability. d. v. Which employer should be held liable for the wages of security guards. No. 1989. 29. January 26. NLRC. mere inability of the contractor or subcontractor to pay wages will not automatically make the principal the direct employer. G. “There is no employer-employee relationship between a commission agent and an . 114316. the PRINCIPAL EMPLOYER or the AGENCY? Explain. 84484. Premises considered. Ltd. therefore. the principal shall be held responsible to the workers in the same manner and extent as if it directly employed these workers.College of Law LAW San Beda LABOR 26. If the labor-only contracting activity is undertaken by a legitimate labor organization. 15. is the amendment of the contract as to the consideration to cover the service contractor’s payment of the increase mandated. In such cases. No. Under Article 106. This payment covers the wages for the security guards and also expenses for their supervision and training. subject to the classifications of employees under Article 28 of the Labor Code. wherein the former availed of the security services provided by the latter. If a legitimate independent job contractor or subcontractor cannot pay the wages of the employees it engages to perform the job or service. 2001) . firearms with ammunitions. The principal and the contractor or subcontractor will be solidarily treated as the employer. The first type of liability is limited. the guards’ bonds.R.R. a petition for cancellation of union registration may be filed against it. the ultimate liability for the payment of the increases rests with the principal (Security and Credit Investigation Inc. tools. What the Wage Orders require. pursuant to Article 239 (e). Since the act of an agent is the act of the principal. However. materials and supplies necessary for the maintenance of a security force. will the principal automatically become the employer of such employees? NO. a principal has two types of liability in relation to the employees of the contractor or subcontractor. In return. uniforms and other equipments [sic]. The principal will become the employer as if it directly employed the workers engaged to undertake the contracted or subcontracted job or service. In the end therefore. G. the security agency collects from its client payment for its security services. 27. It will only make the principal jointly and severally liable with the contractor or subcontractor for payment of the employees' wages to the extent of the work performed under the contract. 3. It will be responsible to them for all their entitlements and benefits under the labor laws. accessories.O. Nov. No. is absolute and direct. The employees will become employees of the principal. This liability arises when there is labor-only contracting as defined in D. NLRC. in order for the security agency to comply with the new wage and allowance rates it has to pay the security guards. San Beda College of Law 46 There existed a contractual agreement between PTSI and EAGLE. and is governed by the first two paragraphs of Article 106. the Wage Orders made specific provision to amend existing contracts for security services by allowing the adjustment of the consideration paid by the principal to the security agency concerned. When is an “insurance agent” deemed an independent contractor of an insurance company? As held in Insular Life Insurance Company. Thus. which arises from the third and fourth paragraphs of Article 106. EAGLE. representations made by the contractor or subcontractor to the employees will bind the principal. The contractor or subcontractor will be treated as the agent of the principal. the security guards’ immediate recourse for the payment of the increases is with their direct employer. What are the effects of a labor-only contracting arrangement? The following are the effects: a. vs. 28.

the peddlers are independent contractors and not employees of petitioner. c. which provides the rule on deposits for loss or damage to tools. it will be noted that there was nothing to prevent the drivers from cleaning the taxi units themselves. 1976. d. dependent upon the insolvency or unwillingness to pay on the part of the contractor or direct employees? NO. is subject to regulations by the State with respect. NLRC. Is the joint and several liability of the principal and the job contractor under Articles 107 and 109. and who finally shouldered their own selling and transportation expenses. but also to the internal affairs of the insurance company. job or project. does not apply to or permit such kind of deposit. after a tour of duty. a peddler formally entered into a peddling contract with petitioner for the purchase and sale of Cosmos softdrinks. L-37790. indicating the manner of selling the goods. task. Nothing in Article 106 indicates that insolvency or unwillingness to pay by the contractor or direct employer is a prerequisite for the joint and several liability of the principal or indirect employer. Red Notes in Labor Law 45 . while on the other hand the peddler employs the driver and helpers and take care of the latter's compensation and social security contributions. nor to devote their time exclusively to working for the company nor to submit a record of their activities. not only to the relations between insurer and insured. and those that control or fix the methodology and bind or restrict the party hired to the use of such means. as in the business of insurance. paid compensation in the form of commissions based on percentages of their sales. 32. August 22. The distinction acquires particular relevance in the case of an enterprise affected with public interest. June 17. which on that account. which aims only to promote the result. The requirement for deposit to defray any deficiency in the remittance of drivers “boundary” is not lawful. GR No. Ople. if not guarantees.” Logically. if they wanted their car wash payments (Five J Taxi vs. payment of the workers’ performance of any work. create no employer-employee relationship unlike the second. When are “salesmen” considered “employees” of a business establishment? independent contractors rather than regular LABOR LAW In. not required to report for work at any time. The first. Finally. required to put up performance bond. subject to a set of rules and regulations governing the performance of their duties under the agreement with the company and termination of the services for certain causes. it was held where. it is incumbent upon the driver to restore the unit he has driven to the same clean condition when he took it out. in relation to Article 106 of the Labor Code. There is no dispute that as a matter of practice in the taxi industry. March 25. Furthermore. materials or equipment supplied by the employer. MAFINCO Trading Corporation v. NLRC. the amounts doled out were paid directly to the persons who washed the units. b. any balance of commissions earned being payable to their legal representatives in the event of death or resignation. whereby the petitioner provides the peddler with delivery truck and bears the cost of gasoline and maintenance of' the truck. as in the case at bar.2005 CENTRALIZED BAR OPERATIONS investment company. thus giving the workers ample protection as mandated by the 1987 Constitution (Development Bank of the Philippines vs. But the requirement for deposit for car wash payments is lawful. which addresses both the result and the means used to achieve it. A taxicab company required its taxi drivers to make deposits to defray any deficiency which the latter may incur in the remittance of their “boundary” and to cover car wash payments. the line should be drawn between rules that merely serve as guidelines toward the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it. 31. This joint and several liability facilitates. 1994). 30. 1994). The former is an independent contractor where said agent and others similarly placed are: a. Is this requirement authorized under Article 114 of the Labor Code? Explain. Article 114.

NO. Drilon. January 25.. 36. the first to be made upon receipt of maternity leave application and the second not later than 30-days after payment of the first installment. or by 78 days in cases of caesarian section delivery. Beneficiaries thereof are therefore. Unless otherwise provided by law. by right. be they in the form of salary increases or changes in the salary scale are aimed at one thing . compliance with a collective bargaining agreement is mandated by the expressed policy to give protection to labor.College of Law LAW San Beda LABOR 33. supply and demand of basic goods. May 7. She should not be discriminated against in employment by reason of her age. (Meycauayan College vs. entitled to the fulfillment of the obligation prescribed therein. at the same time. Does a wage increase granted pursuant to a collective bargaining agreement constitute compliance with a subsequently issued wage order? NO. San Beda College of 46 Law . resulting in the elimination or the severe dimunition of the distinction between the two groups (Prudential Bank Association vs. such as the cost of living. Can a woman be employed in any kind of occupation or undertaking? YES. and the purchasing power of the peso. It is distinct from an obligation imposed by law. Varying in each region of the country are controlling facts. having entered into an agreement with its employees. Increments to the laborers' financial gratification. No. And the fact that a person is receiving more in one region does not necessarily mean that he or she is better off than a person receiving less in another region. services and necessities. she can be employed in any occupation or undertaking allowable by law. provided it is not deleterious to her health and safety. 81144. The terms and conditions of a collective bargaining contract constitute the law between the parties. the law grant the employees the same or better terms and conditions of employment. Favoring a male employee over a female employee with respect to promotion. 37. b. What are considered as acts of discrimination against women? The following are considered acts of discrimination: a. salary and fringe benefits. marital status and pregnancy. they should be viewed in the light of the State's avowed policy to protect labor. for work of equal value. the SSS will reimburse the employer after the contingency for the amount of maternity benefit legally advanced to the employee. As such.improvement of the economic predicament of the laborers. Prudential Bank and Trust Co. an employer may not be allowed to renege on its obligation under a collective bargaining agreement should. 1990). Payment of a lesser compensation. Wage distortion presupposes an increase in the compensation of the lower ranks in an office hierarchy without a corresponding raise for higher-tiered employees in the same region of the country. said policy should be given paramount consideration. to a female employee as against a male employee. The employer advances the maternity leave benefit to the qualified employee in full or in two equal installments. 35. 34. How much maternity leave benefit will a pregnant woman receive? Who will pay the maternity leave benefits? The member shall receive a maternity benefit equivalent to 100% of her average daily salary credit multiplied by 60 days for normal delivery. The wages in different regions are not uniform. G. Upon receipt of satisfactory proof of such payment.R. Employee benefits derived from law are exclusive of benefits arrived at through negotiation and agreement unless otherwise provided by the agreement itself or by law. including wage. study and scholarship grants solely on account of their sexes. Moreover. training opportunities. Do disparity in wages between employees holding similar positions but located in different regions of the country constitute wage distortion as contemplated by law? Explain. Thus. 1999) . A collective bargaining agreement is a contractual obligation.

c. at dangerous heights or at unguarded heights of two meters and above. facilities for women such as seats. 39. delivery. 8044). The extended leave benefit shall be a hindrance to recover sickness benefit for the same period of 60 days for the same childbirth. Flexible work schedule to any solo parent as defined in Republic Act No. Employed minors who are from 15 to below 18 years of age (Labor Code). What is the minimum employable age for young workers? The minimum employable age for young workers is 18 years old. What is the status of a woman permitted or suffered to work in any night club. 43. 41. subject to the exceptions specified by Republic Act No. d. Those engaged in Child Labor. equivalent to the same percentage as the benefit granted by SSS. namely: a. The working youth who are between 15 and 30 years of age (Republic Act No. or other similar establishment under the Labor Code? Any woman who is permitted or suffered to work with or without compensation in any night club. any person between 15 and 18 years of age may be employed in undertakings not hazardous or deleterious in nature. or in confined spaces. Parental leave of not more than seven days every year to the solo parent who has rendered at least one-year service. or similar establishment shall be considered as an employee of such establishment for purposes of labor and social legislation. What is a non-hazardous undertaking? It refers to any kind of work or activity. What other statutory benefits and services shall an employer provide the woman employee? The employer shall provide the following: a. 8972. bar. Can a maternity leave benefit be extended beyond the allowable PERIOD? YES. cocktail lounge. massage clinic. to determine the appropriate minimum age and other standards for retirement in special occupations for women. f.2005 CENTRALIZED BAR OPERATIONS LABOR LAW 38. if the establishment regularly employ more than 200 workers. a maternity leave may be extended beyond 60 days upon request of the woman employee. b. safety and health. b. Work under ground. 44. abortion or miscarriage. psychological or sexual abuse. complete abortion or miscarriage which renders her unfit to work. bar. d. b. in which the employee is not exposed to any risk that constitutes an imminent danger to his or her life and limb. What are the hazardous work and activities to persons below 18 years of age? Hazardous work and activities to persons below 18 years age include: a. 7658. c. under water. Red Notes in Labor Law 45 . Work which exposes children to physical. which is prohibited by law. However. separate toilet rooms and nursery in the work place. Holiday pay during the period that the woman employee is receiving maternity or disability benefits. Working children who are below 15 years of age. 42. Who are considered young workers and working children? Young workers are in different categories. Free family planning services to employees and their spouses. e. 40. Such request must be due to illness medically certified to arise out of her pregnancy.

whether male or female. e. or from 15 to below 18 years. tobacco and its by-products or exhibiting violence. The employer parent or legal guardian provides the child with primary and / or secondary education prescribed by the Department of Education. There is a written contract approved by the DOLE. to harmful biological agents. The employment does not interfere with his or her schooling. poisonous. 49. The employment does not endanger the child’s life. noise levels or vibrations damaging to their health. may be employed as a domestic servant to render service in and about the employer’s home. d. such as ministering to the personal comfort and enjoyment of the employer’s family. The employment does not involve advertisement or commercials promoting alcoholic beverages. Culture and Sports (DECS). b. or which involves manual handling or transport of heavy loads. flammable and combustible substances or composites. or work where the child is unreasonably confined to the premises of the employer. . safety. Can a person between 15 and 18 years of age be allowed to engage in domestic service? A minor. Where the child’s employment or participation in public entertainment or information through cinema. is he or she entitled to the same terms and conditions of employment accorded to an employee of legal age? YES. explosive. to temperatures. where there is an employer-employee relationship. Work with hazardous machinery. The employment does not impair the child’s moral development c. b. Can a child below 15 years of age be employed or made to work? A child below 15 years old is NOT permitted to work in any public or private establishment EXCEPT in these two situations: 1. or exploitative. or to other dangerous chemicals including pharmaceuticals. noxious. Once a firm validly employs a young person. performing work or service that is hazardous or deleterious in nature. When the child works directly under the sole responsibility of his or her parents or guardians or legal guardian and where only members of the employer’s family are employed. d. 46. 2. c. health and morals. theater. or deprives that child’s right to health and education. to toxic. The Social Security Law provides that coverage in the SSS is compulsory upon all employees not over 60 years of age. equipment and tools. This law defines an employee as any person who performs services for an employer and who receives compensation for such services. Work in an unhealthy environment which may expose children to hazardous processes. Can a young worker be a member of the Social Security System (SSS) and avail of the social security (SS) and Employees Compensation (EC) benefits? YES. which services are usually necessary or desirable for the maintenance and enjoyment thereof. The employment does not endanger the child’s life.College of Law LAW San Beda LABOR c. Who are considered child laborers? Child laborers are persons aged below 15. corrosive. on the following conditions: a. or unsupervised by the child’s parent or guardian. San Beda College of Law 46 47. or that interferes with normal development. 45. radio or television is essential. safety and health and morals. intoxicating drinks. Work under particularly difficult conditions such as work for long hours or during the night. An employer is prohibited by the Labor Code to discriminate against any young person with respect to terms and conditions of employment on account of his or her being a minor. Self-employed young persons can also be SSS members. provided that: a. 48.

51. 53. the procedure to be observed is governed not by the general provisions of law. The employees contended that since the work would be completed after more than one (1) year. April 28. decided to have their building renovated. Art. who shall be directly under the care of the section supervisor. 7323 provides for employment assistance to students who are at least 15 but not more than 25 years of age enrolled or intending to be enrolled in any secondary. 139 (c) of the Labor Code provides that a person below eighteen (18) years of age shall not be allowed to work in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor. July 30. architects and other construction workers. As incentives for employers. circumstances. under this law. composed of engineers. Such benefits cannot be considered as property earned by the member during his lifetime. constitute only an insignificant portion thereof. G. And it is not the probate or regular court but the Commission that determines the persons to whom the benefits are payable (Social Security System vs. aged seventeen (17). What are the benefits provided by law to young and deserving students who want to work? Republic Act No. No. 54. The time to do so may vary depending upon the needs. 124617. An employer. The owners of FALCON Factory.2005 CENTRALIZED BAR OPERATIONS However. not all children who work are engaged in child labor. tertiary. I will advise the paint manufacturing company that it cannot hire a person aged seventeen (17). G. L-21642. His contributions to the fund. can be a national or local government office or a private establishment or undertaking. the emotional threshold of the employee (Philippine Aeolus Automotive United Corp. Work performed by any person below 15 years of age is not considered child labor if it falls under allowable situations under Republic Act No. 50. Furthermore. NLRC. legal and respects the child’s right to health and education is not child labor. You were asked by a paint manufacturing company about the possible employment as a mixer of a person.R. Are SSS benefits considered property earned by the member during his lifetime? Do they form part of his estate? Explain.R. they shall pay the students only 60% of the basic wage and the remaining 40% in the form of educational vouchers payable by the government. Thus. vs. Fifty (50) persons. vocational or technological institutions. 1966). Davac. Strictly speaking there is not time period within which he or she is expected to complain through the proper channels. the benefits are specifically declared not transferable and exempt from tax legal processes and liens. 2000). were hired by the company for this purpose. 52. No. The benefits receivable under the SSS law are in the nature of a special privilege or an arrangement secured by the law pursuant to the policy of the State to provide social security to the workingman. Is their contention correct? LABOR LAW Red Notes in Labor Law 45 . Light work that is occasional. in the settlement of claims. Any employee. it may be noted. The gravamen of the offense in sexual harassment is not the violation of the employee’s sexuality but the abuse of power by the employer. male or female. What advice would you give? Explain briefly. a company engaged in the assembling of automotive components. The work is estimated to be completed in three (3) years. and more importantly. The qualified and deserving youth can be employed during the summer and /or Christmas vacation as aid to the pursuit of their education. they should be subject to compulsory coverage under the Social Security Law. The Secretary of Labor has classified paint manufacturing as hazardous work. 7658. but by rules and regulations promulgated by the Social Security Commission. may rightfully cry foul provided the claim is well substantiated. Does the delay on the part of the victim of sexual harassment to complain said act impair his cause of action against his/her employer? NO.

Do Labor Arbiters or the NLRC have jurisdiction over criminal cases involving violations of the penal provisions of labor laws? Explain. In the problem given. 1999).College of Law LAW San Beda LABOR NO. Falcon Factory is a company engaged in the assembling of automotive components. Furthermore. as the case may be. Laguesma. the mere fact that an employee is designated manager" does not ipso facto make him one. No. Top and Middle Managers have the authority to devise. or doctrines of the church (Austria vs. August 16. Designation should be reconciled with the actual job description of the employee. 56.file employees of an organization. Simply stated. LABOR RELATIONS 55. the employment of these fifty (50) persons is purely casual. they do not adhere strictly to the technical rules of evidence. implement and control strategic and operational policies while the task of First-Line Managers is simply to ensure that such policies are carried out by the rank-and. The fifty (50) persons (engineers. Do labor arbiters have jurisdiction over illegal dismissal cases that may be filed against priests and ministers? YES. 101738. Hence. must fail and the same should be as it is hereby dismissed. Being managerial employees.R.R. Middle Managers and First Line Managers. PICOP contends that no malice should be imputed against it for implementing its decentralization program only after the petition for certification election was filed inasmuch as the same is a valid exercise of its management prerogative. In United Pepsi-Cola Supervisory Union (UPSU) v. "managerial employees" therefore fall in two (2) categories. The work to be performed by these fifty (50) people is not in connection with the purpose of the business of the factory. PICOP emphatically stresses that it could not have conceptualized the decentralization program only for the purpose of "thwarting the right of the concerned employees to selforganization. we had occasion to elucidate on the term "managerial employees. April 12. who have been designated as Section Managers and Unit Managers. 124382. and the "supervisors" composed of First-Line Managers. employment of purely casual employees. 57. G. PICOP's main thesis is that the positions Section Heads and Supervisors. for it is the job description that determines the nature of employment (PICOP vs. they are ineligible for union membership under Article 245 of the Labor Code. Labor Arbiters or the NLRC are not invested with the judicial power. The petition not being meritorious. G. An employment is purely casual if it is not for the purpose of occupation or business of the employer. which was realized only in 1989 and fully implemented in 1991. they merely exercise quasi-judicial functions." Is PICOP’s contention tenable? NO." Managerial employees are ranked as Top Managers. 2000). NLRC. and that said program has long been in the drawing boards of the company. The regular courts have jurisdiction over criminal cases involving violations of the labor laws. The fact that a case involves the church and its religious minister does not ipso facto give the case a religious significance. Under this distinction. were converted to managerial employees under the decentralization and reorganization program it implemented in 1989. namely. what is involved in an illegal dismissal case is the relationship of the church as an employer and the minister as an employee—a purely secular matter not related to the practice of faith. as amended. Laguesma. architects and construction workers) were hired by Falcon Factory to renovate its building. They are therefore excepted from the compulsory coverage of the SSS law. This is required in criminal cases where the guilt of the accused must be established beyond reasonable doubt. Thus. In the hearing and disposition of cases brought before them. with alleged authority to hire and fire employees. Under Section 8 (j) of RA 1161. the "managers" per se composed of Top and Middle Managers. worship. not for the purpose of the occupation or business of the employer are excepted from compulsory coverage. San Beda College of 46 Law . No.

