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FUNDAMENTAL PRINCIPLES AND POLICIES

LABOR LAW 3. Social legislation It includes


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

A: The law governing the rights and duties of the A: Labor legislation is sometimes distinguished from
employer and employees with respect to: social legislation by the former referring to labor
statutes, like Labor Relations Law and Labor
1. The terms and conditions of Standards, and the latter to Social Security Laws.
employment and Labor legislation focuses on the rights of the worker
2. Labor disputes arising from in the workplace.
collective bargaining (CB) respecting such
terms and conditions. Social legislation is a broad term and may include
not only laws that give social security protection,
Q: What is the purpose of labor legislation? but also those that help the worker secure housing
and basic necessities. The Comprehensive Agrarian
A: Labor legislation is an exercise of police power. Reform Law could also be considered a social
The purpose of labor legislation is to regulate the legislation. All labor laws are social legislation, but
relations between employers (Ers) and employees not all social legislation is labor law. (1994 Bar
(Ees) respecting the terms and conditions of Question)
employment, either by providing for certain
standards or for a legal framework within which Q: What are the sources of labor laws?
better terms and conditions of work could be
negotiated through CB. It is intended to correct the A:
injustices inherent in ErEe relationship. (2006 Bar 1. Labor Code and other related
Question) special legislation
2. Contract
Q: What are the classifications of labor law? 3. Collective Bargaining Agreement
4. Past practices
A: 5. Company policies
1. Labor standards The minimum
terms and conditions of employment A. FUNDAMENTAL PRINCIPLES AND POLICIES
prescribed by existing laws, rules and
regulations relating to wages, hours of 1.CONSTITUTIONAL PROVISIONS
work, costof living allowance and other
monetary and welfare benefits. (Batong Q: What are the constitutional mandates with
Buhay Gold regard labor laws?
Mines, Inc. v. Dela Serna, G.R. No. 86963,
August 6,1999) A:
th
e.g. 13 month pay 1. Sec. 3, Art. XIII The State shall
2. Labor relations Defines and afford full protection to labor, local and
regulates the status, rights and duties, and overseas, organized and unorganized, and
the institutional mechanisms, that govern promote full employment and equality of
the individual and collective interactions employment opportunities for all.
of Ers, Ees, or their representatives. It is
concerned with the stabilization of It shall guarantee the rights of all workers
relations of Er and Ees and seek to to selforganization, collective bargaining
forestall and adjust the differences and negotiations, and peaceful concerted
between them by the encouragement of activities, including the right to strike in
collective bargaining and the settlement accordance with law. They shall be
of labor disputes through conciliation, entitled to security of tenure, humane
mediation and arbitration. conditions of work, and a living wage.
e.g. Additional allowance pursuant to They shall also participate in policy and
CBA decisionmaking processes affecting their

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

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


law. investments.

The State shall promote the principle of


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

2. Sec. 9, Art. II The State shall 11. Sec. 8, Art. III The right of the
promote a just and dynamic social order people, including those employed in the
that will ensure the prosperity and public and private sectors, to form unions,
independence of the nation and free the associations, or societies for purposes not
people from poverty through policies that contrary to law shall not be abridged.
provide adequate social services, promote
full employment, a rising standard of 12. Sec. 1, Art. XIII The Congress
living, and an improved quality of life for shall give highest priority to the
all. enactment of measures that protect and
enhance the right of all the people to
3. Sec. 10, Art II The State shall human dignity, reduce social, economic,
promote social justice in all phases of and political inequalities, and remove
national development. cultural inequities by equitably diffusing
wealth and political power for the
4. Sec. 11, Art II The State values common good.
the dignity of every human person and
guarantees full respect for human rights. To this end, the State shall regulate the
acquisition, ownership, use, and
5. Sec. 13, Art. II The State disposition of property and its increments.
recognizes the vital role of the youth in
nationbuilding and shall promote and 13. Sec. 2, Art. XIII The promotion
protect their physical, moral, spiritual, of social justice shall include the
intellectual, and social wellbeing. It shall commitment to create economic
inculcate in the youth patriotism and opportunities based on freedom of
nationalism, and encourage their initiative and selfreliance.
involvement in public and civic affairs.
14. Sec. 14, Art. XIII The State shall
6. Sec. 14, Art. II The State protect working women by providing safe
recognizes the role of women in nation and healthful working conditions, taking
building, and shall ensure the into account their maternal functions, and
fundamental equality before the law of such facilities and opportunities that will
women and men. enhance their welfare and enable them to
realize their full potential in the service of
the nation.

7. Sec. 18, Art. II The State Q: What is the State policy on labor as found in the
affirms labor as a primary social economic constitution (Sec. 3, Art. XIII)?
force. It shall protect the rights of workers
and promote their welfare. A:
1. Afford full protection to labor
8. Sec. 20, Art. II The State 2. Promote full employment
recognizes the indispensable role of the 3. Ensure equal work
private sector, encourages private opportunities regardless of sex, race, or
enterprise, and creed

LABOR LAW TEAM:


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

4. Assure the rights of workers to self safety and decent living for the
organization, security of tenure, just and laborer.
humane conditions of work, participate in d. Art. 1703 No contract which
policy and decisionmaking processes practically amounts to involuntary
affecting their right and benefits servitude, under any guise
5. Regulate the relations between whatsoever, shall be valid.
workers and employers
2. Revised Penal Code
Q: What are the basic rights of workers Art. 289 Formation, maintenance and
guaranteed by the Constitution (Sec. 3, Art. XIII)? prohibition of combination of capital or
labor through violence or threats. Any
A: person who, for the purpose of
1. Security of tenure organizing, maintaining or preventing
2. Receive a living wage coalitions or capital or labor, strike of
3. Humane working conditions laborers or lockout of employees, shall
4. Share in the fruits of production employ violence or threats in such a
5. Organize themselves degree as to compel or force the laborers
6. Conduct collective bargaining or or employers in the free and legal exercise
negotiation with management of their industry or work, if the act shall
7. Engage in peaceful concerted not constitute a more serious offense in
activities including strike accordance with the provisions of the
8. Participate in policy and decision RPC.
making processes
3. Special Laws
Q: What is the principle of nonoppression? a. GSIS Law
th
b. 13 Month Pay Law
A: The principle mandates capital and labor not to c. Retirement Pay Law
act oppressively against each other or impair the d. SSS Law
interest and convenience of the public. The e. Paternity Leave Act
protection to labor clause in the Constitution is not f. Anti Child Labor Act
designed to oppress or destroy capital. (Capili v. g. Anti Sexual Harassment Act
NLRC, G.R. No. 117378, Mar. 26, 1997) h. Magna Carta for Public Health
Workers
2.NEW CIVIL CODE AND OTHER LAWS i. Solo Parents Welfare Act of 2000
j. National Health Insurance Act as
Q: What are other related laws to labor? amended by R.A. 9241
k. Migrant Workers and Overseas
A: Filipinos Act of 1995 as amended by
1. Civil Code RA 10022
a. Art. 1700 The relations l. PERA Act of 2008
between capital and labor are not m. Home Development Mutual
merely contractual. They are so Fund Law of 2009
impressed with public interest that n. The Magna Carta of Women
labor contracts must yield to the o. Comprehensive Agrarian Reform
common good. Therefore, such Law as amended by R.A. 9700
contracts are subject to the special
laws on labor unions, collective 3.LABOR CODE
bargaining, strikes and lockouts,
closed shop, wages, working Q: What is the aim of labor laws?
conditions, hours of labor and similar
subjects. A: The justification of labor laws is social justice.
b. Art. 1701 Neither capital Social justice is neither communism, nor
nor labor shall act oppressively despotism, nor atomism, nor anarchy, but the
against the other, or impair the humanization of laws and the equalization of social
interest or convenience of the public. and economic force by the State so that justice in its
c. Art. 1702 In case of rational and objectively secular conception may at
doubt, all labor legislation and all least be approximated. Social justice means the
labor contracts shall be construed in promotion of the welfare of all the people, the
favor of the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

