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Table of Contents

A. DIRECT HIRING ........................................................ 23
B. REGULATIONS AND ENFORCEMENT .................... 23

I. FUNDAMENTAL PRINCIPLE AND POLICIES ................... 1

B.1. SUSPENSION OR CANCELLATION OF LICENSE
OR AUTHORITY ........................................................ 23

A. CONSTITUTIONAL PROVISIONS ............................... 1
A.1 ARTICLE II, SECS 9,10,11,13,14,18,20 .................... 1

B.2. REGULATORY AND VISITORIAL POWERS OF
THE DOLE SECRETARY............................................ 23

A.2 ARTICLE III, SECS 1, 4, 7, 8, 10, 16, 18(2) ..............2

B.3. REMITTANCE OF FOREIGN EXCHANGE
EARNINGS ................................................................ 24

A.3 ARTICLE XIII, SECS1, 2, 3, 13, 14 ........................... 3
B. CIVIL CODE..................................................................6

B.4. PROHIBITED ACTIVITIES .................................. 24

B.1 ARTICLE 19.............................................................6

III. LABOR STANDARDS .................................................. 27

B.2 ARTICLE 1700 .......................................................6

A. COVERAGE ............................................................... 27

B.3. ARTICLE 1702 .......................................................6

A.1. GOVERNMENT EMPLOYEES............................. 27

C. LABOR CODE .............................................................. 7

A.2. MANAGERIAL EMPLOYEES ............................. 27

C.1 ARTICLE 3 .............................................................. 7

A.3. FIELD PERSONNEL ........................................... 28

C.2 ARTICLE 4 ............................................................. 7

A.4. DEPENDENT FAMILY MEMBERS ..................... 28

C.3 ARTICLE 166 (NOW ARTICLE 172) ........................8

A.5. DOMESTIC HELPERS ........................................ 28

C.4 ARTICLE 211 (NOW ARTICLE 217) ........................8
C.5 ARTICLE 212 (NOW ARTICLE 218) .......................8

A.6. PERSONS IN PERSONAL SERVICE OF
ANOTHER ................................................................. 29

C.6 ARTICLE 255 (NOW ARTICLE 261) .................... 10

A.7. WORKERS PAID BY RESULT ............................ 29

C.7 ARTICLE 277 (NOW ARTICLE 283) ..................... 10

B. HOURS OF WORK .................................................... 29

II. RECRUITMENT AND PLACEMENT .............................. 12

B.2. NORMAL HOURS OF WORK ............................ 29

A. RECRUITMENT OF LOCAL AND
MIGRANT WORKERS .................................................... 12

B.3. MEAL BREAK ..................................................... 34
B.4. WAITING TIME ................................................... 36

A.1. ILLEGAL RECRUITMENT .................................... 12

B.5. OVERTIME WORK, OVERTIME PAY ................. 36

B. ESSENTIAL ELEMENTS OF
ILLEGAL RECRUITMENT .............................................. 13

B.6. NIGHT WORK, NIGHT SHIFT DIFFERENTIAL .. 38

C. SIMPLE ILLEGAL RECRUITMENT ............................ 14

B.7. PART-TIME WORK ............................................ 39

C.1. ILLEGAL RECRUITMENT FOR LOCAL WORKERS
(GOVERNED BY THE LABOR CODE) ........................ 14

B.8. CONTRACT FOR PIECE OF WORK ................... 39
C. WAGES ...................................................................... 39

C.2. ILLEGAL RECRUITMENT FOR MIGRANT
WORKERS ................................................................. 15

C.1. WAGE VS. SALARY ............................................40
C.2. MINIMUM WAGE ...............................................40

D. ILLEGAL RECRUITMENT IN LARGE SCALE ............ 18

C.3. MINIMUM WAGE OF WORKERS PAID BY
RESULTS ................................................................... 42

E. ILLEGAL RECRUITMENT AS
ECONOMIC SABOTAGE ............................................... 18

C.4. COMMISSIONS .................................................. 42

E.1 OFFENSE INVOLVING ECONOMIC SABOTAGE
(LARGE-SCALE OR BY A SYNDICATE)..................... 18

C.5. DEDUCTIONS FROM WAGES ........................... 43

E.2 OFFENSE INVOLVING ECONOMIC SABOTAGE
(LARGE-SCALE OR BY A SYNDICATE)..................... 19

C.6. NON-DIMINUTION OF BENEFITS .................... 44

F. ILLEGAL RECRUITMENT VS. ESTAFA ..................... 19

C.8. WAGE DISTORTION/RECTIFICATION ............. 45

G. LIABILITIES ............................................................... 19

C.9. DIVISOR TO DETERMINE DAILY RATE ............ 46

G.1 LOCAL RECRUITMENT AGENCY ........................ 19

D. REST DAY ................................................................. 47

C.7. FACILITIES VS SUPPLEMENTS ......................... 44

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...............................4.......................... ANTI-SEXUAL HARASSMENT ......................... 47 I..............1.........2.............. 68 E. SEASONAL........... 47 A.......3 OTHER CAUSES ...1.............................. CASUAL.............. PRODUCTIVITY STANDARD ..........91 D............ 126 K................................. 90 I.........................................1.. TERMINATION OF EMPLOYMENT .................................... 99 F.............126 J..............2.. 120 J.................. HEARING........ PATERNITY LEAVE... FOUR-FOLD TEST.............. TWIN-NOTICE REQUIREMENT .....................................................2................... 127 K..53 VI............... TAXABILITY .....131 ii ..... 130 P................3................ DISMISSAL FROM EMPLOYMENT ..................................2..... HANDICAPPED WORKERS – DIFFERENTLY-ABLED WORKERS .12] ............ SERVICE CHARGES ............................ 61 B................ RETIREMENT BENEFITS OF WORKERS WHO ARE PAID BY RESULTS . WEEKLY REST DAY ........ PROJECT EMPLOYMENT ........................ KINDS OF EMPLOYMENT . APPRENTICES ....................................................70 B............ 100 F....5........ ................................................. RELIEFS FOR ILLEGAL DISMISSAL ...... 92 E........... JOB CONTRACTING .............1......................6..................... 96 IV. DISCIPLINE .. STIPULATION AGAINST MARRIAGE .............2...................................3............ 89 A........................................................................ 54 A.......... SSS LAW ......... TEACHERS............................................... RETIREMENT PAY ..... APPRENTICES AND LEARNERS .................3....... PARENTAL LEAVE ........................................... 55 B.... COVERAGE............. MANAGEMENT PREROGATIVE .....1..... 56 B..................................5..................... 68 K........ BENEFITS.. EMPLOYMENT OF HOMEWORKERS ..................................................4 DUE PROCESS ........... 68 C..................................... SOCIAL WELFARE LEGISLATION ............... REINSTATEMENT .......... 114 F. PROVISIONS AGAINST DISCRIMINATION.....124 D..................2............................... FIXED-TERM ..................................................................1.............. MINOR WORKERS ............... 69 V................. ETC.......1.............. MATERNITY LEAVE.............................................. BACKWAGES ..2......... LEAVES FOR VICTIMS OF VIOLENCE AGAINST WOMEN . SEAFARERS............ PIECE WORKERS.......................70 C..................................... 73 E...... EXCLUSIONS FROM COVERAGE . CHANGE OF WORKING HOURS .........................122 J...................... WOMEN WORKERS ...............................1.......................... HOLIDAY PAY/PREMIUM PAY ................1...71 D....................... PROHIBITED ACTS ................................... SPECIAL LEAVE BENEFITS (SLB) FOR WOMEN59 G................... 48 II. RULES ON MARRIAGE BETWEEN EMPLOYEES OF COMPETITOR-EMPLOYERS ................2.......... LEAVES .......................... LEARNERS...................... 57 B...................... TRANSFER OF EMPLOYEES ............ 105 F................. 67 C.. 129 O............................................. EMERGENCY REST DAY WORK ...........3.....129 N.........3............. PROBATIONARY ...... 130 O............... EMPLOYER-EMPLOYEE RELATIONSHIP . 98 F...4....................................... 47 A....................................................................... RETIREMENT BENEFIT OF PART-TIME WORKERS .............. 130 IV. AUTHORIZED CAUSE ............................................................. 84 A...... 64 II.. 69 A........................ 120 I............................. 118 B................2........... SERVICE INCENTIVE LEAVE PAY ....................................................... REGULAR ..... ELIGIBILITY ..................... 109 F......131 A... 94 E...................... SEPARATION PAY ...................128 K. 51 III........................4................ MONTHLY PENSION [SEC..125 J.................128 L................... GRANT OF BONUS .......... 66 J...122 J......1....126 K............................. SEASONAL WORKERS.......................................................2................................... 119 I....................129 O.. COVERAGE ......... 75 F...53 V........... AMOUNT OF RETIREMENT PAY.. 66 C........ 79 VI....................................... CONSTRUCTIVE DISMISSAL ........ 82 A.............. EMPLOYMENT OF HOUSEHELPERS ..... PREVENTIVE SUSPENSION .............. 98 F........128 M.........D............................... MEANING OF OPPORTUNITY TO BE HEARD .......... POST-EMPLOYMENT BAN ............. JUST CAUSE ........ 79 A....................................... 92 E........78 G...

................ WHEN THERE IS A CBA . VOLUNTARY RECOGNITION ...................... LABOR RELATIONS ............. EFFECTIVITY .... 140 III.171 D...................................................................... 134 I................ 159 IV...1 COVERAGE .......................... PRIMARY ...170 C.... SICKNESS BENEFITS [SEC.......... RETIREMENT BENEFITS [SEC............... 21] ................. 164 VIII..........2 COLLECTIVE BARGAINING AGREEMENT (CBA)161 VII...................... 156 B.................... 145 IX....... 134 IX. BARGAINING IN BAD FAITH . 131 D....................................... INDIVIDUAL BARGAINING ........... DEPENDENTS’ PENSION [SEC.... CONSENT ELECTION ................................................................. AGENCY FEES ................................................ LOAN ..........................II......................................... DURATION OF COLLECTIVE BARGAINING AGREEMENT .............................. MONTHLY PENSION [SEC.... 12-B] ........... LOAN .................... 155 B.....171 iii ........................... 136 B............................... 134 VI................................................................................... WHEN THERE IS ABSENCE OF A CBA .... 132 VIII..... UNION DUES..................4 UNFAIR LABOR PRACTICE IN COLLECTIVE BARGAINING .........143 VII............ 136 II... 134 IV........... TEST TO DETERMINE THE CONSTITUENCY OF AN APPROPRIATE BARGAINING UNIT ........... 146 1....................................................... UNION SECURITY ............. WHEN COMPENSABLE ......... 136 B......... 169 II.... EXCLUSIONS FROM COVERAGE................ JOIN OR ASSIST LABOR ORGANIZATIONS .................................. 135 B...2....................... 135 I....2....... UNEMPLOYMENT BENEFITS [SEC........ 148 2........................................ LIMITED PORTABILITY LAW [RA 7699].. DEATH BENEFITS [SEC........ 13] ..........5 UNFAIR LABOR PRACTICE (ULP) . RIGHT TO SELF-ORGANIZATION..... 13] ................................................. BLUE SKY BARGAINING .... SECONDARY ........ PROCESS .................. 140 III...........1 DUTY TO BARGAIN COLLECTIVELY .............. ................ FUNERAL BENEFITS [SEC. 140 I......... 161 V.................. 14-A].... SURVIVORSHIP BENEFITS ......... UNION SHOP........................171 B............ 136 X............2........1 COVERAGE ..CHECK-OFF............... FUNERAL BENEFITS [13-B] ..... EMPLOYEE’S COMPENSATION – COVERAGE AND WHEN COMPENSABLE........137 I.................... RIGHT TO COLLECTIVE BARGAINING ... 23] .......................3.... 131 VII.......... CERTIFICATION ELECTION . COVERAGE ...... 133 A.................. 136 II.......... 140 IV.. PERMANENT DISABILITY BENEFITS [SEC.. 9] ... 156 B..... 134 VIII.......................... 159 II............. MANDATORY PROVISIONS OF CBA ................................ 11] ... RE-RUN ELECTION .............. 12-A]........... TEMPORARY DISABILITY BENEFITS .................171 D....................................................137 II......... BENEFITS . 136 I........2..........137 I................. AGENCY FEES....................... 134 B......... DEATH BENEFITS [SEC.................... OTHERS ......... BENEFICIARIES .. RUN-OFF ELECTION . 132 I... 141 IV....... AFFILIATION AND DISAFFILIATION OF THE LOCAL UNION FROM THE MOTHER UNION ....4.........................1........................... ETC.......... 141 A............... SURFACE BARGAINING......................................................... SEPARATION BENEFITS ...... 148 3..4........................................ 161 VI.............. CLOSED SHOP. MATERNITY LEAVE BENEFITS [SEC...................... 167 IX........................................................ 140 V......170 C.............137 C...... WHO CANNOT FORM...... GSIS [RA 8291] ............................................................... 140 B................. PERMANENT DISABILITY BENEFITS ....... 159 III... 140 II.................. 156 B.... UNION DUES AND SPECIAL ASSESSMENTS 158 I............................................ SECONDARY .........3.......... MAINTENANCE OF MEMBERSHIP SHOP..............1.. 13-A]132 V............... BENEFICIARIES .... BARGAINING UNIT ...... 14] ........ 134 III.. WHO MAY UNIONIZE FOR PURPOSES OF COLLECTIVE BARGAINING? ................. 134 V.................. RETIREMENT BENEFITS [SEC............ 169 XI........................................... PRIMARY .........170 B.. LIFE INSURANCE BENEFITS ............................................ 134 II............................. 134 VI.............142 VI....3............ 132 A.. REFUSAL TO BARGAIN .. UNION SECURITY CLAUSES... 133 A.....171 D.........

....................................... FORMS OF CONCERTED ACTIVITIES ............... VERSUS REGIONAL DIRECTOR.........1 NATURE OF PROCEEDINGS ............ 194 C.................. 196 C. 177 E..... 194 C..1 JURISDICTION .......... 196 C.. NATURE OF ULP ....2 EFFECT OF NLRC REVERSAL OF LABOR ARBITER’S ORDER OF REINSTATEMENT ............................................ 172 C. 198 I.................. JURISDICTION ...... 189 I..... 192 iv .........1 SUBJECT MATTER OF GRIEVANCE .................... RULES OF COURT ..........................4 REQUISITES FOR A VALID LOCKOUT .......... 190 B.............................................. 198 C..... COURT OF APPEALS ... NATIONAL CONCILIATION AND MEDIATION BOARD ..........4 CERTIFIED CASES .............................. RULES OF COURT........ DOLE SECRETARY................... 174 D................................ PROCEDURE AND JURISDICTION ............................... 194 C........... 186 H.......... LIABILITY OF UNION OFFICERS ... NATIONAL LABOR RELATIONS COMMISSION (NLRC) ......... 189 J..........................1 JURISDICTION (ORIGINAL AND APPELLATE) ............. 188 I......... 196 C. LIABILITY OF EMPLOYER ........ 182 F..1...................................... 196 F........... 191 B.. SUPREME COURT .....................................................3 REQUISITES FOR A VALID STRIKE .............. 186 II............................ 177 E.................................... 199 A.. 187 H........................................ 198 II............................................ MEDIATION ............... BUREAU OF LABOR RELATIONS – MED-ARBITERS193 II.................... REMEDIES .........3 ASSUMPTION OF JURISDICTION .... REQUISITES FOR LABOR INJUNCTIONS .. 199 A.......... 186 III.................2 WHO MAY DECLARE A STRIKE OR LOCKOUT? ... DOLE REGIONAL DIRECTORS ............. 189 I... GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION ...3 REQUIREMENTS TO PERFECT APPEAL TO NLRC ......5 VOLUNTARY ARBITRATION POWERS ....... ULP OF LABOR ORGANIZATIONS .....2 CONCILIATION VS............... 179 F.............. 190 B.............. ULP OF EMPLOYERS .................. 196 F....................9 ILLEGAL STRIKE ....................................I...... 184 G............ 175 D..3 REMEDIES ..... 198 VIII...1 RULE 65......8 EFFECT OF DEFIANCE OF ASSUMPTION OR CERTIFICATION ORDERS .......................................... 183 G..........5 REQUISITES FOR LAWFUL PICKETING .......................................................... LIABILITY OF ORDINARY WORKERS ............ 195 C............................................ 185 G..................... 191 B....2 VOLUNTARY ARBITRATOR............................ 172 C......... 189 A...............................................7 NATURE OF ASSUMPTION ORDER OR CERTIFICATION ORDER ............ 194 D...................1 JURISDICTION .................................................................................2 POWER TO SUSPEND/EFFECTS OF TERMINATION .....................................................................................1 JURISDICTION ........................... LABOR ARBITER..... 197 IV.......... 182 F................ 181 F. 196 II. 195 C.......1 VISITORIAL AND ENFORCEMENT POWERS .................... 175 D........................... WAIVER OF ILLEGALITY OF STRIKE ................................ 190 A...... PROCEDURE ...... 186 I.................. PRESCRIPTION OF ACTIONS ........................................ 190 B....6 ASSUMPTION OF JURISDICTION BY THE DOLE SECRETARY OR CERTIFICATION OF THE LABOR DISPUTE TO THE NLRC FOR COMPULSORY ARBITRATION ......4 APPELLATE JURISDICTION ......................2 REINSTATEMENT PENDING APPEAL .................. 194 C................................................ “INNOCENT BYSTANDER RULE”....... 196 III.......... RIGHT TO PEACEFUL CONCERTED ACTIVITIES.. 194 C.........1 RULE 45.........................................10 INJUNCTIONS.......193 III............3 PREVENTIVE MEDIATION ............. 196 I............

10. Section 9. encourages private enterprise. hence. 1 .] The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services. spiritual.18.] The State recognizes the indispensable role of the private sector. and social wellbeing. It shall protect the rights of workers and promote their welfare. Williams (1940)] Limits of Social Justice Social justice should be used only to correct an injustice. [Article II.] The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical. nor atomism.11. Social justice [Article II. [Calalang vs. Section 13.] The State recognizes the role of women in nation-building. SECS 9. General definition of Social Justice Social Justice is neither communism.13.20 [Article II. and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life. Compassion for the poor is an imperative of every humane society but only when the recipient is not a rascal claiming an undeserved privilege. Section 10. [Article II. Section 20.] The State values the dignity of every human person and guarantees full respect for human rights. and in the pledge of protection to labor with specific authority to regulate the relations between landowners and tenants and between labor and capital.] The State shall promote social justice in all phases of national development. intellectual. CONSTITUTIONAL PROVISIONS A. [Article II. nor despotism.UP LAW BOC LABOR STANDARDS I. and shall ensure the fundamental equality before the law of women and men. and an improved quality of life for all.14. labor and management need each other to foster productivity and economic growth. Section 18.1 ARTICLE II. [Alalayan vs. As partners in nationbuilding. Section 11. National Power Corporation (1968)] The policy of social justice is not intended to countenance wrongdoing simply because it is committed by the underprivileged. Section 14. Fundamental Principle and Policies LABOR LAW [Article II. It shall inculcate in the youth patriotism and nationalism. but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. [Agabon vs. At best it may mitigate the penalty but it certainly will not condone the offense. NLRC (2004)] Welfare State The welfare state concept is found in the constitutional clause on the promotion of social justice to ensure the well-being and economic security of all the people.] The State affirms labor as a primary social economic force. A. a rising standard of living. nor anarchy. and provides incentives to needed investments. and encourage their involvement in public and civic affairs. [Article II. promote full employment. It must be founded on the recognition of the necessity of interdependence among diverse units of a society. moral. the need to weigh and balance the rights and welfare of both the employee and employer.

144899. 4. 2004] A. like the workers who have tainted the cause of labor with the blemishes of their own character.UP LAW BOC LABOR STANDARDS cannot be permitted to be a refuge of scoundrels any more than can equity be an impediment to the punishment of the guilty. NLRC (1991)] To constitute valid dismissal from employment. two requisites must concur: (1) the dismissal must be for a just or authorized cause; and (2) the employee must be afforded an opportunity to be heard and to defend himself. or the right of the people peaceably to assemble and petition the government for redress of grievances. [Leyte Land Transportation Co. 2 6 . vs. liberty. (2009)] LABOR LAW Due Process Due process requirements are two-fold – substantive (dismissal should be for a valid and authorized cause as provided by law) and procedural (due notice and hearing). In spite of the constitutional prohibition and the fact that both parties are of full age and competent to contract. Sulpicio Lines. (1937)] The Constitution is primarily a document of social justice. the SC ruled that the element of willfulness characterized by a perverse mental attitude in disobeying the employer’s order as to warrant the ultimate penalty of dismissal was lacking. 18(2) [Article III. [de Jonge vs. or property without due process of law. and although it has recognized the importance of the private sector. No.] No law shall be passed abridging the freedom of speech. 16.2 ARTICLE III. and the wrongful interference therewith is an actionable wrong. 10. [Salaw vs. (2010)] Liberty of Contract/Laissez Faire The prohibition to impair the obligation of contracts is not absolute and unqualified.] No person shall be deprived of life.R. Leyte Farmers & Workers Union (1948)] Labor as Property Right One’s employment is a property right. or where the public health demands that one party to the contract shall be protected against himself. [Employees Confederation of the Philippines vs. Inc. G. NWPC (1991)] In a case where employees were dismissed for serious misconduct or willful disobedience. [Sibal vs. It said that wearing armbands and putting up placards to express one’s views without violating the rights of third parties. February 5. of expression. Oregon. nor shall any person be denied the equal protection of the laws. Section 4. Those who invoke social justice may do so only if their hands are clean and their motives blameless and not simply because they happen to be poor. [Jeffrey Nacague vs. 7. This great policy of our Constitution is not meant for the protection of those who have proved they are not worthy of it. [Tirazona vs. [Bascon v CA. it has not embraced fully the concept of laissez-faire or relied on pure market forces to govern the economy. Philippine EDS TechnoService Inc. 8. Section 1. SECS 1. it does not necessarily deprive the State of the power to interfere where the parties do not stand upon an equality. are legal per se and even constitutionally protected. or of the press. Notre Dame of Greater Manila (1990)] 6 [Article III. The Right to Assemble The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.

economic.] The right of the people. Section 7.] No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. Leyte Farmers & Workers Union (1948)] [Article III. associations. Section 1. [Leyte Land Transportation Co. and to documents and papers pertaining to official acts. organized and unorganized. local and overseas. or societies for purposes not contrary to law shall not be abridged. [Article III. to form unions. it does not necessarily deprive the State of the power to interfere where the parties do not stand upon an It shall guarantee the rights of all workers to self-organization. and political inequalities. [Bernas. A. [Article XIII. vs. SECS1. Section 16. or authorizes for its satisfaction something different from that provided in its terms. the State shall regulate the acquisition. and promote full employment and equality of employment opportunities for all. 14 The Right to Form Associations The right to form associations shall not be impaired except through a valid exercise of police power. [Article III. Section 18(2). Nolting (1922)] [Article XIII. transactions. shall be afforded the citizen. To this end. Section 3.UP LAW BOC LABOR STANDARDS LABOR LAW equality. including the right to strike in accordance with 3 . The 1987 Philippine Constitution: a Comprehensive Reviewer] [Article XIII. or dispenses with those expressed. and peaceful concerted activities. or imposes new conditions. In spite of the constitutional prohibition and the fact that both parties are of full age and competent to contract.] All persons shall have the right to a speedy disposition of their cases before all judicial. subject to such limitations as may be provided by law. 2. and disposition of property and its increments. [Clemens vs.] The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. or decisions. Section 10. and remove cultural inequities by equitably diffusing wealth and political power for the common good. Non-impairment of Contracts A law which changes the terms of a legal contract between parties. or administrative bodies.] No law impairing the obligation of contracts shall be passed. is a law which impairs the obligation of a contract and is null and void.3 ARTICLE XIII. Section 8. either in the time or mode or performance. use. Access to official records. reduce social.] The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity. 3. or where the public health demands that one party to the contract shall be protected against himself. including those employed in the public and private sectors.] The right of the people to information on matters of public concern shall be recognized. 13. as well as to government research data used as basis for policy development. Section 2. collective bargaining and negotiations. ownership.] The State shall afford full protection to labor. [Article III. Compare with Liberty of Contract: The prohibition to impair the obligation of contracts is not absolute and unqualified. quasi-judicial. [Article III.

according to his own discretion and judgment. Under the doctrine of management prerogative. Ymbong vs. vs. recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments. G. Indeed. Toshiba (2007)] The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes. transfer of employees. 198534. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. No. work supervision. it is but a recognition of the inherent economic inequality between labor and management. [Phil. including conciliation. ABS-CBN Broadcasting Corp. (2012)] Management and the Constitution: Management Function/Prerogative The law in protecting the rights of the employees authorizes neither oppression nor self-destruction of the employer. this Court will uphold them…Even as the law is solicitous of the welfare of the employees. also cited in Manila Electric Co. The only limitations to the exercise of this prerogative are those imposed by labor laws and the principles of equity and substantial justice. Airlines Inc. and shall enforce their mutual compliance therewith to foster industrial peace. It should be made clear that when the law tilts the scale of justice in favor of labor. NLRC (1993). In treating the latter. industrial peace cannot be achieved if the employees are denied their just participation in the discussion of matters affecting their rights. all aspects of employment. [Phil. a line must be drawn between management prerogatives regarding business operations per se and those which affect the rights of the employees. it must also protect the right of an employer to exercise what are clearly management prerogatives.UP LAW BOC LABOR STANDARDS LABOR LAW the employer. This is a management prerogative. An employer has a free reign and enjoys wide latitude of discretion to regulate all aspects of employment. where the free will of management to conduct its own affairs to achieve its purpose takes form. every employer has the inherent right to regulate. July 3.So long as a company’s management prerogatives are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements. Never should the scale be so tilted if the result is an injustice to 4 . work assignments. vs. [Ernesto G. Sec. working methods. NLRC (1994)] law. [Torreda vs. humane conditions of work. The State shall regulate the relations between workers and employers. including hiring. dismissal. This Court held that the employer’s right to conduct the affairs of his business according to its own discretion and judgment. is wellrecognized. management should see to it that its employees are at least properly informed of its decisions or modes action. The free will of management to conduct its own business affairs to achieve its purpose cannot be denied.R. the time. vs. and to expansion and growth. and discipline. Geothermal Inc. [Peckson v Robinson’s Supermarket Corporation. and a living wage. 2013] Participation in Decision-Making Process Verily. They shall be entitled to security of tenure. lay-off of workers. place and manner of work. and recall of employees. of Labor Quisumbing (2000)] Limits to Management Prerogative (1) Good faith .

Goya. which gives the Secretary the power to assume jurisdiction and resolve labor disputes involving industries indispensable to national interest. (4) Collective Bargaining – The CBA provisions agreed upon by the Company and the Union delimit the free exercise of management prerogative. Roldan-Confesor (2013)] [Article XIII. the privilege is not absolute. vs. Inc.. It shall inculcate in the youth patriotism and nationalism. a pharmaceutical company defended its termination of rank and file employees during a bargaining deadlock. Inc. The parties in a CBA may establish such stipulations. [Article XIII. (2013)] (3) Law – In one case. This was after the Labor Secretary had assumed jurisdiction over the dispute and enjoined the parties from “any acts which might exacerbate the situation.UP LAW BOC LABOR STANDARDS (2) Without grave abuse of discretion . [Tinio vs. there are limits thereto. v. taking into account their maternal functions. as expressed in PAL vs. Section 14. intellectual. Inc. good customs. of Labor (2005)] The Court disagreed with the company’s defense. 236(g). public order or public policy. Employees Union-FFW (2013)] (5) Equity and/or Substantial Justice – The Court recognized the inherent right of the employer to discipline its employees but it should still ensure that the employer exercises the prerogative to discipline humanely and considerately. spiritual. as an exercise of management prerogative. Where the CBA is clear and unambiguous. terms and conditions as they may deem convenient provided these are not contrary to law. bearing in mind the basic elements of justice and fair play. stating that the privilege is not absolute but subject to limitations imposed by law. and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. moral. [Metrolab Industries. The discipline exacted by the employer should further consider the employee’s length of service and the number of infractions during his employment. but subject to exceptions. it becomes the law between the parties and compliance therewith is mandated by the 5 . In this case. Sec.But. morals.] The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical. [Goya.. like other rights. [Dongon v. Section 13. it is limited by Sec. and social wellbeing.” Assumption of jurisdiction by the Secretary of Labor This Court declared that it recognizes the exercise of management prerogatives and it often declines to interfere with the legitimate business decisions of the employer…However. The managerial prerogative to transfer personnel must be exercised without grave abuse of discretion. Having the right should not be confused with the manner in which the right is exercised. The company’s management prerogatives are not being unjustly curtailed but duly tempered by the limitations set by law. CA (2007)] LABOR LAW express policy of the law. clauses. One of these exceptions is when the Secretary of Labor assumes jurisdiction over labor disputes involving industries indispensable to the national interest under Article 263(g) of the Labor Code.] The State shall protect working women by providing safe and healthful working conditions. v. taking into account its special character and the particular circumstances in the case at bench. NLRC. [University of Immaculate Concepcion Inc. and encourage their involvement in public and civic affairs. and that the sanction imposed is commensurate to the offense involved and to the degree of the infraction. Rapid Movers and Forwarders Co. Inc.

giving due consideration to the context in which it is negotiated and purpose which it is intended to serve. [Misamis Oriental II Electric Service Cooperative vs. the scales of justice must be tilted in favor of the employee. it must be construed liberally rather than narrowly and technically. provisions of applicable statutes are deemed written into the contract. B. Inc. Hence. strikes and lockouts. Inasmuch as in this particular instance the contract in question would have been deemed in violation of pertinent labor laws.] Every person must. the parties are not at liberty to insulate themselves and their 6 . [Cirtek Employees Labor Union-FFW v Cirtek Electronics.3. contracts of labor are explicitly subject to the police power of the state because they are not ordinary contracts but are impressed with public interest. They are so impressed with public interest that labor contracts must yield to the common good.] In case of doubt. and private respondent would still be entitled to overtime pay. and the courts must place a practical and realistic construction upon it. wages. closed shop. Virgilio Cagalawan (2012)] Indeed. vs.] The relations between capital and labor are not merely contractual. give everyone his due. all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer. it is not however. an ordinary contract to which is applied the principles of law governing ordinary contracts. it must yield to the common good. Inc. Moreover. Therefore.. and observe honesty and good faith.UP LAW BOC LABOR STANDARDS LABOR LAW relationships from the impact of labor laws and regulations by simply contracting with each other. A CBA. the terms of a contract should be construed in favor of labor. CIVIL CODE B. a contract of employment is impressed with public interest. collective bargaining. thus. Liberal Construction While the terms and conditions of a CBA constitute the law between the parties.1 ARTICLE 19 [Article 19. hours of labor and similar subjects. as a labor contract within the contemplation of Article 1700 of the Civil Code of the Philippines which governs the relations between labor and capital. is not merely contractual in nature but impressed with public interest. the provisions of said laws would prevail over the terms of the contract. Quejada-Lopez (2006)] B. ARTICLE 1702 [Article 1702. This is consistent with the rule that an employer’s cause could only succeed on the strength of its own evidence and not on the weakness of the employee’s evidence. in case of doubt. As such. For this reason. working conditions. in the exercise of his rights and in the performance of his duties. Contracts Under the Civil Code. such contracts are subject to the special laws on labor unions. NLRC (1996)] When there is doubt between the evidence submitted by the employer and that submitted by the employee. vs.2 ARTICLE 1700 [Article 1700. 2010] B. [Innodata Philippines. [PAL Employees Savings and Loan Assn. act with justice.

vs. The application of technical rules of procedure in labor cases may be relaxed to serve the 7 . collective bargaining. Failing in this. Art. [PCIB vs.2 ARTICLE 4 [LC. Lariosa (1987)] C. and while as a right it may be waived. The measure of the responsibility of an employee is that if he performed his assigned task efficiently and according to the usual standards. CA (1985)] LABOR LAW C.UP LAW BOC LABOR STANDARDS Fair treatment The right of an employer to dismiss an employee differs from and should not be confused with the manner in which such right is exercised. security of tenure. 4. Jacinto (1991)] We stress at this point that it is the spirit and intention of labor legislation that the NLRC and the labor arbiters shall use every reasonable means to ascertain the facts in each case speedily and objectively. vs. 3.] Technical rules not binding and prior resort to amicable settlement. without regard to technicalities of law or procedure. Declaration of basic policy. promote full employment. provided due process is duly observed. ensure equal work opportunities regardless of sex. then he may not be held personally liable for any damage arising therefrom. race or creed and regulate the relations between workers and employers. [General Bank and Trust Co. Mutual obligation The employer's obligation to give his workers just compensation and treatment carries with it the corollary right to expect from the workers adequate work. the rules of evidence prevailing in courts of law or equity shall not be controlling and it is the spirit and intention of this Code that the Commission and its members and the Labor Arbiters shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law or procedure. All doubts in the implementation and interpretation of the provisions of this Code. The State shall assure the rights of workers to self-organization. and just and humane conditions of work.1 ARTICLE 3 LC. including its implementing rules and regulations. all in the interest of due process. diligence and good conduct. – In any proceeding before the Commission or any of the Labor Arbiters. shall be resolved in favor of labor Compliance with law It is also important to emphasize that the return-to-work order not so much confers a right as it imposes a duty. LABOR CODE 7 C. Tuico (1988)] Liberality in Application of Rules [Article 221. [Firestone Tire and Rubber Co. It must not be oppressive and abusive since it affects one's person and property.] Construction in favor of labor. the employee must suffer the consequences of his negligence if not lack of due care in the performance of his duties. [Sarmiento vs. The State shall afford protection to labor. it must be discharged as a duty even against the worker's will. Art. xxx Employee's compliance and obedience to employer's orders The lack of a written or formal designation should not be an excuse to disclaim any responsibility for any damage suffered by the employer due to his negligence.

– (a) “Commission” means the National Labor Relations Commission or any of its divisions. – A. including voluntary arbitration.The State shall promote and develop a tax-exempt employees’ compensation program whereby employees and their dependents. (b) “Bureau” means the Bureau of Labor Relations and/or the Labor Relations Divisions in the regional offices established under Presidential Decree No. 126. 8 . The term shall not be limited to the employees of a particular C. in the Department of Labor. The Labor Code with Comments and Cases] C. (c) To foster the free and voluntary organization of a strong and united labor movement. Litton Mills (2011)] C. and (g) To ensure the participation of workers in decision and policy-making processes affecting their rights. (b) To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and development. as provided under this Code. as amended. casualty.] Policy. in the event of workconnected disability or death. or disease. [Azucena.4 ARTICLE 211 (NOW ARTICLE 217) [Article 211. [Article 166.UP LAW BOC LABOR STANDARDS demands of substantial justice. rates of pay. except as otherwise provided under this Code. To encourage a truly democratic method of regulating the relations between the employers and employees by means of agreements freely entered into through collective bargaining. The term shall not include any labor organization or any of its officers or agents except when acting as employer. 1. hours of work or other terms and conditions of employment.3 ARTICLE 166 (NOW ARTICLE 172) B. mediation and conciliation. duties and welfare. [Manila Electric Co. Jan Carlo Gala (2012)] LABOR LAW (d) To promote the enlightenment of workers concerning their rights and obligations as union members and as employees. (f) “Employee” includes any person in the employ of an employer. (e) To provide an adequate administrative machinery for the expeditious settlement of labor or industrial disputes. or death of workmen through industrial accident. Ligaya Santos vs. . vs. 126.5 ARTICLE 212 (NOW ARTICLE 218) Article 212. It is settled that subsequent and substantial compliance may call for the relaxation of the rules of procedure…The Court has time and again relaxed the rigid application of the rules to offer full opportunity for parties to ventilate their causes and defenses in order to promote rather than frustrate the ends of justice. (e) “Employer” includes any person acting in the interest of an employer. may promptly secure adequate income benefit and medical related benefits. [Ma. directly or indirectly. as modes of settling labor or industrial disputes. (f) To ensure a stable but dynamic and just industrial peace. Workmen’s Compensation Program This is the general and comprehensive term applied to those laws providing for compensation for loss resulting from the injury. (c) “Board” means the National Conciliation and Mediation Board established under Executive Order No.] Declaration of Policy. as the case may be. (d) “Council” means the Tripartite Voluntary Arbitration Advisory Council established under Executive Order No. no court or administrative agency or official shall have the power to set or fix wages. disablement.Definitions. It is the policy of the State: (a) To promote and emphasize the primacy of free collective bargaining and negotiations.

depots. All employees not falling within any of the above definitions are considered rank-and-file employees for purposes of this Book. plants or offices. suspend. regardless of whether the disputants stand in the proximate relation of employer and employee. function or administration has been assisted by any act defined as unfair labor practice by this Code. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment. or any official that may be authorized by the Secretary of Labor and Employment to act as Voluntary Arbitrator upon the written request and agreement of the parties to a labor dispute. (g) “Labor organization” means any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment. (s) “Strike area” means the establishment. lay-off. (i) “Company union” means any labor organization whose formation. (o) “Strike” means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. impedes. coercion. unless the Code so explicitly states. (p) “Lockout” means any temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. warehouses. (q) “Internal union dispute” includes all disputes or grievances arising from any violation of or disagreement over any provision of the constitution and by laws of a union. maintaining. (r) “Strike-breaker” means any person who obstructs. (h) “Legitimate labor organization” means any labor organization duly registered with the Department of Labor and Employment. assign or discipline employees. or interferes with by force.UP LAW BOC LABOR STANDARDS employer. or one chosen with or without the assistance of the National Conciliation and Mediation Board. including the sites or premises used as runaway shops. in the interest of the employer. violence. LABOR LAW (n) “Voluntary Arbitrator” means any person accredited by the Board as such or any person named or designated in the Collective Bargaining Agreement by the parties to act as their Voluntary Arbitrator. Supervisory employees are those who. including any violation of the rights and conditions of union membership provided for in this Code. recall. (m) “Managerial employee” is one who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire. (j) “Bargaining representative” means a legitimate labor organization whether or not employed by the employer. 9 . (k) “Unfair labor practice” means any unfair labor practice as expressly defined by the Code. pursuant to a selection procedure agreed upon in the Collective Bargaining Agreement. discharge. (l) “Labor dispute” includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating. fixing. hours or conditions of work or in the exercise of the right of selforganization or collective bargaining. of the employer struck against. changing or arranging the terms and conditions of employment. transfer. and includes any branch or local thereof. or intimidation any peaceful picketing affecting wages. as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment. effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. threats.

(c) Any employee. C. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off. (b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. However. be considered as an employee for purposes of membership in any labor union. subject to such rules and regulations as the Secretary of Labor and Employment may promulgate.The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. For this purpose. to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights. an individual employee or group of employees shall have the right at any time to present grievances to their employer. shall. workers and employers may form labor-management councils: Provided. the employer shall furnish the (e) The Minister of Labor and Employment and the Minister of the Budget shall cause to be created or reclassified in accordance with law such positions as may be necessary to carry out the objectives of this Code and cause the 10 . docket fees may be assessed against the filing party. welfare fund.Exclusive bargaining representation and workers’ participation in policy and decision making. strike fund and credit and cooperative undertakings. Any provision of law to the contrary notwithstanding. In all other disputes. Article 255. – (a) All unions are authorized to collect reasonable membership fees. assessments and fines and other contributions for labor education and research. (d) No docket fee shall be assessed in labor standards disputes.Miscellaneous provisions. whether employed for a definite period or not. beginning on his first day of service. benefits and welfare.UP LAW BOC LABOR STANDARDS C. such fees shall be shared equally by the negotiating parties. workers shall have the right. union dues. That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. provided that in bargaining deadlock.7 ARTICLE 277 (NOW ARTICLE 283) Article 277.6 ARTICLE 255 (NOW ARTICLE 261) LABOR LAW 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 in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. mutual death and hospitalization benefits. . Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission.

or the Labor Arbiter. The Board shall administer the Special Voluntary Arbitration Fund in accordance with the guidelines it may adopt upon the recommendation of the Council. labor-management committees may be formed voluntarily by workers and employers for the purpose of promoting industrial peace. and a copy thereof served upon the parties. as the case may be. Continuing funds needed for this purpose in the initial yearly amount of fifteen million pesos (P15. 11 . see to it that the case or matter shall be decided or resolved without any further delay. which guidelines shall be subject to the approval of the Secretary of Labor and Employment. or the Director of the Bureau of Labor Relations or Med-Arbiter.000. without prejudice to any liability which may have been incurred as a consequence thereof. a certification stating why a decision or resolution has not been rendered within the said period shall be issued forthwith by the Chairman of the Commission.00) shall be provided in the 1989 annual general appropriations acts. (g) The Ministry shall help promote and gradually develop. The Department of Labor and Employment shall endeavor to enlighten and educate the workers and employers on their rights and responsibilities through labor education with emphasis on the policy thrusts of this Code. LABOR LAW (h) In establishments where no legitimate labor organization exists. or the Director of the Bureau of Labor Relations or Med-Arbiter. (i) To ensure speedy labor justice. and the Voluntary Arbitration Program. the periods provided in this Code within which decisions or resolutions of labor relations cases or matters should be rendered shall be mandatory. with the agreement of labor organizations and employers. Despite the expiration of the applicable mandatory period. labormanagement cooperation programs at appropriate levels of the enterprise based on the shared responsibility and mutual respect in order to ensure industrial peace and improvement in productivity.UP LAW BOC LABOR STANDARDS upgrading of the salaries of the personnel involved in the Labor Relations System of the Ministry. the aforesaid officials shall. The amount of subsidy in appropriate cases shall be determined by the Board in accordance with established guidelines issued by it upon the recommendation of the Council. and for such other related purposes to promote and develop voluntary arbitration. a case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading or memorandum required by the rules of the Commission or by the Commission itself. The Fund shall also be utilized for the operation of the Council. 80 and from annual appropriations thereafter. Upon expiration of the corresponding period.000. working conditions and the quality of working life. For this purpose. or the Regional Director. including the Arbitrator’s fees. Funds needed for this purpose shall be provided out of the Special Activities Fund appropriated by Batas Pambansa Blg. the training and education of Voluntary Arbitrators. (f) A special Voluntary Arbitration Fund is hereby established in the Board to subsidize the cost of voluntary arbitration in cases involving the interpretation and implementation of the Collective Bargaining Agreement. or the Regional Director. the Executive Labor Arbiter.

LC] Overseas Filipino Worker Refers to “a person who is to be engaged.13(a). (b) and (c) hereof. [Sec. R.UP LAW BOC LABOR STANDARDS II. Recruitment and Placement LABOR LAW Provided. Private recruitment entity (PRE) Type Definition Private Any person or employment entity engaged in agency recruitment and placement of workers for a fee Any person or Private recruitment association engaged in the entity recruitment and placement of workers. including migrant workers. including migrant workers. to be used interchangeably with migrant worker. 3. is engaged or has been engaged in a remunerated activity in a state of which he or she is not a citizen or on board a vessel navigating the foreign seas other than a government ship used for military or noncommercial purposes or on an installation located offshore or on the high seas. The government recognizes any of the following as a guarantee on the part of the receiving country for the protection of the rights of overseas Filipino workers: (a) It has existing labor and social laws protecting the rights of workers. RA 8042. 5. 13(d) and (f). without charging.” [Sec. locally or overseas. one is also authorized to collect fees Authorize an entity to operate as a private recruitment entity Does not entitle a private recruitment entity to collect fees. as amended] Policy of Selective Deployment The State shall allow the deployment of overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. [Art.” [Art. RA 8042.A. declarations or resolutions relating to the protection of workers. while an authority is a document issued by the DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment agency. License and Authority A license is a document issued by the Department of Labor and Employment (DOLE) authorizing a person or entity to operate a private employment agency. No. ILLEGAL RECRUITMENT Worker Refers to “any member of the labor force.1. directly or indirectly. That the receiving country is taking positive. (b) It is a signatory to and/or a ratifier of multilateral conventions. 10022] i. concrete measures to protect the rights of migrant workers in furtherance of any of the guarantees under subparagraphs (a). 2(a). whether employed or unemployed. and (c) It has concluded a bilateral agreement or arrangement with the government on the protection of the rights of overseas Filipino Workers: License Authority Authorize an entity to operate as a private employment agency When a license is given. as amended] A. Private employment agency (PEA) v. RECRUITMENT OF LOCAL AND MIGRANT WORKERS A. any fee 12 Requires License Authority . LC) [Sec.

LC)] Non-transferability of license or authority (1) No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority. [Art. or assigned to any other person or entity. conveyed. 28. Rule I. (5) Any official or employee of the DOLE. (c) Contracting. without securing prior authority from the POEA. [People vs. Sec. (2) Nor may such license or authority be transferred. [SEE: POEA Rules Part II. ESSENTIAL ELEMENTS ILLEGAL RECRUITMENT OF “Recruitment and placement" refers to any act of (C-E-C-T-U-H) (a) Canvassing. [Art. is also an officer. Any transfer of business address. 1(a) Capitalization requirement All applicants for authority to hire or renewal of license to recruit are required to have such substantial capitalization as determined by the Secretary of Labor. (2) Corporations with minimum paid-up capital of P2. members of the board or partners.A. 8042 as amended and/or any of his/her relatives within the 4th civil degree of consanguinity and affinity. 27.UP LAW BOC LABOR STANDARDS Entities disqualified from being issued a license (1) Travel agencies and sales agencies of airline companies. LC] B. when any of its officers. (e) Utilizing. Buli-e (2003)] Duration of Validity 4 years [POEA Rules of 2002] Citizenship requirement (1) Only Filipino citizens or (2) Corporations. DFA and other government agencies directly involved in the implementation of R. 29. and 9. Sec. 7. or (f) Hiring procuring workers.000.000.000. [POEA Rules of 2002] LABOR LAW Enforceability of the license Licensed agencies are prohibited from conducting any recruitment activities of any form outside of the address stated in the license. [Art. acknowledged branch or extension office. appointment or designation of any agent or representative including the establishment of additional offices anywhere shall be subject to the prior approval of the Department of Labor.000. (b) Enlisting. 8. (4) Persons. (3) Corporations and partnerships. 26] (2) Officers or members of the Board of any corporation or members in partnership engaged in the business of a travel agency. OWWA. [Art. partnerships or entities at least seventy-five percent (75%) of the authorized and voting capital stock of which is owned and controlled by Filipino citizens shall be permitted to participate in the recruitment and placement of workers. Part II. (d) Transporting. LC] SEE: POEA Rules. partnerships or corporations which have derogatory records. member of the board of partner of a corporation or partnership engaged in the business of a travel agency.] 13 . Based on POEA Rules the following are the substantial capital requirements: (1) Single proprietorships or partnerships with minimum capitalization of P2. Rule II. POEA. locally or overseas.

locally or abroad. 1988] Profit or lack thereof is immaterial The act of recruitment may be "for profit or not. 13 (b)." [Rodolfo vs. or (d) Advertising for employment. Espanol (2007)] Accused must give the impression of ability to send complainant abroad It is well-settled that to prove illegal recruitment. offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. SIMPLE ILLEGAL RECRUITMENT C. [Art. [People v. whether for profit or not LABOR LAW Promising employment Promising employment as factory workers and receiving money allegedly for processing papers without authorization or license is engaging into unlawful recruitment and placement activities. People (2006)] 14 . it is the lack of the necessary license or authority. The proviso provides for a presumption that a person or entity so described engages in recruitment and placement [People v. 13(b) or prohibited activities defined under Art. which is included in recruitment.1. not the fact of payment that renders the recruitment activity of LCL unlawful. the individual or entity dealing with them shall be presumed to be engaged in the act of recruitment and placement. 38. in any manner. Saulo (2000)] Provided. Panis. The proviso merely lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment to two or more prospective workers. 34. [Art. LC] What constitutes recruitment? The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. placement officer or bureau. is "the act of passing along or forwarding of an applicant for employment after an initial interview of a selected applicant for employment to a selected employer. (c) Promising. [People vs. [People v. Any of the acts mentioned in Article 13(b) will constitute recruitment and placement even if only one prospective worker is involved. and (2) The said person does not have a license or authority to do so.UP LAW BOC LABOR STANDARDS And also includes (a) Referrals. LC] Any of the acts mentioned above constitutes recruitment and placement.F. The absence of the necessary license or authority renders all of accused-appellant’s recruitment activities criminal. (b) Contract services. Sharp vs." Notably. it must be shown that appellant gave complainants the distinct impression that she had the power or ability to send complainants abroad for work such that the latter were convinced to part with their money in order to be employed. ILLEGAL RECRUITMENT FOR LOCAL WORKERS (GOVERNED BY THE LABOR CODE) Simple Illegal Recruitment (local) Elements: (1) The person charged with the crime must have undertaken recruitment activities defined under Art. That any person or entity which. [C. Ochoa (2011)] Acts of referral The act of referral. Panis (1988)] C.

(f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines. information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code. 8042. v. LC. 10022] Simple Illegal Recruitment 1st type: (1) Person charged undertakes any recruitment activity as defined in Art.A. R. and (k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations. respondents committed a prohibited practice and engaged in illegal recruitment as defined in Art. (i) To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor. separation from jobs. licensee. (h) To fail to file reports on the status of employment. departures and such other matters or information as may be required by the Secretary of Labor. testimony. 34. (d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment.UP LAW BOC LABOR STANDARDS Contract Substitution amounts to Illegal Recruitment The reduced salaries and employment period in the new employment contract contradicted the POEA-approved employment contract. (j) To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency. (c) To give any false notice. 34(i). placement vacancies. entity.A. C. Vinuya (2012)] LABOR LAW (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives. LC] Prohibited practices It shall be unlawful for any individual. 15 . (e) To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency. By this act of contract substitution. as amended by. [Art. [PERT/CPM Manpower Exponent Co.2. remittance of foreign exchange earnings. (b) To furnish or publish any false notice or information or document in relation to recruitment or employment. or to make a worker pay any amount greater than that actually received by him as a loan or advance.13 (b) of the Labor Code. any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor. and (2) Said person does not have a license or authority to do so. or holder of authority: (a) To charge or accept. ILLEGAL RECRUITMENT MIGRANT WORKERS FOR [Governed by R. directly or indirectly.

information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the (h) (i) 16 LABOR LAW Labor Code. 10022. (2) It is immaterial whether he is a holder or not of any license or authority Illegal recruitment shall mean any act of canvassing. utilizing. when undertaken by non-licensee or nonholder of authority contemplated under Article 13(f) of Presidential Decree No. hiring. employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment. work different from the actual overseas work. To substitute or alter to the prejudice of the worker. non-holder. licensee or holder of authority: (a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment. joined or supported. contracting. (b) To furnish or publish any false notice or information or document in relation to recruitment or employment. or procuring workers and includes referring. To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines. whether a non-licensee. separation from jobs. To fail to submit reports on the status of employment.UP LAW BOC LABOR STANDARDS 2nd type: (1) Person charged commits any of the enumerated acts under Sec.A. promising or advertising for employment abroad. or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance. which include the act of reprocessing workers through a job order that pertains to nonexistent work. testimony. or work with a different employer whether registered or not with the POEA. To include or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment. RA 8042 as amended] (f) (g) Other prohibited acts It shall likewise include the following acts. contract services. as amended. 6 of R. whether committed by any person. whether for profit or not. For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged . 442. enlisting. or for the purpose of documenting hired workers with the POEA. in any manner. transporting. or has contacted or is supported by any union or workers' organization. 8042. departures and such other matters or information as may be required by the Secretary of Labor and Employment. remittance of foreign exchange earnings. offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. That any such non-licensee or non-holder who. as amended by. To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed. placement vacancies. (c) To give any false notice. otherwise known as the Labor Code of the Philippines (d) (e) Provided.A. R. 6. [Sec.

especially for those that constitute economic sabotage. Ocden (2011)] 17 . (2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions. and (m) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency. postdated checks in relation to the said loan. RA 8042 as amended] Migrant Workers’ Act (MWA) expands the definition of illegal recruitment The amendments to the Labor Code introduced by Republic Act No. premium or other insurance related charges. (4) (5) (6) (7) In addition to the acts enumerated above. Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training. 6. For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications. [People v. or for any other reasons. otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995. either personally or through a guarantor or accommodation party. it shall also be unlawful for any person or entity to commit the following prohibited acts: (1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage. entities or persons. 8042. and For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees. (l) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment. [Sec. as provided under the compulsory worker's insurance coverage. broadened the concept of illegal recruitment and provided stiffer penalties. which will be used for payment of legal and allowable placement fees and make the migrant worker issue. (3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has LABOR LAW been prematurely terminated through no fault of his or her own. except for recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings. except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner. institutions. (j) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations. entities or persons. seminar. Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics.UP LAW BOC LABOR STANDARDS directly or indirectly in the management of travel agency. other than those authorized under the Labor Code and its implementing rules and regulations. instruction or schooling of any kind only from specifically designated institutions. in cases where the deployment does not actually take place without the worker's fault. entities or persons. (k) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment.

1 OFFENSE INVOLVING ECONOMIC SABOTAGE (LARGE-SCALE OR BY A SYNDICATE) Illegal recruitment is considered economic sabotage when the commission thereof is attended by the ff. AND (3) The illegal recruitment is committed by a group of three (3) or more persons conspiring or confederating with one another. whose essential elements are the following: (1) The accused engages in acts of recruitment and placement of workers defined under Article 13(b) of the Labor Code or in any prohibited activities under Article 43 of the Labor Code. LC] Illegal recruitment in large scale The acts committed by the accused constituted illegal recruitment in large scale. 38(b). a conviction for large scale illegal recruitment must be based on a finding in each case of illegal recruitment of three or more persons whether individually or as a group. Who can be punished Nonlicensee Nonlicensee Nonlicensee Three or more complainants must be in a single case When the Labor Code speaks of illegal recruitment "committed against three (3) or more persons individually or as a group. (2) The accused has not complied with the guidelines issued by the Secretary of Labor 18 . particularly with respect to the securing of license or an authority to recruit and deploy workers. In large scale . or any of the prohibited practices enumerated under Art. (2) He has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers. Licensee/ Nonlicensee D. otherwise. either locally or overseas. 34 of the Labor Code. ILLEGAL RECRUITMENT AS ECONOMIC SABOTAGE E. 13(b) Labor Code Enumerat ed prohibite d acts in Section 6 LABOR LAW and Employment. Reyes (1995)] E.if committed against 3 or more persons individually or as a group. [People v. prosecutions for single crimes of illegal recruitment can be cumulated to make out a case of large scale illegal recruitment.UP LAW BOC Law Labor Code Applicabili ty Local Workers LABOR STANDARDS Acts Punishabl e Art.if carried out by a group of 3 or more persons conspiring and confederating with one another. qualifying circumstances: (1) By a syndicate . ILLEGAL RECRUITMENT IN LARGE SCALE Illegal recruitment by a syndicate (1) The offender undertakes either any activity within the meaning of "recruitment and placement" defined under Article 13(b)." it must be understood as referring to the number of complainants in each case who are complainants therein. 13(b) Art. [People vs. [Art. 34 RA Migrant 8042 Workers as amend ed by RA 10022 Art. Gallo (2010)] In other words. and (3) The accused commits the unlawful acts against three or more persons individually or as a group.

whereas estafa is malum in se.000 OR both If the offender is a corporation.000 OR both 4 years ≤ Imprisonment ≤ 8 years OR P20. The offense of illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for conviction. conviction for estafa under par. be deported without further proceedings. partnership. ILLEGAL RECRUITMENT INVOLVING LOCAL WORKERS [ART. Ocden (2011)] Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. while estafa is malum in se where the criminal intent of the accused is crucial for conviction.000 ≤ Fine ≤ P100. Book I. LC Violating or causing another to violate Title I.000 ≤ Fine ≤ P50. ILLEGAL ESTAFA RECRUITMENT LABOR LAW G. in addition. the penalty shall be imposed upon the officer or officers of the corporation.I. 315 of the Revised Penal Code does not bar a conviction for illegal recruitment under the Labor Code. G. association or entity. 2(a) of Art. LC One convicted for illegal recruitment may still be convicted of estafa In People v. it is settled that a person who commits illegal recruitment may be charged and convicted separately of illegal recruitment under the Labor Code and estafa under par. 39. partnership. 2(a) of Art.” [People v. proof of criminal intent is necessary.000. [Rosita Sy vs. F. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. Ochoa (2011). he shall. It follows that one's acquittal of the crime of estafa will not necessarily result in his acquittal of the crime of illegal recruitment in large scale.1 LOCAL RECRUITMENT AGENCY Illegal recruitment and estafa are entirely different offenses and neither one necessarily includes or is necessarily included in the other. in the prosecution of which. People v. A person who is convicted of illegal recruitment may. Conversely.00 2 years ≤ Imprisonment ≤ 5 years OR P10. In the same manner. paragraph 2(a) of the Revised Penal Code. Double jeopardy will not set in because illegal recruitment is malum prohibitum. LC] Act Illegal recruitment constituting economic sabotage Licensee or holder or authority violating or causing another to violate Title I. be convicted of estafa by false pretenses or fraudulent acts under Article 315. Conviction for offenses under the Labor Code does not bar conviction for offenses punishable Penalty Life imprisonment AND Fine: P100. a person acquitted of illegal recruitment may be held liable for estafa. Book I.2 OFFENSE INVOLVING ECONOMIC SABOTAGE (LARGE-SCALE OR BY A SYNDICATE) by other laws. in which there is no necessity to prove criminal intent. LIABILITIES VS.UP LAW BOC LABOR STANDARDS E. association or entity responsible for violation. and vice versa. In every case. People (2010)] 1. If such officer is an alien. 315 of the Revised Penal Code. in addition to the penalties herein prescribed. conviction shall cause and carry the automatic revocation of the license or 19 . Cortez the Court explained that: “In this jurisdiction.

and is thus liable under Sec. 7. shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages. Sagayaga (2004)] II. Inc. together with his employer. [Becmen Service Exporter and Promotion. ILLEGAL RECRUITMENT INVOLVING MIGRANT WORKERS [Sec. This joint and solidary liability imposed by law against recruitment agencies and foreign employers is meant to assure the aggrieved worker of immediate and sufficient payment of what is due him.g. Inc. in addition to the penalties herein prescribed. Without license/authority 6 years and 1 day ≤ Imprisonment ≤ 12 years AND P500k ≤ Fine ≤ P1M If the offender is an alien. Severance of relations between local agent and foreign principal does not affect liability of local recruiter. Spouses Cuaresma. She was a high corporate officer who had direct participation in the management.R. v. (3) If the recruitment/placement agency is a juridical being. 6 of RA 8042. In this case the appellant was both the APSC Vice-President-Treasurer and the Assistant General Manager. both of which are authorized to use the same exclusively to promote their objectives. be deported without further proceedings. April 7. conviction shall cause and carry the automatic revocation of the license or registration of the recruitment/manning agency. 182978-79.R. The terms “control. administration. and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Development Board or the National Seamen Board.UP LAW BOC LABOR STANDARDS authority and all the permits and privileges granted to such person or entity under this Title. management or direction” broadly cover all phases of business operation. Common Rules on Liability (1) Employees of a company corporation engaged in illegal recruitment may be held liable as principal. Private employment agencies are held jointly and severally liable with the foreignbased employer for any violation of the recruitment agreement or contract of employment. the corporate officers and directors and partners as the case may be. marketing and finances. if it is shown that he actively and consciously participated in illegal recruitment. among others. direction and control of the business of the corporation. G. including the aspects of administration. illegally recruited person below 18 years old OR 2. [People vs. G. E. as the case may be. [Becmen Service Exporter and Promotion. (4) Foreign employer shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the 20 11 . RA 8042 as amended by RA 10022] Act Illegal recruitment Illegal recruitment constituting economic sabotage Prohibited Act/s LABOR LAW Penalty (2) Local Employment Agency is solidarily liable with foreign principal. April 7. he or she shall. Spouses Cuaresma. 182978-79. lending institutions. 2009] 12 years and 1 day ≤ Imprisonment ≤ 20 years AND P1M ≤ Fine ≤ P2M Life imprisonment AND P2M ≤ Fine ≤ P5M Maximum penalty: 1. 2009] In every case. training school or medical clinic. v.