This calls for the application of the principle of lex loci contractus (the law of the place where the contract was made).Rr No. Under this principle. c. Explain the doctrine of forum non-conveniens. the Palace Hotel. 121498. While it is true that jurisdiction over the subject matter of a case may be raised at any time of the proceedings. a Philippine court or agency MAY assume jurisdiction over the case if it chooses to do so. Faburada. PROVIDED: a. and intra-cooperative disputes shall. 141093. 121. May this doctrine be invoked against the exercise of jurisdiction by the labor arbiter? Under the rule of forum non conveniens. NLRC and Marcelo Santos which ruled that the NLRC was a seriously inconvenient forum on the following grounds: a. Even assuming that the proper decision could be reached by the NLRC. Does the principle of “Jurisdiction by Estoppel” apply in labor cases? YES. to employment. The NLRC is an inconvenient forum given that all the incidents of the case. NLRC and Court of Appeals. Neither can an intelligent decision be made as to the law governing the employment contract as such was perfected in foreign soil. Settlement of Disputes. and c. that the Philippine court is in a position to make an intelligent decision as to the law and the facts. 59.2005 CENTRALIZED BAR OPERATIONS LABOR LAW 58. that the Philippine court has or is likely to have power to enforce its decision. No. officers. hence jurisdictions over its person was not acquired. such would not have any binding effect against the employer. as far as practicable. and committee members. Reyes. In this case the petitioner bank actively participated in the proceedings before the Labor Arbiter. Red Notes in Labor Law 60. It was only when the Court of Appeals made an adverse decision did it raise the issue of jurisdiction. and in applicable laws. vs. Feb.from the time of recruitment. 2001. a party to a labor case is estopped from raising the issue of jurisdiction of the labor arbiter when he has participated in the proceedings from start to finish. the matter shall be settled in a court of competent jurisdiction. The inconvenience is compounded by the fact that the proper defendants – the Palace Hotel and MHICL – are not nationals of the Philippines. the principle of Jurisdiction by Estoppel applies to labor cases as was held by the Supreme Court in the case of Prudential Bank and Trust Company vs. be settled amicably in accordance with the conciliation or mediation mechanisms embodied in the by-laws of the cooperative." 45 . G. Should such a conciliation/mediation proceeding fail. This doctrine may be invoked against the exercise of jurisdiction of the labor arbiters as held in the case of Manila Hotel Corporation and Manila Hotel International limited vs. October 8. b. and to dismissal occurred outside the Philippines. 2001 it was clarified that: ART. directors. this rule presupposes that laches or estoppel has not supervened. Likewise. Neither are they doing business in the Philippines.R. the main witnesses are non-residents of the Philippines. YES. Does the Labor Arbiter have jurisdiction over disputes involving the wages and terms and conditions of employment of COOPERATIVE employees? Explain. — Disputes among members. The Supreme Court held that it was already too late to raise the issue of jurisdiction as the petitioner was already in estoppel. that the Philippine court is one to which the parties may conveniently resort to. 20. The Palace hotel is a corporation incorporated under the laws of China and was not even served with summons. G. In the case of Perpetual Help Credit Coop Inc. b.

vs. — Upon request of either or both parties.R. 61. 140089. Such decision could be in the form of a monetary award in favor of an employee. There is no evidence that private respondents are members of petitioner PHCCI and even if they are. May an execution be stopped merely because of a third party claim? NO. After all. 65. stating in clear terms the reasons for such a denial. for the moment. 6939 (Cooperative Development Authority Law) which reads: SEC. Samson. A copy of the notice of denial should be furnished to the applicant union. he must post a cash or surety bond issued by a reputable bonding company duly accredited by the NLRC in the amount equivalent to the monetary award in the judgment appealed from. No. G. Inc. September 16. why does the law require an employer to post a cash or surety bond as an indispensable condition for the perfection of an appeal? An appeal stays the execution of an award. the dispute is about payment of wages. In fact. NLRC. it is simulated or fictitious and. In cases involving monetary award. What is the effect of the filing/pendency of inter/intra union and other related labor disputes to the relationship of the party litigants? 5 The rights. however should be characterized by care and caution for the law requires that it be clearly justified by considerations of extreme necessity. void ab initio (Tanongon v. particularly where — as in the present case — the surrounding circumstances point to a fraudulent claim.College of Law LAW San Beda LABOR Complementing this Article is Section 8 of R. No. What is the remedy in case the Regional Office or BLR verbally denies or refuses to act on an application for registration for a considerable amount of time? San Beda College of Law 46 Secure a notice of denial in order to avail of the remedy of appeal. officers and directors of the cooperative involved in disputes within a cooperative or between cooperatives. hence. The Labor Code grants the National Labor Relations Commission (NLRC) sufficient authority and power to execute final judgments and awards. a certificate of non-resolution shall be issued by the Commission prior to the filing of appropriate action before the proper courts. The above provisions apply to members.A. 62. 64. 2002). Under Art. bereft of an adequate remedy at law (Bisig ng Manggagawa sa Concrete Aggregates. Art. The issuance of an ex parte TRO in a labor dispute is not per se prohibited. Its issuance. 63. the disputed contract of sale here is not merely rescissible. Thus. To ensure that an appealed monetary award is affirmed and has become final and executory. the decision of the Regional Office or the Bureau denying the application for registration shall be in writing. May a temporary restraining order in a labor dispute be issued ex parte? YES. relationships and obligations of the parties-litigants against each other and other parties-in-interest prior to the institution of the petition shall continue to remain during the . the Authority shall mediate and conciliate disputes within a cooperative or between cooperatives: Provided. a third-party claim of ownership on a levied property should not necessarily prevent execution. 223 requires that as an indispensable condition for the perfection of an appeal by an employer. as when the commission of unlawful acts is causing substantial irreparable injury to company properties and the company is. That if no mediation or conciliation succeeds within three (3) months from request thereof. 217 of the Labor Code. Thus. rest day and termination of employment. these disputes are within the original and exclusive jurisdiction of the Labor Arbiter. May 9. an appeal will mean that a monetary award will not be executed. 8 Mediation and Conciliation. 1993). overtime pay.

June 25. Thereafter. d. 67. the rights." This also holds true for confidential employees such as accounting personnel.R. Can there be several unions in one enterprise? YES. Employer encouragement and assistance Immediately granting the union exclusive recognition as a bargaining agent without determining whether the union represents the majority of employees is an illegal form of assistance amounting to unfair labor practice. the rationale for the ineligibility of managerial employees to form. 1992). NLRC. or be affiliated with a Union. In Bulletin Publishing Co. or by voluntary recognition as the case may be. Hon. relationships and obligations of the parties-litigants against each other and other parties-in-interest shall be governed by the decision so ordered. Inc. Augusta Sanchez. b. may become the source of undue advantage.2005 CENTRALIZED BAR OPERATIONS pendency of the petition and until the date of finality of the decision rendered therein. Also. But there can only be one bargaining agent [to the exclusion of others] which shall be designated either by certification or consent election. Said employee(s) may act as a spy (ies) of either party to a collective bargaining agreement. As such. The filing or pendency of any inter/intra-union dispute and other related labor relations dispute is not a prejudicial question to any petition for certification election and shall not be a ground for the dismissal of petition for certification election or suspension of proceedings for certification election (Sections 3 and 4. persons who exercise managerial functions in the field of labor relations. vs. assist or join a labor union equally applies to them. 68. there can be several unions within one bargaining unit. The Union can also become company-dominated with the presence of managerial employees in Union membership. Financial support to the union An employer commits unfair labor practice if he defrays the union expenses or pays the fees of the attorney who drafted the union’s constitution and by-laws. This is especially true in the present case where the petitioning Union is already the bargaining agent of the rank-and-file employees in the establishment. There can be several bargaining units in one employer unit. Can all rank and file employees join. they assist and act in a confidential capacity to. and at least one legitimate labor organization per bargaining unit..144 SCRA 628 [1986] the Court elaborated on the rationale for such inhibition in that. which may occur in three styles: (1) Outright formation by the employer or his representative\ (2) Employee formation or outright demand or influence of the employer (3) Managerially motivated formation by employees. or assist unions if they assist in a confidential capacity or have access to the confidential matters of persons who exercise managerial functions in the field of labor relations By the very nature of their functions. (Philips vs. Supervisory assistance LABOR LAW Red Notes in Labor Law 45 . assist. who having access to confidential information. the latter might not be assured of their loyalty to the Union in view of evident conflict of interests. if the managerial employees would belong to. 66. c. radio and telegraph operators. 88957. RULE XI Book V. since there is no law precluding such a situation. Confidential employees who are ALSO rank and file employees cannot form. G. No. IRR 2003). To allow confidential employees to join the existing Union of the rank-and file would be in violation of the terms of the Collective Bargaining Agreement wherein this kind of employees by the nature of their functions/positions are expressly excluded. join. or have access to confidential matters of. In what forms is company domination of a labor union made manifest? a. or form a labor union? NO. Initiation of the company union idea.

No.R. XYZ Co. there is no legitimate representation issue and the filing of said petition do not constitute a bar to an on-going negotiation (Colegio de San Juan de Letran v. Employees Association (XYZEA) and refused to do any further negotiations and bargaining. During the pendency of the disaffiliation proceeding. XYZ Co. unilaterally suspended the on-going negotiations for a new CBA with XYZ Co. 12 April 2000). Was there unfair labor practice on the part of XYZ Co. a legitimate labor organization within XYZ Co beyond the 60-day freedom period granted to the former. the company’s act of entering into a CBA with the local union does not constitute ULP. we ruled that ". Section (e) provides. G. L-18364 February 28. The move was supported by almost all of its members. the local union being the agent of the real principal —the union members. by virtue of which the employer may employ only members of the collective bargaining union. By virtue of said information. 2000) . Association of Employees and Faculty of Letran. G.No. No. If the local union’s move to disaffiliate is supported by almost all [majority] the members of said union.the right to join a union includes the right to abstain from joining any union. What is the legal justification of a UNION SHOP provision in the CBA? Explain. Philippine American Cigar & Cigarette Mfg. G.R.. NLRC.R. a local/chapter of Y Federation moved to disaffiliate from the latter. as PSEA has validly severed itself from PAFLU. No. 1963). Co. Laguesma. and such fact is not disputed by the federation [mother union]. Y federation filed an action for ULP against the company. The Labor Code. Inc.College of Law LAW San Beda LABOR This takes the form of soliciting membership. and the federation being merely the agent of the agent — the local union. except of those employees who are already members of another union at the time of the signing of the collective bargaining agreement. 127374. was informed that a petition for certification election has been filed by ABC Union. 109002. G.. recognizes the validity of a union shop agreement in Article 248 thereof. 70. January 31.? Yes. there would be no restrictions which could validly hinder it from subsequently affiliating with NCW and entering into a CBA in behalf of its members.. As held in the case of Philippine Skylanders vs. the San Beda College of 46 Law . The right to refrain from joining labor organizations recognized by Section 3 of the Industrial Peace Act is. the company entered into a collective bargaining agreement with Union X. In that case. 69. Applying the principle of agency. the University's reliance on the case of Victoriano vs. Decide. The legal protection granted to such right to refrain from joining is withdrawn by operation of law. however. limited. In order to allow the employer to validly suspend the bargaining process. as amended. 2002. 14147. to wit: ‘to discriminate in regard to hire or tenure of employment or any term or condition of employment in order to encourage or discourage membership in any labor organization.R. Nothing in this Code or in any other law shall prevent the parties from requiring membership in a recognized collective bargaining agent as a condition for employment. Elizalde Rope Workers' Union is clearly misplaced. Union X. and the employees must continue to be members of the union for the duration of the contract in order to keep their jobs (DLSU vs. where a labor union and an employer have agreed on a closed shop. When a petition is filed OUTSIDE the 60-day freedom period. As the Solicitor General asserted in his consolidated Comment. there must be a valid petition for Certification Election raising a legitimate representation issue. permitting union activities during working time or coercing employees to join the union by threats of dismissal or demotion (Philippine American Cigar & Cigarette Factory Worker’s Union vs. We affirm the ruling of the voluntary arbitrator for the inclusion of a union shop provision in addition to the existing maintenance of membership clause in the collective bargaining agreement. 71. September 18. The duty to bargain collectively includes the mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement.

NLRC. Thus. managing. To exclude them would constitute undue discrimination and deprive them of monetary benefits they would otherwise be entitled to under a new collective bargaining contract to which they would have been parties. the business. social and financial position of the offended parties and the business and financial position of the offender are taken into account. In determining the amount of damages recoverable. managed. Under Article 239 (f). are excessive. based on the provisions of Articles 2229 and 2232 of the Civil Code (NEECO I v. they are distributed among members in correlation with the resources of the association utilized. the damages awarded by the labor arbiter. one of the grounds for cancellation of union registration is entering into collective bargaining agreements which provide terms and conditions of employment below minimum standards established by law. 74. It is our view that herein private respondents had not fully acted in good faith. the automatic renewal clause provided by the law.000. May an electric cooperative be held liable to pay damages for the ULP it has committed against its employees? How much? YES. Brillantes." LABOR LAW Red Notes in Labor Law 45 . a CBA that does not substantially improve the employees’ wages and benefits. The economic benefits filter to the cooperative members. For this reason. What is [an] in-house agency? An in-house agency is where a contractor or subcontractor is engaged in the supply of labor which is owned. Either equally or proportionally. It is prohibited by law. (279 SCRA 218. the resulting Collective Bargaining Agreement (CBA) will most likely be a sweetheart contract. As we ruled in the case of Caltex Refinery Employees Association (CREA) vs. employees hired after the stipulated term of a CBA are entitled to the benefits provided thereunder. Explain. When it happens.2005 CENTRALIZED BAR OPERATIONS former which has chosen to disaffiliate from the latter as willed by majority of its members may validly enter into a CBA with the employer without holding the employer liable for ULP. a proposed budget or an audited financial statement. However. to our mind. 1997) [w]e believe that the standard proof of a company's financial standing is its financial statements duly audited by independent and credible external auditors. G. Consequently. which is deemed incorporated in all CBA’s provides the reason why the new CBA can only be given a prospective effect. we are cognizant that a cooperative promotes the welfare of its own members. 73. but the amount should be tempered. What is a sweetheart contract? Article 249 considers it an unfair labor practice for a labor organization to ask for or accept negotiation of attorney’s fees from the employer in settling a bargaining issue or a dispute. NLRC. and controlling it. Which is the better barometer of the true financial standing of a company for purposes of resolving an economic deadlock in collective bargaining. However. No.00 payable by private respondent NEECO I to each individual petitioner. What is the so-called HOLDOVER PRINCIPLE in a CBA? In the case of New Pacific Timber vs. 72.R. we deem it proper to reduce moral damages to only P10. January 24. Jose S. 2000). Cooperatives help promote economic democracy and support community development. We also deem it sufficient for private respondent NEECO I to pay each individual petitioner P5. 76.000.00 to answer for exemplary damages. Under these circumstances. 116066. we find it proper in this case to impose moral and exemplary damages on private respondent. 75. or controlled by the principal and operates solely for the principal owning. the court had the occasion to rule that Article 253 and 253-A mandate the parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period prior to the expiration of the old CBHA and/or until a new agreement is reached by the parties.

We find no conflict between said agreement and Article 253-A of the Labor Code. but also to foreclose any renegotiation or any possibility to forge a new CBA for a decade or up to 2008. May the Secretary of Labor order the retroactivity of a CBA? Labor laws are silent as to when an arbitral award in a labor dispute where the Secretary had assumed jurisdiction by virtue of Article 263 (g) of the Labor Code shall retroact. Despite the silence of the law. a CBA has a term of five years. Law . the use of a proposed budget as proof of a company's financial condition would be susceptible to abuse by scheming employers who might be merely feigning dire financial condition in their business ventures in order to avoid granting salary increases and fringe benefits to their employees. On the other hand. G. Espiritu. G. San Beda College of 46 Under Article 253-A of the Labor Code insofar as representation is concerned. but preventing the latter’s closure. Nothing in Article 253-A prohibits the parties from waiving or suspending the mandatory timetables and agreeing on the remedies to enforce the same. Petitioners claim that the agreement was not meant merely to suspend the existing PAL-PALEA CBA. the law is silent as to the retroactivity of a CBA arbitral award or that granted not by virtue of the mutual agreement of the parties but by intervention of the government. the Secretary's determination of the date of retroactivity as part of his discretionary powers over arbitral awards shall control (MERALCO v. except for representation. We find the argument devoid of merit (Rivera v. the effectivity depends on the agreement of the parties. The assailed PAL-PALEA agreement was the result of voluntary collective bargaining negotiations undertaken in the light of the severe financial situation faced by the employer. on the other? Explain. On the second issue. 2000. Article 253-A has a two-fold purpose. 135547. 2002).R. No. the award shall retroact to the first day after the six-month period following the expiration of the last day of the CBA should there be one. and Art. petitioners contend that the controverted PAL-PALEA agreement is void because it abrogated the right of workers to self-organization and their right to collective bargaining. said agreement satisfies the first purpose of Article 253-A. Petitioners submit that a 10-year CBA suspension is inordinately long. January 23. and more importantly. 79. way beyond the maximum statutory life of a CBA. a CBA negotiated within six months after the expiration of the existing CBA retroacts to the day immediately following such date and if agreed thereafter. No. abdicated the workers’ constitutional right to bargain for another CBA at the mandated time. What is the controlling doctrine on the issue of RETROACTIVITY of CBA benefits? Explain. It violates the “protection to labor” policy laid down by the Constitution. with the peculiar and unique intention of not merely promoting industrial peace at PAL. Quisumbing. 2000) . the Court rules herein that CBA arbitral awards granted after six months from the expiration of the last CBA shall retroact to such time agreed upon by both employer and the employees or their union. One is to promote industrial stability and predictability. provided for in Article 253-A. which expires on September 30. In general. unlike audited financial statements. 77. The other is to assign specific timetables wherein negotiations become a matter of right and requirement.R. Absent such an agreement as to retroactivity. PALEA. May the Labor Unions and the Company enter into a CBA that grants a moratorium of ten years in collective bargaining? Is this not a novation of the union’s right to collective bargaining? Explain. The financial capability of a company cannot be based on its proposed budget because a proposed budget does not reflect the true financial condition of a company. 127598. February 22. Inasmuch as the agreement sought to promote industrial peace at PAL during its rehabilitation. 253-A of the Labor Code. 78. while the other provisions.College of Law LAW San Beda LABOR Financial statements audited by independent external auditors constitute the normal method of proof of profit and loss performance of a company. may be negotiated not later than three years after the execution. in effect. Is there a conflict between a CBA that grants a 10-year moratorium on CBA bargaining on one hand. In the absence of a CBA. By agreeing to a 10-year suspension.

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In the instant case, it was PALEA, as the exclusive bargaining agent of PAL’s ground employees that voluntarily entered into the CBA with PAL. It was also PALEA that voluntarily opted for the 10-year suspension of the CBA. Either case was the union’s exercise of its right to collective bargaining. The right to free collective bargaining, after all, includes the right to suspend it (Rivera v. Espiritu, G.R. No. 135547, January 23, 2002) . 80. Distinguish and/or explain the following terms: (1) Direct Certification; (2) Certification Election; and (3) Consent Election. Med-Arbiter certifies that a certain Union is the exclusive collective bargaining representative of the employees of an appropriate bargaining unit without holding of a certification election, but merely on the basis of evidence presented in support of the Union’s claim that it is the choice of the majority of the employees. Such evidence may consist of affidavits made by a clear majority of the employees stating that they are members of and are supporting the Union petitioning for direct certification to be their exclusive collective bargaining representation (Prohibited by law under E.O. 111) A certification election is an election ordered by Med-Arbiter for the purpose of determining the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit. A consent election is an election agreed upon by the parties to determine the issue of majority representation of all workers of an appropriate collective bargaining unit not for the purposes of determining the sole and exclusive bargaining agent of the employees of the bargaining unit but only for the purpose of administering the existing CBA in case of massive disaffiliation of union members.

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Direct Certification

Certification Election Consent Election

81. Can the Bureau of Labor Relations certify a union as the exclusive bargaining representative after showing proof of majority representation through union membership cards without conducting an election? NO. The Bureau of Labor Relations cannot certify a union as the exclusive collective bargaining representative after a showing of proof of majority representation through union membership cards without conducting a certification election. The Labor Code (in Arts. 256 and 258) provides only for a certification election as the mode for determining exclusive collective bargaining representative if there is a question on representation in an appropriate bargaining unit. 82. When is consent election a bar to a petition for certification election? When is it not a bar? Where a petition for certification election had been filed and upon the intercession of the med-arbiter, the parties agree to hold a consent election, the result thereof shall constitute a bar to the holding of a certification election for one year from the holding of such consent election. However, where the total number of valid votes cast in a consent election is less than the majority of all the eligible employees in the bargaining unit, there shall be a failure of election. Such failure will not bar the filing of a petition for the immediate holding of a certification election. Where no petition for certification election had been filed but the parties themselves have agreed to hold a consent election, the result thereof shall not constitute a bar to another certification election, unless the winning union had been extended voluntary recognition. 83. Union X, a legitimate labor organization filed a petition for certification election during the freedom period. Union Y, another union in the same company, moved to dismiss the same alleging among others that Union X is composed of not only rank and file employees, but also of supervisory employees, who under the law, may not join a labor organization composed of rank and file employees. What is the effect of such allegation upon the petition for certification election?

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There is no effect. After a certificate of registration is issued to a union, its legal personality cannot be subject to a collateral attack. It may be questioned only in an independent petition for cancellation in accordance with Section 5 of Rule V, Book IV of the Implementing Rules of the Labor Code (Tagaytay Highlands International Gold Club, Inc. vs. Tagaytay Highlands Employees Union-PTGWO GR No. 142000 January 22, 2003) . Having attained such status, the petition of the union stands unless the registration of the union is cancelled in accordance with the aforementioned rule. The infirmity in the membership of the respondent union can be remedied in the “preelection conference” thru the exclusion-inclusion proceedings. Furthermore, the status of being a supervisory employee does not by itself disqualify an employee from joining a labor organization composed of rank and file employee. A supervisory employee to be disqualified must possess the powers similar to that of a managerial employee such as the complete discretion to decide on matters without being under the control of or subject to the review of some other superior. 84. May an employee who was improperly laid off be entitled to vote in a certification election? YES. The employees who have been improperly laid off but who have a present, unabandoned right to an expectation of reemployment, are eligible to vote in certification election. Thus, if the dismissal is under question, whereby a case of illegal dismissal and/ or ULP was filed, the employees could and should still qualify to vote. (Phil Fruits & Vegetables Industries, Inc. vs. Torres) 85. Does a decision in a certification election case regarding the existence of an employeremployee relationship foreclose all further disputes between the parties as to the existence or non-existence of such relationship? NO. However final it may become, the decision in a certification election case, by the very nature of such proceeding, is not such as to foreclose all further dispute as to the existence, or non-existence of an employer-employee relationship. It is established doctrine that for res adjudicata to apply, the following requisites must concur: (1) the former judgment or order must be final; (2) the court which rendered said judgment or order must have jurisdiction over the subject matter and the parties; (3) said judgment or order must be on the merits; and (4) there must be between the first and second actions identity of parties, subject matter and cause of action.