adoption by the government of measures calculated A: No, the Constitution provides that the State shall
to insure economic stability of all the competent afford full protection to labor. Furthermore, the
elements of society, through the maintenance of a State affirms labor as a primary economic force. It
proper economic and social equilibrium in the shall protect the rights of workers and promote
interrelations of the members of the community, their welfare. (1998 Bar Question)
constitutionally, through the adoption of measures
legally justifiable, or extra constitutionally, through a.Art. 3. Declaration of Basic Policy
the exercise of powers underlying the existence of
all governments on the timehonored principle of Q: What is the policy of the State as regards labor
salus populi est suprema lex. (Calalang v. Williams, as found in the Labor Code (Art. 12)?
G.R. No. 47800, Dec. 2, 1940)
A:
Q: What is compassionate justice? 1. Promote and maintain a State of full
employment through improved
A: It is disregarding rigid rules and giving due manpower training, allocation and
weight to all equities of the case. utilization;
2. Protect every citizen desiring to
e.g: Employee validly dismissed may still be given work locally or overseas by securing for
severance pay. him the best possible terms and
conditions of employment;
Q: How should doubts in the 3. Facilitate a free choice of
implementation and interpretation of the available employment by persons seeking
Labor Code (LC) and its Implementing work in conformity with the national
Rules and Regulations (IRR) be resolved? interest;
4. Facilitate and regulate the
A: They should be resolved in favor of labor. movement of workers in conformity with
the national interest;
Q: What is the concept of liberal approach in 5. Regulate the employment of
interpreting the LC and its IRR? aliens, including the establishment of a
registration and/or work permit system;
A: The workers' welfare should be the paramount 6. Strengthen the network of
consideration in interpreting the LC and its IRR. public employment offices and rationalize
This is rooted in the constitutional mandate to the participation of the private sector in
afford full protection to labor. (PLDT v. NLRC, G.R. the recruitment and placement of
No. 111933, July 23, 1997). It underscores the workers, locally and overseas, to serve
policy of social justice to accommodate the national development objectives;
interests of the working class on the humane 7. Ensure careful selection of
justification that those who have less in life shall Filipino workers for overseas employment
have more in law. (PAL v. Santos, G.R. No. 77875, in order to protect the good name of the
Feb. 4, 1993). (2006 Bar Question) Philippines abroad.

Q: Art. 4 of the LC provides that in case of Q: What are the reasons for affording greater
doubt in the implementation and protection to employees?
interpretation of the provisions of the LC
and its IRR, the doubt shall be resolved in A:
favor of labor. Art. 1702 of the Civil Code 1. Greater supply than demand for
also provides that in case of doubt, all labor; and
labor legislation and all labor contracts 2. Need for employment by labor
shall be construed in favor of the safety comes from vital and desperate necessity.
and decent living of the laborer. (Sanchez v. Harry Lyons Construction Inc.,
G.R. L2779, Oct. 18, 1950)
MicaMara Company assails the validity of these
statutes on the ground that they violate its Q: Are all labor disputes resolved in favor of labor?
constitutional right to equal protection of the laws.
Is the contention of Mica Mara Company tenable? A: No. The law also recognizes that management
Discuss fully. has rights which are also entitled to respect and
enforcement in the interest of fair play. (St. Lukes
Medical Center Ees Assn v. NLRC, G.R. No. 162053,
Mar. 7, 2007)

LABOR LAW TEAM:


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

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

1. One employed in an agricultural


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

Q: What is the test in determining whether a GOCC A: Any person acting in the interest of an Er,
is subject to the Civil Service Law? directly or indirectly. The term does not include a
labor organization (LO) or any of its officers and
A: It is determined by the manner of their creation. agents, except when acting as an Er. (Art.212[e])
Govt corporations that are created by special
(original) charter from Congress are subject to Civil An Er is defined as any person or entity that
Service rules, while those incorporated under the employs the services of others; one for whom work
General Corporation Law are covered by the LC. and who pays their wages of salaries; any person
acting in the interest of an Er; refers to the
Q: Who is an agricultural/farm worker? enterprise where the LO operates or seeks to
operate. (Sec.1[s], Rule I, Book V, IRR)
A:
Q: When is a labor organization deemed an Er?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
2. As to subject matter The test depends on
whether it concerns terms or conditions of employment
A: When it is acting as such in relation to or association
persons rendering services under hire,
particularly in connection with its
activities for profit or gain.

Note: The mere fact that respondent is a labor union


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

Q: Who is an employee (Ee)?

A:
1. Any person in the employ of the
Er
2. Any individual whose work has
ceased as a result of or in connection with
any current labor dispute or because of
any unfair labor practice if he has not
obtained any other substantially
equivalent and regular employment
3. One who has been dismissed
from work but the legality of dismissal is
being contested in a forum of appropriate
jurisdiction. (D.O. No. 4003, Mar. 15,
2003)
Note: The term shall not be limited to the Ees of a
particular Er unless the LC explicitly states.

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


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

Q: What is a labor dispute?

A: Includes any controversy or matter


concerning:

1. Terms and conditions of


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

Q: What are the tests on whether a


controversy falls within the definition of
a labor dispute?

A:

1. As to nature It depends on
whether the dispute arises from ErEe
relationship, although disputants need
not be proximately Er or Ee of
another.
discrimination due to union
activities; company unionism; ULP,
or representation of persons strike or lockout; union members
in negotiating, fixing, complaint against union officers
maintaining or changing b. Representation disputes E.g.
terms or conditions of Uncertainty as to which is the
employment. majority union; determination of
appropriate CB unit; contests for
recognition by different sets of
Q: What are the kinds of labor disputes? officers in the same union
c. Bargaining disputes E.g.
A: Refusal to bargain; bargaining in bad
1. Labor standard disputes faith; bargaining deadlock; economic
a. Compensation strike or lockout
E.g. Underpayment of d. Contract administration or
minimum wage; personnel policy disputes E.g. Non
stringent output quota; compliance with CBA provision (ULP
illegal pay deductions if gross non compliance with
b. Benefits E.g. economic provisions); disregard of
Nonpayment of grievance machinery; non
holiday pay, OT pay or observance of unwarranted use of
other benefits union security clause; illegal or
c. Working unreasonable personnel
Conditions E.g. management policies; violation of
Unrectified work nostrike/nolockout agreement
hazards e. Employment tenure disputes
E.g. Nonregularization of Ees; non
2. Labor relations disputes absorption of labor only contracting
staff; illegal termination; non
a. Organizational issuance of employment contract
right disputes/ULP
E.g. Coercion, restraint Q: Who are the parties to a dispute?
or interference in
unionization efforts;
reprisal or