10022]). death and disability compensation and repatriation LABOR LAW Consequently.  all acts of its officials. including but not limited to payment of wages. The SC said that the argument made was a misapplication of the theory of imputed knowledge: “The theory of imputed knowledge ascribes the knowledge of the agent.A. Prescriptive Periods (1) Simple Illegal Recruitment – 5 years (2) Illegal Recruitment involving Economic Sabotage – 20 years. not the other way around. Book II. to the principal. knowledge of the former of existing labor and social legislation in the Philippines is binding on the latter. The knowledge of the principal-foreign employer cannot. 1 (f) (2-5)] 21 .” Common Rules on Illegal Recruitment (Local or Overseas) Venue A criminal action arising from illegal recruitment shall be filed with the RTC of the province or city: (1) where the offense was committed or (2) where the offended party actually resides at the time of the commission of the offense. notice to the agent is notice to the principal. Since the local employment agency is considered the agent of the foreign employer.UP LAW BOC LABOR STANDARDS contract. R.A. Sec. death and disability compensation and repatriation. Solidary Liability Solidary Liability of Agent and Principal The written application for a license to operate a private employment or manning agency shall be submitted with. It may be good to note the case of Sunace International Management Services Inc v NLRC. [Sec. (2) Shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract. notice to the former of any violation thereof is notice to the latter. January 25. (Sec. employees and representatives done in connection with recruitment and placement. 161757. among others. be imputed to its agent Sunace. death and disability compensation and repatriation (1) Shall assume full and complete responsibility for  all claims and liabilities which may arise in connection with the use of license. the principal. Rule II. 2006 where the theory of imputed knowledge was mentioned because it was used to try and make an agency liable. 8042 [this part was not amended by R. (3) Shall guarantee compliance with the existing labor and social legislations of the Philippines and of the country of employment of recruited workers [POEA Rules.A. GR No. Simply put. R. 10022]]. therefore. a VERIFIED UNDERTAKING stating that the applicant: Foreign Employer Foreign employer shall assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract. 12. including but not limited to payment of wages. Theory of imputed knowledge This is a doctrine in agency which states that the principal is chargeable with and bound by the knowledge of or notice to his agent received while the agent was acting as such.A. 9. Sunace. 8042 [this part was not amended by R. including but not limited to payment of wages. employer Xiong.

x xx In case of termination of overseas employment without just. whichever is less. R. May 30. valid or authorized cause as defined by law or contract. Gallant Maritime Services. the three months’ salary rule applies [Flourish Maritime Shipping v. . March 24.R.” 22 . but did not apply the Operative Fact doctrine: “As an exception to the general rule.UP LAW BOC LABOR STANDARDS Purpose of Solidary Liability The fact that the manning agency and its principal have already terminated their agency agreement does not relieve the former of its liability. No.A. to assure aggrieved workers of immediate and sufficient payment of what is due them. 10022] In case of termination of overseas employment  without just. 177948. whichever is less. NLRC (2003)] LABOR LAW Serrano ruling: invalidated the 3-month salary cap The issue in this case is the constitutionality of the last clause of Sec. this will render nugatory the very purpose for which the law governing the employment of workers for foreign jobs abroad was enacted. 2009) Pre-Termination of Contract of Migrant Worker [Sec. August 05. Gallant Maritime that limiting wages that should be recovered by an illegally dismissed overseas worker to three months is both a violation of due process and the equal protection clauses of the Constitution.” The worker shall be entitled to the full reimbursement of: (1) his placement fee and the deductions made with interest at twelve percent (12%) per annum (2) plus his salaries for the unexpired portion of his employment contract OR for three (3) months for every year of the unexpired term. it would be good to note the case of Sameer Overseas Placement Agency v Cabiles (G.R. In view of the reenactment of the section in RA 8042 which was declared unconstitutional in Serrano. as amended by R. The Court affirmed the Serrano ruling. valid or authorized cause as defined by law or contract. 8042. 2008] “We reiterate our finding in Serrano v.. still extends up to and until the expiration of. The agency agreement with the principal even if ended as between them. Almanzor. No. the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum. March 14. plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term. G. G. 167614. RA 8042 was declared unconstitutional while the case was pending in the SC. 2011).A. the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement. [OSM Shipping Phil. The Court held that said clause is unconstitutional for being an invalid classification. (Serrano v. Thenamaris Ship’s Management and Intermare Maritime Agencies. the doctrine applies only as a matter of equity and fair play. or  any unauthorized deductions from the migrant worker's salary In the case of Yap v. Money Claims. 170139. Inc. 10. 10. Thus.R. v. 179532. that is. No. (G. Inc.R. 2014) where the SC ruled: Rule before Serrano: 3-month salary rule applies The employment contract involved in the instant case covers a two-year period but the overseas contract worker actually worked for only 26 days prior to his illegal dismissal. Otherwise. Inc.10 of RA 8042: Sec. No. in violation of the equal protection clause.

(4) Name hirees – those individuals who are able to secure contracts for overseas employment on their own efforts and representation without the assistance or participation of any agency. inspect the premises. Note that they likewise constitute illegal recruitment under R. General Orders and Letters of Instructions. Their hiring. B. 18.2.A. and act on violations of any provisions of this Title. (Article 35. LC) Note the old case of Salazar v Achacoso. (Part III.UP LAW BOC LABOR STANDARDS LABOR LAW Who can suspend or cancel the license? (1) DOLE Secretary (2) POEA Administrator A. 81510 March 14. books of accounts and records of any person or entity covered by this Title. REGULATORY AND VISITORIAL POWERS OF THE DOLE SECRETARY Regulatory powers [Art. (2) International organizations. Rule III of the POEA Rules Governing Overseas Employment as amended in 2002) B. 37. Diaz. SUSPENSION OR CANCELLATION OF LICENSE OR AUTHORITY The Secretary of Labor shall have the power to suspend or cancel any license or authority to recruit employees for overseas employment for  violation of rules and regulations issued by the Department of Labor. 8042 as amended by R. REGULATIONS AND ENFORCEMENT B. the Overseas Employment Development Board.R. (Art. at any time. 10022. LC] The Secretary of Labor or his duly authorized representatives may. nonetheless. has to be processed through the POEA. G. and the National Seamen Board  violation of the provisions of this and other applicable laws. 259 SCRA 441 (1996)] Exceptions: (1) Members of the diplomatic corps. 23 . DIRECT HIRING General Rule: No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor. LC] The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title. of Labor. [People v. The acts prohibited under Article 34 are grounds for suspension or cancellation of license.A. No. 1990 which declared that Article 38 of the LC is unconstitutional and that the Secretary of Labor and Employment cannot issue a warrant of arrest. LC) The power to suspend or cancel any license or authority to recruit employees for overseas employment is concurrently vested with the POEA and the Secretary of Labor. (3) Such other employees as may be allowed by the Sec. require it to submit reports regularly on prescribed forms. 36.1. Visitorial powers [Art.

REMITTANCE OF EXCHANGE EARNINGS LABOR STANDARDS FOREIGN LABOR LAW B. or holder of authority: (a) To charge or accept. teachers. placement vacancies. information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code. (f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines. engineers. departures and such other matters or information as may be required by the Secretary of Labor. 857] The amount of one’s salary required to be remitted depends on the type or nature of work performed by the employee. (e) To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency. dependents or beneficiaries of migrant workers residing with the latter abroad. any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor. directly or indirectly. nurses and other professional workers whose contract provide for free board and lodging – 70% (4) All other professional workers whose employment contracts do not provide for free board and lodging facilities – 50% (5) Domestic and other service workers – 50% (6) All other workers not falling under the aforementioned categories – 50% (7) Performing artists – 50% Individuals exempted from the mandatory remittance requirement: (1) The immediate family members. The following are the percentages of foreign exchange remittance required from various kinds of migrant workers: (1) Seaman or mariner – 80% of their basic salary (2) Workers for Filipino contractors and construction companies – 70% (3) Doctors.3. 24 . LC) Amount required to be remitted [Executive Order No. remittance of foreign exchange earnings. separation from jobs. PROHIBITED ACTIVITIES Prohibited practices It shall be unlawful for any individual.UP LAW BOC B.4. (i) To substitute or alter employment contracts approved and verified by the Department of Labor from the time of It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign earnings to their families. licensee. (d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment. dependents. 22. (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives. or to make a worker pay any amount greater than that actually received by him as a loan or advance. testimony. (h) To fail to file reports on the status of employment. (c) To give any false notice. (b) To furnish or publish any false notice or information or document in relation to recruitment or employment. entity. (2) Filipino servicemen working within US military installations. (3) Immigrants and Filipino professionals working with the United Nations and its agencies or other specialized bodies. and/or beneficiaries in the country (Art.

To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations. (c) To give any false notice. (b) To furnish or publish any false notice or information or document in relation to recruitment or employment. information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code. 34. separation from jobs. employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment. Failure to actually deploy a contracted worker without valid reason as determined . or has contacted or is supported by any union or workers' organization. (d) To include or attempt to induce a worker already employed to quit his employment (h) (i) (j) (k) 25 LABOR LAW in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment. which include the act of reprocessing workers through a job order that pertains to nonexistent work. other than those authorized under the Labor Code and its implementing rules and regulations. whether a non-licensee. or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance. (j) To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency. departures and such other matters or information as may be required by the Secretary of Labor and Employment. testimony. To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines. remittance of foreign exchange earnings. licensee or holder of authority: (a) To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment. non-holder. LC) (e) (f) (g) Other prohibited acts It shall likewise include the following acts. and To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations. or for any other reasons. To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed. For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of travel agency. or work with a different employer whether registered or not with the POEA. (Art.UP LAW BOC LABOR STANDARDS actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor. joined or supported. work different from the actual overseas work. whether committed by any person. placement vacancies. To fail to submit reports on the status of employment. or for the purpose of documenting hired workers with the POEA. To substitute or alter to the prejudice of the worker.

as provided under the compulsory worker's insurance coverage. (2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions. (l) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment. except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner. except for recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings. in cases where the deployment does not actually take place without the worker's fault. either personally or through a guarantor or accommodation party. entities or persons. and (m) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency. postdated checks in relation to the said loan. instruction or schooling of any kind only from specifically designated institutions. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage. (6) For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications. (3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own. institutions. RA 8042 as amended) In addition to the acts enumerated above. LABOR LAW (5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training. and (7) For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees. it shall also be unlawful for any person or entity to commit the following prohibited acts: (1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum. which will be used for payment of legal and allowable placement fees and make the migrant worker issue. (4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics. premium or other insurance related charges. entities or persons.UP LAW BOC LABOR STANDARDS by the Department of Labor and Employment. 26 . 6. seminar. entities or persons. (Sec.

but Article 212(m) does not. Sec. if it is created by the General Corporation Law. MANAGERIAL EMPLOYEES Two definitions of “managerial employees” in the Labor Code: A. the test in determining whether a government owned corporation is subject to the Labor Code or the Civil Service law is finding out what created it – if its created by a special charter. 82) (4) Members of the family of the employer who are dependent on him for support (Art. (Art. However. v. (5) Domestic helpers and persons in personal service of another (Art. supervisors are allowed to form. 76) (2) Managerial Employees including members of the managerial staff (Art. In effect. LC] Those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof and to other officers or members of the managerial staff. however. 282). join or assist a labor union. including employees of GOCCs. are governed by the Civil Service rules and regulations. being part of the exemption of managerial employees as defined in Article 82. 82. 82). LC] One who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire. in the interest of the employer. IRR] Managerial employees are exempted from the coverage of Book III Articles 83 through 96 if they meet all of the following conditions: (1) Their primary duty consists of the management of the establishment in 27 . Constitution. General rule: Shall apply to employees in all establishments and undertakings whether for profit or not. All employees not falling within any of the above definitions are considered rank and file employees for purposes of this Book. 2(i) Art. Supervisors are not. then.1.2.UP LAW BOC LABOR STANDARDS III. managerial employees in Article 82 includes supervisors. Art. lay off. suspend. Labor Code] [Art. 82. 141. [PNOC Energy Development Corp. discharge. IX-B of 1987 Phil. 82. GOVERNMENT EMPLOYEES The terms and conditions of employment of all government employees. 2(b). entitled to the benefits under Book III Articles 83 through 96. NLRC (1991)] Characteristics of managerial employees [Book 3. effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. recall. 82) (3) Field Personnel (Art. RA 10361) (6) Workers who are paid by result as determined by DOLE regulation (Art. only those created by original charter: It follows that under Book V. assign or discipline employees. Civil Service Law applies. not by the Labor Code (Art. 82. not all GOCCs are governed by the Civil Service Rules. Labor Standards LABOR LAW A. transfer. (Azucena) Following Sec. 82 covers more people than that in Article 212 (m) as Article 82 also includes managerial staff. 82) [Art. then the Labor Code applies. Supervisory employees are those who. LC) Exceptions (NOT Covered): (1) Government employees (Art. A. 212 (m). COVERAGE [Art. Rule 1. The definition in Art.

141. In so doing. Hence. Rule 1. and who are dependent on him for their support. [Far East Agricultural Supply v.3. FIELD PERSONNEL which they are employed or of a department or sub-division thereof. (3) They have the authority to hire or fire employees of lower rank.] "Domestic or household service" shall mean service in the employer’s home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer’s household including services of family drivers. or knowledge.4. A. NLRC (1998)] Managerial Staff also included as they are considered managerial employees as well [Book 3. the fact remains that throughout the duration of their work they are under the effective control and supervision of petitioner through the vessel’s patron or master. (Art. IRR] Officers or members of a managerial staff are also exempted if they perform the following duties and responsibilities: (1) Their primary duty consists of the performance of work directly related to management policies of their employer. OR (b) Execute under general supervision work along specialized or technical lines requiring special training. (3) (a) Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof. Non-agricultural employees: (1) Who regularly perform their duties away from the principal place of business or branch office of the employer AND (2) Whose actual hours of work in the field cannot be determined with reasonable certainty. LC. (2) They customarily and regularly direct the work of two or more employees therein.UP LAW BOC LABOR STANDARDS LABOR LAW A. [Mercidar Fishing Corporation v. an inquiry must be made as to whether or not the employee’s time and performance are constantly supervised by the employer. the fishermen are not “field personnel”. (2) Customarily and regularly exercise discretion and independent judgment. 28 . special assignments and tasks. DOMESTIC HELPERS [Art. under general supervision. are given particular weight. OR (c) Execute. experience. In order to determine whether an employee is a field employee.5. Sec. 82. it is also necessary to ascertain if actual hours of work in the field can be determined with reasonable certainty by the employer. DEPENDENT FAMILY MEMBERS Workers who are family members of the employer. 2(c). (2) and (3) above. or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees. are outside the coverage of this Title on working conditions and rest periods. LC) Legal Test: Control and Supervision of ER Although the fishermen perform nonagricultural work away from petitioner’s business offices. (4) Who do not devote more than 20% of their hours worked in a work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1). Lebatique [2007)] A.

A. COVERAGE/EXCLUSIONS See previous section (A. Rule 1. becomes an industrial worker entitled to receive the wages and benefits flowing from such status. cook. who is later assigned to work as a watcher and cleaner of the employer’s business establishment. NORMAL HOURS OF WORK General Rule: 8-Hour Labor Law The normal hours of work of any employee shall not exceed eight (8) hours a day. Rule VII. 71729. Rule 1. nursemaid or “yaya”. WORKERS PAID BY RESULT [Book 3. “takay. cited by Azucena] [RA 10361 Art. cited by Azucena] (2) A family cook. Zaragosa and B. including those who are paid on piece work. 0183. [Cadiz v. That their work output might have been affected by the change in their specific work assignments does not necessarily imply that any resulting reduction in pay is tantamount to constructive dismissal.7. Sec. PERSONS IN PERSONAL SERVICE OF ANOTHER Workers under piece-rate employment have no fixed salaries and their compensation is computed on the basis of accomplished tasks. HOURS OF WORK B.1. Philippine Sinter Corp. IRR. Sec. Coverage) which deals with the general rules of coverage and exclusions for the applicability of the Conditions of Employment provisions in Book III of the Labor Code. OP Decision No. or where such rates have been fixed by the Secretary of Labor and Employment in accordance with the aforesaid Section. [Azucena] B.] Workers who are paid by results. NLRC Case No.6.UP LAW BOC LABOR STANDARDS Note: The Kasambahay Law (RA 10361) has redefined “domestic worker” or “kasambahay”: LABOR LAW Associates. [Art. IRR] Domestic servants and persons in the personal service of another if they perform such services in the employer’s home which are usually necessary or desirable for the maintenance and enjoyment thereof or minister to the personal comfort convenience or safety of the employer as well as the members of his employer’s household. [Best Wear Garments v. Exclusivity of function required Note that the definition contemplates a domestic servant who is employed in the employer’s home to minister exclusively to the personal comfort and enjoyment of the employer’s family. 4 (d).” “pakiao” or task basis. gardener or laundry person but shall exclude any person who performs domestic work only occasionally or sporadically and not on an occupational basis. 83. it has been held that the following personnel are NOT domestic employees: (1) House personnel hired by a ranking company official but paid by the company itself to maintain a staff house provided for the official. De Lemos and Ocubillo (2012)] [Book 3. 1. [Villa v. Sec. A. It is the prerogative of the management to change their assignments or to transfer them. LC] Note: Article 83 of the Labor Code only set a maximum of number of hours as "normal hours of work" but did not prohibit work of less 29 .2. 2 (d). Book Three of these regulations. Thus. and other nontime work if their output rates are in accordance with the standards prescribed under Section 8.] Domestic worker or “Kasambahay” refers to any person engaged in domestic work within an employment relationship such as but not limited to the following: general househelp. 2 (e).

par. [Art. if the work was with the knowledge of his employer or immediate supervisor. For purposes of this Article. Sec. or (b) If the interval is too brief to be utilized effectively and gainfully in the employee’s own interest. Exception to the 8-Hour Law: Work Hours of Health Personnel Health personnel in: (1) Cities and municipalities with a population of at least one million (1. 4. or the employee could not abandon his work at the end of his normal working hours because he had no replacement. Sec. may rest completely and may leave his work place to go elsewhere.000. dietitians. [Book III. "health personnel" shall include resident physicians. par. 84. in which case. 2. [Azucena] Compensable Hours of Work (Art. (3) If the work performed was necessary. laboratory technicians. Rest period – short duration or “coffee break” Rest periods of short duration during working hours shall be counted as hours worked. 84. LC) Hours worked shall include: (1) All time during which an employee is required to be on duty or to be at a prescribed workplace. IRR] (1) All hours are hours worked which the employee is required to give his employer. 2. pharmacists. attendants and all other hospital or clinic personnel. exclusive of time for meals. nutritionists. LC] Rest periods or coffee breaks running from five (5) to twenty (20) minutes shall be considered as compensable working time. AND (2) All time during which an employee is suffered or permitted to work. social workers. all time spent for such work shall be considered as hours worked. Rule 1. whether within or outside the premises of his work place. except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours. regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion. psychologists. (4) The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either: (a) If the imminence of the resumption of work requires the employee’s presence at the place of work. paramedical technicians.000) OR (2) Hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day. (2) An employee need not leave the premises of the work place in order that his rest period shall not be counted. Rule 1. or it benefited the employer.UP LAW BOC LABOR STANDARDS than eight hours [Legend Hotel v. for five (5) days a week. Realuyo (2012)] LABOR LAW General principles in determining if time is considered as hours worked [Book III. 83. [Art. 7. it being enough that he stops working. they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. IRR] 30 . midwives. nurses. LC] Medical secretaries are also considered clinic personnel.

IRR. Lectures. meetings. Necessary Work After Normal Hours If the work performed was necessary. or it benefited the employer. meetings. Sec. either if the imminence of the resumption of work requires the employee’s presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employee’s own interest. all the time spent for such work shall be considered as hours worked if the work was with the knowledge of his employer or immediate supervisor. 1978] [Book 3. meetings. and other similar activities shall not be counted as working time if ALL of the following conditions are met: (1) Attendance is outside of the employee’s regular working hours. trainings Attendance at lectures. or the employees can use the time effectively for their own interest. Sec. and (3) The employee does not perform any productive work during such attendance. [Book III. IRR] Work interruption due to brownouts Brownouts of short duration. 4-c OR] On call An employee who is: (1) Required to remain on call in the employer’s premises or so close thereto (2) That he cannot use the time effectively and gainfully for his own purpose shall be considered as working while on call. Rule 1. 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. the time may not be treated as hours worked if the employees can leave their workplace or go elsewhere whether within or without the work Note: (1) Attendance in lectures. IRR. or the employee could not abandon his work at the end of his normal working hours because he had no replacement. 31 . Rule 1. Rule 1. (2) Attendance is in fact voluntary. 6] If they last more than 20 minutes. 5(b). and training periods sanctioned by the employer are considered hours worked. but not exceeding 20 minutes. Sec. Rule 1 Sec. IRR] Inactive due to work interruptions The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either: (1) If the imminence of the resumption of work requires the employee's presence at the place of work OR (2) If the interval is too brief to be utilized effectively and gainfully in the employee's own interest. [Book III. [Policy Instruction No. 36.] An employee need not leave the premises of the work place in order that his rest period shall not be counted it being enough that he stops working may rest completely and may leave his work place to go elsewhere whether within or outside the premises of his work place. 4(d). Note: The time during which an employee is inactive by reason of work interruptions beyond his control is considered working time. [IRR. [Book III. In this case.UP LAW BOC LABOR STANDARDS LABOR LAW premises. 4(c). Rule 1. Book III. the employer may extend the working hours beyond the regular schedule on that day to compensate for the loss of productive manhours without being liable for overtime pay. training programs. Book III. shall be treated as hours worked. Sec. Sec. Rule 1. whether used productively by the employees or not. May 22. 4 (b).

Where an employee is required to report at a meeting place to receive instructions or to perform other work there. If these requisites are complied with. 32 . (b) When travel is done through a conveyance furnished by the employer. v. the period of such rest shall not be counted. these breaks cannot be considered as absences within the meaning of the law for which deductions may be made from monthly allowances. and it is for this reason that. Work Hours of Seamen Seamen are required to stay on board of their vessels by the very nature of their duties.UP LAW BOC LABOR STANDARDS (2) Attendance in CBA negotiations or grievance meeting is compensable hours worked. but whether they actually rendered service in excess of said Participation in strikes is NOT compensable working time. Travel away from home is worktime when it cuts across the employee’s workday. whether within or outside the premises of said factory. (3) Attendance in hearings in cases filed by the employee is NOT compensable hours worked. whether they are on board and cannot leave ship beyond the regular eight working number of hours. [National Development Co. to go somewhere else. they are given free living quarters to be on board. shop or boat. [Luzon Stevedoring Co. University of Pangasinan (1984)] Travel time [Department of Labor Manual] (1) Travel from home to work – An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home-to-work travel which is NOT worktime. The correct criterion in determining whether or not sailors are entitled to overtime pay is not. Luzon Marine Department Union (1957)] Semestral Break of Private School Teachers Regular full-time teachers are entitled to salary during semestral breaks. in addition to their regular compensation. These semestral breaks are in the nature of work interruptions beyond the employees’ control.Travel that keeps an employee away from home overnight is travel away from home. may rest completely and leave or may leave at his will the spot where he actually stays while working. (3) Travel away from home . A laborer need not leave the premises of the factory. therefore. shop or boat in order that his period of rest shall not be counted. [University of the Pangasinan Faculty Union v. CIR (1962)] (2) Travel that is all in the day’s work – Time spent by an employee in travel from jobsite to jobsite during the workday. must be counted as hours worked. v. (d) Travel is done under the supervision and control of the employer. is not counted as working time only where the work is broken or is not continuous. LABOR LAW Idle time The idle time that an employee may spend for resting and dining which he may leave the spot or place of work though not the premises of his employer. As such. it being enough that he "cease to work". It could not have been the purpose of the law to require their employers to pay them overtime pay even when they are not actually working. the travel from the designated place to the workplace is part of the day’s work. The time is hours worked not only on regular working hours but also during the corresponding hours on non-working days. except: (a) When called to travel during emergency. (c) Travel is done under vexing and dangerous circumstances.

Their effectivity and implementation shall be temporary in nature. the employers and employees are encouraged to explore alternative schemes under any agreement and company policy or practice to cushion and mitigate the effect of the loss of income of the employees. Reduction of Workdays The normal workdays per week are reduced but should not last for more than 6 months. chemicals and processes or operating under conditions where there are airborne contaminants. 02. shall not exceed 12 hours a day or 48 hours a week. NLRC. Flexi-holidays The employees agree to avail the holidays at some other days provided there is no diminution of existing benefits as a result of such arrangement. et. This agreement may be expressed through collective bargaining or other legitimate workplace mechanisms of participation such as labor management councils. (2) In firms using substances.. of the adoption of any of the flexible work arrangements. employee assemblies or referenda. [Cagampan. 2. 02. v. No. workdays. et. al.I FLEXIBLE WORK ARRANGEMENTS [DOLE Advisory No. Rotation of Workers The employees are rotated or alternately provided work within the workweek 33 . there must be a certification from an accredited health and safety organization or practitioner from the firm’s safety committee that work Under the following work arrangements. The total hours of work. [Prangan v. April 15 (1998)] Compressed Work Week (CWW) [DOLE Advisory No. Burden of Proof: When an employer alleges that his employee works less than the normal hours of employment as provided for in the law. the normal workday goes beyond eight hours without the corresponding overtime premium. NLR (1991)] LABOR LAW Forced Leave Employees are required to go on leave for several days or weeks utilizing their leave credits of there are any. or the employer is obliged to pay the worker the overtime premium in excess of said work hours. before an employee may avail of said benefit. Proof of Hours worked Entitlement to overtime pay must first be established by proof that said overtime work was actually performed. al. 126529. however.UP LAW BOC LABOR STANDARDS number of hours.R. Series of 2004] Under the CWW scheme. he bears the burden of proving his allegation with clear and satisfactory evidence. and workweek. the employer shall notify the Department through the Regional Office which has jurisdiction over the workplace. Conditions for CWW (1) The CWW scheme is undertaken as a result of an express and voluntary agreement of majority of the covered employees or their duly authorized representatives. human carcinogens or noise prolonged exposure to which may pose hazards to employees’ health and safety. NLRC (1998)] Broken-time Schedule The works schedule is not continuous but the work hours within the day or week remain. Prior to implementation. [Lagatic v. Series of 2004] These are alternative arrangements or schedules other than the standard work hours. G.

thus: The compressed workweek scheme was originally conceived for establishments wishing 34 . as set in the OSHS.UP LAW BOC LABOR STANDARDS beyond eight hours is within threshold limits or tolerable levels of exposure. 02-04) LABOR LAW to save on energy costs.3. (2) Where the establishment regularly operates not less than sixteen (16) hours a day. Yee Sing (1959). 21 sanctions the waiver of overtime pay in consideration of the benefits that the employees will derive from the adoption of a compressed workweek scheme. and that it will spare them for at least another day in a week from certain inconveniences that are the normal incidents of employment. in exchange for the benefits above cited that will accrue to the employees.O. (2) Consistent with Art. dressing up for work. work beyond eight hours will not be compensable by overtime premium provided the total number of hours worked per day shall not exceed twelve (12) hours. NLRC. through the Regional Office having jurisdiction over the workplace. the generally observed workweek of six (6) days is shortened to five (5) days but prolonging the working hours from Monday to Friday without the employer being obliged for pay overtime premium compensation for work performed in excess of eight (8) hours on weekdays. promote greater work efficiency and lower the rate of employee absenteeism. it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals (Art. etc. No. that can be devoted to rest. or an additional 52 off-days a year. travel time spent. rest day pay or leaves in accordance with law or applicable collective bargaining agreement or company practice. 85 of the LC. studies and other personal matters. exposure to dust and motor vehicle fumes. Reversion to the normal eighthour workday shall not constitute a diminution of benefits. (3) Adoption of the CWW scheme shall in no case result in diminution of existing benefits. LC) Exception: Employees may be given a meal period of not less than twenty (20) minutes provided that such shorter meal period is credited as compensable hours worked of the employee: (1) Where the work is non-manual work in nature or does not involve strenuous physical exertion. (3) The employer shall notify DOLE. longer weekends. [Bisig Manggagawa sa Tryco v. such as commuting to and from the workplace. Thus. of the adoption of the CWW scheme. (2008)] Effects of CWW (1) Unless there is a more favorable practice existing in the firm. B. MEAL BREAK General Rule: Subject to such regulations as the Secretary of Labor may prescribe. under this scheme. employees under a CWW scheme are entitled to meal periods of not less than 60 minutes. In any case. The notice shall be in DOLE CWW Report Form attached to this Advisory. et al. any work performed beyond 12 hours a day or 48 hours a week shall be subject to overtime premium. There shall be no impairment of the right of the employees to rest days as well as to holiday pay. savings on meal and snack expenses. leisure. Rationale Although the right to overtime pay cannot be waived as per Cruz v. among others. 85. D. Workers favor the scheme considering that it would mean savings on the increasing cost of transportation fares for at least one (1) day a week. family responsibilities. (DOLE Advisory No.

Jur. 30. Exception to the Exception: Shortened meal breaks upon the employees’ request – NOT compensable. s. also Cilindro: BWCWHSD Opinion No. 30 minutes) must be compensable. Exception: It becomes compensable: (1) Where the lunch period or meal time is predominantly spent for the employer’s benefit. L-15422. Labor Laws and Social Legislation] (2) Meal periods of 1 hour is deemed compensable when the employee is on continuous shift. [Philippine Airlines v. Sec. CIR. Employees are not prohibited from going out of the premises as long as they return to their posts on time. No. (4) The value of the benefits derived by the employees from the proposed work arrangement is equal to or commensurate with the compensation due them for the shortened meal period as well as the overtime pay for 30 minutes as determined by the employees concerned. and (4) Where the work is necessary to prevent serious loss of perishable goods [Book 3. 7 par 1. Nov. 27. If the so-called meal time is less than 20 minutes. v. 7. it becomes only a REST PERIOD and is considered working time. Duka. Nov. 197. (2) There will be no diminution whatsoever in the salary and other fringe benefits of the employees existing before the effectivity of the shortened meal period. 1989. 1998] Conditions for shortened meal breaks upon employee’s request. 881. IRR) Note: To shorten meal time to less than 20 minutes is not allowed.UP LAW BOC LABOR STANDARDS (3) In case of actual or impending emergencies or there is urgent work to be performed on machineries.R. (5) The overtime pay of the employees will become due and demandable if ever they are permitted or made beyond 4:30pm. G. [Azucena citing 31 Am. Book III. 1962) (3) Shortened meal period of less than 1 hour (say. Nowhere in the law may it be inferred that employees must take their meals within the company premises. 35 . equipment or installations to avoid serious loss which the employer would otherwise suffer. (3) The work of the employees does not involve strenuous physical exertion and they are provided with adequate “coffee breaks” in the morning and afternoon. (Sec. IRR] LABOR LAW The employees themselves may request that the meal period be shortened so that they can leave work earlier than the previously established schedule. (1) The employees voluntarily agree in writing to a shortened meal period of 30 minutes and are willing to waive the overtime pay for such shortened meal period. and (6) The effectivity of the proposed working time arrangement shall be of temporary duration as determined by the Secretary of Labor. (National Development Co. NLRC (1999)] Synthesis of the Rules General Rule: Meal periods are NOT compensable. Rule 1. [Drilon: Letter to Kodak Philippines. Rule I.

must be included in the computation of the overtime pay.UP LAW BOC LABOR STANDARDS B. [SEE: p. [Azucena citing Armour v.5. Philippine Refining Co (1981)] B. Computation of additional compensation Art. 89. OVERTIME WORK. Sec. OVERTIME PAY BUT when the overtime work was performed on the employee’s rest day or on special days or regular holidays (Art. Wantock] Base of Computation: Regular wage – means regular base pay. Rule I Sec. LC.4. LC. 87. The facts may show that the employer was engaged or was waiting to be engaged. [Book 3. it excludes money received in different concepts such as Christmas bonus and other fringe benefits. v. Legal test: Whether waiting time constitutes working time depends upon the circumstances of each particular case. 90. IRR] Waiting time spent by an employee shall be considered as working time if waiting is an integral part of his work or the employee is required or engaged by the employer to wait. For purposes of computing overtime and other additional remuneration as required by this Chapter the "regular wage" of an employee shall include the cash wage only without deduction on account of facilities provided by the employer. [Book III. LC] Any employee may be required by the employer to perform overtime work in any of the following cases: (1) When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive. [National Shipyard and Steel Corp. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof. IRR] 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. Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work. issued by the Bureau of Working Conditions. 2006] Overtime compensation is additional pay for service or work rendered or performed in excess of eight hours a day by employees or laborers covered by the Eight-hour Labor Law. 87. an additional compensation equivalent to his 36 . the premium pay. v. (2) When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or Overtime on ordinary working day Art. WAITING TIME LABOR LAW regular wage plus at least twenty five percent (25%) thereof. [Bisig ng Manggagawa ng Philippine Refining Co. Overtime work on holiday or rest day Art. 19 of Handbook on Workers’ Statutory Monetary Benefits. PEMA (1982)] Emergency overtime [Art. Rule 1. The controlling factor is whether waiting time spent in idleness is so spent predominantly for the employer’s benefit or for the employee’s. LC. 93 and 94). CIR (1961)] Rationale There can be no other reason than that he is made to work longer than what is commensurate with his agreed compensation for the statutorily fixed or voluntary agreed hours of labor he is supposed to do. 5(b). 5(a). [PNB v.

or equipment. the receipt of overtime pay will not preclude the right to night differential pay. The latter is payment for work done during the night while the other is payment for the excess of the regular eight-hour work. installations. 87) requires that an employee be paid all overtime compensation notwithstanding any agreement to work for a lesser wage. unless it is a rest day. (4) A given day is considered an ordinary day. [Cruz v. additional 25% of the basic hourly rate. in order to avoid serious loss or damage to the employer or some other cause of similar nature. typhoon. Exception: Express approval by a superior NOT a requisite to make overtime compensable: (a) If the work performed is necessary. 89 (2) Additional compensation is demandable only if the employer had knowledge and consented to the overtime work rendered by the employee. and (5) Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. additional 30% of the basic hourly rate. [Naric v. (a) For ordinary days. or other disaster or calamity.UP LAW BOC LABOR STANDARDS impending emergency in the locality caused by serious accidents. [Manila Railroad Co. fire. flood. Yee Sing (1959)] Exception: When the waiver of overtime pay is in consideration of benefits and privileges which may be more than what will accrue to 37 . CIR (1952)] Note: However. v. epidemic. (4) When the work is necessary to prevent loss or damage to perishable goods. (b) For rest day/special day/holiday. Consequently. LC] Overtime pay does not preclude night differential pay When the tour of duty of a laborer falls at nighttime [between 10:00pm and 6:00am]. or (b) That the employee could not abandon his work at the end of his eight-hour work because there was No Waiver of Overtime Pay The right to overtime pay cannot be waived. LABOR LAW no substitute ready to take his place. [Global Incorporated v. or that it benefited the company. such an agreement or "waiver" will not prevent an employee from recovering the difference between the wages paid the employee and the overtime compensation he or she is entitled to receive. The Labor Code (Art. [Art. earthquake. the Court has also ruled that a claim for overtime pay is NOT justified in the absence of a written authority to render overtime after office hours during Sundays and holidays. (3) When there is urgent work to be performed on machines. Atienza (1986)] (3) Compensation for work rendered in excess of the eight (8) normal working hours in a day. (5) Undertime does NOT offset overtime Undertime work on any particular day shall not be offset by overtime work on any other day. 88. Naric Workers Union (1959)] Synthesis of Rules (1) An employer cannot compel an employee to work overtime Exception: Emergency overtime work as provided for in Art. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required in this Chapter.

[Meralco Workers Union v. and (2) The mathematical result shows that the agreed legal wage rate and the overtime pay. including arrangements where they. are equal to or higher than the separate amounts legally due. 154. can be taken immediately to a place for appropriate treatment. the length of which shall be determined by the DOLE after consulting the labor organizations and employers. [Art. In other words. after childbirth is fixed pursuant to subparagraph (1) above. Transfer Night workers who are certified as unfit for night work. RA 10151] Measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such work: (1) Before and after childbirth. 38 . computed separately. If such is not practicable. shall be transferred to a similar job for which they are fit to work. MERALCO (1959)] to provide safe and healthful working conditions and adequate or reasonable facilities such as sleeping or resting quarters in the establishment and transportation from the work premises to the nearest point of their residence subject to exceptions and guidelines to be provided by the DOLE. they shall be granted the same benefits as other workers who are unable to work. [Art. NIGHT WORK. SHIFT Night worker Any employed person whose work requires performance of a substantial number of hours of night work which exceed a specified limit. LC] The additional compensation of 10% of an employee’s regular wage for each hour of work performed between 10pm and 6am. or to secure employment during such period. 86. This limit shall be fixed by the Sec of Labor after consulting the workers’ representatives/labor organizations and employers. [Art. for a period of at least sixteen (16) weeks. [Art. the overtime pay is built-in. 156. 155. 158.UP LAW BOC LABOR STANDARDS them in overtime pay. (b) During a specified time beyond the period. they shall have the right to undergo a health assessment without charge and to receive advice on how to reduce or avoid health problems associated with their work. in respect of which a medical certificate is produced stating that said additional periods are necessary for the health of the mother or child: (a) During pregnancy. 157. due to health reasons.6. (2) For additional periods. RA 1015] The conditions for validity of the arrangement are: (1) There is a clear written agreement knowingly and freely entered by the employee. when necessary. RA 10151] Composite or Package Pay NOT per se illegal Composite or “package pay” or “all-inclusive salary” is an arrangement where the employee’s salary includes the overtime pay. NLRC (2000)] B. The employers are likewise required Night shift differential [Art. RA 10151] Health Assessment At the worker’s request. the waiver MAY be permitted. RA 10151] Mandatory Facilities Suitable first-aid facilities shall be made available for workers. which shall be divided between the time before and after childbirth. [Damasco v. DIFFERENTIAL NIGHT LABOR LAW Women Night Workers [Art.

days—including special days and regular holidays—shall begin on the night before a calendar day. Rule 2. including government-owned and/or controlled corporations. piece.8. company policy or CBA may provide that in the case of night shift workers. are in particular. (c) Which is payable by an employer to an employee (d) Under a written or unwritten contract of employment for work done or to be done. and not for the general market. although referred to as part-time work. CONTRACT FOR PIECE OF WORK [Art. establishment. (4) Managerial employees as defined in Book Three of this Code.] A contract for the delivery at a certain price of an article which the vendor in the ordinary course of his business manufactures or procures for the general market. 1467. as determined by the Secretary of Labor and Employment. Organization) LABOR LAW (International Labor This excludes those forms of employment which.7. or other method of calculating the same. lodging. or for services rendered or to be rendered and (e) Includes the fair and reasonable value. temporary or intermittent employment. WAGES Definition (a) It is the remuneration or earnings. technical or structural reasons.UP LAW BOC LABOR STANDARDS Coverage [Book 3. The premium pay for the night shift also starts or ends at midnight. or in cases where hours of work have been temporarily reduced for economic. These days are reckoned as calendar days which start at midnight and end at the following midnight. C. capable of being expressed in terms of money. or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof. CC. IRR] All employees. B. purely commission basis. 1. PART-TIME WORK A single. or commission basis. (3) Domestic helpers and persons in the personal service of another. regular or voluntary form of employment with hours of work substantially shorter than those considered as normal in the 39 . B. is a contract of sale BUT if the goods are to be manufactured specially for the customer and upon his special order. or other facilities customarily furnished by the employer to the employee Work on special days Night shift employees are also entitled to the premium pay on special days and holidays. task. Sec. (2) Those of retail and service establishments regularly employing not more than five (5) workers. however designated. whether the same is on hand at the time or not. (5) Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis. However. The wage and benefits of part-time worker are in proportion to the number of hours worked. (b) Whether fixed or ascertained on a time. except: (1) Those of the government and any of its political subdivisions. the employment contract. it is a contract for a piece of work. irregular. of board. Rest days (night-off) Night shift employees are entitled to a weekly night-off (usually Saturday evening) or a weekly rest period of 24 hours beginning at the start of the night shift.

(5) Workers in registered cooperatives when so recommended by the Bureau of Cooperative Development upon approval of the Secretary of Labor.2. NCR-19 Definition Statutory minimum wage is the lowest wage rate fixed by law that an ER can pay his workers. “No work no pay” principle General Rule: the age old rule governing the relation between labor and capital or management and employee is that a "fair day's wage for a fair day's labor.UP LAW BOC LABOR STANDARDS Fair and reasonable value . the presumption is that these employees perform equal work. or to any person affiliated with the employer. if they are performing similar functions and responsibilities under similar working conditions should be paid equally. regardless of their position. garnishment or attachment [Gaa vs. [IRR. [Art. designation. Hon. and irrespective of the method by which their wages are paid. where applicable. [International School Alliance of Educators v. (3) Homeworkers engaged in needlework.shall not include any profit to the employer. 97(f). (2) Household or domestic helpers. not from the Title on Wages (RA 9178). RA 6727. IRR] The Labor Code Title on wages shall not apply to the following: (1) Farm tenancy or leasehold. MINIMUM WAGE See also: DOLE Bureau of Working Condition’s Handbook on Worker’s Statutory Monetary Benefits and Wage Order No. Rule VII." [Sugue v.1. [Sugue v Triumph International. If an employer accords employees the same position and rank. WAGE VS. Quisumbing (2000)] Not exempt from execution. including family drivers and other persons in the personal service of another. NLRC (1990)] There are slight differences: Wage Salary Paid for skilled or Paid to white collar unskilled manual labor workers and denote a higher grade of employment Exception: When the laborer was able. CA. 98 and Book 3. SALARY Wages and salary are in essence synonymous. Exceptions: 40 . Sec 3. Triumph International (2009)] C. Coverage General Rule: The wage increases prescribed under Wage Orders apply to all private sector workers and employees receiving the daily minimum wage rates or those receiving up to a certain daily wage ceiling. (o)] Coverage/Exclusions [Art. or otherwise illegally prevented from working. supra] Not subject to execution. LC] LABOR LAW Note: Workers in registered barangay micro business enterprise are only exempted from the Minimum Wage Law. 1985] C. suspended or dismissed. or status. 1708] “Equal Work for Equal Pay” Principle Employees working in the Philippines. [Songco v. (4) Workers in registered cottage industries who actually work at home. willing and ready to work but was illegally locked out. garnishment or attachment except for debts related to necessities [Art.

municipal officials and other interested parties (3) Decide to ISSUE or NOT TO ISSUE a wage order  Frequency: Wage orders issued may not be disturbed for 12 months from effective date. mandatory for the Commission to decide within 60 calendar days from filing Basis The basis of the minimum wage rates prescribed by law shall be the normal working hours of 8 hours a day. [Art. LC) (1) Investigate and study pertinent facts. [Sec. 123. (4) The needs of workers and their families. 124. (2) Retail/Service establishments regularly employing not more than 10 workers. the following may be exempted from the applicability of this Order: (1) Distressed establishments. employees are not prevented from bargaining for higher wages with their employers. (3) Establishments adversely affected by natural calamities. LC] Exemptions upon Approval Upon application with and as determined by the Regional Tripartite Wages and Productivity Board. (7) Prevailing wage levels. (6) Improvements in standards of living. Note: Daily minimum wage in NCR applicable from Apr. NCR-19] Factors/Criteria in determining regional minimum wages: (1) Demand for living wages. [Sec 7. 124 (2) Conduct public hearings or consultations with notice to employer and employee groups. and (10) Equitable distribution of income and wealth along the imperatives of economic and social development. (2) Wage adjustment the consumer price index. (8) Fair return of the capital invested and capacity to pay of employers. the wage order takes effect after 15 days from complete publication in at least 1 newspaper of general circulation in the region (4) Appeal wage order to Commission within 10 calendar days. city. this serves as a bar for petitions for wage hikes as well  Except: when Congress passes a new law affecting wages or other supervening circumstances  Effectivity: If it decides to ISSUE a wage order. (5) The need to induce industries to invest in the countryside. [RA 9178] (3) Learners [RA 602] (4) Apprentices [RA 602] (5) Handicapped Worker [RA 602] LABOR LAW (3) Cost of living and changes or increases therein. Note: Filing of an appeal DOES NOT STAY order unless appellant files an undertaking with a surety. provinces. Wage Order No. 2015 is now P481 [Wage Order No. based on criteria set in Art. 2014] Procedure for Wage Fixing by Regional Board (Art. 8. IRR of RA 6727] Freedom to bargain Despite the minimum wage order. 19. (9) Effects in employment generation and family income. 4.UP LAW BOC LABOR STANDARDS (1) Domestic Helpers/kasambahay are covered by RA 10361 (2) Workers of registered barangay micro business enterprise with Certificates of Authority issued by the Office of the Municipal or City Treasurer. based on documentation and other requirements in accordance with applicable rules and regulations issued by the NWPC. to guarantee payment of 41 .

MINIMUM WAGE OF WORKERS PAID BY RESULTS The Secretary of Labor and Employment may authorize the hiring of apprentices without compensation whose training on the job is required by the school or training program curriculum or as requisite for graduation or board examination. LC] C. While commissions are. as amended. indeed. executor. or a proportion thereof for working less than eight (8) hours. and its IRR. [Philippine Duplicator’s. [Art.I. 124. [Art. 76. 97 (f) of the LC explicitly includes commissions as part of wages. [Art. fringe benefits or allowances as a qualified able-bodied persons.3. the establishment of a minimum wage only sets a floor below which an employee’s Wages of apprentices and learners shall in no case be less than 75% of the applicable minimum wage rates. NLRC (1993)] Request for the conduct of time and motion studies. LC] 42 . salesman.UP LAW BOC LABOR STANDARDS employees if the wage order is affirmed (as amended by RA 6727) LABOR LAW Note: Learners employed in piece or incentiverate jobs during the training period shall be paid in full for the work done. Verily.3. 101 of the LC. still these commissions are direct remunerations for services rendered. Commissions as part of minimum wage The Court held that the definition of “wage” under Art. LC] C. C. incentives or forms of encouragement to inspire employees to put a little more industry on the jobs particularly assigned to them. The Magna Carta for Disabled Persons] The wage rates of workers who are paid by results shall continue to be established in accordance with Art. WORKERS PAID BY RESULTS All workers paid by result.3. to determine whether the non-time employees in an enterprise are being paid fair and reasonable wage rates.III.4. receiver. there is no law mandating that commissions be paid only after the minimum wage has been paid to the employee. Inc. trustee. COMMISSIONS Commissions have been defined as the recompense. factor. privileges.II MINIMUM WAGE OF APPRENTICES AND LEARNERS Likewise. when the same is calculated as a percentage on the amount of his transactions or on the profit to the principal. C. 72. v. shall receive not less than the prescribed wage rates per eight (8) hours of work a day. 61 & 75. may be filed with the proper Regional Office. pakyaw or task basis.3. MINIMUM WAGE OF PERSONS WITH DISABILITY A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation. Where the output rates established by the employer do not conform to the standards set under the foregoing methods for establishing output rates. [Art. (2) Consultation with representatives of ERs’ and workers’ organizations in a tripartite conference called by the DOLE Sec. the employee shall be entitled to the difference between the amount he/she is entitled to receive and the amount paid by the employer. RA 7277. benefits. LC] C. broker or bailee. compensation or reward of an agent. takay. [Sec 5. including those who are paid on piecework. This will be done through: (1) Time and motion studies.

(g) SSS. (e) Payment to 3rd parties upon written authority by employee. (c) Withholding tax. (h) Deduction for value meals and other facilities. (d) Deductions of a legally established cooperative. medical attendance (Art. Exceptions: (1) In cases where the worker is insured with his consent by the employer. That the holiday pay. LC] With Employee’s consent in Writing C. clothing. and (3) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment (Art. [Art. not that commissions are excluded from wages in determining compliance with the minimum wage law. shall make any deduction from the wages of his employees. (b) Attachment or execution in cases of debts incurred for necessities: food. CC). such as: (a) Employee debt to employer is due and demandable (Art. NLRC (1998)] LABOR LAW employment or retention in employment. shelter. 118. where check-off is not provided in the CBA.5. in his own behalf or in behalf of any person. LC] or to retaliate against the employee who filed a complaint. of Labor (1989)] Note: Persons earning minimum wage are exempted from income tax “That minimum wage earners as defined in Section 22(HH) of this Code shall be exempt from the payment of income tax on their taxable income: Provided. and the deduction is to recompense the employer for the amount paid by him as premium on the insurance. Sec. Worker’s insurance acquired by the employer Union dues.” [RA 9504. 1708. [Art. 113. overtime pay.UP LAW BOC LABOR STANDARDS remuneration cannot fall. CC). (f) Deductions for loss or damage. DEDUCTIONS FROM WAGES General Rule: No employer. (Art. LC).. where the right to check-off is recognized by the employer (provided in the CBA) Debts of the employee to the employer that have become due and demandable Prohibition seeks to protect the employee against unwarranted practices that would diminish his compensation without his knowledge and consent. Medicare. Inc. 113. 1706. [Iran v. LC) Without Employee’s consent (1) SSS Payments (1) (2) PHILHEALTH payments (3) Contributions to PAG-IBIG Fund (2) (4) Value of meals and other facilities (5) Payments to third persons with employee’s consent (3) (6) Deduction of absences (7) Union dues. [Radio Communication of the Phil. (2) For union dues. further. 24(A) of RA 8424] It shall be unlawful to make any deduction from the wages of any employee for the benefit of the employer as consideration of a promise of 43 . v. Pag-IBIG premiums. in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned. Sec. night shift differential pay and hazard pay received by such minimum wage earners shall likewise be exempt from income tax. 117. 2 redefining sec.

[States Marine Corp. vs. LC) No wage order issued by any regional board shall provide for wage rates lower than the statutory minimum wage rates prescribed by Congress. e. 6727. 1988] (2) Negotiated benefits [Azucena] (3) Reclassification of Positions – e.UP LAW BOC LABOR STANDARDS LABOR LAW C. a wage includes facilities. 44 . NON-DIMINUTION OF BENEFITS C. 1999] (2) Practice is consistent and deliberate and (3) Not due to error in the construction or application of a doubtful or difficult question of law. for their employer existence and subsistence Benefits initiated through negotiation between Employee and Employer. Prudential Bank and Co. as amended by Republic Act No. so that the benefit is not demandable if those preconditions are absent. Simply put. June 29. Comparison Supplements between Facilities Facilities and Supplements What it is Articles services/items expense or Extra remuneration or of special benefits / articles or services / tools of the trade Who Benefits For the benefit of the For the benefit or employee and his convenience of the family. 5] has 2 components: (1) Facilities are articles or services for the benefit of the employee or his family.7. [Art. v. Requisites If the following are met. NLRC. This 2nd part is essentially defines what a supplement is. can only be eliminated or diminished bilaterally. (1) Mistake in the application of the law [Globe Mackay Cable v. (4) Contingent or Conditional Benefits – the rule does not apply to a benefit whose grant depends on the existence of certain conditions.g. NLRC. loss of some benefits by promotion. 1999] Facilities are items of expense necessary for the laborer’s and his family’s existence and subsistence. 127. Cebu Seamen's Assoc. the criterion is not so much its kind but it’s PURPOSE [Millares v NLRC & PICOP. 1963] When not applicable: At least one of the requisites is absent.. 1988] (4) The diminution or discontinuance is done unilaterally by the employer. June 9. 97. FACILITIES VS SUPPLEMENTS General Rule: There is a prohibition against elimination or diminution of benefits [Art. 100] The distinction between facilities and supplement is relevant because the former is wage-deductible while the latter is not.6. CBA. [Art. (2) Facilities shall not include tools of the trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the employer’s business. Inc. This 1st part defines facilities. then the employer cannot remove or reduce benefits: (1) Ripened company policy: Benefit is founded on a policy which has ripened into a practice over a long period [Prubankers Assn.. Criterion: In determining whether a privilege is a facility.g. 1989] The IRR definition [IRR Book III Rule 7-A Sec. [Globe Mackay Cable vs..

(3) If still unresolved. Requirements for deducting value of facilities Mere availment is not sufficient to allow deductions from employees’ wages. WAGE DISTORTION/RECTIFICATION A situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills. [Prubankers Assn. or other logical bases of differentiation [Art. [SLL International Cable Specialists v.UP LAW BOC Facilities LABOR STANDARDS (d) Supplements Deductible from Wage YES . COMPULSORY arbitration by the NLRC 4 Elements of wage distortion (a) Existing hierarchy of positions with corresponding salary rates. (2) The provision of deductible facilities must be voluntarily accepted in writing by the employee. it shall be referred to the appropriate branch of the NLRC – compulsory arbitration  Both the employer and employee cannot use economic weapons. (3) If still unresolved after 10 calendar days of conciliation. voluntary arbitration. LC] National Conciliation and Mediation Board  if unresolved. (2) Disputes shall be settled through the National Conciliation and Mediation Board. NLRC. provided the result is not less than 45 . the following requisites must all be attendant: (1) Proof must be shown that such facilities are customarily furnished by the trade. Prudential Bank and Co. (c) The elimination of the distinction between the two levels. and CBA vis-à-vis Wage Orders – CBA creditability In determining an employee’s regular wage. (b) A significant change in the salary rate of a lower pay class without a concomitant increase in the salary rate of a higher one. (4) Employer cannot declare a lock-out. length of service. and (3) Facilities must be charged at reasonable value. the pertinent stipulations in the CBA are controlling. Employee cannot declare a strike because the law has provided for a procedure for settling (5) The salary or wage differential does not need to be maintained. v. 124. (1999)] How to Resolve [LC Art. NLRC. 124] Organized Establishment (1) Employer and the union shall negotiate to correct the distortions.Independent of it is deductible the Wage so not deductible LABOR LAW The existence of the distortion in the same region of the country. VOLUNTARY arbitration Unorganized Establishment (1) ERs and Employees shall endeavor to correct such distortions. (2) Disputes shall be resolved through the grievance procedure.8. [National Federation of Labor v. 1994] C.Part of wage so NO . Before the value of facilities can be deducted from the employees’ wages. 2011] Grievance Procedure (under the CBA)  if unresolved.

9. The current one. there are 10 regular holidays and 7 special days. C.UP LAW BOC LABOR STANDARDS LABOR LAW the statutory requirement (Philippine National Bank vs. if actually worked. 1982) case of workers paid on daily basis.5 days) [Sec. The monthly compensation is evidently intended precisely to avoid computations and adjustments resulting from the contingencies just mentioned which are routinely made in the ordinary working regular holidays special days (if considered paid.1 days/year 296 days ordinary working 20 days 10 regular holidays x 200% 52 rest days x 130 % 67. 17. Rules Implementing RA 6727. this is equivalent to 6. 1995) Note: The manner of resolving wage distortion are largely based on the applicable wage order. or any fortuitous cause precluding work on any particular day or days the employee is entitled to the salary for the entire month and the employer has no right to deduct the proportionate amount corresponding to the days when no work was done.60 days 7 special days x 130% EEMR = (Applicable Daily Rate (ADR) x days/year) ÷ 12 For monthly-paid EEs Monthly-paid employees are those who are paid every day of the month. for NCR. and regular holidays. if actually worked." and "irrespective of the number of working days therein. 6. including unworked rest days. 9. v. refers to the procedure in Art. 2014. (Wellington Investment Inc. Benigno Aquino on Jul. 831 signed by Pres. DIVISOR TO DETERMINE DAILY RATE (1) For those who are required to work every day including Sundays or rest days. special days and regular holidays: Suggested formula for computing the Estimated Equivalent Monthly Rate (EEMR) 394. WO 19.5 days) (3) For those who do not work and are not considered paid on Saturdays and Sundays or rest days: 278 days/year 261 days ordinary working days 10 days regular holidays 7 days special days (if considered paid. Trajano. 124 For daily-paid EEs Daily-paid employees are those who are paid on the days actually worked and on unworked regular holidays. PEMA." In the event of the declaration of any special holiday. 1989] Note: Under Proclamation No. 46 . this is equivalent to 6.1 days (2) For those who do not work and are not considered paid on Sundays or rest days: 365 days/year 296 days 52 days 10 days 7 days 313 days/year 296 days 12 days 5 days ordinary working days rest days regular holidays special days Note: This monthly salary shall serve as compensation "for all days in the month whether worked or not. special days.

the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds. (3) In the event of abnormal pressure of work due to special circumstances. where the employer cannot ordinarily be expected to resort to other measures. Sec. WEEKLY REST DAY It shall be the duty of every employer. 459. or installation. HOLIDAY PAY/PREMIUM PAY Holiday pay is a one-day pay given by law to an employee even if he does not work on a regular holiday. 94 (b)] D. (4) Premium pay is additional 30% of the basic pay. 47 . to provide each of his employees a rest period of not less than twenty-four (24) consecutive hours after every six (6) consecutive normal work days.UP LAW BOC LABOR STANDARDS LABOR LAW (6) Under other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment. fire. However. 203.1. earthquake. typhoon. to avoid serious loss which the employer would otherwise suffer. (5) Where the nature of the work requires continuous operations and the stoppage of work may result in irreparable injury or loss to the employer. 9256. (7) When the choice of the employee as to his rest day based on religious grounds will inevitably result in serious prejudice or obstruction to the operations and the employer cannot normally be expected to resort to other measures. Book Three. which was subsequently amended by RA 9177. 92.O. equipment. flood. no pay principle applies (3) If an employee works on his designated rest day. the employer may so schedule the weekly rest day of his choice for at least two days in a month. (5) Employer selects the rest day of his employees (6) However. and Proclamation No. (4) To prevent loss or damage to perishable goods. or imminent danger to public safety. [Art. Note: Art. and E. [Art. [Art. epidemic or other disaster or calamity to prevent loss of life and property. (2) In cases of urgent work to be performed on the machinery.2. This gift of a day’s pay is limited to each of the 12 regular holidays. LC was superseded by E. LC] D. (2) No work. 9492. [IRR. employer must consider the religious reasons for the choice of a rest day. EMERGENCY REST DAY WORK The employer may require his employees to work on any day: (1) In case of actual or impending emergencies caused by serious accident. REST DAY D. whether operating for profit or not. he is entitled to a premium pay. Rule III. 94 (c). 91 (a)] Synthesis of the Rules (1) Rest day of not less than 24 consecutive hours after 6 consecutive days of work. 4] Preference of the employee The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Secretary of Labor and Employment may provide.