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Clearly, implicit in these requisites is that the action or proceedings in which is issued the “prior Judgment” that would operate in bar of a subsequent action between the same parties for the same cause, be adversarial, or contentious, as distinguished from an ex parte hearing or proceeding of which the party seeking relief has given legal notice to the other party and afforded the latter an opportunity to contest it, and a certification case is not such a proceeding. “A certification proceeding is not a ‘litigation’ in the sense in which this term is commonly understood, but a mere investigation of a non-adversary, fact-finding character, in which the investigating agency plays the part of a disinterested investigator seeking merely to ascertain the desires of the employees as to the matter of their representation. The court enjoys a wide discretion in determining the procedure necessary to insure the fair and free choice of bargaining representatives by the employees (Sandoval Shipyards vs. Prisco Pepito, G.R. No. 143428, June 25, 2001).” 86. What is the statutory policy on certification elections? How does the law treat management’s attempts to thwart initiatives to hold certification election? The fact that PICOP voiced out its objection to the holding of certification election, despite numerous opportunities to ventilate the same, only after respondent Undersecretary of Labor affirmed the holding thereof, simply bolstered the public respondents' conclusion that PICOP raised the issue merely to prevent and thwart the concerned section heads and supervisory employees from exercising a right granted them by law. Needless to stress, no obstacle must be placed to the

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holding of certification elections, for it is a statutory policy that should not be circumvented (PICOP vs. Laguesma, G.R. No. 101738, April 12, 2000) . 87. What is the Doctrine of Union Monopoly? It means that once a union is chosen as the collective bargaining agent of an appropriate bargaining unit through Certification election, it alone, can collectively bargain with management to the exclusion of other competing unions. 88. Is there a violation of the CBA’s “no strike no lockout” provision when workers join a demonstration against police abuses? NO. The demonstration held by workers would be purely and completely an exercise of their freedom of expression in general and of their right of assembly and of petition for redress of grievances in particular before the appropriate government agency. To regard the demonstration against police officers, not against the employer as evidence of bad faith in collective bargaining stretches unduly the compass of the collective bargaining agreement (Phil. Blooming Mills Employees Org. vs. Phil. Blooming Mills Co., Inc. June 5, 1973) . 89. What is a union recognition strike? A union recognition strike is calculated to compel the employer to recognize one’s union and not the other contending group, as the employees’ bargaining representative despite the striking union’s doubtful majority status to merit voluntary recognition and lack of formal certification as the exclusive representative in the bargaining unit. 90. Is the pari delicto rule applicable in strikes and lockouts? YES. When the parties are in pari delicto – the employees having staged an illegal strike and the employer having declared an illegal lockout – such situation warrants the restoration of the status quo ante and bringing back the parties to their respective positions before the illegal strike and illegal lockout through the reinstatement, without backwages, of the dismissed employees. (Philippine Inter-Fashion, Inc. vs. NLRC, G.R. No. 59847, October 18, 1982) . 91. Would the Union’s failure to submit the STRIKE VOTE RESULTS to the NCMB cause the illegality of the strike? Explain. YES. The Supreme Court said so in the case of Samahan ng Manggagawa sa Moldex v. NLRC, G.R. No. 119467, February 1, 2000 . It has been shown that the results of the strike-vote were never forwarded to the NCMB, as admitted by petitioners themselves and as attested to by a Certification of Non-Submission of Strike Vote issued by the NCMB. There is thus no need for additional evidence on the matter, as it would not change the fact that the results of the strikevote were not submitted to the NCMB. Without the submission of the results of the strike-vote, the strike was illegal, pursuant to Article 264 of the Labor Code 92. What is the legal implication of defying the RETURN TO WORK ORDER in a strike case which is under assumption of jurisdiction? In the case of Telefunken Semiconductors Employees Union FFW v. CA, G.R. No. 143013-14, December 18, 2000, the Supreme Court held that the strike of the Union cannot be viewed as anything but illegal for having been staged in open and knowing defiance of the assumption and return-to-work orders. The necessary consequence thereof are also detailed by the Supreme Court in its various rulings. In Marcopper Mining Corp. v. Brillantes (254 SCRA 595), the High Tribunal stated in no uncertain terms that “by staging a strike after the assumption of jurisdiction or certification for arbitration, workers forfeited their right to; be readmitted to work, having abandoned their employment, and so could be validly replaced.” Viewed in the light of the foregoing, we have no alternative but to confirm the loss of employment status of all those who participated in the strike in defiance of the assumption order

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G. Constructive resignation San Beda LABOR dated 8 September 1995 and did not report back to work as directed in the Order of 16 September 1995. he cannot use the same to feign what would otherwise be an illegal dismissal (Concorde Hotel v. 80770.R. It is present when the following requisites concur: (1) The worker has no intention to return to work. al. 141947. NLRC. NLRC petitioner company effected some changes in its organization by abolishing the position of Sales Manager and simply adding the duties previously discharged by it to the duties of the General Manager to whom the Sales Manager used to report. vs. was an exercise of business judgment on the part of petitioner company. G. Court of Appeals. closure or cessation of operation or to prevent financial losses to the business of the employer. the required previous notice to the DOLE is not necessary as the employee thereby acknowledged the existence of a valid . et. Is the one-month notice for separation for authorized causes always required? NO. not a mere afterthought to justify earlier action taken in bad faith.. redundancy. and (2) The worker has manifested by overt acts such an intention. July 5. No. Constructive retrenchment An employee whose number of working days was reduced to just two (2) days a week due to the financial losses suffered by the employer’s business. Court of Appeals. 144089.College of Law LAW 93. August 10. and who was rotated in such a way that the number of working days had been substantially reduced for more than six months. in Wiltshire File Co. and considering further that the business was ultimately closed and sold off. 2001) . (c) it should not be arbitrarily asserted in the face of overwhelming evidence to the contrary. 95. 1997). If an employee consented to his retrenchment or voluntarily applied for retrenchment with the employer due to the installation of labor saving devices.R. (b) it should not be used as a subterfuge for causes which are improper. the Supreme Court upheld the ruling of the NLRC that the employee was thereby constructively dismissed or retrenched from employment (International Hardware. San Beda College of The Court. August 9. The wisdom or soundness of such characterization or decision is not subject to discretionary review on the part of the Labor Arbiter or of the NLRC so long as no violation of law or arbitrary and malicious action is indicated (Ismael Santos v. Constructive Resignation is otherwise known as abandonment. and (d) it must be genuine. In the case of General Bank and Trust Company vs. is cognizant of the fact that in numerous dismissal cases. Inc. No. while an employer is at liberty to dismiss an employee for loss of trust and confidence. Is it within the jurisdiction of the Labor Arbiter or the NLRC to pass judgment on the soundness of the management decision to declare that a position is no longer necessary? Why? Similarly. No. In that case. CA. What are the guidelines for the correct interpretation of the DOCTRINE OF LOSS OF CONFIDENCE? Explain. 135 SCRA 569 the Court came up with the following guidelines for the application of the doctrine of loss of confidence: (a) loss of confidence which should not be simulated. however. loss of trust and confidence has been indiscriminately used by employers to justify almost every instance of termination and as a defense against claims of arbitrary dismissal. v. b. 94. Law 46 Hence.R. we held that the characterization of private respondent’s services as no longer necessary or sustainable. G. 96. and therefore properly terminable. Inc.. Define the following: a. illegal or unjustified. 1989) .

like dismissals. the mere fact that BARQUIN was not physically coerced or intimidated does not necessarily imply that he freely or voluntarily consented to the terms of the quitclaim. Moreover. Philippine Carpet Mnufacturing Corp. backwages may also include the 13th month pay which is paid to rank and file employees. 2000). under the same terms and conditions. Separation Pay is monetary amount intended to provide the employee money during the period in which he will be looking for another employment. Managerial employees cannot be given the same since they are ineligible to join the labor organization. LABOR LAW Backwages is the relief given to an employee to compensate him for lost earnings during the period of his dismissal. No. had the respondent company not misled BARQUIN into believing that there was a ground to retrench. 141947 July 5. Is MISREPRESENTATION of essential facts enough to vitiate the voluntariness of a RESIGNATION? Explain. No. 100. undue influence or fraud (Barquin v. b. like dismissal. September 14. 7641. 125303. Santos vs. G. Petitioners correctly point out that such an act has been declared by this Court in the case of Trendline Employees Association-Southern Philippines Federation of Labor vs. June 16. 99. Under Article 1330 of the Civil Code. Demotions. NLRC.. Distinguish between back wages.R. as well as benefits arising from the CBA given only to the employees in the bargaining unit. NLRC GR No. affect the employment of a worker whose right to continued employment. and separation pay. the employer being demoted should be given a chance to contest the same (Leonardo v. considering that demotion is. 279) provides that an employee who is unjustly dismissed from work is entitled to reinstatement and also to his full backwages. 2001).R. Unpaid Wages are wages earned prior to the illegal dismissal but are not yet paid to the employee. 2000).] Verily. 98. inclusive of allowances. 97. An employee is entitled to all the above benefit regardless if he is a rank and file employee or a managerial employee. Contrary to the assumption of both the Court of Appeals and the voluntary arbitrator. apply to employees covered with a valid retirement plan? Can it be given a retroactive effect? . However. is also protected by law.2005 CENTRALIZED BAR OPERATIONS cause for termination of his employment (Ismael V. a. CA. the Retirement Law. Is due process required before an employee may be demoted? YES. it is not difficult to believe that he would have thought twice before signing the quitclaim inasmuch there was no reason for the termination of his employment. unpaid wages. Does Republic Act No. Respondent company's lack of candor and good faith in informing BARQUIN that he was being terminated due to a valid retrenchment and not because it sought to avoid compliance with the mandated wage increases amounted to a deception which led BARQUIN to the mistaken belief that that there was legal ground for retrenchment and prompted him to acquiesce to his termination and sign the quitclaim. 140269. and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to his actual reinstatement. as tainted with bad faith and should not be countenanced as being prejudicial and oppressive to labor. consent may be vitiated not only through intimidation or violence but also by mistake.What economic components constitute backwages for a rank and file employee? Are these components equally applicable to a managerial employee? Red Notes in Labor Law 45 The Labor Code (Art. G. also a punitive action.

which. Social justice as a guiding principle in law may not be used by the courts if it collides with the equal protection clause of the Constitution. No.Full protection to labor. October 17. The State is bound under the Constitution to afford full protection to Labor. 46 . organized and unorganized. Management also has rights which are entitled to recognition and protection. Guarantees Unionisms and Method of Determination Conditions of Employment .Right of all workers to self-organization. It applies to employees in the employee of employers at the time the law took effect and who are eligible to benefits under that statute (MLQU vs.Local and overseas. NLRC. But this is not necessarily violative of the equal protection clause of the Constitution because said clause allows reasonable classification. justice must be dispensed according to facts and the law. Thus. and social justice is not designed to destroy or oppress the employer. Alternative Answer: No. 141673. 266 SCRA 24. Labor Law may be pro-labor in the sense that labor is given certain benefits not given to management. Section 3) are as follows: Extent of Protection . NLRC. The said law is a curative social legislation. the Constitution commands that the State shall afford full protection to labor. FREQUENTLY ASKED QUESTIONS TOPIC: LABOR. by their nature. SOCIAL JUSTICE May social justice as a guiding principle in labor law be so used by the courts in sympathy with the working man if it collides with the equal protection clause of the Constitution? Explain. 1997). Not all labor cases may be automatically decided in favor of the worker. Employment Policy . collective bargaining and negotiations. It has a retroactive effect to include in its coverage the employees’ services to an employer rendered prior to its effectivity. 2001). or other agreements or voluntary retirement plans whose benefits are less than those prescribed under the proviso in question. 278 SCRA 632. G. The said law intends to give the minimum retirement benefits to employees not entitled thereto under collective bargaining and other agreements. unless it will impair vested rights.Full employment and equality of employment opportunities for all. Its coverage applies to establishments with existing collective bargaining. the law should accord more sympathy and compassion to the less privileged working man (Fuentes v.College of Law LAW San Beda LABOR Yes. However. NLRC. 1997).R. may be given retroactive effect. Social justice is not a magic wand applicable in all circumstances. In the implementation of the principle of social justice. Coverage of Protection . and when conflicting interests collide and they are to be weighed on the scales of social justice. Suggested Answer: Yes. TOPIC: CONSTITUTIONAL PROVISIONS RELATED TO LABOR LAW What are the salient features of the protection to labor provision of the Constitution? Law The salient features of the protection to labor provisions of the Constitution (Article XIII. it should be borne in mind that social justice ceases to be an effective instrument for the “equalization of the social and economic forces” by the State when it is used to shield wrongdoing (Corazan Jamer v. San Beda College of Another Alternative Answer: Social justice as a guiding principle in Labor Law can be implemented side by side with the equal protection clause of the Constitution.

sympathizing with the workers. Red Notes in Labor Law 45 A labor federation organized ZaCSI and filed a petition for a consent election. joined the union. including the right to strike. they are not under the control of ZaCSI which is an essential element for the existence of employer-employee relationship. Walk-in customers willing to wait were led by the shoe shine boys to a seat at the stand where he waited while the boy asked the customer to pay to the receptionist. humane conditions of work and a living wage. ZaCSI provided the boys with the shoe shine boxes and their contents? Explain. how the boys went about their tasks.Right to participate in policy and decision making process affecting their rights and benefits as way to provide by law. The boys signed a receipt to acknowledge full payment for work done. I will rule that the shoe shine boys should be excluded as voters in the consent election.2005 CENTRALIZED BAR OPERATIONS Concerted Activities . the boys got markers corresponding to the price for their service. The shoe shine boys are not employees of ZaCSI and thus could not be considered as employees belonging to bargaining unit who will designate or select a bargaining representative. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in setting labor disputes. LABOR STANDARDS TOPIC: EMPLOYER-EMPLOYEE RELATIONSHIP SUMMARY OF THE RULE: What determines employer-employee relationship is the power of the employer to control the employee regarding the manner of how the work should be done. As Med-arbiter. There were 10 shoe shine boys at the stand. Working Conditions . . At the pre-election conference. and peaceful concerted activities. collective bargaining and negotiations. Workers shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. including the right to strike in accordance with law. They owned their shoe shine boxes with cleaning agent polish. brushes. and to expansion and growth. ZaCSI’s staff did not interfere with. As a service to customers. Would you ruling be different if in this case. the lawyer for ZaCSI moved to exclude the boys as voters. including conciliation. organized unorganized. The State shall guarantee the right of all workers to self-organization. ALTERNATIVE ANSWER: The Constitution in (Article XIII. LABOR LAW 1. Zapato Custom-made make shoes to customer specifications and repaired them. a shoe shine stand was operated on its premises. They are not employees of ZaCSI because according to the given facts. At day’s end. For each pair shined. in accordance by law.Right to engage in peaceful concerted activities. Customers not willing to wait left the shoes with the stand’s receptionist who gave a receipt with the price for the service and pick-up date and time indicated. humane conditions of work and a living wage. Workers are entitled to security of tenure.Recognition of right of labor to its just share in fruits of production.Right to security of tenure. the markers held by each boy were tallied and paid for. rule on the objection. The State shall afford protection to labor by promoting full employment and equality of employment opportunities for all. and shall enforce mutual compliance therewith to foster industrial peace. Share in Fruits of Production . Section 3) provides that the State shall afford protection to labor. local and overseas. nor supervise. The State shall regulate the relations between workers and employers recognizing the right to its just share in the fruits of production and the right of enterprises to reasonable returns on investments. The boys. Decision Making Processes . As Med-Arbiter handling the case. and rags. The boys were free to get shoes to be shined for the receptionist when there were no waiting walk-ins.

San Beda College of Law 46 ALTERNATIVE ANSWER: The action of the Harbor View Hotel is legal and valid. is not yet exercising control that is determinative of the existence or non-existence of control over them. supervision of workers. at first glance. by this act. work premises. and discipline. restrain or coerce employees in the exercises of their right to self-organization. equipment. decided to abolish the position of housemen and stewards who do the cleaning of the hotel’s public areas. machineries. Is the action of the Harbor View Hotel legal and valid? The action of Harbor View Hotel is legal and valid. The action of Harbor View Hotel would. there is no showing that the hotel’s action is a valid exercises of its management prerogatives and the right to make business judgments in accordance with law. “to contract out services or functions being performed by union members if such will interfere with. TOPIC: CONTRACTOR. The valid exercise of management prerogative. Harbor View Hotel has an existing Collective Bargaining Agreement (CBA) with the union of rank-and-file employees consisting. it is the prerogative of management to adopt cost-saving measures to ensure economy and efficiency. . working methods. time. however. restrains or coerces employees in the exercise of their right to self-organizations. Contracting out services or functions being performed by union members becomes illegal only when it interferes with. or limited by special laws. unless shown to be gross oppressive or contrary to law. work supervision. waiters. During the lifetime of the CBA. Over the protest of the Union. dismissal and recall of workers. 218 SCRA 293). among others. generally binding and valid on the parties and must be complied with until finally revised or amended unilaterally or preferably through negotiation or by competent authority ( San Miguel Corporation vs.” My ruling will not be different even if ZaCSI provided the boys with the shoe shine boxes and their contents.g. It is the existence of employer-employee relationship. transfer of employees. Company policies and regulations are.College of Law LAW San Beda LABOR In the statement of facts. Ubaldo and Cruz. Contracting out services or functions being performed by union members is not illegal per se. processes to be followed. equipments. housemen and stewards. The employer who contracts the services of the labor-only contractor is directly liable to the employees of the labor-only contractor as if such employees had been directly employed by the employer. place and manner of work. machineries and competent manpower. discretion and judgment encompasses all aspects of employment. except as provided for. roomboys. ZaCSI. that in the case at bar. WAGES SUMMARY OF THE RULE: A labor-only contract is a contract between an employer and a person who supplies workers and does not have substantial capital or investment in the form of tools. restrains or coerces employees in the exercise of their right to self-organization. Harbor View Hotel. it is said that “ZaCSI’s staff did not interfere with.” Considering. TOPIC: MANAGEMENT PREROGATIVE SUMMARY OF THE RULE: The management has the right to use its discretion and judgment in the determination of policies regarding the aspects of employment. In an independent contract. the Hotel contracted out the aforementioned job to the City Service Janitorial Company. for reasons of economy and efficiency. a bonafide independent contractor which has a substantial capital in the form of janitorial tools. nor supervise how the boys went about their task. Contracting out services or functions being performed by union members becomes illegal only when it interferes with. tools to be used. of bartenders. appear to be an unfair labor practice under Article 248 (c) e. the employer who contracted out the job is jointly and severally liable with the contractor only to the extent of the workperformed under the contract. work assignments. In fact. including the hiring. working regulations. lay-off of workers.

an award for unpaid wages is for an employee who has actually worked but has not been paid the wages he is entitled to receive for such work done. whereas an employer that it normally grants to its regular or direct employees. a multinational corporation. NLRC 219 SCRA 549). (a) What is a “labor-only” contract? “Labor-only” contract is a contract between an employer and a person who supplies workers and does not have substantial capital or investment in the form of tools. (Art 106-107. an award of unpaid wages is given to an employee who has not been paid his salaries or wages for services actually rendered. if the contractor or sub-contractor fails to pay the wages to the workers in accordance with the Labor Code. an indirect employer. On the other hand. job or project. Danilo was informed that he would frequently be working overtime as he would have to drive for the company’s executives even beyond the ordinary eight-hour LABOR LAW Red Notes in Labor Law 45 . Labor Code) (b) Distinguish the liabilities of an employer who engages the services of a bona_fide “independent contractor” from one who engages a “labor-only” contractor? A person who engages the services of a bona_fide “ independent contractor” for the performance of any work. In the event that the independent contractor fails to pay the wages of his employees. (Art. Danilo Flores applied for the position of driver in the motorpool of Gold Company. On the other hand. task. task. job or project is the indirect employer of the employees who have been hired by the independent contractor to perform said work. 106. TOPIC: OVERTIME PAY SUMMARY OF THE RULE: Undertime work on any particular day shall not be offset by overtime work on any other day. is jointly and severally liable with the independent contractor to the employees of the latter to the extent of the work performed under the contract.2005 CENTRALIZED BAR OPERATIONS An award of backwages is given to an employee who is unjustly dismissed. 279 and 97 (F). On the other hand. An award for backwages is to compensate an employee who has been illegally dismissed. The cause of action here is non-payment of wages or salaries. Labor Code). in the same manner and extent that he is liable to employees directly employed by him. ALTERNATIVE ANSWER: An award of backwages is given to an employee who is unjustly dismissed. An employer who deals with a bona-fide independent contractor shall only be subsidiary liable. (General Baptist Bible College vs. ALTERNATIVE ANSWER: An employer who engages the services of a bona fide “ independent contractor” is solidarily liable with his contractor or sub-contractor only for non-payment or under-payment of wages and other labor standards provisions of the Labor Code. equipments. Upon the other hand. machineries. the latter is considered merely as an agent of the former who shall be responsible to the workers hired by the “labor only” contractor in the same manner and extent as if the directly employed such workers. allowances and other benefits or their monetary equivalent. for the wages. an employer who deals with a “labor-only” contractor shall be primarily responsible to the workers in the same manner and extent as if the latter were directly employed by him. (Arts. an award of unpaid wages is given to an employee who has not been paid his salaries or wages for services actually rendered. and the workers recruited and placed by such person are perfoming activities which are directly related to the principal business of such employer. Labor Code) (c) Distinguish between an award for back wages and an award for unpaid wages. which said employee did not receive from the time he was illegally dismissed up to the time of his actual reinstatement. As for the person who engages the services of a “labor only” contractor. The cause of action here is non-payment of wages or salaries. work premises. among others.

in lieu of overtime. Wednesday. industrial or agricultural enterprise at a wage or salary rate lower than provided by law for agricultural or nonagricultural workers. Tuesday. Thursday. Is the claim of the driver valid? A family driver who drives the family van to fetch merchandise from suppliers and delivers the same to boutique in a mall owned by the family for whom he works should be paid the minimum daily wage of a drive in a commercial establishment. and Saturday – Drive the family van to fetch merchandise from suppliers and deliver the same to a boutique in a mall owned by the family. The weekly work schedule of a driver is as follows: Monday. the monthly rate equivalent to 35 times the daily wage may be sufficient to include overtime pay. the provisions of the contract of employment of Danilo are not violative of any labor law because the instead improve upon the present provisions of pertinent labor laws. he should be paid to the minimum daily wage of a driver of commercial establishment. WAGES SUMMARY OF THE RULE: No house helper shall be assigned to work in a commercial. San Beda College of (a) Is the driver a house helper? The driver is a house helper. (b) The same driver claims that for work performed on Tuesday. A person is a house helper or is engaged in domestic or household service if he/she renders services in the employer’s home which are usually necessary or desirable to the maintenance and enjoyment thereof and which includes ministering to the personal comfort and convenience of the members of the employer’s household including the services of family drivers. He was provided with a contract of employment wherein he would be paid a monthly rate equivalent to 35 times his daily wage. the law? Except for the provision that Danilo shall have time off with pay when the company’s executives using the cars do not need Danilo’s service for more than eight hours a day. A family driver who drives the family van to fetch merchandise from suppliers and delivers the same to boutique in a mall owned by the family for whom he works should be paid the minimum daily wage of a driver in a commercial establishment. Are the above provisions of the contract of employment in conformity with. industrial or agricultural enterprise at a wage or salary rate lower than provided by law for agricultural or non-agricultural workers. this violates the provision of the Labor Code which states that undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employer to go on leave on some other day of the week shall not exempt the employer from paying additional compensation required by the Labor Code. in lieu of overtime. or violative of. Thus. TOPIC: HOUSEHELPERS. 5 day-leave with pay every month and time off with pay when the company’s executives using the cars do not need Danilo’s service for more than eight hours a day.College of Law LAW San Beda LABOR work day. The Labor Code (in Article 143) provides that no house helper shall be assigned to work in a commercial. As for the provision in Danilo’s contract of employment that he shall receive time off with pay in lieu of overtime. Thursday and Saturday. TOPIC: REGULAR EMPLOYEES AND PROJECT EMPLOYEES SUMMARY OF THE RULE: An employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or 46 Law . There is no labor law requiring the payment of sick and vacation leaves except for a fiveday service incentive leave in the Labor Code. and Friday – Drive the family car to bring them and fetch the children to and from school. regular sick and vacation leaves. The five-day leave with pay every month has no counterpart in Labor Law and is very generous.