LABOR LAW TEAM:


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

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

A: A: The Labor Organization designated or selected


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

A: Any conflict between and among legitimate labor Q: What is the extent of the workers right to
unions involving representation questions for the participate in policy and decisionmaking
purposes of CB or to any other conflict or dispute processes in a company?
between legitimate labor unions.
A: Such right refers not only to formulation of
Q: What is an intraunion dispute? corporate programs and policies but also to
participation in grievance procedures and voluntary
A: Any conflict between and among union modes of settling disputes.
members, grievances arising from any violation of
the rights and conditions of membership, violation Q: Explain the extent of the workers right to
of or disagreement over any provision of the unions participate in policy and decisionmaking process
constitution and bylaws, or disputes from as provided under Art. XIII, Sec. 13 of the 1987
chartering or affiliation of union. Constitution. Does it include membership in the
Board of Directors of a corporation?
Q: What are rights disputes?
A: No. In Manila Electric Company v. Quisumbing,
A: They are claims for violations of a specific right G.R. No. 127598, January 27, 1999, the SC
arising from a contract, i.e. CBA or company recognized the right of the union to participate in
policies. policy formulation and decision making process on
matters affecting the Union members rights, duties
Q: What are interest disputes? and welfare. However, the SC held that such
participation of the union in committees of Er
A: They involve questions on what should be Meralco is not in the nature of a comanagement
included in the CBA. Strictly speaking, the parties control of the business of Meralco. Impliedly,
may choose a voluntary arbitrator to decide on the therefore, workers participatory right in policy and
terms and conditions of employment, but this is decisionmaking processes does not include the
impracticable because it will be a value judgment of right to put a union member in the Corporations
the arbitrators and not of the parties. Board of Directors. (2008 Bar Question)
Q: What are contractnegotiation disputes?
Q: May an Er solicit questions, suggestions and
complaints from Ees even though the Ees are
A: These are disputes as to the terms of the CBA.
represented by a union?
Q: What are contractinterpretation disputes?
A: Yes, provided:
A: These are disputes arising under an existing CBA,
involving such matters as the interpretation and 1. The CB representative executes
application of the contract, or alleged violation of its an agreement waiving the right to be
provisions. present on any occasion when Ee
grievances are being adjusted by the Er;
f.Art. 255. Exclusive Bargaining Representation (EBR) and
and Workers Participation in Policy and Decision 2. Er acts strictly within the terms
Making of his waiver agreement.

Q: Who shall be the bargaining representative of Q: The hotel union filed a Notice of Strike with the
the Employees for purposes of collective NCMB due to ULP against the Diamond Hotel who
bargaining? refused to bargain with it. The hotel advised the
union that since it was not certified by the DOLE as
the exclusive bargaining agent, it could not be

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

recognized as such. Whether the Union may


bargain collectively?

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


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

Q: Are probationary Ees allowed to vote at the


time of the certification elections?

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


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

LABOR LAW TEAM:


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

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

B. RECRUITMENT AND PLACEMENT 3. Members of the diplomatic


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

A: Any member of the labor force, whether Q: Who are name hires?
employed or unemployed. (Art. 13 [a], LC)
A: They are individual workers who are able to
Q: What is recruitment and placement? secure contracts for overseas employment on their
own efforts and representations without the
A: assistance or participation of any agency. Their
1. Any act of canvassing, enlisting, hiring, nonetheless, shall pass through the POEA for
contracting, transporting, utilizing, hiring processing purposes. (Part III, Rule III, POEA Rules
or procuring workers; and Governing Overseas Employment as amended in
2. Includes referrals, contact services, 2002)
promising or advertising for employment,
locally or abroad, whether for profit or Q: What if employment is offered to only one
not. (Art. 13 [b],LC) person?

Q: What are the essential elements in A: Immaterial. The number of persons dealt with is
determining not an essential ingredient of the act of recruitment
whether one is engaged in and placement of workers. The proviso merely lays
recruitment/placement? down a rule of evidence that where a fee is
collected in consideration of a promise or offer of
A: It must be shown that: employment to 2 or more prospective workers, the
individual or entity dealing with them shall be
1. The accused gave the complainant deemed to be engaged in the act of recruitment and
the distinct impression that she had the placement. The words "shall be deemed" create
power or ability to send the complainant that presumption. (People v. Panis, G.R. L 58674
for work, 77, July 11, 1986)
2. Such that the latter was convinced
to part with his money in order to be so Q: What is a private employment agency?
employed. (People v. Goce, G.R. No.
113161, Aug. 29, 1995) A: Any person or entity engaged in the recruitment
and placement of workers for a fee which is
Q: Who is deemed engaged in recruitment and charged, directly or indirectly, from the workers or
placement? employers or both.

A: Any person or entity which, in any manner, Q: What is a private recruitment agency?
offers or promises for a fee employment to 2 or
more persons. (Art. 13[b], LC) A: It is any person or association engaged in the
recruitment and placement of workers without
Q: What is the rule in recruitment and charging any fee, directly or indirectly, from the
placement? workers or employers.

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


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

A: It is employment of a worker outside the and executory orders within the period of
Philippines. validity of its license
2. Violations of the conditions of license
Q: Who is an overseas Filipino worker 3. Engaging in acts of
(OFW)? misrepresentation for the purpose of
securing a license or renewal
A: A person who is to be engaged, is engaged or has 4. Engaging in the recruitment or
been engaged in a remunerated activity in a State of placement of workers to jobs harmful to
which he or she is not a citizen or on board a vessel the public health or morality or to the
navigating the foreign seas other than a dignity of the country. (Sec. 3, Rule I, Book
government ship used for military or non VI, Rules and
commercial purposes or on an installation located Regulations Governing Overseas
offshore or on the high seas; to be used Employment)
interchangeably with migrant worker. (Sec.2, R.A.
10022 amending R.A. 8042) Q: What are the grounds for suspension or
cancellation of license?
Q: Who is an emigrant?
A:
A: Any person, worker or otherwise, who emigrates 1. Prohibited acts under Art. 34
to a foreign country by virtue of an immigrant visa 2. Publishing job announcements
or resident permit or its equivalent in the country of w/o POEAs approval
destination. 3. Charging a fee which may be in
excess of the authorized amount before a
b.Illegal Recruitment, Art. 38 (Local), Sec. 6, Migrant worker is employed
Workers Act, RA 8042 4. Deploying workers w/o
processing through POEA
(a)License v. Authority 5. Recruitment in places outside its
authorized area. (Sec. 4, Rule II, Book IV,
Q: What is a license? POEA Rules)

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


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

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


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

LABOR LAW TEAM:


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

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

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


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

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


1. Unlawful for any official or Ee of 8042 or the Overseas Filipinos and Overseas
the: Migrant Workers Act?
a. DOLE
b. POEA A:
c. Overseas Workers Welfare
Administration (OWWA)
d. DFA LC (Art. 38)
e. Other govt agencies
involved in the implementation of
this Act
th
2. Their relatives within the 4 civil
degree of consanguinity or affinity, to
engage, directly or indirectly in the
business of recruiting migrant workers. Illegal
(Sec. 8, R.A. 8042) under Art. 38 means
any
activity
prohibited
under
committed by
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

licensees or non believed that her application for the renewal of


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

A: Illegal recruitment is defined by law as any


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

LABOR LAW TEAM:


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

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
RECRUITMENT AND PLACEMENT
Note: This joint and solidary liability imposed by
law against recruitment agencies and foreign Ers
A: is meant to assure the aggrieved worker of
immediate and sufficient payment of what is
ILLEGAL RECRUITMENT
due him. If the recruitment/placement agency is
a juridical being, the corporate officers and
directors and partners as the case may be, shall
Malum prohibitum, thus: themselves be jointly and solidarily liable with
the corporation or partnership for the claims
and damages. (Becmen Service Exporter and
1. Criminal
Promotion v. Cuaresma, G.R. Nos. 18297879,
April 7, 2009)
necessary
Q: What is the theory of imputed knowledge?
2. it is a crime which involves
A: A rule in insurance law that any
information material to the transaction,
either possessed by the

It is not required that it be

shown

wrongfully
himself

recruiter

NOTE: It

victims were deceived as they

relied

misrepresentation and scheme

that caused

their money

what they later discovered was

a vain hope of obtaining


employment abroad

Illegal recruitment and estafa cases may be filed


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

(c)Liabilities

Q: What is the liability of the private employment


agency and the principal or foreignbased
employer?

A: They are jointly and severally liable for any


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

A: No, the theory of imputed knowledge ascribes the Serrano filed with the LA a Complaint against
knowledge of the agent, Sunace, to the principal Gallant Maritime and Marlow for constructive
Taiwanese employer, not the other way around. The
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

dismissal and for payment of his money claims. the POEA or entities authorized by the Secretary of
The LA rendered a favorable decision to Serrano Labor.
awarding him $8,770.00, representing his salary
for 3 months of the unexpired portion of his Q: What is the ban on directhiring?
contract of employment applying R.A. 8042, Sec
10, par 5: A: GR: An Er may only hire Filipino
worker for overseas employment through
Money Claims. In case of termination of overseas POEA or entities authorized by DOLE.
employment without just, valid or authorized
cause as defined by law or contract, the workers XPN:
shall be entitled to the full reimbursement of his Direct hiring by
placement fee with interest of 12% per annum, 1. International organizations
plus his salaries for the unexpired portion of his 2. Name hires
employment contract or for 3 months for every 3. Members of the diplomatic organizations
year of the unexpired term, whichever is less. 4. Other Ers as may be allowed by DOLE

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

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


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

Furthermore, prior to R.A. 8042, all OFWs, A: GR: It shall be mandatory for all
regardless of contract periods or the unexpired OFWs to remit a portion of their foreign
portions thereof, were treated alike in terms of the exchange earnings to their families,
computation of their monetary benefits in case of dependents, and/or beneficiaries ranging
illegal dismissal. Their claims were subjected to a from 50% 80% depending on the workers
uniform rule of computation: their basic salaries kind of job. (Rule VIII, Book III, POEA Rules)
multiplied by the entire unexpired portion of their
employment contracts. The same applies local XPN:
workers with fixedterm employment. 1. The workers immediate family
members, beneficiaries and dependents
Thus, Serrano is entitled to his salaries for the entire are residing with him abroad
unexpired period of nine months and 23 days of his 2. Immigrants and Filipino
employment contract, pursuant to law and professionals and employees working with
jurisprudence prior to the enactment of RA 8042. the UN agencies or specialized bodies
(Serrano v. Gallant Maritime Services & Marlow 3. Filipino servicemen working in
Navigation Co., Inc., G.R. No. 167614, Mar.24, 2009) U.S. military installations. (Resolution No.
1 83, InterAgency Committee for
c.Direct Hiring Implementation of E.O. 857)

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

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


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

LABOR LAW TEAM:


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

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

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


the overseas employment program. applications; and
Private employment agencies shall face 15. For a recruitment/manning
cancellation or revocation of their licenses agency or a foreign principal/ Er to pass
or authority to recruit. (Sec. 9, E.O. 857) on the OFW or deduct from his or her
salary the payment of the cost of
insurance fees, premium or other
b. Prohibited Activities insurance related charges, as provided
under the compulsory worker's insurance
Q: What are prohibited practices in coverage
recruitment/placement (Art. 34.)? 16. Imposing a compulsory and
exclusive arrangement whereby an OFW is
A: required to:
1. Furnishing or publishing any false a. Avail a loan only from
notice/information/document related to specifically designated institutions,
recruitment/employment entities or persons
2. Failure to file reports required by b. To undergo health examinations
SLE only from specifically designated
3. Inducing or attempting to induce a medical, entities or persons, except
worker already employed to quit his seafarers whose medical examination
employment in order to offer him another cost is shouldered by the shipowner
unless the transfer is designed to liberate c. To undergo training of any kind
a worker from oppressive terms and only from designated institutions,
conditions entities
4. Recruitment/placement of workers orpersons,exceptfor
in jobs harmful to public health or recommendatory trainings mandated
morality or to the dignity of the country by principals/shipowners. (Sec. 6,
5. Engaging directly or indirectly in the R.A. 10022)
management of a travel agency
6. Substituting or altering employment c. Regulatory and
contracts without approval of DOLE Visitorial Powers of the
7. Charging or accepting any amount Labor Secretary
greater than that specified by DOLE or
make a worker pay any amount greater Q: What are the regulatory powers of the
than actually received by him Secretary of Labor and Employment (SLE)?
8. Committing any act of
misrepresentation to secure a license or A:
authority 1. Restrict and regulate the
9. Influencing or attempting to recruitment and placement activities of all
influence any person/entity not to employ agencies
any worker who has not applied of 2. Issue orders and promulgate
employment through his agency rules and regulations
10. Obstructing or attempting to
obstruct inspection by SLE or by his Q: What constitute visitorial power?
representatives
11. Withholding or denying travel A:
documents from applicant workers before 1. Access to employers records
departure for monetary considerations and premises at any time of the day or
other than authorized by law night, whenever work is being undertaken
12. Granting a loan to an OFW which 2. To copy from said records
will be used for payment of legal and 3. Question any employee and
allowable placement fees investigate any fact, condition or matter
13. Refusing to condone or renegotiate which may be necessary to determine
a loan incurred by an OFW after his violations or which may aid in the
employment contract has been enforcement of the Labor Code and of any
prematurely terminated through no fault labor law, wage order, or rules and
of his or her own regulation issued pursuant thereto.
14. For a suspended
recruitment/manning agency to engage in Q: Give 4 instances where the visitorial power of
any kind of recruitment activity including the SLE may be exercised under the Labor Code.
the
A: Power to:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