1. provides for the observance of the regular holidays and special (non-working) days for the year 2015 on the following dates: (1) New year’s Day – Jan. 31 Special Holiday (for all schools) EDSA Revolution Anniv – Feb. 4 (3) Ninoy Aquino Day – Aug. (3) Domestic helpers and persons in the personal service of another.D.UP LAW BOC LABOR STANDARDS E. 3 (4) Araw ng Kagitingan – Apr. P. [Sec. 21 (4) All Saints Day – Nov. namely: (1) Amun Jadid (New Year) which falls on the first (1st) day of the lunar month of Muharram. Title. 31 (8) Bonifacio Day – Nov. 9 (5) Labor Day – May 1 48 . 24 (6) Last Day of the Year – Dec. Specifically for the Muslim Areas. 25 (10) Rizal Day – Dec. 30 (9) Christmas Day – Dec. purely commission basis. recognizes five (5) Muslim Holidays. 2 (b) Dec. (4) Managerial employees as defined in Book III (5) Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis. 831 signed by President Aquino on 17 July 2014. and Service Establishment is one principally engaged in the sale of service to individuals for their own or household use and is generally recognized as such. 1083 (Code of Muslim Personal Laws) SEE: Arts. (3) Lailatul Isra Wal Mi Rai (Nocturnal Journey and Ascencion of the Prophet Muhammand) which falls on the twentyseventh (27th) day of the seventh (7th) lunar month of Rajab. 30 (11) Id-ul-Fitr – 1st day of 10th lunar month of Shawwal (12) Id-ul Adha – 10th day of the 12th lunar month of Dhu’l-Hijja General Rule: All employees Exceptions: (1) Those of the government and any of the political subdivision. 1083. (2) Those of retail and service establishments regularly employing less than 10 workers. 25 P. Rule IV of the IRR] Special (Non-Working Days) (1) Chinese New Year – Feb. [RA 6727/The Wage Rationalization Act. 19 (2) Black Saturday – Apr. in its Book V. 1 (5) Additional special (Non-working) days (a) Jan. or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof. (2) Mauli-un-Nabi (Birthday of the Prophet Muhammad) which falls on the twelfth (12th) day of the third (3rd) lunar month of Rabi-ul-Awwal. including government-owned and controlled corporation. (4) Id-ul-Fitr (Hari Raja Pausa) which falls on the first (1st) day of the tenth (10th) lunar month of Shawwal commemorating the end of the fasting season. 1. 1 (2) Maundy Thursday – Apr. COVERAGE LABOR LAW (6) Independence Day – June 12 (7) National Heroes Day – Aug. 169-173 Retail Establishment is one principally engaged in the sale of goods to end-users for personal or household use.D. 2 (3) Good Friday – Apr. IRR] Regular holidays Proclamation No.

Note: Id-ul-Fitr (Eid’l Fitr) and Id-ul-Adha (Eid’l Adha) have been added to the list of national legal holidays. if it regular daily wage exceeds 8 plus 30% of such hours/overtime amount) + 30% of hourly rate on said day. These days are not the same as a special working holiday. Special Public Holiday and Special National Holiday. Rule IV of IRR. 200% of basic wage. a “special holiday”/”special day” includes the National Special Days. scheduled rest day. RA 9424 and DOLE Memorandum Circular 1 Series of 2004) A special working holiday is considered an ordinary working day. Book III. 94(b)] Double holiday pay According to “DOLE Explanatory Bulletin on Worker’s Entitlement to Holiday Pay on 9 April 1993. [Azucena] According to the LC. (2) If worked. Wages & other emoluments granted bylaw to the workingman are determined on the basis of the criteria laid down by laws & not on worker’s faith. [BWC-WHSD Opinion No. CA (2002)] Work on holiday special Regular daily wage + 50% thereof According to DOLE Memo Circular 1-04.UP LAW BOC LABOR STANDARDS (5) Id-ul-Adha (Hari Raha Haji) which falls on the tenth (10th) day of the twelfth (12th) lunar month of Dhu’l-Hijja. NO additional payment is due them. or any other factor which already considers the payment for the 11 regular holidays. PD 1083 states that nothing herein shall be construed to operate to the prejudice of a non-Muslim. 1998] Work on any regular 200% of regular daily holiday which falls on wage + 30% of such the scheduled rest day.” if two holidays fall on the same day: (1) If unworked. 300% of basic wage. amount not exceeding 8 hours Work on any regular Regular holiday-onholiday which falls on rest day rate (200% of 49 . IRR and Memo: Work on any regular holiday. s. General Rule: An employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate. Holiday pay computation (Art. Such days are entitled to the rates prescribed above. so there is no premium pay. 3(3). not exceeding 8 hours LABOR LAW Computation Work on any regular 200% of regular daily holiday. 94 Labor Code. Art. if it exceeds 8 wage (for the 1st 8 hours/overtime hours) + 30% of hourly rate on said day Double Holiday Rule for Monthly-paid employees For covered employees whose monthly salaries are computed based on 365 days and for those other employees who are paid using factor 314. or 262. Work on special Regular daily wage + holiday not exceeding 30% thereof 8 hours Note: There should be no distinction between Muslims & non-Muslims as regards to the payment of benefits for Muslim holidays. [San Miguel Corp vs. 053. [Art. and declared special days such as Special Non-working Holiday.

aside from the usual holiday pay.[Trans Asia Phils. to monthly-paid employees. (2) Furthermore as stated in the Wellington case (see below). Sec. the “287” divisor should only be used for computations which would be advantageous to the employer (i. therefore increasing the divisor to “287”. deduction for absences) and not for computations which would diminish the existing benefits of the employees (i. Non-working/scheduled rest day Where the day immediately preceding the holiday is a non-working day in the establishment or the scheduled rest day of the employee. 1087] No provision of law requires any employer to make adjustments in the monthly salary rate set by him to take account of legal holidays falling on Sundays in a given year.. which entitles him to pay on second holiday. overtime pay. 10. IF: (1) He is present on day immediately preceding first holiday. The divisor is arrived at by subtracting all Sundays from the total number of calendar days in a year. an employee is entitled to holiday pay for both days. in violation of the Example: If a holiday falls on Monday. rest days.e. proscription against non-diminution of benefits under Sec. v. he shall not be deemed to be on leave of absence on that day. a legal holiday falling on a Sunday does not create a legal obligation to pay extra. but increase would in some instances prejudice the employees. or (2) He works on first holiday. (1) Monthly paid employees are not entitled to the holiday pay if their total annual income is divided by 365 days resulting in a wage which is beyond the minimum wage per day because they are considered paid everyday of the year including holidays. Rule IV. in which case he shall be entitled to the holiday pay if he worked on the day immediately preceding the nonworking day or rest day. and Sunday is a non-working day in the establishment or is the scheduled rest day of the employee. Trajano (1995)] 296 days – ordinary days 52 days – rest days 10 days – regular holidays 7 days – special holidays (2) As a general rule. The 365 days are as follows: (a) (b) (c) (d) LABOR LAW Sundays (1) When a holiday falls on a Sunday. 100 of the labor code. the employee shall be entitled to holiday pay if he 50 . and other non-working days.e.UP LAW BOC LABOR STANDARDS Successive holiday pay According to IRR. NLRC (1999)] Divisors The divisor assumes an important role in determining whether or not holiday pay is already computed. [Book III. the following Monday will not be considered a holiday unless a proclamation says so. Sec 6 (c). (3) As a general rule for a company with a 5day working schedule. Rule V. holiday pay and leave conversions). IRR] Where the employer had a standing practice of using 286 days as a divisor and following the correct computation and taking into account that one of the holidays always falls on a Sunday. the divisor 287 means that the holiday pay is already included in the monthly salary of the employee. otherwise to reckon a year at more than 365 days. [Azucena citing Letter of Instruction No. for a company with a 6-day working schedule. the divisor 313 already means that the legal holidays are included in the monthly pay of the employee. [Wellington Investment and Manufacturing Corporation vs.

he is not entitled to holiday pay unless he works on such regular holiday. or (2) Repair or cleaning of machineries and equipment is undertaken. LABOR LAW cases of temporary shutdowns or cessation of work. PIECE SEAFARERS. may not be paid for the regular holidays during semestral vacations. SEASONAL ETC. the nonworking day or rest day). he is entitled to holiday pay. be paid for the regular holidays during Christmas vacation. is paid by results or output. [Book III. that in no case shall the holiday pay be less than the applicable statutory minimum wage rate. Rule IV. (2) The regular holiday during the cessation of operation of an enterprise due to business reverses as authorized by the Secretary of Labor may not be paid by the employer. However. such as payment on piece work. An employee is entitled to holiday pay for the regular holidays falling within the period in 51 . Right to holiday pay In case of absences All covered employees shall be entitled to the benefit provided herein when they are on leave of absence with pay. however. Rule IV. 8. [Book III. his holiday pay shall not be less than his average daily earnings for the last seven (7) actual working days preceding the regular holiday. WORKERS. Rule IV. IRR] Note: (1) If an employee is on leave of absence with pay on the day immediately preceding a regular holiday. Since regular holidays are known to both the school and faculty members as “no class day”. and is authorized by the Secretary of Labor. IRR] Holiday Pay of Hourly-Paid Faculty Members (1) They are not entitled to payment of holiday pay because they are paid only for work actually done. as when a yearly inventory or when the repair or cleaning of machineries and equipment is undertaken. (1) Private school teachers. (3) Seasonal workers may not be paid the required holiday pay during off-season when they are not at work (4) Workers who have no regular working days shall be entitled to the benefits provided in this Rule. WORKERS. Sec. (2) Where a covered employee. the regular holidays falling within the periods shall be compensated in accordance with this Rule. (2) If an employee is on leave of absence without pay on the day immediately preceding a regular holiday. [Book III. They shall. In case of temporary cessation of work (1) In cases of temporary or periodic shutdown and temporary cessation of work of an establishment. Provided. Sec 6(a). including faculty members of colleges and universities. The employer may not pay his employees for the regular holidays during the suspension of work if: the cessation of operation is due to business reverses. TEACHERS.2. IRR] E. Sec 7.UP LAW BOC LABOR STANDARDS worked on Saturday (which is the day immediately preceding Sunday. Employees who are on leave of absence without pay on the day immediately preceding a regular holiday may not be paid the required holiday pay if he has not worked on such regular holiday. when: (1) An annual inventory.

the faculty member paid by the hour is deprived of expected income. Coverage [Book 3. (Section 11. Coconut Products Ltd. (4) Workers who are paid by results.. whether or not extensions are ordered. if their output rates are in accordance with the standards prescribed in the regulations. 52 . or task basis. Sec. (2) Managerial employees as defined in Book III. takay. CIR (1966)] Seafarers Any hours of work or duty including hours of watch-keeping performed by the seafarer on designated rest days and holidays shall be paid rest day or holiday pay. Rule 3. these faculty members must likewise be paid.C. [Jose Rizal College v. They are entitled to their hourly rate on days declared as special holidays. floods. Piece workers Philosophy underlying the exclusion of piece workers from the 8-hour law is that said workers are paid depending upon the work they do irrespective of the amount of time employed in doing said work. or where such rates have been fixed by the Secretary of Labor and Employment. and it does not matter that the school calendar is extended in view of the days or hours lost. (5) Field personnel. and other noontime work. v.UP LAW BOC (2) (3) LABOR STANDARDS certainly the latter do not expect payment for said unworked holidays. 7. Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels) Seasonal workers Seasonal workers who do not work during offseason are not entitled to pay for the regular holidays occurring during their off-season. if they regularly perform their duties away from the principal or branch office or place of business of the ER and whose actual hours of work in the filed cannot be determined with reasonable certainty. [Red v. Similarly. such as rest days and special days. IRR] General Rule: All employees Exceptions: (1) Those of the government and any of the political subdivision. when classes are called off or shortened on account of typhoons. pakyaw. for their income that could be earned from other sources is lost during the extended days. including government-owned and controlled corporations. including those who are paid on piece rate. (1987)] LABOR LAW Premium Pay Premium pay refers to the additional compensation for work performed within 8 hours on non-work days. (3) Househelpers and persons in the personal service of another. and the like. rallies. Workers assigned to “skeleton crews” that work during the off-season have the right to be paid on regular holidays falling in that duration. Be it noted that when a special public holiday is declared. NLRC.

] Nothing herein shall prevent the employer and his employees or their representatives in entering into any agreement with terms more favorable to the employees than those provided herein or be used to diminish any benefit granted to the employees under existing laws agreements and voluntary employer practices. SERVICE INCENTIVE LEAVE PAY When Work Performed [Art. IRR] No regular work and 30% of regular wage rest days for work performed on Sundays and holidays On any special 30% of regular wage holiday/special day On any special holiday 50% of regular wage /special day falling on scheduled rest day 50% of regular wage 230% of regular wage [Art. Series of 2004] LABOR LAW F. 9. Jurisprudence: (1) Teachers of private school on contract basis are entitled to service incentive leave. Premium Pay On scheduled rest day 30% of regular wage On Sunday ONLY IF 30% of regular wage ESTABLISHED rest day Service Incentive Leave DOES NOT apply to the following employees: (1) Those of the government and any of its political subdivisions.UP LAW BOC LABOR STANDARDS Premium pay rates [DOLE Memorandum Circular 1. holidays. Sec. (4) Field personnel and other employees whose performance is unsupervised by the employer including those who are engaged on task or contract basis.] The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate [Book III. [Cebu Institute of Technology v. 8. or other rest days which are considered paid off days or holidays by agreement or practice subsisting upon the effectivity of the Code. LC. LC. IRR. Nothing in this Rule shall justify an employer in reducing the compensation of his employees for the unworked Sundays.1. Rule III.] Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article. (2) Domestic helpers and persons in the personal service of another. (5) Those who are already enjoying the benefit herein provided. or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof. (7) Those employed in establishments regularly employing less than 10 employees.] Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay. 93 (d). including GOCCs. Sec. the employer shall pay such higher rate. Employer may require employee to work [Art. Rule II. (3) Managerial employees as defined in Book 3 of this Code. IRR]. Sec. Rule 5. 1. Ople (1987)] (2) In the case of Makati Haberdashery v. [Book III. NLRC the Court ruled that piece-rate employees are not entitled to service 53 . (6) Those enjoying vacation leave with pay of at least 5 days. 95(a). [Book 3. 95(b). purely commission basis. LC. LEAVES F.

whether continuous or broken.2. his cause of action to claim the whole amount of his accumulated service incentive leave shall arise when the employer fails to pay such amount at the time of his resignation or Benefit received A daily maternity benefit equivalent to 100% of her average daily salary credit for: (1) 60 days for normal delivery (2) 78 days for caesarean delivery Note: This benefit shall NOT be included in the computation of 13th month pay as it is granted to an employee in lieu of wages which is the basis for computing 13th month. NLRC (2005)] Meaning of “1 year of service” [Book III. (1998)] separation from employment. Commutable nature of benefit The service incentive leave shall be commutable to its money equivalent if not used or exhausted at the end of the year. NLRC the Court held that petitioners are entitled to service incentive leave. (1989)] (3) However. Accordingly. if the employee wishes to accumulate his leave credits and opts for its commutation upon his resignation or separation from employment. in the case of Labor Congress of the Philippines v. whether married or unmarried. 95 (c). miscarriage or abortion (2) Contribution: who has paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of her childbirth. Coverage Every pregnant woman in the private sector. or miscarriage. although compensated on a per piece basis. in which case said period shall be considered as one year. which notice shall be transmitted to the SSS in accordance with the rules and regulations it may provide.] The grant of benefit in excess of that provided herein shall not be made a subject of arbitration or any court or administrative action. LC. 3.] The term "at least one year service" shall mean service for not less than 12 months. or that provided in the employment contract is less than 12 months. Sec. [Auto Bus Transport vs. Rule V. 54 . The Court looked at several factors which led them to conclude that petitioners. is entitled to the maternity leave benefits. MATERNITY LEAVE [Sec. reckoned from the date the employee started working. F. The cause of action of an entitled employee to claim his service incentive leave pay accrues from the moment the employer refuses to remunerate its monetary equivalent if the employee did not make use of said leave credits but instead chose to avail of its commutation (into money). 14-A of RA 1161 (Social Security Law) as amended by RA 7322 and RA 8282] This is applicable to both childbirth and miscarriage. Entitlement [Art. NLRC. [Labor Congress of the Philippines v. (3) Notice: employee notified employer of her pregnancy and the probable date of her childbirth. were regular employees of private respondents. including authorized absences and paid regular holidays unless the working days in the establishment as a matter of practice or policy. NLRC. Requisites (1) Employment: A female employee employed at the time of delivery. [Makati Haberdashery v.UP LAW BOC LABOR STANDARDS LABOR LAW incentive leave. IRR.

contractual. (4) He has applied for paternity leave with his ER within a reasonable period of time from the expected date of delivery by his pregnant spouse. regular. or within such period as F. 3. or (b) Without the latter having been previously notified by the ER of time of the pregnancy. without prejudice to an employer’s policy of allowing the employee to avail of the benefit before or during the delivery. (3) Employee may only avail of benefit for the first four (4) deliveries or miscarriages. (3) He is cohabiting with his spouse at the time that she gives birth or suffers a miscarriage. If the spouses are not physically living together because of the workstation or occupation. (2) He is an employee at the time of the delivery of his child. IRR. (2) Availment shall be a bar to the recovery of sickness benefits provided by this Act for the same period for which daily maternity benefits have been received. regardless of their employment status (e. 1. IRR. IRR. 5. RA 8187) Conditions for entitlement [Sec. RA 8187] Usage of the benefit Usage of the leave shall be after the delivery. then the employer shall pay to the SSS damages equivalent to the benefits which said employee member would otherwise have been entitled to. probationary. RA 8187] (1) He is married. with full pay. The purpose of this benefit is to allow the husband to lend support to his wife during her period of recovery and/or in nursing her newborn child. the male employee is still entitled to the paternity leave benefit. provided that his pay shall not be less than the mandated minimum wage. [Sec. project 55 . consisting of basic salary and mandatory allowances fixed by the Regional Wage Board. 2. 3. provided that the total number of days shall not be more than 7 days for each covered delivery. Cohabiting means the obligation of the husband and wife to live together. PATERNITY LEAVE [RA 8187 (Paternity Leave Act of 1996)] Coverage and purpose Paternity leave is granted to all married male employees in the private and public sectors. [Sec. It shall be for 7 calendar days. [Sec.g. if any.UP LAW BOC LABOR STANDARDS LABOR LAW Only 4 maternity leaves available The maternity benefits provided under the Social Security Law shall be paid only for the first four (4) deliveries or miscarriages basis). RA 8187] SSS pays for the maternity leave The employer advances the benefit to the employee but the SSS shall immediately reimburse the employer of one hundred percent (100%) of the amount upon receipt of satisfactory proof of such payment and legality thereof Benefit It shall apply to the first 4 deliveries of the employee’s lawful wife with whom he is cohabiting. RA 8187] Other conditions (1) Employer shall advance the payment subject to reimbursement by the SSS within 30 days from filing of leave application. (Sec.3. (4) Sanction: That if an employee should give birth or suffer miscarriage (a) Without the required contributions having been remitted for her by her ER to the SSS.

(2) Death of spouse. or by CBA. RA 8187] F. and (10) Any family member who assumes the responsibility of head of family as a result of the death. contract. [Sec. (5) Legal separation or de facto separation from spouse for at least one (1) year: Provided. abandonment. [Sec. [Sec. instead of having others care for them or give them up to a welfare institution. RA 8972] Conditions for entitlement A solo parent employee shall be entitled to the parental leave under the following conditions: Coverage 56 . (2) If the existing paternity leave benefit is less than that provided in RA 8187. 7. IRR. In case of miscarriage. Where a company policy. prior application for paternity leave shall not be required. IRR. the ER shall grant to the employee 7 calendar days of paternity leave. contract. or prolonged absence of the parents or solo parent for at least one (1) year. IRR. or CBA provides for an emergency or contingency leave without specific provisions on paternity leave. (5) His wife has given birth or suffered a miscarriage. 3 (a). (8) Unmarried father/mother who has preferred to keep and rear his/her child/children. 9. disappearance. LABOR LAW Any solo parent or individual who is left alone with the responsibility of parenthood due to: (1) Giving birth as a result of rape or and other crimes against chastity even without a final conviction of the offender: Provided. 3 (d). the ER shall adjust the existing benefit to cover the difference. That the mother keeps and raises the child. or company policy is greater than 7 calendar days as provided for in RA 8187. RA 8187] Crediting of existing benefits (1) If the existing paternity leave benefit under the CBA. [Sec.4. (7) Abandonment of spouse for at least one (1) year. 4. [Sec. (3) Spouse is detained or is serving sentence for a criminal conviction for at least one (1) year. (4) Physical and/or mental incapacity of spouse as certified by a public medical practitioner. PARENTAL LEAVE [RA 8972 (Solo Parents’ Welfare Act of 2000)] Leave benefits granted to a solo parent to enable him/her to perform parental duties and responsibilities where physical presence is required. that he/she is entrusted with the custody of the children. RA 8187] Non-conversion to cash In the event that the paternity leave is not availed of. (6) Declaration of nullity or annulment of marriage as decreed by a court or by a church: Provided. that he/she is entrusted with the custody of the children.UP LAW BOC LABOR STANDARDS may be provided by company rules and regulations. (9) Any other person who solely provides parental care and support to a child or children: Provided. that he/she is duly licensed as a foster parent by the Department of Social Welfare and Development (DSWD) or duly appointed legal guardian by the court. RA 8972] Application for paternity leave See number 4 under conditions for entitlement. it shall not be convertible to cash and shall not be cumulative. the greater benefit shall prevail. and.

Grant of flexible work schedule The employer shall provide for a flexible working schedule for solo parents: Provided. The leave benefit covers the days that the women employee has to attend to medical or legal concerns. It shall not be more than seven (7) working days every year. [Sec. sexual. but is not limited to: (a) Rape. or with whom he has a common child. assault. battery. physically attacking the sexual parts of the victim's body. psychological harm or suffering. the following acts: (1) “Physical Violence" refers to acts that include bodily or physical harm. 8. or economic abuse including threats of such acts. which may be obtained from the DSWD office of the city or municipality where he/she resides. RA 8972] VAWC includes. 7. (2) "Sexual violence" refers to an act which is sexual in nature. [Sec 19. or against her child whether legitimate or illegitimate. shall terminate his/her eligibility for these benefits. making demeaning and sexually suggestive remarks. RA 8972] Definition of Terms Violence against women and their children – refers to any act or a series of acts committed by any person against a woman who is his wife.UP LAW BOC LABOR STANDARDS LABOR LAW F. within a reasonable period of time. consisting of basic salary and mandatory allowances. further. That the same shall not affect individual and company productivity: Provided. within or without the family abode. treating a woman or her child as a sex object. harassment or arbitrary deprivation of liberty. such that he/she is no longer left alone with the responsibility of parenthood. committed against a woman or her child. forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films Termination of the benefit A change in the status or circumstance of the parent claiming the benefit under the law. acts of lasciviousness. LEAVES FOR VICTIMS OF VIOLENCE AGAINST WOMEN (1) He/she has rendered at least one (1) year of service. RA 8972] 57 . and (3) He/she has presented to his/her employer a Solo Parent Identification Card.5. That any employer may request exemption from the above requirements from the DOLE on certain meritorious grounds. [Sec. Art. [Sec. which result in or is likely to result in physical. whether continuous or broken. 3 (a). as defined in RA 9262. Availment The parental leave is in addition to leave privileges under existing laws with full pay. RA 8972] Protection against work discrimination No employer shall discriminate against any solo parent employee with respect to terms and conditions of employment on account of his/her status. IRR. V. It includes. but is not limited to. (2) He/she has notified his/her employer that he/she will avail himself/herself of it. sexual harassment. former wife. coercion. or against a woman with whom the person has or had a sexual or dating relationship. 6. RA 8972] [RA 9262 (Anti-Violence against Women and Their Children Act of 2004)] Coverage and purpose VAWC leave is granted to women employees who are victims of violence. [Sec.

Benefit In addition to other paid leaves under existing labor laws. except in cases wherein the other spouse/partner objects on valid. Usage of the benefit The usage of the 10-day leave shall be at the option of the woman employee. (c) Destroying household property. physical or other harm or threat of physical or other harm or coercion. but is not limited to the following: (a) Withdrawal of financial support or preventing the victim from engaging in any legitimate profession. It includes causing or allowing the victim to witness the physical. investigation. forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser. stalking. the only requirement is for the victim-employee to present to her employer a certification from the barangay chairman or barangay councilor or prosecutor or the Clerk of Court. community or property owned in common. occupation. (3) "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation. (b) Deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal. repeated verbal abuse and mental infidelity. extendible when the necessity arises as specified in the protection order. prosecution and/or trial of the criminal case. harassment. of a certification (at no cost) to the woman that such an action is pending. it shall not be convertible into cash and shall not be cumulative. (4) "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes. threat of force. company policies. serious and moral grounds as defined in Article 73 of the Family Code. as the case may be. public ridicule or humiliation. and this is all 58 .3. as the case may be. A victim of VAWC who is employed shall be entitled to a paid leave of up to ten (10) days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations and other existing laws and company policies: (1) At any time during the application of any protection order. RA 9262] Requirement for entitlement To be entitled to the leave benefit. (b) Acts causing or attempting to cause the victim to engage in any sexual activity by force. damage to property. business or activity. [Sec. (2) Upon the issuance of the Punong Barangay/kagawad or prosecutor or the Clerk of Court. the qualified victim-employee shall be entitled to a leave of up to 10 days with full pay. In the event that the leave benefit is not availed of. if any. LABOR LAW (d) Controlling the victims' own money or properties or solely controlling the conjugal money or properties. consisting of basic salary and mandatory allowances fixed by the Regional Wage Board.UP LAW BOC LABOR STANDARDS thereof. that an action relative to the matter is pending. (c) Prostituting the woman or child. and/or CBA. or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children. sexual or psychological abuse of a member of the family to which the victim belongs.

DOLE DO No. 1.6.A. Series of 2011 as amended by DO No. the employee concerned must file an application for leave citing as basis R. Gross monthly compensation The monthly basic pay plus mandatory allowances fixed by the regional wage boards. provided that the employer shall be notified verbally or in written form within a reasonable period of time and provided further that after the surgery or appropriate recuperating period. and mastectomy. Application for special leave Application before surgery The employee shall file her application for leave with her employer within a reasonable period of time from the expected date of surgery. It shall also include hysterectomy. provided she has complied with the following conditions: (1) She has rendered at least 6 months continuous aggregate employment service for the last 12 months prior to surgery. (2) She has filed an application for special leave (3) She has undergone surgery due to gynecological disorders as certified by a competent physician. IRR. DO 112. [Sec. 7. [Sec. the female At least six months continuous aggregate employment service for the last 12 months prior to surgery The woman employee should have been with the company for 12 months prior to surgery. DO 112] Special leave benefit for women A female employee’s leave entitlement of two (2) months with full pay from her employer based on her gross monthly compensation following surgery caused by gynecological disorders. regardless of age and civil status. as certified by a competent physician. Rule II. adnexa and pelvic floor. in addition to the aforementioned certification. cervix. ovaries. An aggregate service of at least six (6) months 59 . as amended] Employment service Includes absences with pay such as use of other mandated leaves. fallopian tubes.day paid leave. 42. dilatation and curettage and those involving female reproductive organs such as the vagina. shall be entitled to a special leave benefit. breast. provided that she has rendered continuous aggregate employment service of at least six (6) months for the last 12 months. or within such period as may be provided by company rules and regulations or by CBA. F. ovariectomy. [Sec. 9262. SPECIAL LEAVE BENEFITS (SLB) FOR WOMEN Competent physician A medical doctor preferably specializing in gynecological disorders or is in the position to determine the period of recuperation of the woman employee. company-granted leaves and maternity leaves [RA 9710 (The Magna Carta of Women). 112. Gynecological disorders Disorders that would require surgical procedures such as. uterus. RA 9710] Application after surgery Prior application for leave shall not be necessary in cases requiring emergency surgical procedure.UP LAW BOC LABOR STANDARDS LABOR LAW that is required for the employer to comply with the 10. [Sec. 2. 112-A Series of 2012] Conditions for entitlement of special leave Any female employee. (3) For government employees. RA 8972] within the said 12-month period is sufficient to entitle her to avail of the special leave benefit. IRR. but not limited to.

UP LAW BOC

LABOR STANDARDS

employee shall immediately file her
application using the prescribed form. [Sec. 3,
DO 112]

LABOR LAW

victims of VAWC, Parental leave for solo
parents). The grant of SLB under the law is in
recognition of the fact that patients with
gynecological disorder needing surgery require
a longer period of recovery. The benefit is
considered an addition to the leave benefits
granted under existing laws and should be
added on top of said statutory leave
entitlements.

Period of entitlement
The 2 months special leave is the maximum
period of leave with pay that a woman
employee may avail of under RA 9710.
For purposes of determining the period of
leave with pay that will be allowed to a female
employee, the certification of a competent
physician as to the required period of
recuperation shall be controlling. [Sec. 4, DO
112, as amended]

If the SLB has already been exhausted, the
company leave and other mandated leave
benefits may be availed of by the woman
employee. [Sec. 8, DO 112, as amended]
Special leave benefit vis-à-vis maternity leave
benefit
Where the woman employee had undergone
surgery due to gynecological disorder during
her maternity leave, she is entitled only to the
difference between the SLB and maternity
leave benefit. [Sec. 9, DO 112, as amended]

Availment
The special leave shall be granted to the
qualified employee after she has undergone
surgery. [Sec. 5, DO 112, as amended]
Frequency of availment
A woman employee can avail of the SLB for
every instance of surgery due to gynecological
disorder for a maximum total period of 2
months per year. [Sec. 6, DO 112, as amended]

Crediting of existing or similar benefits
If there are existing or similar benefits under a
company policy, practice or CBA providing
similar or equal benefits to what is mandated
by law, the same shall be considered as
compliance, unless the company policy,
practice or CBA provides otherwise.

Special leave benefit vis-à-vis SSS sickness
benefit
The SLB is different from the SSS sickness
benefit. The former is granted by the employer
in accordance with RA 9710.

In the event the company policy, practice or
CBA provides lesser benefits, the company
shall grant the difference.

It is granted to a woman employee who has
undergone surgery due to gynecological
disorder. The SSS sickness benefit, on the
other hand, is administered and given by the
SSS in accordance with RA 1161 as amended by
RA 8282. [Sec. 7, DO 112, as amended]

More liberal existing or similar benefits cannot
be withdrawn or reduced by reason of the
mandate of RA 9710.
The term “similar or equal benefits” refers to
leave benefits which are of the same nature
and purpose as that of the SLB. [Sec. 10, DO
112, as amended]

Special leave benefit vis-à-vis existing statutory
leaves
The SLB cannot be taken from existing
statutory leaves (i.e. 5-day SIL, leave for
60

UP LAW BOC

LABOR STANDARDS

Mode of payment
The SLB is a leave privilege. The woman
employee shall not report for work for the
duration of the leave but she will still receive
her salary covering said period. The employer,
in its discretion, may allow said employee to
receive her pay for the period covered by the
approved leave before or during the surgery.
The computation of her “pay” shall be based
on her prevailing salary at the time of the
surgery. [Sec. 11, DO 112, as amended]

LABOR LAW

employees not falling within this definition
shall be considered rank-and-file employees.
(Sec 2, Rule VI, Book 3, IRR)
Distribution
Service charges are distributed in accordance
with the following percentage of sharing:
 Eighty-five percent (85%) for the
employees to be distributed equally
among them;
 Fifteen percent (15%) for the management
to answer for losses and breakages and, at
the discretion of the management,
distribution to managerial employees. (Sec
3, Rule VI, Book 3, IRR)

Non-commutation of the benefit
The SLB shall be non-cumulative and nonconvertible to cash unless otherwise provided
by a CBA [Sec. 12, DO 112, as amended]

The shares shall be distributed to employees
not less than once every 2 weeks or twice a
month at intervals not exceeding 16 days. (Sec
4, Rule VI, Book 3, IRR)

G. SERVICE CHARGES
Coverage
Employers (Sec 1, Rule VI, Book 3, IRR)
This rule shall apply only to establishments
which collect service charges such as:
(1) Hotels, restaurants, lodging houses, night
clubs, cocktail lounge, massage clinics,
bars, casinos and gambling houses and
similar enterprises
(2) Including those entities operating primarily
as private subsidiaries of the Government

Note: The P2,000.00 salary ceiling for
entitlement thereto is no longer applicable.
Integration
In case service charge is abolished, the shares
of covered employees shall be considered
integrated in their wages. (Art 96, LC)
The basis of the amount to be integrated shall
be the average monthly share of each
employee for the past twelve (12) months
immediately preceding the abolition of
withdrawal of such charges. (Sec. 5, Rule VI,
Book 3, IRR)

Employees
Shall apply to ALL employees of covered
employers
(1) Regardless of their positions, designations,
or employment status,
(2) Irrespective of the method by which their
wages are paid.

Synthesis of the Rules
 Service charges must be pooled;
 Where
a
restaurant
or
similar
establishment does not collect service
charges but has a practice or policy of
monitoring and pooling tips given
voluntarily by its customers to its
employees, the pooled tips should be
monitored, accounted for and distributed

Exceptions
Managerial employees – or one who is vested
with powers or prerogatives to lay down and
execute managerial policies and/or hire,
transfer, suspend, layoff, recall, discharge,
assign or discipline employees or to effectively
recommend such managerial actions. All
61

UP LAW BOC



LABOR STANDARDS

in the same manner as the services
charges. (DOLE Handbook on Workers’
Statutory Monetary Benefits, 2014ed.)
The amount collected is divided between
the company (15%) and employees (85%);
It shall be given twice a month with
intervals of not more than 15 days;
If discontinued, removed, or stopped, the
average share of the employees of their
service charge or tips shall be integrated
with their basic wage.

LABOR LAW

(2) Employers already paying their employees
a 13th month pay or more in a calendar
year or its equivalent at the time of this
issuance; and
(3) Employers of those who are paid on purely
commission, boundary or task basis and
those who are paid a fixed amount for
performing specific work, irrespective of
the time consumed in the performance
thereof (except those workers who are paid
on piece-rate basis, in which case their
employer shall grant them 13th month pay).

H. THIRTEENTH (13TH) MONTH PAY
AND OTHER BONUSES

Note:
“Equivalent” includes:
(1) Christmas bonus, mid-year bonus, cash
bonuses
(2) and other payments amounting to not
less than 1/12 of the basic salary
(3) but shall NOT INCLUDE cash and stock
dividends, cost of living allowances and
all other allowances regularly enjoyed
by the employee as well a nonmonetary benefits.

(PD 851 (The 13th-Month Pay Law) and the
Revised Guidelines on the Implementation of
the 13th Month Pay Law)
Rationale
 To further protect the level of real wages
from the ravage of world-wide inflation;
 There has been no increase in the legal
minimum wage rates since 1970;
 The Christmas season is an opportune time
for society to show its concern for the
plight of the working masses so they may
properly celebrate Christmas and New
Year.

Workers paid on a piece-rate basis
Those who are paid a standard amount for
every piece or unit of work produced that is
more or less regularly replicated, without
regard to the time spent in producing the
same.

Coverage
General Rule: ALL EMPLOYERS are hereby
required to pay all their rank and file
employees a 13th month pay not later than Dec
24 of every year, Provided that they have
worked for at least one (1) month during a
calendar year.

Minimum Amount: 1/12 of the total basic
salary earned by an employee within a
calendar year
BASE AMOUNT, which is the basic salary shall
include:
(1) Cost of living allowances (COLA) integrated
into the basic salary of a covered employee
pursuant to EO 178.
(2) All remunerations or earnings paid by this
employer for services rendered.
(3) But not the allowances and monetary
benefits which are not considered or

Exempted Employers:
(1) Government, its political subdivisions,
including GOCCs except those operating
essentially as private subsidiaries of the
Government;

62

UP LAW BOC

LABOR STANDARDS

integrated as part of the regular or basic
salary, such as the cash equivalent of:
(a) Unused vacation and sick leave
credits,
(b) Overtime,
(c) Premium,
(d) Night differential,
(e) Holiday pay and, and
(f) Cost-of-living allowances.

LABOR LAW

from all their private Employers regardless
of their total earnings from each or all their
employers. (Revised Guidelines)
(4) Private School Teachers: Private school
teachers, including faculty members of
universities and colleges, are entitled to
the required 13th month pay, regardless of
the number of months they teach or are
paid within a year, if they have rendered
service for at least one (1) month within a
year. (Revised Guidelines)

Time of payment
General Rule: paid not later than Dec 24 of
each year.

Overload pay is NOT included in the
computation for 13th month pay; overload is
not overtime as it is additional work done
within the normal shift [Letran Calamba
Faculty vs NLRC, (2008)]
(1) Resigned or Separated Employee: An
Employee who has resigned or whose
services were terminated at any time
before the time for payment of the 13th
month pay is entitled to this monetary
benefit in proportion to the length of time
he worked during the year, reckoned from
the time he started working during the
calendar year up to the time of his
resignation or termination from service.
[Revised Guidelines]
(2) Wage Difference: The difference between
the minimum wage and the actual salary
received by the Employee cannot be
deemed as his 13th month pay as such
difference is not equivalent to or of the
same import as the said benefit
contemplated by law. [JPL Marketing
Promotions vs CA, 2005]
(3) Terminated Employees: The payment of the
13th month pay may be demanded by the
employee upon the cessation of employeremployee
relationship.
[Archilles
Manufacturing Corp. vs NLRC, 1995]

Exception: ER may give to his employees half
(½) of the required 13th Month Pay before the
opening of the regular school year and the
other half on or before the 24th of December
every year.
The frequency of payment of this monetary
benefit may be the subject of agreement
between the employer and the recognized
CBA of the employees.
13th Month Pay in Special Cases
(1) Paid by Results: Employees who are paid
on piece work basis are, by law, entitled to
the 13th Month Pay. (Revised Guidelines on
the Implementation of the 13th Month Pay
Law)
(2) Fixed or Guaranteed Wage: Employees who
are paid a fixed or guaranteed wage plus
commission are entitled to 13th month pay
(not purely commission); the basis for
computation shall be both their fixed or
guaranteed wage and commission.
(Revised Guidelines)
(3) Those
with
Multiple
Employers:
Government Employees working part time
in a private enterprise, including private
educational institutions, as well as
Employees working in two or more private
firms, whether on full or part time bases,
are entitled to the required 13th Month Pay
63

In the instant case. vs NLRC (1995)] (2) Substitute Payment not allowed: Benefits in the form of food or free electricity. were excluded from the term “basic salary” because these were paid to the medical representatives and rank-and-file employees as “productivity bonuses. and hence as part of the “wage” or salary of petitioner’s salesmen. The socalled commissions “paid to or received by medical representatives of Boie-Takada Chemicals or by the rank-and-file employees of Philippine Fuji Xerox Co. DOLE Handbook on Worker’s Statutory Monetary Benefits. LC. then they should be EXCLUDED. However. To be exempted. [Marcopper Mining Corp. 283 & 284. The two cases present quite different factual situations (although the same word “commissions” was used or invoked) the legal characterizations of which must accordingly differ. Duplicators vs NLRC (1995)] Commissions vis-à-vis 13th month pay The Rule on Productivity Bonuses. [Phil. They are not overtime payments. Neither may year-end rewards for loyalty and service be considered in lieu of 13th month pay. when given. Ople (1981)] I. they could be exempted from the operation of the decree. or profit sharing payments or any other fringe benefit. there must be actual payment. Inc. then they should be INCLUDED. If they are not an integral part of the basic salary.[Kamaya Point Hotel vs NLRC (1989)] LABOR LAW the other. 2014) Separation pay is defined as the amount that an employee receives at the time of his severance from the service and is designed to provide the employee with the wherewithal during the period that he is looking for another employment. if the employers actually grant such for the 13th month pay in the monetary benefits provided for in the CBA. there is no question that the sales commission earned by the salesmen who make or close a sale of duplicating machines constitute part of the compensation or remuneration paid to salesmen for serving as salesmen. a bonus is an amount granted and paid ex gratia to an employee. [Phil. More generally. should not be deemed to fall within the “basic salary” of employees when the time comes to compute their 13th month pay [BoieTakeda vs de la Serna (1993)] CBA vis-à-vis 13th month pay The Presidential Decree is specific and mandatory. were not a proper substitute for the 13th month pay required by law. the greater part of the salesmen’s wages or salaries being composed of the sales or incentive commissions earned on actual sales closed by them. assuming they were given. SEPARATION PAY [(Art. It appears that petitioner pays its salesmen a small fixed or guaranteed wage.UP LAW BOC LABOR STANDARDS Additional Rules: (1) Commissions: If the commissions may be properly considered part of the basic salary.” These have no clear direct or necessary relation to the amount of work actually done by each individual employee. If an employer cannot be compelled to pay a productivity bonus to its employees.. [A’ Prime Security Services vs NLRC (1993)] The decision in Boie-Takeda and the doctrine enunciated in this case in fact co-exist with 64 . vs. vs MOLE (1989)] (3) 14th Month Pay is not mandated: Employers already paying their employees a 13th month pay or its equivalent are not covered by this Decree. [Framanlis Farms. it should follow that such productivity bonus. Duplicators Inc. The sales commissions were an integral part of the basic salary structure.

v. (2) Closure or cessation of operation of an establishment not due to serious losses or financial reverses. (2) Redundancy. (3) Impossible reinstatement of the employee to his/her former position or to a substantially equivalent position for reasons not attributable to the fault of the employer. 2014 ed. 282. (3) When the EE is suffering from a disease not curable within a period of six (6) months and his/her continued employment is prejudicial to his/her health or to the health of his/her co-employees In no case will an employee get less than one (1) month separation pay if the separation is due to the above stated causes and he/she has served for at least six (6) months. v. or is sanctioned by established practice or policy of the employer. [PLDT vs NLRC (1988)] LABOR LAW Handbook on Workers’ Statutory Monetary Benefits. San Miguel Corp v. (DOLE Notice of Termination The employer may terminate the employment of any employee due to the above-mentioned authorized causes by serving a written notice on the employee and the DOLE through its regional office having jurisdiction over the place of business at least 1 month before the intended date thereof. LC) is not entitled to separation pay. if his/her separation from the service is due to any of the following authorized causes: (1) Retrenchment to prevent losses (i.) One-Month Pay per Year of Service An employee is entitled to separation pay equivalent to his/her one-month pay for every year of service. Basis of Separation Pay The computation of separation pay of an employee shall be based on his/her latest salary rate. a fraction of at least 6 months being considered as one whole year. a fraction of at least six (6) months being considered as one whole year. reduction of personnel effected by management to prevent losses). Hinatuan Mining Corp vs NLRC (1997) cited in JPL Marketing Promotions v. and. CA (2005)] Amount One-Half (1/2) Month Pay per Year of Service An employee is entitled to receive separation pay equivalent to ½ month pay for every year of service. [Gaco vs NLRC (1994)] Exceptions: Considerations of equity as in the cases of Filipro. v. Inc. as when the position of the employee has been found to be excessive or unnecessary in the operation of the enterprise. Engineering Equipment. 2014 ed. or the collective bargaining agreement. if his/her separation from service is due to any of the following: (1) Installation by employer of labor-saving devices. NLRC. [PLDT vs NLRC (1988)] An employee who voluntarily resigns is not entitled to separation pay unless stipulated in the employment contract.e. or the position to which he/she is to be reinstated no longer exists and there is no substantially equivalent position in the establishment to which he/she can be assigned. as when the reinstatement ordered by a competent authority cannot be implemented due to closure of cessation of operations of the establishment/employer. Inc. NLRC. Metro Drug Corp. [DOLE Handbook on Workers’ Statutory Monetary Benefits.UP LAW BOC LABOR STANDARDS General rule: The rule embodied in the Labor Code is that a person dismissed for cause as defined therein (see Art.] 65 . NLRC. [Phimco Industries vs NLRC (1997). NLRC.

UP LAW BOC LABOR STANDARDS Inclusion of Regular Allowance in the Computation In the computation of separation pay. and (3) employees in retail. and irrespective of the method by which their wages are paid [Sec.A. ELIGIBILITY General Rule: All employees in the private sector. service and agricultural establishments or operations regularly employing not more than ten employees [Sec. (2) domestic helpers and persons in the personal service of another. vs Caballeda. IRR. 2006] Pursuant thereto. v.. There should be little doubt about the fact that the law can apply to labor contracts still existing at the time the statute has taken effect." only applies in a situation where: (1) there is no collective bargaining agreement or other applicable employment contract providing for retirement benefits for an employee.A.1. but it is below the requirements set for by law. a voluntary agreement between the employer and the employee whereby the latter. an employer is free to impose a retirement age less than 65 for as long as it has the employees’ consent… having terminated petitioner solely on the basis of a provision of a retirement plan which was not freely assented to by her. regardless of their position. 2. RETIREMENT PAY [RA 7641 . Inc. The salary base properly used in computing the separation pay should include not just the basic salary but also the regular allowances that an employee has been receiving. [Planters’ Products. an agreement with. RA 7641] Rationale RA 7641 is undoubtedly a social legislation. Inc. and (2) the claimant had complied with the requirements for eligibility for such retirement benefits under the statute. or a voluntary grant from. 2008] Exceptions: (1) employees covered by the Civil Service Law. 2007] J. Cabotaje. to the financial well-being of workers during their twilight years soon following their life of labor. vs NLRC (1989)] LABOR LAW Retirement . it would be error not to integrate the allowance with the basic salary. this Court imposed two (2) essential requisites in order that R. 7641 may be given retroactive effect: (1) the claimant for retirement benefits was still in the employ of the employer at the time the statute took effect. The law has been enacted as a labor protection measure and as a curative statute that absent a retirement plan devised by. [Universal Robina Sugar Milling Corp. or status. designation. The reason for the first situation is to prevent the absurd situation where an employee. RA 7641] Exclusions from coverage R.the result of a bilateral act of the parties. an employer can respond. after reaching a certain age agrees to sever his or her employment with the former . respondent was guilty of illegal dismissal [Jaculbe vs Silliman University. OR (2) there is a collective bargaining agreement or other applicable employment contract providing for retirement benefits for an employee. 1. [Enriquez Security Services. IRR. 7641.The Retirement Pay Law] J. No. who 66 . otherwise known as "The Retirement Pay Law.. in part at least. and that its benefits can be reckoned not only from the date of the law's enactment but retroactively to the time said employment contracts have started.

2007] Other benefits may be included in the computation of the retirement pay upon agreement of the ER and the EE or if provided in the CBA. an employee upon reaching the age of sixty (60) years or more. Compulsory retirement – in the absence of a retirement plan or other applicable agreement providing for retirement benefits of EEs in an establishment. but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age (and have served the establishment for at least 5 years). Confessor. 2008] LABOR LAW (2) Cash equivalent of five (5) days of service incentive leave. “one-half month salary” shall include all of the following: (1) Fifteen (15) days salary based on the latest salary rate. Inc. “one-half month salary” is equivalent to 22. is denied retirement benefits by the nefarious scheme of employers in not providing for retirement benefits for their employees.083 x 30. [Capitol Wireless.UP LAW BOC LABOR STANDARDS is otherwise deserving. AMOUNT OF RETIREMENT PAY The minimum retirement pay shall be equivalent to one-half (1/2) month salary for every year of service. (1/12 x 365/12 = . Reyes v NLRC. [Sec. Age of retirement In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment. IRR. a fraction of at least six (6) months being considered as one whole year. 4. Optional retirement – in the absence of a retirement plan or other applicable agreement providing for retirement benefits of EEs in an establishment. [Sec. an EE may retire upon reaching the age of 60 or more if he has served for at least 5 years in said establishment.41 = 2.52) Thus.5 days. an EE shall be retired at the age of 65 years. The benefits under this law are other than those granted by the SSS or the GSIS. 1. a fraction of at least six (6) months being considered as one whole year. designation or status and irrespective of the method by which their wages are paid are entitled to retirement benefits upon compulsory retirement at the age of sixty-five (65) or upon optional retirement at sixty (60) or more but not 65. The reason for the second situation is expressed in the Latin maxim pacta private juri public derogare non possunt. and provided further that if such retirement benefits under the agreement are less. however. vs Sec. Private contracts cannot derogate from the public law. the ER shall pay the difference. J. The minimum retirement pay due covered employees shall be equivalent to one-half month salary for every year of service. RA 7641] Retirement Benefits under a CBA or Applicable Contract Any EE may retire or be retired by his/her ER upon reaching the age established in the CBA or other applicable agreement/contract and shall receive the retirement benefits granted therein. IRR. For the purpose of computing retirement pay. provided. 67 .2. that such retirement benefits shall not be less than the retirement pay required under RA 7641. RA 7641] Retirement pay under RA 7641 vis-à-vis retirement benefits under SSS and GSIS laws RA 7641 mandates payment of retirement benefits. [Oxales vs Unilab. All private sector employees regardless of their position. 1996. (3) One-twelfth (1/12) of the 13th month pay.

gratuity. the term "reasonable private benefit plan" means a pension. RETIREMENT BENEFITS OF WORKERS WHO ARE PAID BY RESULTS For covered workers who are paid by result and do not have a fixed monthly salary rate. whether individual or corporate . TAXABILITY Where both the ER and the EE contribute to a retirement fund pursuant to the applicable agreement. and should have rendered at least 5 years of service with the ER. RA 4917] Applying the foregoing principle. Any provision of law to the contrary notwithstanding. the components of retirement benefit of part-time workers may likewise be computed at least in proportion to the salary and related benefits due them. finally. or be diverted to. (b) The EE should have reached the age of 60 years. any purpose other than for the exclusive benefit of the said officials and employees. or other physical disability or for any cause beyond the control of the said official or employee. stock bonus or profit sharing plan maintained by an employer for the benefit of some or all of his officials and employees. the basis for the determination of the salary for 15 days shall be their average daily salary (ADS). Provided.5. If such total portion from the ER is less. As used in this Act. and wherein it is provided in said plan that at no time shall any part of the corpus or income of the fund be used for.] 68 .4. sickness. for the purpose of distributing to such officials and employees the earnings and principal of the fund thus accumulated. garnishment. levy or seizure by or under any legal or equitable process whatsoever except to pay a debt of the official or employee concerned to the private benefit plan or that arising from liability imposed in a criminal action: Provided. 1. the retirement benefits received by officials and employees of private firms. RETIREMENT BENEFIT OF PARTTIME WORKERS Part-time workers are also entitled to retirement pay of “one-month salary” for every year of service under RA 7641 after satisfying the following conditions precedent for optional retirement: (a) There’s no retirement plan between the ER and the EE. any amount received by him or by his heirs from the employer as a consequence of such separation shall likewise be exempt as hereinabove provided. J. wherein contributions are made by such employer or officials and employees. [DOLE Handbook on Workers’ Statutory Monetary Benefits.3.UP LAW BOC LABOR STANDARDS LABOR LAW J. provided that the determination of rates of payment by results are in accordance with established regulations. the ER’s total contributions and the accrued interest thereof should not be less than the total retirement benefits to which the EE would have been entitled had there been no such retirement benefits’ fund. J. and. That the retiring official or employee has been in the service for at least ten (10) years and is not less than fifty years of age at the time of his retirement: Provided. the ER shall pay the deficiency. in accordance with a reasonable private benefit plan maintained by the employer shall be exempt from all taxes and shall not be liable to attachment. That the benefits granted under this Act shall be availed of by an official or employee only once. The ADS is derived by dividing the total salary or earning for the last 12 months reckoned from the date of retirement by the number of actual working days in that particular period. or both. further. 2014 ed.[Sec. That in case of separation of an official or employee from the service of the employer due to death.

and. sickness or other physical disability or for any cause beyond the control of the said official or employee. gratuity. The following are acts of discrimination: (1) Payment of a lesser compensation.means a pension.[Consti Art XIII Sec 14] Additional conditions (a) That the retiring official or employee has been in the service of the same employer for at least ten (10) years and is not less than fifty years of age at the time of his retirement. stock bonus or profit sharing plan maintained by an employer for the benefit of some or all of his officials and employees. WOMEN WORKERS The State recognizes the role of women in nation-building. whether operating for profit or not. the retirement benefits received by officials and employees of private firms. garnishment. PROVISIONS DISCRIMINATION AGAINST It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex. General Statement on Coverage. taking into account their maternal functions. and wherein it is provided in said plan that at no time shall any part of the corpus or income of the fund be used for. K. to a female employees as against a male employee. (c) That in case of separation of an official or employee from the service of the employer due to death. including educational.[Consti Art II Sec 14] Exception Except to pay a debt of the official or employee concerned to the private benefit plan or that arising from liability imposed in a criminal action: The State shall protect working women by providing safe and healthful working conditions. and Reasonable private benefit plan . levy or seizure by or under any legal or equitable process whatsoever [Intercontinental Broadcasting Corp. wherein contributions are made by such employer or officials and employees.UP LAW BOC LABOR STANDARDS Any provision of law to the contrary notwithstanding. for work of equal value. or be diverted to. whether individual or corporate. (b) That the retirement benefits shall be availed of by an official or employee only once. and shall ensure the fundamental equality before the law of women and men. including wage. 2006] LABOR LAW and employees the earnings and principal of the fund thus accumulated. except to the Government and to government-owned or controlled corporations and to employers of household helpers and persons in their personal service insofar as such workers are concerned. or both.[Omnibus Rules Bk III Rule XII Sec 1] K. religious and charitable institutions. for the purpose of distributing to such officials 69 .1. salary or other form of remuneration and fringe benefits. and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. any purpose other than for the exclusive benefit of the said officials and employees. v Amorilla. in accordance with a reasonable private benefit plan maintained by the employer (1) shall be exempt from all taxes and (2) shall not be liable to attachment. any amount received by him or by his heirs from the employer as a consequence of such separation shall likewise be exempt as hereinabove provided. – This Rule shall apply to all employers.

135] Note: Nightwork/ Exception (Art 130-131) – No more nightwork prohibition under R. 2004] Coverage. after consulting the workers' representatives/labor organizations and employers. otherwise known as the Labor Code of the Philippines) K. Night worker means any employed person whose work requires performance of a substantial number of hours of night work which exceeds a specified limit. [Star Paper Corp.Measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such work: (a) Before and after childbirth. stock raising. who shall be employed or permitted or suffered to work at night. [Duncan Association of Detailmen vs. Glaxo Wellcome. to be determined by the Secretary of Labor and Employment. discharge. [Art. 70 .This chapter shall apply to all persons. for a period of at least sixteen (16) weeks.3. study and scholarship grants solely on account of their sexes. . This limit shall be fixed by the Secretary of Labor after consulting the workers' representatives/labor organizations and employers. PROHIBITED ACTS (2) Favoring a male employee over a female employee with respect to promotion. Simbol. vs. or (2) stipulate expressly or tacitly that upon getting married a woman employee shall be deemed resigned or separated or (3) actually dismiss. Labor Code][Duncan Assoc of Detailman – PTGWO v Glaxo Wellcome. which shall be divided between the time before and after childbirth. as amended.133.UP LAW BOC LABOR STANDARDS LABOR LAW K. The prohibition was reasonable under the circumstances because relationships of such nature might compromise the interests of the company. maritime transport and inland navigation. including the interval from midnight to five o'clock in the morning. an ER may discriminate against an EE based in the identity of the EE’s spouse. RA 10151] Bona fide occupational qualification exception When the employer can prove that the reasonable demands of the business require a distinction based on marital status and there is no better available or acceptable policy which would better accomplish the business purpose. [Art. STIPULATION AGAINST MARRIAGE It shall be unlawful for an employer to: (1) require as a condition of employment or continuation of employment that a woman employee shall not get married. discriminate or otherwise prejudice a woman employee merely by reason of her marriage. (b) For additional periods. training opportunities.2. . during a period of not less than seven (7) consecutive hours. Labor Code] [Art.A. thereby Repealing Articles 130 and 131 of PD 442. 2004] Women Night Workers. 2006] The Court sustained the validity of employer policy prohibiting an employee from having a personal or marital relationship with an employee of a competitor. fishing. except those employed in agriculture. 10151 (An Act Allowing the Employment of Night Workers. [Article 154. in respect of winch a medical certificate IS produced stating that said additional periods are necessary for the health of the mother or child: (1) During pregnancy. 134.

(ii) A woman worker shall not lose the benefits regarding her status. The measures referred to in this article may include transfer to day work where this is possible. No school shall turn out or refuse admission to a female student solely on the account of her having contracted pregnancy outside of marriage during her term in school. Discharge on account of testimony To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant. promotions. after childbirth is fixed pursuant to subparagraph (a) above. and specify. RA 10151] Discrimination [Art 133. childbirth and childcare responsibilities. K. the provision of social security benefits or an extension of maternity leave.Anti-Sexual Harassment Act of 1995] Forms of Sexual Harassment (1) Employment or Work Related (a) The sexual favor is made as a condition (i) in the hiring or in the employment. [Art. terms. 13(c). while on leave or in confinement due to her pregnancy. ANTI-SEXUAL HARASSMENT [RA 7877 . shall certify their fitness to render night work. re-employment or continued employment of said individual or (ii) in granting said individual favorable compensation. the length of which shall be determined by the DOLE after consulting the labor organizations and employers. and access to promotion which may attach to her regular night work position.UP LAW BOC LABOR STANDARDS (2) During a specified time beyond the period. RA 9710] The measures referred to in this article may include transfer to day work where this is possible. other than the company physician. or privileges. 135 (1)] Discharge on account of pregnancy To discharge such woman on account of her pregnancy. Sec 13(d). [Art. LABOR LAW Discharge to prevent enjoyment of benefits To deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code. conditions. Rule XII. [Sec. 137 (3)] It shall be unlawful for any employer: …to discharge any woman or child or any other employee for having filed a complaint or having testified or being about to testify under the Code [Book III.4. [Art. IRR] Pregnant women and nursing mothers may be allowed to work at night only if a competent physician. except for just or authorized causes provided for in this Code that are not connected with pregnancy. in the case of pregnant employees.[Article 158. Expulsion of Women faculty/ female student due to pregnancy outside of marriage Expulsion and non-readmission of women faculty due to pregnancy outside of marriage shall be outlawed. the period of the pregnancy that they can safely work. 135 (2)] During the periods referred to in this article: (i) A woman worker shall not be dismissed or given notice of dismissal. or The provisions of this article shall not leave the effect of reducing the protection and benefits connected with maternity leave under existing laws. seniority. the provision of social security benefits or an extension of maternity leave. RA 9710] See previous section Stipulation against marriage [Art 134] See previous section 71 .