Engineer “A” falls within the exemption of Art. after the end of the project. NLRC.2005 CENTRALIZED BAR OPERATIONS trade of the employer. 280. Upon completion of the fifth project in August 1998. 1993) Project employees are not considered regular employees. except where the employment has been fixed for a specific project or undertaking the completion of which has been determined at the time of the engagement of the employee. their services. Is the claim of Engineer “A” correct? The claim of Engineer “A” that he is a regular employee and not a project employee is not correct. the hiring of Engineer “B” showed that there is a continuing need for his services. A construction group hired Engineer “A” as a Project Engineer in 1987. 186 SCRA 361.” Engineer “A” claims that by virtue of the nature of his functions. The Group did not engage the services of Engineer “A” as a Project Engineer for this new project. TOPIC: HOURS WORKED SUMMARY OF RULE: An employee who is required to remain on call in the employer’s premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose shall be considered as working while on call. he is a regular employee and not a project engineer at the time he was first hired. Lito Kulangkulang and Bong Urongsulong are employed as truck drivers of Line Movers. Lito is required by the personnel manager to just stay at the head office after office hours because he could be called to drive the trucks. 280. The Labor Code provides: Art. Usually. the employer-employee relationship ceases to exist. While at the head office. 218 SCRA 722. By the very nature of their employee’s business. it engaged the services of Engineer “B. its duration and the temporary-project nature of the engagement of his services. it would be unjust to require the employer to maintain them in the payroll while they are doing absolutely nothing except waiting for another project (De Ocampo v. 1990). The fact that he has been working for Construction Group for a total of ten (10) years does not make him a regular employee when it is very clear from the Contracts of Employment that he signed that he has always been engaged as a project employee. Furthermore. Regular and casual employment.An employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer. the Group won a bid for a large construction project. i. specified the name of the project. NLRC. they will always remain project employees regardless of the number of projects in which they have worked (Manansag v.e. Inc. The tenure of project employee is co-terminus with the project in connection with which his services were engaged.. . and the temporary project nature of the engagement of his services are clearly stated. he is a long years of service he had rendered to the Group. Six months after his separation. Lito merely LABOR LAW Red Notes in Labor Law 45 . Engineer in a Construction Group. The fact that the petitioners worked for several projects of private respondent company is no basis to consider them as regular employees. hence. An employee who is not required to leave word at his home or with company officials where he may be reached is not working while on call. and his long years of service he had rendered to the Group. its duration. Such project employee has no legal rights to insist that the Construction Group for a subsequent project of said Group should employ him. He worked for a total of ten (10) years (1987-1998) in the five separate projects. He was assigned to five (5) Contracts of Employment he signed. The rationale for this rule is that if a project has already been completed. In all the five (5) successive contracts of employment of Engineer “A” the name of the project. instead. being needed only when there are projects to be undertaken. Thus. except where the employment has been fixed for a specific project or undertaking the completion of which has been determined at the time of the engagement of the employee. ALTERNATIVE ANSWER: The claim of Engineer “A” is not correct. his services were terminated.

thus. the waiting time of Lito and Bong should be considered as compensable hours. based on their production or the number of workers and the time used in certain areas of work.College of Law LAW San Beda LABOR waits in the manager’s reception room. on the other hand. under his own responsibility according to his own manner and method. (b) Who is liable for the claims of the workers hired by Arnold? Explain briefly. TOPIC: JOB CONTRACTING SUMMARY OF THE RULE: There is “job contracting” where (1) the contractor carries on an independent business and undertakes the contract work on his own account. Monica Plywood Corporation to Arnold. No. Would the hours that Lito and Bong are on call be considered compensable working hours? The hours of Lito and Bong while on call can be considered compensable hours. 202 SCRA 465. On the other hand. Thus. equipment. free form the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof. This is so San Beda College of 46 Law . Therefore. In two cases decided by the Supreme Court. Monica Plywood Corp. under his own responsibility according to his own manner and method. As for Bong. Arnold is not job contractor He is engaged in labor-only contracting. In the problem given. Arnold did not have sufficient capital or investment for one. and (2) the contractor has substantial capital or investment in the form of tools.1991). is liable for the claims of the workers hired by Arnold. For another Arnold was not free from the control and direction of Sta. The applicable rule is: “ An employee who is required to remain on call in the employer’s premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose shall be considered as working while on call. An employee who is not required to leave word at his home or with company officials where he may be reached is not working while on call. Note: It could be argued that in the case of Bong who is not required to stay in the office but is allowed to go home. it was held that there is “job contracting” when (1) the contractor carries on an independent business and undertakes the contract work on his own account. Monica Plywood Corporation because all the work activities and schedules were fixed by the company. machineries.” Here Bong is required to stay at the office after office hours so he could be called to drive the trucks of the Company. work premises and other materials which are necessary in the conduct of the business. and (2) the contractor has substantial capital or investment in the form of tools. Monica Plywood Corp. he can use his time effectively and gainfully to his own purpose. Their wages were paid by Sta. A finding that Arnold is a labor only contractor is equivalent to declaring that there exist an employeremployee relationship between Sta. Monica Plywood Corporation entered into a contract with Arnold for the milling of lumber as well as the hauling of waste wood products. work premises and other materials which are necessary in the conduct of the business (Lim v NLRC. Bong is allowed to go home after office hours but is required to keep his cellular phone on so that he could be contacted whenever his services as driver become necessary. he is required to keep his cellular phone so that he could be contacted whenever his services as driver as needed. relatives and neighbors for the job. and workers hired by Arnold. the time that he is at home may mean that they are not compensable hours. hired his friends. The Company provided the equipment and tools because Arnold had neither tools and equipment nor capital for the job. Arnold. free form the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof. Sta. Sta. machineries. All work activities and schedules were fixed by the company? (a) Is Arnold a job contractor? Explain briefly. equipment. if he is not actually asked by cellular phone to report to the office to drive a car.

developmental. NLRC. because coverage under the SSS is compulsory where employer-employee exists. if the private plan is superior to that of SSS. seasonal farmworkers. subject to such priorities and reasonable retention limits as the congress may prescribe. it is the best welfare plan in the Philippines. al. 4. The children of landowners. Actual tenant tillers in the landholding shall not be ejected or removed therefrom. there is this provision.” Taken together. disposed of or abandoned their land are disqualified to became beneficiaries under the CARP. 5.” In Article XII of the Constitution. 3. the state shall encourage and undertake the just distribution of all agricultural lands. The DAR shall adopt a system of monitoring the record or performance of each beneficiary. v. 1999. Monica plywood Corp (Lim v NLRC. taking into account ecological. actual tillers or occupants of public lands. 303 SCRA 432. 17 SCRA 107) TOPIC: COMPREHENSIVE AGRARIAN REFORM LAW 1. landless residents of the same municipality in the following order of priority: 1. others directly working on the land. the state shall respect the right of small landowners. undertake an agrarian reform program founded on the right of framers and regular farm – workers. in dealing with the national economy and patrimony. to receive a just share of the fruits thereof. What is the foundation of the agrarian reform program under the 1987 Constitution? Who are the direct beneficiaries of the program? The 1987 Constitution enunciates in Article II as one of the state policies that the State shall promote comprehensive rural development and agrarian reform.a. the plan may be integrated with the SSS plan. 6. 202 SCRA 465 1991) . to own directly or workers. it is also stated that “the State shall promote industrialization and full employment based on sound agricultural development and agrarian reform. In determining the retention limits. among others: the state shall. and subject to the payment of just compensation. the above provisions could be considered as the foundation of the agrarian reform program. the lands covered by the CARP shall be distributed as much as possible to landless residents of the same barangay. who are qualified to be awardees of not more than three hectares. Under the Comprehensive Agrarian Reform Law. However. other farmworkers. v SSS. TOPIC: SOCIAL SECURITY ACT OF 1997. Beneficiaries under PD 27 who have culpably sold. 2. Still it is integration and not exemption from SSS law. “integration” of other benefits is allowed. The collective bargaining agreement of the Golden Corporation Inc. COVERAGE SUMMARY OF THE RULE: Coverage under the SSS is compulsory where employer-employee relations exist. collectives or cooperatives of the above beneficiaries. The state shall further provide incentives for voluntary landsharing. shall be given preference in the distribution of the land of their parents. Inc. To this end. Will the petition for exemption from coverage prosper? No. Admittedly. Baguio et. Nevertheless. and 7. and the Golden Corporation Workers Union provides a package of welfare benefits far superior in comparison with those provided for in the Social Security Act of 1997.2005 CENTRALIZED BAR OPERATIONS because Arnold is considered a mere agent of Sta. so that any beneficiary guilty of negligence or LABOR LAW Red Notes in Labor Law 45 .” Then in Article XIII of the Constitution. The welfare plan of the company is funded solely by the employer with no contributions from the employees. by law. regular farmworkers. The company and the union jointly filed a petition with the Social Security System for exemption from coverage. or in the absence thereof. A basic qualification of a beneficiary shall be his willingness aptitude and ability to cultivate and make the land as productive as possible. in dealing with social justice and human rights. (Philippine Blooming Mills Co. who are landless. or equity considerations. agricultutral lessees and share tenants.

LABOR RELATIONS. it is the courts. lessees. and holiday pay. San Beda College of 46 Law . Instead of granting her maternity leave. In the provisions of the 1987 constitution on agrarian reform. the person who is deprived of his property should be given the fir and full equivalent value of the property that is taken from him. In the employment contract of each woman. In both situations.b. it shall be unlawful for an employer to discharge a woman employee on account of her pregnancy. its nature. Club Paris is an entertainment entity that operates a night club along Roxas Boulevard. commissions and other forms of payment received from customers minus 10% Hours of work – 6 pm to 3 am. the same shall be subject. there is not enough land to accommodate any or some of them. ILLEGAL DISMISSAL. the cost of acquisition of the land the current value of like properties. actual use of income. Pregnancy is not a valid cause for dismissal because. as provided under the Code. she asked for a maternity leave with pay. with or without compensation in any nightclub. compensation could be in cash and in government financial instruments like Land Bank of the Philippines bonds. the ff. Decide. and the assessment made by the government assessors shall be considered. or workers on the land. the sworn valuation by the owner. the management of the club fired her. 1. ultimately. the compensation may be in shares of stock in government owned and controlled corporations. daily. bar or other similar establishment. Also. which may determine ultimately just compensation. Farmers already in place and those not accommodated in the distribution of privately owned lands will be given preferential rights in the distributions of lands from the public domain. however. backwages. they may be granted ownership of other lands available for distribution under the CARL. it is provided that in the just distribution of all agricultural lands. among others. the tax declarations. SUMMARY OF THE RULE: Any woman who is permitted or suffered to work. Distinguish just compensation under the CARL of 1988 form just compensation under the Bill of rights? How it is determined under the former? In the Bill of Rights it is provided that private property shall not be taken for public use without just compensation.All tips. She signed the employment contract. including Sundays and Holidays Other conditions – Must remain single. due to the landowner’s retention rights or to the number o tenants.College of Law LAW San Beda LABOR misuse of the land or any support extended to him shall forfeit his right to continue as such beneficiary. under the effective control and supervision of the employer for a substantial period of time as determined by the Secretary of Labor shall be considered as an employee of such establishment for purposes of labor and social legislation. The DAR shall submit periodic reports on the performance of the beneficiaries to the CARP. Bituin sued the Club for illegal dismissal. marriage or pregnancy is valid cause for dismissal. The club provides food and drinks which are served by women who are dressed like Playboy Bunnies. or in tax credits. cocktail lounge. Under the CARL. CONDITIONS OF EMPLOYMENT. containing the aforesaid provisions. If. At the option of the landowner. OT pay. massage clinic. The social and economic benefits contributed by the farmers and the farm-owners and by the government to the property as well as the non-payment of taxes or loans secured from any government financing institution on the said land shall be considered as additional factors to determine its valuation. The concepts of just compensation in the Bill of Rights and in agrarian reform are similar in the sense that in both situations. the Land Bank of the Philippines shall compensate the landowner in such amount as may agreed upon by the landowner and the Department of Agrarian Reform and the Land Bank of the Philippines. 6 months later.” Bituin applied and was hired by the Club. The CARL provides that in determining just compensation. at the option of the beneficiaries. provisions appear: “Compensation -. to the payment of just compensation. under the CARL. TOPIC: LABOR STANDARDS.

all striking or lockout employees shall immediately return to work and the employer shall immediately resume operations and re-admit all workers under the same terms and conditions prevailing before the strike or lockout.” These can’t be considered compensation. (Divine Word University vs. bar or other similar establishment. She is also entitled to premium pay since she works 7 days a week. a national union. The representation issue within PAFLU is pending resolution before the Office of the Secretary of Labor. TOPIC: STRIKE/LOCKOUT. with or without compensation in any nightclub. cocktail lounge. Its rank-and-file workers organized the Jenson Employees Union (JEU). LABOR RELATIONS TOPIC: ASSUMPTION ORDER In a labor dispute. If one had already taken place at the time of assumption. In the meantime. After having been certified as the exclusive bargaining agent of the appropriate bargaining unit. She works 9 hours a day. By reason of this intra-union dispute within PAFLU. Those who violate the foregoing shall be subject to disciplinary action or even criminal prosecution. a power-struggle occurred within the national union PAFLU between its National President. 263(g) of the Labor Code. and also from 10 pm.” Give the legal implications of such an order. J&J obstinately and consistently refused to offer any counter-proposal and to bargain collectively with JEU-PAFLU until the representation . no strike or lockout shall be declared after the assumption of jurisdiction by the Secretary. Red Notes in Labor Law 45 Jenson & Jenson (J&J) is a domestic corporation engaged in the manufacturing of consumer products. to a night differential pay. For the latter. a duly registered local union affiliated with PAFLU. as provided under the Code. it shall be unlawful for an employer to discharge a woman employee on account of her pregnancy. 213 SCRA 759).” Bituin was illegally dismissed. under the effective control and supervision of the employer for a substantial period of time as determined by the Secretary of Labor shall be considered as an employee of such establishment for purposes of labor and social legislation. 2. COMPULSORY ARBITRATION SUMMARY OF THE RULE: The Secretary of Labor may exercise the power of compulsory arbitration over the labor dispute when such dispute may cause or likely cause a strike or lockout in an industry indispensable to national interest. the Secretary of Labor issued an “Assumption Order. Under Art. The compensation given to Bituin was “all tips. JEU_PAFLU submitted its proposals for a Collective Bargaining Agreement with the company. Manny Pakyao. Secretary of Labor. such assumption shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption order. Since her working hours are from 6 pm to 3 am.2005 CENTRALIZED BAR OPERATIONS LABOR LAW Bituin is an employee of the Club. works on her weekly rest day. “ any woman who is permitted or suffered to work. they could be considered as service charges which Bituin can keep. at most. even if the directive to return to work is not expressly stated in the assumption order. She is entitled to backwages. Under Art. she should be paid at 200% of her basic rate. and its National Secretary General. She is thus entitled to be paid at least the minimum wage. massage clinic. and thus. and also on regular holidays. Pregnancy is not a valid cause for dismissal because. The Secretary of Labor and Employment may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as he may issue to enforce the same. Gabriel Miro. The mere issuance of an assumption order by the Secretary of Labor automatically carries with it a return to work order. 264 of the Labor Code. Under Art. She is also entitled to OT pay.138.

The Secretary of Labor subsequently assumed jurisdiction over the labor dispute. vs. vs. rates of pay. be considered an employee for purposes of membership in any labor union. Ferrer-Calleja. Can the Secretary of Labor decide the labor dispute by awarding the JEU CBA Proposals as the Collective Bargaining Agreement of the parties? Explain briefly. Inc. that as an exception to the general rule. Therefore. The Secretary of Labor can decide the labor dispute by awarding the JEU CBA proposals as the Collective Bargaining Agreement of the parties because when the Secretary of Labor (Article 263 [g]) assumes jurisdiction over a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest. Any employee. [Article 277 (c)]. If the consumer products that are being manufactured are not such that a strike against the company cannot be considered a strike in an industry indispensable for the national interest. meaning. have substantial interest in the selection of the bargaining representative. the Secretary of Labor exercises the power of compulsory arbitration over the labor dispute. he cannot legally exercise the powers of compulsory arbitration in the labor dispute. The law refers to “all” the employees in the bargaining unit. probationary or permanent.College of Law LAW San Beda LABOR issue within PAFLU shall have been resolved with finality. then the assumption of jurisdiction by the Secretary of Labor is not proper. This principle is clearly stated in Article 255 of the Labor Code which states that the “labor organization designated or selected by the majority of the employees in such unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. Inc. hours of work or terms and conditions of employment by determining what should be the CBA of the parties (Divine Word University vs. JEU-PAFLU filed a Notice of Strike. CERTIFICATION ELECTION SUMMARY OF THE RULE: All rank-and-file employees. the Secretary of Labor now has the power to set or fix wages. ALTERNATIVE ANSWER: Probationary employees may not be entitled to vote in a certification election where only regular employees belong to a bargaining unit and probationary employees do not belong to such bargaining unit. TOPIC: STRIKES San Beda College of 46 Law . 213 SCRA 759) . all rank-and-file employees in the appropriate bargaining unit are entitled to vote. (Airtime Specialists. The Code makes no distinction as to their employment status as bases for eligibility to vote in the petition for certification election. Ferrer-Calleja. What is involved in the case in question is a corporation engaged in the manufacturing of consumer products. TOPIC: PROBATIONARY EMPLOYEES.” Collective bargaining covers all aspects of the employment relation and the resultant CBA negotiated by the certified union binds all employees in the bargaining unit. probationary or permanent. 180 SCRA 749). It is the belonging to a bargaining unit that entitles an employee to vote in a certification election. Secretary of Labor. 180 SCRA 749). shall. whether employed for a definite period or not. have substantial interest in the selection of the bargaining representative. The Code makes no distinction as to their employment status as bases for eligibility to vote in the petition for certification election. Are probationary employees entitled to vote in a certification election? Why? In a certification election. ALTERNATIVE ANSWER: No. All they need to be eligible to vote is to belong to the bargaining unit. all rankand-file employees. Hence. beginning on his first day of service. Yes. ANOTHER ALTERNATIVE ANSWER: Yes. (Airtime Specialists.

any union officer who knowingly participated in it may be declared to have lost his employment status. strike vote.. caused by a bargaining deadlock or an unfair labor practice strike. if any. It employed 20 sales persons.e. without their committing illegal acts. On May 28. What will your advice be? The union president tells you that they prefer to go on strike. meaning such union officer could be legally terminated.. If PMCI persists in its refusal to bargain collectively. PMCI refused to recognize the union.e. He wants to know the legal requirements that the union must comply with so the strike will be legal. it was an illegal strike. Following the call for a nationwide strike. the union could go back to PMCI and ask it to bargain collectively with the Union.. What is your opinion? Explain. notice. Union “X” staged a strike and put a picket the following day. Porfirio. All were stockholders. i. What advice will you give? I will advice the union president to file a petition for certification so that after being certified as the collective bargaining representative. 1989. as labor adviser of the federation which they were planning to affiliate with. Applying the rule in Philippine Blooming Mills to the effect that the workers only personally assembled to influence the decision making process of the government which is a constitutionally guaranteed right. On December 10. I will advice the Union to file a case of unfair labor practice against PMCI since a refusal to bargain collectively is a ULP. Crisostomo. For a strike to be legal. and Jose Ramirez were brothers and sisters. The picket was peaceful. Estela. 45 rank and file workers of the company formed and registered a labor union.” Union “X” immediately company sought your legal advice on the legality of the strike and the liability. As for the union members who participated in the strike. i. (PMCI). 1989. i.e. He wants your opinion on what the union may lawfully do to compel management to come to the bargaining table at that point. caused by a bargaining deadlock or an unfair labor practice strike. and 10 administrative employees. cooling off period. Union “X” is a member of the UKM and represents all the rank and the file employees of the Puritan Mining Company.. i. Because it was an illegal strike. and a set of economic demands. The strike was illegal.2005 CENTRALIZED BAR OPERATIONS SUMMARY OF THE RULE: For a strike to be legal.. Marita. They sent a letter to Pagaspas demanding recognition as bargaining agent of all workers. The strike by Union “X” was neither an economic strike or an unfair strike. The picket was likewise peaceful.e. They allowed ingress and egress to and from the company premises. of the union officers and the participating members. PMCI sold office machines and supplies. enclosing check-off authorization forms of the union members. does not constitute sufficient ground for the termination of their employment. caused by the commission of an unfair labor practice by an employer.e. On May 24. the company’s operations were paralyzed although company officials and supervisory employees were allowed ingress and egress to and from the company premises. it should either be an economic strike. LABOR LAW Red Notes in Labor Law 45 . 1987. The union president went to you. the UKM leadership announced the end of the “Welga ng Bayan. 10 delivery men. Inc. 20 service personnel. The mere participation of the union members. caused by the commission of an unfair labor practice by an employer. Note: Credit should be given to answer that focus on the procedural requirement for a strike to be legal. Thus. ALTERNATIVE ANSWER: The strike is legal and the union officers and participating union members incur no liability for calling and participating in the strike respectively. it should either be an economic strike. As a result. the facts show that no illegal acts were committed. i. the UKM urged its member-unions to join a “Welga ng Bayan” in support of its efforts to pressure Congress to increase the daily minimum wage. directors and officers of the Pagaspas Marketing Co.