1. Inspect books of accounts and


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

Q: Can SLE issue search warrants or warrants of


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

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

Original and exclusive jurisdiction to hear and decide: Do OT and leave pay form part of the salary basis
1. All cases which are administrative in character, in the computation of the monetary award?
involving or arising out of violations of rules and
regulations relating to licensing and registration of A: No. The word salaries in Sec. 10(5) does not
recruitment and employment agencies or entities include overtime and leave pay. For seafarers, DOLE
and Department Order No. 33, series 1996, provides a
2. Disciplinary action (DA) cases and other special Standard Employment Contract of Seafarers, in
cases which are administrative in character, which salary is understood as the basic wage,
involving Ers, principals, contracting partners and exclusive of OT, leave pay and other bonuses;
Filipino migrant workers.
whereas OT pay is compensation for all work
a. It may be filed with the POEA
performed in excess of the regular 8 hours, and
Adjudication Office or the DOLE/POEA regional
holiday pay is compensation for any work
office of the place where the complaint applied
performed on designated rest days and holidays.
or was recruited at the option of the
complainant. The office with which the (Serrano v. Gallant Maritime Services & Marlow
complaint was first filed shall take cognizance of Navigation Co., Inc., G.R. No. 167614, Mar. 24,
the case. 2009)
b. DA cases and other special cases, as
mentioned in the preceding Section, shall be 3.OTHER RELATED TOPICS
filed with POEA Adjudication Office.
PERIODS Philippine Overseas Employment Administration
Mandatory Period for Resolution of Illegal
Q: What are the principal functions of the POEA?
Recruitment Cases
The preliminary investigations (PI) of cases under R.A.
A:
10022 shall be terminated within a period of 30
1. Protection of the right of
calendar days from the date of their filing.
Filipino workers to fair and equitable
employment practices
2. Regulation of private sector
prima facie case is participation in the recruitment and
established overseas placement of workers by setting
up a licensing and registration system
3. Deployment of Filipino workers
through govt to govt hiring
4. Formulation, implementation,
and monitoring of overseas employment
of Filipino workers taking into
consideration their welfare and domestic
manpower requirements
the investigation 5. Shall inform migrant workers
not only of their rights as workers but also
Prescriptive Period for Illegal Recruitment Cases of their rights as human beings, instruct
and guide the workers how to assert their
Simple Illegal Recruitment rights and provide the available
Within 20 yrs from the mechanism to redress violation of their
Within 5 yrs from the time
illegal recruitment has
time illegal recruitment rights. (Sec. 14, R.A. 10022)
happened
has happened. (Sec.
6. Implementation, in partnership
12,R.A. 8042) with other lawenforcement agencies, of
an intensified program against illegal
Q: Is compromise agreement on money claims recruitment activities. (Sec. 14, R.A.
allowed? 10022)

A: Yes. Consistent with the policy encouraging Q: May the POEA, at any time terminate or impose
amicable settlement of labor disputes, Sec. 10 of a ban on employment of migrant workers?
R.A. 8042 allows resolution by compromise of cases
filed with the NLRC. A: Yes, in consultation with the DFA based on the
ff. grounds:
Q: When shall compromise agreements on money
claims be paid? 2. In pursuit of the National Interest or

A: Any compromise/amicable settlement or


voluntary agreement on money claims inclusive of
damages shall be paid within 4 months from the
approval of the settlement by the appropriate
authority.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

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


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

A: Provided, that the receiving country is taking


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

A: The State shall allow the deployment of XPNs:


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

of not less than P500,000 but not more than


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

Q: What are the regulatory and adjudicatory Original and exclusive


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

Q: What is the distinction between the jurisdiction


of the LA and POEA?

A:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

Employment of NonResident Aliens XPNS:


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

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


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

A: GR: Only nonresident aliens;

LABOR LAW TEAM:


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

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

Art. 25. Private Sector Participation in the Q: Is a corporation, 70% of the authorized and
Recruitment and Placement of Workers voting capital of which is owned and controlled by
Filipino citizens, allowed to engage in the
Q: What are the entities in the private sectors that recruitment and placement of workers, locally or
can participate in recruitment and placement of overseas? Explain briefly.
workers?
A: No. It is because Art. 27 of the Labor Code
A: requires at least 75%. (2002 Bar Question)
1. Shipping or manning agents or
representatives Q: Who are disqualified to engage in the business
2. Private recruitment offices of recruitment and placement of workers?
3. Public employment offices
4. Construction contractors if A:
authorized by the DOLE and Construction 1. Travel agencies and sales
Industry Authority. agencies of airline companies; (Art. 26,
5. Persons that may be authorized by LC)
the 2. Officers or members of the
SLE board of any corporation or members in a
6. Private employment agencies. (Sec. partnership engaged in the business of a
1, Rule VII, Book I, IRR) travel agency;
3. Corporations and partnerships,
Q: What are the qualifications for participation in when any of its officers, members of the
recruitment and placement of workers? board or partners, is also an officer,
member of the board or partner of a
A: corporation or partnership engaged in the
1. Filipino citizens, partnerships or business of a travel agency;
corporations at least 75% of the 4. Persons, partnerships or
authorized capital stock of which is owned corporations which have derogatory
and controlled by Filipino citizens; (Art. records, such as but not limited to those:
27, LC) a. Certified to have derogatory
2. Capitalization record or information by the NBI or
a. Single proprietorship or by the AntiIllegal Recruitment
partnership A minimum Branch of the POEA;
capitalization of P2 million b. Against whom probable cause
b. Corporation or prima facie finding of guilt for
A minimum paidup capital of P2 illegal recruitment or other related
million cases exists;
Provided, that those with existing licenses c. Convicted for illegal recruitment
shall, within 4 yrs from the effectivity or other related cases and/or crimes
hereof, increase their capitalization or involving moral turpitude; and
paid up capital, as the case may be, to P2 d. Agencies whose licenses have
million at the rate of P250,000.00 every been previously revoked or cancelled
year. (Art. 28, LC) by the POEA for violation of R.A.
3. Not otherwise disqualified by law or 8042, P.D. 442 as amended and their
other government regulations to engage implementing rules and regulations
in the recruitment and placement of as well as these rules and
workers for overseas employment. (Rule I, regulations.
Part II, POEA Rules) 5. Any official or Ee of the DOLE,
4. Payment of registration fees POEA, OWWA, DFA and other government
5. Posting of surety/cash bonds agencies directly involved in the
implementation of R.A. 8042 and/or any
th
Q: How will POEA regulate private sector of his/her relatives within the 4 civil
participation in the recruitment and overseas degree of consanguinity or affinity; and
placement of workers? 6. Persons or partners, officers and
directors of corporations whose licenses
A: By setting up a licensing and registration system. have been previously cancelled or revoked
(Sec. 14, R.A. 10022) for violation of recruitment laws. (Sec. 2,
Rule I, 2002 Rules and Regulations on the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

Recruitment and Employment of Land


Based Workers)

Art. 26. Travel Agencies Prohibited to Recruit

Q: What is the rule on recruitment of travel


agencies and sales agencies of airline companies?

A: They are prohibited from engaging in the


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

Q: WTTA is a wellknown travel agency and an


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

A: The application should be disapproved, as it is


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

Art. 32. Fees to be Paid by Workers

Q: When may a worker be charged any fee?

A: Only when:

1. He has obtained work through


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

Note: A land based agency may charge and collect


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

Q: What are the only authorized payments that


may be collected from a hired worker?