He shall be solidarily liable for damages: (1) if he is informed of such acts by the offended party and (2) no immediate action is taken thereon. 7. [Sec. who demands. or (ii) result in an intimidating. supervisor. [Sec. hostile. influence or moral ascendancy over another in a work or training or education environment. RA 7877] (2) Education or Training environment. [Sec. Termination As a managerial employee. OR (3) Any person who cooperates in the commission by another without which it would NOT have been committed. 3. RA 7877] Sanctions Criminal: imprisonment of 1 month to mos. manager. or (d) When the sexual advances result in an intimidating. petitioner is bound by more exacting work ethics. custody or supervision of the offender (b) Against one whose education. trainer or any other person. segregating or classifying the EE which in any way would discriminate. LABOR LAW (2) Any person who directs or induces another to commit any act of sexual harassment as herein defined. 1999] 72 . trainee or apprentice. request for requirement for submission is accepted by the object of said act having authority. It is the right. allowance or other benefits. RA 7877] [Libres vs NLRC. privileges. 5. 4.UP LAW BOC LABOR STANDARDS (iii) in the refusal to grant the sexual favor results in limiting. regardless of whether the demand. [Sec. (c) When the sexual favor is made a condition to the giving of a passing grade. agent of the employer. In an education or training environment. education or trainingrelated sexual harassment can institute a separate and independent action for damages and other affirmative relief. RA 7877] Role of the employer or Head of Office The Employer or Head of Office shall have the duty: (1) to prevent the commission of such acts and (2) to lay down the procedure for the resolution. (b) The above acts would either: (i) impair the employee’s rights or privileges under existing labor laws. or the payment of a stipend. coach. settlement or prosecution of committed acts. instructor. hostile or offensive environment for the result. professor. or offensive environment for the employee. deprive or diminish employment opportunities or otherwise adversely affect said employee. Or fine of P10k to P20k or both Prescription of such action is in 3 years. or considerations. sexual harassment is committed: (a) Against one who is under the care. 6. When such moral perversity is perpetuated against his subordinate. training. RA 7877] Independent Action for Damages The victim of work. shall also be held liable under this Act [Sec. teacher. Persons who may be liable (1) Any employer. or the granting of honors and scholarships. requests or otherwise requires any sexual favor from another. he provides a justifiable ground for his dismissal for lack of trust and confidence. employee. apprenticeship or tutorship is entrusted to the offender. nay the duty of every employer to protect its employees from oversexed superiors.

and more importantly.Children below fifteen (15) years of age shall not be employed except: (1) When a child works directly under the sole responsibility of his/her parents or legal guardian and where only members of his/her family are employed: Provided. health. That his/her employment neither endangers his/her life. and morals. [Phil. vs NLRC. The time to do so may vary depending upon the needs. or (2) Where a child's employment or participation in public entertainment or information through cinema. circumstances. Strictly speaking. MINOR WORKERS Relevant Laws: RA 7610 (Special Protection of Children Against Abuse. 2000] L.[Art II. morals and normal development of the child. and the duration and arrangement of working time. even corporate. scandal. the emotional threshold of the employee. television or other forms of media is essential: Provided. however. Exploitation and Discrimination Act). RA 9231 (Special Protection of Children Against Child Abuse. Employment of Children . and (c) The employer shall formulate and implement. may rightfully cry "foul" provided the claim is well substantiated. Perhaps. if possible. If petitionercorporation had not issued the third memorandum that terminated the services of private respondent.UP LAW BOC LABOR STANDARDS LABOR LAW General Rule: Children below 15 shall NOT be employed 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. nor impairs his/her normal development: Provided. male or female. with the express agreement of the child concerned. there is no time period within which he or she is expected to complain through the proper channels. to private respondent's mind. 13 of the 1987 Constitution] 73 . and social wellbeing. That the following requirements in all instances are strictly complied with: (a) The employer shall ensure the protection. (b) The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration. Exploitation and Discrimination Act). spiritual. intellectual. and the approval of the Department of Labor and Employment: Provided. That the employment contract is concluded by the child's parents or legal guardian. radio. further. Any employee. further. moral. Aelous Automotive United Corp. Sec. 137(a) Constitutional basis: The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical. Art. health. safety. and encourage their involvement in public and civic affairs. That the parent or legal guardian shall provide the said child with the prescribed primary and/or secondary education. we could only speculate how much longer she would keep her silence. theater. for as long as she could outwit her employer's ploys she would continue on her job and consider them as mere occupational hazards. Not many women are made of the stuff that can endure the agony and trauma of a public. subject to the approval and supervision of competent authorities. safety. It shall inculcate in the youth patriotism and nationalism. a continuing program for training and skills acquisition of the child.

and the duration and arrangement of working time (e) The ER shall formulate and implement. and (c) the parent or legal guardian shall provide the said minor child with the Non-hazardous work shall mean any work or activity in which the EE is not exposed to any risk which constitutes an imminent danger to his safety and health. [Sec. mental or psychosocial development Working child . subject to the approval and supervision of competent authorities. health. a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements.refers to any child engaged as follows: (1) when the child is below eighteen (18) years of age. RA 9231] Child . in work or economic activity that is not child labor as defined in the immediately preceding subparagraph. before engaging such child. [SEC 3. 12 of RA 7610 as amended by RA 7658] For purposes of this Article. and approved by DOLE (c) The ER shall ensure the protection. (b) nor impairs his normal development.UP LAW BOC LABOR STANDARDS LABOR LAW prescribed primary and/or secondary education. 3. IRR of LC] The Secretary of Labor shall from time to time publish a list of hazardous work and activities in which persons 18 years of age and below 74 . safety. or in public entertainment or information. theater. safety and morals of the child (d) The ER shall institute measures to prevent the child’s exploitation or discrimination taking into account the system and level of remuneration. a continuing program for training and skills acquisition of the child.refers to any work or economic activity performed by a child that subjects him/her to any form of exploitation or is harmful to his/her health and safety or physical. tobacco and its by-products or violence [Sec. 14. health and morals. RA 7610] (b) the employment contract is concluded by the child’s parents or guardian. radio or television is essential. 12 of RA 7610 as amended by RA 7658]: (a) employment does NOT involve ads or commercials promoting alcohol.[Sec 2. provided: (a) his employment does NOT endanger his life. the employer shall first secure. DO 65-04] Employment of Children from 15 to 18 Employment is allowed but restricted to nonhazardous work. and (2) when the child is below fifteen (15) years of age. Rule XII.refers to any person under 18 years of age Child labor . the term "child" shall apply to all persons under eighteen (18) years of age. in work where he/she is directly under the responsibility of his/her parents or legal guardian and where only members of the child‘s family are employed. (2) child’s employment or participation in public entertainment or information through cinema. [Sec. [Sec. Exceptions (1) Child works directly under the sole responsibility of his parents or legal guardian and where only members of the ER’s family are employed. Book III. provided that [Sec. 12 of RA 7610 as amended by RA 7658] In the above-exceptional cases where any such child may be employed.

Article 143 of Presidential Decree No. 143. as amended.) 15 to below 18 10 pm to 6 am (8 hrs. Subparagraphs (1). RA 10361] Domestic worker or “Kasambahay” . [Sec. and mechanized farming. the Regional Tripartite and Productivity Wage Boards shall review. P2. Rule XII. Quezon. Pasig. (2) construction work. deep sea fishing. RA 10361] Working Hours of a Child Quantity Age Bracket Daily Max Weekly Max Below 15 y 4 hrs 20 hrs 15 to below 18 8hrs. [Sec.UP LAW BOC LABOR STANDARDS cannot be employed [Sec. (6) Six hundred fifty pesos (P650. — (a) Househelpers shall be paid the following minimum wage rates. the following: general househelp. blasting. Title III of Book III of the Labor Code Domestic work . [Sec 4(C). Parañaque. Pasay and Caloocan cities and municipalities of Makati. RA 10361] The following are HAZARDOUS workplaces: (1) Nature of the work exposes the workers to dangerous environmental elements. but not limited to. stevedoring. “Employment of Househelpers”. (2) and (3). 442. Mandaluyong. Valenzuela. (4) exposure to or use of heavy power-driven machinery or equipment. 24. contaminants or working conditions. P1.00) a month for househelpers in Manila. Muntinlupa. and if proper. mining. Relevant Law: RA 10361 (Batas Kasambahay or Domestic Worker’s Act) Note: RA 10361 has expressly repealed Chapter III. P2. (1) Eight hundred pesos (P800. RA 10361] The term domestic worker or “kasambahay” excludes any person who performs domestic work only occasionally or sporadically and not on an occupational basis.) SECTION 1. 40 hrs Night work prohibition Age Bracket Prohibited Hours Below 15 y 8 pm to 6 am (10 hrs. (5) exposure to or use of power-driven tools Rights and Privileges (a) Minimum wage The minimum wage of domestic workers shall not be less than the following: i. Book III. cook. gardener.500 a month for those employed in other municipalities Within one year from the effectivity of the Act. logging. and periodically thereafter.Refers to any person engaged in domestic work within an employment relationship such as.This refers to work performed in or for a household or households.4(D). (3) manufacture or handling of explosives and other pyrotechnic products. Las Piñas. fire-fighting. 75 . Navotas.00) a month for those in other chartered cities and first class municipalities. EMPLOYMENT OF HOUSEHELPERS ART. IRR of LC] LABOR LAW nursemaid or “yaya”. quarrying. Minimum wage. otherwise known as the "Labor Code of the Philippines" are hereby amended to read as follows: M. 3. determine and adjust the minimum wage rates of domestic workers.500 a month for those employed in NCR ii. San Juan. Marikina. Malabon.000 a month for those employed in chartered cities and first class municipalities iii. dock work. Taguig and Pateros in Metro Manila and in highly urbanized cities. or laundry person. [Sec 4(D).

(d) Privacy Respect for the privacy of the domestic worker shall be guaranteed at all times and shall extend to all forms of communication and personal effects [Sec. that the employees shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof. [Sec. [Sec." (f) Education and Training The employer shall afford the domestic worker the opportunity to finish basic education and may allow access to alternative learning systems and. Lodging and Medical Attendance The employer shall provide for the basic necessities of the domestic worker to include at least three (3) adequate meals a day and humane sleeping arrangements that ensure safety and shall provide appropriate rest and assistance to the domestic worker in case of illnesses and injuries sustained during service without loss of benefits. Section 12(a). 7. [Sec. any other document showing the age of the domestic worker such as voter’s identification card. further. 5. 8. (2) Barangay and police clearance. That in case of emergency. RA 10361] (g) Social and Other Benefits A domestic worker who has rendered at least one (1) month of service shall be covered by the Social Security System (SSS). and the Home Development Mutual Fund or PagIBIG. 9. the Philippine Health Insurance Corporation (PhilHealth). (b) Standard of Treatment The employer or any member of the household shall not subject a domestic worker or “kasambahay” to any kind of abuse nor inflict any form of physical violence or harassment or any act tending to degrade the dignity of a domestic worker. the employer may require the following from the domestic worker: (1) Medical certificate or a health certificate issued by a local government health officer.00) shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder. (c) and (d) shall be standard requirements when the employment of the domestic worker is facilitated through the PEA.00) a month for those in other municipalities. RA 10361] Pre-Employment Requirement Prior to the execution of the employment contract. However. and shall be entitled to all the benefits in accordance with the pertinent provisions provided by law. that those househelpers who are receiving at least One thousand pesos (P1. (b). Provided. Provided. 6. RA 10361] (h) Leave Benefits A domestic worker who has rendered at least one (1) year of service shall be entitled to an annual service incentive leave of five (5) days with pay [Sec. (3) National Bureau of Investigation (NBI) clearance. baptismal record or passport. and (4) Duly authenticated birth certificate or if not available.000. higher education or technical and vocational training. RA 10361] (e) Access to Outside Communication The employer shall grant the domestic worker access to outside communication during free time: Provided. 76 .UP LAW BOC LABOR STANDARDS LABOR LAW access to communication shall be granted even during work time. RA 10361] (c) Board. 29. as far as practicable. RA 10361] and (7) Five hundred fifty pesos (P550. [Sec.

for any of the following causes: (a) Misconduct or willful disobedience by the domestic worker of the lawful order of the employer in connection with the former’s work. Commission of a crime or offense against the domestic worker by the employer or any member of the household. (c) Fraud or willful breach of the trust reposed by the employer on the domestic worker. the employer. (b) Inhuman treatment including physical abuse of the domestic worker by the 77 . or member/s of the household. RA 10361] (c) Time and Manner of Payment: Payment of wages shall be made on time directly to the domestic worker in cash at least once a month and unless allowed by the domestic worker through a written consent. 25. 20. 4] Daily Rest Period: Aggregate of eight (8) hours per day. and Other causes analogous to the foregoing. [Sec. 12. Violation by the employer of the terms and conditions of the employment contract and other standards set forth under this law. and (g) Other causes analogous to the foregoing. RA 10361] Persons between 15-18 years old should only be employed in non-hazardous work. 34. or member/s of the household. [Sec. (e) Violation by the domestic worker of the terms and conditions of the employment contract and other standards set forth under this law. as the case may be. 33. (b) Gross or habitual neglect or inefficiency by the domestic worker in the performance of duties. [Sec. the employer. RA 10361] LABOR LAW employer or any member of the household. [Sec. RA 10361] (d) (e) (f) Right against assignment to non-household work at a wage rate lower than that mandated for agricultural or non-agricultural enterprises depending on the case. Any disease prejudicial to the health of the domestic worker.UP LAW BOC LABOR STANDARDS The cost of the foregoing shall be borne by the prospective employer or agency. RA 10361] Employment Certification: ER shall give the househelper a written statement of the nature and duration of the service and his or her work performance as househelper upon severance. RA 10361] Termination (1) Initiated by the domestic worker The domestic worker may terminate the employment relationship at any time before the expiration of the employment contract for any of the following causes: (a) Verbal or emotional abuse of the domestic worker by the employer or any member of the household. RA 10361] (2) Initiated by the employer An employer may terminate the services of the domestic worker at any time before the expiration of the contract. (d) Commission of a crime or offense by the domestic worker against the person of the employer or any immediate member of the employer’s family. [Sec. [Sec. [DO 4-99 Sec. employer shall make no deductions from the wages other than that which is mandated by law. 22. 35. [Sec. (f) Any disease prejudicial to the health of the domestic worker. 16. RA 10361] Employment Age of Domestic Workers: Unlawful to employ any person below fifteen (15) years of age as a domestic worker [Sec.

Rule XIV. articles. OR (2) Sells any goods. Book III. Book III is substantially similar to the above. IRR) If the domestic worker is unjustly dismissed. Rule XIV. Book III. LC] Leaving without justifiable reason by the domestic worker (a) any unpaid salary due not exceeding the equivalent 15 days work shall be forfeited AND (b) the employer may recover from the domestic worker the costs incurred related to the deployment expenses. 33 and 34 of RA 10361. Industrial Homeworker . DOLE (February 4. Book III. that the service has been terminated within 6 months from the domestic worker’s employment. IRR] (3) Immediate payment upon ER’s receipt of finished goods or articles [Sec 6. RA 10361] [Sec 3. Industrial homework (1) Is a system of production under which work for an ER or contractor is carried out by a homeworker at his/her home. Rule XIV. is now Rule XIV. EMPLOYMENT OF HOMEWORKERS [Sec 6.UP LAW BOC LABOR STANDARDS LABOR LAW Unjust dismissal Neither the domestic worker nor the employer may terminate the contract before the expiration of the term except for grounds provided in Sec. the domestic worker shall be paid the compensation already earned plus the equivalent of 15 days work by way of indemnity. if any: Provided. Rule XIV. Note: Sec 2(d). IRR] (2) ER need not pay homeworker for any work done on goods or articles not returned due to homeworker’s fault [Sec 9b. Rule XIV. (3) Decentralized form of production. join or assist organizations Notice to end the working relationship If the duration of the domestic service is not determined either in stipulation or by the nature of the service. Book III of the IRR. Book III. 2(a). (2) Materials may or may not be furnished by the ER or contractor. the employer or the domestic worker may give notice to end the working relationship five (5) days before the intended termination of the service. or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with ER’s direction. Rights and benefits accorded homeworkers (1) Right to form. The domestic worker and the employer may mutually agree upon written notice to preterminate the contract of employment to end the employment relationship. Book III. MEDICARE and ECC premium contributions shall be deducted from their pay and shall be remitted by ER/contractor/subcontractor to the SSS N. (Sec. 153. 1992). Rule XIV. [Art. [Sec. Book III. Liability of Employer (1) ER may require homeworker to redo work improperly executed without additional pay [Sec 9a. IRR] (4) SSS. Rule XIV.a worker who is engaged in industrial homework Employer means any person who (1) Acts as a contractor – delivers or causes to be delivered any goods. IRR] (2) Right to acquire legal personality and the rights and privileges granted by law to legitimate labor organizations upon issuance of the certification of registration [Sec 4. IRR] Note: DO 5. or materials to be processed or fabricated in or about a home and then rebuys them after. 78 . articles. Rule XIV. where there is ordinarily very little supervision or regulation of methods of work. 32.

Rule XIV. [Sec Note: Art. RA 7796] (l) "Apprenticeship Agreement" is a contract wherein a prospective employer binds himself to train the apprentice who in turn accepts the terms of training for a recognized apprenticeable occupation emphasizing the rights. IRR of LC] Regional Office shall provide technical assistance to registered homeworkers’ organizations [Sec 14. 4.1. IRR] Conditions for deduction from homeworker’s earnings No deduction from the homeworker’s earnings for the value of materials lost. (k). . 8.[Art 57. Book III. the processing of which requires exposure to toxic substances. duties and responsibilities of each party. (k) “Apprentice" is a person undergoing training for an approved apprenticeable occupation during an apprenticeship agreement. ER is jointly and severally liable with the former to the homeworker for his/her wage [Sec 11. Book III. 58 has been superseded by Section 4 (j). [Art 58(b) Labor Code. APPRENTICES Prohibited Homework Homework is prohibited in the ff: (1) explosives. fireworks and articles of like character. and does not 79 . APPRENTICES AND LEARNERS (3) If subcontractor/contractor fails to pay homeworker. IRR] RA 7796] The act of filing the proposed apprenticeship program with the DOLE is a preliminary step towards its final approval. and does not exceed actual loss or damage (4) Deduction does not exceed 20% of homeworker’s weekly earnings [Sec. IRR] LABOR LAW O.UP LAW BOC LABOR STANDARDS Book III. destroyed or damaged unless: (1) Homeworker is clearly shown to be responsible for loss or damage (2) Reasonable opportunity to be heard (3) Amount of deduction is fair and reasonable. (m) of RA 7796 quoted below: (j) "Apprenticeship" training within employment with compulsory related theoretical instruction involving a contract between an apprentice and an employer on an approved apprenticeable occupation. [Sec 11. IRR of 7796] LC] O. Relevant Law: RA 7796 (Technical Education and Skills Development Act of 1994 or TESDA Act of 1994) Statement of objectives. Sec 4 13. Rule XIV. and (3) To establish apprenticeship standards for the protection of apprentices. RA IRR] (4) ER shall assist the homeworkers in the maintenance of basic safe and healthful working conditions at the (5) homeworkers’ place of work. Rule XIV. Book III. (m) “Apprenticeable Occupation” is an occupation officially endorsed by a tripartite body and approved to be apprenticeable by the authority. (k). (l). Book III. Rule XIV. Book III. [Sec. and (3) other articles.This Title aims: (1) To help meet the demand of the economy for trained manpower. Rule XIV. (2) To establish a national apprenticeship program through the participation of employers. (2) drugs and poisons. workers and government and non-government agencies.

The Department of Labor and Employment shall promulgate rules and regulations necessary for the effective implementation of this Section. 1] Qualifications of apprentice (a) Be at least 14 years of age. 12 as amended by Enterprises vs. Sec. with the express agreement of the child concerned. as amended by R. if possible.UP LAW BOC LABOR STANDARDS instantaneously give rise to an employerapprentice relationship. a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements. The employment contract is concluded by the child's parents or legal guardian.A. (3) Possess the ability to comprehend and follow oral and written instructions. That the following requirements in all instances are strictly complied with: The employer shall ensure the protection. before engaging child. 7610]. The employer institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration and the duration and arrangement of working time.A. (Nitto LABOR LAW The employer shall formulate and implement. health and morals. [Art. subject to the approval and supervision of competent authorities. further. safety. 4 (m) above 80 . Hence. since the apprenticeship agreement between petitioner and respondent has no force and effect. [RA 7160. and approval of the Department of Labor and Employment: and Provided. (2) Possess vocational aptitude and capacity for appropriate tests. LC] Integrating both the abovementioned provisions then the qualifications of an apprentice are as follows: (1) At least 15 years of age [as amended by R. 1995) Conditions under which children below 15 may be employed Children below fifteen (15) years of age shall not be employed except: (1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer's family are employed: Provided. [Art. and RA 7658. 59 of the LC. 7610] (4) Physically fit for occupation Allowed employment SEE: RA 7769. he shall not be eligible for hazardous occupation. theater. health. That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education. Sec. nor impairs his normal development: Provided. (b) Possess vocational aptitude and capacity for appropriate tests. That his employment neither endangers his life. morals and normal development of the child. safety. however. the employer shall first secure. In the above exceptional cases where any such child may be employed. It must be duly approved by the Minister of Labor and Employment. provided that if he is below 18 years. radio or television is essential: Provided. and (c) Possess the ability to comprehend and follow oral and written instructions. respondent's assertion that he was hired not as an apprentice but as a delivery boy deserves credence. Sec. a continuing program for training and skills acquisition of the child. Trade and industry associations may recommend to the Secretary of Labor appropriate educational requirements for different occupations. or (2) Where a child's employment or participation in public entertainment or information through cinema. 59. NLRC.

Labor Code] Exhaustion of administrative remedies. That such deduction shall not exceed ten (10%) percent of direct labor wage: and Provided. including the wage rates of apprentices. NCR-19] 71. Labor Code] Enforcement Investigation of violation of apprenticeship agreement. the appropriate agency of the Department of Labor and Employment or its authorized representative shall investigate any violation of an apprenticeship agreement pursuant to such rules and regulations as may be prescribed by the Secretary of Labor and Employment. 7. That such program is duly recognized by the Department of Labor and Employment: Provided. [Art. Apprenticeship agreements providing for wage rates below the legal minimum wage. Deduction shall NOT exceed 10% of direct labor wage. Labor Code] The Secretary of Labor and Employment may authorize the hiring of apprentices without compensation whose training on the job is required by the school or training program curriculum or as requisite for graduation or board examination. 67. [Art.UP LAW BOC LABOR STANDARDS Employment of Apprentices When applicable: (1) Only employers in highly technical industries may employ apprentices. That the person or enterprise who wishes to avail himself or itself of this incentive should pay his apprentices the minimum wage. Labor Code] 81 . . [Art. Incentives for employers An additional deduction from taxable income of one-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices shall be granted to the person or enterprise organizing an apprenticeship program: Provided. c. [Art. Wage Order No. The decision of the Secretary of Labor and Employment shall be final and executory. 61. The period of apprenticeship shall not exceed six months. unless he has exhausted all available administrative remedies. Requisites of the deduction: a.66. [Art. 65. [Art. finally. Labor Code] The wages of apprentices and learners shall in no case be less than seventy-five percent (75%) of the applicable minimum wage rates. LABOR LAW Appeal to the Secretary of Labor and Employment. which in no case shall start below 75 percent of the applicable minimum wage. [Art.The decision of the authorized agency of the Department of Labor and Employment may be appealed by any aggrieved person to the Secretary of Labor and Employment within five (5) days from receipt of the decision. may be entered into only in accordance with apprenticeship programs duly approved by the Secretary of Labor and Employment. and (2) Only in apprenticeable occupations approved by the Secretary of Labor. shall conform to the rules issued by the Secretary of Labor and Employment. Labor Code] 60.Upon complaint of any interested person or upon its own initiative. further. [Sec. Labor Code] Terms and conditions Apprenticeship agreements. 72. . No person shall institute any action for the enforcement of any apprenticeship agreement or damages for breach of any such agreement. Employer must pay his apprentices the minimum wage. b. Apprenticeship program must be duly approved by the DOLE.

the employer MAY NOT pay any wage if the apprenticeship training is: a. LEARNERS Learners employed in piece or incentive-rate jobs during the training period shall be paid in full for the work done. provided. [Art. a requirement for board examination When may learners be hired (1) No experienced workers are available. which shall not exceed three (3) months. 1995]. Labor Code]. NLRC. 76. (2) The duration of the learnership period. (4) One-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices of the training cost is deducted from the employer’s income tax but it shall not exceed 10% of direct labor wage [Art. 82 . 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. 72] Code] (2) The apprenticeship agreement must be approved by the DOLE Secretary (without such one shall be deemed a regular employee) [Nitto Enterprises v. 14.2. or c. 61. 71] Terms and conditions of employment Any employer desiring to employ learners shall enter into a learnership agreement with them. Sept.persons hired as trainees in semiskilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed three (3) months [Art 73.UP LAW BOC LABOR STANDARDS LABOR LAW Sec 4(n). the students are given real opportunities. (3) The wages or salary rates of the learners which shall begin at not less than seventyfive percent (75%) of the applicable minimum wage. b. 74. (2) The employment of learners being necessary to prevent the curtailment of employment opportunities. [Sec. Labor [Art. [Art. Rule X. part of the school curriculum. (3) The employer is not compelled to continue one’s employment upon termination of apprenticeship. Labor Code. and (4) A commitment to employ the learners if they so desire. colleges or universities on the other. LC] O. and schools. 75. IRR] The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representative. as regular employees upon completion of the learnership. LC] Learners . HOWEVER. [Art. which agreement shall include: (1) The names and addresses of the learners. All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners. 29. a requirement for graduation. Working scholars – there is no employeremployee relationship between students on one hand. RA 7796] Summary of Rules: (1) The apprentice must be paid not less than 75% of the prescribed minimum salary [Art. and (3) The employment will neither create unfair competition in terms of labor costs nor impair working standards. including such facilities as may be reasonable and necessary to finish their chosen courses under such agreement.

provided those who Learnership and Learnership Semi-skilled industrial occupations Practical training whether or not such practical training is supplemented by theoretical instructions available. and 3. 75(d)] (5) The wages or salary rates of the learners which shall begin at not less than 75% of the applicable minimum wage. The employment does not create unfair competition in terms of labor costs or impair or lower working standards. the employer may be compelled to continue with the services of the learner as a regular employee. Wage rate shall begin at not less than 75% of the minimum wage [Art. 73. he will be deemed as regular employee. as regular employees upon completion of the learnership. 3. LC]. as regular employees upon completion of the learnership. shall not exceed 6 months 1.The person is physically fit for the occupation in which he desires to be trained. 2. The person is at least 15 years of age. [Art. (2) If the learnership of 3 months is completed. Non-apprenticeable occupations Learnership agreement Shall not exceed 3 months 1. 75(c)] Distinctions between Apprenticeship Apprenticeship Highly industries technical Practical training supplemented by related theoretical instruction Apprenticeable occupations approved by the SOLE Written apprentice agreement ratified by the appropriate committees More than 3 months. Wage rate shall begin at not less than 75% of the minimum wage No compensation if Learners in piecework SOLE authorizes.The person is able to comprehend and follow oral and written instructions. and 4.UP LAW BOC LABOR STANDARDS Summary of Rules (1) The duration of learnership shall not exceed 3 months [Art. (3) There is a commitment from the employer to employ the learners if they so desire. as shall be paid in full OJT is required by the for the work done school A commitment to employ the learners if they so desire. When experienced workers LABOR LAW All learners who have been allowed or suffered to work during the first 2 months shall be no are 83 . The person possesses vocational aptitude and capacity for the particular occupation as established through appropriate tests. 2. and are at least 15 years of age but less than 18 may be eligible for apprenticeship only in nonhazardous occupation. The employment of learners is necessary to prevent curtailment of employment opportunities. (4) If the learner is dismissed from service without just and valid cause and without due process after 2 months of service.

physiological. productive and satisfying life. diminution or aberration of psychological.UP LAW BOC LABOR STANDARDS LABOR LAW (c) being regarded as having impairment [Sec 4(c). HANDICAPPED WORKERS – DIFFERENTLY-ABLED WORKERS [RA 7277 . as a result of a mental. such an Handicap refers to a disadvantage for a given individual. OR 84 . community and all government and non-government organizations. thus the Senate shall give full support to the improvement of the total well-being of disabled persons and their integration into the mainstream of society. They should be able to live freely and as independently as possible. 4 (a). (b) Disabled persons have the same rights as other people to take their proper place in society. as amended by RA 9442] Disabled Persons are those suffering from restriction or different abilities. [Sec 4(d). This must be the concern of everyone the family. RA 7277] deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners. physical or sensory impairment. RA 7277] Deductibility of ½ of training costs incurred. Toward this end. or activity that is considered normal given the age and sex of the individual. OR (b) a record of such an impairment. RA 7277] Impairment is any loss. To reach out to a greater number of disabled persons. to perform an activity in the manner or within the range considered normal for a human being [Sec. RA 7277] Disability shall mean: (a) physical or mental impairment that substantially limits one or more psychological. selfdevelopment and self-reliance of disabled persons. or anatomical structure or function [Sec. (c) The rehabilitation of the disabled persons shall be the concern of the Government in order to foster their capability to attain a more meaningful. resulting from an impairment or a disability that limits or prevents the function. It shall develop their skills and potentials to enable them to compete favorably for available opportunities. The grant of the rights and privileges for disabled persons shall be guided by the following principles: (a) Disabled persons are part of the Philippine society. physiological or anatomical function of an individual or activities of such individual.Magna Carta for Disabled Persons. the rehabilitation services and benefits shall be expanded beyond the traditional urbanbased centers to community based programs. provided:  Program is duly recognized by DOLE  Deduction shall not exceed 10% of direct labor wage  Payment of minimum wage to apprenticeship Declaration of Policy. that will ensure full participation of different sectors as supported by national and local P. 4(b). Disabled person’s rights must never be perceived as welfare services by the Government. the State shall adopt policies ensuring the rehabilitation.

and other government agencies. RA 7277] If suitable employment for disabled persons cannot be found through open employment. That after the lapse of the period of apprenticeship. Apprenticeship Opportunities. 5 (par. benefits. the State shall endeavor to provide it by means of sheltered employment. RA RA 7277] 7277][Bernardo v NLRC & FEBTC. it shall accord due regard to the individual qualities. [Sec 7. RA 7277] In this light.UP LAW BOC LABOR STANDARDS government agencies (d) The State also recognizes the role of the private sector in promoting the welfare of disabled persons and shall encourage partnership in programs that address their needs and concerns (e) To facilitate integration of disabled persons into the mainstream of society. [Sec 2. 81 Labor Code. provided. 7. environmental and attitudinal barriers that are prejudicial to disabled persons. incentives or allowances as a qualified able-bodied person. [Sec 4(i). income producing projects or homework schemes with a view to given them the opportunity to earn a living thus enabling them to acquire a working capacity required in open industry. RA 7277] [Sec 6. cultural. A qualified disabled EE shall be subject to the same terms and conditions of employment and the same compensation. they shall be eligible for employment. (4) Full minimum wage All qualified handicapped workers shall receive the full amount of the minimum wage rate prescribed herein. further. 2). that their handicap is NOT as much as to effectively impede the performance of job operations in the particular occupation for which they are hired. the Magna Carta for Disabled Persons mandates that a qualified disabled EE should be given the same terms and conditions of employment as a qualified able-bodied person. privileges. offices and agencies of the National Government or non-government organization involved in the attainment of the objectives of this Act. Coverage. This Act shall covers all disabled persons and. Since the Magna Carta accords them NCR-19] 85 . Sec. RA 7277] Rights of disabled workers (1) Equal opportunity for employment No disabled person shall be denied access to opportunities for suitable employment. [Sec 2. 1). The State shall exert all efforts to remove all social. offices or corporations engaged in social development shall be reserved for disabled persons. LABOR LAW (3) Sheltered employment Sheltered Employment refers to the provision of productive work for disabled persons through workshop providing special facilities. emergency and contractual positions in the DSWD. DOH. DepEd. fringe benefits. Disabled persons shall be eligible as apprentices or learners: Provided. 1999] (2) Reserved contractual positions 5% of all casual. economic. [Sec. [Art. vocational goals and inclinations to ensure a good working atmosphere and efficient production. if found satisfactory in the job performance. the State shall advocate for and encourage respect for disabled persons. RA 7277] In the placement of disabled persons in sheltered employment. [Sec 5 (par. Wage Order No. departments. to the extend herein provided.

secondary. skyways. priority shall be given to them. the government may grant special discounts in special programs for persons with disability on purchase of basic commodities. (g) At least 20% discount in public railways. and (k) Provision of express lanes for persons with disability in all commercial and government establishments. restaurants and recreation centers for the exclusive use or enjoyment of persons with disability. (e) At least 20% discount on medical and dental services including diagnostic and laboratory fees and professional fees of attending doctors in all private hospitals and medical facilities. (c) At least 20% discount for the purchase of medicines in all drugstores for the exclusive use or enjoyment of persons with disability. subject to guidelines to be issued for the purpose by the DTI and the DA. That persons with disability shall meet minimum admission requirements. as the case may be. in all government facilities. but not limited to. as amended by RA 9442] 1999) Discounts and other privileges Persons with disability shall be entitled to the following: (a) At least 20% discount from all establishments relative to the utilization of all services in hotels and similar lodging establishments. in coordination with PHILHEALTH. including support for books. through the provision of scholarships. they are thus covered by Article 280 of the Labor Code. in the absence thereof. for them to pursue primary. (b) A minimum of 20% discount on admission fees charged by theaters. in accordance with the rules and regulations to be issued by the DOH. leisure and amusement for the exclusive use or enjoyment of persons with disability. circuses. 86 . subsidies and other incentives to qualified persons with disability. grants. x-rays. (Bernardo v. (d) At least 20% discount on medical and dental services including diagnostic and laboratory fees such as. The eloquent proof of this statement is the repeated renewal of their employment contracts. (i) To the extent practicable and feasible. Conditions for entitlement (1) Persons with disability who are Filipino citizens upon submission of any of the following as proof of his/her entitlement thereto: (a) An identification card issued by the city or municipal mayor or the barangay captain of the place where the persons with disability reside. the continuance of the same benefits and privileges given by the GSIS. in both public and private schools. Provided. cinema houses. (j) To the extent possible. subject to guidelines to be issued by the DOH in coordination with the PHILHEALTH. computerized tomography scans and blood tests. learning materials and uniform allowance to the extent feasible. [Sec 32. (h) Educational assistance to persons with disability. financial aids. In the present case. NLRC. the handicap of petitioners (deaf-mutes) is NOT a hindrance to their work. SSS. tertiary.UP LAW BOC LABOR STANDARDS the rights of qualified able-bodied persons. LABOR LAW (f) At least 20% discount on fare for domestic air and sea travel for the exclusive use or enjoyment of persons with disability. RA 7277. as are enjoyed by those in actual service. and bus fare for the exclusive use and enjoyment of persons with disability. concert halls. and PAG-IBIG. carnivals and other places of culture. as well as vocational or technical education. post tertiary.

(f) Re-assigning or transferring a disabled employee to a job or position he cannot perform by reason of his disability. (d) Providing less compensation. to (2) Employment Entrance Examination Upon an offer of employment. study and scholarship grants. training opportunities. if any. (h) Failing to select or administer in the most effective manner employment tests which accurately reflect the skills. such as salary. however. manual or speaking skills of such applicant or employee. (g) Dismissing or terminating the services of a disabled employee by reason of his disability unless the employer can prove that he impairs the satisfactory performance of the work involved to the prejudice of the business entity. a disabled applicant may be subjected to medical examinations. [Sec. as amended by RA 9442] Other Provisions Against Discrimination (1) Discrimination of Employment No entity.UP LAW BOC LABOR STANDARDS (b) The passport of the persons with disability concerned. (c) Utilizing standards. whether public or private shall discriminate against a qualified disabled person by reason of disability in regard to job application procedures. [Sec 32. or discharge of employees compensation. by reason of his disability. promotion. aptitude or other factor of the disabled applicant or employee that such test purports to measure. segregating or classifying a disabled job applicant in such a manner that adversely affects his work opportunities (b) Using qualification standards. 32. or (c) Transportation discount fare ID issued by the National Council for the Welfare of Disabled Persons (NCWDP). tests or other selection criteria are shown to be related for the position in question and are consistent with business necessity. employment tests or other selection criteria that screen out or tend to screen out a disabled person unless such standards. conditions and privileges of employment. on the following occasions: (a) all entering employees are subjected to such an examination regardless of disability. 87 . job training and other terms. criteria. (2) The privileges may not be claimed if the persons with disability claim a higher discount as may be granted by the commercial establishment and/or under other existing laws or in combination with other discount program/s. solely on account of the latter's disability. RA 7277 as amended by RA 9442] 7277. wage or other forms of remuneration and fringe benefits. RA LABOR LAW qualified disabled employee. That the employer first sought to provide reasonable accommodations for the disabled persons. rather than the impaired sensory. (e) Favoring a non-disabled employee over a qualified disabled employee with respect to promotion. or (ii) perpetuate the discrimination of others who are the subject to common administrative control. than the amount to which a non-disabled person performing the same work is entitled. The following constitute acts of discrimination: (a) Limiting. and (i) Excluding disabled persons from membership in labor unions or similar organizations. the hiring. Provided. or methods of administration that: (i) have the effect of discrimination on the basis of disability.

35. [Sec. serious contempt for. (3) Prohibition on Verbal. RA 7277 as amended by RA 9442) Public Ridicule . as amended by RA 9442] (2) For construction of disabled-friendly facilities . RA 7277] (3) For establishments giving discounts – may claim such discounts as tax deductions based on the net cost of the goods sold or services rendered 88 . equivalent to 25% of the total amount paid as salaries and wages to disabled persons (a) Private entities (b) Employ disabled persons either as regular EEs. Provided. (2) An activity in public which incites hatred towards. RA 7277. 42. RA 7277] [Sec. 8[b].additional deduction from their net taxable income. 41. apprentice or learner (c) Provided such entities present proof as certified by the DOLE and the DOH [Sec. as amended by RA 9442] Vilification includes: (1) The utterance of slanderous and abusive statements against a person with disability. RA 7277. 40. group or community shall execute any of these acts of ridicule against persons with disability in any time and place which could intimidate or result in loss of self-esteem of the latter. Non-Verbal Ridicule and Vilification Against Persons with Disability (a) No individual. from their gross income. equivalent to 50% of the direct costs of the improvements or modifications (a) Private entities (b) That improve or modify their physical facilities in order to provide reasonable accommodation for disabled persons (c) Does NOT apply to improvements or modifications or facilities required under BP 344. when appropriate. (Sec. or severe ridicule of persons with disability. [Sec. RA 7277. and (iv) the results of such examination are used only in accordance with this Act.UP LAW BOC LABOR STANDARDS LABOR LAW (b) Information obtained during the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record. That: (i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employees and necessary accommodations: (ii) first aid and safety personnel may be informed. or in words.The act of making fun of or contemptuous imitating or making mockery of persons with disability whether in writing. (iii) government officials investigating compliance with this Act shall be provided relevant information on request. 33. and/or. 8 (c). as amended by RA 9442] Tax Incentives for Employers/Establishments (1) For employment of disabled persons additional deduction. as amended by RA 9442] (c) Any individual. [Sec. or in action due to their impairments. group or community is hereby prohibited from vilifying any person with disability which could result into loss of self-esteem of the latter. [Sec. RA 7277. however. if the disability might require emergency treatment.

000. [Sec 45.000. or alternative method. as amended.000. shall be included in their gross sales receipts for tax purposes and shall be subject to proper documentation and to the provisions of the National Internal Revenue Code. (b) providing an auxiliary aid or service. The Secretary of Justice shall investigate alleged violations of this Act.00) or imprisonment for less than two (2) years but not more than six (6) years. (d). or both. organization or any similar entity. [Sec 46.UP LAW BOC LABOR STANDARDS (a) The cost of the discount shall be allowed as deduction from gross income for the same taxable year that the discount is granted (d) The total amount of the claimed tax deduction net of VAT if applicable.00) but not exceeding Two hundred thousand pesos (P 200.00) but not exceeding One hundred thousand pesos (P100. including. at the discretion of the court. or both at the discretion of the court. he shall be deported immediately after service of sentence without further deportation proceedings. RA 7277] Penal Clause (a) Any person who violates any provision of this Act shall suffer the following penalties: (i) for the first violation.00) or imprisonment of not less than six (6) months but not more than two (2) years. or both at the discretion of the court. a fine of not less than Fifty thousand pesos (P 50. and shall undertake periodic reviews of compliance of covered entities under this Act. (c) If the violator is a corporation. the officials thereof directly involved shall be liable therefor. [Sec 44.000.000. preliminary or permanent relief. to the extent required by this Act: (a) granting temporary. RA Enforcement Enforcement by the Secretary of Justice (a) Denial of Right Duty to Investigate. and 7277] 89 . (b) Potential Violations The Secretary of Justice may commence a legal action in any appropriate court if the Secretary has reasonable cause to believe that (1) any person or group of persons is engaged in a pattern of practice of discrimination under this Act. and (ii) for any subsequent violation. (b) Any person who abuses the privileges granted herein shall be punished with imprisonment of not less than six (6) months or a fine of not less than Five thousand pesos (P 5. a fine of not less than One hundred thousand pesos (P100. or (2) any person or group of persons has been discriminated against under this Act and such discrimination raises and issue of general public importance.00) but not more than Fifty thousand pesos (P 50.000. The court may grant any equitable relief that such court considers to be appropriate.00). RA 7277] Authority of Court. as amended by RA 9442] LABOR LAW (c) making facilities readily accessible to and usable by individuals with disabilities. If the violator is an alien or a foreigner. 32. [Sec. practice or procedure. modification of policy. RA 7277.

partnership. (g) "Employee" means any person compulsorily covered by the GSIS under Commonwealth Act Numbered One hundred eighty-six. or any organized group of persons. 2000). No. business trust. v. legal representatives.R. corporation or legal representative thereof.R. (f) "Employee" includes any person in the employ of an employer. (SSS v. In this sense. January 26. association. California Manufacturing Co. it is a question of fact. as amended.. G. substitute or contractual. 97. Art.UP LAW BOC LABOR STANDARDS IV. subdivisions and instrumentalities. LC: As used in this Title: (a) "Person" means an individual. employing the services of the employee. As used in this Title. 218. including the members of the Armed Forces of the Philippines.al. or any person compulsorily covered by the SSS under Republic Act Numbered Eleven hundred sixtyone. LC: Definitions. 1989). EMPLOYER-EMPLOYEE RELATIONSHIP (e) "Employer" includes any person acting in the interest of an employer. al. directly or indirectly. (Tabas et. all government-owned or controlled corporations and institutions. A. unless the Code so explicitly states. Art. 90 . Dec. firm. 173. as well as nonprofit private institutions. The term shall not be limited to the employees of a particular employer. any LABOR LAW The existence or absence of ER-EE relationship is a question of law and a question of fact. Termination of Employment (h) "Person" means any individual. individual The recognition of the existence of ER-EE relationship is not dependent upon the agreement of the parties. corporation.. G. et. each in its defined sense. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment. unless the context indicates otherwise: (f) "Employer" means any person. No. LC. trust. natural or juridical. temporary. In this sense. emergency. (b) "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the government and all its branches. as amended. partnership. (c) "Employee" includes employed by an employer. Art. The conclusion that an EE-ER relationship depends upon the facts of each case. The term shall not include any labor organization or any of its officers or agents except when acting as employer. CA. The characterization of the law prevails over that in the contract. 80680. or organizations. 14. and any person employed as casual. 100388. the existence of an EE-ER relationship is a matter of law. association.

(Sevilla v. 192998. (2) Rules that control or fix the methodology and bind or restrict the party hired to the use of such means. No. (Insurance Life Assurance Co.R. No.R. G. LABOR LAW (1) First Tier: Control Test (refer to the FourFold Test) (2) Second Tier: The underlying economic realities of the activity or relationship. no scheming employer would ever be brought before the bar of justice. 1987). et al. Nov. GR No. Court of Appeals. L41182-3. The benchmark of economic reality in analyzing possible employment relationships for purposes of applying the Labor Code ought to be the economic dependence of the worker on his employer. (Tenazas. 15. The onus probandi rests on the employer to prove that its dismissal was for a valid cause. (c) Power of dismissal. No. EE-ER relationship exists. 7. 13. Nov. 100665. NO EE-ER relationship exists. Jan. (Orozco v. 1995). and (d) Employer’s power to control the employee’s conduct with respect to the means and methods by which the work is to be accomplished (Brotherhood Labor Two-tiered approach. Apr. Nos. (Zanotte Shoes v. Not every form of control will have the effect of establishing ER-EE relationship. 2. Genovia. Any competent and relevant evidence to prove the relationship may be admitted. No.R. The standard of “economic dependence” is whether the worker is dependent on the alleged employer for his continued employment in that line of business. al. The most important element is the employer’s control of the employee’s conduct. Apr.R. 48645. not only as to the result of the work to be done. if only documentary evidence would be required to show that relationship. NLRC. FOUR-FOLD TEST Economic Dependence Test TEST OF EMPLOYER-EMPLOYEE RELATIONSHIP (a) Selection and engagement of the employee. The economic realities prevailing within the activity or between the parties are examined.R. 155207. Villegas Taxi (1) Rules that merely serve as guidelines towards the achievement of mutually desired results without dictating the means or methods to be employed in attaining it. Transport. The line should be drawn between: CA. 84484. 169757. Feb.UP LAW BOC LABOR STANDARDS A.R. These aim only to promote the result. These address both the result and the means used to achieve it and hence. Zamora. 2014). The control test calls merely for the “existence” of the right to control and not the “actual exercise” of the right. v. taking into consideration the totality of circumstances surrounding the true nature of the relationship between the parties. (b) Payment of wages. Unity Movement of the Philippines et. No. before a case for illegal dismissal can 91 . NLRC.. 2011). G. G. Evidence of employee status No particular form of evidence is required to prove the existence of an employer-employee relationship. but also as to the means and methods to accomplish it. LTD v. For. G. 1988). as no employer would wish to come out with any trace of the illegality he has authored considering that it should take much weightier proof to invalidate a written instrument. v. G. However. R. Aug. 1989).1. 13 2008). 23. In such case. 15. G. (Lirio v.

KINDS OF EMPLOYMENT I.R. 287. he shall be deemed a regular employee. LC: Probationary employment shall (San Miguel Corp.UP LAW BOC LABOR STANDARDS prosper.R. PROBATIONARY Art. 2012). AMA Computer College. G. It is within the exercise of this right to select his employees that the employer may set or fix a probationary period within which the latter may test and observe the conduct of the former before hiring him permanently. Indeed. Leogardo. 6(d). An employee who is allowed to work after a probationary period shall be considered a regular employee. such as when established by company policy or required by the nature of the work performed by the employee Fly Ace Corporation. the employer shall make known to the employee the standards under which he will qualify as regular employee at the time of his engagement. No. April 13.R. Purposes (1) Observance Period – for employer to determine if employee is qualified and for employee to demonstrate to the ER his skills (2) Restrictive . 177937. Feb. G. 2005. IRR: In all cases of probationary employment. Rule 1. 192558. unless it is covered by an apprenticeship agreement stipulating a longer period. 1984). 92 . v. (Grand Motors Corp.2. 2011) Standards to qualify as a regular employee REQUIREMENTS: (a) The employer must communicate the regularization standards to the probationary employee. No. Jan. (Javier v. G. Ranchez. Nos. v. the employer has a right to sever the employer-employee relationship Book VI. 168194 & 168603. v. (3) When it involves the 3 year probationary period of teachers (Mercado v. and Duration General Rule: Probationary employment shall not exceed six (6) months from the date the employee started working. Sec. December 13.As long as the termination was made before the expiration of the sixmonth probationary period. A. the employer has the right or is at liberty to choose as to who will be hired and who will be declined. No. LC). It is incumbent upon the employee to prove the employer-employee relationship by substantial evidence. (2) When the parties to an agreement contract otherwise. LABOR LAW Exceptions: (1) When it is covered by an apprenticeship agreement stipulating a longer period (Art. Definition A probationary employee is one who is on trial by an employer during which the employer determines whether or not he is qualified for permanent employment (Robinson’s Galleria 1984) et al. July 31. 183572.R. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. MOLE. L63316. No. 19. del Rosario. or not exceed 6 months from the date the employee started working. 287.R. 2010). 15. G. Where no standards are made known to the employee at the time of engagement. G. an employer-employee relationship must first be established. citing Buiser v.

the employees thereby became regular employees. G.R. v. Inc. while private respondents were still with the CCAS they were already clerks. (b) Must have rendered three consecutive years of service. No. Conversely. 122917. while respondent Quijano had slightly less than ten (10) years of service. Respondent Gelig had been a clerk for CCAS for more than ten (10) years. NLRC. [Aklan College v. July 23.R. of security of tenure are: (a) A full time teacher. G. G. This goes without saying that the employee is sufficiently made aware of his probationary status as well as the length of time of the probation. (Alcira v. Regional Director. (A Prime Security Services. No. Double probation There is no basis for subjecting an employee to a new probationary or temporary employment where he had already become a regular employee when he was absorbed by a sister company. 192571. Salette of Santiago v. NLRC. an employer is deemed to substantially comply with the rule on notification of standards if he apprises the employee that he will be subjected to a performance evaluation on a particular date after his hiring. cooks. 19. Inc. 82918. the employee is deemed as a regular and not a probationary employee. The exception to the foregoing is when the job is self-descriptive in nature. 2004) Regular status after probation When the bank renewed the contract after the lapse of the six-month probationary period. not novices in their jobs but experienced workers. G. No. Mar. Where no standards are made known to the employee at that time.R. An employer is deemed to have made known the standards that would qualify a probationary employee to be a regular employee when it has exerted reasonable efforts to apprise the employee of what he is expected to do or accomplish during the trial period of probation. No.. the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement.R. v. June 9. No. 2013) [Cebu Stevedoring Co. L-54285. 2007] The legal requisites. 14. They were. et al. 8. (La G. No. 2000) Absorbed employees not probationary The private respondents could not be considered probationary employees because they were already well-trained in their respective functions. therefore. or messengers. No. therefore. G. Private school teachers Questions respecting a private school teacher’s entitlement to security of tenure are governed by the Manual of Regulations for Private Schools and not the Labor Code.R. (Abbott Laboratories Phil. in the case of maids. As stressed by the Solicitor General. 149859. No employer is allowed to determine indefinitely the fitness of its employees. for acquisition by a teacher of permanent employment. G. v. Alcaraz. If the employer fails to comply with either. 152949. July 12.R. Aug. Dec. 107023. drivers. 1988] In all cases of probationary employment. Jan. 11. NLRC. for instance. 1991) 93 . he shall be deemed a regular employee. Guarino. 1999) (b) The employer must make such communication at the time of the probationary employee’s engagement. and (c) Service must have been satisfactory. NLRC.R.UP LAW BOC LABOR STANDARDS LABOR LAW (Bernardo v.

v Ranchez. No. 2013) v. except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee NLRC. G. June 29. As long as the termination was made before the termination of the sixmonth probationary period. 4. No. v. 19. or at the very least under the circumstances of the present case.R. REGULAR Art. (4) There must be no unlawful discrimination in the dismissal. 170388. the employer was well within his rights to sever the employeremployee relationship. is that the school should show – as a matter of due process – how these standards have been applied. the termination must be within such time and if formal notice is required. 182072. In order to invoke “failure to meet the probationary standards” as a justification for dismissal. (Robinson’s Galleria et al. Manaois v. 11. 2013) These standards should be made known to the teachers on probationary status at the start of their probationary period. (Manila Hotel Corporation Rojo. G. 286. A contrary interpretation would defect the clear meaning of the term “probationary. Sept. (Herrera- LABOR LAW (3) Failure to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of engagement. G. Soriano. 2003) A probationary employee terminated for: (1) Just causes.R. Inc. Jan. etc. No. Jr.R. the employer must show how these standards have been applied to the subject employee. (Colegio del Santisimo Rosario v. St. (2) Authorized causes. 2011) The probationary employee is entitled to substantial and procedural due process before termination.R. Scholastica’s College. The employer could well decide he no longer needed the probationary employee’s services or his performance fell short of expectations. v.R. No.” (De la Cruz. Dec. does not guarantee that the employee will automatically acquire a permanent employment status. at the start of the semester or the trimester during which the probationary standards are to be applied. 1986) Termination A probationary employee enjoys only a temporary employment status. Limits to termination (1) It must be exercised in accordance with the specific requirements of the contract (2) If a particular time is prescribed. No. This means that he is terminable at any time. January 22. even with an above-average performance. 11. LC: The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties. G. No. II.R. then that form must be used. 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. 188914. Of critical importance in invoking a failure to meet the probationary standards. Dec. 145417. The probationer can only qualify upon fulfillment of the reasonable standards set for permanent employment as a member of the teaching personnel.UP LAW BOC LABOR STANDARDS Mere completion of the three-year probation. G. (Univac Development. not feigned so as to circumvent the contract or the law. 2013). or can only be 94 . permanent employment not having been attained in the meantime. G. 53453. 177937. NLRC. (3) The employer’s dissatisfaction must be real and in good faith.

No. regular employees and casual employees. Art. the employment is also considered regular. That any employee who has rendered at least one year of service. 122327. 16. shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.R. G. because there is no such thing as a permanent employment.R. Inc. G. for purposes of determining the right of an employee to certain benefits. No. Hence. the employees are removed from the scope of project employees and considered regular employees. No. NLRC.. it does not apply where the existence of an employment relationship is in dispute. G. with respect to the activity in which they are employed. or to security of tenure. LC: An employee who between the particular activity performed by the employee in relation to the business or trade of the employer.UP LAW BOC LABOR STANDARDS LABOR LAW Art. 2011) Art 286 provides two kinds of regular employees: (1) Those engaged to perform activities which are necessary or desirable in the usual business or trade of the employer. 169510. 8. 287. v. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. Corp. 286: When applicable Art. A regular employee is one who is engaged to perform activities which are necessary and desirable in the usual business or trade of the employer as against those which are undertaken for a specific project or are seasonal. i. 206061. (Forever Richons Trading is allowed to work after a probationary period shall be considered a regular employee. 19. (Audion Electric Co. it can be a strong factor in determining whether the employee was hired for a specific undertaking or in fact tasked to perform functions which are vital. Gison. v. or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. If the employee has been performing the job for at least one year. Last sentence. (Atok Big Wedge Co. 106648. v. Aug. June 17.e.R. but only with respect to such activity and while such activity exists. 2013). Aug.R. and (2) casual employees who have rendered at least 1 year of service. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided. Inc. Molina. No. Hiring for an extended period Where the employment of project employees is extended long after the supposed project has been finished. Regular employment is not synonymous with permanent employment. the law deems the repeated and continuing need for its performance as sufficient evidence of the necessity. Any employee may be terminated for just cause. 1999) NLRC.. to join or form a union.. G. Primary standard to determine regular employment: reasonable connection rule The primary standard to determine a regular employment is the reasonable connection 95 . (Romares v. whether such service is continuous or broken. even if the performance is not continuous or merely intermittent. 1998) While length of time may not be a controlling test for project employment. Sept. 286 is not the yardstick for determining the existence of an employment relationship because it merely distinguishes between two kinds of employees. if not indispensability of that activity to the business of the employer. whether continuous or broken.

Jr. 1st par. but which is distinct and separate. this cannot apply where the contract-to-contract arrangement was but an artifice to prevent her from acquiring security of tenure and to frustrate constitutional decrees. No. merely serves as a badge of regular employment. Jan. (De 86408. BUT: (1) Employee must be informed of the nature and duration of project (2) Project and principal business of ER are two separate things (3) No attempt to deny security of tenure to the worker Const. distinct from the other undertakings of the company. PROJECT EMPLOYMENT Art. it would be unjust to require the employer to maintain them in the payroll while they are doing absolutely nothing except waiting until another project is begun. No.R. Such a job or undertaking must also be identifiably separate and distinct from the ordinary or regular business operations of the employer (Villa v. construction) (2) For a particular job or undertaking that is NOT within the regular business of the corporation. 1998) III. 170181. 286. 22. NLRC. the scope and duration of which has been determined and made known to the employees at the time of employment. except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. G. June 6. 1997) Repeated renewal of contract While the Court has recognized the validity of contractual stipulations as to the duration of employment. In effect. NLRC. No. Feb. 1990) Length of time involved Length of time is not controlling. 1990) agreement to the contrary notwithstanding and regardless of the oral agreement of the parties. 120969. 1988) A project employee is one who is hired for carrying out a separate job. G. NLRC. these stand-by workers would be enjoying the status of privileged retainers. v. 2008) 96 . LC: The provisions of written Ocampo.R. collecting payment for work not done. G. (Hanjin Heavy Industries & Test of project employment The litmus test to determine whether an individual is a project employee lies in setting a fixed period of employment involving a specific undertaking the completion or termination of Const. (Maraguinot v. G. 15. 116781. G.R. v. No.e. (Beta Electric Corp.R. if at all. No.R. v. Co.UP LAW BOC LABOR STANDARDS necessary and indispensable to the usual business or trade of the employer. G. v. Jan. Ibañez. 81077. 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. (Tomas Lao LABOR LAW Whether or not the project has a direct relation to the business of the employer is not important. Rationale for project employment If a project has already been completed. Two Kinds of Project Employee (1) For a particular job or undertaking that is WITHIN the regular or usual business of the employer company. Sept.R. NLRC. 14. from the other undertakings of the company (i. to be disbursed by the employer from profits not earned. No. NLRC. June 26. 5. 117043. and identifiable as such.