For termination of employment based on any of the just causes for termination. age. grounds have been established to justify his termination. SUMMARY OF THE RULE: To meet the requirements of due process. seniority. serious. which informs the employee of the employers decision to dismiss him.e. actual and real or if only expected. if already incurred. the law requires that an employer must furnish the workers sought to be dismissed with two written notices before termination of employment can be legally effected. 131108. Assuming the existence of valid grounds for dismissal. DUE PROCESS REQUIREMENTS.. (2) A hearing or conference should be held during which the employee concerned. No. either at a meeting or through a referendum. (3) that the employer pays the retrenched employees separation pay equivalent to one month pay or at least one month pay for every year of service. G. A majority of the union members on the bargaining unit should approve the declaration of strike. efficiency. (2) that the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment. but substantial. re reasonably imminent as perceived by objectively and in good faith by the employer.. present his evidence and present the evidence presented against him. i. There should be a strike vote. with the assistance or counsel if the employee so desires. (4) that the employer exercises his prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employee’s right of security of tenure. what are the requirements before an employer can terminate the services of an employee? The employer should give the employee being terminated due process. if termination is the decision of the employer.College of Law LAW San Beda LABOR I will tell the union president that these are the requisites that should be complied with if a strike is to be legal: The union should file a notice of strike with the Bureau of Labor Relations (assuming PMCI is in Metro Manila). The SC stated that the requirements for a valid retrenchment must be proved by clear and convincing evidence: (1) that the retrenchment is reasonably necessary and likely to prevent business losses which. whether they are temporary. and (2) subsequent notice. TOPIC: ILLEGAL DISMISSAL. (3) A written notice of termination. 1999 . A copy of the notice should also be served upon PMCI. such as status (i.e. are not merely de minimis. and (5) that the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees. if any. (1) a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought. and financial hardship for certain workers. after due hearing. casual. physical fitness. whichever is higher. that is. regular. must an employer comply with to justify / effect a valid retrenchment program? In the case of Asian Alcohol Corporation vs. March 25. . is given opportunity to respond to the charge. TOPIC: CONDITIONS FOR A VALID RETRENCHMENT What conditions must prevail and what requirements. the requirement of due process that the employer must comply with are: San Beda College of Law 46 (1) A written notice should be served on the employer specifying the ground or grounds for termination and giving to say employee reasonable opportunity within which to explain his side. The union should also inform the Bureau about the result of the voting at least seven (7) days before the intended strike. its refusal to bargain collectively) after filing a notice of strike. The union should not actually go on strike until after 30 days (if the strike is because of the ULP committed by PMCI. should be served on the employee indicating that upon due consideration of all the circumstances.R. NLRC. The union should furnish the Bureau of Labor Relations of the Notice of meeting where a strike vote will be taken. or managerial employees).

after due hearing. the requirements of due process shall be deemed complied with upon service of a written notice to the Department of Labor and Employment at least thirty (30) days before the affectivity of the termination specifying the ground or grounds for termination. 252 SCRA 314). moral and exemplary and other forms of damages arising from the employer-employee relations. To meet the requirements of due process. which informs the employee of the employers decision to dismiss him (Tanala v. and (2) subsequent notice. that is. According to the Labor Code (Article 217 (a)4). Rule on the Motion to Dismiss. Soon thereafter. Castro-Bartolome. The suit arises from the fact that the President of the company shouted invectives at Mariet Demetrio in the presence of employees and visitors. This is a simple action for damages for tortious acts allegedly committed by defendant-employer (Medina vs. NLRC. Not only must the dismissal be for a valid or unauthorized cause as provided by law but the rudimentary requirements of due process – notice and hearing – must also be observed before an employee must be dismissed (Salaw v. Mariet received a memorandum transferring her to the Office of the General Manager without demotion in rank or diminution in pay. hearing. (1) a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought. Her complaint for damages is against an officer of the Company based on slanderous language alleged made by the latter. the employer must comply with the requirement of procedural due process: written notice of intent to terminate stating the cause of termination. it is claimed that the case should have been filed before the Labor Arbiter. It is a regular court and not a Labor Arbiter that has jurisdiction on the suit for damages. 116 SCRA 597). claims for actual.2005 CENTRALIZED BAR OPERATIONS For termination of employment based on authorized causes. the law requires that an employer must furnish the workers sought to be dismissed with two written notices before termination of employment can be legally effected. The claim for damages in the case in question arose from the fact that the President of the Company shouted invectives at Mariet Demetrio in the presence of employees and visitors for a LABOR LAW Red Notes in Labor Law 45 . Mariet Demetrio was a clerk-typist in the Office of the President of a multinational corporation. However. ALTERNATIVE ANSWER: Assuming that there is a valid ground to terminate employment. 277 of the Labor Code reads: xxx The employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires…. the company lawyer filed a Motion to Dismiss for lack of jurisdiction considering the existence of an employer-employee relationship and therefore. Castro-Bartolome. the latter shouting invectives at her in the presence of employees and visitors for a minor infraction she committed. (Medina vs. and notice of termination. among others. 116 SCRA 597) ALTERNATIVE ANSWER: The Motion to dismiss should be granted. This falls under the jurisdiction of the ordinary courts. One day she was berated by the President of the company. Mariet refused to transfer. Mariet was reduced to tears out of shame and felt so bitter about the incident that she filed a civil case for damages against the company president before the regular courts. Explain briefly. TOPIC: JURISDICTION SUMMARY OF THE RULE: Regular courts have jurisdiction over cases arising from slanderous language uttered against an employee by an employer. the governing statue is the Civil Code and not the Labor Code. The damages did not arise from the employer-employee relations which would not have placed the suit under the jurisdiction of a Labor Arbiter. Art. 202 SCRA 7). Should it be granted or denied. Such being the case. NLRC. The Motion to Dismiss should be denied. with respect to the civil suit for damages. There is here a simple action for damages for tortious acts allegedly committed by the defendant. the Labor Arbiter has original and exclusive jurisdiction to hear and decide.

the claim for damages could be considered as arising from employer-employee relations. the claim is under the exclusive jurisdiction of the Labor Arbiter. but the report was rejected by the Agency. But if there are good reasons that may justifiably explain why there was a delay in the filing of the appeal. But the neuropsychiatric evaluation test by Mahusay Medical Center is not the certification required for disease to be a ground for termination. TOPIC: JURISDICTION SUMMARY OF THE RULE: Article 223 of the Labor Code provides that: “ Decisions. If the infraction has something to do with her work. On the second issue. awards. SELECTED 2004 BAR QUESTIONS AND ANSWERS A. or orders. Star cited its sad experience last year when a guard ran amuck and shot an employee of a client-bank. awards. a security guard. Thus. or orders. Should the NLRC dismiss the petition outright or may the NLRC take cognizance thereof? The NLRC should dismiss the appeal outright because the same was filed beyond the reglementary period of appeal. RS.” ALTERNATIVE ANSWER: The NLRC could dismiss outright the appeal for being filed out of time. RS can be considered as terminated because he has been placed on “off detail” or “floating status” for a period which is more than 6 months. He alleged he was constructively dismissed after ten years of service to the agency.” The affected members of the rank-and-file employees elevated the Labor Arbiter’s decision to the NLRC via a petition for review filed after the lapse of the 10-day reglementary period for perfecting an appeal. It is not one of those dubious testing centers issuing ready-made reports. substantial justice may be the basis for the NLRC to take cognizance of the appeal. or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within 10 calendar days from the receipt of such decisions. Article 223 of the Labor Code reads: “ Decisions.College of Law LAW San Beda LABOR minor infraction she committed. then. it is true that disease is a ground for termination. filed a complaint for illegal dismissal against Star Security Agency. he claimed the Agency just really wanted to get rid of him because it required him to take a neuro-psychiatric evaluation test by Mahusay Medical Center. Star claimed management prerogative in assigning its guards. awards. or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within 10 calendar days from the receipt of such decisions. It could manipulate tests to favor oThnly guards whom the Agency wanted to retain. What are the issues? Identify and resolve them. Is there a valid reason for the termination of RS? On the first issue. RS added that Mahusay Medical Center had close ties with Star’s president. awards. and prayed that RS’ complaint be dismissed. When RS was placed on off detail or floating status for more than 6 months. RS said he already submitted the result of his evaluation test by Brent Medical Clinic as precondition to a new assignment. 3. Star defended its policy of reliance on Mahusay Medical Center because it has been duly accredited by the Philippine National Police. The Rules and Regulations implementing the Labor Code require a San Beda College of 46 Law . can RS claim that he was terminated? 2. Having been placed on “off-detail” and “floating status” for 6 months already. SUGGESTED ANSWER: The facts in the question raise these issues: 1.

2. provided that the work shall not be more than 4 hours at any given day. 3. SUGGESTED ANSWER: Certification of labor dispute for immediate assumption of jurisdiction by the Secretary refers to industries indispensable to national interest: LABOR LAW Red Notes in Labor Law 45 . NLRC. RS cannot be placed on “off detail” or “floating status” indefinitely. Which of the following may be considered among industries most vital to national interest as to be subject of immediate assumption of jurisdiction by the Secretary of Labor or certification for compulsory arbitration in case of strike or work stoppage arising from a labor dispute? 1. Is there constructive dismissal? 2. She gives him rice and P30.] C. which is beyond the cut-off period of the then 2004 Bar Examinations. the teacher stated that the work performed by her pupil is not hazardous. ANOTHER SUGGESTED ANSWER: The issues involved are as follows: 1. of DOLE for the engagement of persons in domestic and household service. Under Art. She lives alone at her house near the school after her housemaid left. A mere Department Order cannot prevail over the express prohibitory provisions of the Labor Code. SUGGESTED ANSWER: No. Elephant Island and Boracay Resort LBC. that the work is not hazardous or deleterious to his health or morals. If it lasts for more than 6 months. provided further. 5. there is no valid exercise of management prerogative. and provided. Sec. O. The school principal learned about it and charged her with violating the law which prohibits the employment of children below 15 years of age. DHL and FedEX centers Justify your answer or choice. Star’s claim of management prerogative in assigning its guards cannot be exercised to defeat or circumvent RS’ right to security of tenure. 19 of the Labor Code on minimum employable age. Her defense is not tenable.B. 2003.00 before the boy goes home at 7:00 every night. the provisions of the alleged D. In the afternoon. A spinster school teacher took pity on one of her pupils. (Superstar Security Agency vs.2005 CENTRALIZED BAR OPERATIONS certification by a public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of 6 months even with proper medical treatment. Is her defense tenable? Reason. 184 SCRA 74) On the second issue. there is constructive dismissal. no child below 15 years of age shall be employed except when he works directly under the sole responsibility of his parents or guardian. that he does not work between 8PM and 6AM of the following day. fetching water and all kinds of errands after school hours. RA 9231 allows a child below 15 years of age to work for not more than 20 hours a week. she lets the boy do various chores as cleaning. 3. a robust and precocious 12-year old boy whose poor family could barely afford the cost of his schooling. In her defense. of DOLE to the contrary notwithstanding. This is a law approved only on July 28. Is there a valid exercise of management prerogative? On the first issue. RS shall be deemed to have been constructively dismissed thus entitling him to separation benefits. and she invoked the exception provided in the D. [N. B. 4.O. Bulletin daily newspaper publishing company Local franchise of Jolibee and Starbucks Shipping and port services in Cebu and Manila Enchanted Kingdom. finally.

LBC. Because of alleged “unfair labor practices” by the management of GFI system. SUGGESTED ANSWER: No. DHL and FedEX centers. The leaders of the walk-out were dismissed. D. 3.” The last clause is very clear. its employees walked out from their jobs and refused to return to work until the management would grant their union official recognition and start negotiations with them. the Secreatry can assume jurisdiction over the dispute because ABC could be considered as an industry indispensable to the national interest since it produces the country’s supply of chlorine for water treatment. since access to information is a requirement for an informed citizenry. And there is as yet no law giving government employees the right to strike. since the country needs domestic sea transport due to our topography and for the smooth flow of business and government operations. they cited the principle of social justice of workers and the right to self-organization and collective action. Sec 3 of Art XIII of the Constitution states. and peaceful concerted activities including the right to strike in accordance with law. They are government employees. ANOTHER SUGGESTED ANSWER: No. On the second day after the strike. In arguing their case before the Civil Service Commission. including the right to strike. ABC furnished the Secretary with evidence to show that company vehicles had been damaged. ABC filed a petition with the DOLE Secretary to intervene through the issuance of an assumption of jurisdiction order that the Secretary may issue when a strike or lockout will adversely affect national interest. they do not have the right to strike. Could the DOLE Secretary intervene. collective bargaining and negotiations. E. since couriers are essential to foreign and domestic business and government operations. Shipping and port services. and as such. Is the position taken by the walk-out leaders and participants legally correct? Reason briefly. They claimed that the Constitution shielded them from any penalty because their walk-out was a concerted action pursuant to their rights guaranteed by basic law. Bulletin Daily Newspaper. It is statutory because the right should be in accordance with law. assume jurisdiction and issue a TRO? Briefly justify your answer. and equipment and materials were damaged because electric power was not immediately restored. The assumption of jurisdiction by the Secretary has the effect of ending the strike. a government-owned and controlled financial corporation. “The State shall guarantee the rights of all workers to self-organization. and the other participants were suspended for 6o days. Employees of ABC declared a strike after filing a Notice of Strike with the DOLE. San Beda College of 46 Law . ABC forecast that the country’s supply of chlorine for water treatment (which the company produces) would be affected adversely if ABC’s operations were closed down by the strikers. the right to strike is not constitutional. They barricaded company gates and damaged vehicles entering company premises.College of Law LAW San Beda LABOR 1. 2. SUGGESTED ANSWER: Yes. that electric power had been cut off. The strikers will be subject to Return to Work Order by the Secretary upon his assumption of jurisdiction.

Article 38. ISSUANCE OF SEARCH AND SEIZURE ORDERS Under the Constitution. among which is that said strike should be validly grounded on a (a) deadlock in collective bargaining. Achacoso and Marquez). CONCEPT. REIMBURSEMENT OF OVERPAID FEES POEA has the power to order refund or reimbursement of fees fraudulently or illegally collected. or in excess of what is legally allowed. may no longer issue search or arrest warrants. LABOR LAW CASE DOCTRINES BOOK ONE POEA.2005 CENTRALIZED BAR OPERATIONS Assuming that what we have is a originally chartered GOCC. still no such walk-out is allowed without complying with the requirements of a valid strike. unless such subsequent agreement is approved by the POEA (Chavez vs. of the Labor Code. BOOK TWO Red Notes in Labor Law 45 . stage such walk-out which is basically a case of strike. they cannot. Bonto-Perez). (Eastern Assurance & Surety Corporation vs. Even if GFI was organized under the Corporation Code. under Eo 180 and related jurisprudence. paragraph (c). or (b) ULP. The labor authorities must go through the judicial process. To that extent. ILLEGAL RECRUITMENT. ILLEGAL RECRUITMENT vis-à-vis ESTAFA A person convicted for illegal recruitment under the Labor Code can be convicted for violation of the Revised Penal Code provisions on estafa provided the elements of the crime are present (People vs. POWERS AND FUNCTIONS. APPROVAL OF OVERSEAS CONTRACTS An agreement that changes the employee’s pay and benefits to make them lesser than those contained in a POEA-approved contract is void. not being a judge. only a judge may issue warrants of search and arrest. The Secretary of Labor. is declared of no force and effect (Salazar vs. Secretary of Labor). Calonzo).

Ople). NLRC). causes injury to a third person. DEFINED. including such facilities as may be reasonable and necessary to finish their chosen courses under such agreement. The applicable law is Article 2180 of the Civil Code (Filamer Christian Institute v. Except as limited by special laws. 46 Law . Those who belong to the second category are not regular employees for they do not have to devote their time exclusively to or work solely for the company since the time and the effort they spend in their work depend entirely upon their own will and initiative (Great Pacific Life Insurance Corporation vs. The agents who belong to the first category are regular employees. transfer of employees. where there is written agreement between them under which the former agree to work for the latter in exchange for the privilege to study free of charge. layoff of workers and the discipline. place and manner of work. working methods time. The Implementing Rules provision that there is no employer-employee relation between the school and the student pertains to observance of labor regulations. 72 of the Labor Code. and (2) registered representatives who work on commission basis. BOOK THREE MANAGEMENT PREROGATIVE. processes to be followed. and schools. an employer is free to regulate. CONDITIONS OF EMPLOYMENT. It is not the decisive law in a civil suit for damages instituted by an injured third person. provided. 14) If the student referred to in Art. which constitutes the test (Feati University vs. colleges or universities. CA)." (Implementing Rules of Book III. the school can be held liable. tools to be used. such as payrolls to be kept. Sec. If employed without a pre-approved apprenticeship program. Jose S. COVERAGE San Beda College of INSURANCE AGENTS An insurance company may have two classes of agents who sell its insurance policies: (1) salaried employees who keep definite hours and work under the control and supervision of the company. on the other. including hiring. the apprentice is not an apprentice but a regular employee (Nitto Enterprises v. work assignments. and it is not the actual exercise of the right by interfering with the work. Bautista. according to his own discretion and judgment. Rule X. all aspects of employment. but the right to control. work supervision. supervision of workers. dismissal and recall of workers (San Miguel Brewery Sales vs. TEACHERS College teachers are regular employees. and Feati University Faculty Club). working conditions or rest periods. Judico). working regulations. Hon. The principal consideration in determining whether a workman is an employee or an independent contractor is the right to control the manner of doing the work. APPRENTICESHIP vis-à-vis EMPLOYER-EMPLOYEE RELATIONSHIP There is no employer-employee relationship between students on one hand. the students are given real opportunities. CONCEPT San Beda LABOR An apprenticeship program needs prior approval by the Department of Labor and Employment. in the course of doing a task in behalf of the school.College of Law LAW APPRENTICESHIP AGREEMENTS: CONCEPT.

Pan American Employment Association). The 45 . FISHERMEN Fishermen who work not under the orders of the boat-owners as regards their employment. Abbas. Swift and Co. CIR and the National Textile Workers Union).2005 CENTRALIZED BAR OPERATIONS JEEPNEY DRIVERS UNDER BOUNDARY SYSTEM Employer-employee relationship exists between the owner of the jeepneys and the drivers even if the latter work under the boundary system. PIECE-RATE WORKERS Piece-rate workers who work inside the company premises under the close supervision and control of their employers are regular employees ( Labor Congress of the Philippines vs. their service as drivers of the jeeps being their only contribution to the business. ON CALL An employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call”. without any reference to the owners of the vessel. Fishermen who conduct fishing operations under the control and supervision of the boatowner’s operations manager are regular employees. 1980). Piece-rate workers who work outside the company premises and are unsupervised or whose time spent in their work cannot be reasonably ascertained are NOT regular employees (Makati Haberdashery. NLRC). MEAL TIME Meal time is NOT working time if the employee is completely freed from duties during his meal period even though he remains in the workplace (Pan American World Airways System [Phil. et al. LABOR LAW Red Notes in Labor Law Where work is continuous for several shifts. Sept. CONDITIONS OF EMPLOYMENT. vs. but upon their own volition as to when. Inc.). L-21212). vs. that they simply join the trip for which the pilots allow them. and that they only share in their own catch produced by their own efforts – are NOT regular employees (Pajarillo vs. that the boat-owners do not in any way control the crew members with whom the former have no relationship whatsoever. SSS). relationship of lessor and lessee cannot be sustained (Citizen’s League of Free Workers. that they go out to sea not upon directions of the boat-owners. NLRC). National Alliance of Teachers and Office Workers Assoc. et al. GR No. and where to go fishing. how long. Matters dealing on the fixing of the schedule of the fishing trip and the time to return to the fishing port were the prerogative of the boat-owner (Ruga. NLRC). the mealtime breaks should be counted as working time for purposes of overtime compensation (National Dev’t Company vs. Not having any interest in the business because they did not participate in the management thereof.] vs. WORKING WHILE SLEEPING Sleeping time may be considered working time if it subject to serious interruption or takes place under conditions substantially less desirable than would be likely to exist at the employee’s home (Skidmore vs. vs. 5. HOURS OF WORK WAITING TIME Waiting spent by an employee shall be considered as working time if waiting is considered an integral part of his work or if the employee is required or engaged by an employer to wait (Zapanta v.

Gotamco Lumber Co. received and not by all employees. Nardo Dayao. CONDITIONS OF EMPLOYMENT. Inc. Any stipulation in the contract that the laborer shall work beyond the regular 8 hours without additional compensation for the extra hours is contrary to law and null and void (Cruz vs. vs. Advisory Opinion to Philippine Integrated Exporters. The right is intended for the benefit of the laborers and employees. hence the same cannot be waived.College of Law LAW NIGHT SHIFT DIFFERENTIAL San Beda LABOR time he stays in the place of work is considered hours worked (National Labor Union vs. The latter is payment for work done during the night while the other is payment for the excess of the regular eight-hour work (Naric vs. not regularly.). Hon. CIR). OVERTIME PAY The right to overtime pay cannot be waived. on the query about Conditions of Employment of Part-time Workers Part-time workers are entitled to the full benefit of the yearly 5 days service incentive leave with pay. et al. Amado Inciong and Insular Bank of Asia and America). Manila Electric Company. vs. premium pay for work done on Sundays. Consequently. The Labor Code clearly states that every worker shall be paid his or her regular holiday pay (Insular Bank of Asia and America Employees Union vs. part-time employees are also entitled to the full five days service incentive leave benefit and not on a pro-rata basis. WAGES . speak of the number of months in a year for entitlement to said benefit. Yee Sing). It is argued that that laborer can rest during the day after having worked the whole night. HOLIDAY PAY AND SERVICE INCENTIVE LEAVES ENTITLEMENT OF MONTHLY-PAID EMPLOYEES TO HOLIDAY PAY Monthly-paid employees are not excluded from the benefits of holiday pay. Naric Workers Union). holidays and at night and other fringe benefits which are occasionally. The reason is that the provisions of Article 95 of the Labor Code and its implementing rules. should not be added to the basic pay. NIGHT SHIFT DIFFERENTIAL AND OVERTIME PAY The receipt of overtime pay will not preclude the right to night differential pay. WAIVER OF OVERTIME PAY Waiver may be permitted when it is in consideration of benefits and privileges which may be more than what will accrue to the employee in overtime pay (Meralco Workers Union vs. ENTITLEMENT OF PART-TIME OR CONTRACTUAL WORKERS TO SERVICE INCENTIVE LEAVE Law 46 Bureau of Working Conditions. Additional compensation for nighttime work is founded on public policy. Inc.. OVERTIME PAY BASED ON BASIC PAY In the computation of overtime pay. But can the repose by day produce to the human body the same complete recuperative effects which only the natural rest at night can give him? It is believed that since time immemorial the universal rule is that a man works at night due to some driving necessity rather than for reasons of convenience (Mercury Drug co.). San Beda College of CONDITIONS OF EMPLOYMENT. et al.

this does not mean that they are entitled to attorney’s fees. WAGES. and the deduction is to recompense the employer for the amount paid by him as premium on the insurance. WAGE DISTORTION Red Notes in Labor Law 45 . appearing or defending a party litigant in a labor case does not. vs. the fixed or guaranteed wage is patently the “basic salary” for this is what the employee receives for a standard work period. Inc. by itself. Thus. Inc. the salesman’s commissions. LABOR LAW PROPORTIONATE 13th MONTH PAY An employee who has resigned or whose services were terminated at anytime before the time of payment of the 13th month pay is entitled to 13 th month pay in proportion to the length of time he worked during the year.2005 CENTRALIZED BAR OPERATIONS SALARY EXCLUDES ALLOWANCES Existing laws exclude allowances from the basic salary or wage in the computation of the amount of retirement and other benefits payable to an employee. et al. NLRC and MC Mamuyac). under certain circumstances. which the Court has made clear do not form part of the “basic salary” (Boie-Takeda Chemicals. These commissions are not overtime payments. et a. Commissions are given for extra efforts exerted in consummating sales or other related transactions. and (c) in cases where the employer is authorized by law or regulations issued by the Secretary of Labor (Apodaca vs. Dionisio Dela Serna). vs. additional pay. Entitlement to attorney’s fees presupposes the existence of attorney-client relationship. NLRC and Philippine Duplicators Employees Union) . The Supreme Court will not adopt a different meaning of the terms “salaries or wages” to mean the opposite. vs. They are. as such. that is to include allowances in the concept of salaries or wages (Cebu Institute of Technology vs.percentage type. PAYMENT OF WAGES NON-LAWYERS NOT ENTITLED TO ATTORNEY’S FEES Although the law allows. were properly included in the term “basic salary” for purposes of computing their 13 th month pay (Philippine Duplicators. comprising a predetermined percent of the selling price of the goods sold by each salesman. In remunerative schemes consisting of a fixed or guaranteed wage plus commission. they may properly be considered part of the basic salary. in cases where the right of the workers or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned. WAGES. NLRC. Ople). confer upon them legal right to claim for attorney’s fees. nor profitsharing payments nor any other fringe benefit. (b) for union dues. This relationship cannot exist unless the client’s representative is a lawyer (Five J Taxi. however. non-lawyers to appear before the National Labor Relations Commission or any Labor Arbiter. to wit: (a) in cases where the worker is insured with his consent by the employer. BASIC WAGE AND COMMISSIONS If the commissions are in a wage-or sales. reckoned from the time he started working during the calendar year up to the time of his resignation or termination from the service (International School of Speech vs. NLRC). only in three instances.). Their act of representing. PROHIBITION REGARDING WAGES WAGE DEDUCTIONS: SETTING OFF OF MONEY CLAIM OF EMPLOYEE AGAINST NONPAYMENT OF STOCK SUBSCRIPTIONS Article 113 of the Labor Code allows such a deduction from the wages of the employees by the employer.