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

LABOR LAW TEAM:


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

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

C. LABOR STANDARDS Q: Who are managerial Ees?

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


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

A: Generally, they are determined by the employer, They must meet all of the ff. conditions, namely:
as he is usually free to regulate, according to his
discretion, all aspects of employment. 1. Primary duty: management of
the establishment in which they are
Q: What is the limitation on the employers power employed or of a department or sub
to regulate working conditions? division thereof;
2. Customarily or regularly direct
A: It must be done in good faith and not for the the work of 2 or more Ees
purpose of defeating or circumventing the rights of 3. Has the authority to hire or fire
the employees. Such are not always absolute and other Ees of lower rank; or their
must be exercised with due regard to the rights of suggestions and recommendations as to
labor. the hiring and firing and as to the
promotion or any change of status of
Note: Ones employment, profession, trade or calling is other Ees are given particular weight.
a property right and the wrongful interference 4. Execute under general
therewith is an actionable wrong. supervision work along specialized or
technical lines requiring special training,
Q: When does the condition on employment under experience, or knowledge
the Labor Code apply? 5. Execute under general
supervision special assignment and tasks;
A: Only if an ErEe relationship exists. and
6. Do not devote more than 20%
Q: Who are the employees that are covered by the of their hours worked to activities which
conditions of employment? are not directly and closely related to
performance of the work described. (Art.
A: GR: It applies to all Ees in all establishments. 82[2])

XPN: Q: Why are managerial Ees not covered?


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

1. paid based on the work A:


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

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


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

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


day.

Note: Normal hours of work may be shortened or


compressed.

Q: What are considered hours worked?

LABOR LAW TEAM:


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

consultations with the workers and supervisors, a


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

Note: 40hour work week does not apply if there is a Q: Under what conditions may a "compressed
training agreement between the resident physician and work week" schedule be legally authorized as an
the hospital and the training program is duly exception to the "8hour a day" requirement under
accredited or approved by appropriate government the LC?
agency.
A:
Q: Who are covered by the 40hour work week? 1. The Ee voluntarily agrees to it
2. There is no diminution in their
A: weekly or monthly take home pay or
1. Health personnel in cities and fringe benefits
municipalities with a population of at 3. The benefits are more than or at
least 1 million; or least commensurate or equal to what is
2. Hospitals and clinics with a bed due the Ees without the compressed work
capacity of at least 100 week
4. OT pay will be due and
Note: Art. 83(2) do not require hospitals to pay the demandable when they are required to
Ees a full weekly salary with paid 2 days off. (San work on those days which should have
Juan de Dios Ees Assoc.AFW et al. vs. NLRC, G.R. ceased to be working days because of the
No. 126383, Nov.28, 1997) compressed work week schedule.
5. No strenuous physical exertion
Compressed Workweek or that they are given adequate rest
periods.
Q: What is a compressed workweek? 6. It must be for a temporary
duration as determined by the DOLE.
A: The normal workweek is reduced to less than 6 (2005 Bar
days but the total number of workhours of 48 Question)
hours per week shall remain. The normal workday is
increased to more than 8 hours but not to exceed Q: What are the requisites for adoption of
12 hours, without corresponding overtime compressed workweek?
premium. The concept can be adjusted accordingly
depending on the normal workweek of the A:
company. (Department Advisory Order No. 2, Series 1. The Er shall notify the DOLE
of 2009) through the Regional Office which has
jurisdiction over the workplace, of the
Q: When is the implementation of a compressed adoption of compressed workweek.
work week valid? 2. The notice shall be in Report
Form attached to the advisory.
A: The validity of the reduction of working hours 3. The Regional Office shall
can be upheld when the arrangement is temporary, conduct an ocular visit to validate
it is a more humane solution instead of a whether the adoption of the flexible work
retrenchment of personnel, there is notice and arrangements is in accordance with this
issuance. (Department Advisory Order No.
2, Series of 2009)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

Note: Where during meal period, the laborers are


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

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


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

LABOR LAW TEAM:


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

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

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


derived by the Ees from the business or some other work site.
proposed work arrangements is b. Done through a conveyance provided
equal to or by the employer (Er).
commensurate with the c. Done under the supervision and
compensation due them for the control of the Er.
shortened meal period as well as the d. Done under vexing and
OT pay for 30 minutes as determined dangerous circumstance.
by the Ees concerned;
e. OT pay will become due 2. Travel that is all in a days work
and demandable after the new time time spent in travel as part of the
schedule employees (Ees) principal activity
f. Arrangement is of e.g. travel from job site to job site during
temporary duration. the work day, must be counted as working
hours.
e. Idle time, waiting time, commuting
time/ travel time, whether part of hours of work 3. Travel away from home
or not GR:
a. Travel that requires an overnight
Q: When is an Ee considered working while on stay on the part of the Ee when it
call? cuts across the Ees workday is clearly
working time.
A: When Ee is required to remain on call in the Ers b. The time is not only hours
premises or so close thereto that he cannot use the worked on regular workdays but also
time effectively and gainfully for his own purpose. during corresponding working hours
on nonworking days. Outside of
Q: When idle time is considered working time? these regular working hours, travel
away from home is not considered
A: When the employee is idle or inactive by reason working time.
of interruptions beyond his control shall be
considered working time. XPN: During meal period or when Ee is
permitted to sleep in adequate facilities
Q: When is waiting time considered working furnished by the Er.
time?
Q: What are the conditions in order for lectures,
A: meetings and training programs to be not
1. If waiting is an integral part of his considered as working time?
work, or
2. The Ee is required or engaged by A: All of the ff. conditions must be present:
the Er to wait (engaged to wait) 1. Attendance is outside of the
employers regular working hours
Note: The controlling factor is whether waiting time 2. Attendance is in fact voluntary and
spent in idleness is so spent predominantly for the Ers 3. The employee does not perform
benefit or for the Ee. any productive work during such
attendance.
Q: When is waiting time not considered working
time? f. Overtime work: Undertime
offset by overtime, Waiver of
A: When the Ee is waiting to be engaged: idle time overtime
is not working time; it is not compensable.
Q: What is overtime work (OT)?
Q: When is travel time considered working
time? A: Work performed beyond 8 hours within the
workers 24 hour workday.
A:
1. Travel from home to work Note: Express instruction from the employer (Er) to the
employee (Ee) to render OT work is not required for
GR: Normal travel from home to work is the Ee to be entitled to OT pay; it is sufficient that the
not working time. Ee is permitted or suffered to work. However, written
authority after office hours during rest days
XPNS:
a. Emergency call outside his
regular working hours where he is
required
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

and holidays are required for entitlement to Rate of the first 8 hours worked on
compensation. plus at least 30% of the regular wage (RW):

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


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

LABOR LAW TEAM:


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

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

when the company's executives using the cars do specific wages per day, without providing
not need Danilo's service for more than eight for a fixed hourly rate or that the daily
hours a day, in lieu of OT. Are the above provisions wages include OT pay, said wages cannot
of the contract of employment in conformity with, be considered as including OT
or violative of, the law? compensation. (Manila Terminal Co. vs.
CIR, et al., 91 Phil., 625)
A: Except for the provision that Danilo shall have 2. However, the employment
time off with pay when the company's executives contract may provide for a builtin OT
using the cars do not need Danilo's service for more pay. Because of this, nonpayment of OT
than 8 hours a day, in lieu of OT, the provisions of pay by the employer is valid. (Engg
the contract of employment of Danilo are not Equipment vs. Minister of Labor, G.R. No.
violative of any labor law because they instead L64967, Sep. 23, 1985)
improve upon the present provisions of pertinent
labor laws. (a)Undertime not offset by Overtime

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


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

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


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

between midnight and 6am of the


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

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


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

Q: Who are entitled to NSD?