R. while not employed and awaiting engagement. A work pool may exist although the workers in the pool do not receive salaries and are free to 97 . and indispensable to the usual business or trade of the employer. a day certain being understood to be that which must necessarily come.. 19 of 1993 Work pool employee A project employee or a member of a work pool may acquire the status of a regular employee when the following concur: (1) There is a continuous rehiring of project employees even after cessation of a project.R. v. (4) The work/service to be performed by the employee is in connection with the particular project/undertaking for which he is engaged. is free to offer his services to any other employer. is defined in an employment (3) agreement and is made clear to the employee at the time of the hiring. and (2) The tasks performed by the alleged “project employee” are vital. (2) Such duration. if applied to the construction industry. However. although it may not be known when. necessary. its completion has been determined at the time of the engagement of the employee. But this standard will not be fair. 1996). 10. simply because construction firms cannot guarantee work and funding for its payrolls beyond the life of each project. Sept. (William Uy Construction Corp. 2010) Trinidad. Kanlungan Centre Foundation. March 12. v. NLRC. LABOR LAW the prescribed form on employees’ terminations /dismissals/suspensions.R. 183250. (5) The employee. 20 of 1997 and D. 2010 Indicators of project employment (1) The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable. The decisive factor in the term employment is the day certain agreed upon by the parties for the commencement and termination of their employment relationship. (William Uy Construction Corp. but merely serves as a badge of regular employment. 199769. Trinidad. using See also: Policy Instructions No.O. G. No. 11. Inc. The repeated and successive rehiring of project employees do not qualify them as regular employees. entitled to the security and benefits of regularization. as well as the specific work/service to be performed. 2013) Length of time not applicable in construction industry Generally. as length of service is not the controlling determinant of the employment tenure of a project employee. (Samson v. length of service provides a fair yardstick for determining when an employee initially hired on a temporary basis becomes a permanent one. 11366. 183250. Feb. And getting projects is not a matter of course. (7) An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most construction companies. G. No. No. the length of time during which the employee was continuously rehired is not controlling. No.UP LAW BOC LABOR STANDARDS which has been determined at the time of the particular employee's engagement. (Caasi v.R. G. Mar. but whether the employment has been fixed for a specific project or undertaking. G. (6) The termination of his employment in the particular project/undertaking is reported to the DOLE Regional Office having jurisdiction over the workplace following the date of his separation from work. 1.

127395. Although primarily applicable to regular seasonal workers. 286. is such that during off season they are temporarily laid off but during summer season they are reemployed. LC: An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided. The nature of their relationship . Members of a work pool from which a construction company draws its project employees. 1998) “Regular Seasonal” Employees After One Season Seasonal workers who are called to work from time to time and are temporarily laid off during off-season are not separated from service in said period. shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. National Construction Corp. NLRC. the employee thereby becomes a regular employee. whether such service is continuous or broken.R. Mar. G. 1998) V. Philippine Tobacco Flue-Curing &Redrying Corp. G. but are merely considered on leave until reemployed Seasonal employees are those whose work or services to be performed are seasonal in nature. the completion of the project or any phase thereof will not mean severance of the employer-employee relationship. 26. v.O. They are not strictly speaking separated from the service but are merely considered as on leave of absence without pay until they are re-employed. July 3. Jan.UP LAW BOC LABOR STANDARDS LABOR LAW seek other employment during temporary breaks in the business. Aguilar Corp. that the worker shall be available when called to report for a project. No. (J. (Philippine G.R. work or service which is merely incidental to the business of the employer. CASUAL Art. work or service is for a definite period made known to the employee at the time of Corp. No..R. IRR: Casual employment. Marulas Industrial Book VI. . 1997) Rule on reportorial requirement A report of termination to the nearest public employment office every time their employment was terminated due to completion of each construction project. No. if considered employees of the construction company while in the work pool. If they are employed in a particular project. (Pasos v. 2013) Repeated renewal of contract When an employer renews a contract of employment after the lapse of the six-month probationary period. & D. 13. 2nd par. SEASONAL 120969. employment is for the duration of the season. There is casual employment where an employee is engaged to perform a job. this set-up can likewise be applied to project workers insofar as the effect of temporary cessation of work is concerned. 5 (b). Feb. (Malicdem v. G. .R. (Maraguinot v. Rule 1. 192394. provided. IV. That any employee who has rendered at least one year of service. No. 22. Failure of the employer to file termination reports after every project completion proves that the employees are not project employees. NLRC. 116352. are non-project employees or employees for an indefinite period. G. 10.R. Dec. and such job. No. v. 204406. There is no continuing need for the worker. or when their services may be needed. 2014) 98 . NLRC.. No employer is allowed to determine indefinitely the fitness of its employees. Sec.

Inc. L80680. 1990) Conditions for the validity of fixed contract agreement between employer and employee (1) Fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force. Art. and such job.R. No. duress or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent. No. Someone who is not a regular. which is understood to be "that which must necessarily come although it may not be known when. duress.R.UP LAW BOC LABOR STANDARDS LABOR LAW VI. written or otherwise. a temporary or casual employee. or (2) The employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter. project or seasonal employee. NLRC. but the nature of the job. That any employee who has rendered at least one year of service. 2013) 99 .. Project employment and Fixed-term employment distinguished A project employee is assigned to carry out a specific project or undertaking. Jan. Inc. G. (Tabas v.. California Marketing Co. 176419. (GMA Network.R. work or service which is merely incidental to the business of the employer. L-48494. whether such service is continuous or not. 74004. 26. under Article 281 of the Labor Code. Feb. FIXED-TERM engagement: Provided. 5. 1989). G. the duration and scope of which were specified at the time the employee is engaged for the project G. Pabriga. Zamora.. G. Requirements to become regular employee: (1) One (1) year service. work or service is for a definite period made known to the employee at the time of engagement. then employment is regular. Oreta and Co. M. If the job is usually necessary or desirable to the main business of the employer. v. A casual employee is engaged to perform a job. continuous or broken with respect to activity employed (2) Employment shall continue while such activity exists Nature of work What determines regularity or casualness is not the employment contract. Aug. or where it satisfactorily appears that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter. (A. The duration of a fixed-term employment agreed upon by the parties may be any day certain. unless he has been contracted for a specific project.R. becomes regular after service of one year. v. 10." The decisive determinant in fixed-term employment is not the activity that the employee is called upon to perform but the day certain agreed upon by the parties for the commencement and termination of the employment relationship. 286 has no application to instances where a fixed period of employment was agreed upon knowingly and voluntarily by the parties. Inc. shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. NLRC. No. or improper pressure or any other circumstances vitiating his consent. 1989) One-year service As held in Philippine Bank of Communications v. (Brent School v. without any force. November 27. No.

partnership. Zamora guidelines are satisfied.R. Anscor Swire Ship Management Corp. 184318. 106. not being an employer. Thus. as the case may be. among others. machineries. An employer or indirect employer may require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract. if any. 12. equipment. In so prohibiting or restricting. especially if they were informed of that their engagement was for a specific period.R. shall be paid in accordance with the provisions of this Code. G. in the same manner and extent that he is liable to employees directly employed by him. Art. 100 . the court will recognize the validity of the fixed-term contract. association or corporation which. 2014). G. In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code. Their employment is governed by the contracts they sign everytime they are rehired and their employment is terminated when the contract expires.UP LAW BOC LABOR STANDARDS No implied renewal of employment contract It is a settled rule that seafarers are considered contractual employees. and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. there being no mutually-agreed renewal or extension of the expired contract. No.. LC: Indirect employer. of the immediately preceding article shall likewise apply to any person. on condition that the bond will answer for the wages due the employees should the contractor or subcontractor. the employees of the contractor and of the latter’s subcontractor. No. he may make appropriate distinctions between labor-only contracting and job contracting as well as differentiations within these types of contracting and determine who among the parties involved shall be considered the employer for purposes of this Code. 108. LABOR LAW The Secretary of Labor and Employment may. job or project. JOB CONTRACTING I. restrict or prohibit the contracting-out of labor to protect the rights of workers established under this Code. the employment is deemed automatically terminated. work premises. LC: Posting of bond. ARTICLES 106 – 109 Art. to prevent any violation or circumvention of any provision of this Code. 204944-45. Espiritu. Network Inc v. The provisions Whenever an employer enters into a contract with another person for the performance of the former’s work. by appropriate regulations. contracts with an independent contractor for the performance of any work. Art. December 03. A. the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract. Feb. when a contract ends. LC: Contractor or subcontractor. the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. The Brent doctrine is only applicable in a few special cases wherein the employer and employee are on more or less in equal footing in entering into the contract (Fuji Television There is "labor-only" contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools. In such cases. (Unica v. Their employment is contractually fixed for a certain period of time. task. 107. fail to pay the same.3. 2014) As long as the Brent School v.

Service agreement refers to the contract between the principal and contractor containing the terms and conditions governing the performance or completion of a specific job. NO. 18-A-11: RULES IMPLEMENTING ARTICLES 106 TO 109 OF THE LC. work or service is to be performed or completed within or outside the premises of the principal. shall be entitled to all the rights and privileges as provided for in the LC. work.UP LAW BOC LABOR STANDARDS Art. or phase thereof. or for a specific job.O. as amended. Cabo refers to a person or group of persons or a labor groups which. according to its own manner and method. 13(b) of the LC whether for local or overseas employment. every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. regardless of whether such job. Rights of contractor’s employees All contractor’s employees. II. Legitimate contracting or subcontracting Contracting or subcontracting shall be legitimate if all the following circumstances occur: (1) The contractor must be registered in accordance with these rules and carries a distinct and independent business (2) The contractor undertakes to perform the job. D. LC: Solidary liability. or service. existing laws to the contrary notwithstanding. and (4) The Service Agreement ensures compliance with all the rights and benefits under Labor laws. or promo jobbers. Security of tenure of contractor’s employees It is understood that all contractor’s employees enjoy security of tenure regardless of whether the contract of employment is co-terminus with the service agreement. (3) The contractor has substantial capital and/or investment. with or without any monetary or other consideration. supplies workers to an employer. work or service on its own responsibility. work or service being farmed out for a definite or predetermined period. The provisions of LABOR LAW organization. 109. and free from control and direction of the principal in all matters connected with the performance of the work except as to the results thereof. whether deployed or assigned as reliever. cooperative or any entity. in the guise of a labor 101 . AS AMENDED Coverage This shall apply to: (1) all parties of contracting and subcontracting arrangements where EREE relationships exist (2) cooperatives engaging in contracting or subcontracting arrangements Contractors and subcontractors referred to in these rules are prohibited from engaging in recruitment and placement activities as defined in Art. work or service within a definite or predetermined period. they shall be considered as direct employers. temporary. For purposes of determining the extent of their civil liability under this Chapter. whether in the capacity of an agent of the employer or as an ostensible independent contractor. Contracting or subcontracting refers to an arrangement whereby a principal agrees to put out or farm out with a contractor the performance or completion of a specific job. week-ender. seasonal.

000. No. work or service for a principal.000.2) The employees recruited and places are performing activities which are usually necessary or desirable to the operation of the company. work or service is to be performed or completed within or outside the premises of the principal. regardless of whether such job. work or service for which the employee is engaged LABOR LAW The right of the contractor employee to unpaid wages and other unpaid benefits including unremitted legal mandatory contributions.000 in the case of corporations. 18-A-11] Cause Effect Prior to the Governed by Art. among others. ECC. 13. or (b) The contractor does not exercise the right to control the performance of the work of the employee. works or services when the same results in the termination or reduction of regular EEs and reduction of work hours or reduction or splitting of the bargaining unit. is an arrangement where the contractor or subcontractor merely recruits. v. without prejudice to his/her entitlement to the completion bonuses or other emoluments. shall be borne by the party at fault. including retirement benefits whenever applicable Other prohibitions (1) Contracting out of jobs. (Polyfoam-RGC International Corp.000. SSS. D. partnerships and cooperatives.g. or directly related to the main business of the principal within a definite or predetermined period. [Sec. Concepcion. or circumventing the provisions of regular employment in any of the following instances: (i) Requiring them to perform functions which are currently being Prohibition against labor-only contracting Labor-only contracting. or undermining their security of tenure or basic rights. supplies or places workers to perform a job. G. machineries. (b) Contracting out of work with a Cabo (c) Taking undue advantage of the economic situation or lack of bargaining strength of the contractor’s EEs. or from the completion of the phase of the job. PhilHealth. 284 – 292 expiration of the of LC Service Agreement Prior to expiration of the Service Agreement and not due to authorized causes Due to expiration of Service Agreement.1) The contractor does not have substantial capital or investments in the form of tools.. and (a. Substantial capital – refers to paid-up capital stocks/shares of at least P3. June 13. e. 172349. Pagibig. a prohibited act. 2012) 102 . works or services when not done in good faith and not justified by the exigencies of the business such as the following: (a) Contracting out of jobs. a net worth of at least P3.UP LAW BOC LABOR STANDARDS Effect of termination of employment ELEMENTS OF LABOR-ONLY CONTRACTING: (a. equipment.R.O. Employee may opt for payment of separation benefits as may be provided by law or the Service Agreement. in case of single proprietorship. without prejudice to the solidary liability of the parties to the Service Agreement. work premises.

D. restrain or coerce employees in the exercise of their rights to selforganization as provided in Art. 7. Accordingly. Contracting out of a job. 18-A-11) Solidary Liability of Indirect/Direct Employer There exists a solidary liability on the part of the principal and the contractor for purposes of enforcing the provisions of the LC and other social legislation to the extent of the work performed under employment contract. The principal shall be deemed a direct employer of the contractor’s employee in cases where there is a finding by a competent authority of labor-only contracting. as a precondition to employment or continued employment. work or service through an in-house agency. or commission of prohibited activities provided in Section 7 or a violation of either Sections 8 or 9. Refusal to provide a copy of the Service Agreement and the employment LABOR LAW contracts between the contractor and the EEs deployed to work in the bargaining unit of the principal’s certified bargaining agent to the sole and exclusive bargaining agents.O. including cooperative. Failure to register shall give rise to the presumption that the contractor is engaged in labor-only contracting. Contracting out of a job. a blank payroll. acting as contractors. work or service being performed by union members when such will interfere with. 14. with the Bureau of Working Conditions (BWC) as the central registry. (Sec. the registration system governing contracting arrangements and implemented by the Regional Offices of the DOLE is hereby established. 248(c) of the LC. an antedated resignation letter. Contracting out of a job.O. (Sec. which circumvents the LC provisions on Security of Tenure. Requiring EEs under a subcontracting arrangement to sign a contract fixing the period of employment to a term shorter than the term of the Service Agreement. to register with the Regional Office of the DOLE where it principally operates. Repeated hiring of EEs under an employment contract of short duration or under a Service Agreement of short duration with the same or different contractors. 18- A-11) Mandatory registration It shall be mandatory for all persons or entities. 103 . unless the contract is divisible into phases for which substantially different skills are required and this is made known to the EE at the time of the engagements. and (ii) requiring them to sign. D. (j) Engaging or maintaining by the principal of subcontracted EEs in excess of those provided in the applicable CBA or as set by the Industry Tripartite Council. or a quitclaim releasing the principal. as amended. a waiver of labor standards including minimum wages and social or welfare benefits. or services analogous to the above when not done in good faith and not justified by the exigencies of the business. works. contractor or from any liability as to payment of future claims.UP LAW BOC (d) (e) (f) (g) (h) (i) LABOR STANDARDS performed by the regular employees of the principal. work or service that is necessary or desirable or directly related to the business or operation of the principal by reason of a strike or lockout whether actual or imminent. (2) Contracting out of jobs.

vendor-vendee relationship for entire business processes covered by the applicable provisions of the Civil Code on Contracts is excluded. DO 18-A contemplates generic or focused singular activity in one contract between the principal and the contractor (for example. BPO. Thus. animation services. as provided in Article 106 of the Labor Code. 7. Buenavista. including the possible cancellation/suspension of the contractor’s license. and maintain these EEs based on business requirements. merchandising. KPO.O. 10.UP LAW BOC LABOR STANDARDS III. 8 or 9 hereof shall render the principal the direct employer of the employees of the contractor or subcontractor. Having gained regular status. as amended. 18-A-11 to BPO DO 18-A speaks of a trilateral relationship that characterizes the covered contracting/subcontracting arrangement. (Norkis Trading v. 182018. G. Applicability of D. LABOR LAW OF LABOR-ONLY Employees become regular employees Where an entity is declared to be a labor-only contractor. (Sec. Oct. legal process outsourcing. medical transcription. the employees are entitled to security of tenure and can only be dismissed for just or authorized causes and after they had been afforded due process. These companies engaged in BPOs may hire employees in accordance with applicable laws. through its regional offices shall not require contractors licensed by PCAB in the Construction Industry to register under DO 18-A. in the same manner and extent that the principal is liable to employees directly hired by him/her. No. 27.R. Thus. A finding of commission of any of the prohibited activities in Sec. findings of violation/s on labor standards and occupational health and safety standards shall be coordinated with PCAB for its appropriate action. 2012) Contractor solidarily liable with principal A finding by competent authority of labor-only contracting shall render the principal jointly and severally liable with the contractor to the latter's employees. or violation of either Secs. hardware and/or software support. the DOLE. 01-12 IV.O 18-A-11) 104 . 18-A-11 to the Construction Industry Licensing and the exercise of regulatory powers over the construction industry is lodged with PCAB which is under the Construction Industry Authority of the Philippines and not with the DOLE or any of its regional offices. D. which may or may not be for different clients of the BPOs at different periods of the EE’s employment. EFFECTS CONTRACTING Applicability of D. DEPARTMENT CIRCULAR NO. back office operations/support).O. pursuant to Article 109 of the Labor Code. as amended. janitorial. security. the employees supplied by said contractor to the principal employer become regular employees of the latter. Moreover. specific production work) and does not contemplate information technology-enabled services involving an entire process (for example.

G. administrative staff. including government agencies and GOCCs. D. Sec. 1. 285. Rule 1.O. or service pursuant to a Service Agreement with a principal It shall also refer to regular employees of the contractor whose functions are not dependent on the performance or completion of a specific job. who/which puts out or farms out a job. DISMISSAL FROM EMPLOYMENT Contractor er-ee Coverage: General rule: All establishments (Art. TRILATERAL RELATIONSHIP IN JOB CONTRACTING LABOR LAW (2) A contractual relationship between the principal and the contractor as governed by the provisions of the Civil Code. 1988) 105 . par. inclusive of allowances. they were still entitled to the constitutional protection of security of tenure. 18-A-11) Principal B.R.R. March 28. engaged in a legitimate contracting or subcontracting arrangement providing either services. including GOCCs without original charter. 2007) Contract Employees September 26.UP LAW BOC LABOR STANDARDS V. NLRC. In case of There are three parties involved: (1) Principal refers to any employer. work. (Book VI. Relationships that exist in a legitimate contracting or subcontracting: (1) An employer-employee relationship between the contractor and the employees it engaged to perform the specific job. nonetheless. LC: Security of Tenure. 129449. and Limited extent. 5. regular employment. Security of Tenure Right not be removed from one’s job without valid cause and valid procedure. Alejandro. including a cooperative. 1. temporary workers or a combination of services to a principal under a Service Agreement. L-80383. No. the employer shall not terminate the services of an employee except for a just cause or when authorized by this Tile. work or service being contracted. service or work to a contractor. 164582. (3) Contractor’s employee includes one employed by a contractor to perform or complete a job.R. G. (Espina v. Court of Appeals. (Kiamco v. secured during the period their respective contracts of employment remain in effect. whether a person or entity. work or service within a definite period of time i. and its political subdivisions.e. No. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages. LC) Exception: Government. and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. G. 284. No. (Sec. (Labajo v. (2) Contractor refers to any person or entity. 1999) While probationary employees do not enjoy permanent status. skilled worker. IRR) Contractor's Employee Security of Tenure Art. June 29.

2013) Managerial Employees Entitled to security of tenure.R. 1994) Management Prerogatives and Security of Tenure An employer may not be compelled to continue in its employ a person whose continuance in the service would patently be inimical to its interests.R. September 21. 78637. 106771. No. G. L-48494. Limited extent. This is the reason why under the broad principles of social justice the dismissal of employees is adequately protected by the laws of the state. v. 1990) Force Union v. No. not feigned so as to circumvent the contract or the law Termination of employment is not anymore a mere cessation or severance of contractual relationship but an economic phenomenon affecting members of the family. They may be dismissed upon loss of confidence (Maglutac v. or improper pressure or any other circumstances vitiating his consent. G. No. (San Miguel Brewery Sales Zamora. 2012) Fixed-period Employees / Term Employment This arrangement does NOT circumvent security of tenure when: (1) Fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force. XIII Sec. 1989) 106 . Gallente. G. No. v. duress. v Ranchez. G. Ople. or (2) The employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter (Brent School v. Feb. No.R. secured for the duration of the limited period of their employment University v. it cannot be blotted out by an employment contract. 5. dissatisfaction of the employer must be real and in good faith. 177937. Management prerogative must be exercised in good faith and with due regard to the rights of the workers in the spirit of fairness and with justice in mind. G. (Alhambra Industries. (Baguio Central (Robinson’s Galleria et al. Inc. June 20. A probationary employee can only be terminated for: (1) Just causes. Requisites for the validity of management prerogative affecting security of tenure (a) Exercised in good faith for the advancement of the Employer's interest. 188267.UP LAW BOC LABOR STANDARDS Probationary Employees LABOR LAW Nature It is a constitutionally protected right (Art.R. No.R. No. 3. 1990) Manufacturing Corp.R. or (3) Failure to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of engagement. Jan. 182486. 2011) Project/seasonal Employees Limited extent. Philbag Workers Union-Lakas at Gabay ng Manggagawang Nagkakaisa. G. and (b) not for the purpose of defeating or circumventing the rights of the Employees under special laws or under valid agreements. G. 78345. 19.R. additional limitations on power of employer to terminate: must be exercised in accordance with the specific requirements of the contract. (2) Authorized causes. (Philbag Industrial NLRC. December 2. February 8. 1987 Constitution). November 18. NLRC. 53515.

more than anything else. San Joaquin. Unsubstantiated accusations or baseless conclusions of the employer are insufficient legal justifications to dismiss an employee. January 20. 185549. however. Inc. 179001. 2008) proving the termination was for a valid or authorized cause shall rest on the employer. However. Besides.UP LAW BOC LABOR STANDARDS LABOR LAW presented by them. Coca-Cola Bottlers Measure of Penalty While an employer enjoys a wide latitude of discretion in the promulgation of policies. March 28. Fly Ace Corp. (Functional. 2014) San Sebastian College-Recoletos.R. Guide in disposition of labor disputes Bare and vague allegations as to the manner of service and the circumstances surrounding the same would not suffice. the nature of the alleged procedural infirmity cannot prod the Court to dismiss the Petition outright without first considering its merits. (Moreno v.. does not constitute substantial evidence. actual service thereof upon petitioner. August 28. No. August 7. (a) An employee may terminate without just cause the employer-employee relationship by serving a written notice on the employer at least one (1) month in advance. 2013) 192558. G. G. v. the employee must first establish by substantial evidence the fact of his dismissal from service. If there is no dismissal. 180972.R. 3rd sentence: The burden of The burden is on the employer to prove that the termination was for valid cause. and the corresponding penalties. then there can be no question as to the legality or illegality thereof. Philippines. in keeping with the principle that the scales of justice should be tilted in favor of the latter in case of doubt in the evidence Termination of Employment by Employee Resignation Art. (Ang v. without proof of receipt.R. In illegal dismissal cases. Jr. or in the very least. before a case for illegal dismissal can prosper. No. the burden of proof is upon the employer to show that the employee's termination from service is for a just and valid cause.R. 176377. an employer-employee relationship must first be established by the employee (Javier v. LC: Termination by Employee. The employer's case succeeds or fails on the strength of its evidence and not the weakness of that adduced by the employee. G.R. No. must be commensurate to the offense involved and to the degree of the infraction. 2012) Employer’s Burden of Proof Art. No. The employer upon whom no such notice was served may hold the employee liable for damages 107 . January 25. rules and regulations on work-related activities of the employees. G. must always be fair and reasonable. G. G.. 2011) Employee must first establish the fact of dismissal Before the employer must bear the burden of proving that the dismissal was legal. No. Inc.. No. 2012) (MZR Industries v. 175283.R. an illegal dismissal case. those directives. 2013) Procedural vis-à-vis substantive issues A labor case whose substantive issues must be addressed. No. November 16. Colambot..R. Jr. Granfil. 283 (b). 168120. (Mansion Printing Center G. when prescribed. 291. Bitara. A mere copy of the notice of termination allegedly sent by respondent to petitioner. the onus probandi rests on the employer to prove that In its dismissal of an employee was for a valid cause. February 15. v. (Garza v.

Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family. G. (Hechanova Bugay Vilchez Resignation is the voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service. No. there being evident disproportion between the evil and the resistance which all men can offer. G. Inhuman and unbearable treatment accorded the employee by the employer or his representative. In order for intimidation to vitiate consent. G. the following requisites must concur: (1) that the intimidation caused the consent to be given. 117963. 11. such that he has no other choice but to disassociate himself from his employment. and (4) Other causes analogous to any of the foregoing. 180285.R.R. (3) that the threat be real or serious.. (3) Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family. General rule: Written notice to resign submitted one (1) month in advance Exception: No notice required for any of the following: (1) Serious insult by the employer or his representative on the honor and person of the employee.UP LAW BOC LABOR STANDARDS LABOR LAW To constitute a resignation. Add Force Personnel Services. Inc.) Mere allegations of threat or force do not constitute evidence to support a finding of forced resignation. January 16. leading to the choice of doing the act which is forced on the person to do as the lesser evil. 2013) 108 . 2. 198261. Serious insult by the employer or his representative on the honor and person of the employee. Matorre.. No. 16. Other causes analogous to any of the foregoing.” (Blue Angel Manpower and Security Services Inc. PAL Maritime Lawyers v. GR No. July 28. 175209. NLRC.R. and (4) that it produces a well-grounded fear from the fact that the person from whom it comes has the necessary means or ability to inflict the threatened injury to his person or property. July 6. (2) Inhuman and unbearable treatment accorded the employee by the employer or his representative. (2) that the threatened act be unjust or unlawful. v. 2010) The rule requiring an employee to stay or complete the 30-day period prior to the effectivity of his resignation becomes discretionary on the part of management as an employee who intends to resign may be allowed a shorter period before his resignation becomes effective. No. Feb. 2013) Corp. 161196. v Court of Appeals.R. it must be unconditional and with the intent to operate as such. G. 1999) “Well-entrenched is the rule that resignation is inconsistent with the filing of a complaint for illegal dismissal. and 4. 2008. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment (b) An employee may put an end to the relationship without serving any notice on the employer for any of the following requirements: 1. 3. (Cervantes v. No. (Mandapat v. (Azcor Manufacturing Inc. Oct.

UP LAW BOC

LABOR STANDARDS

LABOR LAW

Performance of Military or Civic Duty
Art. 292, LC: When Employment Not Deemed
Terminated: The bona fide suspension of the

confidence in him. (Yabut v. Meralco, G.R. No.

operation of a business or undertaking for a
period not exceeding six (6) months, or the
fulfillment by the employee of a military or
civic duty shall not terminate employment. In
all such cases the employer shall reinstate the
employee to his former position without loss of
seniority rights if he indicates his desire to
resume his work not later than one (1) month
from the resumption of operations of his
employer or from his relief from the military or
civic duty

Employer’s right to dismiss vis-à-vis employee’s
right to security of tenure
The managerial prerogative to transfer
personnel must be exercised without grave
abuse of discretion, bearing in mind the basic
elements of justice and fair play. Having the
right should not be confused with the manner
in which that right is exercised. Thus, it cannot
be used as a subterfuge by the employer to rid
himself of an undesirable worker. In particular,
the employer must be able to show that the
transfer is not unreasonable, inconvenient or
prejudicial to the employee; nor does it involve
a demotion in rank or a diminution of his
salaries, privileges and other benefits. (Alert

190436, January 16, 2012)

B.1. JUST CAUSE
Art. 288, LC: Termination by Employer. An
employer may terminate an employment for
any of the following causes:
(a) Serious misconduct or willful disobedience
by the employee of the lawful orders of his
employer or representative in connection with
his work;

Security and Investigation Agency, Inc. v.
Pasawilan, G.R. No. 182397, September 14,
2011)
The right of employers to shape their own work
force is recognize; however, this management
prerogative must not curtail the basic right of
employees to security of tenure. There must be
a valid and lawful reason for terminating the
employment of a worker. Otherwise, it is illegal
and would be dealt with by the courts
accordingly. (Alert Security and Investigation

(b) Gross and habitual neglect by the employee
of his duties;
(c) Fraud or willful breach by the employee of
the trust reposed in him by his employer or
duly authorized representative;

Agency, Inc. v. Pasawilan, G.R. No. 182397,
September 14, 2011)

(d) Commission of a crime or offense by the
employee against the person of his employer
or any immediate member of his family or his
duly authorized representatives; and

Serious Misconduct
ELEMENTS OF SERIOUS MISCONDUCT:
a) There must be misconduct;
b) The misconduct must be of such grave
and aggravated character;
c) It must relate to the performance of
the employee’s duties; and
d) There must be showing that the
employee becomes unfit to continue
working for the employer.

(e) Other causes analogous to the foregoing.
Basis
As a measure of self-protection against acts
inimical to its interest, a company has the right
to dismiss its erring employees. An employer
cannot be compelled to continue employing an
employee guilty of acts inimical to the
employer's interest, justifying loss of
109

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LABOR STANDARDS

Accusatory and inflammatory language used
by an employee to the employer or superior
can be a ground for dismissal or termination.

LABOR LAW

management cannot serve basis as
termination. The rule only applies when the
violation is not tantamount to fraud or
commission of illegal activities. One cannot
evade liability based on obedience to the
corporate chain of command (PNB v. Padao,

(Nissan Motors Phils. Inc. v. Angelo, G.R. No.
164181, September 14, 2011)

G.R. No. 180849, 187143, Nov. 6, 2011)

Willful Disobedience
ELEMENTS OF WILLFUL DISOBEDIENCE:
a) There must be disobedience or
insubordination;
b) The disobedience or insubordination
must be willful or intentional
characterized by a wrongful and
perverse attitude;
c) The order violated must be reasonable,
lawful, and made known to the
employee (Mirant Philippines Corp v.

On the principle of respondeat superior or
command responsibility alone, a managerial
employee may be held liable for negligence in
the performance of her managerial duties.

(Jumuad v. Hi-Flyer Food, Inc., G.R. No.
187887, (September 7, 2011)
Gross Negligence includes gross inefficiency
Article 290 of the Labor Code provides that
one of the just causes for terminating an
employment is the employee's gross and
habitual neglect of his duties. This cause
includes gross inefficiency, negligence and
carelessness (Century Iron Works, Inc. v.

Sario, G.R. no. 197598, November 21,
2012); and
d) The order must pertain to the duties
which he has been engaged to
discharge.

Bañas, G.R. No. 184116, June 19, 2013)
Gross and Habitual Neglect of Duties
Gross negligence has been defined as the want
or absence of or failure to exercise slight care
or diligence, or the entire absence of care. It
evinces
a
thoughtless
disregard
of
consequences without exerting any effort to
avoid them. In order to constitute just cause for
an EE’s dismissal due to negligence, it must
not only be gross, but also habitual. A single or
an isolated act that cannot be categorized as
habitual, hence, not a just cause for their
dismissal. (National Bookstore v. CA, G.R. No.

Loss of Trust and Confidence
The loss of trust and confidence must be based
on willful breach of the trust reposed in the
employee by his employer. Such breach is
willful if it is done intentionally, knowingly, and
purposely, without justifiable excuse, as
distinguished from an act done carelessly,
thoughtlessly, heedlessly or inadvertently.
And, in order to constitute a just cause for
dismissal, the act complained of must be workrelated and shows that the employee
concerned is unfit to continue working for the
employer. In addition, loss of confidence as a
just cause for termination of employment is
premised on the fact that the employee
concerned holds a position of responsibility,
trust and confidence or that the employee
concerned is entrusted with confidence with
respect to delicate matters, such as handling
or case and protection of the property and
assets of the employer. The betrayal of this

146741, Feb. 27, 2002)
Gross negligence connotes want of care in the
performance of one’s duties, while habitual
neglect implies repeated failure to perform
one’s duties for a period of time, depending on
the circumstances.
Estoppel by toleration of management: breach
of rules and regulations which are tolerated by
110

UP LAW BOC

LABOR STANDARDS

trust is the essence of the offense for which an
employee is penalized. (Villanueva, Jr. v. NLRC,

LABOR LAW

(d) The loss of trust and confidence should not
be simulated;
(e) It should not be used as a subterfuge for
causes which are improper, illegal, or
unjustified; and
(f) It must be genuine and not a mere
afterthought to justify an earlier action
taken in bad faith (China City Restaurant
Corp. v. NLRC, 217 SCRA 443; Midas Touch
v. NLRC, G.R. No. 111639, 29 July 1996)

G.R. No. 176893, June 13, 2012)
The loss of trust and confidence must be based
not on ordinary breach by the employee of the
trust reposed in him by the employer, but, in
the language of Article 282 (c) of the Labor
Code, on willful breach. A breach is willful if it
is done intentionally, knowingly and purposely,
without justifiable excuse, as distinguished
from an act done carelessly, thoughtlessly,
heedlessly or inadvertently. It must rest on
substantial grounds and not on the employer's
arbitrariness, whims, caprices or suspicion;
otherwise, the employee would eternally
remain at the mercy of the employer.

Loss of trust and confidence to be a valid cause
for dismissal must be based on a willful breach
of trust and founded on clearly established
facts. The basis for the dismissal must be
clearly and convincingly established but proof
beyond reasonable doubt is not necessary.

(Johansen World Group Corp. v. Gonzales III,
G.R. No. 198733, October 10, 2012)

(Prudential Guarantee and Assurance
Employee Labor Union v. NLRC, G.R. No.
185335, June 13, 2012)

Guidelines for the application of the doctrine of
loss of confidence

Positions of trust and confidence:

(1) Loss of confidence should not be
simulated;
(2) It should not be used as a subterfuge for
causes which are improper, illegal or
unjustified;
(3) It may not be arbitrarily asserted in the
face of overwhelming evidence to the
contrary; and
(4) It must be genuine, not a mere
afterthought to justify earlier action taken
in bad faith (Nokom v. NLRC, G.R. No.

(1) Managerial employees - those vested with
the powers or prerogatives to lay down
management policies and to hire, transfer,
suspend, lay-off, recall, discharge, assign or
discipline employees or effectively recommend
such managerial actions.
(2) Fiduciary Rank and file - those who in the
normal and routine exercise of their functions,
regularly handle significant amounts of money
or property. Examples are cashiers, auditors,
property
custodians,
etc.
(Prudential

140043, July 18, 2000)

Guarantee and Assurance Employee Labor
Union v. NLRC, G.R. No. 185335, June 13, 2012)

ELEMENTS OF LOSS OF TRUST AND
CONFIDENCE:

Managerial

(a) There must be an act, omission, or
concealment
(b) The act, omission or concealment justifies
the loss of trust and confidence of the
employer to the employee;
(c) The employee concerned must be holding
a position of trust and confidence;

Mere existence of a
basis for the belief of
employee’s guilt

Fiduciary rank-and-file

Proof of involvement in
the alleged events in
question required;
(Grand Asian Shipping mere uncorroborated
Lines, Inc. v. Galvez,
assertions and
G.R. No. 178184,
accusations
January 29, 2014)
are not enough
111

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LABOR LAW

mutual loyalty and dedicated service. If an
employer had treated his employee well, has
accorded him fairness and adequate
compensation as determined by law, it is only
fair to expect a long-time employee to return
such fairness with at least some respect and
honesty. Thus, it may be said that betrayal by a
long-time employee is more insulting and
odious for a fair employer. (Moya v. First Solid

(Etcuban, Jr. v.
Sulpicio Lines, Inc.,
G.R. No. 148410,
January 17, 2005)
Employment for a long
time is counted
against the employee

(Salvador v. Philippine
Mining Service Corp.,
G.R. No. 148766,
January 22, 2003)

Rubber Industries, Inc., G.R. No. 184011,
September 18, 2013)
Commission of a crime
Commission of a crime or offense by the
employee against the person of his employer
or any immediate member of his family or his
duly authorized representatives (Art. 288 d,

Managerial Employees: Reason for the Rule
The employer has broader discretion in
dismissing managerial employees on the
ground of loss of trust and confidence than
those occupying ordinary ranks. While plain
accusations are not sufficient to justify the
dismissal of rank and file employees, the mere
existence of a basis for believing that
managerial employees have breached the trust
reposed on them by their employer would
suffice to justify their dismissal. (Grand Asian

LC)

Shipping Lines, Inc. v. Galvez, G.R. No. 178184,
January 29, 2014)

The employer may validly dismiss for loss of
trust and confidence an employee who
commits an act of fraud prejudicial to the
interest of the employer. Neither a criminal
prosecution nor a conviction beyond
reasonable doubt for the crime is a requisite
for the validity of the dismissal (Concepcion v

Acquittal in Criminal Case arising from
Misconduct

Minex Import Corporation /Minerama
Corporation, G.R. No. 153569, January 24,
2012).

Notwithstanding petitioner’s acquittal in the
criminal case for qualified theft, the company
had adequately established the basis for the
company’s loss of confidence as a just cause to
terminate. As opposed to the "proof beyond
reasonable doubt" standard of evidence
required in criminal cases, labor suits require
only substantial evidence to prove the validity
of the dismissal (Paulino v. NLRC, G.R. No.

Other Analogous Causes
One is analogous to another if it is susceptible
of comparison with the latter either in general
or in some specific detail; or has a close
relationship with the latter.

Other Causes
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

176184, June 13, 2012)
Betrayal by a long-time employee
Length of service is not a bargaining chip that
can simply be stacked against the employer.
After all, an employer-employee relationship is
symbiotic where both parties benefit from
112

Abandonment
Courtesy Resignation
Change of Ownership
Habitual Absenteeism/Tardiness
Past Offenses
Habitual Infractions
Immorality
Conviction/Commission of a Crime

2000. there must be a clear and deliberate intent to discontinue one's employment without any intention of returning. 184517. 188711. Escudero. 2013) Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. 2008) However.R. (SME 113 . (Batongbacal v. (R. 188711. 72977. Inc. This is especially true when the tardiness and/or absenteeism occurred frequently and repeatedly within an extensive period of time. It has been ruled that the employer has the burden of proof to show a deliberate and unjustified refusal of the employee to resume his employment without any intention of returning. Michelle had been in Cavite Apparel’s employ for six years.B. As earlier mentioned. No. 186641. No. July 3. (Tan Brothers Corp. 2010) A mere change in the equity composition of a corporation is neither a just nor an authorized cause that would legally permit the dismissal of the corporation's employees en masse.R. Escudero. Michael Press v. 1988) Change of Ownership Ramil. Associated Bank. 171630.R. No. G. G. No. and discipline to come to work on time everyday exhibit the employee's deportment towards work. GR No. No. No.UP LAW BOC LABOR STANDARDS Abandonment LABOR LAW Bank. December 21.R. still we find the penalty of dismissal imposed on her unjustified under the circumstances.R. (Tan Brothers Corp. July 3. with no derogatory record other than the four absences without official leave in question. of Habitual Absenteeism/ Tardiness Habitual tardiness is a form of neglect of duty. 2013) Courtesy Resignation Resignation per se means voluntary relinquishment of a position or office. v. De Guzman.R. 2013) ELEMENTS OF ABANDONMENT: (a) Failure to report for work or absence without valid or justifiable reason. Galit. February 6. To constitute abandonment. Past Offenses Previous offense may be used as valid justification for dismissal from work only if the infractions are related to the subsequent offense upon which the basis of termination is decreed. of Basilan City v. It constitutes neglect of duty and is a just cause for termination of employment under paragraph (b) of Article 282 of the Labor Code. with the second element as the more determinative factor and being manifested by some overt acts. Adding the word "courtesy" did not change the essence of resignation. G. however. (Century Canning Corporation v. August 9. there are cases when absenteeism is not sufficient to justify termination. Cavite Apparel v Michelle Marquez. October 8. G. Basilan City v. the SC held: “Michelle might have been guilty of violating company rules on leaves of absence and employee discipline. G. diligence. the most serious penalty being a six-day suspension for her third absence on April 27. In the case of. February 13. 172044. Habitual and excessive tardiness is inimical to the general productivity and business of the employer. G. Lack of initiative. not to mention that she had already been penalized for the first three absences. 2013. 153510.” Absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore. (b) A clear intention to sever the employeremployee relationship.

NLRC. 173489.R. October 17. No. No.R. Conviction/Commission of a Crime Totality of infractions doctrine The totality of infractions or the number of violations committed during the period of employment shall be considered in determining the penalty to be imposed upon an erring employee.. Jr. March 6. immorality (extramarital affair) justified terminating the (1) The employer exercises its prerogative to install the labor-saving device in good faith for the advancement of its interest and not to defeat or circumvent the employee’s right to security of tenure.R. 92 provides that disgraceful or immoral conduct can be used as a basis for termination of employment (Santos.R. G. Wyeth Phil. Fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character. (Bughaw. v. October 2. the record of an employee is a relevant consideration in determining the penalty that should be meted out since an employee's past misconduct and present behavior must be taken together in determining the proper imposable penalty. and (3) The employer pays the employees separation pay equivalent to one-month 114 due to . (Flight Attendants and Stewards Ass'n of the Philippines v. NLRC. 149629. February 25. Jr. AUTHORIZED CAUSE (1) (2) (3) (4) Installation of labor saving device Retrenchment to prevent losses Redundancy Closure of Business [Art. G. as amended. October 4.2. 115795.R. G. Jr. Bandiola. G. No. v. G. Immorality DECS Order No.. G. (2) The employer served a written notice both to the employees and to the DOLE at least 30 days prior to the intended date of termination. 1998) NLRC. Inc. LC] Basis Employment is the lifeblood upon which the worker and his family owe their survival. cooperative v. Inc.UP LAW BOC LABOR STANDARDS LABOR LAW Habitual Infractions employment by the employer (Alilem Credit Series of irregularities when put together may constitute serious misconduct. No. 12. Inc. which under Article 282 of the Labor Code. Treasure Island Industrial. 2008) Installation of Labor-Saving Device This refers to the installation of machinery to effect economy and efficiency in the employer’s method of production (Edge Apparel. conduct and ability separate and independent of each other. Mar. 171790. 289. 2009) (Merin v. G. this does not and should not mean that his employment record would be wiped clean of his infractions. PAL. After all. No. No. 28. 1998) Requirements for termination installation of labor-saving device The act of engaging in extramarital affairs was specifically provided for by the cooperative’s Personnel Policy as one of the grounds for termination of employment and said act raised concerns to the cooperative as the Board received numerous complaints and petitions from the cooperative members themselves asking for the removal of Bandiola because of his immoral conduct. hence. 2008) B. 2013). While it may be true that petitioner was penalized for his previous infractions. Feb. v. No.R. 173151. is a just cause for dismissal (Gustilo v.R. 121314. 178083. 2004) The charge of drug abuse within the company’s premises and during work hours constitutes serious misconduct which is one of the just causes for termination.

seniority. 2013) Redundancy Redundancy exists when the service capability of the workforce is in excess of what is reasonably needed to meet the demands of the business enterprise. whichever is higher. (c) The employer pays the retrenched employees separation pay equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service. November 21. a decrease in the volume of business or the dropping of a particular line or service previously manufactured or undertaken by the enterprise.R. 2004) Retrenchment ELEMENTS OF RETRENCHMENT: (a) That retrenchment is reasonably necessary and likely to prevent business losses which.R. age. whichever is higher. (c) Good faith in abolishing the redundant positions. 178083. (b) 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. G. November 21. or if only expected. and superfluity of a position or positions could be the result of a number of factors. (Morales v. and. Inc. however. efficiency. and (d) Fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished. are not merely de minimis. (Flight Attendants and Stewards Ass'n of the Philippines v. No.UP LAW BOC LABOR STANDARDS pay or at least one-half (1/2) month pay for every year of service. No. are proven by sufficient and convincing evidence (Sanoh Fulton Phils. the employer must comply with the following requisites: (a) Written notice served on both the employees and the DOLE at least one month prior to the intended date of termination of employment.R. Inc. 115 . No. (d) That the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employees' right to security of tenure. No. physical fitness.R. if already incurred. 2009) Standards for losses 182475. G. or the expected imminent losses sought to be forestalled. v. (3) The retrenchment is reasonably necessary and is likely to be effective in preventing the expected losses. G. 182475. (b) Payment of separation pay equivalent to at least one month pay for every year of service. a fraction of at least six months being considered as one whole year (Samson. LABOR LAW (2) The losses are actual or reasonably imminent. 2012) (1) The losses incurred are substantial and not de minimis. G. serious. Metrobank. Metrobank. actual and real. 187214. (Morales v. August 14. Bernardo. but substantial. PAL. 2012) For the implementation of a redundancy program to be valid. and (4) The alleged losses.. such as the overhiring of workers. A position is redundant when it is superfluous. and financial hardship for certain workers.. such as status. October 2. are reasonably imminent as perceived objectively and in good faith by the employer. if already incurred. (e) That the employer uses fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees.

172846.UP LAW BOC LABOR STANDARDS LABOR LAW To exhibit its good faith and that there was a fair and reasonable criteria in ascertaining redundant positions. In stock sales. and not closure of. Viajar. feasibility studies/proposals on the viability of the newly created positions. Obligation of Buyer The buyer in good 116 The corporation or its . G. a company claiming to be over manned must produce adequate proof of the same. the individual or corporate shareholders sell a controlling block of stock to new or existing shareholders. proof must be shown that: (a) it was done in good faith to advance the employer's interest and not for the purpose of defeating or circumventing the rights of employees under the law or a valid agreement. 174214. (5) The burden of proving compliance with all the above-stated falls upon the employer. Manila Polo Club. the company itself. in both instances. job description and the approval by the management of the restructuring. 181738. (General Milling Corporation v Violeta L. January 30. A shift in the composition of its shareholders will not affect its existence and continuity. G. 2013) allegation in order to avoid the payment of separation pay. However. the affected employees are entitled to separation pay. Otherwise. Such proof includes but is not limited to the new staffing pattern. Notwithstanding the stock sale. July 24. Closure of Business Cebu City Hotel v. the corporation continues to be the employer of its people and continues to be liable for the payment of their just claims. the employer must prove such Corporate acquisitions Asset Sales Stock Sales Sale Corporate entity sells all or substantially all of its assets to another entity.. Obligation of Seller Seller in good faith is authorized to dismiss the affected employees.R. but is liable for the payment of separation pay under the law.R. No. 2013) Closure of Department The closure of a department or division of a company constitutes retrenchment by. June 13. as amended. No. 2012) (Manila Polo Club Employees' Union v. and (b) Written notice on the affected employees and the DOLE is served at least one month before the intended date of termination of employment. G. (3) The employer can lawfully close shop even if not due to serious business losses or financial reverses but separation pay. (Waterfront Guidelines in Closure (1) Closure or cessation of operations of establishment or undertaking may either be partial or total (2) Closure or cessation of operations of establishment or undertaking may or may not be due to serious business losses or financial servicereverses. No.R. Jimenez. Inc. which is equivalent to at least one month pay as provided for by Article 289 of the Labor Code. must be given to all the affected employees. (4) If the closure or cessation of operations of establishment or undertaking is due to serious business losses or financial reverses.

292. Inc. March 25. for reasons of public policy and social justice. In all such cases the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty Closure The reversal of the fortune of the employer whereby there is a complete cessation of business 117 .R. or (6) Seniority. 186641. on the other hand. De Guzman. v. 131108. LC: When Employment Not Deemed Terminated: The bona fide suspension of the G. v. 184517. (Asian Alcohol Corp. The most that it may do.UP LAW BOC LABOR STANDARDS Asset Sales faith. Stock Sales new majority shareholders are not entitled to lawfully dismiss corporate employees absent a just or authorized cause. G. LC) Criteria in selecting employees for dismissal: Fair and reasonable criteria in ascertaining who will be affected: (1) Preferred status (e. No. 1999) Retrenchment Redundancy LABOR LAW operation of a business or undertaking for a period not exceeding six (6) months. 289. is to give preference to the qualified separated personnel of the selling firm. 2013]) Procedural steps required At least 1 month before the intended date of termination. No. (4) Age. (SME Bank. whichever is higher In case of closure of business not due to serious business losses. usually due to financial losses Resorted to To save primarily to production avoid or costs minimize business losses Aims to prevent further financial drain upon the Employer Employee is entitled to separation pay of 1 month pay or 1/2 month pay per year of service. Employer is to serve written notice to: (1) Affected employees. temporary. nor is it liable for the payment of their claims. (3) Physical fitness. (2) Efficiency.g. the employer pays the employees terminated separation pay of 1 month pay or 1/2 month pay per year of service. is not obliged to absorb the employees affected by the sale. Reduction of personnel usually due to poor financial returns so as to cut down on costs of The service of an Employee is in excess of what is required by an enterprise operations in terms of salaries and wages operations and/or actual locking-up of the doors of the establishment. (5) Financial hardship. whichever is higher Employee is entitled to separation pay of 1 month pay or 1/2 month pay per year of service. casual or regular Employees).R. or the fulfillment by the employee of a military or civic duty shall not terminate employment. whichever is higher Temporary Closure / Bona fide suspension of Operations Art. NLRC. [October 8. (2) DOLE (Art.

June 5. ENFORCEMENT OF UNION SECURITY CLAUSE IN CBA In terminating the employment of an employee by enforcing the union security clause. 2015). v. First I. In this case.R. LC] (5) Termination in conformity with existing statute/ qualification requirements II. 286 of the Labor Code. GR No 182800. and in the absence of such certification. No. whichever is Philippine Scales. the dismissal must necessarily be declared illegal. G. 2007] Craft Corp. LC] (2) Enforcement of union security clause in the CBA (3) Dismissal of union officers for the conduct of an illegal strike [Art. and (3) There is sufficient evidence to support the union's decision to expel the employee from the union or company [Inguillo v.R. Not accepting the workers back to work after the 6 month period is equivalent to termination which should be for cause and with proper procedure (Manila The burden falls upon the employer to establish these requisites. Under Art.R. 290. a fraction of at least six (6) months being considered as one (1) whole year.3 OTHER CAUSES (1) Disease incurable in 6 months [Art.UP LAW BOC LABOR STANDARDS LABOR LAW greater. LC] (4) Dismissal of union members for participating in the commission of illegal acts [Art. a bona fide suspension of business operations for not more than six (6) months does not terminate employment. the employee may be recalled to work or be permanently laid off. April 20. 270 (a). LC: Disease as Ground for Termination: An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided. 165407. respondents' termination became permanent. and (3) A certification to that effect must be issued by a competent public health authority. Bauca. G. That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service. 2009] 118 . Nos. It is only where there is a prior certification from a competent public authority that the disease afflicting the employee sought to be dismissed is of such nature or at such stage that it cannot be cured within six (6) months even with proper medical treatment that the latter could be validly terminated from his job. v. 171282. DISEASE Art. 290. Mining Corp v Amor. (2) His continued employment is prohibited by law or prejudicial to his health or to the health of his co-employees. 183484. Pula] B. (2) The union is requesting for the enforcement of the union security provision in the CBA. July 30. (SKM Art Requisites (1) The employee must be suffering from a disease which cannot be cured within six months. G. Inc. v. November 27. No. 270 (a). After six (6) months. the employer needs only to determine and prove that: (1) The union security clause is applicable. Inc.. [Crayons Processing. Hence. 2013) An employer may validly suspend operations for at most 6 months. Pula. Inc. more than six (6) months have elapsed from the time the Club ceased to operate. 167727. [Crayons Processing.

157010. 2007] B. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. LC: Any union LABOR LAW guidelines set by the Department of Labor and Employment. September 27. No. 119 .R. Cabansag. [St. LC: Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause without prejudice to the requirement of notice under Article 283 of this Code..R. Requisites for Valid Dismissal (1) Substantive due process: The dismissal must be for any of the causes provided for in Article 288 – 290 of the Labor Code.4 DUE PROCESS Art. failure to discharge which would mean that the dismissal is not justified and. [June 21. has to be observed. [Fujitsu Computer Products Corporation of the Phil. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. 283 (b). a. G. Court of Appeals. 3rd par. be the proceeding administrative.. that the dismissal was not illegal. rests on the employer. and (2) Procedural due process: The employee must be afforded an opportunity to be heard and defend himself. 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 in accordance with company rules and regulations promulgated pursuant to Burden of Proof In illegal dismissal cases.UP LAW BOC LABOR STANDARDS III. civil. G. 2005] Right to Counsel The right to counsel. v. 2nd sen. order. DISMISSAL OF UNION OFFICERS FOR THE CONDUCT OF AN ILLEGAL STRIKE / DISMISSAL OF UNION MEMBERS FOR PARTICIPATING IN THE COMMISSION OF ILLEGAL ACTS Art. No. No. education. G. 162053. [PNB v. G.R. 90786. 2005] IV. morals. therefore. March 31. and the general welfare of the people. or criminal. Lukes’s Medical Employer may not substitute the required prior notice & opportunity to be heard with the mere payment of 30 days' salary. TERMINATION IN CONFORMITY WITH EXISTING STATUTE / QUALIFICATION REQUIREMENTS While the right of workers to security of tenure is guaranteed by the Constitution. safety. [Macasero v. the rights to counsel and to due process of law are two of the fundamental rights guaranteed by the 1987 Constitution to any person under investigation. March 7. officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status. 270. the onus of proving that the employee was not dismissed or. NLRC. 1991] Center Employees Ass'n-AFW v. if dismissed. illegal.R. Consequently. NLRC. No. peace. persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. 158232. Indeed. [Salaw v. a very basic requirement of substantive due process. its exercise may be reasonably regulated pursuant to the police power of the State to safeguard health.

This should be construed as a period of at least five (5) calendar days from receipt of the notice (3) Contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. October 24. 2010] First Notice II. 2012] Second Notice LABOR LAW employees. January 30.R. mandatory or exclusive avenue of due process. v. TWIN-NOTICE REQUIREMENT The employer has the burden of proving that a dismissed worker has been served two notices: (1) The first to inform the employee of the particular acts or omissions for which the employer seeks his dismissal. No.R. 2010] (1) Contain the specific causes or grounds for termination against them. it is the denial of this opportunity that constitutes violation of due process of law. Inc. G. substantial evidence is required and it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion [Andrada v. G. if any. 205453. [Erector Advertising Sign Group. July 2. (4) Specifically mention which company rules. 167218. NLRC.R. 2009] Guiding principles in hearing requirement (1) "Ample opportunity to be heard" means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him and submit evidence in support of his defense. G. it is not an absolute. conference or some other fair. 2014]) I. and (2) Contain a directive that the employees are given the opportunity to submit their written explanation within a “reasonable period” or every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense.R. G. 288 is being charged against the In employee dismissal cases.. [United Tourist Promotions v. PT&T. [Technol Eight Philippines Corporation v. MEANING OPPORTUNITY TO BE HEARD OF While a formal hearing or conference is ideal.R. 187605. G. No. No. Kemplin. Agemar Manning Agency. and (2) Indicate grounds established to justify the severance of their employment (United Tourist Promotions v. 194758. No. Inc. and (2) The second to inform the employee of his employer's decision to terminate him. G. HEARING. 2014] (1) Indicate all circumstances involving the charge against the employees considered. No. 178524.R. [Perez v. 152048. 2009] Degree of Proof In labor cases.UP LAW BOC LABOR STANDARDS Southern Industrial Gases Philippines. as in other administrative proceedings. the essence of due process is simply an opportunity to be heard. April 7. just and reasonable way. February 5. Kemplin. Cloma. No. 205453. No. An employee may be dismissed only if the grounds mentioned in the pre-dismissal notice were the ones cited for the termination of employment.R. are violated and/or which among the grounds under Art. whether in a hearing. G. (2) A formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist or a company 120 . February 5. April 13.

[International Hardware. No. Jr. NLRC. G. 1996] (3) Voluntary arbitration satisfies notice requirement for authorized causes [Revidad v. Bul-an. PT&T. 2004) Notice of the decision to dismiss AUTHORIZED CAUSE Notice to: (1) Employee. If reinstatement not possible. + full backwages No Just or Authorized Cause + No Due Process Invalid Reinstatement or separation pay. and (2) DOLE at least 1 month prior to the effectivity of the separation Requisites (1) Notice not needed when Employee consented to the retrenchment or voluntarily applied for one. 80770. NLRC. v. G. not collective [Shoppers Gain Supermart v. No.R. G. 111105.R. No. 1995] CONSEQUENCES FOR NON-COMPLIANCE OF PROCEDURAL DUE PROCESS Situation Validity of Dismissal Liability of ER Just or Authorized Cause + Due Process Valid No liability. June 27. 142609. No. 1989] (2) Notice must be individual.R.. It is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on which a fair decision can be based. v. April 7. 152048. August 10. G. + full backwages Just or Authorized Cause + No Due Process Valid Liable for damages due to procedural infirmity. A formal trialtype hearing is not at all times and in all instances essential to due process. November 25. G. 2009] OBSERVED IN Notice specifying the grounds for which dismissal is sought Hearing or opportunity to be heard Use of Position Paper It is the labor arbiter who is authorized to determine whether or not there is a necessity for conducting formal hearings in cases brought before them for adjudication even after the submission of the parties of their position papers or memoranda. Inc. Separation pay if for authorized cause 121 . (3) The "ample opportunity to be heard" standard in the Labor Code prevails over the "hearing or conference" requirement in the implementing rules and regulations. July 26.R. NLRC. No.R. (Seastar Marine Services Inc. or when similar circumstances justify it. Separation pay only in authorized cause No Just or Authorized Cause + Due Process Invalid Reinstatement or separation pay. 110731.UP LAW BOC LABOR STANDARDS LABOR LAW PROCEDURE TO BE TERMINATION CASES JUST CAUSE rule or practice requires it. [Perez v. If reinstatement not possible.