The sweeping intendment of the law. they are employees of the company or employer in the business concerned entitled to the privileges of a regular employee (Apex Mining Co. or it should have categorically expressed so. This classification is reflected in a differing wage rate for each of the existing classes of employees. (b) Wage distortions have often been the result of government-decreed increases in minimum wages. NLRC). chosen by the parties or appointed by statutory authority to hear and decide the case in controversy. In other words. POWERS OF THE COMMISSION CONTEMPT POWER The commission has the power to hold any person in contempt directly or indirectly. there is no legal requirement that. NLRC). in the rectification of that distortion by readjustment of the wage rates of the differing classes of employees. While the nature of work of a househelper.. 3(b). et al. BOOK FIVE POWERS AND DUTIES. In labor cases. vs. Inc. correction of a wage distortion may be done by reestablishing a substantial or significant gap (as distinguished from the historical gap) between the wage rates of the differing classes of employees. 218. like the merger of two companies (with differing classifications of employees and different wage rates) where the surviving company absorbs all the employees of the dissolved corporation. domestic servant or laundry woman in a home or in a company staff house may be similar in nature.College of Law LAW San Beda LABOR The Court summarizes the principles relating to wage distortion. Inc. the gap which had previously or historically existed be restored in precisely the same amount. vs. Rule X of the New Rules of Procedure of the NLRC provides that the Commissioner or any labor arbiter may cite any person for indirect contempt upon grounds and in the manner prescribed under Sec. SPECIAL GROUP OF EMPLOYEES STIPULATION AGAINST MARRIAGE (Article 136) Article 136 is not intended to apply only to women employed in ordinary occupations. compulsory arbitration is the process of settlement of labor disputes by a government agency which has the authority to investigate and to make an award which is binding on all parties (Philippine Airlines. Section 2. There are. POWERS AND DUTIES. When the consent of one of the parties is enforced by statutory provisions. service is being rendered in the staff houses or within the premises of the business of the employer. In such instances. the proceeding is referred to as compulsory arbitration. be it on special or ordinary occupations. namely: (a) The concept of wage distortion assumes an existing grouping or classification of employees which establishes distinctions among such employees on some relevant or legitimate basis. whether it is a corporation or a single proprietorship engaged in business or industry or any other agricultural or similar pursuit. vs. arbitration is the reference of a dispute to an impartial third person. JURISDICTION OF THE LABOR ARBITERS AND THE COMMISSION MEANING OF COMPULSORY ARBITRATION In its broad sense. PAL). other causes of wage distortions. however. WORKING CONDITIONS. (c) Should a wage distortion exist. is reflected in the whole text and supported by Article 135 that speaks of nondiscrimination on the employment of women (Claudine de Castro Zialcita. the difference in their circumstances is that in the former instance they are actually serving the family while in the latter case. Rule 71 of the 1997 Rules of Civil Procedure. The procedures and penalties thereof are provided under paragraph (d) of Art. HOUSEHELPER The criterion is the personal comfort and enjoyment of the family of the employer in the home of said employer. (d) The reestablishment of a significant difference in wage rates may be the result of resort to grievance procedures or collective negotiations (National Federation of Labor vs. The said section provides that “Indirect contempt is to San Beda College of 46 Law . NLRC).

NLRC). process.. 222 of the Labor Code prohibits the payment of attorneys fees only when it is effected through forced contributions from the workers from their own funds as distinguished from the union funds. Inc. Inc. The obligation to pay the attorney’s fees belongs to the union and cannot be shunted to the workers as their responsibility (Bank of the Philippine Islands vs. COMPROMISE AGREEMENTS AND RES JUDICATA It is true that a compromise agreement once approved by the court has the effect of res judicata between the parties and should not be disturbed except for vices of consent and forgery. It may not be used therefore. NLRC. NLRC). or (c) if he is a dulyaccredited member of the legal aid office duly recognized by the department of justice or integrated bar of the Philippines in case referred thereto by the latter. PROHIBITION OF PAYMENT OF ATTORNEY’S FEES Art. et al.” But there is no question that it is an exaction which falls within the category of a ”similar charge” and therefore. The purpose of the provision is to prevent imposition on the workers of the duty to individually contribute their respective shares in the fee to be paid the attorney for his services on behalf of the union in its negotiations with the management. or judgment of a court xxx” (Industrial and transport Equipment. Inc. negotiation fees and similar charges arising out of the conclusion of a bargaining agreement from being imposed on any individual union member. ATTORNEY’S FEES There are only two kinds of cases where attorney’s fees may be assessed : (1) cases arising from unlawful withholding of wages and (2) cases arising from collective bargaining negotiations (Reahs Corporation vs. as the lone standard in fixing the exact amount payable to the lawyer by his client for the legal services he rendered. vs. The NLRC may disregard technical rules of procedure in order to give life to the constitutional mandate affording protection to labor and to conform to the need of protecting the working class whose inferiority against the employer has always been earmarked by disadvantage (Principe vs. within the coverage of the prohibition in the aforementioned article (Palacol vs. Moreover. FerrerCalleja) LABOR LAW Red Notes in Labor Law 45 . However. Philippine-Singapore Transport Services. 222 of the Labor Code allowing non-lawyers to represent their organization or members thereof (Radio Communication of the Philippines.). FEES FOR SERVICES RENDERED BY UNION OFFICERS Art. vs. while it provides for the maximum allowable amount of attorney’s fees. The appearance of labor federations and local unions as counsel in labor proceedings has been given legal sanction and we need only to cite Art. (b) if they represent their organization or members thereof.2005 CENTRALIZED BAR OPERATIONS be punished after charge and hearing for any xxx disobedience of or resistence to a lawful writ. 222(b) prohibits attorney’s fees.) . consultants and other may not be in the category of “attorney’s fees or negotiations fees. APPEARANCES AND FEES APPEARANCE OF NON-LAWYERS Non-lawyers may appear before the commission or labor arbiter only: (a) if they represent themselves. order. NLRC) . The Secretary of Labor Employment). POWERS AND DUTIES. The collection of the special assessment partly for the payment services rendered by union officers.. et al. it does not direct the instantaneous and automatic award of attorney’s fees in such maximum limit (Traders Royal Bank Employees Union-Independent vs. ATTORNEY’S FEES ARISING FROM RECOVERY OF WAGES AND OTHER BENEFITS Art 111 of the Labor Code regulates the amount recoverable as attorney’s fees in the nature of damages sustained by and awarded to the prevailing party.

The remedy for refusal of the employer to reinstate employee despite several writs of execution is not the grant of additional backwages to serve as damages but to cite the employer in contempt (Christian Literature Crusade v. It is the aid bureau and its divisions and not the barangay lupong tagapayapa which are vested by law with original and exclusive authority to conduct conciliation and mediation proceedings on labor controversies before their endorsement to the appropriate labor arbiter adjudication (Montoya vs. or resolution. NLRC). NLRC et al. LABOR ORGANIZATIONS. a labor dispute. unlike in ordinary judicial proceeding where notice to counsel is deemed notice to the party (PNOC Dockyard and Engineering Corp. EXECUTION OVER PROPERTY OWNED ONLY BY THE JUDGMENT DEBTOR If the property under levy does not belong to the judgment debtor in the NLRC case. vs.). COMPROMISE AGREEMENTS OPTIONS WHEN COMPROMISE AGREEMENT IS VIOLATED Law Under article 2041 of the civil code. ORDERS AND AWARDS San Beda LABOR FAILURE TO COMPLY WITH A WRIT OF EXECUTION If the employer fails or is unable to comply with a final and executory judgment for the reinstatement of an employee. whether in the regular courts or the labor arbiter’s branch. The remedy is certainly not the institution of a separate action. If there be valid and unsuperable cause for such inability to reinstate. the plain and obvious remedy is simply the compulsion of the employer by writ of execution to effect the mandated reinstatement and pay the amounts decreed in the judgment. NLRC).College of Law LAW APPEAL. a separate action for injunctive relief against such levy may be maintained in court (Penalosa v. Such recourse would violate the well-settled principle of res judicata. BUREAU OF LABOR RELATIONS. EXECUTION OF DECISIONS. JURISDICTION San Beda College of KATARUNGANG PAMBARANGAY AND THE LABOR CODE Art 226 of the Labor Code grants original and exclusive jurisdiction over the conciliation and mediation of disputes. it could not be validly levied upon by the sheriff for the satisfaction of the judgment therein. Villanueva). grievances or problems in the regional offices of the Department of Labor and Employment. vs. NLRC). BUREAU OF LABOR RELATIONS. or (2) regard it as rescinded and so insist upon his original demand (Morales et al. Escayo). should the party fail or refuse to comply with the terms of a compromise agreement or amicable settlement. if the third-party claim does not involve nor grows out of. decision. this factor must be taken into account in the process of directing and effectuating the award of relief to the employee consistent with the judgment. NOTIFICATION In labor cases. Even upon a prima facie showing of the ownership by the third-party claimant. It would give rise to multiplicity of actions which the law abhors and exerts every effort to eschew (MAI Philippines Inc. and disregard or overrule the employer’s claim of inability to reinstate the employee. both the party and its counsel must be duly served their separate copies of the order. vs. RIGHTS AND CONDITIONS OF MEMBERSHIP NATURE OF RELATIONSHIP BETWEEN UNION AND ITS MEMBERS 46 . the other party could either: (1) enforce the compromise by a writ of execution.

all members thereof cannot form. which is fiduciary in nature. they cannot claim that they were dismissed (Enriquez vs. RIGHT TO SELF-ORGANIZATION. NLRB). COVERAGE EMPLOYEE-MEMBERS OF A COOPERATIVE It is the fact of ownership of the cooperative. is binding upon the minority members of the union (Dionela vs. DEDUCTIONS FOR UNION SERVICE FEE Deductions for union service fee are authorized by law and do not require individual checkoff authorizations (Radio Communications of the Philippines Inc. pursuant to which the complaint in an unfair labor practice case had been withdrawn and dismissed. Zamora). is the comprehensive power vested in the union with respect to the individual. FORCED VACATION LEAVE The forced vacation leave without pay in view of the economic crisis. RIGHTS OF LEGITIMATE LABOR ORGANIZATIONS COMPROMISE BINDING UPON MINORITY MEMBERS OF UNION A compromise agreement between the union and the company. but equally important is the requirement of fair dealing between the union and its members. vs. Thus. except for mandatory activities under the Code . Hernandez). When persons voluntarily terminate their employment relationship. CHECK-OFF Attorney’s fees may not be checked-off or deducted from any amount due to an employee without his written consent. Sec. vs. Ferrer-Calleja) . ULP EVEN BEFORE UNION ID REGISTERED Red Notes in Labor Law 45 . Court of Industrial Relations). does not constitute ULP (Philippine Graphic Arts. assist or join a labor organization for the purpose of collective bargaining (Benguet Electric Cooperative vs. and the other. and arises out of two factors: one is the degree of dependence of the individual employee on the union organization. RELIEF WITHIN THE UNION Generally. oppressive or vindictive.(Vengco vs. The union to be considered but the agent for the purpose of securing for them fair and just wages and good working conditions and is subject to the obligation of giving the members as its principals all information relevant to union and labor matters entrusted (Heirs of Teodoro Cruz vs. Trajano). redress must first be sought within the union itself in accordance with its constitution and by-laws (Kapisanan ng mga Mangagawa sa MRR vs. of Labor) . UNFAIR LABOR PRACTICES. LABOR LAW LABOR ORGANIZATIONS. a corollary of the first. which disqualifies a member from joining any labor organization within the cooperative. Inc. being neither malicious. EMPLOYERS ACCEPTANCE OF MASS RESIGNATION Acceptance of a voluntary resignation is not ULP.2005 CENTRALIZED BAR OPERATIONS The union has been evolved as an organization of collective strength for the protection of labor against the unjust exactions of capital. Court of Industrial Relations) . irrespective of the degree of their participation I the actual management of the cooperative. and not the involvement in the management thereof.

Paragraph d of said article also considers it an unfair labor practice for an employer to “initiate.). NLRB). 248 of the Labor code of the Philippines. restrain.” (Judric Canning Corporation vs. but were to be appraised against the background of and in conjunction with collateral circumstances (The Insular Life Assurance Co. Ltd. vs. The letter should be interpreted according to the “totality of conduct doctrine. et al. An employer commits unfair labor practice if he defrays the union expenses or pays the attorney’s fees to the attorney who drafted the constitution and bylaws of the union.. Immediately granting he union exclusive recognition as a bargaining agent without determining whether the union represents the majority of the employees is an illegal form of assistance amounting to unfair labor practice. should not be considered by themselves alone. and (3) managerially motivated formation by employees. ULP THROUGH ECONOMIC INDUCEMENTS A violation results from an employer’s announcement of benefits prior to a representation election. This may further occur in three styles: (1) outright formation by the employer or his representatives.. This takes form of soliciting membership permitting union activities during working time or coercing employees to join the ion by threats of dismissal or 46 Law . Employees Association-ATU. but should be read in the light of the preceding and subsequent circumstances surrounding.. Supervisory assistance. including the giving of financial “or other support to it. a violation results because the employees come under threat of economic coercion or retaliation for their union activities (Henriz Mfg. dominant. where it is intended to induce the employees to vote against the union (Re: Hancock Fabric Outlet).” whereby the culpability of an employer’s remarks were to be evaluated not only on the basis of their implicit implications. Lousiana MFG).College of Law LAW San Beda LABOR Under Art. NLRB). Co vs. assist or otherwise interfere with the formation or administration of any labor organization. b. TOTALITY OF CONDUCT DOCTRINE The letter. as the result of their support for the union (NLRB vs. ULP THROUGH COMPANY DOMINATION OF THE UNION Domination of a labor union is usually manifested in the following forms: a. Financial support to the union . Inciong) ULP THROUGH VIOLENCE AND INTIMIDATION An employer unlawfully coerced employers by directing two individuals to his office at gun point on the day of representation election after the individuals had informed the employer that they were on the premises to vote in the election and they did in fact vote (Holly Hill Lumber vs. or coerce employees in their exercise of the right to self-organization” is an unfair labor practice on the part of the employer. ULP THROUGH SURVEILLANCE When an employer engages in surveillance or takes steps leading his employees to believe it is going on. d. Initiation of the company union idea . Ltd. c. The Insular Life Assurance Co. (2) employee formation on outright demand or influence by employer. Employer encouragement and assistance . “to interfere with. San Beda College of LOCKOUT OR CLOSURE AMOUNTING TO ULP The rule is that it is unlawful for the employer to threaten its employees with moving or shutting down the plant and consequent loss of employment. exhibits A and B.

the charges should include all acts of unfair labor practice committed against any and all members of the union during that period. and such a provision in a collective bargaining agreement is not a restriction of the right of freedom of association guaranteed by the Constitution (Manila Mandarin Employees Union vs. and (c) the total salary adjustments given one employee in the nonunionized branch (Manila Hotel Company vs. Philippine American Cigar &Cigarette MFg. Co. b. COLLECTIVE BARGAINING AGREEMENT. Ace Comb Co. NLRC). Creates harmonious relations between the employer and the employee (NLU vs. and based upon acts committed during the same period of time (Dionela vs. Court of Industrial Relations).2005 CENTRALIZED BAR OPERATIONS demotion (Philippine American Cigar & Cigarette Factory Workers Union vs. CONCEPT Red Notes in Labor Law 45 . g. c.). Enables labor organizations effectively to enforce collective agreements. Inc. ADVANTAGES AND DISADVANTAGES OF CLOSED-SHOP AGREEMENT A closed-shop agreement is advantageous because it— a. ULP THROUGH DISCRIMINATION IN SALARY ADJUSTMENTS There is unfair and unjust discrimination in the granting of salary adjustments where the evidence shows that (a) the management paid the employees of unionized branch. d. The union should not. Vacuum). ULP IN A GIVEN PERIOD SHOULD BE INCLUDED IN SINGLE CHARGE When a labor union accuses an employer of acts of unfair labor practice allegedly committed during a given period of time.). TEST OF DISCRIMINATION For the purpose of determining whether or not a discharge is discriminatory. Aguinaldo’s Echague). LABOR LAW VALIDITY OF THE CLOSED SHOP AGREEMENT A closed shop agreement is valid form of union security. Increases the strength and bargaining power of labor organizations. be allowed to split its cause of action and harass the employer with subsequent charges. If the discharge is actually motivated by lawful reason. Eliminates the lowering of standards caused by competition with nonunion workers.. the fact that the employee is engaged in union activities at the time will not lie against the employer and prevent him from the exercise of his business judgment to discharge an employee for cause (NLRB vs. Prevents the weakening of labor organizations by discrimination against union members. Facilitates the collection of dues and the enforcement of union rules. upon the dismissal of the charges first preferred. ULP THROUGH CONSTRUCTIVE DISCHARGE An employee was held to be constructively discharged when she quit her job because of the employee’s discriminatory assignment requiring heavy lifting work which the employer knew she was physically unable to perform (NLRB vs. Pines Hotel Employees Association) . Prevents nonunion workers from sharing in the benefits of the union’s activities without also sharing its obligations. it is necessary that the underlying reason for the discharge be established. (b) where the salary adjustments were granted to employees of one of its non-unionized branches although it was losing in its operations. The fact that a lawful cause for discharge is available is not a defense where the employee is actually discharged because of his union activities. e. f.

constitute a mandatory subject of collective bargaining (NLRB vs. par. NLRC) . 250. It may lead to the danger too that neither of the parties will engage principled bargaining. the employer is not under any legal duty to initiate contract negotiation. the refusal to bargain violates no rights (Allied Free Workers Union vs. A party may refuse to enter into a collective bargaining contract unless it includes a desired provision as to a matter which is a mandatory subject of collective bargaining. and “splitting the difference” is a simplistic solution that fails to recognize that the parties may already be at the limits of the wage levels they can afford. the company may keep its low position while the union presents an artificially high position. and (3) a demand to bargain under Art. Sec of Labor and Mewa). San Beda College of 46 Law . The mechanics of collective bargaining is set n motion only when the following jurisdictional preconditions namely: (1) possession of the status of majority representation of the employees’ representative in accordance with any of the means of selection or designation provided for by the labor code. on the other hand.).College of Law LAW CBA DEFINED San Beda LABOR A collective bargaining agreement (CBA). a “middle ground approach” instead promotes a “play safe” attitude that leads to more deadlocks than to successfully negotiated CBAs (Manila Electric Co vs. (a) of the Labor Code (Loy vs. hours of work and all other terms and conditions of employment.). otherwise his insistence can be construed as bargaining in bad faith (NLRB vs. “SOLOMONIC” APPROACH IN WAGE DISPUTE The “middle ground approach” employed by the secretary in this case which the Supreme Court does not necessarily find the best method of resolving a wage. a party may not insist on bargaining to the point of impasse. where there is no duty to bargain collectively. (2) proof of majority representation. JURISDICTIONAL PRECONDITIONS OF COLLECTIVE BARGAINING Although bargaining is a mutual obligation of the parties. WAGE AGREEMENT. as used n Art 252 of the labor code. refers to a contract executed upon request of either the employer or the exclusive bargaining representative of the employees incorporating the agreement reached after negotiations with respect to wages. Woorster Division of Borg-Warner Corp. but a refusal to contract in good faith that the insistence on the disputed clause was not the sole cause of the failure to agree or that agreement was not reached with respect to other disputed clauses (Samahang Manggagawa sa Top Form Manufacturing-United Workers of the Philippines vs. Merely finding the midway point between the demands of the company and the union. including proposals for adjusting any grievances or questions under such agreement (Davao Integrated Port Stevedoring Services vs. Abarquez). Needless to add. Gulf Power Co. therefore. on the fear that a “Solomonic” solution cannot be avoided. WORK RULES Company rules relating to safety and work practices come within the meaning of the phrase “other terms and conditions of employment” as used in the Act and. BARGAINING TO THE POINT OF IMPASSE: BAD FAITH Over a non-mandatory subject. Hon. Compania Maritima). Thus rather than encourage agreement. BARGAINING TO POINT OF IMPASSE The question as to what are mandatory and what are merely permissive subjects of collective bargaining is of significance on the right of a party to insist on his position to the point of stalemate. PARTIES TO COLLECTIVE BARGAINING The duty to bargain collectively arises only between the “employer” and its “employees.” Where nether party is an “employer or employee of the other no such duty would exist. NLRC).