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


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

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

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


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

A: It shall not include any profit to the employer (Er) and his
or to any person affiliated with the Er.
and subsistence
a.No work, No pay principle

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


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

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


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

b.Coverage and Exclusions


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

A: GR: It applies to all employees A: The criterion is not so much with the kind of the
benefit or item (food, lodging, bonus or sick leave)
XPN: given, but its purpose. (State Marine v. Cebu
1. Farm tenancy or leasehold; Seamens Assn., G.R. No. L12444, Feb. 28, 1963)
2. Household or domestic helpers,
including family drivers and persons Q: When can the cost of facilities furnished by the
working in the personal service of Er be charged against an Ee?
another;
3. Home workers engaged in A: In order that the cost be charged against the Ee,
needlework or in any cottage industry the latters acceptance of such facilities must be
duly registered in accordance with law; voluntary.
4. Workers in duly registered
cooperatives when so recommended by Q: What are the requirements for deducting values
the Bureau of Cooperative Development for facilities?
and upon approval of the Secretary of
Labor and Employment. A:
5. Workers of a barangay micro 1. Proof must be shown that such
business enterprise (R.A. 9178) facilities are customarily furnished by the
trade
2. The provision of deductible
facilities must be voluntarily accepted in
writing
3. The facilities must be charged at
fair and reasonable value (Mabeza v.
NLRC, G.R. No. 118506, April 18, 1997)
Q: Are food and lodging, or the electricity and water different shifts and are expected to be available at
consumed by a hotel worker, considered facilities? various odd hours, their ready availability is a
necessary matter in the operations of a small hotel.
A: No. These are supplements. Considering, Furthermore, granting that meals and lodging were
therefore, that hotel workers are required to work
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
Q: Is the Er legally obliged to correct WD?
provided and indeed constituted facilities, such
facilities could not be deducted without the Er
complying first with certain legal requirements.
(Mabeza v. NLRC, G.R. No. 118506, April 18, 1997)

d.Wages v. Salaries

Q: Distinguish between wage and salary?

A:

GR: Not subject to

execution

e.Wage Distortion

Q: What is wage distortion (WD)?

A: A situation where an increase in wage results in


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

Q: What are the elements of WD?

A:
1. An existing hierarchy of positions
with corresponding salary rates.
2. A significant change or increase in
the salary rate of a lower pay class
without a corresponding increase in the
salary rate of a higher one;
3. The elimination of the distinction
between the 2 groups or classes; and
4. The WD exists in the same region
of the country. (Alliance Trade Unions v.
NLRC, G.R. No. 140689, Feb. 17, 2004)
4. The reestablishment of a
significant difference in wage rates may be
A: The Er and the union shall negotiate the result of resort to grievance
to correct the distortions. If there is no procedures or collective bargaining
union, the Er and the workers shall negotiations. (Metro Transit Org., Inc. v.
endeavor to correct such distinctions. NLRC, G.R. No. 116008, July 11, 1995)

Q: What are the basic principles in WD? Q: Distinguish the process for correction of WD of
organized establishments and unorganized
A: establishments?
1. The concept of WD
assumes an existing group or A:
classification of Ees which
establishes distinctions
among such Ees on some
relevant or legitimate basis.
This classification is reflected
in a differing wage rate for
each of the classes of Ees
2. Often results from
govt decreed increases in
minimum wages.
3. Should a WD exist,
there is no legal requirement
that, in the rectification of
that distortion by re
adjustment of the wage rates
of the differing classes of Ees,
the gap which had previously
or historically existed be
restored in precisely the same
amount. In other words,
correction of a WD may be
done by reestablishing a
substantial or significant gap
(as distinguished from the
historical gap) between the
wage rates of the differing
classes of Ees.

LABOR LAW TEAM:


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

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

Q: Can the issue of WD be raised in a notice of Moreover, compliance with a collective bargaining
strike? agreement is mandated by the expressed policy to
give protection to labor. Unless otherwise provided
A: No. WD is nonstrikeable. (Ilaw at Buklod ng by law, said policy should be given paramount
Manggagawa v. NLRC, G.R. No. 91980, June 27, consideration. (Meycauayan College v. DRILON, G.R.
1991.) WD is neither a deadlock in collective No. 81144, My 7, 1990).
bargaining nor ULP.
g.Non diminution of benefits
f.CBA provision visvis Wage Order CBA Credibility
Q: What is the concept of nondiminution (ND) of
Q: Distinguish CBA and Wage Order. benefits?

A: A: GR: Benefits being given to employees


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

h.Workers preference in case of bankruptcy


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

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


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

LABOR LAW TEAM:


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

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

(c) In cases where the employer is worker concerned (Art. 113). Art. 241(o)
authorized by law or regulations issued by provides that special assessments may be
the Secretary of Labor. validly checkedoff provided that there is
an individual written authorization duly
Art. 114 No employer shall require his worker to signed by every employee (Ee).
make deposits from which deductions shall be 3. Deductions for SSS, Medicare
made for the reimbursement of loss of or damage and Pagibig premiums
to tools, materials or equipments supplied by the 4. Taxes withheld pursuant to the Tax Code
employer; except when the employer is engaged in 5. Deductions under Art. 114 for
such trades, occupations or business where the loss or damage to tools, materials or
practice of making deductions or requiring deposits equipments
is a recognized one, or is necessary, or desirable as 6. Deductions made with the
determined by the Secretary of Labor in appropriate written authorization of the Ee for
rules and regulations. payment to a third person. (Sec 13, Rule
VIII, Book III of the IRR)
Art. 115 LimitationsNo deduction from the 7. Deductions as disciplinary
deposits of an employee for the actual amount of measures for habitual tardiness (Opinion
the loss or damage shall be made unless the dated March 10, 1975 of the SLE)
employee has been heard thereon, and his 8. Agency fees under Art. 248(e)
responsibility has been clearly shown. 9. Deductions for value of meals
and facilities freely agreed upon
Art 116 Withholding of Wages and Kickbacks 10. In case where the Ee is indebted
ProhibitedIt shall be unlawful for any person, to the Er where such indebtedness has
directly or indirectly, to withhold any amount from become due and demandable. (Art. 1706,
the wages of a worker or induce him to give up any Civil Code)
part of his wages by force, stealth, intimidation, 11. In court awards, wages may be
threat or by any other means whatsoever without subject of execution or attachment, but
the workers consent. only for debts incurred for food, shelter,
clothing, and medical attendance. (Art.
Art 117 Deduction to Ensure EmploymentIt shall be 1703, Civil Code)
unlawful to make any deduction from the wages of 12. Salary deduction of a member
any employee for the benefit of the employer or his of a legally established cooperative. (R.A.
representative or intermediary as consideration of a 6938, Art. 59)
promise of employment or retention in
employment or retention in employment. k.Attorneys fees