G. employer must pay the employee's salaries [Magana v. 174833. NLRC.R. The Labor Arbiter's order of reinstatement is immediately executory and the employer has to either re-admit them to work under the same terms and conditions prevailing prior to their dismissal. REINSTATEMENT Reinstatement means restoration to a state or condition from which one had been removed or separated. CC] I. G. REINSTATEMENT PENDING APPEAL [Art. merely reinstated in the payroll. 3 LC: In any event. December 15. [Art. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages. Dakila. L-39889. Inc.R. G. at the option of the employer. and that failing to exercise the options in the alternative.R. Medicard Philippines. 2006] General Rule: Reinstatement Exceptions: (1) Separation pay (2) Closure of business (Retuya v. 199547. No. insofar as the reinstatement aspect is concerned. November 28. shall immediately be executory. G. Prescription Period An action for reinstatement by reason of illegal dismissal is one based on an injury which may be brought within 4 years from the time of dismissal.UP LAW BOC LABOR STANDARDS LABOR LAW (10) When supervening facts have transpired which make execution on that score unjust or inequitable or. April 2. Secretary of Labor.R. v. Dumarpa.. G. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or. No. No. 1981) (4) Employee’s unsuitability (Divine Word High School v. No. G. 204761. 2011) (8) Long passage of time (9) Inimical to the employer's interest If the order of reinstatement of the Labor Arbiter is reversed on appeal. Aug. 143219. inclusive of allowances. 148848. and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.R. Hon. RELIEFS FOR ILLEGAL DISMISSAL Art. G. 168317m Nov.1. November 12. August 6. C. 2003) (3) Economic business conditions (Union of Supervisors v. 2012) (6) Antipathy and antagonism (Wensha Spa Center v. G. par. 2010] 122 . No.R. pending appeal. to an increasing extent (Emeritus Security & Maintenance Systems. 2014) C. 2010) (7) Job with a totally different nature (DUP Sound Phils. No. Inc. the decision of the Labor Arbiter reinstating a dismissed or separated employee.R.R. In case of regular employment. 1986) (5) Employee’s retirement/ overage (New Philippine Skylanders. G. No. Aug. v. 1146. 16. 229] Art. No. 5. 21. 72207. LC: Security of Tenure. Yung. Dailig. v. or to reinstate them in the payroll. Villanueva. CA. 229. Inc. The person reinstated assumes the position he had occupied prior to his dismissal [Asian Terminals. No. v. the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title.R. Inc. The posting of a bond by the employer shall not stay the execution for reinstatement provided herein. September 24. 285. 185122. it is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court.

allowances include transportation and emergency living allowances [Santos v. Sec.R. IRR) Separation Pay and Reinstatement. G. particularly where the illegally dismissed employee held a managerial or key position in the company. NLRC. However. it would be more prudent to order payment of separation pay instead of reinstatement [Quijano v. Effect of Reversal of Executed Judgment. Mercury Drug Corp. on motion. No. and (3) When the dismissed employee opted not to be reinstated.R. 78739. G. issue such orders of restitution of the executed award. [Bani Rural Bank. The payment of separation pay replaces the legal consequences of reinstatement to an employee who was illegally dismissed.UP LAW BOC LABOR STANDARDS No refund doctrine An employee cannot be compelled to reimburse the salaries and wages he received during the pendency of his appeal. NLRC. Rule 1. the Labor Arbiter shall. [College of the Immaculate Conception v. 2013] Note. notwithstanding the reversal by the NLRC of the LA's order of reinstatement. II. G. March 22.R. it expressly disallows restitution of wages paid due to reinstatement pending appeal.. 1989]. 76721. 78524. v. September 21. 126561. 170904. No. Inc. (2) The continued relationship between the employer and the employee is no longer Inasmuch as the words "wages". "pay" and "salary" have the same meaning.R.R. and (4) SP as a benefit in the CBA or company policy Computation SP as a statutory requirement is computed by integrating the basic salary with regular allowances employee has been receiving [Planters Products. in cases where the dismissed employee's position is no longer available. Rule I. No. v. except wages paid during reinstatement pending appeal. January 20. 167563. Section 14. NLRC. however: Rule XI. De Guzman. Inc. 1987] Instances when the award of separation pay. 2010] viable due to the strained relations between them. No. 14 of the 2011 NLRC Rules of Procedure provide for restitution of amounts paid pursuant to execution of awards during pendency of the appeal. expedient or practical. and 123 . Exclusive Remedies The payment of separation pay and reinstatement are exclusive remedies. as where reinstatement would only exacerbate the tension and strained relations between the parties or where the relationship between the employer and employee has been unduly strained by reason of their irreconcilable differences. No. or the payment of separation benefits would be for the best interest of the parties involved. 1998] OF Kinds of separation pay (SP) (1) SP as a statutory requirement for authorized causes (2) SP as financial assistance found in the next section (3) SP in lieu of reinstatement where reinstatement is not feasible. SEPARATION REINSTATEMENT PAY IN LIEU LABOR LAW Doctrine of Strained Relations Where reinstatement is not feasible. is proper: (1) When reinstatement is no longer possible. G. in lieu of reinstatement to an illegally dismissed employee. Where the executed judgment is totally or partially reversed or annulled by the Court of Appeals or the Supreme Court. Section 4 (b). November 13. July 8. (Book VI. G.

1998] Awards including salary differentials are not allowed [Insular Life Assurance Co. [Songco v.R.R. transportation allowances. G.2. 123226. January 2. LIMITED BACKWAGES Also included are vacation leaves. a form of relief that restores the income lost by reason of such unlawful dismissal. and (2) backwages. G. NLRC. in the nature of a command to the employer to make a public reparation for illegally dismissing an employee. Inc. v. v. even if employee did not bring an appeal regarding the matter [Aurora Land Projects Corp. or separation pay if reinstatement is no longer viable. NLRC. v. [San Miguel Corporation v. They are separate and distinct from each other. 122955.R.. No. nor is it a redress of a private right but. 1997] II. 1996] The salary base properly used should be the basic salary rate at the time of dismissal plus the regular allowances. G. v. April 15.R. it is not private compensation or damages. i. 50999-51000. NLRC.. Exceptions (1) The Court awarded limited backwages where the employee was illegally dismissed but the employer was found to be in good faith. rather. No. No. 1990] General rule: An illegally dismissed employee is entitled to full backwages. NLRC.. Feati University (1974) adopted a consensus policy of pegging the 124 . No. NLRC. and sick leaves The effects of extraordinary inflation are not to be applied without an official declaration thereof by competent authorities [Lantion v. service incentive leaves.R. NLRC. Neither does it relieve the employer of legal obligations. without deducting from backwages the earnings derived elsewhere by the concerned employee during the period of his illegal dismissal. 114733. 1998] Emergency cost of living allowances (ECOLA). Payment of backwages is specifically designed to restore an employee's income that was lost because of his unjust dismissal. Nos. in the computation of the separation pay of petitioners. the logical conclusion. 111651. 1990] I. 13th month pay [Paramount Vinyl Product Corp. Jr. COMPUTATION OF BACKWAGES A dismissed employee who has accepted separation pay is not necessarily estopped from challenging the validity of his or her dismissal. [St. v. [Bustamante v. January 2. BACKWAGES Backwages are earnings lost by a worker due to his illegal dismissal. Javate. 1987] Full backwages means exactly that. May 21. therefore. November 28. 1974] Effect of failure to order backwages A “plain error” which may be rectified. March 23.e. 114733. No. NLRC. NLRC. [Aurora Land Projects Corp. CIR. G. 1992] (2) Delay of the EE in filing the case for illegal dismissal [Mercury Drug Co. Theresa's School of Novaliches Foundation v. [Anino v. NLRC. is. their salary base should include also their earned sales commissions. G.UP LAW BOC LABOR STANDARDS LABOR LAW commission is included in the definition of "wage". An illegally dismissed employee is entitled to (1) either reinstatement. 1990] Backwages and reinstatement are two reliefs that should be given to an illegally dismissed employee. allowances include: C. G. 1997] Rationale Feati University Club vs.R. if viable.

(1972)] and attrition and protracted delay in satisfying such award on the part of unscrupulous employers who have seized upon the further proceedings to determine the actual earnings of the wrongfully dismissed or laid-off employees to hold unduly extended hearings for each and every employee awarded backwages and thereby render practically nugatory such award and compel the employees to agree to unconscionable settlements of their backwages award in order to satisfy their dire need. indemnity pay later Jan. NLRC. the latter is entitled to the payment of salaries Preventive suspension is justified where the employee's continued employment poses a serious and imminent threat to the life or property of the employer or of the employee's co-workers. However. Inc. Sangilo-Itogon Workers Union (1968). 2010] 125 .R. The rationale for the policy was stated in the following words: LABOR LAW International Corp. Inc. this formula of awarding reasonable net backwages without deduction or qualification relieves the employees from proving or disproving their earnings during their lay-off and the employers from submitting counterproofs.UP LAW BOC LABOR STANDARDS amount of backwages to their total equivalent for three years (depending on the circumstances) without deduction or qualification. Inc. [See La Campana Food Products. when it is determined that there is no sufficient basis to justify an employee's preventive suspension. remain inactive in the expectation that a windfall would come to him" [Itogon Suyoc Mines. (1970)]. PREVENTIVE SUSPENSION Preventive suspension is a disciplinary measure for the protection of the company's property pending investigation of any alleged malfeasance or misfeasance committed by the employee. No.R. CIR. [Gatbonton v. July 26. As has been noted. [Artificio v. G. Serrano 2004 Ineffectual Full backwages up to reinstatement/finality of decision Nov. Filtex Indemnity of Employer Period Doctrine in effect Validity of Dismissal Liability of ER Prior 1989 Pre-Wenphil Illegal Reinstatement + Backwages Feb. 2006] D. (1969) and Kaisahan ng Mga Manggagawa vs.. 146779. vs. January 23. Without this kind of threat. as cited in Diwa ng Pagkakaisa vs. La Campana Food Products. 1989 – 1999 Wenphil Valid Dismiss now. and obviates the twin evils of Idleness on the part of the employee who would "with folded arms. vs. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. NLRC. 2004 present Valid Nominal damages – Agabon during the time of preventive suspension. No. 172988. G. 2000 – Oct. preventive suspension is not proper.

is wellrecognized. 1989] So long as a company’s management prerogatives are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements. rules and regulations on work-related activities of the employees must always be fair and reasonable and the corresponding penalties. [Jose P.. DISCIPLINE The test of constructive dismissal is whether a reasonable person in the employee's position would have felt compelled to give up his position under the circumstances. or disdain by an employer becomes unbearable to the employee. Management has the prerogative to discipline its employees and to impose appropriate penalties on erring workers pursuant to company rules and regulations. where the free will of management to conduct its own affairs to achieve its purpose takes form. G. NLRC.. This is a management prerogative where the free will of management to conduct its own affairs to achieve its purpose takes form. commensurate to the offense involved and to the degree of the infraction. [Makati Haberdashery. 2012] E. includes the prerogative to instill discipline in its employees and to impose penalties. according to its own discretion and judgment. The free will of management to conduct its own business affairs to achieve its purpose cannot be denied. The only criterion to guide the exercise of its management prerogative is that the policies. 2007] Right to dismiss or otherwise impose disciplinary sanctions upon an employee for just and valid cause. NLRC. [Torreda vs. NLRC. v. the employee who is constructively dismissed may be allowed to keep on coming to work. upon erring employees. when there is a demotion in rank or diminution in pay or both. v.UP LAW BOC LABOR STANDARDS LABOR LAW this Court will uphold them…Even as the law is solicitous of the welfare of the employees. [Ernesto G. Management Prerogative This Court held that the employer’s right to conduct the affairs of his business. Inc. This is a management prerogative. including dismissal. Artificio vs. 1999] [St. CONSTRUCTIVE DISMISSAL Constructive dismissal is cessation of work because continued employment is rendered impossible. pertains in the first place to the employer. according to its own discretion and judgment. Santos. 193421. The employer’s right to conduct the affairs of his business. [McMer Corp. 2010] 126 . unreasonable or unlikely. Ymbong vs. it must also protect the right of an employer to exercise what are clearly management prerogatives. [Consolidated Food Corporation vs. A.R. No. insensibility. when prescribed. In fact. 2014] V. as well as the authority to determine the existence of said cause in accordance with the norms of due process. 2001] The law recognizes and resolves this situation in favor of employees in order to protect their rights and interests from the coercive acts of the employer. NRLC. or when a clear discrimination. Toshiba. June 4. An employer has a free reign and enjoys wide latitude of discretion to regulate all aspects of employment. ABS-CBN Broadcasting Corp. Inc. Michael’s Institute vs.

vs. 2012] This prerogative extends to the management’s right to regulate. [William Barroga vs. Inc. the employee may not complain that it amounts to a constructive dismissal. Saidali Pasawilan. 2008] Although we recognize the right of employers to shape their own work force. et. or effected as a form of punishment or demotion without sufficient cause. Thus. this management prerogative must not curtail the basic right of employees to security of tenure. benefits and other privileges and not motivated by discrimination or made in bad faith. Philbag Workers Union-Lakas at Gabay ng Manggagawang Nagkakaisa. Data Center College of the Philippines. 2011] It is management prerogative for employers to transfer employees on just and valid grounds such as genuine business necessity. 2011] B. [Philbag Industrial Manufacturing Corp. The purpose of reassignments is no different from that of preventive suspension which management could validly impose as a disciplinary measure for the protection of the company's property pending investigation of any alleged malfeasance or misfeasance committed by the employee. [Michelle T. Plaza Hotel v. [Bisig ng Manggagawa sa TRYCO v. or inconvenient. all aspects of employment. [Alert Security & Investigation Agency.. NLRC. therefore.. [Westin Phil. Bank of Commerce. not general constitutive of constructive dismissal. TRANSFER OF EMPLOYEES Even though transfers or reassignments per se are indeed valid and fall within the ambit of management prerogatives. [Ruiz v Wendel Osaka Realty Corp. according to its own discretion and judgment. and other privileges. When the transfer is not unreasonable. the rule is settled that the employer is charged with the burden of proving that its conduct and action are for valid and legitimate grounds such as genuine business necessity and that 127 . assigned to the Production Department was well within the scope of its management prerogative. including the freedom to transfer and reassign employees from one are to another in order to meet the requirements of the business is. 2012] LABOR LAW the consequent transfer of Tryco’s personnel. or prejudicial to the employee. Tuason vs. and it does not involve a demotion in rank or diminution of salaries. 1999] Re-assignments made by management pending investigation of irregularities allegedly committed by an employee fall within the ambit of management prerogative. or one office to another or in pursuit of its legitimate business interest. benefits. In cases of a transfer of an employee.UP LAW BOC LABOR STANDARDS It is obvious that the company overstepped the bounds of its management prerogative in the dismissal of Mauricio and Camacho. NLRC. It lost sight of the Principle that management prerogative must be exercised in good faith and with due regard to the rights of the workers in the spirit of fairness and with justice in mind. Provided there is no demotion in rank or diminution of salary. al. vs. 2012] An Employee’s right to security of tenure does not give him such a vested right in his position as would deprive the company of its prerogative to change his assignment or transfer him where he will be most useful. The Employer has the right to transfer or assign Employees from one area of operation to another. the exercise of these rights must remain within the boundaries of justice and fair play.

Cebu Portland Cement Co. 1986] In the consolidated cases of Leonardo vs. 1990] C.. [Petrophil Corporation vs. No.G. If the employer cannot overcome this burden of proof. 2012] LABOR LAW D. 125303.R. to change the working hours of its employees. inconvenient or prejudicial to the employee. Federation of Free Workers and Nemia Quiambao. he is reappointed supervisor and his allowance is restored. NLRC. National Labor Relations Commission. With regard to the private respondents’ claim for the mid-year bonus." The granting of a bonus is basically a management prerogative which cannot be forced upon the employer "who may not be obliged to assume the onerous burden of granting bonuses or other benefits aside from the employee's basic salaries or wages" xxx [Kamaya Point Hotel vs. R. 75289. non-compliance may be visited with a penalty even more severe than demotion. this Court will uphold such exercise. 1989]. G. 2000] and Fuerte vs. Aquino [G. 61 O. June 16. So long as such prerogative is exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements. 1998] 128 . [Traders Royal Bank vs. NLRC. Inc. CHANGE OF WORKING HOURS Further. the employee’s transfer shall be tantamount to unlawful constructive dismissal. he will be demoted. Harbor Centre Port Terminal Inc. not an obligation of the employer. [Kimberly-Clark Philippines. 2009] E. No. whenever exigencies of the service so require. R. June 16. the employer claimed that the employee was demoted pursuant to a company policy intended to foster competition among its employees. [Sime Darby Pilipinas Inc. When the employee concerned succeeds in meeting the quota again. 4597]. whereupon his supervisor’s allowance will be withdrawn and be given to the individual who takes his place. The Supreme Court held that this arrangement is an allowable exercise of company rights since an employer is entitled to impose productivity standards for its workers. NLRC. 126937. PRODUCTIVITY STANDARD The employer has the right to demote and transfer an employee who has failed to observe proper diligence in his work and incurred habitual tardiness and absences and indolence in his assigned work. it is settled doctrine that a grant of a bonus is a prerogative. [Jonathan Morales v. Under this scheme. management retains the prerogative. "It is something given in addition to what is ordinarily received by or strictly due the recipient.UP LAW BOC LABOR STANDARDS the transfer is not unreasonable. Dimayuga. 2000].. v. No. its employees are required to comply with a monthly sales quota. August 31. vs. GRANT OF BONUS A bonus is "a gratuity or act of liberality of the giver which the recipient has no right to demand as a matter of right" [Aragon vs. Should a supervisor such as the employee fail to meet his quota for several consecutive months. In fact. The matter of giving a bonus over and above the worker’s lawful salaries and allowances is entirely dependent on the financial capability of the employer to give it. NLRC [G.

Inc. the employer has to adduce evidence to prove that the restriction is reasonable and not greater than necessary to protect the employer’s legitimate business interests. Glaxo Wellcome Philippines. RULES ON MARRIAGE BETWEEN EMPLOYEES OF COMPETITOREMPLOYERS In the recent case of Duncan Association of Detailman-PTGWO and Pedro Tecson v. 2006] G. vs.. Simbol.UP LAW BOC LABOR STANDARDS F. We held that Glaxo has a right to guard its trade secrets. 2006] 129 LABOR LAW . The restraint may not be unduly harsh or oppressive in curtailing the employee’s legitimate efforts to earn a livelihood and must be reasonable in light of sound public policy. POST-EMPLOYMENT BAN In cases where an employee assails a contract containing a provision prohibiting him or her from accepting competitive employment as against public policy. [Rivera v Solidbank. [Star Paper Corp. we passed on the validity of the policy of a pharmaceutical company prohibiting its employees from marrying employees of any competitor company. marketing strategies and other confidential programs and information from competitors. manufacturing formulas. In laying down the assailed company policy. we recognized that Glaxo only aims to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures. We considered the prohibition against personal or marital relationships with employees of competitor companies upon Glaxo’s employees reasonable under the circumstances because relationships of that nature might compromise the interests of Glaxo.

9] A. international organizations or their wholly owned instrumentality employing workers in the Philippines may enter into an agreement with the Philippine government to include their employees in the SSS except those already covered by their civil service retirement system. trainers and jockeys V. SEC. Self-employed professionals II.000 monthly pay. as provided by law. VOLUNTARY [SEC. and news correspondents who do not fall within the definition of the term “employee” under Section 8 [d] IV. Individual farmers and fishermen Note Foreign governments. (3) Employees [previously under compulsory coverage] already separated from employment or those self-employed [also under compulsory coverage] with no realized income for a given month. SSS LAW [RA 8282] (1) Spouses who devote full time to managing household and family affairs. (3) Service performed in the employ of the Philippine Government or instrumentality or agency thereof.UP LAW BOC SOCIAL WELFARE LEGISLATION VI. but not limited to: I. unless they are also engaged in other vocation or employment [which is subject of compulsory coverage]. the domestic worker shall pay the proportionate share in the premium payments or contributions. Actors and actresses. 130 . 30. directors. Social Welfare Legislation LABOR LAW The domestic worker shall be entitled to all other benefits under existing laws. A domestic worker who has rendered at least one [1] month of service shall be covered by the Social Security System [SSS]. A. if the domestic worker is receiving a wage of Five thousand pesos [P5. EXCLUSIONS FROM COVERAGE [SEC. (4) Service performed in the employ of a foreign government or international Premium payments or contributions shall be shouldered by the employer. Professional athletes. [Sec.000. COMPULSORY [SEC. and (2) Self-employed as may be determined by the Commission. (2) OFWs recruited by foreign-based employers. 8 [J]] (1) Employment purely casual and not for the purpose of occupation or business of the employer. 9 [A]. (2) Service performed on or in connection with an alien vessel by an employee if he is employed when such vessel is outside the Philippines. A. and the Home Development Mutual Fund or Pag-IBIG. coaches.00] and above per month. Partners and single proprietors of businesses III. and shall be entitled to all the benefits in accordance with the pertinent provisions provided by law. COVERAGE I. who chose to continue with contributions to maintain right to full benefit. scriptwriters. However. the Philippine Health Insurance Corporation [PhilHealth]. 9-A] (1) Employees not over 60 years including domestic helpers with at least P1.2. Kasambahay Law [RA 10361]] II.1.

The monthly pension shall be suspended upon the reemployment or resumption of selfemployment of a retired member who is less than sixty-five [65] years old. BENEFITS I. or II. (2) Paid to each child conceived on or prior to contingency. Computation of monthly pension The monthly pension shall be the highest of the following amounts: (1) P300 + [20% x [average monthly credit]] + [2% x [average monthly credit] x [# of cash credited years of service in excess of 10 years]]. II. Employees of bona fide independent contractors shall not be deemed employees of the employer engaging the services of said contractors. beginning with the youngest and preferring the legitimate. and who is not continuing contributions independently. his/her secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the total monthly pensions corresponding to the balance of the fiveyear guaranteed period. but not exceeding 5. whichever is higher. he is entitled to a lump sum equal to his total contributions paid.000. excluding the dependents’ pension. (2) Age I. provided. Lump Sum Eligibility A 60 year old member with less than 120 monthly contributions who is no longer employed or self-employed. A. Note: Notwithstanding the abovementioned. that the monthly pension shall in no case be paid for an aggregate amount of less than 60 months. 12-A] (1) Paid on account of members’ I.12] Benefit – entitlement to monthly pension from retirement until death. 65 years old. II. or (2) If he/she has no primary beneficiaries AND he/she dies within sixty [60] months from the start of his/her monthly pension.400 for those with 20 years. P2. or III. death. (3) Amount is either P250 or 10% of the monthly pension as computed above. DEPENDENTS’ PENSION [SEC. retiring. (3) P1. 12-B] organization. (2) 40% x [average monthly credit]. and (5) Services performed by temporary and other employees which may be excluded by SSS regulation. RETIREMENT BENEFITS [SEC.3. 131 . permanent total disability. minimum pension is P1. Eligibility requirements (1) 120 monthly contributions. MONTHLY PENSION [SEC. a member who has reached 60 years may also avail if he is already separated from employment or has ceased to be self-employed. Lump Sum Alternative Member may opt to receive his first 18 monthly pensions in lump sum but such is discounted at a preferential rate of interest. or their wholly-owned instrumentalities.UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW III.200 for members with at least 10 years credit service. In Case of Death of Member (1) His/her primary beneficiaries as of the date of his/her retirement shall be entitled to receive the monthly pension.

loss of sight in one eye  25/75. they shall be additive when related or deteriorating – the percentage shall be equal to the number of months the partial disability is entitled to. DEATH BENEFITS [SEC. Moreover. GR # L-39949 [1984] resolved an issue involving the treatment of salary loan repayments. divided by 75 months. 21-P and No. several SSS-issued circulars such as Circular No. sometimes providing for more flexible payment terms or condonation for delinquent payers. CA and SSS. OR (2) If he has no primary beneficiaries and he dies within sixty [60] months from the start of his monthly pension. 132 . it would be given the same treatment as a retiree dying. the only difference is that the pension is paid directly to the member. if both occur due to same cause. [e. and [2] is reemployed or has resumed self-employment not earlier than one [1] year from the date of his disability shall again be subject to compulsory coverage and shall be considered a new member.  For multiple partial disabilities.g. the pension is not lifetime.000 in cash or in kind. upon death of member VII. [e.UP LAW BOC SOCIAL WELFARE LEGISLATION IV. his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the total monthly pensions corresponding to the balance of the five-year guaranteed period excluding the dependents’ pension. whichever is higher. 13] Eligibility requirement 36 monthly contributions prior to the semester of death. It shall be paid in lump sum if the period is less than 12 months. 13-A] LABOR LAW In Case of Death of Member (1) His primary beneficiaries as of the date of disability shall be entitled to receive the monthly pension.g. FUNERAL BENEFITS [13-B] P12. PERMANENT DISABILITY BENEFITS [SEC. VI. Benefit – monthly pension to primary or a lump sum benefit equivalent to thirty-six [36] times the monthly pension secondary beneficiaries.  In case the permanently disabled member dies. Santiago v. Eligibility requirement  36 monthly contributions prior to the semester of disability. loss of thumb entitles member to only 10 months of pension. loss of arm  50/75. To those ineligible – lump sum benefit which shall be the higher between the two:  [monthly pension] x 12. 669. SSS website also shows loans Note: A member who [1] has received a lump sum benefit. LOAN Lump Sum Eligibility A member who has not paid at least 36 monthly contributions Social Security Commission Resolution No. 52 pertain to the treatment of salary loans. while loss of arm 50 months]. or  [monthly pension] x [# of monthly contributions] Lump Sum Alternative A member is entitled to a lump sum benefit equivalent to the monthly pension times the number of monthly contributions paid to the SSS or twelve [12] times the monthly pension. then 25/75 + 50/75 = 100% so treated as if it were permanent total disability] V.  For permanent partial disability. same as death benefit.

except confinement in a hospital in which case the claim for benefit or reimbursement must be filed within one [1] year from the last day of confinement. IX. Employer’s Reimbursement That the SSS shall immediately reimburse the employer of one hundred percent [100%] of the amount of maternity benefits advanced to the employee by the employer upon receipt of satisfactory proof of such payment and legality thereof. notice to employer not required as well when Employee became sick or injured while working or within premises of the employer. SICKNESS BENEFITS [SEC. Note: One hundred percent [100%] of the daily benefits provided in the preceding paragraph shall be reimbursed by the SSS to said employer upon receipt of satisfactory proof of such payment and legality thereof if the following conditions are met: (1) The employer notified the SSS of the confinement within five calendar days after receipt of the notification from the employee member (2) If the notification to the SSS is made by the employer beyond five calendar days after receipt of the notification from the employee member. (4) All company sick leaves with pay for the current year have been used up. Note: All of these benefits are tax-exempt. he shall be reimbursed Coverage The maternity benefits provided under this section shall be paid only for the first four [4] deliveries or miscarriages. Eligibility requirements and other conditions (1) Inability to work due to sickness or injury (2) Confined for at least 4 days either in a hospital or elsewhere with SSS approval. (7) Notice to employer or SSS not needed when confinement is in a hospital.UP LAW BOC SOCIAL WELFARE LEGISLATION VIII. or. voluntary or self-employed member. if a separated. (3) SSS shall reimburse the employer or pay the unemployed member only for confinement within the one-year period immediately preceding the date the claim for benefit or reimbursement is received by the SSS. Benefit: daily cash allowance paid for the number of days a member is unable to work due to sickness or injury equivalent to 90% x [average daily salary credit] Process The full payment shall be advanced by the employer within thirty [30] days from the filing of the maternity leave application. MATERNITY LEAVE BENEFITS [SEC. (6) The employer has been notified. the SSS directly notified within 5 days of confinement. (3) At least 3 months of contributions in the 12 month period immediately before the semester of sickness or injury has been paid. 133 .e maximum permissible for the same sickness and confinement is 240 days for 2 consecutive years]. which notice shall be transmitted to the SSS in accordance with the rules and regulations it may provide. 14-A] Eligibility Requirements (1) A female member (2) Paid at least three [3] monthly contributions in the twelve-month period immediately preceding the semester of her childbirth or miscarriage (3) She shall have notified her employer of her pregnancy and the probable date of her childbirth. 14] LABOR LAW only for each day of confinement starting from the tenth calendar day immediately preceding the date of notification to the SSS. (5) Maximum of 120 days per 1 calendar year [i.

400 for those with 20 years of service and not less than P1. 134 from . BENEFICIARIES 1. (2) Dependent children [legitimate. those performed overseas under the authority of the Republic of the Philippines. B. 9] The amount shall be: (a) 37.UP LAW BOC SOCIAL WELFARE LEGISLATION A.2. SECONDARY Shall only receive when the primary beneficiaries are absent  Dependent parents 3. resignation or separation for which corresponding benefits have been awarded under this Act or other laws shall be excluded in the computation of service 2.  The monthly pension shall not exceed 90% of the average monthly compensation. (3) Contractual employees with no employeremployee relationship with the agency they serve.3. B. GSIS [RA 8291] B.300 for everyone else. 13] Eligibility requirements [Sec. legitimated. In case of reinstatement in the service of an employer and subsequent retirement or separation which is compensable under this Act. legally adopted. MONTHLY PENSION [SEC. (1) Dependent spouse – until remarriage [see above].4. including periods of service at different times under one or more employers. monthly compensation] (b) Plus 2. (2) Members of the Judiciary and Constitutional Commissions who are covered only by life insurance as they have separate retirement schemes. and those that may be prescribed by the GSIS in coordination with the Civil Service Commission. II. (2) 60 years of age. EXCLUSIONS FROM COVERAGE (1) AFP and PNP.1. in which case.  It shall not be less than P2. Note: The GSIS may prescribe rules for the inclusion of part time and other services with compensation. they get 100%. and (3) Not receiving pension benefit permanent total disability. 13-A] (1) 15 years service. irrespective of employment status. RETIREMENT BENEFITS [SEC.5% x [revalued ave. BENEFITS Computation of Service From date of original appointment/election. OTHERS – shall only receive when the primary and secondary beneficiaries are absent  Any other person designated by member as his/her secondary beneficiary. illegitimate children are entitled only to 50% of the share of legitimate children unless there are no legitimate children. monthly compensation] x [years in service in excess of 15 years].5 x [revalued ave. I. COVERAGE All public sector employees below the compulsory retirement age of 65. and illegitimate] [see above]. PRIMARY LABOR LAW B. all service credited for retirement.

regarding employment status and services rendered. or b. if employee has less than 15 years of service. monthly compensation for each year of Benefit for Permanent Total Disability  Monthly income benefit for life equal to basic monthly pension – This is effective from date of disability. or (b) Cash payment equivalent to 18 x [basic monthly pension] plus monthly pension for life immediately but with no 5-year guarantee Note: Subject to periodic adjustment [Sec. or c.UP LAW BOC SOCIAL WELFARE LEGISLATION Note: Retirement is compulsory for employees 65 years of age who have rendered at least 15 years of service.  If member is in service at the time of disability and he has paid at least 180 monthly contributions. and b. habitual intoxication. refer to section II subsection D-3 above]. Even if separated from the service. Even if separated from the service. or willful intention to kill himself or another. or E. monthly compensation for every year of service [so essentially. then he shall receive cash payment equal to 100% of ave.1. 13]: Choice between (a) 60 x [basic monthly pension] lump sum payment at the time of retirement plus basic monthly pension payable monthly for life after expiry of the 5-year guaranteed period which is already covered by the lump sum. he may be allowed to continue in accordance with civil service laws. above regarding the disability not being due to his own fault and either E. member availing of permanent partial disability must satisfy condition E.1. DEATH BENEFITS [SEC. (2) Survivorship pension plus cash payment of 100% ave. notorious negligence. he has at least 3 years of service and has paid 36 monthly contributions within the 5 years immediately preceding death. he shall receive 135 .b.i. If he was in the service when he died. or (b) even if separated. 21] When member dies. IV. Benefit [Sec. (2) Employee is: (a) in service at the time of disability. monthly compensation for each year of service [essentially total amount of contributions made] or P12. With 3 years of service. and (c) Member is not enjoying old-age retirement benefit. the primary beneficiaries are entitled to only one of the following: (1) Survivorship pension a. he has paid at least 36 monthly contributions within the 5year period immediately prior to disability or has paid a total of at least 180 monthly contributions prior to disability. PERMANENT DISABILITY BENEFITS Eligibility requirements for Permanent Total Disability (1) Disability not due to employee’s own grave misconduct.1. To the ineligible If member has rendered at least 3 years of service.b. in addition to the monthly income benefit. (3) Cash payment equivalent to 100% ave. pension plus total contributions made] a. he has paid 180 monthly contributions prior to death. LABOR LAW an additional cash payment of 18 times basic monthly pension. III.ii. 14] Partial Disability Paid according to GSIS prescribed schedule [this is similar to the scheme used by SSS.000 whichever is higher. If he was in the service when he died.a.

UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW VIII. X. LOAN GSIS website provides for this VII. TEMPORARY DISABILITY BENEFITS Similar to sickness IX. FUNERAL BENEFITS [SEC. (4) Retiree who at the time of retirement was of pensionable age but opted to retire under RA 1616. (2) Below 60 years of age and at least 15 years of service: cash payment equivalent to 18 x [monthly pension] at the time of resignation or separation plus an old-age pension benefit equal to basic monthly pension. and b. V. in service at the time of disability. and (2) Employee has been paying integrated contributions for at least 1 year prior to separation. and (3) Maximum of 120 days per 1 calendar year [so maximum permissible for the same sickness and confinement is 240 days for 2 consecutive years]. if separated. Eligibility requirements and other conditions: (1) Employee must be: I. ranging from 2 months to 6 months. monthly compensation for each year of service [so essentially. or II. Benefit 75% of the current daily compensation for every day or fraction thereof of disability or P70 whichever is higher. the total amount of all contributions paid] or P12. UNEMPLOYMENT BENEFITS [SEC. SURVIVORSHIP BENEFITS Beneficiaries are entitled to the following: (1) Basic survivorship pension which is 50% of basic monthly pension. Eligibility requirements (1) 60 years of age. and (2) Dependent children’s pension not exceeding 50% of the basic monthly pension. he has rendered at least 3 years of service and paid at least 6 monthly contributions in the 12 month period immediately prior to disability. (2) Member separated from service but still entitled to funeral benefit. (3) Pensioner. With 3 years of service. Benefit Monthly cash payments of 50% of average monthly compensation for a duration which is proportional to years rendered. He has failed to qualify in the prior 2 schemes. SEPARATION BENEFITS service he paid contributions or P12.000 whichever is higher.000 whichever is higher a. but at least 15 years of service rendered. or separation from service with at least 3 years but not over 15 years served (2) Below 60 years of age. 23] Fixed by GSIS rules and regulations Benefit (1) For 60 years of age or separated from service with 3 to 15 years of service: cash payment of 100% of ave. 136 . (2) All sick leave credits including CBA sick leaves for the current year has been used up. VI. 11] Eligibility requirements (1) Employee separated from service due to abolition of his office or position. Entitled to this are the following: (1) Active member.

irrespective of status of appointment.  partners and single proprietors of businesses. (1) Dependent spouse – until remarriage. Employee – any person who performs services for an employer in which either or both mental and physical efforts are used and who receives compensation for such services. directors. counterpart for self- .4. its political subdivisions.UP LAW BOC SOCIAL WELFARE LEGISLATION XI. including. coaches. SECONDARY B. constitutional commissions. where there is an employer— employee relationship. scriptwriters. who carries on in the Philippines any trade business. but not limited to:  self-employed professionals.  actors. LIFE INSURANCE BENEFITS distinguish share of illegitimate children. natural or juridical. and  individual farmers and fishers. legitimated. branches. 137 GSIS RA 8291 amending PD 1146 Employer – National government. also.  athletes. news correspondents not considered as employees under the above definition. subject to the restrictions on dependent children. and uses the services of another person who is under his orders as regards the employment. BENEFICIARIES I. and sangguniang officials Note: No employed. legally adopted. a selfemployed person who is both employee and employer at the same time Self-employed – any person whose income is not derived from employment. undertaking. PRIMARY Enabling law LABOR LAW SSS RA 1161 as amended by RA 8282: Social Security Act of 1997 Employer – any person. and Shall only receive when the primary beneficiaries are absent: (1) Dependent parents (2) Legitimate descendants. agencies or instrumentalities. industry. domestic or foreign. and illegitimate] – but RA 8291 does not Definition of Terms legitimate II. Note: Judiciary and Constitutional Commissions are entitled to life insurance only. (2) Dependent children [legitimate. baranggay officials. and judiciary Employee – any person receiving compensation while in service of an employer whether by election or appointment. trainers. jockeys. except those considered as employer under the GSIS. A self-employed person shall be both employer and employee at the same time. including government-owned or controlled corporations and financial institutions with original charters [GOCCs].

honoraria. child may be legitimate. bonuses. and below 21 or  Child over 21 if he or she became permanently incapacitated and incapable of self-support. including living allowance. physically or mentally.  Parent who is receiving regular support. illegitimate children are entitled only to 50% of the share of legitimate children unless there are no legitimate children. Public sector employees below the compulsory retirement age of 65. they get 100%.  Employees already separated from 138 . overtime.. managing household and family (3) Contractual employees with no affairs. employers. Compensation – all actual remuneration for employment.UP LAW BOC SOCIAL WELFARE LEGISLATION Dependents:  Legal spouse entitled by law to receive support. 18 of the Act.  Employees not over 60 years including household helpers with at least P1. or illegitimate. legally adopted. and  Self-employed.000 monthly pay. employee-employer relationship  OFWs recruited by foreign-based with the agency they serve. as well as the cash value of any remuneration paid in any medium other than cash except that portion already above the max salary credit under Sec. allowances and other emoluments not integrated into the basic pay under existing laws. legitimated. Compulsory  Employers as defined above. Beneficiaries Primary  Dependent spouse – until remarriage [see above].  Child – unmarried. Secondary  Shall only receive when the primary beneficiaries are absent: Dependent parents Other  Any other person designated by the member as his/her secondary beneficiary. Exceptions: (1) AFP and PNP. in which case. Coverage LABOR LAW Same except that a child here is below 18 Same except that RA 8291 does not distinguish share of legitimate and illegitimate children Compensation – basic pay received excluding per diems. (2) Members of the Judiciary and Constitutional Commissions who are covered only by life insurance Voluntary as they have separate retirement  Spouses who devote full time to schemes. not gainfully employed.  Dependent children [see above].

appeal does not stay execution. Santiago v. Moreover. sometimes providing for more flexible payment terms or condonation for delinquent payers. CA and SSS.UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW employment or those self-employed with no realized income for a given month. GR # L39949 [1984] resolved an issue involving the treatment of salary loan repayments. Continued membership for the unemployed member. and (2) Employee’s obligation to pay contribution both cease at the end of the month of separation. and entitlement to whatever benefits he has qualified to in the event of any compensable contingency. 669. Effective Date of Coverage Summary of Benefits Effects of separation from employment Dispute Settlement Prescriptive Period Note: Foreign governments. 52 pertain to the treatment of salary loans. several SSS-issued circulars such as Circular No. who chose to continue with contributions to maintain right to full benefit. Employer: 1st day of operation Employee: 1st day at work Self-employed: upon registration with SSS (1) Monthly pension (2) Dependents’ pension (3) Retirement benefits (4) Permanent disability benefits (5) Death benefits (6) Funeral benefits (7) Loan – Social Security Commission Resolution No. 21-P and No. Social Security Commission CA [Rule 43. SSS website also shows loans (8) Sickness benefits (9) Maternity leave benefits (1) Employer’s contribution. GSIS  CA [Rule 43] SC [Rule 45]. (3) Employee shall be credited with all contributions paid on his behalf and entitled to all benefits set forth by the law. 4 years . international organizations or their wholly owned instrumentality employing workers in the Philippines may enter into an agreement with the Philippine government to include their employees in the SSS except those already covered by their civil service retirement system. questions of law only] 20 years 139 (1) (2) (3) (4) (5) (6) Monthly pension Retirement benefits Permanent disability benefits Death Benefits Funeral benefits Loan – GSIS website provides for this (7) Temporary disability benefits [similar to sickness] (8) Separation benefits (9) Unemployment benefits – Sec 11 (10) Survivorship benefits (11) Life insurance benefits Note: Judiciary and Constitutional Commissions are entitled to life insurance only. questions of law and fact]  SC [Rule 45.

LIMITED PORTABILITY LAW [RA 7699] C. Limitation: No compensation shall be allowed to the employee or his dependents when the injury. 140 . D. Book IV of LC] C. (4) An employee who is coverable by both the GSIS and SSS shall be compulsorily covered by both Systems. 2e].1 COVERAGE (1) Workers who transfer employment from one sector to another.2. survivorship and other benefits in case the covered member does not qualify for such benefits in either or both systems without totalization: Provided. WHEN COMPENSABLE Grounds (1) For the injury and the resulting disability or death to be compensable. disability. 6] D. proof must be shown that the risk of contracting the disease is increased by the working conditions. [Sec. or (2) Those employed in both sectors [public and private]. however.1 COVERAGE (1) Every employer shall be covered. otherwise. C. [Sec.2. the sickness must be the result of an occupational disease listed under Annex “A” of these Rules with the conditions set therein satisfied. and entitled to the same benefits as are provided for employees working in the Philippines. for purposes of eligibility and computation of benefits [Sec. (2) his willful intention to injure or kill himself or another. 2. 3] D. PROCESS The covered worker shall have his credible services or contributions in both Systems credited to his service or contribution record in each of the Systems and shall be totalized for purposes of old-age. EFFECTIVITY Coverage of employees shall take effect on the first day of employment. IRR of Title II. 5.UP LAW BOC SOCIAL WELFARE LEGISLATION LABOR LAW (3) An employee over sixty [60] years of age shall be covered if he had been paying contributions to the System prior to age sixty [60] and has not been compulsorily retired. or death was occasioned by any of the following: (1) his intoxication. the injury must be the result of accident arising out of and in the course of the employment. sickness. (2) For the sickness and the resulting disability or death to be compensable.3. [Sec. “Totalization” shall refer to the process of adding up the periods of creditable services or contributions under each of the Systems. IRR of Title II. EMPLOYEE’S COMPENSATION – COVERAGE AND WHEN COMPENSABLE D. Overlapping periods of membership in case of those employed in both sectors at once are to be counted only ONCE for purposes of totalization to be able to satisfy eligibility requirements of benefits provided for by either SSS or GSIS. disability. (2) Every employee not over sixty [60] years of age shall be covered. That overlapping periods of membership shall be credited only once for purposes of totalization [Sec. Book IV of LC] (5) Filipinos working abroad in the service of an employer as defined in Section 3 hereof shall be covered by the System. or (3) his notorious negligence (4) As otherwise provided by law.

join and assist labor organizations of their own choosing for the purpose of collective bargaining through representatives (Art. self-employed people. and promote full employment opportunities for all. PIGLAS-Heritage.UP LAW BOC LABOR RELATIONS VII. or to leave a union and join another one. 250. It shall guarantee the rights of all workers to selforganization. Ambulant. and itinerant workers. including those employed in the public and private sectors. collective bargaining and negotiations. charitable. 249. and peaceful concerted activities. 252) Scope of right to self-organization (1) Right to form. (2) Right to engage in lawful concerted activities for the same purpose or for their mutual aid and protection (Art.. Art. join. The right of the people. 8. Right to Self-Organization: A Fundamental Right Self-organization is a fundamental right guaranteed by the Philippine Constitution and 141 . or assist labor organizations of their own choosing for purposes of collective bargaining. (UST Faculty Union v Bitonio) A.. or assist any union. or assist any union is the right NOT to join. join or assist labor organizations for the purpose of collective bargaining or for their mutual aid and protection. or educational institutions. affiliate with. industrial and agricultural enterprises and in religious. [. 3. As pointed out by the union. the resignation of the memberemployees is an expression of their preference for union membership over that of membership in the cooperative. Labor Relations LABOR LAW the Labor Code. […] (Art. intermittent. associations. rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. RIGHT TO SELF-ORGANIZATION Basis of Right (1) 1987 Constitution Art. 2009) (4) The right of the employees to selforganization is a compelling reason why their withdrawal from the cooperative must be allowed. All persons employed in commercial. The state shall afford full protection to labor. to form unions. Employees of government corporations established under the corporation code shall have the right to organize and to bargain collectively with their respective employers. Infringement of the right to self-organization It shall be unlawful for any person to restrain. medical. or societies for purposes not contrary to law shall not be abridged. XIII Sec.] (2) Labor Code Art. III Sec. 252). Employees have the right to form. discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. affiliate with. 252) (3) Subsumed in the right to join. (Central Negros Electric Cooperative v SOLE. coerce. (Heritage Hotel Manila v. 1991) Art. local and overseas. including the right to strike in accordance with law. organized and unorganized. whether operating for profit or not. shall have the right to self-organization and to form.

1992) (2) Employees of Government Corporations Created under the Corporation Code The right to self-organization shall not be denied to government employees. labor-management committees. assist or form separate labor organizations of their own. whether employed for a definite period or not. join. Labor Union. 250) Note: [T]he rank and file union and the supervisors’ union operating the same establishment may join the same federation or national union. (Art. v Trajano. in conjunction with appropriate government authorities. effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. shall. 1997) Employees of non-profit organizations are allowed to join. beginning on his first day of service. (Art. (Art. 283 [c]) Rationale Supervisory employees. 251-A) Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. 251) All government employees can form. IX-B. 142 . be considered as an employee for purposes of membership in any labor union. Corp. and government employees of corporations created under the Corporation Code (3) Supervisory Employees (4) Aliens with valid working permits (5) Security personnel (3) Supervisory Employees Supervisory employees are those who. form and/or assist labor organizations (FEU-Dr. v Toyota Motor Phil. Nicanor Reyes Medical Foundation Inc. Said employees are automatically deemed removed from the list of membership of said union. Corp. (Art. while in the performance of supervisory functions. WHO MAY UNIONIZE FOR PURPOSES OF COLLECTIVE BARGAINING? work councils and other forms of workers’ participation schemes to achieve the same objectives. 218 (m)) Supervisory employees shall not be eligible for membership in a labor organization of the rank-and-file employees but may join. It would be difficult to find unity or mutuality of interests in a bargaining unit consisting of a mixture of rank-and-file and supervisory employees.UP LAW BOC LABOR RELATIONS LABOR LAW A. 251) (1) All Employees Any employee. (1987 Constitution. They can also form. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. (EO 180 §2 [1987]) (1) All employees (General Rule) (2) Employees of the government under the civil service. in the interest of the employer. (Art. §2 [5]) Effect of Mixed Membership The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. (Art. become the alter ego of the management in the making and the implementing of key decisions. (Toyota Motor Phil.1. or assist employees’ organizations of their own choosing for the furtherance and protection of their interests. Art.

In 1989. 1997) Rationale of Exclusion of Confidential Employees By the very nature of their functions. 111 which eliminated the provision which made security guards ineligible to join any labor organizations. Congress passed RA 6715 which also did not impose limitations on the ability of security guards to join labor organizations. 275) (1) (2) (3) (4) (5) (6) (7) Exception: Aliens working in the country […] with valid permits issued by the DOLE [and] are nationals of a country which grants the same or similar rights to Filipino workers. and who formulates. SOLE. 218 (m)) (5) Security Guards The security guards and other personnel employed by the security service contractor shall have the right: (1) To form. by the nature of his functions. 275) The DFA provides the certification on the requirement of reciprocity. lay-off. policemen. 14 Series of 2001 Guidelines Governing the Employment and Working Conditions of Security Guards and Similar Personnel in the Private Security Industry) Managerial employees are not eligible to join. 1986. ¶1. transfer. Aquino issued EO No. No.(D. JOIN OR ASSIST LABOR ORGANIZATIONS (4) Aliens General rule: All aliens […] are strictly prohibited from engaging directly or indirectly in all forms of trade union activities. security guards “may now freely join a labor organization with the rankand-file or the supervisory union.”(Manila Electric Co. firemen and jail guards (1) Managerial Employees A managerial employee is one who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire. (Book V. depending on their rank. join. or assist in the formation of a labor organization of their own choosing for purposes of collective bargaining and (2) To engage in concerned activities which are not contrary to law including the right to strike.UP LAW BOC LABOR RELATIONS LABOR LAW I. assign or discipline employees. 3rd sentence) Managerial employees Confidential employees Non-employees Member-employee of a cooperative Employees of international organizations High-level government employees Members of the AFP. President C. (Art. police officers. and both must be met if an employee is to be considered a confidential employee – that is. Rule II. Thus. and (2) the supervisor must handle the prescribed responsibilities relating to labor relations. discharge. 251) (2) Confidential employees Nature of Access Test A confidential employee is one who. WHO CANNOT FORM. assists or acts in a confidential capacity. […] (Art. (San Miguel Supervisors and Exempt Union v Laguesma. §2. suspend. determines and effectuates management policies in the field of labor relations.O. v. (Art. they assist and act in a confidential capacity to. (Art. On Dec. assist or form any labor organization. recall. or have 143 . 1991) The two criteria are cumulative. (1) the confidential relationship must exist between the employees and his supervisor.

Drilon. 1991) The disqualification of managerial and confidential employees from joining a bargaining unit for rank and file employees is already well-entrenched in jurisprudence. 2008) (5) Employees of International Organizations International organizations are endowed with some degree of international legal personality. or 144 . (Benguet Electric Cooperative v. Laguesma. they might jeopardize that interest which they are duty bound to protect. (2) Formulate or execute management policies or decisions. form and assist any labor organization to managerial employees.O. jurisprudence has extended this prohibition to confidential employees or those who by reason of their positions or nature of work are required to assist or act in a fiduciary manner to managerial employees and hence. Irrespective of their degree of participation. v. even though they do not participate in the actual management of the cooperative. 180 Sec. 1989) Exception Employees who withdrew their membership from the cooperative are entitled to form or join a labor union for the negotiations of a Collective Bargaining Agreement (“CBA”). Thus they cannot invoke the right to collective bargain because an owner cannot bargain with himself or his co-owners. “The question of whether employer-employee relationship exists is a primordial consideration before extending labor benefits under the workmen's compensation. Ferrer-Calleja. 1996) LABOR LAW (4) Employee-Member of Cooperative Members of cooperatives are not eligible to form. (E.[…]” (Singer Sewing Machine Co. (International Catholic Migration Commission v. (Paper Industries Corp. 1990) Function Test: nomenclature is not controlling The mere fact that an employee is designated “manager” does not ipso facto make him one. termination pay and labor relations law. 3) (3) Non-Employees Persons who are not employees of a Company are not entitled to the constitutional right to join or form a labor organization for purposes of collective bargaining. 1993) Managerial functions refer to powers such as to: (1) Effectively recommend managerial actions. Designation should be reconciled with the actual job description of the employee. (Thus there is a fiduciary and confidential relationship between manager and employer. assist or join a labor organization for the purpose of collective bargaining. DOLE. 2000) (6) High-level / Managerial Government Employees High-level employees of the government whose functions are normally considered as policy-making or managerial or whose duties are of a highly confidential nature shall not be eligible to join the organization of rank-andfile government employees. Calleja. are likewise privy to sensitive and highly confidential records. they are still coowners. Roldan-Confessor. (Standard Chartered Bank Employees Union v SCB. A certification election cannot be conducted in an international organization to which the Philippine Government has granted immunity from local jurisdiction. (CENECO v. persons who exercise managerial functions in the field of labor relations. (Metrolab Industries Inc. v. medicare. While Article 245 of the Labor Code limits the ineligibility to join. social security. v.UP LAW BOC LABOR RELATIONS access to confidential matters of. They are granted jurisdictional immunity. of the Philippines.) It is not far-fetched that in the course of Collective Bargaining.

(Belyca Corp. that the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. said employees shall fall within the coverage of the bargaining unit and are therefore entitled to CBA benefits as a matter of law and contract. 1[d]) A bargaining unit is “a group of employees of a given employer comprised of all or less than all of the entire body of employees. (2) An ECONOMIC UNIT. Calleja. benefits and welfare. Police Officers.2. (Art. Exception However. which the collective interests of all the employees indicate to be best suited to serve reciprocal rights and duties of the parties consistent with equity to the employer. – It selects the sole and exclusive bargaining agent. – They are a group of employees with community of interests. Police Officers. an individual employee or group of employees shall have the right at any time to present grievances to their employer. BARGAINING UNIT A “Bargaining Unit” refers to a group of employees sharing mutual interests within a given employer unit. Policemen. 1987) 145 . Firemen and Jailguards are expressly excluded by EO 180 §4 from the coverage of the law which provides guidelines for the exercise of the right to organize of government employees. Sec. (Farley Fulache. For this purpose. assign or discipline employees. Effect of Prior Agreement A prior agreement as to the inclusion or exclusion of workers in a bargaining unit or a prohibition from forming their own union agreed upon by the corporation with the previous bargaining representatives can never bind subsequent federations. (General Rubber & Footwear Corp. Firemen and Jailguards Members of the AFP. 2010) Functions of an Appropriate Bargaining Unit (1) An ELECTORAL DISTRICT. workers and employers may form labor-management councils: Provided.UP LAW BOC LABOR RELATIONS (3) Hire. Rule 1. v BLR. v ABS-CBN. lay-off. to participate in the policy and decisionmaking processes of the establishment where they are employed insofar as said processes will directly affect their rights. 1997) LABOR LAW Role of a bargaining unit The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees of such unit for the purpose of collective bargaining. dismiss. (7) Members of the AFP. comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit. (3) A SOVEREIGN BODY. (Book V. Any provision of law to the contrary notwithstanding. 261) A. transfer suspend. et al. recall. v. workers shall have the right. – It marks the boundaries of those who may participate in a certification election. Policemen. 1988) CBA Coverage When there has been a factual determination by the Labor Arbiter that the petitioners were regular employees.(San Miguel Supervisors and Exempt Union v Laguesma.

volumes of work. (Philippine Scouts Veterans v. the companies would consequently have their respective and distinctive concerns in terms of nature of work. Ople. Exception: Pervasive Unitary Aspect of Management Doctrine The cross-linking of the agencies command. wages. 4 Factors: (1) Will of the Employees (Globe Doctrine) (2) Affinity and unity of employees’ interest (3) Prior collective bargaining history (4) Employment status (UP v. (4) The fact that the businesses are related. the court has identified that it is the 2nd factor which has emerged as the standard in determining the proper constituency of a collective bargaining unit. that some of the employees are the same persons working in the other company and the physical plants. The nature of their products and scales of business may require different skills. hours of work and other conditions of employment. 1996) Corporate Entities Two companies having separate juridical personalities shall NOT be treated as a single bargaining unit. (San Miguel Union v Confesor. not for the purpose of allowing the group 146 . public policy or morals. Torres) I." sanctions the holding of a series of elections. the parties may not only renew the existing collective bargaining agreement but may also propose and discuss modifications or amendments thereto. and working conditions which must necessarily be commensurate by different compensation packages. 1980) Spun-off corporations The transformation of companies is a management prerogative and business judgment which the courts cannot look into unless it is contrary to law. Ferrer-Calleja. 1992) Note: Of these 4 factors. (2) The fact that there are as many bargaining units as there are companies in a conglomeration of companies is a positive proof that a corporation is endowed with a legal personality DISTINCTLY ITS OWN. and communication systems indicate their unitary corporate personality. Diatagon Labor Federation v. (DLSU v. considering the spin-offs. independent and separate from other corporations. Other factors: (5) Geography and Location (6) Policy of avoiding fragmentation of the bargaining unit (1) Globe Doctrine: Concept A practice designated as the "Globe doctrine. 1992.UP LAW BOC LABOR RELATIONS Rationale It is a curtailment of the right to selforganization. If. 2000) LABOR LAW Calica. especially when the services provided by the other company are merely auxiliary. During the freedom period. control. DLSUEA. (3) Separate legitimate purposes militate against treating one corporation as an adjunct or alter ego of the other. (Indophil Textile Mills Workers Union v. TEST TO DETERMINE THE CONSTITUENCY OF AN APPROPRIATE BARGAINING UNIT Principles in determining whether to establish separate bargaining units (1) The existence of a bona fide business relationship between the 2 companies is not proof of being a single corporate entity. offices and facilities are in the same compound are NOT sufficient to justify piercing the corporate veil.

(2) When the problems and interests of the workers are peculiar in each camp or department. (2) Community or Mutuality of Interests The basic test of an asserted bargaining unit’s ACCEPTABILITY is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights. Ferrer-Calleja. there is reason to dissolve.1958) Rationale Highly skilled or specialized technical workers may choose to form their own bargaining unit because they may be in better position to bargain with the employer considering the market value of their skills. Yard Crew Union. and Balatok Mining Co. To veer away from such goal would be contrary. (UP v. 1988) (5) Geography and Location Geography and location only play a significant role if: (1) The separation between the camps and the different kinds of work in each all militate in favor of the system of separate bargaining units. v. v. 1994) Since the confidential employees are very few in number and are by practice and tradition identified with the supervisors in their role as representatives of management vis-à-vis the rank and file employees. (San Miguel Corp. When the interest between groups has changed over time. but for the specific purpose of permitting the employees in each of the several categories to select the group which each chooses as a bargaining unit. inimical and repugnant to the objectives of a strong and dynamic unionism. v. 2006) Rationale There are greater chances of success for the collective bargaining process. Bobok Lumberjack Assn. 1960) LABOR LAW of work to which they belong. (Phil. The bargaining unit is designed to maintain the mutuality of interest among the employees in such unit. such identity of interest has allowed their inclusion in the bargaining of supervisors for purposes of (4) Employment status Among the factors to be considered is the employment status of the employees to be affected—that is the positions and categories 147 . Laguesma. v. 1992) (6) Policy of avoiding fragmentation of the bargaining unit It bears noting that the goal of the DOLE is geared towards "a single employer wide unit which is more to the broader and greater benefit of the employees working force. Calleja. Diamond Hotel and Resort Inc v Manila Diamond Hotel and Employees Union. This is related to the policy of the law in ensuring the right to collective bargain. (3) The system of having one collective bargaining unit in each camp has operated satisfactorily in the past. (Benguet Consolidated Inc. (Kapisanan ng mga Manggagawa sa Manila Road Co. (Belyca Corp.UP LAW BOC LABOR RELATIONS receiving an over all majority of votes to represent all employees. (3) Prior Collective Bargaining History The existence of prior collective bargaining history is neither decisive nor conclusive in the determination of what constitutes an appropriate bargaining unit. and the unity of employees' interest such as substantial similarity of work and duties.. change or expand a certain bargaining unit." The philosophy is to avoid fragmentation of the bargaining unit so as to strengthen the employees’ bargaining power with the management.

through secret ballot. as when a petition for certification election has already been filed by a union. Sec. Sec. which could hardly be accomplished if the respondent association’s membership were to be broken up into five separate ineffective tiny units. However. (Book V.UP LAW BOC LABOR RELATIONS collective bargaining in turn as employees in relation to the company as their employer. the sole and exclusive bargaining agent of the employees in an appropriate bargaining unit. (3) The approximate number of employees in the bargaining unit. The breaking up of bargaining units into tiny units will greatly impair their organizational value. (2) Only one union asking for recognition. 1972) LABOR LAW conspicuous places in the establishment or bargaining unit where the union seeks to operate. CERTIFICATION ELECTION “Certification Election" is the process of determining. (Book V Rule I Sec. All accompanying documents of the notice for voluntary recognition shall be certified under oath by the employer representative and president of the recognized labor union. Sec 2 of these Rules. 1 [bbb]) Requirements Substantive Requirements (1) Unorganized establishment. (SLECC v Sec. (Book V. 2009) II. of Labor. accompanied by the names of those who support the voluntary recognition comprising at least a majority of the members of the bargaining unit. then the company’s voluntary recognition is void. in cases where an establishment is already organized. if the company voluntarily recognizes a different union during such time. This identity of interest logically calls for their inclusion in the same bargaining unit and at the same time fulfills the law’s objective of insuring to them the full benefit of their right to self-organization and to collective bargaining. v Filoil Supervisory and Confidential Employees Union. (Filoil Refinery Corp. 1 [x]) Procedural Requirements The notice of voluntary recognition shall be accompanied by the original copy and two (2) duplicate copies of the following documents: (1) A joint statement under oath of voluntary recognition attesting to the fact of voluntary recognition (2) Certificate of posting of the joint statement of voluntary recognition for fifteen (15) consecutive days in at least two (2) The certification election is the best method of determining the will of the workers on the crucial question of who shall represent them in their negotiations with the management for a collective bargaining agreement that will best protect and promote their interests. reported with the Regional office in accordance to Rule VII. and (4) A statement that the labor union is the only legitimate labor organization operating within the bargaining unit. (3) The members of the bargaining unit did not object to the projected recognition of the union. Rule I. The employer may voluntarily recognize the representation status of a union in unorganized establishments. VOLUNTARY RECOGNITION Voluntary Recognition refers to the process by which a legitimate labor union is recognized by the employer as the exclusive bargaining representative or agent in a bargaining unit. for purposes of collective bargaining. 2) III. Creating fragmentary units would not serve the interest of industrial peace. Rule VII. It is essential that there be no collusion against this objective between an unscrupulous management and a union covertly supporting 148 .