Book V of the implementing Rules and Regulations. the CBA was not posted for at east five days in two conspicuous places n the establishment before ratification. NLRC). vs. as required by section 1. Trajano). In this manner. This was not done in the case at bar. Inc. Liberty Flour Mills. Confesor and ALU-TUCP) . We do not declare the CBA invalid or void considering that the employees have enjoyed from it. it operates and may be executed only prospectively unless there are legal justifications for its retroactive application (Manila Electric Company vs. It is iniquitous to receive benefits from a CBA and later on disclaim its validity (Planters Products. a line must be drawn between management prerogatives regarding business operations pers se and those which affect the rights of the employees. UNRATIFIED BUT IMPLEMENTED CBA The parties to a collective agreement are required to furnish copies to the appropriate Regional Office with accompanying proof of ratification by the majority of all the workers in the bargaining unit. not the date they signed ( Mindanao Terminal vs. the law prevents the existence of a gap in the relationship between the collective bargaining parties. to enable the workers to clearly inform themselves of its provisions. an arbitrated CBA takes on the nature of any judicial or quasi-judicial award. a collective bargaining agreement becomes effective as between the parties regardless of whether the same has been certified by the BLR (Liberty Flour Mills Employees vs. Another legal principle that should apply is that in the absence of an agreement between the parties. In one case. Moreover. The determining point is the date they agreed. the CBA submitted to the MOLE did not carry the sworn statement of the union secretary. The collective bargaining agreement may not be interpreted as cession of employees’ right to participate in the deliberation of matter which may affect their rights and the formulation of Red Notes in Labor Law 45 . COLLECTIVE BARGAINING AGREEMENT: EXCLUSIVE BARGAINING REPRESENTATION EMPLOYEES’ PARTICIPATION IN FORMULATING THE CODE OF DISCIPLINE Verily. COLLECTIVE BARGAINING AGREEMENT: TERMS EFFECTIVITY OF CBA CONCLUDED AFTER SIX MONTHS FROM EXPIRATION OF THE OLD CBA In the absence of a new CBA. AGREED BUT UNSIGNED CBA WITHIN SIX MONTHS The renegotiated CBA retroacts if the parties reached agreement within six months from expiry date. attested by the union president. Once it is duly entered into and signed by the parties. Rule 9. In treating the latter. MANDATORY REQUIREMENTS The rules require posting of the CBA in two conspicuous places for five days. then.2005 CENTRALIZED BAR OPERATIONS LABOR LAW RATIFICATION. The court ruled that these requirements being mandatory. the parties must maintain status quo and must continue in full force and effect the terms and conditions of the existing agreement until a new agreement is reached.) . CERTIFICATION OF THE CBA BY THE BUREAU OF LABOR RELATIONS Neither is the certification of the CBA by the bureau of labor relations required to put a stamp of validity to such contract. Inc. management should see to it that its employees are at least properly informed of its decisions or modes of action. Quisumbing and MEWA). noncompliance there with rendered the CB ineffective ( Associated Trade Unions vs. that the CBA had been duly posted and ratified. They cannot receive benefits under the provisions favorable to them and later insist that the CBA is void simply because other provisions turn out not to the liking of certain employees.

) . Gochonco Workers Union. vs. The relevancy of the wishes of the employees concerning their inclusion or exclusion from a proposed bargaining unit is inherent in the basic right of self-organization. EXCEPTIONS TO ONE-UNIT POLICY The usual exception. the exercise of which is their sole prerogative (CLLC E. Confesor. It would then be best to have separate bargaining units for the different companies where the employees can bargain separately according to their needs and according to their own working condition (San Miguel Corp. Nagkakaisang Supervisor ng Barbizon. et. it is a factor which would be taken into consideration in reaching a decision (Globe Machine & Stamping Co). Voluntary Arbitrator Calica and IndoPhil Textile Mills.. While the desires of employees with respect to their inclusion in the bargaining unit is not controlling. It is the employee’s right to hold a certification election.al. COLLECTIVE BARGAINING AGREEMENT: CERTIFICATION ELECTION ULP IN RELATION TO ELECTION It is unfair labor practice for the company to suspend the workers on the ground of “abandonment of work on the day on which the pre-election had been scheduled. etc vs. the test of grouping is mutuality or commonality of interests. vs. San Beda College of SUBSIDIARIES AND SPUN-OFF CORPORATIONS In determining an appropriate bargaining unit. Inc. San Miguel Corp. The employees of different companies see the need to group themselves together and organize themselves into distinctive and different groups. among others which the Commission guarantees (Barbizon Phil. TWO COMPANIES WITH RELATED BUSINESS Two corporations cannot be treated as single bargaining unit even if their businesses are related (Indophil Textile Mill Workers Union-PTGWO vs. et al. The employees sought to be represented by the collective bargaining agent must have substantial mutual interests in terms of employment and working conditions as evinced by the type of work they performed. The desires of the employees are relevant to the determination of the appropriate bargaining unit.College of Law LAW GLOBE DOCTRINE San Beda LABOR policies relative thereto. G. Inc. NLRC). plant unit. And one such matter is the formulation of a code of discipline (Philippine Airlines. the recognition of these exceptions takes into account the policy to assure employees of the fullest freedom in exercising their rights. Bureau of Labor Relations). 46 Law . Interests of employees in the different perforce differ. Otherwise stated. hours of work and other conditions of employment. of course. SINGLE OR “EMPLOYER UNIT” IS FAVORED The proliferation of unions in an employer unit is discouraged as a matter of policy unless there are compelling reasons which would deny a certain class of employees the right to selforganization for purposes of collective bargaining (Philtranco Service Enterprises vs. the companies would consequently have their respective and distinctive concerns in terms of the nature of work. the one company-one union policy must yield to the right of the employees to form unions or associations for purposes not contrary to law. Considering the spin-offs. NLRC) . Employees Union-PTGWO. Inc. or a subdivision thereof.). Vs. Magnolia Corp. to self-organization and to enter into collective bargaining negotiations. wages.). and San Miguel Foods.. is where the employer unit has to give way to the other units like the craft unit.

The principle purpose is to ensure stability in the relationship of the workers and the management (National Congress of Unions in the Sugar Industry of the Philippinines-TUCP vs. as already established. Such indecent haste in renewing the CBA despite an order enjoining them from doing so is designed to frustrate the constitutional right of the employees to self-organization (Associated Labor Unions vs. or run-off election or from the date of voluntary recognition. DEADLOCK RULE WHEN NOT APPLICABLE The deadlock rule does not apply where there is a certification of election ordered to be conducted (Kaisahan ng Manggagawang Pilipino vs. The latter speaks of the right of the parties to propose modifications in the existing CBA. but no evidence is presented proving the alleged surreptitious registration. vs. CBA SIGNED BEFORE OR WITHIN FREEDOM PERIOD A collective bargaining agreement which was prematurely renewed is not a bar to the holding of a certification election. Trajano). the 60-day period under 253 refers to modifying or renegotiating the CBA provisions other than the representational. i. Tranport Corp. The prohibition presupposes that there was an actual conduct of election. CBA SURREPTITIOUSLY REGISTERED Even if the existing CBA is registered surreptitiously. as an exception of the rule that the CBA cannot be modified during its lifetime. the said LABOR LAW Red Notes in Labor Law 45 . Calleja). In case where there was no certification election conducted precisely because the first petition was dismissed on the ground of a defective petition which did not include all the employees who should be properly included in the collective bargaining unit. that an election has been held but not one of the unions won. the 60-days in 253 may be called “renegotiation proposal period” or simply “proposal period. 253. The next election cannot be held within twelve-months. for instance. the freedom period. Therefore. of Labor) . the certification year bar does not apply (R. The contract bar rule applies.e. ballots were cast and there was a counting of votes. are called “economic” or non-political. Laguesma). Trajano) . 253 does not and cannot refer to the representative status of the incumbent union since the acquisition or loss of representative status of a union is to be resolved through a certification election. as alleged by the petitioner union. Those stipulations.” while under Arts 253-A and 256 is.2005 CENTRALIZED BAR OPERATIONS TWELVE-MONTH BAR No petition for a CE maybe filed within one year from the date of a valid certification. cannot be granted.E. consent. To clarify terms. and not through CBA negotiation with the employer. This 60-day period under Art. Trajano). DEADLOCK BAR RULE The “Deadlock” rule simply provides that a petition for certification can only be entertained if there is no pending bargaining deadlock submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. FREEDOM PERIOD UNDER 253-A AND 256 The freedom period under Arts 253-A and 256 is different from and ought not to be mistaken for the other 60-day period mentioned in art. the freedom period is the last 60 days of the CBA’s fifth year (San Miguel Corporation vs. Suppose. in practice. VALIDITY OF CBA SIGNED DURING REPRESENTATION DISPUTE When a collective bargaining agreement is entered into at the time when the petition for certification election had already been filed by a union and was then pending resolution. Whether or not the CBA was indeed surreptitiously registered is a factual matter whose determination is outside the ambit of a petition for certiorari (Pambansang Kapatiran ng mga Anak Pawis sa Formey vs. the petition for C. The proposal period is the last 60 days of the last year of the nonrepresentational provisions. Sec.

such as contracts where the identity of the representatives is in doubt. this rule does not apply where the employer filed. any such withdrawal or retraction shows voluntariness in the absence of proof to the contrary. Logically. are eligible to vote in certification elections. Thus. whereas withdrawals made after the filing of the petition are deemed involuntary. It would be otherwise if the withdrawal was made after the filing of the petition for it would then be presumed that the withdrawal was not free and voluntary. it shall be recognized and given effect on a temporary basis. Moreover. vs.College of Law LAW San Beda LABOR collective bargaining agreement cannot be deemed permanent. with the Court of Industrial Relations. Trajano). the distinction must be that withdrawals made before the filing of the petition are presumed voluntary unless there is convincing proof to the contrary. it would not be unexpected that the opposite party would use foul means for the subject employees to withdraw their support (La Suerte Cigar and Cigarete Factory vs. In other words. Inc. coercion or for valuable consideration. The agreement may be continued in force if the union that negotiated it is certified as the exclusive bargaining representative of the workers or may be rejected and replaced in the event the rival union emerges as the winner (Associated Trade Unions vs. if the dismissal is under question. Any stability derived from such contracts must be subordinated to the employees’ freedom of choice because it does not establish the type of industrial peace contemplated by the law (Philippine Association of Free Labor Unions vs. the employees who are supporting the petition become known to the opposite party since their names are attached to the petition at the time of filing. When the withdrawal or retraction is made after the petition is filed. hence the subscription requirement has not been met. a petition or manifestation of its intention to terminate such contract if and when it is found that the collective bargaining agency with whom the employer had the contract no longer represented the majority of the employer’s workers (PLDT Employees’ Union vs. and to repeat. subject to the results of the certification election. Fruits and Vegetables Industries. Estrella). will usually operate as a bar to a certification election. Therefore. whereby the case of illegal dismissal and/or unfair labor practice is filed. precluding the commencement of negotiations by another union with the management. DISMISSED EMPLOYEES In Philippine jurisprudence it is now settled that employees who have been improperly laid off but who have a present. The presumption would arise that the withdrawal was procured through duress. Torres). CBA THAT DOES NOT FOSTER STABILITY Basic to the contract bar rule is the proposition that the delay of the right to select representatives can be justified only where stability is deemed paramount. however. as in the case now at bar. The reason for such distinction is that if the withdrawal or retraction is made before the filing of the petition. EFFECT OF WITHDRAWAL OF SIGNATORIES It appearing indisputably that the 321 union members had withdrawn their support to the petition. Trajano). so as not to deprive the workers of the benefits of the said agreement. modify or terminate it prior to a specified period preceding the terminating date. unabandoned right to an expectation of reemployment. it becomes apparent that such employees had not given consent to the filing of the petition. PLDT Company and Free Telephone Workers’ Union). San Beda College of 46 Law . Excepted from the contract-bar rule are certain types of contracts which do not foster industrial stability. However. reasonably prior to specified date for automatic renewal. In the meantime. the names of employees supporting the petition are supposed to be held secret to the opposite party. CBA WHICH IS NOT AUTOMATICALLY RENEWED A bargaining contract which provides for automatic renewal in the absence of notice by one of the contracting parties to alter. the employees concerned could sill qualify to vote in the elections (Phil.

the strikers by going on strike seek to interrupt and paralyze the business and production of the company. The latter should be kept inviolate. but the fact should not make said demands and the consequent strike illegal. rules. CIR). There are adequate instrumentalities which may be resorted to in case of excesses (Central Vegetable Oil Manufacturing vs. where properly given delegated power.” the union shall furnish the MOLE with results of the voting “at least seven days before the intended strike. vs.” the unmistakable implication is that the union may not strike before the lapse of the cooling-off period. This principle is stated in Article 255 of the Labor Code. a strike is a coercive activity resorted to by laborers to enforce their demands. although the labor union may take a strike vote and report the same within the statutory cooling-off period (National Federation of Sugar Workers vs. On the other hand. The ability of the Company to grant said demands is one thing. much less paralyzed. which states that the “labor organization designated or selected by the majority of the employees in an appropriate bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining” (Airtime Specialists. Court of Industrial Relations and Liberal Labor Union). Any interruption or stoppage of production spells loss. Because of the threat or danger of loss to the company. vs. Similarly. CONCEPT OBJECTIVE OF STRIKE AND LOCKOUT Ordinarily. including real estate taxes and licenses fees continue. and regulations. STRIKES AND LOCKOUTS. Ovejera). TERMS AND CONDITIONS OF GOVERNMENT EMPLOYMENT In government employment. and the right of the laborers to make said demands is another thing. Director of Labor Relations) . the administrative heads of government. And this is effected through statutes or administrative circulars. Court of Appeals) . Philippine Oil Industry Workers Union) . The capital invested in machinery. LABOR LAW Red Notes in Labor Law 45 . SECOND FACTOR IN LEGALITY OF STRIKE: PROCEDURAL REQUIREMENTS When the law says “the labor union may strike” should the dispute “remain unsettled until the lapse of the requisite number of days (cooling-off period) from the mandatory filing of the notice. factory and other properties connected with the business would be unproductive during a strike or stoppage of the business. The employer company is on the defensive. subject to the (prescribed) cooling-off period and 7-day strike ban must both be complied with. the overheard expenses consisting of the salaries of its officials. just so it can maintain the continuity of its production (Philippine Can Company vs. even disaster. It almost invariably wants the strike stopped and the strikers go back to work so as to resume and continue production.2005 CENTRALIZED BAR OPERATIONS PROBATIONARY EMPLOYEES In certification election all rank-and-file employees in the appropriate bargaining unit are entitled to vote. an employer’s act excluding employees who are union members from his plant (Sta. LEGALITY OF STRIKE NOT DEPENDENT UPON ABILITY OF MANAGEMENT TO GRANT DEMANDS The demands that gave rise to the strike may not properly be granted under the circumstances of this case. it does not infrequently give in to the demands of the strikers. which fix the terms and conditions of employment. not through collective bargaining (Social Security System Employees Association vs. The idea behind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted. the mandatory character of strike ban after the report on the strike – vote is manifest in the provision that “every case. Inc. Knowing this. Mesa Slipways Engineering Co. it is the legislature and. NATURE OF LOCKOUT Lockout means the temporary refusal of any employer to furnish work as a result of an industrial or labor dispute.

a strike by a minority union t compel an employer to bargain with it is unlawful. MINORITY UNION STRIKE By law. and 2. No labor dispute can exist between a minority union and an employer in such a case (United Restauror’s Employees and Labor Union v. “To allow said union to continue picketing for the purpose of drawing the employer to collective bargaining table would obviously be to disregard the results of the consent election. those workers who refuse to obey said returnto-work order and instead wage a strike are not entitled to be paid for work not done or to reinstatement to the positions they have abandoned by their refusal to return thereto as ordered (Sarmiento vs. To further permit the union’s picketing activities would be to flaunt at the will of the majority. Conversely. the defeated union cannot lawfully undertake a strike against the employer. vs. when the strike is declared in protest of unfair labor practice which is found to have been actually committed. Subjectively.College of Law LAW San Beda LABOR STRIKE AGAINST EMPLOYEE’S UNFAIR LABOR PRACTICES Union busting. the right to be the exclusive representative of all the employees in an appropriate collective bargaining unit is vested in the labor union “designated or selected” for such purpose “by the majority of the employees” in the unit concerned. When a union. Inc. Norton and Harrison Co. CIR). when a strike is declared in protest of what the union believed to be unfair labor practices committed by management. Tuico). San Beda College of Law 46 The union brands as illegal the stipulation in the collective bargaining agreements that “in case of any unfair labor practice on the part of either party. or interference with the formation of a union. any other union who participated in the election thereby becomes a minority union. Labor Union v. Neither can it picket to compel bargaining. A minority union cannot demand collective bargaining with the employer. DEFIANCE OF RETURN-TO-WORK-ORDER The return-to-work order should benefit not only those workers who comply with it and regardless of the outcome of the compulsory arbitration proceedings. . lockouts. it must come to a halt.). are entitled to be paid for the work they have actually performed. ULP strike is not covered and workers may go on strike based on ULP despite the no-strike provision (Philippine Metal Foundaries. although found subsequently as not committed (Norton and Harrison Co. Moreover. These agreements must be strictly adhered to and respected if their ends have to be achieved (GOP-CCP Workers UNION vs.. there will be no strikes. is certified as the exclusive bargaining representative. In other words. after winning in an election. Torres and Delta Development) . Objectively.” The authorities are numerous which hold that strikes held in violation of the terms contained in a collective bargaining agreement are illegal. and the circumstances warranted such belief in good faith. Such right properly belongs to the union that commands the majority. TESTS IN DETERMINING THE EXISTENCE OF AN UNFAIR LABOR PRACTICE STRIKE There are two tests in determining the existence of an unfair labor practice strike: 1. especially when they provide for conclusive arbitration clauses. or any prejudicial action xxx until the question or grievance is resolved by the proper court if not settled through a grievance procedure therein outlined. vs. constitutes an unfair labor practice act. NLRC).” After a union has been certified as the bargaining representative. if one is being done. CIR). hence a valid ground for the declaration of strike (Zamboanga Wood Products. Inc. STRIKE OVER AN UNFAIR LABOR PRACTICE ACT DESPITE A NO-STRIKE/NO-LOCKOUT PROVISION IN THE CBA A no-strike prohibition in a collective bargaining agreement is applicable only to economic strikes.

vs. NLRC). and (c) seniority (Asiaworld Publishing House. temporary employees). There should. cut other costs than labor costs. FOUR STANDARDS OF RETRENCHMENT Firstly. the employer bears the burden to prove his allegation of economic or business reverses. Secondly. the substantial loss apprehended must be reasonably imminent. in other words. but a conservation of company assets and business during the period of stress by the commissioner of Insurance. The employer’s failure to prove it necessarily means that the employee’s dismissal was not justified (Precision Electronics Corporation vs. not the liquidation of the company involved. Mayon Engineering and Machine Shop). such as (a) less preferred status (i. Inc.2005 CENTRALIZED BAR OPERATIONS BOOK SIX TERMINATION OF EMPLOYMENT. The employer should have taken other measures prior or parallel to retrenchment to forestall losses.. which is. RETRENCHMENT: WHOM TO LAY-OFF There must be fair and reasonable criteria to be used in selecting employees to be dismissed. on account of retrenchment. LABOR LAW Red Notes in Labor Law 45 . willing and available to do the same shall have been recalled to work (Mayon Engineering Worker’s Union vs. who thereafter yields control to the regular officers of the company (Garcia vs. i. (b) efficiency rating. The law recognizes this under Art 283 of the Labor Code. JUST AND AUTHORIZED CAUSES INTRODUCTION OF LABOR SAVING DEVICES Reduction of the number of workers in a company’s factory made necessary by the introduction of machinery in the manufacture of its products is justified. However. after all. the bona fide nature of the retrenchment would appear to be seriously in question. LACK OF WORK Lack of work is a justifiable cause for termination of employment. Thirdly. a drastic recourse with serious consequences for the livelihood of the employees retired or otherwise laid-off. Where the continuation of the men in service is patently inimical to the interest of the employer. Ople).e. Protection to labor does not mean oppression or self-destruction of capital. be certain degree of urgency for the retrenchment. If the loss purportedly sought to be forestalled by retrenchment is clearly shown to be insubstantial and inconsequential in character. NLRC) .e.. there must be reasonably necessary and likely to effectively prevent the expected losses. RETRENCHMENT AND CONSERVATORSHIP The retrenchment of personnel as a consequence of conservatorship proceedings against an insurance company in financial difficulties is a cost-saving measure resorted to by the conservator to preserve the assets of the company for the protection of not only the policyholders and creditors but also the investors and the public in general. Conservatorship proceedings contemplate. It is resorted to by an employer primarily to avoid or minimize business losses. But the court may impose the condition that the employer shall not admit any new laborer in case of available work in the future before the laid-off men who are able. CIR). the losses expected should be substantial and not merely de minimis in extent. There can be no question as to the right of the manufacturer to use new labor saving devices with a view to effecting more economy and efficiency in its method of production (Philippine Sheet Metal Workers’ Union vs. as such imminence can be perceived objectively and n good faith by the employer. RETRENCHMENT Retrenchment is one of the economic grounds to dismiss employees. there is no alternative but for the court to authorize the employer to lay off such number of workers as the circumstances may warrant.

lack of work. PREVENTIVE SUSPENSION AND INVESTIGATION DO NOT REPLACE “TWO-NOTICE REQUIREMENT” OF DUE PROCESS 46 . A position is redundant where it is superfluous. vs. The reason for requiring this quantum of proof is readily apparent: any less exacting standard of proof would render too easy the abuse of this ground for termination of services of employees (Lopez Sugar Corporation vs. and c) payment to the employees of termination pay amounting to at east onehalf month pay for each year of service. and considerable reduction on the volume of his business a right consistently recognized and affirmed by this court (Sebuguero. three requirements may be seen to be established in respect of cessation of business operations of an employer company not due to business reverses.) REDUNDANCY DISTINGUISHED FROM RETRENCHMENT Redundancy exists where the services of an employee are in the excess of what is reasonably demanded by the actual requirements of the enterprise. but certainly not the least important. or seasonal fluctuations. or one month pay. or of automation. shortage of materials. and it is apparent that the closure of the company’s warehouse was merely a ploy to get rid of the employees who were then agitating the company for benefits. vs. et al. et al. whichever is higher (Mobil Employees Association and Inter-Island Labor Organization) . or during lulls occasioned by lack of orders. alleged losses if already realized. NLRC). reforms and collective bargaining as a union. is used interchangeably with the term “lay-off. San Beda College of Law AILMENT OR DISEASE A medical certificate issued by the company’s own physician. the “successor employer” principle applies (Filipinas Port Services. is not certificate by “competent public health authority” (Cebu Royal Plant [San Miguel Corporation] vs. Retrenchment. on the other hand.College of Law LAW San Beda LABOR Lastly. a superfluity of a position or positions may be the outcome of a number of factors. Inc. or dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise. namely: a) service of written notice to the employees and to the MOLE at east one month before the intended date thereof. Not only must the absorbing corporation retain the employees.” It is the termination of employment initiated by the employer through no fault of the employees and without prejudice to the latter’ resorted to by management during periods of business recession. vs. such as over hiring of workers. Federation of Free Workers. decreased volume of business. NLRC). industrial depression. Deputy Minister of Labor). et al. like in sale in bad faith. and the expected imminent losses sought to be forestalled. it should likewise recognize the length of service in the previous employer. it is an act of the employer of dismissing employees because of losses in the operation of a business. conversion of the plant machinery. There is no showing that petitioners had been remiss in their obligations and inefficient in their jobs to warrant their separation (“Brotherhood” Labor Unity Movement of the Philippines. b) the cessation of or withdrawal from business operations must be bona fide in character. CLOSURE OF BUSINESS Under Article 284 of the Labor Code. Simply put. must be proven by sufficient and convincing evidence. In merger. Zamora) . TEMPORARY SHUTDOWN Temporary shutdown of one of the furnaces of a glass plant is not a good reason to terminate employees where operations continued after such repairs. MERGER By the fact of merger. succession of employment rights and obligations occurs between the absorbing corporation and the employees of the absorbed corporation.

the due process requirement is not completely done away with. al. An order for reinstatement LABOR LAW Red Notes in Labor Law 45 . and it certainly does not consist of an inquiry conducted merely for the purpose of filing a criminal case against another person (Norman de Vera vs. the Court has held that the effects of extraordinary inflation are not to be applied without an agreement between the parties and without an official declaration thereof by competent authorities (Lantion. NLRC). NLRC and R. Likewise. Those rights are not satisfied by the employer’s obtaining the consent of or consulting with the labor union. the NLRC cannot award backwages for the period when the appeal was pending at the NLRC. are rights personal to the employee. and not to apprise the petitioner of the causes of is desired dismissal. BACKWAGES UP TO RETIREMENT AGE ONLY If the ordered reinstatement is no longer feasible because he employee has reached retirement age. The employee can waive those rights. if. The employer is mandated to furnish the employee sought to be dismissed two notices. NLRC. and to be afforded an adequate opportunity to defend himself from the charges leveled against him. the written charge. NLRC). NLRC). vs. dismissal is indeed warranted. as stated in the notice. Such consultation or consent is not substitute for actual observance of those rights of the employee. or whose differences with their employer are of such nature or degree as to preclude reinstatement (Maranaw Hotels vs. but the union cannot waive them for him (Century Textile Mills. INSUFFICIENT NOTICE: CONSULTATION WITH UNION The employer’s “prior consultation” with the union with which the employee is affiliated is legally insufficient. Investigation and hearing need not be done by the employer. et al.month pay mandated by the law (Paramount Vinyl Product Corporation vs. vs. BASIS OF COMPUTATION OF BACKWAGES The base figure to be used in the computation of backwages due to the employee should include not just the basic salary. Salac) . et. but the one-month advance notices to the affected employee and to the DOLE must be complied with. INFLATION Regarding the argument that the inflation that has supervened justifies the imposition of interest. Ample opportunity to be heard is especially accorded to the employee sought to be dismissed after he is informed of the charges against him in order to give him an opportunity to refute the accusations leveled against him. otherwise the termination is illegal (Wittshire File Co. Inc. The rights of an employee whose services are sought to be terminated to be informed beforehand of his proposed dismissal (or suspension) as well as of the reasons therefore. REINSTATEMENT SHOULD HAVE BEEN ORDERED BY LABOR ARBITER If the labor arbiter has not ordered reinstatement of the employee. DUE PROCESS IN AUTHORIZED CAUSES In employment termination due to authorized causes. vs. CA).2005 CENTRALIZED BAR OPERATIONS The notice of preventive suspension cannot be considered adequate notice since the objectives of the petitioner’s preventive suspension. after hearing. the court will not insist on reinstatement and even the backwages will not extend beyond the employee’s retirement date (Equitable Banking Corporation vs. and.L. NLRC and Bank of the Philippine Islands) . APPLICABILITY OF THE STRAINED RELATIONS PRINCIPLE The rule is that “strained relations” may be invoked only against employees whose positions demand trust and confidence. if he chooses. the subsequent interview is not the “ample opportunity to be heard” contemplated by law.). were merely to ascertain the extent of the loss to the bank and to pinpoint responsibility of the arties involved. but also the regular allowances that he had been receiving such as the emergency living allowances and the 13 th.

not enough that such injuries have arisen. 46 Law . San Beda College of RESIGNATION PAY The general rule is that an employee who voluntarily resigns from employment is not entitled to separation pay. the Labor Arbiter’s judgment shall be for the employer to reinstate the employee and him backwages. NLRC). there can be no basis for the award of salaries/ backwages during the pendency of appeal (Filflex Industrial and MFG.College of Law LAW San Beda LABOR must be specifically declared and cannot be presumed. Medelyn). then he has no other choice but to disassociate himself from his employment” The employer has no control over resignations and so the notification requirement was devised in order to insure that no disruption of work would be involved by reason of the resignation. once accepted and being the sole act of the employee may not be withdrawn without the consent of the employer (Intertrod Maritime. it is separate and distinct relief given to an illegally dismissed employee. DAMAGES If the evidence adduced by the employee before the Labor Arbiter should establish that the employer did indeed terminate the employee’s services without just cause or without according him due process. MORAL DAMAGES Moral damages may be awarded to compensate one for diverse injuries such as mental anguish. Bank of the Philippine Islands). TERMINATION OF EMPLOYMENT: BY EMPLOYEE RESIGNATION AND RESIGNATION NOTICE Resignation is the voluntary act of an employee who “finds himself is a situation where he believes that personal reason cannot be sacrificed in favor of the exigency of the service. Inc. Such an award cannot be justified solely upon the premise (otherwise sufficient for redress under the Labor Code) that the employer fired his employee without just cause or due process (Suario vs. for the employee simply to receive separation pay. N. It is essential that they have sprung from a wrongful act or omission of the defendant which was the proximate cause thereof (Suario vs. like backwages. It is however. besmirched reputation. There being no specific order of reinstatement and the order being for complainant’s separation. NLRC). wounded feelings and social humiliation. vs. unless there is a stipulation for payment in the employment contract or Collective Bargaining Agreement. or payment of the amount is sanctioned by established employer practice or policy (Travelaire & Tours Corp. vs. But any award of moral damages by the Labor Arbiter obviously cannot be based on the labor code but would be grounded on the Civil Code. Resignation. Corp vs. These are reliefs explicitly prescribed by the labor code. BPI). or exceptionally.

2003) 3. 2004) 2. (EVIOTA VS.” He was arrested by police authorities for violation of he Dangerous Drugs Act without warrant. but merely all persons be treated under like conditions both as to privileges conferred and liabilities imposed. Absent such link. CA. May 25. Not every controversy or money claim by an employee against the meployer or vice versa is within the exclusive jurisdiction of the labor arbiter. Natividad did not. Is every controversy or money claim by an employee against the employer or vice versa within the exclusive jurisdiction of the labor arbiter? Red Notes in Labor Law 45 No. the complaint will be cognizable by the regular courts of justice.2005 CENTRALIZED BAR OPERATIONS LABOR LAW BAR-TYPE QUESTIONS 1. CA. A money claim by a worker against the employer or vice versa is within the exclusive jurisdiction of the labor arbiter only if there is a reasonable causal connection between the claim asserted and the employer-employee relation. It is not to prohibit legislation which is limited to the object to which it is directed and by the territory in which it is to operate. . SECRETARY VS. TCM College sent a Memorandum to Natividad informing him that his employment is already terminated. July 29. (EXEC. Does the penal provisions of RA 8042 violate the equal protection clause of the Constitution? The equal protection clause is directed principally against undue favor and individual or class privilege. Natividad works with TCM College as a liaison officer with a rank of “Assistant Registrar. and a criminal complaint was filed against him. The criminal case was dismissed for lack of merit. file any complaint to the NLRC against the college on account of his dismissal. It does not require absolute equality. however.

This time. INC. Was Natividad illegally dismissed so as to entitle him to backwages? The normal consequences of finding that an employee is illegally dismissed are. the employee becomes entitled to reinstatement without loss of seniority rights and second. In the case at bar. On September 27. What is surface bargaining? It is defined as “going through the motions of negotiating” without any legal intent to reach an agreement. Is an order of execution of a final and executory judgement in a labor case still appealable? No. (STANDARD CHARTERD BANK EMPLOYEES UNION VS. CONFESOR. otherwise. he was not convicted by final judgement in the Criminal Case. The respondent union protested the actions of the petitioner invoking Section 15. On October 16. GALO S. he is presumed innocent until his guilt is proved beyond reasonable doubt. by setting justiceable controversies with finality. holding that although there was a valid cause for private respondent’s dismissal. What evidence is needed to show that employer committed ULP under the Labor Code? Substantial evidence is required to support the claim. It is clear that such ULP charge was merely an afterthought. spread over a period of 60 days. there would be no end to litigations. 1991. 1990. VS. CONFESOR. Indeed. San Beda College of 46 Law . July 7. The petitioner wrote the SOLE of its decision to implement its retrenchment program to stem its huge losses. (STANDARD CHARTERD BANK EMPLOYEES UNION VS. the officers of the respondent union and some members staged a picket in the premises of the hotel. thus settling at naught the main role of courts of justice. The remaining employees were also informed that it will close in six months. On October 31. Article VI of the CBA. The Labor Arbiter and the NLRC denied Natividad but on certiorari. GATAN. the petitioner's general manager. 2004) 4. and nothing can be done therewith except execution. By way of riposte. firstly. 1990. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. payment of backwages to the period from his illegal dismissal up to actual reinstatement. 1990. he filed with the NLRC a complaint for illegal dismissal. On the same day. 2004) 7. obstructing the free ingress and egress thereto. Settled is the rule that after a judgemnt has become final. the SOLE issued a status quo ante bellum order certifying the case to the NLRC for compulsory arbitration and enjoining the parties from engaging in any strike or lockout. The members of the respondent union voted to stage a strike. CA. The next day. with modification. the CA affirmed. the petitioner did not follow the procedure for the termination of his employment. among others. petitioner terminated the employment of the officers and members of the respondent union. INC. The award of backwages is not conditioned on the employer’s ability or inability to pay. the petitioner terminated the employment of 148 employees. the respondent union informed the DOLE-NCR that the union will conduct a strike vote referendum. While it may be true that Natividad was detained. 2004) 6. Petitioner and respondent union entered into and signed a CBA covering the period of July 10. which is to assist in the enforcement of the rule of law and the maintenance of peace and order. (TOMAS CLAUDIO MEMORIAL COLLEGE. 2003) 5. 1990 another notice of strike because of what it perceived as the petitioner's continuing unfair labor practices (ULP).College of Law LAW San Beda LABOR Natividad was arrested anew for violation of the same Act. no additions can be made thereto. to lessen the daily financial losses being incurred by the petitioner. wrote the Acting Secretary of Labor and Employment (SOLE for brevity) informing him of the petitioner's decision to retrench 171 employees on a staggered basis. VS. The following day. February 16. Subsequently. (KING INTEGRATED SECURITY SERVICES. 1988 to July 9. June 16. the respondent union filed on November 16. the respondent union filed a notice of strike based on violation of CBA. the complaint was made only after a deadlock was declared by the Union. June 16. DOLE-NCR was thereafter informed of the results of the strike vote referendum.

staged a picket on the premises of the hotel. they brought their attention to the manager who told them to forget about it and refrain to air their complaints. Employ Services and Resources. The notice of strike and the cooling-off period were intended to provide an opportunity for mediation and conciliation. despite the issuance by the SOLE of an assumption or certification order. July 8. the union officers and members are deemed to have lost their employment status for having knowingly participated in an illegal act. and (c) notice given to the DOLE of the results of the voting at least seven days before the intended strike. the respondent union filed its notice of strike with the DOLE on November 16. 1990 simultaneously with its notice of strike. The requirements are mandatory and failure of a union to comply therewith renders the strike illegal. the respondents alleged that the petitioner committed ULP prior to the filing of the November 16. Hence. The requisite seven-day period is intended to give the DOLE an opportunity to verify whether the projected strike really carries the approval of the majority of the union members. Is the strike staged by the respondent union on November 16 legal? NO. the strike staged by them on November 16. the respondent union nevertheless staged a strike on November 16. the petitioner sought to settle his complaints.” (GRAND BOULEVARD HOTEL VS. Phil. as amended.2005 CENTRALIZED BAR OPERATIONS On November 28. there was no need for the respondent union to comply with Arts. 263 and 264 of the Labor Code. without specifying the ground or cause therefor. thus violating Art. The respondents cannot argue that since the notice of strike on November 16. Pio Gabito. 000 sufficient to conclude his waiver of right against illegal dismissal? LABOR LAW Red Notes in Labor Law 45 . who arrived and escorted them to the airport. 264(a) of the Labor Code. in consideration thereof. illegal pursuant to Art. 1990 and on the same day.000 to the said respondent but. Upon respondent Navarra's arrival in Manila. GENUINE LABOR ORGANIZATION OF WORKERS IN HOTEL. a strike that is undertaken. as amended. 2003) 8. 1990. (PSRI for brevity). In this case. 1990 had already been taken cognizance of by the SOLE when he issued on October 31. the latter executed a quitclaim releasing the petitioner from any or all liabilities for his repatriation. 263 and 264 of the Labor Code. The matters contained in the notice of strike of September 27. 264 of the Labor Code. Respondent Navarra and another employee. The SOLE issued a return-to-work order. RESTAURANT AND ALLIED INDUSTRIES. in violation of the law. were summoned by the management and told that they were to be repatriated. 1990 a status quo ante bellum order enjoining the respondent union from intending or staging a strike. 1990 which complied with the requirements of the law on the cooling-off period. Inc. (b) strike vote approved by a majority of the total union membership in the bargaining unit concerned obtained by secret ballot in a meeting called for that purpose. When they encountered problems. thus. A strike simultaneously with or immediately after a notice of strike will render the requisite periods nugatory. The respondents were deployed in Taiwan. Despite the SOLE order. strike vote and strike vote report. After the negotiations. strike ban. 1990 was lawful. 1990 notice of strike. Respondents applied for employment in Taiwan with petitioner. Petitioner however filed a complaint with the Regional Arbitration Office of the NLRC for illegal strike against the respondents on the ground that the latter failed to comply with the requirements provided under Arts. the SOLE issued an order certifying the labor dispute to the NLRC. They pleaded that they be informed of the cause or causes for their repatriation. The manager of their employer summoned the police. Consequently. as the notice filed by the union on September 27. which provides that “ x x x No strike or lockout shall be declared after assumption of jurisdiction by the President or the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. becomes a prohibited activity and. the petitioner agreed to pay P49. but their requests were rejected. The requisites for a valid strike are as follows: (a) a notice of strike filed with the DOLE thirty days before the intended date thereof or fifteen days in case of ULP. In their answer. which the respondent officers and members complied. 1990 were for the same grounds as those contained in their notice of strike on September 27. Moreover. Were petitioners illegally dismissed when they repatriated by their Taiwan employers? Was Navarra’s execution of quitclaim and receipt of P 49. 1990 was sufficient compliance with the law.

2004) 9. such quitclaims must be struck down as invalid or illegal. and usually accompanied by an increase in salary. waivers or releases are looked upon with disfavor and are commonly frowned upon as contrary to public policy and ineffective to bar claims for the measure of a worker's legal rights. PARAMIO. valid and legal grounds. is the denial of a promotion a just and authorized cause for dismissal? Yes. the law requires that there be just and valid cause as provided in Article 282 and that the employee was afforded an opportunity to be heard and to defend himself. As a rule. is ‘the advancement from one position to another with an increase in duties and responsibilities as authorized by law. insensibility. The petitioner failed to substantiate its claim that respondent Navarra's repatriation was based on a valid. In order to effect a valid dismissal of an employee. the indispensable element for there to be a promotion is that there must be an ‘advancement from one position to another’ or an upward vertical movement of the employee's rank or position. If (a) there is clear proof that the waiver was wangled from an unsuspecting or gullible person. Private respondents received separate letters from the petitioner. or disdain by an employer becomes so unbearable on the part of the employee that it would foreclose any choice by him except to forego his continued employment. An employee cannot be promoted. even if merely as a result of a transfer. the rule lex loci contractus (the law of the place where the contract is made) governs. without his consent. the Labor Code. the petitioner considered the private respondents' refusal as insubordination and willful disobedience to a lawful order. the private respondents were dismissed from work.College of Law LAW San Beda LABOR Yes. In their respective replies to the petitioner's letters. apply in this case. as we defined in Millares v. (PHIL EMPLOY SERVICES VS. It employed various employees. Any increase in salary should only be considered incidental but never determinative of whether or not a promotion is bestowed upon an employee. The petitioner came up with a Relocation and Restructuring Program. among whom were private respondents. following the ruling enunciated in Homeowners Savings and Loan Association. filed a complaint against the petitioner for illegal dismissal and unfair labor practice for and in behalf of the private respondents. the employees who would agree to the transfers would be considered promoted. and on their face invalid. the respective transfers of the private respondents were in fact promotions. ET AL. April 15. legal and just cause. the private respondents explained that the transfers imposed by the management would cause enormous difficulties on the individual complainants. the petitioner sent letters to the private respondents requiring them to explain in writing why no disciplinary action should be taken against them for their refusal to be transferred/relocated. hence. However. Are the respective transfers of the private respondents considered promotions? If so. The petitioner is a domestic corporation engaged in the business of providing telegraph and communication services thru its branches all over the country. Respondents’ dismissal was not based on just. advancement or reduction or a transfer that aims to 'lure the employee away from his permanent position cannot be done without the employees' consent. Inc." We rule that the deed of release executed by respondent Navarra did not completely release the petitioner from its liability on the latter's claim. and other laws affecting labor. With or without a corresponding increase in salary. PT&T Workers Union-NAFLU-KMU. unreasonable or unlikely. Dismissal may also be based on any of the authorized causes provided for in Articles 283 and 284 of the Labor Code. The petitioner offered benefits/allowances to those employees who would agree to be transferred under its new program. Thereafter. its implementing rules and regulations. NLRC: “Promotion. Dissatisfied with this explanation. The private respondents rejected the petitioner's offer. Therefore. as an offer involving a demotion in rank and a diminution in pay. It exists where there is cessation of work because "continued employment is rendered impossible. We thus rule that the respondents were constructively dismissed from their employment. quitclaims. Moreover. A transfer that results in promotion or demotion. Subido. There is constructive dismissal if an act of clear discrimination. giving them the option to choose the branch to which they could be transferred. There is no law that compels an employee to accept a promotion San Beda College of 46 Law . the private respondents' bargaining agent. As such. v. Subsequently. or (b) the terms of the settlement are unconscionable. the private respondents and other petitioner's employees were directed to "relocate" to their new PT&T Branches. Hence.’ Apparently.

Pursuant to Section 5. On the basis of a report. Buan and the private respondent had been stealing “KAMISETA” items from the factory. September 29.2005 CENTRALIZED BAR OPERATIONS for the reason that a promotion is in the nature of a gift or reward. The holding of a formal hearing or trial is discretionary with the labor arbiter and is something that the parties cannot demand as a matter of right. the exercise by the private respondents of their right cannot be considered in law as insubordination. However. her decision was null and void. (SHOPPES MANILA VS. Hence. the petitioner started to receive information from the head of its production department that. the petitioner had failed to show that it had complied with the two-notice requirement: (a) a written notice containing a statement of the cause for the termination to afford the employee ample opportunity to be heard and defend himself with the assistance of his representative. the petitioner decided to dismiss the private respondent from her employment. without a trial or formal hearing. 2004) LABOR LAW Red Notes in Labor Law 45 . In order to effect a valid dismissal. non-payment of service incentive leave pay and 13th-month pay against the petitioner before the National Capital Regional Arbitration Branch. Consequently. Rule V of the New Rules of Procedure of the NLRC. Aggrieved. The requirements of due process are satisfied when the parties are given the opportunity to submit position papers wherein they are supposed to attach all the documents that would prove their claim in case it be decided that no hearing should be conducted or was necessary. 2003) 10. Maricar Buan. according to the labor arbiter. (PT&T VS. which a person has a right to refuse. The petitioner is a domestic corporation engaged in garments manufacturing using the brand name “KAMISETA. The private respondent and a co-employee. if he so desires. alleging that it was deprived of its right to a formal hearing before the labor arbiter rendered her decision. as the relationship between the private respondent and the petitioner had been strained and ruptured. LA’s failure to conduct a hearing deprived the petitioner of its vested right. January 14. consequently. (b) if the employer decides to terminate the services of the employee. or willful disobedience of a lawful order of the employer. As such. CA. Sometime thereafter. It is entirely within his authority to decide a labor case before him. stating clearly the reason therefor. there was no valid cause for the private respondents' dismissal. the employer must notify him in writing of the decision to dismiss him. the factual basis thereof and the imposable penalties for the said charge if proven.” The petitioner employed private respondent Torno as trimmer. As stated by the CA. The private respondent failed to appear during the scheduled hearing. the law requires that (a) there be just and valid cause as provided under Article 282 of the Labor Code. and (b) the employee be afforded an opportunity to be heard and to defend himself. were tasked to handle the inventory of finished products. the petitioner issued a disciplinary action form suspending the private respondent indefinitely without pay. the private respondent filed a complaint for illegal dismissal with prayer for reinstatement and payment of backwages. A notice of dismissal was addressed to the private respondent specifying the charge against her. When notified of the petitioner’s decision. Does the absence of a formal hearing amount to denial of petitioner’s right to due process? Is termination of the private respondent’s employment based on a just and valid cause? We agree with the CA that the petitioner did not have a vested right to a formal hearing simply and merely because LA Tumanong granted its motion and set the case for hearing. the labor arbiter has the authority to determine whether or not there is a necessity to conduct formal hearings in cases brought before him for adjudication. The private respondent was illegally dismissed. the petitioner appealed the decision to the NLRC. NLRC. reinstatement could no longer be effected. according to other employees. based on the position papers and supporting documents of the parties. LA rendered a decision holding that the respondent was illegally dismissed and directed the petitioner to pay backwages and separation pay to the private respondent.

College of Law LAW San Beda LABOR San Beda College of 46 Law .