Inc. v. 1978) Certification Election To determine the Exclusive Bargaining Agent All members of the appropriate bargaining unit may vote. Union Election To elect union officers Only union members may vote. of Labor. The determination of the proceeding does not entail the entry of remedial orders or redress of rights. (PLUM Federation of Industrial and Agrarian Workers v Noriel. by which particular labor organization. is controlling. (Port Workers Union v. 1998) Purpose The purpose of a certification election is precisely the ascertainment of the wishes of the majority of the employees in the appropriate bargaining unit: to be or not to be represented by a labor organization. and in the affirmative case. 1965) Who may vote All employees whether union members or not. or at least that the hopes of labor be not frustrated because of its representation by a union that does not enjoy its approval and support. v. 1985) Technical rules and objections should not hamper the correct ascertainment of the labor union that has the support and confidence of the majority of the workers and is thus entitled to represent them in bargaining for the terms and conditions of their employment. 1992) Nature of proceeding It is not litigation.UP LAW BOC LABOR RELATIONS it while professing its loyalty to labor. but a mere investigation of a non-adversary character. (Port Workers Union of the Philippines v Laguesma. It is a statutory policy. It is therefore sound policy that any doubt regarding the real representation of the workers be resolved in favor of the holding of the certification election. Associated Labor Union. 1998) 149 . Who may file a petition for certification election (1) Legitimate labor organization (registered w/ DOLE) (2) Unregistered local chapter with charter certificate from national union or federation (3) National union or federation in behalf of its local/chapter (4) Employer (when requested to bargain collectively and no existing CBA) It is the most democratic and most efficacious/ effective way of determining the will of the bargaining unit. The object of the proceedings is merely the determination of proper bargaining units and the ascertainment of the will and choice of the employees in respect of the selection of the bargaining representative. DOLE. but culmination solely in an official designation of bargaining units and an affirmation of the employees expressed choice of bargaining agent. FerrerCalleja. There should be no obstacle in conducting the Certification election. 1992) Implications Thus it should not be circumvented. (Reyes v Trajano. (Samahang Manggagawa sa Permex v Sec. as long as they belong to the appropriate bargaining unit can vote. (Belyca Corp. (Young Men Labor Union Stevedores v CIR. This is preferable to the suppression of the voice of the workers through the prissy observance of technical rules that will exalt procedure over substantial justice. 1992) LABOR LAW It is a fundamental postulate that the will of the majority given expression in an honest election with freedom on the part of the voters to make their choice. (George & Peter Lines.

(4) Employer When requested to bargain collectively. 263) The employer is a total stranger in the process of certification election. 258. or a local/chapter which has been issued a charter certificate by the national union or federation. 240-A) The employer is not a party to a certification election. including a national union or federation which has already issued a charter certificate to its local/chapter participating in the certification election. Secretary of Labor. the Med. In cases where the petition was filed by a national union or federation. of Labor. it shall not be required to disclose the names of the local chapter’s officers and members. and includes any branch or local thereof. The only instance when the employer may be involved in that process is when it is obliged to file a petition for certification election on its workers’ request to bargain collectively pursuant to Art. an employer may petition the Bureau for an election. 1993) Venue for filing the petition BLR Regional Office which issued the petitioning union’s certificate of registration or certificate of creation of chartered local. which is the sole or exclusive concern of the workers. v Sec. This is best read in relation to Art. The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. 218 (f)) LABOR LAW (2) submitting the list of employees during the pre-election conference should the Med-arbiter act favorably on the petition (Art 258-A introduced by RA 9481) A company’s interference in the Certification Election creates a suspicion that it intends to establish a company union. a certification election shall automatically be conducted by the MedArbiter upon filing of a petition by any legitimate labor organization. Inc. (Oriental Tin Can Labor Union v.Arbiter shall automatically conduct a certification election. The employer has no standing to file a motion to dismiss. (Art. Bystander rule The employer shall not be considered a party in the petition with a concomitant right to oppose a petition for certification election. The employer’s participation shall be limited to: (1) being notified or informed of petitions of such nature Filing of petition is by a legitimate labor organization It cannot be an unregistered labor organization. 264) CERTIFICATION ELECTION IN AN UNORGANIZED ESTABLISHMENT Procedure (1) A petition for certification election shall be filed by a legitimate labor organization. (Art. (Hercules Industries. (PT&T v Laguesma. 1992) (3) National Union/Federation In any establishment where there is no certified bargaining agent. (2) Upon filing of the petition. (Art. (Art. 242 which enumerates the rights granted to a legitimate labor organization and one of those rights is the right to be chosen as the 150 .UP LAW BOC LABOR RELATIONS (1) Legitimate Labor Organization "Legitimate labor organization" means any labor organization duly registered with the Department of Labor and Employment. 1998) (2) Unregistered Chapter with Charter certificate A duly registered federation or national union may directly create a local chapter by issuing a charter certificate indicating the establishment of the local chapter.

1978) CERTIFICATION ELECTION IN AN ORGANIZED ESTABLISHMENT Procedure (1) A verified petition questioning the majority status shall be filed by a legitimate labor organization (2) It must be filed within the 60-day period before expiration of CBA (freedom period) (3) Supported by written consent of at least 25% of ALL employees in the bargaining unit (substantial support) Effect of withdrawal of signatures The employees’ withdrawal from a labor union made before the filing of the petition for certification election is presumed voluntary. it must appear that at least a substantial number (25% requirement) seeks to have a new exclusive bargaining unit. To justify the disturbance. This is one way the law encourages union registration. 2008) Substantial support rule In organized establishments. S. 256 applies to petitions for certification only. (Scout Albano Memorial College v. the incumbent sole bargaining agent should not be easily replaced for that would disturb industrial peace. while withdrawal after the filing of such petition is considered to be involuntary and does not affect the petition. 1989) Venue BLR Regional Office which issued the petitioning union’s certificate of registration or certificate of creation of chartered local. the BLR may exercise its discretion in determining whether or not a certification election must be conducted. Discretionary rule If the petition does not comply with the substantial support requirement. LABOR LAW Rule does not apply to Motions for Intervention The requisite written consent representing substantial support of the workers in the bargaining unit [as required in Art. Noriel.S. (PAFLU v Calleja. Forced Intervenor The incumbent bargaining agent shall automatically be one of the choices in the certification election as forced intervenor. 7) 151 . and not to motions for intervention. Ventures Labor Union. (S. Ventures International vs. (Book V Rule VIII Sec.S.UP LAW BOC LABOR RELATIONS exclusive bargaining representative.

256 of the Labor Code (3) Within one year after the certification election. What is intent and purpose of law for requiring the substantial support rule? Law wants to know the intention of the employees. If they really want a CE. or a valid certification. why is there none in unorganized establishments? It has something to do with industrial peace Must be duly supported by 25% of ALL THE MEMBERS OF THE APPROPRIATE BARGAINING UNIT. Rule VIII. Take note how SC interpreted the term “WITHIN”. Rule VIII. Can file petition anytime.UP LAW BOC LABOR RELATIONS LABOR LAW Organized vs. (Book V. the reckoning period is the date when the decision becomes final and executory. (3) Deadlock bar rule A petition for certification election may be filed anytime. since they already have a bargaining agent. WHY? Intention of law is to bring in 71 the union. to implement policy behind Art. EXCEPT: [w]hen a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of a If appealed. 211a. 253 & 253-A) None No need to be verified Not applicable. has one Has to be a VERIFIED petition No petition for Certification election EXCEPT within 60 days before the expiration of the collective bargaining agreement (See Art. (Book V. What is the rationale of freedom period in Organized establishments. Percentage base: all members of an appropriate bargaining unit. 257: Unorganized Existing. 256: Organized Bargaining agent Petition filed Freedom Period Substantial support rule Art. Unorganized Establishment Art. Sec 3 [b]) (1) One year bar rule No certification election may be held within 1 year from the fact that voluntary recognition has been entered. NO substantial support rule. BARS TO CERTIFICATION ELECTION (1) One year bar rule (2) Negotiation bar rule (3) Deadlock bar rule (4) Contract bar rule (2) Negotiation bar rule A petition for certification election may be filed anytime EXCEPT: (1) When the duly certified union has commenced and sustained negotiations in good faith with the employer (2) In accordance with Art. consent or run-off election has been conducted within the bargaining unit. Sec 3 [a]) 152 . No freedom period.

Assoc. 3 [c]) LABOR LAW The purpose of the prohibition against the filing of a petition for certification election outside the so-called freedom period is to ensure industrial peace between the employer and its employees during the existence of the CBA. (Tanduay Distillery Labor Union v. 238-A) Freedom Period The last 60 days in a Collective Bargaining Agreement (CBA) is referred to as the “freedom period” when rival union representation can be entertained during the existence of a CBA. (Divine World University v Sec of Labor and Employment. 1987) A certification election can be conducted despite pendency of a petition to cancel the union registration certificate. whose registration 153 . standstill. a state of inaction or of neutralization caused by the opposition of persons or of factions (as in government or voting body). (Colegio de San Juan de Letran v. 253-A. NLRC. […] (Art. For the fact is that at the time the union.UP LAW BOC LABOR RELATIONS valid notice of strike or lockout (Book V. Rule VIII. and 256. (Art. No petition for certification election may be filed after the lapse of the freedom period. 2000) Petition for cancellation of union registration does not bar certification election A petition for cancellation of union registration shall not suspend the proceedings for certification election nor shall it prevent the filing of a petition for certification election. Ricardo Dequita.. It is during this particular period when the majority status of the incumbent bargaining agent can be challenged. 1989) (4) Contract Bar Rule The Bureau shall not entertain any petition for certification election or any other action which may disturb the administration of duly registered existing collective bargaining agreements affecting the parties except under Articles 253. v. 1992) The premature renewal of a CBA cannot bar the holding of a certification election by virtue of a bona fide petition filed within the freedom period if the clear intention was to frustrate the constitutional right of the employees to selforganization. (Republic Planters Bank Union v. (2) When the CBA is incomplete (3) When the CBA is substandard (4) When the CBA is prematurely renewed (5) When the CBA is unregistered Expiration of Freedom Period At the expiration of the freedom period. The signing of the authorization to file was merely preparatory to the filing of the Petition for Certification Election. 2011) The contract bar rule shall not apply: (1) When the petition is filed during the freedom period in Articles 253. or an exercise of the right to selforganization. (Associated Labor Union v. 1996) A “deadlock” is defined as the counteraction of things producing entire stoppage. Calleja. 238) What is prohibited is the filing of the petition for certification election outside the 60-day freedom period. the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. Laguesma. 253-A and 256 of this code. The old CBA is extended until a new one is agreed upon by the parties. (PICOP Resources Inc. Sec.

(3) Description of the bargaining unit (4) List of eligible and challenged Voters. (2) Names of all contending unions. If it were a labor organization objecting to the participation in a certification election of a company-dominated union.UP LAW BOC LABOR RELATIONS certificate is sought to be cancelled. Trajano. Inc. If the dismissal is under question. (Book V Rule IX Sec 6. IRR) Rationale If there is a union dominated by the company. Marikina v. B. 1984) All Employees entitled to vote All rank-and-file employees in the appropriate bargaining unit are entitled to vote. (Samahan ng mga Manggagawa v Laguesma. (Philippine Fruits v Torres. (B. 1992) 154 .F. All rank and file employees. (Reyes v. All they need to be eligible to support the petition is to belong to a bargaining unit. 1997) LABOR LAW NOTICE REQUIREMENT Posting of Notice  Who: Election Officer shall cause the posting  What: Notice of election  Where: 2 conspicuous places in company premises  When: At least 10 days before actual election SUSPENSION OF ELECTION Prejudicial Question Rule A formal charge of Unfair Labor Practice against the employer for establishing a company union triggers suspension. have a substantial interest in the selection of the bargaining representative.F. the information required to be included therein and the duration of the posting cannot be waived by the contending unions or the employer. (Airtime Specialists. are eligible to vote in certification elections. shall suspend or bar proceedings for certification election. to which some of the workers belong. BLR. filed its petition for certification. the union selected would be decertified and the whole election proceedings would be rendered useless and nugatory. as a result of which a complaint for an unfair labor practice case against the employer was filed. 1992) Rationale for Non-Distinction Policy Collective bargaining covers all aspects of the employment relation and the resultant CBA binds all employees in the bargaining unit. Goodrich Phils.' There would be an impairment of the integrity of the collective bargaining process if a companydominated union were allowed to participate in a certification election. probationary or permanent. v Director of BLR. unabandoned right to or expectation of reemployment. Note: The ONLY party who could ask for the suspension of the Certification Election is the labor union which filed a complaint for Unfair Labor Practices against the employer. Such charge of company domination is a prejudicial question that until decided. employees concerned could still qualify to vote in the elections. it still had legal personality to perform such act absent an order directing its cancellation. The posting of the notice of election. The Code makes no distinction as to their employment status. 1990) Employees who have been improperly laid off but who have a present. Goodrich Confidential and Salaried Employees Union) Contents of Notice (1) Date and Time of election. an election among workers and employees of the company would not reflect the true sentiment and wishes of the said workers and employees because the votes of the members of the dominated union would not be free. and when the court finds that said union is employerdominated in the unfair labor practice case. (United CMC Textile Worker’s Union v.

Thus.UP LAW BOC LABOR RELATIONS Voting List and Voters The basis of determining voters may be agreed upon by the parties (i. No law. valid votes) To have a valid election. Trajano. a Run-Off election will be conducted Challenge Voter An employer has no standing to question a certification election since this is the sole concern of the workers but may question the inclusion of any disqualified employee in the certification election during the exclusioninclusion proceedings before the representation officer.e. (Reyes v. (Phil.” (Azucena) Appeal from order of Med-Arbiter holding certification election Any party to an election may appeal the order or results of the election […] directly to the Secretary of Labor […] on the ground that the rules and regulations or parts established by the Secretary of Labor for the conduct of election have been violated. 1992) It occurs when a certification election provides for 3 or more choices and the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. Since none got the majority of the 80 valid votes and the contending unions obtained 60 votes (which exceeds½ of the total). (IRR. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. Union “C”=15 and No Union= 20. where no choice receives a majority of the valid votes cast. (Art. administrative rule or precedent prescribes forfeiture of the right to vote by reason of neglect to exercise the right in past cases.” The run-off is NOT between two unions but between “two highest votes”. (Acoje Workers Union v NAMAWU. 262) Illustration The CBU has 100 members and eighty of which voted. “B” and “C. 1963) LABOR LAW IV. Effect of Non-participation in previous election Failure to take part in previous elections is no bar to the right to participate in future elections. the use of payroll). There were no invalid votes. Union “A”= 30. v Laguesma. RUN-OFF ELECTION A "Run-Off election" refers to an election between the labor unions receiving the 2 highest number of votes in a certification election. at least a majority of all eligible voters in the unit must have cast their votes. Telephone & Telegraph Co. 265) 155 . 2) Validity Double majority requirement: (voters. (Art. a run-off election is proper. the run-off will be among Union “A”. Book V Rule IX Sec. Union “B”= 15. The run-off will be between the labor unions receiving “the two highest number of votes. 1993) Requirements (1) majority of the bargaining unit voted (first majority of the double majority rule) (2) three or more choices are available (note: “no union” is a choice) (3) not one of the choices receives a majority of the valid votes cast (4) total number of votes for all contending unions is at least 50% of the total number of votes cast (this means that at least 50% of the bargaining unit wants to have a union) (5) the run-off election shall be conducted between the labor unions receiving the two highest number of votes Voting Day The election shall be set on a regular business day.

UP LAW BOC

LABOR RELATIONS

LABOR LAW

V. RE-RUN ELECTION

VI. CONSENT ELECTION

A motion for the immediate holding of another
certification or consent election can be filed
within six (6) months from the date of the
declaration of failure of election. (Book V, Rule
IX Sec 18)

"Consent Election" means the election
voluntarily agreed upon by the parties to
determine the issue of majority representation
of all the workers in the appropriate collective
bargaining unit.
The contending unions may agree to the
holding of an election. In which case, it shall be
called a consent election. The Med-Arbiter
shall forthwith call for the consent election
reflecting the parties’ agreement and the call
in the minutes of the conference. (Book V RVIII
Sec 10)

Purpose

Conduct

Certification election
Aimed at determining the sole and
exclusive bargaining agent of all
employees in an appropriate bargaining
unit for the purpose of collective
bargaining

Consent Election
Merely to determine the issue of
majority representation of all the
workers in the appropriate
collective bargaining unit

1st Level of Choice: Yes Union or No Union
2nd Level of Choice: If “Yes Union” wins,
WHICH union.
(UST Faculty Union v. Bitonio, 1999)
Ordered by the DOLE

VI. AFFILIATION AND DISAFFILIATION
OF THE LOCAL UNION FROM THE
MOTHER UNION

Voluntarily agreed upon by the
parties, with or w/o intervention
from DOLE

Independent Union
A labor organization operating at the
enterprise level that required legal personality
through independent registration under
Art.234 of the Labor Code and Rule III Sec. 2-A
of the IRR.(Book V Rule 1 Sec. 1 [w])

Definitions
Affiliate
An affiliate is an independent union affiliated
with a federated, national union or a chartered
local which was subsequently granted
independent registration but did not
disaffiliate from its federation, reported to the
Regional Office and the Bureau in accordance
with Rule III Secs. 6 and 7 of the IRR. (Book V
Rule 1 Sec. 1 [a])

Local Chapter (Chartered Local)
A labor organization in the private sector
operating at the enterprise level that acquired
legal personality through the issuance of a
charter certificate by a duly registered
federation or national union, and reported to
the Regional Office in accordance with Rule III
Sec. 2-E of the IRR. (Book V Rule 1 Sec. 1 [i])
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National Union or Federation
National Union or Federation – a group of
legitimate labor unions in a private
establishment organized for collective
bargaining or for dealing with employers
concerning terms and conditions of
employment for their member union or for
participating in the formulation of social and
employment policies, standards and programs,
registered with the BLR in accordance with
Rule III Sec. 2-B of the IRR. (Book V Rule 1 Sec. 1
[kk])

LABOR LAW

Disaffiliation
General rule: Local unions may disaffiliate from
the mother union.
Disaffiliation must be by a majority decision
The members shall determine by secret ballot,
after due deliberation, any question of major
policy affecting the entire membership of the
organization, unless the nature of the
organization or force majeure renders such
secret ballot impractical, in which case, the
board of directors of the organization may
make the decision. (Art. 247 (d))

Purpose of affiliation
To foster the free and voluntary organization of
a strong and united labor movement (Art. 211)

Limitations: Terms of the affiliation agreement
(e.g. agreement may require 2/3 vote to
disaffiliate instead of a majority) (Phil.
Skylanders v. NLRC)

The sole essence of affiliation is to increase, by
collective action, the common bargaining
power of local unions for the effective
enhancement and protection of their interests.
Admittedly, there are times when without
succor and support local unions may find it
hard, unaided by other support groups, to
secure justice for themselves. (Philippine
Skylanders v. NLRC, 1992)

Generally, a labor union may disaffiliate from
the mother union to form a local or
independent union only during the 60-day
freedom period immediately preceding the
expiration of the CBA. However, even before
the onset of the freedom period, disaffiliation
may be carried out when there is a shift of
allegiance on the part of the majority of the
members of the union. (ANGLO KMU v Samana
Bay, G.R. No. 118562 July 5, 1996)

Nature of Relationship (Agency)
The mother union, acting for and in behalf of
its affiliate, had the status of an agent while
the local remained the basic unit of the
association, free to serve the common interest
of all its members, subject only to restraints
imposed by the constitution and by the by-laws
of the association. The same is true even if the
local is not a legitimate labor organization.
(Filipino Pipe and Foundry Corp v. NLRC, 1998)

A local union, being a separate and voluntary
association, is free to serve the interests of all
its members. It has the right to disaffiliate or
declare its autonomy from the federation to
which it belongs when circumstances warrant,
in accordance with the constitutional
guarantee of freedom of association, and such
disaffiliation cannot be considered disloyalty.
(Malayang Samahan ng mga Manggagawa v.
Ramos, 2000)

Effect of Affiliation
Inclusion of [the federation] in the registration
is merely to stress that they are its affiliates at
the time of registration. It does not mean that
said local unions cannot stand on their own.
Affiliation does not mean they lost their own
legal personality. (Adamson v CIR, 1984)

The locals are separate and distinct units
primarily designed to secure and maintain an
equality of bargaining power between the
employer and their employee-members; and
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VIII. UNION DUES
ASSESSMENTS

the association of the locals into the national
union was in furtherance of the same end.
These associations are consensual entities
capable of entering into such legal relations
with their member. The essential purpose was
the affiliation of the local unions into a common
enterprise to increase by collective action the
common bargaining power in respect of the
terms and conditions of labor. (Tropical Hut
Employees Union v. Tropical Hut Food Market
Inc., 1990)

LABOR LAW

AND

SPECIAL

Union dues
Union dues are payments to meet the union’s
general and current obligations. The payment
must be regular, periodic, and uniform.
(Azucena)
Every payment of fees, dues or other
contributions by a member shall be evidenced
by a receipt signed by the officer or agent
making the collection and entered into the
record of the organization to be kept and
maintained for the purpose. (Art. 247 (h))

Effect of disaffiliation
A registered independent union retains its
legal personality while a chartered local loses
its legal personality unless it registers itself.

Special assessments
Special assessments are payments for a
special purpose, especially if required only for
a limited time. (Azucena)

SUBSTITUTIONARY DOCTRINE
The “substitutionary” doctrine provides that
the employees cannot revoke the validly
executed collective bargaining contract with
their employer by the simple expedient of
changing their bargaining agent. And it is in
the light of this that the phrase “said new
agent would have to respect said contract”
must be understood. It only means that the
employees, thru their new bargaining agent,
cannot renege on their collective bargaining
contract, except of course to negotiate with
management for the shortening thereof.
(Benguet Consolidated v. BCI Employees and
Workers Union-PAFLU, 1998)

No special assessment or other extraordinary
fees may be levied upon the members of a
labor organization unless authorized by a
written resolution of a majority of all the
members of a general membership meeting
duly called for the purpose. (Art. 247 (n))
Other than for mandatory activities under the
Code, no special assessments, attorney’s fees,
negotiation fees or any other extraordinary fees
may be checked off from any amount due to an
employee without an individual written
authorization duly signed by the employee.
The authorization should specifically state the
amount, purpose and beneficiary of the
deduction. (Art. 247 (o))

Conditions:
(1) change of bargaining agent (through
affiliation, disaffiliation, or other means)
(2) existing CBA with the previous bargaining
agent

REQUIREMENTS FOR VALIDITY OF SPECIAL
ASSESSMENT
(1) Authorization by written resolution of
majority of ALL the members at the general
membership meeting called for that
purpose

Effects:
(1) new bargaining agent cannot revoke and
must respect the existing CBA
(2) it may negotiate with management to
shorten the existing CBA’s lifetime

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(2) Secretary’s record of the minutes of the
meetings attested to by the president.
(3) Individual written authorization for checkoff duly signed by the employees
concerned.

LABOR LAW

Requisites for assessment of Agency Fees
Employees of an appropriate bargaining unit
who are not members of the recognized
collective bargaining agent may be assessed a
reasonable fee equivalent to the dues and
other fees paid by members of the recognized
collective bargaining agent, if such non-union
members accept the benefits under the
collective bargaining agreement: Provided,
that the individual authorization required
under Article 242, paragraph (o) of this Code
shall not apply to the non-members of the
recognized collective bargaining agent. (Art.
254 (e))

Attorney’s fees, negotiation fees, and similar
charges
No attorney’s fees, negotiation fees or similar
charges of any kind arising from any collective
bargaining negotiations or conclusion of the
collective agreement shall be imposed on
individual member of contracting union.
Provided, however, that attorney’s fees may be
charged against union funds in an amount to
be agreed upon by the parties. Any contract,
agreement or arrangement of any sort to the
contrary shall be null and void. (Art. 228 (b))

Requirements:
(1) Non-member of SEBA
(2) Member of Collective Bargaining Unit
(3) Reasonable fee equivalent to the dues and
other fees paid by member

General rule: that attorney’s fees, negotiation
fees, and similar charges should be charged
against the union funds and not as a special
assessment.

B.
RIGHT
BARGAINING

TO

COLLECTIVE

B.1 DUTY TO BARGAIN COLLECTIVELY
Constitutional Policies
(1) [The State] shall guarantee the rights of
workers to self-organization, collective
bargaining and negotiations. […] [1987

However, if a special assessment is required to
pay such fees, then the requirements above
must be satisfied.

Constitution, Art. XIII, Sec. 3]

Strict compliance for special assessment
There must be strict and full compliance with
the requisites. Substantial compliance is not
enough. (Palacol v. Ferrer-Calleja)

(2) The State shall promote the principle of
shared responsibilities between workers
and employers […] and shall enforce their
mutual compliance therewith to foster
industrial peace. [1987 Constitution, Art.
XIII, Sec. 3]

IX. AGENCY FEES
Agency fee is an amount, equivalent to union
dues, which a non-union member pays to the
union because he benefits from the CBA
negotiated by the union. (Azucena)

Statutory Policies
(1) To promote and emphasize the primacy of
free
collective
bargaining
and
negotiations,
including
voluntary
arbitration, mediation and conciliation, as
modes of setting labor or industrial
disputes. [Art. 217 (a)]
(2) It is the policy of the State to promote and
emphasize the primacy of free and

Rationale for allowing agency fees
Avoiding unjust enrichment on the part of nonunion members who benefit from the union's
efforts without paying any fee therefor, unlike
the members of the bargaining agent.

159

labor and management.” [Kiok Loy v. make their own rules by coming to terms to govern themselves in matters that really count. is one of the democratic frameworks under the Labor Code designed to stabilize the relations between labor and management and to create a climate of sound and stable industrial peace. within thirty (30) calendar days from the date of receipt of the request. 258] When Employers May Be Compelled to Bargain Collectively While the duty to bargain collectively is a mutual obligation. Requisites to Compel Employer to Bargain Collectively: (1) Proof of majority representation by the representative labor organization (exclusive bargaining agent) (2) Demand by the labor organization [Art. So much so that Article 249. The two parties to the relationship. which is defined as negotiations towards a collective agreement. including the balance sheet and the profit and loss statement. (g) of the Labor Code makes it an unfair labor practice for an employer to refuse "to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages. par. [United Employees Union of Gelmart Industries v.UP LAW BOC LABOR RELATIONS responsible exercise of the right to selforganization and collective bargaining. It is a mutual responsibility of the employer and the Union and is characterized as a legal obligation. [Art. Rule XVI. the employer is not under any legal duty to initiate contract negotiation. hours of work. LABOR LAW Nature and Purpose of Collective Bargaining The institution of collective bargaining is a prime manifestation of industrial democracy at work. 1986] Collective bargaining. either through single enterprise level negotiations or through the creation of a mechanism by which different employers and recognized certified labor unions in their establishments bargain collectively. [Rivera v. §1] Definition The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreement if required by either party but such duty does not compel any party to agree to a proposal or to make any concession. Noriel. after the union has been duly recognized by the employer or certified as the 160 . with its annual audited financial statements. NLRC. and all other terms and conditions of employment. 2000] Rights of the Parties during Bargaining To be furnished by the employer. Espiritu. 250(a)] Waiver of Right to Collectively Bargain The right to free collective bargaining includes the right to suspend it. 1986] An employer asked by a labor organization (which is not the SEBA of the establishment) to bargain collectively may file a petition for certification election to ascertain the will of the bargaining unit or it may voluntarily recognize the labor organization in proper circumstances. [Kiok Loy v NLRC. upon written request. 1975] [Book V.

[Art.2 COLLECTIVE AGREEMENT (CBA) The parties may agree to make available such up-to-date financial information which is normally submitted to relevant government agencies material and necessary for meaningful negotiations. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Substandard CBA A CBA that falls below the minimum standards required by law is prohibited. [Art. 257) CBA Impressed with Public Policy A CBA. WHEN THERE IS ABSENCE OF A CBA In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining. thus. They may also agree to the condition that the information be kept confidential. (Art. the MedArbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit. as a labor contract within the contemplation of Article 1700 Civil Code which governs the relations between labor and capital. 1700 Civil Code] Exception In organized establishments. is not merely contractual in nature but impressed with public interest. [Book V Rule I § 1(j)] I. 161 .UP LAW BOC LABOR RELATIONS sole and exclusive bargaining representative of the employees in the bargaining unit. Therefore such contracts are subject to the special laws on labor unions collective bargaining strikes and lockouts closed shop wages working conditions hours of labor and similar subjects. WHEN THERE IS A CBA General Rule The duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. [Art. hours of work and all other terms and conditions of employment in a bargaining unit. 248 (c)] LABOR LAW [A]t the expiration of the freedom period. Nonetheless. [Book V Rule XVI §2] BARGAINING A collective bargaining agreement refers to the negotiated contract between a legitimate labor organization and the employer concerning wages. the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification election is filed. RA 9481 removed substandard CBAs as a ground for the cancellation of registration of union registration. it must yield to the common good. or within sixty (60) calendar days before the expiration of the existing collective bargaining agreement. [Davao Integrated Port Stevedoring Services v. it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. Note: A substandard CBA cannot bar a petition for certification election under the contract-bar rule. 1993] II. or during the collective bargaining negotiation. when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of the collective bargaining agreement. Abarquez. 256] B. including mandatory provisions for grievances and arbitration machineries.

Conference. 2005] 162 . just like any other contract. is respected as the law between the contracting parties and compliance in good faith is mandated. [New Pacific Timber and Supply v. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice. Reply. 1972] Those who are entitled to its benefits can invoke its provisions. 1700) on the proper interpretation of contracts can very well govern. 1993] Beneficiaries of the CBA The CBA benefits all workers in a collective bargaining unit. the rules embodied in the Civil Code (Art. General rule: CBA is not confidential Exceptions: (1) confidentiality authorized by Secretary of Labor (2) when it is at issue in any judicial litigation (3) public interest or national security requires [Art.It is the policy of the state to promote the primacy of free collective bargaining [Art. Nature of Contract and Contract Interpretation The terms and conditions of a collective bargaining contract constitute the law between the parties. When a collective bargaining contract is entered into by the union representing the employees and the employer. 231] General Rule: If the terms of the contract are clear. BabcockHitachi. When a party desires to negotiate an agreement. 2000] Bargaining Procedure [Book V. V. Should differences arise on the basis of such notice and reply. either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request. [Babcock-Hitachi (Phils. Rule XVI] (1) Private Procedure . Lorredo. [Mactan Workers Union vs. In the event that an obligation therein imposed is not fulfilled. even the non-member employees are entitled to the benefits of the contract. NLRC.UP LAW BOC LABOR RELATIONS Confidentiality of registered CBA or Parts Thereof LABOR LAW Contract Interpretation Interpretation Tools A CBA.The parties may provide for their own procedures in collective bargaining. iii. Written notice and statement of proposals. 211 (a)] To accord its benefits only to members of the union without any valid reason would constitute undue discrimination against nonmembers. [Art 251]  Rationale .) v. the aggrieved party has the right to go to court for redress. Effect of Unregistered CBA An unregistered CBA is binding upon the parties but cannot serve as a bar to a petition for certification election under the contract-bar rule. Aboitiz. (2) Labor Code Procedure [Art. [Kimberly Clark Phils. Exception: If the words appear to be contrary to the evident intention of the parties. ii. the latter shall prevail over the former. Similarly. The law only requires that these procedures be more expeditious than the procedure in Art. 250] i. the literal meaning of the stipulations shall control. 250. it shall serve a written notice upon the other party with a statement of its proposals.

Association. [General Milling Corp. a person is entitled to ‘buy his or her peace’ without danger of being prejudiced in case his or her efforts fail ii. GMC’s refusal to make a counter-proposal is an indication of its bad faith. CA. During the conciliation proceedings in the Board. The employer’s actuations show a lack of sincere desire to negotiate. The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. CIR. Voluntary arbitration. there is a clear evasion of the duty to bargain collectively. [Colegio de San Juan de Letran vs. LABOR RELATIONS Board intervention and conciliation. [Art. Prohibition against disruptive acts. there is a clear evasion of the duty to bargain collectively. 252] 163 . Where the employer did not even bother to submit an answer to the bargaining proposals of the union. 1964] Rationale i. 2000] Mandatory Bargainable Issues (1) Wages (2) Hours of work (3) All other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement [Art. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. [National Union of Restaurant Workers vs.UP LAW BOC iv. Bad Faith The period to reply is merely procedural. If the dispute is not settled. v. and non-compliance cannot be automatically deemed to be an Unfair Labor Practice (“ULP”). LABOR LAW Failure to Reply as Indicia of Bad Faith GMC’s failure to make a timely reply to the proposal sent by the union is indicative of its utter lack of interest in bargaining with the union. Where the employer did not even bother to submit an answer to the bargaining proposals of the union. CA. vi. 2009] The company’s refusal to make a counterproposal to the union’s proposed CBA is an indication of its bad faith. It is guilty of ULP. rendering it guilty of unfair labor practice. the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call. v. 233] Period to Reply. 2004] Conciliation / Preventive Mediation – Privileged Communication Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Its excuse that it felt the union no longer represented the workers was mainly dilatory as it turned out to be utterly baseless. offers for compromise are irrelevant because they are not intended as admissions by the parties making them [Pentagon Steel v. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them.

260 of. 2008] LABOR LAW agree or that agreement was not reached with respect to other disputed clauses. morals. and b) those arising from the interpretation or enforcement of company personnel policies. 6715. It is intended to promote a friendly dialogue between labor and management as a means of maintaining industrial peace. NLRC. 1998] A collective bargaining agreement refers to the negotiated contract between a legitimate labor organization and the employer concerning wages. But a refusal to contract unless the agreement covers a matter which is not a mandatory subject is in substance a refusal to bargain about matters which are mandatory subjects of collective bargaining. the parties in a CBA may establish such stipulations. hours of work and all other terms and conditions of employment in a bargaining unit […]. Importance of Determining Whether an Issue is a Mandatory Bargaining Issue or Only a Permissive Bargaining Issue "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. NLRC.A. Damasco. [Navarro III v. only mandates that the parties to 164 . Union of Filipino Employees-Drug v. As in all other contracts. Art. Nestle. terms and conditions as they may deem convenient provided they are not contrary to law. 260] Test for Mandatory Bargainable Issues: NEXUS Between the Nature of Employment and the Nature of the Demand. [Art. as incorporated by R. [Manila Fashions v. 2) A machinery for the adjustment and resolution of grievances arising from: a) The interpretation or implementation of their CBA. they must have a connection between the proposal and the nature of the work. However. All grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of its submission shall be automatically referred to voluntary arbitration prescribed in the CBA. NLRC. 1993] No particular setup for a grievance machinery is required by law. 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.. [Samahang Manggagawa sa Top Form v.” Such refusal will not be deemed as an unfair labor practice. 1996] I. the party will be guilty of ULP. MANDATORY PROVISIONS OF CBA Grievance Procedure The parties to a Collective Bargaining Agreement shall include therein: 1) Provisions that will ensure the mutual observance of its terms and conditions. [Master Iron Labor Union v. if a party refuses to contract based on an issue which is not a mandatory bargainable issue. 1995] It should be remembered that a grievance procedure is part of the continuous process of collective bargaining. public order or public policy.UP LAW BOC LABOR RELATIONS Permissive Issues: Unilateral benefits extended by the employer [cf. For “other terms and conditions of employment” to become a mandatory bargainable issue. and it is no answer to the charge of refusal to bargain in good faith that the insistence on the disputed clause was not the sole cause of the failure to Grievances arising from the interpretation or implementation of the CBA are subjects of the grievance procedure. good customs. clauses.

the court shall suspend the same and the parties shall be directed forthwith to proceed to arbitration. Going a step further. the arbitrator can assume that he has the power to make a final settlement. if the parties agree [Art. CA. However. which shall act with the In general. 266] Voluntary Arbitration as a Condition Precedent The stipulation to refer all future disputes to an arbitrator or to submit an ongoing dispute to one is valid. fails or refuses to arbitrate. interpretation or enforcement of company personnel policies [Art. 261] 3. 262] Provision for Voluntary Arbitration in the CBA (1) Parties to a CBA shall: a. [Art. 2. pursuant to the selection Voluntary Arbitrator or panel of Arbitrators procedure agreed upon in the CBA. the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators. and shall enforce their mutual compliance therewith to foster industrial peace. it is binding and enforceable in court in case one of them neglects. XIII Section 3] Automatic Referral If Grievance Machinery Fails All grievances submitted to the grievance machinery which are not settled within 7 calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the CBA. The VA has plenary jurisdiction and authority to interpret the CBA and to determine the scope of his or her own authority. Include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. interpretation or implementation of the CBA [Art. Brillantes. gross violations of CBA provision (flagrant/malicious refusal to comply with the economic provisions of the CBA [Art. the arbitrator [“VA”] is expected to decide those questions expressly stated and limited in the submission agreement. since arbitration is the final resort for the adjudication of disputes. [Chung Fu Industries v. Art. [Caltex Refinery Employees Association v. Being part of a contract between the parties. OR b.UP LAW BOC LABOR RELATIONS the CBA establish a machinery to settle problems arising from "interpretation or implementation of their collective bargaining agreement and those arising from the interpretation or enforcement of company personnel policies. as may be necessary. [Art. 261] 2. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators. this 165 . Subject to judicial review. in the event that they declare their intention to refer their differences to arbitration first before taking court action. 261] 4. such that where a suit has been instituted prematurely. Name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators. A court action may likewise be proper where the arbitrator has not been selected by the parties. 1992] Voluntary Arbitration Constitutional Basis The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes. [CONST. 1997] LABOR LAW same force and effect as if the has been selected by the parties as described above. this constitutes a condition precedent. all other labor disputes including ULP and bargaining deadlock. 266] Arbitrable Issues 1. including conciliation.

professional standing of the voluntary arbitrator IV. order. subject to such rules and regulations as the No Motion for Reconsideration The voluntary arbitrator lost jurisdiction over the case submitted to him the moment he rendered his decision. 268-B] Finality of the final decision.UP LAW BOC LABOR RELATIONS leeway of authority and adequate prerogative is aimed at accomplishing the rationale of the law on voluntary arbitration – speedy labor justice. BLR] 166 . Goya. shall take into account the following factors: I. 6715 is silent with respect to an appeal from the decision of a voluntary arbitrator. It would be inapplicable to prevent a strike which is grounded on unfair labor practice. he could no longer entertain a motion for reconsideration of the decision for its reversal or modification. or award (Art 268A) Voluntary Arbitrator's Fee […] The fixing of the fee of the Voluntary Arbitrators." A fortiori. v. Employees Union-FFW. Inc. Ramos. workers shall have the right. Republic Act No. whether shouldered wholly by the parties or subsidized by the special voluntary arbitration fund. […] [Art. the decision or award of the voluntary arbitrator or panel of arbitrators should likewise be appealable to the Court of Appeals. including efforts to effect a voluntary settlement between parties (4) determine attendance of any third parties (5) determine exclusion of any witness (6) issue writ of execution for sheriff of NLRC or regular courts to execute the final decision. [Panay Electric Co. 262-B] Powers of the voluntary arbitrators (1) hold hearings (2) receive evidence (3) take whatever action is necessary to resolve the issue or issues subject of dispute. Therefore. [Luzon Development Bank v. 1995] Costs The parties to a Collective Bargaining Agreement shall provide therein a proportionate sharing scheme on the cost of the voluntary arbitration including the Voluntary Arbitrators fee. Assoc of Luzon Dev’t Employees. 2000] Assuming arguendo that the voluntary arbitrator or the panel of voluntary arbitrators may not strictly be considered as a quasijudicial agency. still both Labor Management Council Any provision of law to the contrary notwithstanding. or Award [T]he award or decision of the Voluntary Arbitrator […] shall be final and executory after 10 calendar days from receipt of the copy of the award or decision by the parties. No Strike-No Lockout Clause A "no strike. Inc. nature of the case II. Order. […] (268-A) Appeal While there is an express mode of appeal from the decision of a labor arbiter. capacity to pay of the parties. [Solidbank v. 1995. vs. 2013] LABOR LAW he and the panel are comprehended within the concept of a "quasi-judicial instrumentality. Malayang Samahan ng mga Manggagawa sa Greenfield v. time consumed in hearing the case III. no lock-out" provision in the CBA is a valid stipulation although the clause may be invoked by an employer only when the strike is economic in nature or one which is conducted to force wage or other concessions from the employer that are not mandated to be granted by the law itself. [Art. NLRC. [Goya. board or commission.

259-A] Art. If no agreement is reached within 6 months from the expiry date of the 3 years that follow the CBA execution. [Contract-bar rule] CBA Effectivity If it is the first ever CBA. That the representatives of the workers in such labor-management councils shall be elected by at least the majority of all employees in said establishment. [Manila Electric Co.80 UP LAW BOC LABOR RELATIONS Secretary of Labor and Employment may promulgate. [Art. effectivity date: December 14]. to participate in policy and decision-making processes of the establishment where they are employed insofar as said processes will directly affect their rights. For this purpose. workers and employers may form labor-management councils: Provided. All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. CBA Duration for non-economic provisions 5 years for representational or political issues. [Art. All other provisions of the CBA shall be renegotiated not later than 3 years after its execution. 1999] CBA Duration for economic provisions 3 years. insofar as the representation aspect is concerned. 255] LABOR LAW day period immediately before the date of the expiry of such five year term of the Collective Bargaining Agreement. If such agreement is entered into beyond 6 months. If it is renegotiated CBA. Any agreement on such other provisions of the Collective Bargaining Agreement entered into within six (6) months from the date of expiry of the term of such other. the effectivity date is whatever date the parties agree on. DURATION OF COLLECTIVE BARGAINING AGREEMENT Any Collective Bargaining Agreement that the parties may enter into shall. Quisumbing. II. The law does not specifically cover the situation where 6 months have elapsed but no agreement has been reached with respect to effectivity. CBA Duration: Freedom Period No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the DOLE outside of the sixty167 . any provision of law should then apply. the effectivity date depends upon the duration of conclusion. If it is concluded within 6 months from the expiry date. No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the Department of Labor and Employment outside of the sixty-day period immediately before the date of expiry of such five-year term of the Collective Bargaining Agreement. ii. be for a term of five (5) years. benefits and welfare. i. the matter of retroaction and effectivity is left with the parties. 253-A serves as the guide in determining when the CBA at bar is to take effect. It provides that the representation aspect of the CBA is to be for a term of 5 years. the parties shall agree on the duration of the effectivity thereof. the law expressly gives the parties — not anybody else — the discretion to fix the effectivity of the agreement. the new CBA will retroact to the date following the expiry date [Illustration: expiry date: December 13. In this eventuality. Any agreement on such other provision of the CBA entered into within 6 months from the date of expiry of the term of such other provisions as fixed in such Collective Bargaining Agreement shall retroact to the day immediately following such date. If the renegotiated CBA is concluded beyond 6 months from the expiry date. v.

The holding of a certification election is a statutory policy that should not be circumvented. v. 1998] CBA and 3rd Party Applicability Labor contracts such as employment contracts and CBAs are not enforceable against a transferee of an enterprise. the parties are liable to the employees if the transaction between the parties is colored or clothed with bad faith. v.] […] it may be made retroactive to the date of expiration of the previous agreement. 1999] The most that the transferee may do. the status quo provision insofar as the need to await the creation of a new agreement will not apply. [Manila Electric Company vs. in the absence of a specific provision of law prohibiting retroactivity of the effectivity of arbitral awards 168 . Otherwise. [i]t shall be the duty of 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 and/or until a new agreement is reached by the parties. or compromised. NLRC. for reasons of public policy and social justice. there will always be an issue of disloyalty whenever the employees exercise their right to self-organization. [Manila Central Line Corp. As a general rule. although the purchaser of the assets or enterprise is not legally bound to absorb in its employ the employees of the seller of such assets or enterprise. [Art. 259] LABOR LAW issued by the Secretary of Labor pursuant to Art.. v. Arbitrated CBA In the absence of an agreement between the parties. Drilon. When there is a representational issue. Manila Central Line Free Workers Union. Inc. However. 2010] General Rule: An innocent transferee of a business establishment has no liability to the employees of the transferor to continue employing them. is to give preference to the qualified separated employees in the filling of vacancies in the facilities of the purchaser. an arbitrated CBA takes on the nature of any judicial or quasi-judicial award. support another union when filing a petition for certification election. Therefore. Exception: When the liability therefore is assumed by the new employer under the contract of sale. thereafter. Taneca et al. Corp. it will create an absurd situation where the union members will be forced to maintain membership by virtue of the union security clause existing under the CBA and. 263(g). It operates and may be executed only prospectively unless there are legal justifications for its retroactive application. Nor is the transferee liable for past unfair labor practices of the previous owner. which provides for automatic renewal pertains only to the economic provisions of the CBA. [Sundowner Dev’t. and does not include representational aspect of the CBA. there is no law requiring a bona fide purchaser of the assets of an on-going concern to absorb in its employ the employees of the latter. 1995] [O]n the other hand.UP LAW BOC LABOR RELATIONS Hold Over Principle [In the absence of a new CBA]. or when liability arises because of the new owner's participation in thwarting or defeating the rights of the employees. is binding only between the parties. 1989] The last sentence of Article 253. [Manlimos v. Quisumbing. labor contracts being in personam. An existing CBA cannot constitute a bar to a filing of petition for certification election. If we apply it. [when the CBA is only] part of an arbitral award [. the latter is deemed vested with plenary and discretionary powers to determine the effectivity thereof. [PICOP Resources.

UNION SECURITY CLAUSES. promote unionism in general as a state policy. who are union members as of the effective date of the agreement. [Azucena] 169 . [Azucena] Union security is any form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment. MAINTENANCE OF MEMBERSHIP SHOP. the substantive as well as the procedural due process requirements. except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. 2010] Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment. any doubt as to the existence of a closed shop provision in the CBA will be resolved in favor of the nonexistence of the closed shop provision. no person may be employed in any or certain agreed departments of the enterprise unless he or she is. [GMC v. by agreement between the employer and his employees or their representatives. Saldivar. CLOSED SHOP. as a condition of employment. 254 (e)] Only union members can be hired by the company and they must remain as members to retain employment in the company. but all present or future members of the union must. Closed Shop A closed shop. becomes. Casio. remains a member in good standing of a union entirely comprised of or of which the employees in interest are a part. 254 (e)] Types (1) (2) (3) (4) (5) LABOR LAW Closed shop Maintenance of membership shop Union shop Modified union shop Agency shop Maintenance of Membership Shop There is maintenance of membership shop when employees. Hence. or who thereafter become members. [Art. However it can also be a potent weapon wielded by the union against the workers whom the union is supposed to protect in the first place. Construction The closed shop provision is the most prized achievement of unionism. and.e. ETC. Casio. [Art. may be defined as an enterprise in which. UNION SHOP. 2010] I. must maintain union membership as a condition for [their] continued employment until they are promoted or transferred out of the bargaining unit or the agreement is terminated.3.UP LAW BOC LABOR RELATIONS B. [GMC v. UNION SECURITY agreement. [GMC v. [Del Monte v. remain in good standing in the union. for the duration of the No employee is compelled to join the union. 2010] Due Process in Termination Under Closed Shop Provision The requirements laid down by the law in determining whether or not an employee was validly terminated must still be followed even if it is based on a closed-shop provision of a CBA. on the other hand. Casio. Limitation Employees who are already members of another union at the time of the signing of the collective bargaining agreement may not be compelled by any union security clause to join any union. i. 2007] Purpose To safeguard and ensure the existence of the union and thus.

Casio. [GMC v. [GMC v. 248 (g) and Art. [Azucena] IN Both employers and labor organizations can commit acts of unfair labor practices in collective bargaining. for the benefit of the individual employees. or on prior authorization from the employees. but all workers hired thereafter must join. CA. the labor organization must be the representative of the employees before any act it does may be considered as a violation of the duty to bargain collectively. decide and to mete out punishment any reported violation under Article 241. 2010] LABOR LAW Jurisdiction over Check-off Disputes The Bureau of Labor Relations has jurisdiction to hear. 2009] Note: For a check-off to be valid. [Marino v Garnilla. GMC violated its duty to bargain collectively. […] Failing to comply with the mandatory obligation to submit a reply to the union’s proposals. making it liable for unfair labor practice. deducts union dues or agency fees from the latter’s wages and remits them directly to the Union. 249 (c)] II. UNION DUES. [Art. and only indirectly. such inquiry shall not be conducted during (60)-day freedom period nor within the thirty (30) days immediately preceding the date of election of union officials. BARGAINING IN BAD FAITH GMC’s refusal to make a counter-proposal to the union’s proposal for CBA negotiation on the excuse that it felt the union no longer represented the workers is an indication of bad faith. on agreement with the Union. they must become union members after a certain period. 2004] The system of check-off is primarily for the benefit of the Union. 2009] I. AGENCY FEES Check-off A check-off is a process or device whereby the employer.CHECK-OFF.UP LAW BOC LABOR RELATIONS Union Shop There is union shop when all new regular employees are required to join the union within a certain period as a condition for their continued employment. Note: Sec of Labor or his duly authorized representative may inquire into financial activities of legitimate labor orgs – UPON filing of complaint under oath and supported by written consent of at least 20% of total membership. recognized as the proper bargaining representative. it must comply with the requirements of a valid special assessment. [Art. but to retain employment. [Azucena] Modified Union Shop Employees who are not union members at the time of signing the contract need not join the union. However. 274] Non-members may be hired.4 UNFAIR LABOR PRACTICE COLLECTIVE BARGAINING Agency Shop An agreement whereby employees must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by the members. 170 . [Marino v Gamilla. [Azucena] B. The requirement applies to present and future employees. Provided.

or refuse to bargain collectively with the employer.e. In explaining its failure to reply. Blue-Sky Bargaining is defined as "unrealistic and unreasonable demands in negotiations by either or both labor and management. That constitutes interference because the company is still under obligation to bargain with the union as the bargaining representative.5 UNFAIR LABOR PRACTICE (ULP) Unfair labor practice refers to acts that violate the workers’ right to organize." without any real intent to reach an agreement. 1971] 171 . [Colegio de San Juan de Letran v. the acts. Ltd. Employees Assn. as one commentator explained: The bargaining status of a union can be destroyed by going through the motions of negotiating almost as easily as by bluntly withholding recognition […] As long as there are unions weak enough to be talked to death. [The Insular Life Assurance Co. Ltd. BLUE SKY BARGAINING Statutory Basis of Employers (1) To violate the duty to bargain collectively as prescribed by this code. no matter how unfair. to dismiss. 2000] B. 2006] III. where neither concedes anything and demands the impossible. V. Without that element. Individual bargaining contemplates a situation where the employer bargains with the union through the employees instead of the employees through the union. REFUSAL TO BARGAIN IV. It violates the Act's requirement that parties negotiate in "good faith. discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code]. the school merely offered a feeble excuse that its Board of Trustees had not yet convened to discuss the matter. are not unfair labor practices." It actually is not collective bargaining at all." It is prohibited because. Global. [Philcom Employees Union v.. [Art.2d 704] 257] Implied refusal The school is guilty of unfair labor practice when it failed to make a timely reply to the proposals of the union more than one month after the same were submitted by the union. 248 (f) [i. [Art. provided it is the representatives of the employees. 2004] [Art. Association. 254 (g)] Statutory Basis of Labor Organizations (1) To violate the duty. 1980 626 F. Clearly. The only exception is Art. there will be employers who are tempted to engage in the forms of collective bargaining without the substance. Confesor. [K-MART Corporation v NLRB. INDIVIDUAL BARGAINING It is an unfair labor practice for an employer operating under a CBA to negotiate with his employees individually.UP LAW BOC LABOR RELATIONS LABOR LAW II. [Standard Bank Chartered Employees Union v. Phil. SURFACE BARGAINING Surface bargaining is defined as "going through the motions of negotiating. v. 256 (c)] (2) [I]t shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code. its actuation showed a lack of sincere desire to negotiate. Insular Life Assurance Co. The prohibited acts are related to the workers’ right to selforganization and to the observance of a CBA.

1965] Exception “Yellow Dog” condition: to require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs. [Standard Chartered Bank Union v. Steam Navigation Co. Confesor. coerces. [HSBC Employee Union V. Exception: when interrogation interferes with Employer-Employee Relationship Required General Rule . inimical to the legitimate interests of both labor and management. [Phil. hinder the promotion of healthy and stable labor-management relations d. NATURE OF ULP Statutory Construction The Labor Code does not undertake the impossible task of specifying in precise and unmistakable language each incident which constitutes an unfair labor practice. The public is also protected because it has an interest in continuing industrial peace. Purpose of the Policy Against ULPs Protection of right to self-organization and/or collective bargaining: a) The employee is not only protected from the employer but also from labor organizations. Marine Officer’s Guild. 1997] a. ULP OF EMPLOYERS (1) Interference/ Restraint/ Coercion An act which restrains. v. including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect b. it leaves to the court the work of applying the law's general prohibitory language in light of infinite combinations of events which may be charged as violative of its terms. nor of threats of obtaining replacements to individual workers while the employees are on strike due to a bargaining deadlock. [Insular Life 172 . Interrogation General rule: employer may interrogate its employees regarding their union affiliation for legitimate purposes and with the assurance that no reprisals would be taken against the unionists. Phil. v. [Art 248 (b)] Speech The acts of a company which subjects a union to vilification and its participation in soliciting membership for a competing union are also acts constituting a ULP. Steam Navigation Co. [Phil. or interferes with employees in the exercise of their right to self-organization is an Unfair Labor Practice. Marine Officer’s Guild. 247] II.An unfair labor practice may be committed only within the context of an employer-employee relationship [American President Lines v. 1982] or restrains employees' right to selforganization. This is tantamount to interference and is not protected by the Constitution as free speech. disrupt industrial peace c. Clave. 2004] An employer may not send letters containing promises or benefits. b) Employer is also protected from ULP committed by a labor organization. Rather. 1965] Parties Not Estopped from Raising ULP by Eventual Signing of the CBA The eventual signing of the CBA does not operate to estop the parties from raising unfair labor practice charges against each other. violations of the civil rights of both labor and management but are also criminal offenses [Art.UP LAW BOC LABOR RELATIONS LABOR LAW I. Phil. NLRC.

[Art. 254 (f)] 7) Violate duty to bargain collectively Duty to bargain collectively is a continuous process. [Insular Life Assurance Co. v. 5) Discrimination – Encourage/Discourage Unionism General rule: it is ULP to discriminate in regard to wages. 1971] The employer commits ULP if it initiates. restrain. contracted-out services or functions are performed by union members AND b. Insular Life Assurance Co. [Art. Example: giving out financial aid to any union's supporters or organizers. […] The information obtained by means of espionage is invaluable to the employer and can be used in a variety of cases to break a union. [Art. discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code. 254 (e)] (2) Yellow Dog Contracts Yellow dog contracts require. 212(i)] Espionage Espionage and/or surveillance by the employer of union activities are instances of interference. as a condition of employment. a representation by the employee that he is not a member of a labor organization 2. 254 (e)] Exception to exception: Those employees who are already members of another union at the time of the signing of the collective bargaining agreement. dominates. 248 (c)] 6) Testimony It is an act of ULP by an employer to dismiss. Insular Life Assurance Co. or otherwise interferes with the formation or administration of any labor organization. non-compliance constitutes ULP. form and join unions as to constitute unfair labor practice. contracting out will interfere with. a promise by the employee that upon joining a labor organization. restraint or coercion of employees in connection with their right to organize. [Art. [Art. function or administration has been assisted by any act defined as unfair labor practice by this Code. 254(e)] 3) Contracting Out General rule: contracting out is not a ULP Exception: a. Employees Assn. being a continuous 173 . Ltd. Collective bargaining does not end with the execution of an agreement. v. Examples: 1. he will quit his employment Exception [union security clause]: Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment. Ltd. 1971] LABOR LAW 4) Company Union "Company union" means any labor organization whose formation. that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs. [Art. a promise by the employee that he will not join a union 3. hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. or coerce employees in the exercise of their right to selforganization.UP LAW BOC LABOR RELATIONS Assurance Co. Employees Assn.

Other acts which are analogous to those enumerated can be ULPs. [IRR] The alleged violation of the CBA. 4) Exaction (Featherbedding) Featherbedding or “make-work” by the union is the practice of the union asking (exacting) for money or other things of value from the employer in return for services which are not performed or are not to be performed. 174 . ULP OF LABOR ORGANIZATIONS 1) Restraint. 255 (b)] General rule: it is a ULP for a labor organization to cause an employer to discriminate against an employee. or coercion “Interfere” is not included in Art. 255 simply because any act of a labor organization amounts to interference to the right of selforganization. BPI. except flagrant and/or malicious refusal to comply with its economic provisions.UP LAW BOC LABOR RELATIONS process. shall not be considered unfair labor practice and shall not be strikeable. except flagrant and/or malicious refusal to comply with its economic provisions. Note: The list in Art. shall not be considered unfair labor practice and shall not be strikeable.. 9) To violate a collective bargaining agreement Flagrant and/or malicious refusal required Violations of collective bargaining agreements. even assuming it was malicious and flagrant. The settlement of bargaining issues must be made by fair bargaining in good faith. 254 is not exhaustive. 8) Payment of negotiation or attorney's fees Sweetheart contracts are favorable both to the union and the employer at the expense of the employees. [Shell Oil Workers Union v Shell Co. [BPI Employees Union-Davao FUBU v. is not a violation of an economic provision. 3) Violate duty to bargain or the CBA Please refer to part B. the duty to bargain necessarily imposing on the parties the obligation to live up to the terms of such a collective bargaining agreement if entered into. 6) Violate a collective bargaining agreement Flagrant and/or malicious refusal required Violations of collective bargaining agreements. [IRR] 5) Asking or accepting negotiation and other attorney's fees See counterpart in ULP by employers (sweetheart contracts).4 for some examples. 1971] LABOR LAW 2) Discrimination: Encourage/Discourage Unionism [Art. thus not an Unfair Labor Practice. 2013] III. it is undeniable that non-compliance therewith constitutes an unfair labor practice. Exception: provisions of a valid union security clause and other company policies applicable to all employees. and not through the payment of negotiation or attorney's fees which will ultimately lead to sweetheart contracts.

CIR. no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes. shall continue to be recognized and respected. and in every case conformably to reasonable regulation. mass leaves. to the detriment of the very workers it is supposed to protect. Art. consistent with the national interest. (Art. [Phil. coerce. attempts to damage.UP LAW BOC LABOR RELATIONS LABOR LAW Limitation: Concerted activities must be in accordance with law The strike is a powerful weapon of the working class. RIGHT TO PEACEFUL CONCERTED ACTIVITIES Basis [The state] shall guarantee the rights of all workers to self-organization. and similar activities. peacefully. FORMS OF CONCERTED ACTIVITIES Concerted Activities by Employees: a. [Art. v NLRC. Strike b. 1992] C. Can Co. collective bargaining and negotiations. Thus. but also slowdowns. peaceful concerted activities. Any violation of the legal requirements and strictures will render the strike illegal. that is. lest it blow up in the workers’ own hands. conducted in the only way allowed. [Samahang Manggagawa v. Precisely because of this. 269 (b)] C. 252) Strikes not limited to work stoppages The term “strike” shall comprise not only concerted work stoppages. The right of legitimate labor organizations to strike and picket and of employers to lockout. Picketing Response to Concerted Activities available to Employers: c.1. The idea behind a strike is that a company engaged in a profitable business cannot afford to have its production or activities interrupted. Lockout Definition A concerted activity is one undertaken by two or more employees to improve their terms and conditions of work. However. or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose or for their mutual aid and protection. like a sensitive explosive. discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. join. it must be handled carefully. [Art. 1950] 175 . Such right shall include the right to form. v. much less. [CONST. It shall be unlawful for any person to restrain. 218(o)] Right to self-organization includes the right to engage in lawful concerted activities and may not be abridged. 2004] As coercive measure by employees A strike is a coercive measure resorted to by laborers to enforce their demands. Sulpicio Lines. paralyzed. XIII §3] Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. [Batangas Laguna Tayabas Bus Co. (a) Strike A strike is any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. it must be declared only after the most thoughtful consultation among them. destroy or sabotage plant equipment and facilities. including the right to strike in accordance with law. subject to the provisions of Article 264 of this Code. sit-downs.

(2) Illegal strike – one staged for a purpose not recognized by law. 1991] Reinstatement after a lawful strike When strikers abandon the strike and apply for reinstatement despite the existence of valid grounds but the employer either: a) refuses to reinstate them or b) imposes upon their reinstatement new conditions then the employer commits an act of ULP. 1972] LABOR LAW employer which he is not required by law to grant [Consolidated Labor  Payment of wages during lawful strikes General rule: Striking employees are not entitled to the payment of wages for unworked days during the period of the strike pursuant to the “no work-no pay” principle. IV. Wild-cat strike – one declared and staged without filing the required notice of strike and without the majority approval of the recognized bargaining agent. 1964] ULP strike – called against a company's unfair labor practice to force the employer to desist from committing such practices. at the same time. conducted through means not sanctioned by law. III. select what part of their duties they perform. v.UP LAW BOC LABOR RELATIONS No severance of employer-employee relationship during lawful strike Although during a strike the worker renders no work or service and receives no compensation. initially. Inc. However. II. they. A slowdown is inherently illicit and unjustifiable because while the employees continue to work. Conversion from economic to ULP strike It is possible for a strike to change its character from an economic to a ULP strike. SSS. v. without a complete stoppage of work. they work on their own terms. As to grounds  Economic strike – one staged by workers to force wage or other economic concessions from the 176 . Forms of Strikes As to legality (1) Legal strike – one called for a valid purpose and conducted through means allowed by law. [Elizalde Rope Factory. retard production or their performance of duties and functions to compel management to grant their demands. [Ilaw at Buklod ng Manggagawa v. or if for a valid purpose. Sit-down strike – one wherein workers take over possession of the property of such business to cease production and to refuse access to owners. Exception: Agreement to the contrary. […] his relationship as an employee with his employer is not severed or dissolved. The strikers who refuse to accept the new conditions and are consequently refused reinstatement are entitled to the losses of pay they may have suffered by reason of the employer’s discriminatory acts from the time they were refused reinstatement. but strike to make common cause with other strikers in other establishments. Marsman and Company. NLRC. Sympathetic strike– one in which the striking workers have no demands of their own. As to how committed I. the strike staged by the Union was meant to compel the Company to grant it certain economic benefits set forth in its proposal for collective bargaining. In essence. Slowdown strike – one by which workers. In the instant case. Association of the Phil.

After assumption or certification by the Secretary of Labor (c) Lockout Lockout is the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. [BPI Employees Union-Davao FUBU v. No strike vote obtained and reported to the NCMB 4. [Consolidated Labor Assoc. 263 (c)] (b) Picketing The right of legitimate labor organizations to strike and picket and of employers to lockout. 2013] Picketing is the right of workers to peacefully march to and fro before an establishment involved in a labor dispute generally accompanied by the carrying and display of signs. 1962] Who may declare a lockout 1. Ground is an inter-union or intra-union dispute 2.UP LAW BOC LABOR RELATIONS the strike changed its character from the time the Company refused to reinstate complainants because of their union activities after it had offered to admit all the strikers and in fact did readmit the others. It was then converted into an unfair labor practice strike. but only on grounds of ULP [Book V. CIR. v.3 REQUISITES FOR A VALID STRIKE A valid strike must have a lawful ground and must conform with the procedural requirements set by law. shall continue to be recognized and respected. Marsman and Company. [Art. Sec. Substantial Requirements/Grounds A strike or lockout may be declared in cases of: a) Bargaining deadlocks b) ULP [Art. 6] C. No notice of strike 3. 1964] LABOR LAW C. The employer [Book V. 269 (b)] When violations of collective bargaining strikeable as a ULP Only gross violations of the economic provisions of the CBA are treated as ULP. §1] When no lawful strike can be declared 1.2 WHO MAY DECLARE A STRIKE OR LOCKOUT? Who may declare a strike 1. [Rizal Cement Workers Union v. BPI. 218 (p)] Procedural requirements 1) Effort to bargain 2) Filing and service of notice of strike 3) Observance of cooling-off period 4) Strike vote 5) Strike vote report 6) Observance of the waiting period 177 . The certified or duly recognized bargaining representative 2. Rule XXII. Rule XXII. Any legitimate labor organization in the absence of #1. placards and banners intended to inform the public about the dispute. [NCMB Manual. of the Phil. §6] Strike cannot be converted to a lockout by a return to work offer A strike cannot be converted into a pure and simple lockout by the mere expedient filing before the trial court a notice of offer to return to work during the pendency of the labor dispute between the union and the employer. [Art. consistent with the national interest.

[Art. Written Proposals of the union 3. shall call the parties to a conference the soonest possible time in order to actively assist them to explore all possibilities for amicable settlement. Counterproposals of the employer 4. Names and addresses of the employer and the union involved 2. Action on Notice 1. 3. (Art. 8] Purpose of Cooling Off Period During the cooling-off period. the labor union may strike or the employer may declare a lockout. If conciliation/mediation fails. Bargaining deadlock – 30 days 2. in cases of union busting (dismissal of duly elected union officers from employment). […][Art. it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement. Union Busting [I]n cases of unfair labor practice. Statement of Unresolved issues in the bargaining negotiations 2. However. the cooling period shall not apply. Nature of the industry to which the employer belongs 3. [IRR] (3) Observance of cooling-off periods Cooling off periods 1. the period to file notice of strike shall be 15 days. [Book V Rule XXII Sec. The purpose of the cooling-off period is to provide an opportunity for mediation and conciliation. The Conciliator-Mediator may suggest/offer proposals as an alternative avenue for the resolution of their disagreement/conflict which may not necessarily bind the parties. 269 (e)] Additional Requirements In case of Bargaining Deadlocks: 1. Failure to do so will constitute noncompliance with the procedural requirements and will result to an illegal strike. Statement of Acts complained of 2. [National Federation of Sugar Workers v. […] [Art. 269 (c)] Note: the notice must be served to the employer. 270(a)) LABOR LAW In cases of ULP: 1. ULP and union busting – no cooling-off period Contents of Notice of Strike 1. Number of union members and of workers in the bargaining unit 4. ULP but not union busting – 15 days 3. Efforts taken to resolve the dispute amicably.UP LAW BOC LABOR RELATIONS (1) Effort to bargain No labor organization […] shall declare a strike […] without first having bargained collectively in accordance with Title VII of this Book. the parties shall be encouraged to submit their dispute for voluntary arbitration. 1982] 178 . Upon receipt of a valid notice of strike or lockout. Such other relevant data as may facilitate the settlement of the dispute. (2) Filing and service of notice of strike Bargaining deadlocks [T]he duly certified or recognized bargaining agent may file a notice of strike […] with the Department at least 30 days before the intended date thereof. 2. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice. Rationale: due process. through its Conciliator-Mediators. 269(c)] Unfair Labor Practice. Proof of a request for conference to settle the differences. Ovejera. the NCMB.

on the other hand. 269 (f)] (6) Observance of the 7-day“waiting period” The waiting period.” in Article 269 (f) admits two interpretations: (1) Mutually exclusive periods (used in the NCMB Manual). the proper grounds for a lockout are 1. in the case of Capitol Medical Center v. 179 . [National Federation of Sugar Workers v. the Court held that when the strike vote is conducted within the coolingoff period. […][Art.4 REQUISITES LOCKOUT FOR A VALID Limitations [N]o employer may declare a lockout on grounds involving inter-union and intra-union disputes. the 7-day requirement shall be counted from the day following the expiration of the cooling off period. 269 (b)] Grounds Similar to a strike. There is no reason to add it to the cooling-off period. 269 (f)] (5) Strike Vote Report [I]n every case. 1982] Strike-vote Reported within the Cooling-off Period When the strike-vote is reported within the cooling-off period. NLRC. the union or the employer shall furnish the Department the results of the voting at least 7 days before the intended strike1 or lockout. at its own initiative or upon the request of any affected party. the purpose of the 7-day requirement is to give time for the DOLE to verify if the projected strike is supported by the majority. supervise the conduct of the secret balloting. subject to the cooling-off period herein provided. [Art. is intended to provide opportunity for the members of the union or the management to take the appropriate remedy in case the strike or lockout vote report is false or inaccurate. Thus. Ovejera. subject to the cooling-off period herein provided. Ovejera. (2) Coexistent periods. ULP by labor organizations Compliance with Both Cooling-off and Waiting Periods The observance of both periods must be complied with. 1982] C. bargaining deadlock 2. the phrase “at least 7 days before the intended strike or lockout.UP LAW BOC LABOR RELATIONS (4) Strike Vote Requirements for a declaration of a strike in a strike vote 1. [National Federation of Sugar Workers v. After all. approval is obtained by secret ballot in a meeting/referendum called for the purpose take a strike vote and report the same within the statutory cooling-off period.[Art. although a labor union may 1 LABOR LAW 7-day “Waiting Period”. 269 (f)] Department of Labor and Employment intervention [T]he Department may. approval by a majority of the total union membership in the bargaining nit concerned 2. Duration of the Validity of the Strike-Vote [T]he decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The coolingoff and 7-day strike ban provisions of law constitute a valid exercise of police power of the State. The cooling-off period and the 7-day requirement may coexist. The cooling off period and the 7-day period are mutually exclusive. […][Art.

Number of union members and of workers in the bargaining unit 4. 3. Written proposals of the union 3. […] [Art. […] [Art. obtained by secret ballot in a meeting called for that purpose. through its ConciliatorMediators.The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. the parties shall be encouraged to submit their dispute for voluntary arbitration. Such other relevant data as may facilitate the settlement of the dispute. Contents of notice 1. Observance of cooling-off period 4. Filing and service of notice of lockout 3. Observance of the waiting period In cases of ULP 1. Nature of the industry to which the employer belongs 3. Action on notice 1. Note: the notice must be served to the employees through the representative union. Names and addresses of the employer and the union involved 2. Report of lockout vote 6. [Art 270 (a)] (2) Filing and service of Notice of Lockout Bargaining deadlocks [T]he duly certified or recognized bargaining agent may file […] a notice of lockout with the Department at least 30 days before the intended date thereof. Upon receipt of a valid notice of strike or lockout. Union Busting [I]n cases of unfair labor practice. Statement of unresolved issues in the bargaining negotiations 180 . 9] (1) Effort to bargain No employer shall declare a […] lockout without first having bargained collectively in accordance with Title VII of this Book. Effort to bargain 2. Efforts taken to resolve the dispute amicably. 269 (c)] (3) Observance of Cooling-off Periods Lockout cooling-off periods:  based on bargaining deadlock – 30 days  based on ULP – 15 days. the NCMB. Proof of a request for conference to settle the differences. Counterproposals of the employer 4. (4) Lockout Vote A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership. shall call the parties to a conference the soonest possible time in order to actively assist them to explore all possibilities for amicable settlement. 269 (f)] Additional Requirements In cases of bargaining deadlocks 1. the period to file notice of strike shall be 15 days. If conciliation/mediation fails. 2. Requisites 1.UP LAW BOC LABOR RELATIONS LABOR LAW 2. [Book V Rule XXII Sec. The Conciliator-Mediator may suggest/offer proposals as an alternative avenue for the resolution of their disagreement/conflict which may not necessarily bind the parties. [Art. 269(c)] Unfair Labor Practice. Lockout vote 5. Statement of acts complained of 2.

or obstruct public thoroughfares. By police force. [Art. When picketing is achieved through illegal means [Mortera v. 1st Sentence] C. is not illegal even in the absence of employer-employee relationship. [Art. Courts may confine the communication/demonstration to the parties to the labor dispute [PCIB v. 269 (f)] Picketing as Part of Freedom of Speech/Expression General rule: picketing enjoys constitutional protection as part of freedom of speech and/or expression. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided. 1981] Peaceful picketing is legal even in the absence of employer-employee relationship Picketing. When picketing is coercive rather than persuasive [Security Bank Employees Union v. Philnabank Employees Association] (6) Observance of Waiting Period (7 days) See notes under strike. or shall aid or abet such obstruction or interference. 270 (a) Sec. [De Leon v.5 REQUISITES PICKETING FOR LABOR LAW LAWFUL Prohibited activities in picketing 1. threats or intimidation. [Art.UP LAW BOC LABOR RELATIONS (5) Report of Lockout Vote In every case. by force. 264 (d)] 3. That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order. Philnabank Employees Association. Innocent bystander rule. No person shall obstruct. or interfere with. By person engaged in picketing. Effect of Illegal Lockout Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. 1957] 181 . protect life and property. [Art. the union or the employer shall furnish the Ministry the results of the voting at least seven days before the intended strike or lockout. coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes. Exceptions/limitations: 1. [Art. Security Bank] 2. any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining. violence. impede. National Labor Union. and/or enforce the law and legal order. coercion. peacefully carried out. No person engaged in picketing shall commit any act of violence. 3. 264 (b)] 2. [PCIB v. subject to the cooling-off period herein provided. for peaceful picketing is a part of the freedom of speech guaranteed by the Constitution. By any person. 264 (e)] Picketing and Libel Libel laws are not applied strictly considering that there is emotional tension in the picket lines and expected discourteous and impolite exchanges between the employees and the employer. Philnabank Employees Association] 4. Courts may insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute [PCIB v. CIR] 3.

2. So imperative is the order in fact that it is not even considered violative of the right against involuntary servitude. it must be discharged as a duty even against the worker's will. That is the real reason such return can be compelled. Automatic injunction 2. The Secretary of Labor will decide the labor dispute himself/herself. 263 (g)] 182 . Gotamco Sawmills.269 (g)] When Sec. Returning to work in this situation is not a matter of option or voluntariness but of obligation.7 NATURE OF ASSUMPTION ORDER OR CERTIFICATION ORDER 1. Assume jurisdiction over any such labor dispute to settle or terminate such dispute Nature of return-to-work order [T]he return-to-work order not so much confers a right as it imposes a duty.UP LAW BOC LABOR RELATIONS C. [Kaisahan ng Mga Manggagawa sa Kahoy v. of Labor can Assume Jurisdiction: 1. all striking or locked out employees shall immediately return-to-work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The worker must return to his job together with his co-workers so the operations of the company can be resumed and it can continue serving the public and promoting its interest.[Art.Such dispute is causing or is likely to cause a strike or lockout Powers of the Secretary of Labor (alternative) 1. 1948] Who determines industries indispensable to the national interest [I]t is in the discretion of the Secretary of Labor to determine which industries are indispensable to the national interest.Labor dispute in an industry indispensable to the national interest 2. and while as a right it may be waived. in his opinion. […] [Art. The Secretary of Labor will certify the labor dispute to the NLRC for compulsory arbitration. Assumption of jurisdiction. Immediately executory (1) Automatic injunction of intended of impending strike or lockout [S]uch assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. Determine the industries indispensable to the national interest 2. (2) Return-to-work and readmission if strike or lockout has already taken place [I]f one has already taken place at the time of assumption or certification. the President of the Philippines shall not be precluded from determining the industries that. Return-to-work and admission 3. Certification for compulsory arbitration. are indispensable to the national interest. However. […] [Art.6 ASSUMPTION OF JURISDICTION BY THE DOLE SECRETARY OR CERTIFICATION OF THE LABOR DISPUTE TO THE NLRC FOR COMPULSORY ARBITRATION LABOR LAW C.269 (g)] Powers of the President (Not precluded by the powers of the Secretary of Labor) 1. the President may determine such industries himself: The foregoing notwithstanding. and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same.

Union officers who participated in illegal acts during a lawful strike – deemed to have lost their employment.UP LAW BOC LABOR RELATIONS (3) Immediately executory The assumption and certification orders are executory in character and must be strictly complied with by the parties. Immediate disciplinary action against both union and employer 2. clinics. 2. [Allied Banking v. 1996] Strike/lockout becomes illegal A strike undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus.8 EFFECT OF ASSUMPTION OR ORDERS LABOR LAW Stricter penalties for non-compliance with orders. Rationale The highest respect is accorded to the right of patients to life and health. as are necessary to insure the proper and adequate protection of the life and health of its patients.Union officers who participated in illegal strike – deemed to have lost their employment 3. C. prohibitions. damages. therefore. [Art. 270 (a)] 183 . Employer in an illegal lockout – workers terminated due to illegal lockout shall be entitled to reinstatement plus full backwages. whose movement and services shall be unhampered and unrestricted. and ordinary workers under illegal strike. pursuant to Article 264 (a) of the Labor Code. Payment by employer of backwages. for the duration of the strike or lockout. [Allied Banking v. and similar medical institutions 1.Ordinary workers – deemed to have lost their employment only if they participated in illegal acts. Criminal prosecution against either or both the union and employer DEFIANCE OF CERTIFICATION No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister 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. NLRC. union officers. 4. See notes on liabilities of employer. within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout. (1996)] Strikes and lockouts in hospitals. NLRC. and other affirmative relief 4. In such cases. 264] 1. jurisdiction over the same or certify it to the Commission for compulsory arbitration. illegal. most especially emergency cases. Summary of Liabilities of Participants in an Illegal Strike/Lockout [Art. and/or injunctions issued by the Secretary of Labor in strikes involving hospitals. clinics and similar medical institutions It shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel. Dismissal/loss of employment for members of the striking union 3. the Secretary of Labor and Employment may immediately assume.

the said strike is illegal. Good faith strike must still comply with procedural requirements Even if the union acted in good faith in the belief that the company was committing an unfair labor practice. 2003] A strike is a legitimate weapon in the universal struggle for existence. cooling-off period. Intra-union and inter-union disputes are not proper grounds to strike. [Grand Boulevard Hotel v. But to be valid. 2003] (1) Prohibited by law Government employees While the Constitution guarantees the right of government employees to organize. v. (2) Improper grounds A legal strike must be based on a bargaining deadlock and/or a ULP act only. GLOWHRAIN. The right to strike as a means for the attainment of social justice is never meant to oppress or destroy the employer. which states that no person engaged in picketing shall:  commit any act of violence. No strike/lockout provisions in the CBA A strike which does not strictly comply with the procedural requirements set by law and the rules is an unlawful/illegal strike. Improper grounds 3. the circumstances must have warranted such belief. Int’l Hardwood. et. Violation of injunction order 6. [Grand Boulevard Hotel v. (4) Unlawful means and methods Purpose and means test There must be concurrence between the validity of the purpose of the strike and the means of conducting it. 1956] 184 . [Association of Independent Unions in the Philippines (AIUP). therefore. It is considered as the most effective weapon in protecting the rights of the employees to improve the terms and conditions of their employment. coercion. 1999] Good faith strike requires rational basis A mere claim of good faith would not justify the holding of a strike under the aforesaid exception as.UP LAW BOC LABOR RELATIONS LABOR LAW (3) Noncompliance with procedural requirements See notes under procedural requirements of a valid strike. However. particularly paragraph (e).9 ILLEGAL STRIKE Reasons for being illegal 1. they are otherwise not allowed to strike. 264. GLOWHRAIN. Among such limits are the prohibited activities under Art. The law provides limits for its exercise. Unlawful means and methods 5. strike vote report). Noncompliance with procedural requirements 4. or intimidation or  obstruct the free ingress to or egress from the employer's premises for lawful purposes or  obstruct public thoroughfares. in addition thereto. if no notice of strike and a strike vote were conducted. the mandatory procedural requirements cannot be dispensed with (notice of strike. not enough that the union believed that the employer committed acts of ULP when the circumstances clearly negate even a prima facie showing to sustain such belief. strike vote. a strike must be pursued within legal bounds. al. C. Prohibited by law 2. v NLRC. [Interwood Employees Assoc. Good faith strike Good faith may be used as a defense if the strike is held on the basis of an act of ULP by the employer even if it turned out that there was no act of ULP. It is.

Shell Co. It is enough that individual liability be incurred by those guilty of such acts of violence that call for loss of employee status. the tension that fills the air as well as the feeling of frustration and bitterness could break out in sporadic acts of violence. it only applies to economic provisions. the strike may still be declared invalid where the means employed are illegal. (3) A different conclusion would be called for if the existence of force while the strike lasts is pervasive and widespread. Ramos. 185 . of the Phils.UP LAW BOC LABOR RELATIONS A legal strike may turn into an illegal strike Even if the strike is valid because its objective or purpose is lawful. (5) Violation of injunction order An automatic injunction under Article 263 (g) or a valid injunction order under the exceptions to Article 254 must be complied with. 2000] I. may be placed beyond the pale. consistently and deliberately resorted to as a matter of policy. Note: Mere participation in an illegal strike by a union officer is sufficient ground to terminate his employment. (4) This is not by any means to condone the utilization of force by labor to attain its objectives. Such an approach is reflected in our recent decisions. the union officer must commit illegal acts during a strike for him to be terminated. it would be. v. responsibility in such a case should be individual and not collective. 1971] Examples of unlawful means and methods (1) Acts of violence and terrorism (2) Destruction of property Guidelines and Balancing of Interest (1) A strike otherwise valid. It is only to show awareness that in labor conflicts. (2) Care is to be taken especially where an unfair labor practice is involved. LIABILITY OF UNION OFFICERS Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status. To avoid rendering illusory the recognition of the right to strike. the ban the law imposes on unfair labor practices by management that could provoke a strike and its requirement that it be conducted peaceably. unjustified. [Malayang Samahan ng mga Manggagawa sa Greenfield v. [Shell Oil Workers Union v. to avoid stamping it with illegality just because it is tainted by such acts. the strike becomes illegal. to repeat. In case of a lawful strike. it becomes illegal because of the means employed'. Diamond Hotel and Resort. It could be reasonably concluded then that even if justified as to ends. if violent in character. no lock-out” is a valid provision in the CBA. considering all the facts disclosed. (6) No strike/lockout provisions in the CBA A “no strike. Inc. [Phil. It cannot prevent a strike which is grounded on unfair labor practice. Manila Diamond Hotel Employees Union. Otherwise. 2006] LABOR LAW If there be in this case a weighing of interests in the balance. to stamp the strike with illegality. However.

unless it such a waiver is clearly shown in the agreement.” [Filcon Manufacturing Corp v. Inc. In one case. 224 (referring to the Powers of the NLRC) in connection with Art. […] the employer could not be deemed to have condoned their strike. Exception: When the worker participated in illegal acts during the strike. When defense of illegality of strike is not deemed waived The ruling cited in the Bisaya case that the employer waives his defense of illegality of the strike upon reinstatement of strikers is applicable only to strikers who signified their intention to return to work and were accepted back.10 INJUNCTIONS No temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity. However. 260] “Admitting for the sake of argument that the strike was illegal for being premature. 264. the Court held that: C.UP LAW BOC LABOR RELATIONS II.” [Bisaya Land Transportation Co. except as otherwise provided in Articles 218 and 264 of this Code. Inc. it is more logical and reasonable for condonation to apply only to strikers who signified their intention to return and did return to work. the mere act of entering into a compromise agreement cannot be deemed to be a waiver of the illegality of the strike. Lakas Manggagawa sa Filcon – Lakas Manggagawa Labor Center] III. LIABILITY OF ORDINARY WORKERS LABOR LAW Truly. this defense was waived by the [Company]. […] Exceptions: Those provided under Art. [Art. 1982] General rule: Participation by a worker in a lawful strike is not ground for termination of his employment. LIABILITY OF EMPLOYER Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. v.. 186 . IV. CIR. as regards the strikers who decided to pursue with the case. v. Only the union officers are deemed to have lost their employment status. When the strike is or becomes illegal. However. The court has emphasized that “[for] a waiver to be valid and effective [it] must be couched in clear and unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit which legally pertains to him. These strikers took the initiative in normalizing relations with their employer and thus helped promote industrial peace. 1957] General Rule: Injunctions are prohibited. [Philippine Inter-Fashion. NLRC. because they had not shown any willingness to normalize relations with it.270 (on Prohibited Activities) under the Labor Code. when it voluntarily agreed to reinstate the radio operators. WAIVER OF ILLEGALITY OF STRIKE When defense of illegality of strike is deemed waived An employer can be deemed to have waived the defense that a strike is illegal. The reason is obvious. the workers who participate in it are not deemed to have lost their employment status by express omission in the second sentence of the third paragraph of Art.

Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status: Provided. even if a replacement had been hired by the employer during such lawful strike. Prohibited Activities [Art. or interfere with. including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police. or work in place of the strikers. 270] (a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Ministry. 187 . the act will cause grave or irreparable damage to any party OR render ineffectual any decision in favor of such party [Art. violence. any individual who seeks to replace strikers in entering or leaving the premises of a strike area. by force. 224 (e)] (b) No person shall obstruct. Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages.UP LAW BOC LABOR RELATIONS I. actual or threatened commission of a prohibited or unlawful act OR requirement of performance of a particular act in a labor dispute ii. Requisites for injunction to issue (in accordance with the Powers of the NLRC) i. shall bring in. No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister 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. That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided. any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining. That mere participation of a worker in a lawful strike (e) No person engaged in picketing shall commit any act of violence. introduce or escort in any manner. (d) No public official or employee. if unrestrained or unperformed. and/or enforce the law and legal order. nor shall any person be employed as a strike-breaker. (c) No employer shall use or employ any strike-breaker. impede. or shall aid or abet such obstruction or interference. coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes. REQUISITES FOR LABOR INJUNCTIONS LABOR LAW shall not constitute sufficient ground for termination of his employment. or armed person. protect life and property. threats or intimidation. coercion. or obstruct public thoroughfares.

its interests are totally foreign to the context thereof. 1999] Injunction Available to Innocent Bystanders An innocent by-stander is entitled to injunction if it is affected by the activities of a picketing union." who seeks to enjoin a labor strike. it is entirely different from. without any connection whatsoever to. [Liwayway Publishing v. Permanent Concrete Worker's Union. must satisfy the court that aside from the grounds specified in Rule 58 of the Rules of Court. 1981] 188 LABOR LAW . either party to the dispute and. [MSF Tire and Rubber Inc. Rationale The right [to picket] may be regulated at the instance of […] `innocent bystanders' if it appears that the inevitable result of its exercise is [1] to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or [2] constitute an invasion of their rights. “INNOCENT BYSTANDER RULE” Test to Determine if a Party is an “Innocent Bystander” An "innocent bystander. v. CA.UP LAW BOC LABOR RELATIONS II.

UP LAW BOC LABOR RELATIONS VIII. including those of persons in domestic or household service. A. VERSUS REGIONAL DIRECTOR Jurisdiction on Money Claims (Labor Arbiter vs. 264 of this Code. For money claims arising from the implementation of a CBA – Voluntary Arbitrator or Panel of Voluntary Arbitrators have jurisdiction. as well as employment termination of OFWs. 227] (10) Other cases as may be provided by law. [Art. The Regional Director has jurisdiction if: 1. (6) Except claims for Employees Compensation. regardless of amount. rates of pay. [Art. The money claim must arise from law or contracts other than CBA. Regional Director) A money claim arising from employeremployee relations. 189 . Social Security. 3. the money claim is not accompanied by reinstatement AND 2. LABOR ARBITER A.1 JURISDICTION Except as otherwise provided under the Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide: (1) Unfair labor practices cases. (2) Termination disputes.000) regardless of whether accompanied with a claim for reinstatement. is accompanied with a claim of reinstatement. arising from employeremployee relations. except SSS.000. I. (4) Claims for actual. (3) If accompanied with a claim for reinstatement. [Art. 124] (9) Enforcement of compromise agreements when there is noncompliance by any of the parties. 217] (7) Money claims arising out of employeremployee relationship or by virtue of any law or contract.000 Notes: 1. The claim. hours of work and other terms and conditions of employment. Procedure and Jurisdiction LABOR LAW voluntarily settled by the parties. involving an amount exceeding five thousand pesos (P5. For money claims which do not arise from ER-EE relations – Regular Courts have jurisdiction. (5) Cases arising from any violation of Art. is within the jurisdiction of a labor arbiter if: 1. moral. exemplary an other forms of damages. the claim does not exceed P5. The policy of the law is to give primacy to voluntary modes of settling dispute. 2. or 2. Medicare and maternity benefits. The claim exceeds P5. moral. including questions involving the legality of strikes and lockouts. (8) Wage distortion disputes in unorganized establishments not “Exclusive and Original” Jurisdiction subject to Articles 261 and 262 A case under Art 217 may be lodged instead with a voluntary arbitrator. those cases that workers may file involving wages. ECC/Medicare claims. whether or not there is a claim for reinstatement. exemplary and other forms of damages arising from the employer-employee relations. involving claims for actual. all other claims.

Venue of an action may be transferred to a different Regional Arbitration Branch upon written agreement of the parties or upon order of the LA in meritorious cases and on motion of the proper party. When venue is not objected to before the filing of position papers. Employer-employee relationship is a jurisdictional requisite. A. Cases involving overseas Filipino workers may be filed before the B. 5. if judgment involves monetary award. 9. LABOR LAW RAB having jurisdiction over the place where the complainant resides or where the principal office of any of the respondents is situated. No. 2. Waiver. 3) The appeal fee should be paid.164856. 8. G. B. (2) Exclusive Appellate Jurisdiction: over all cases decided by labor arbiters (Art 217[b]) and the DOLE regional directors under Art 129. that first which acquired jurisdiction over the case shall exclude others.R. the NLRC has no jurisdiction to hear and decide the case. and report the results of their assignment to their employers. In the case of field employees. Inc. and 5) There should be proof of service to the adverse party. 190 . absent of which. Exclusion. The Labor Arbiter shall use all reasonable means to ascertain the facts in each speedily and objectively. 218 (e). [HawaiianPhilippine Company v. 2009] A. such issue shall be deemed waived. Transfer.3 REQUIREMENTS APPEAL TO NLRC TO PERFECT 1) The appeal should be filed within the reglementary period. Philippine Airlines. 221] 6. NATIONAL LABOR RELATIONS COMMISSION (NLRC) Some Rules on Venue 1. 2) The Memorandum of Appeal should be under oath. 4.2 REINSTATEMENT PENDING APPEAL An order for reinstatement entitles an employee to receive his accrued backwages from the moment the reinstatement order was issued up to the date when the same was reversed by a higher court without fear of refunding what he had received. [Art. Where 2 or more Regional Arbitration Branches have jurisdiction over the workplace of the complainant. Venue: Regional Arbitration Branch (RAB) having jurisdiction over the workplace of the complainant or petitioner.1 JURISDICTION NLRC divisions (1) Original Jurisdiction: Over petitions for injunction or temporary restraining order under Art..UP LAW BOC LABOR RELATIONS 4. 3. Workplace – place or locality where the employee is regularly assigned at the time the cause of action arose. [Garcia v. ambulant or itinerant workers. Nature of Proceeding: Non-litigious. 4) There should be posting of cash or surety bond. their workplace is (a) where they are regularly assigned or (b) where they are supposed to regularly receive their salaries and wages or work instructions from. Gulmatico] 7. The Labor Arbiter is not bound by the technical rules of procedure. OFW Cases.

No. 2009] Note: If the last day of the reglementary period falls on a Sunday or a holiday. and with a statement of the date the appellant received the appealed decision. (3) The appellee may file with the Regional Arbitration Branch or Regional Office Grounds of Appeal 1. Labor Arbiter to NLRC: Decisions and Resolutions of the LA shall be final and executory unless appealed to the NLRC by any or both parties within 10 calendar days from receipt thereof. resolution or order. If made purely on questions of law.UP LAW BOC LABOR RELATIONS Period of Appeal 1. 2.R. Inc. If serious errors in the findings of fact are raised which. including graft and corruption.3 REMEDIES Requisites for Perfection of Appeal to the Court of Appeals [Rule 43] (1) The appeal shall be:  Filed within the reglementary period. more so if he actually rendered services during the period.  Verified by the appellant himself in accordance with §4. Philippine Airlines. Rule 7 of the Rules of Court. if the employee has been reinstated during the appeal period and such reinstatement order is reversed with finality. CA. et al. 2012] B. [Garcia v. 3.2 EFFECT OF NLRC REVERSAL OF LABOR ARBITER’S ORDER OF REINSTATEMENT Even if the order of reinstatement of the Labor Arbiter is reversed on appeal. would cause grave or irreparable injury to the appellant It is clear from the NLRC Rules of Procedure that appeals must be verified and certified against forum-shopping by the parties-ininterest themselves. and (d) proof of service upon the other parties. (2) A mere notice of appeal without complying with the other requisites aforestated shall not stop the running of the period for perfecting an appeal. G. and/or 4. (b) posting of a cash or surety bond as provided in Section 6 of the 2005 NLRC Rules. it is obligatory on 191 . the last day shall be the next working day. On the other hand. if not corrected.  In three (3) legibly typewritten or printed copies.164856. The purpose of verification is to secure an assurance that the allegations in the pleading are true and correct and have been filed in good faith. Salenga. v. resolution or order was secured through fraud or coercion. [Antonio B. (c) a certificate of nonforum shopping. 129] LABOR LAW the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court. and  Accompanied by (a) proof of payment of the required appeal fee. the employee is not required to reimburse whatever salary he received for he is entitled to such. [Art. B..  In the form of a memorandum of appeal which shall state the grounds relied upon and the arguments in support thereof. the relief prayed for. If the decision. Regional director to NLRC: Decisions of the Regional director shall be final and executory unless appealed within 5 days from receipt thereof. [2005 NLRC Rules of Procedure] 2. If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter or Regional Director.

the NLRC is not sitting as a judicial court but as an administrative body charged with the duty to implement the order of the Secretary. in his opinion. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. shall be considered subsumed or absorbed by the certified case. 1990] Effects of Certification 1. and are relevant to or are proper incidents of the certified case. 263 (g) of the Labor Code. his answer or reply to appellant’s memorandum of appeal. Its function only is to formulate the terms and conditions of the CBA and cannot go beyond the scope of the order. 2. 4. under pain of contempt. 5.4 CERTIFIED CASES Definition Certified labor disputes are cases certified to the Commission for compulsory arbitration under Art. shall inform their counsels and the Division concerned of all cases pending with the Regional Arbitration Branches and the Voluntary Arbitrators relative or incident to the certified case before it. Upon certification. The parties to a certified case. there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest. Moreover. 6175 [Union of Filipino Employees v. Failure on the part of the appellee who was properly furnished with a copy of the appeal to file his answer or reply within the said period may be construed as a waiver on his part to file the same. [Art. This is the clear intention of the legislative body in enacting Art. 263] Function of the NLRC When sitting in a compulsory arbitration certified to by the Secretary of Labor. the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. The 2011 NLRC Rules and Procedures] When. When a certified labor dispute involves a business entity with several workplaces B. all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. NLRC. once the appeal is perfected in accordance with these Rules.A. [§2. If a work stoppage has already taken place at the time of the certification. the Commission shall limit itself to reviewing and deciding only the specific issues that were elevated on appeal. notwithstanding the filing of any motion for reconsideration of the certification order nor the nonresolution of any such motion which may have been duly submitted to the Office of the Secretary of Labor and Employment. the Commission is further tasked to act within the 192 . 263 paragraph (g) of the Labor Code.UP LAW BOC LABOR RELATIONS where the appeal was filed. except where the certification order specifies otherwise the issues submitted for arbitration which are already filed or may be filed. the intended or impending strike or lockout is automatically enjoined. 3. but would also have favorable implications to the community and to the economy as a whole. and shall be decided by the appropriate Division of the Commission. as amended by Section 27 of R. LABOR LAW earliest time possible and with the end in view that its action would not only serve the interests of the parties alone. (4) Subject to the provisions of Article 218 of the Labor Code. not later than 10 calendar days from receipt thereof. All cases between the same parties.

2011 NLRC Rules and Procedures] Effects of Defiance Non-compliance with the certification order of the SOLE shall be considered as an illegal act committed in the course of the strike or lockout and shall authorize the Commission to enforce the same under pain of immediate disciplinary action. 2011 NLRC Rules and Procedures] C. 1990] C. All certified cases shall be resolved by the Commission within 60 calendar days from receipt of the complete records by the assigned Commissioner. 5. Execution of Judgment Upon issuance of the entry of judgment. [Sec. on all inter-union and intra-union conflicts. if any. 4. except those arising from the implementation or interpretation of collective bargaining agreements which shall be the Procedure in certified cases a. unless the certification order provides otherwise. When there is no need to conduct a clarificatory hearing. 193 . damages and/or other affirmative relief. b." [Union of Filipro Employees v.1 JURISDICTION APPELLATE) (ORIGINAL AND The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor and Employment shall have original and exclusive authority to act. and all disputes. [Section 3. within 5 calendar days from receipt of the records. requiring them to appear and submit additional evidence. NLRC. [Sec. even criminal prosecution against the liable parties. [Sec.UP LAW BOC LABOR RELATIONS located in different regions. including dismissal or loss of employment status or payment by the lockingout employer of backwages. 2011 NLRC Rules and Procedures] LABOR LAW which shall include the position papers of the parties and the order of the SOLE denying the motion for reconsideration of the certification order. may cause the execution of the judgment in the certified case. the Division having territorial jurisdiction over the principal office of the company shall acquire jurisdiction to decide such labor dispute. c. the Commission motu propio or upon motion by the proper party. without jeopardizing national interests. 2011 NLRC Rules and Procedures] The Commission may also seek the assistance of law enforcement agencies to ensure compliance and enforcement of its orders and resolutions. if any. the Commission shall. BUREAU OF LABOR RELATIONS – MED-ARBITERS Strict Compliance of Assumption and Certification Orders The Secretary's assumption and certification orders being executory in character are to be strictly complied with by the parties even during the pendency of a petition questioning their validity for this extraordinary authority given by law to the Secretary of Labor is "aimed at arriving at a peaceful and speedy solution to labor disputes. grievances or problems arising from or affecting labor-management relations in all workplaces whether agricultural or nonagricultural. the Commission shall resolve all certified cases within 30 calendar days from receipt by the assigned Commissioner of the complete records. issue a notice to be served on the parties through the fastest means available. at their own initiative or upon request of either or both parties. 6. No motion for extension or postponement shall be entertained. Where a clarificatory hearing is needed.

to hear and decide any matter involving the recovery of wages and other monetary claims and benefits. MEDIATION Conciliation A mild form of intervention by a neutral third party.1 JURISDICTION Small money claims Recovery of wages. arising from employer-employee relations: Provided.1 NATURE OF PROCEEDINGS Conciliation and mediation is nonlitigious/non-adversarial.3 PREVENTIVE MEDIATION D. relying on his persuasive expertise. the remedy of the aggrieved party is to seasonably avail of the special civil action of certiorari under Rule 65 of the Rules of Court. owing to an employee or person employed in domestic or household service or househelper under this Code. and expeditious. and generally being a good fellow who tries to keep things calm and forward-looking in a tense situation. carrying messages back and forth between the parties. wherein the CM advises the parties or offers solutions or alternatives to the problems with the end in view of assisting them towards voluntarily reaching their own mutually acceptable settlement of the dispute. [Art. Hence. the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered. Appellate Jurisdiction 1) BLR has the power to review the decisions of the Regional Director 2) Decisions rendered through its appellate power are final and executory. the parties find it more expedient to fully ventilate their respective positions without running around with legal technicalities and. delivers messages back and forth between the parties. The Bureau shall have fifteen (15) calendar days to act on labor cases before it. contain or prevent its degeneration into a full blown dispute through amicable settlement. Mediation C-M assists parties to voluntarily reach mutually acceptable settlement. the Conciliator-Mediator.2 CONCILIATION VS. simple money claims and other benefits. Under this informal set-up. NATIONAL CONCILIATION AND MEDIATION BOARD Preventive mediation case — refers to the potential or brewing labor dispute which is the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties in order to remedy.UP LAW BOC LABOR RELATIONS subject of grievance procedure and/or voluntary arbitration. including legal interest. less expensive. subject to extension by agreement of the parties. Conciliation C-M facilitates disputants to keep things calm. the Conciliator-Mediator. DOLE REGIONAL DIRECTORS E. afford them wider latitude of possible approaches to the problem. That such complaint does not include a claim for reinstatement: D. D. 232] LABOR LAW Mediation A mild intervention by a neutral third party. in the course thereof. D. 194 . E. facilitating other procedural niceties. —Upon complaint of any interested party. through summary proceeding and after due notice. takes an active role in assisting parties by trying to keep disputants talking.

except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. [Art. shall be held as a special fund of the Department of Labor and Employment to be used exclusively for the amelioration and benefit of workers. LABOR LAW may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law. on order of the Secretary of Labor and Employment or the Regional Director directly to the employee or househelper concerned. the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. DOLE SECRETARY The Secretary of Labor and Employment or his duly authorized representative is hereby empowered to inquire into the financial activities of legitimate labor organizations upon the filing of a complaint under oath and duly supported by the written consent of at least twenty percent (20%) of the total membership of the labor organization concerned and to examine their books of accounts and other records to determine F.000). at any time. found owing to any employee or househelper under this Code. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders. 129] The Secretary of Labor or his duly authorized representatives may. Any such sum not paid to the employee or househelper. to question any employee and investigate any fact. The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same. inspect the premises. and shall be paid. Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary. including legal interest. condition or matter which 195 . and in cases where the relationship of employeremployee still exists. and act on violation of any provisions of this Title. wage order or rules and regulations issued pursuant thereto. 37] F. shall have access to employer’s records and premises at any time of the day or night whenever work is being undertaken therein.UP LAW BOC LABOR RELATIONS Provided. including labor regulation officers. books of accounts and records of any person or entity covered by this Title. because he cannot be located after diligent and reasonable effort to locate him within a period of three (3) years.1 VISITORIAL AND ENFORCEMENT POWERS The Secretary of Labor and Employment or his duly authorized representatives. 128] Any sum thus recovered on behalf of any employee or househelper pursuant to this Article shall be held in a special deposit account by. [Art. further. That the aggregate money claims of each employee or househelper do not exceed five thousand pesos (P5. require it to submit reports regularly on prescribed forms. *** The Secretary of Labor and Employment or his duly authorized representative may supervise the payment of unpaid wages and other monetary claims and benefits. and the right to copy therefrom. [Art.

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F.5 VOLUNTARY ARBITRATION POWERS

compliance or non-compliance with the law
and to prosecute any violations of the law and
the union constitution and by-laws: Provided,
That such inquiry or examination shall not be
conducted during the sixty (60)-day freedom
period nor within the thirty (30) days
immediately preceding the date of election of
union officials. [Art. 280]

Before or at any stage of the compulsory
arbitration process, the parties may opt to
submit their dispute to voluntary arbitration.
[Art. 269 (h)]
The Secretary of Labor and Employment […]
shall decide or resolve the dispute […]. [Art.
269 (i)]

F.2 POWER TO SUSPEND/EFFECTS OF
TERMINATION

G. GRIEVANCE MACHINERY AND
VOLUNTARY ARBITRATION

The Secretary of the Department of Labor and
Employment may suspend the effects of the
termination pending resolution of the dispute
in the event of a prima facie finding by the
appropriate official of the Department of Labor
and Employment before whom such dispute is
pending that the termination may cause a
serious labor dispute or is in the
implementation of a mass lay-off. [Art. 283 (b)]

G.1 SUBJECT MATTER OF GRIEVANCE
Grievance is any question by either the ER or
the union regarding the interpretation or
application of the CBA or company personnel
policies or any claim by either party that the
other party is violating any provisions of the
CBA or company personnel policies.

F.3 ASSUMPTION OF JURISDICTION

It is a complaint or dissatisfaction arising from
the interpretation or implementation of the
CBA and those arising from interpretation or
enforcement of personnel policies.

When in his opinion, there exist a labor dispute
causing or likely to cause a strike or lockout in
an industry indispensable to the national
interest, the SOLE may assume jurisdiction
over the dispute and decide it or certify the
same to the Commission for compulsory
arbitration.[Art. 269 (g)]

Grievance Machinery
It refers to the mechanism for the adjustment
and resolution of grievances. It is part of the
continuing process of collective bargaining.

F.4 APPELLATE JURISDICTION
a. Orders issued by the duly authorized
representative of the SOLE under Art. 128
may be appealed to the latter.
b. Denial of application for union registration
or cancellation of union registration
originally rendered by the BLR may be
appealed to the SOLE (if originally
rendered by the Regional Office, appeal
should be made to the BLR)
Decisions of the Med-Arbiter in certification
election cases are appealable to the SOLE
(decisions of med-arbiters in intra-union
disputes are appealable to the BLR) [Art. 259]

G.2 VOLUNTARY ARBITRATOR
I. JURISDICTION
Exclusive and Original Jurisdiction Over
Grievances
The VA or panel of VAs shall have original and
exclusive jurisdiction to hear and decide all
unresolved grievances.
Violations of a CBA, except those which are
gross in character, shall no longer be treated
as ULP and shall be resolved as grievances
under the CBA.
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II. PROCEDURE
[IRR, Book V, Rule XI]
Hearing
All parties to the dispute shall be entitled to
attend the arbitration proceedings. The
attendance of any third party or the exclusion
of any witness from the proceedings shall be
determined by the VA or panel of Vas. Hearing
may be adjourned for cause or upon
agreement by the parties.

Note: Gross violations of CBA shall mean
flagrant and/or malicious refusal to comply
with the economic provisions of such
agreement.
The Commission, its Regional Offices and the
Regional Directors of the DOLE shall not
entertain disputes, grievances or matters
under the exclusive and original jurisdiction of
the Voluntary Arbitrator or panel of Voluntary
Arbitrators and shall immediately dispose and
refer the same to the grievance machinery or
Voluntary Arbitration provided in the Collective
Bargaining Agreement. [Art. 261]

Days to render an award/decision
Unless the parties agree otherwise, it shall be
mandatory for the VA or panel of Vas to render
an award or decision within 20 calendar days
from the date of submission of the dispute to
voluntary arbitration.

Other Labor Disputes
The VA or panel of VAs, upon agreement of the
parties, shall also hear and decide all other
labor disputes including ULP and bargaining
deadlocks. [Art. 268]

Form of award/decision
The award or decision of the VA or panel of
VAs must state in clear, concise and definite
terms the facts, the law and/contract upon
which it is based.

Even if the specific issue brought before the
arbitrators merely mentioned the question of
“whether an employee was discharged for just
cause,” they could reasonably assume that
their
powers
extended
beyond
the
determination thereof to include the power to
reinstate the employee or to grant back wages.
In the same vein, if the specific issue brought
before the arbitrators referred to the date of
regularization of the employee, law and
jurisprudence gave them enough leeway as
well as adequate prerogative to determine the
entitlement of the employees to higher
benefits in accordance with the finding of
regularization. [Manila Pavilion Hotel, etc. vs.
Henry Delada, 2011]

Finality
It shall be final and executory after 10 calendar
days from the receipt of the copy of the award
or decision by the parties.
Execution of award/decision
Upon motion of any interested party, the
Voluntary Arbitrator or panel of Voluntary
Arbitrators or the Labor Arbiter in the region
where the movant resides, in case of the
absence or incapacity of the Voluntary
Arbitrator or panel of Voluntary Arbitrators, for
any reason, may issue a writ of execution
requiring either the sheriff of the Commission
or regular courts or any public official whom
the parties may designate in the submission
agreement to execute the final decision, order
or award. [Art. 262-A]

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III. REMEDIES

LABOR LAW

petition in the proper court, alleging the facts
with certainty and praying that judgment be
rendered commanding the respondent to
desist from further proceedings in the action or
matter specified therein, or otherwise granting
such incidental reliefs as law and justice may
require.

The decision of a Voluntary Arbitrator or panel
of Voluntary Arbitrators is appealable by
ordinary appeal under Rule 43 of the Rules of
Civil Procedure directly to the Court of
Appeals. [Rule 43 §1, RULES OF COURT]

H. COURT OF APPEALS

The petition shall likewise be accompanied by
a certified true copy of the judgment, order or
resolution subject thereof, copies of all
pleadings and documents relevant and
pertinent thereto, and a sworn certification of
non-forum shopping as provided in the third
paragraph of section 3, Rule 46.

H.1 RULE 65, RULES OF COURT
Section 1. Petition for certiorari. — When any
tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in
excess its or his jurisdiction, or with grave
abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or
any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved
thereby may file a verified petition in the
proper court, alleging the facts with certainty
and praying that judgment be rendered
annulling or modifying the proceedings of such
tribunal, board or officer, and granting such
incidental reliefs as law and justice may
require.

Section 3.Petition for mandamus. — When any
tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act
which the law specifically enjoins as a duty
resulting from an office, trust, or station, or
unlawfully excludes another from the use and
enjoyment of a right or office to which such
other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby
may file a verified petition in the proper court,
alleging the facts with certainty and praying
that judgment be rendered commanding the
respondent, immediately or at some other time
to be specified by the court, to do the act
required to be done to protect the rights of the
petitioner, and to pay the damages sustained
by the petitioner by reason of the wrongful acts
of the respondent.

The petition shall be accompanied by a
certified true copy of the judgment, order or
resolution subject thereof, copies of all
pleadings and documents relevant and
pertinent thereto, and a sworn certification of
non-forum shopping as provided in the third
paragraph of section 3, Rule 46.
Section 2.Petition for prohibition. — When the
proceedings of any tribunal, corporation,
board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions,
are without or in excess of its or his jurisdiction,
or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no
appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law,
a person aggrieved thereby may file a verified

I. SUPREME COURT
[A]ll references in the amended Section 9 of
B.P. No. 129 to supposed appeals from the
NLRC to the Supreme Court are interpreted
and hereby declared to mean and refer to
petitions for certiorari under Rule 65.
Consequently, all such petitions should hence
forth be initially filed in the Court of Appeals in
strict observance of the doctrine on the
198

UP LAW BOC

LABOR RELATIONS

hierarchy of courts as the appropriate forum for
the relief desired. [St. Martin Funeral Home vs.
NLRC, 1998]

LABOR LAW

(1) Money Claims
Money claims. – All money claims arising from
employer-employee relations accruing during
the effectivity of this Code shall be filed within
three (3) years from the time the cause of
action accrued; otherwise they shall be forever
barred.

I.1 RULE 45, RULES OF COURT
Section 1. Filing of petition with Supreme Court.
— A party desiring to appeal by certiorari from
a judgment or final order or resolution of the
Court of Appeals, the Sandiganbayan, the
Regional Trial Court or other courts whenever
authorized by law, may file with the Supreme
Court a verified petition for review on certiorari.
The petition shall raise only questions of law
which must be distinctly set forth.

All money claims accruing prior to the
effectivity of this Code shall be filed with the
appropriate entities established under this
Code within one (1) year from the date of
effectivity, and shall be processed or
determined
in
accordance
with
the
implementing rules and regulations of the
Code; otherwise, they shall be forever barred.

Appeal from CA to SC should be under Rule 45
(Petition for Review on Certiorari) and not Rule
65 (Special Civil Action for Certiorari). [Sea
Power Shipping Enterprises, Inc. vs. CA, G. R.
No. 138270, 2001]

Workmen's compensation claims accruing
prior to the effectivity of this Code and during
the period from November 1, 1974 up to
December 31, 1974, shall be filed with the
appropriate regional offices of the Department
of Labor not later than March 31, 1975;
otherwise, they shall forever be barred. The
claims shall be processed and adjudicated in
accordance with the law and rules at the time
their causes of action accrued. [Art. 297]

Since the Court of Appeals had jurisdiction
over the petition under Rule 65, any alleged
errors committed by it in the exercise of its
jurisdiction would be errors of judgment which
are reviewable by timely appeal and not by a
special civil action of certiorari. If the aggrieved
party fails to do so within the reglementary
period, and the decision accordingly becomes
final and executory, he cannot avail himself of
the writ of certiorari, his predicament being the
effect of his deliberate inaction. [Tirazona v Phil
EDS Techno-Service Inc, 2009]

The Labor Code has no specific provision on
when a monetary claim accrues. Thus, again
the general law on prescription applies. Article
1150 of the Civil Code provides that:
Article 1150. The time for prescription for all
kinds of actions, when there is no special
provision which ordains otherwise, shall be
counted from the day they may be brought.

J. PRESCRIPTION OF ACTIONS
No claim for compensation shall be given due
course unless said claim is filed with the
System within three (3) years from the time the
cause of action accrued. [Art. 201, as amended
by Section 5, Presidential Decree No. 1921]

The day the action may be brought is the day a
claim started as a legal possibility. In the
present case, the day came when petitioner
learned of Asiakonstrukt’s deduction from his
salary of the amount of advances he had
received but had, by his claim, been settled,
199

having been first obtained in the preceding paragraph. May 1. Inc. the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Provided. 296] (2) Illegal dismissal In illegal dismissal cases. [Victory Liner. 290] (5) Prescriptive Period of Illegal Recruitment Cases Section 7. however. 1980. 6715. All unfair labor practice arising from Book V shall be filed with the appropriate agency within one (1) year from accrual of such unfair labor practice. March 21. detention and/or trial of the plaintiff. 24. et al. 1755. hence. Republic Act No. 2007] Concept of unfair labor practice and procedure for prosecution thereof. The following actions must be instituted within four years: (1) Upon an injury to the rights of the plaintiff.. [Art. [As amended by PD No. when the action arises from or out of any act. as amended by Batas Pambansa Bilang 70. However. otherwise. [Art. [RA 8040] 200 . (2) Upon a quasi-delict. 253. 2009] LABOR LAW (3) Unfair Labor Practice Offenses penalized under this Code and the rules and regulations issued pursuant thereto shall prescribe in three (3) years. This is based on Article 1146 of the New Civil Code which states that actions based upon an injury to the rights of the plaintiff must be brought within four years. Dec.Prescription. 1989] Article 1146. [Art. the employee concerned is given a period of four years from the time of his dismissal within which to institute a complaint. that the final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth. 1980 and later further amended by Section 19. they shall be forever barred. or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest. v Race. that illegal recruitment cases involving economic sabotage shall prescribed in twenty (20) years. it is assumed that he learned of it at the time he received his monthly paychecks. [Anabe v Asian Const. Illegal recruitment cases under this Rule shall prescribe in five (5) years.UP LAW BOC LABOR RELATIONS the same having been reflected in his payslips. During the pendency of such administrative proceeding. however. the same must be brought within one (1) year. – […] No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair labor practice was committed. Provided. activity.] (4) Offenses penalized by the Labor Code and IRR issued pursuant thereto Offenses penalized under this Code and the rules and regulations issued pursuant thereto shall prescribe in three (3) years.

Those involving wages. exemplary and other forms arising from ER-EE relations. problems arising from or affecting labormanagements relations in all workplaces. Inter-union and intra-union disputes Applications for registration of unions Certification election and representation cases Rule 65 DEPARTMENT OF LABOR AND EMPLOYMENT SECRETARY Assumption of jurisdiction over disputes. moral.UP LAW BOC LABOR RELATIONS LABOR LAW SUPREME COURT Rule 45.000. Disputes. causing or likely to cause a strike/lockout in an industry indispensable to the national interest. 3. Those decided through original jurisdiction can be appealed to the DOLE Secretary. Rule 65 BUREAU OF LABOR RELATIONS Original and exclusive authority to act on: 1. 3. Claims for actual. 4. 5. National Conciliation and Mediation Board 1. Original and exclusive jurisdiction to hear and decide: All unresolved grievances Interpretation and implementation of CBA Cases arising from interpretation and enforcement of company personnel policies Other labor disputes including ULP and bargaining deadlocks upon agreement by the parties. Medicare and maternity benefits. Labor Relations Division in the Regional Offices of the DOLE Department of Labor and Employment Regional Director Money claims and benefits arising from ER-EE relations not accompanied by claim for reinstatement and not exceeding P5. except claims for Employee Compensation. Petition for Assumption of jurisdiction or certification of jurisdiction or certification to NLRC of strike/lockout disputes. 2. rates of pay. Termination disputes 3. in his opinion. Any violation the Labor Code provisions on Prohibited Activities including questions on the legality of strikes and lockouts. . hours of work and other terms and conditions of employment IF accompanied with a claim for reinstatement 4. Cases decided by the BLR on appeal are final and executory. Unfair Labor Practices 2. Except: those from implementation or interpretation of CBAs. 3. All claims arising from ER-EE relations involving an amount exceeding P5. 1. 2. 6. Note: The BLR has jurisdiction over cases involving Federations and National Unions 201involving independently registered unions and chartered The LRD has jurisdiction over cases locals. 2. All inter-union and intra-union conflicts 2. 1. Rules of Court COURT OF APPEALS Rule 43 Rule 65 NATIONAL LABOR RELATIONS COMMISSION VOLUNTARY ARBITRATOR OR PANEL OF VOLUNTARY ARBITRATORS LABOR ARBITERS Original and Exclusive Jurisdiction to decide cases of: 1. Notice of strike/lockout Any other disputes submitted by the parties for preventive mediation proceedings. grievances.000. SSS.