Art. 118 Retaliatory MeasuresIt shall be unlawful Q: What are the limitations to the assessment of
for an employer to refuse to pay or reduce the attorneys lien against the culpable party?
wages and benefits, discharge or in any manner
discriminate against any employee who has filed A:
any complaint instituted any proceeding under this 1. In case of unlawful withholding of wages
Title or has testified or is about to testify in such 10% of the amount of wages to be
proceedings. recovered.
2. It shall be unlawful for any
j. Allowable deductions without employees person to demand or accept, in any
consent judicial or administrative proceedings for
the recovery of wages, attys fees that
Q: What is the rule in wage deductions? exceed 10% of the amount of wages
recovered.
A:
GR: It is strictly prohibited Note: The prohibition on attys lien refers to
proceedings for recovery of wages and not to services
XPN: rendered in connection with CBA negotiations. In the
1. Deductions under Art. 113 for latter case, the amount of attys fees may be agreed
insurance premiums upon by the parties and the same is to be charged
against union funds as provided for in Art. 222 of the
2. Union dues in cases where the right
Labor Code. (Pacific Banking Corp.v. Clave, G.R. No.
of the worker or his union to check off has
56965, Mar. 7, 1984)
been recognized by the employer (Er) or
authorized in writing by the individual
Q: What is ordinary attorneys fee?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

A: It is the reasonable compensation paid to a Q: When can attorneys fees and damages be
lawyer by his client for the legal services he has awarded in an illegal dismissal case?
rendered.
A: For attorneys fees, moral and exemplary
Q: What is extraordinary attorneys fee? damages to be granted, the plaintiff must prove that
the facts of his case fall within the enumerated
A: It is the indemnity for damages ordered by the instances in the Civil Code. Thus, moral damages
court to be paid by the losing party in litigation and may only be recovered where the dismissal or
is not to be paid to the lawyer but to the client, suspension of the employee was attended by bad
unless they have agreed that the award shall pertain faith or fraud, or constituted an act oppressive to
to the lawyer as an additional compensation or as a labor, or was done in a manner contrary to morals,
part thereof. (Traders Royal Bank Ees Union good customs or public policy. In other words, the
Independent v. NLRC, G.R. No. 120592, Mar. 14, act must be a conscious and intentional design to
1997) do a wrongful act for a dishonest purpose or some
moral obliquity. Exemplary damages, on the other
Note: Art.111 of the LC deals with the extraordinary hand, may only be awarded where the act of
concept of attorneys fees. It may not be used as the dismissal was effected in a wanton, oppressive or
standard in fixing the amount payable to the lawyer by malevolent manner. (Chaves v. NLRC,G.R. No.
his client for the legal services he rendered. (Masmud 166382, June 27, 2006)
v. NLRC, G.R. No. 183385, Feb. 13, 2009)
Q: What is union service fee?
Q: Santiago, a project worker, was being assigned
by his Er, Bagsak Builders, to Laoag, Ilocos Norte. A: The appearance of labor federations and local
Santiago refused to comply with the transfer unions as counsel in labor proceedings has been
claiming that it, in effect, constituted a given legal sanction under Art.222 of the LC, which
constructive dismissal because it would take him allows nonlawyers to represent their organization
away from his family and his usual work thereof. The said labor federations and local unions
assignments in Metro Manila. The Labor Arbiter have a valid claim to attys fees which is called the
(LA) found that there was no constructive dismissal Union Service Fee.
but ordered the payment of separation pay due to
strained relations between Santiago and Bagsak l.Criteria/ Factors for Wage Setting
Builders plus attys fees equivalent to 10% of the
value of Santiago's separation pay. Q: What are the standards or criteria for minimum
wage setting?
Is the award of atty's fees valid? State the reasons
for your answer. A: In the determination of such regional minimum
wages, the Regional Board shall, among other
A: No, the award of attys fees is not valid. relevant factors consider the following:
According to the LC (Art. 111 [a]), attys fees may be
assessed in cases of unlawful withholding of wages a) The demand for living wages
which does not exist in the case. The worker refused b) Wage adjustment visavis the
to comply with a lawful transfer order, and hence, a consumer price index
refusal to work. Given this fact, there can be no c) The cost of living and changes or
basis for the payment of atty's fees. increases therein
d) The needs of workers and their families
Could the LA have validly awarded moral and e) The need to induce industries to
exemplary damages to Santiago instead of atty's invest in the countryside
fees? Why? f) Improvements in standards of living
g) The prevailing wage levels
A: No, moral and exemplary damages can be h) Fair return of the capital
awarded only if the worker was illegally terminated invested and capacity to pay of employers
in an arbitrary or capricious manner. (Nueva Ecija i) Effects on employment
Electric Cooperative Inc., Ees Assn., vs. NLRC, G.R. generation and family income
No. 116066, Jan. 24, 2000; Cruz vs. NLRC, G.R. No. j) The equitable distribution of
116384, Feb. 7, 2000; Phil. Aeolus etc., vs. NLRC, income and wealth along the imperatives
G.R. No. 124617, April 28, 2000). (2001 Bar of economic and social development
Question)
Q: What is salary ceiling method?

LABOR LAW TEAM:


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

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

A: A method of minimum wage adjustment (MBTC v NWPC Commission, G.R. NO. 144322, Feb.
whereby the wage adjustment is applied to Ees 6, 2007)
receiving a certain denominated ceiling. In other
words, workers already being paid more than the 3.REST DAY
existing minimum wage are also to be given a wage
increase. (ECOP v. NWCP, G.R. No. 96169, Sep. 24, a.Right to weekly rest day, Preferemce of the
1991) employee, when work on rest day authorized

Q: What is a floor wage method? Q: What is the right to weekly rest day (WRD)?

A: It involves the fixing of a determinate amount to A: Every employer shall give his employees a rest
be added to the prevailing statutory minimum wage period of not less than 24 consecutive hours after
rates. every 6 consecutive normal work days. (Sec. 3, Rule
III, Book III, IRR)
Q: The Regional Wage Board of Region II issued a
Wage Order granting all Ees in the private sector Q: What is the scope of WRD?
throughout the region an acrosstheboard
increase of P15.00 daily. Is this Wage Order valid? A: It shall apply to all employers whether operating
for profit or not, including public utilities operated
A: The Wage Order is valid insofar as the mandated by private persons. (Sec. 1, Rule III, Book III, IRR)
increase applies to Ees earning the prevailing
minimum wage rate at the time of the passage of Q: Who determines the WRD?
the Wage Order and void with respect to its
application to Ees receiving more than the A: GR: Er shall determine and schedule the
prevailing minimum wage rate at the time of the WRD of his Ee.
passage of the Wage Order. Pursuant to its
authority, the Regional Wage Boards may issue XPNs:
wage orders which set the daily minimum wage 1. CBA
rates. In the present case, the Regional Wage Board 2. Rules and regulations as the SLE provides
did not determine or fix the minimum wage rate. It 3. Preference of employee (Ee)
did not set a wage level nor a range to which a wage based on religious grounds Ee shall
adjustment or increase shall be added. Instead, it make known his preference in writing at
granted an acrosstheboard wage increase of least 7 DAYS before the desired effectivity
P15.00 to all Ees in the region. In doing so, the of the initial rest day so preferred. (Sec.
Regional Wage Board exceeded its authority by 4(1), Rule III, Book III, IRR)
extending the coverage of the Wage Order to wage
earners receiving more than the prevailing XPN to XPN no. 3: Employer (Er) may
minimum wage rate, without a denominated salary schedule the WRD of his choice for at
ceiling. The Wage Order granted additional benefits least 2 days in a month if preference of
not contemplated by R.A. No. 6727. (MBTC v NWPC the employee will inevitably result in:
Commission, G.R. No. 144322, Feb. 6, 2007) a. serious prejudice to the
operations of the undertaking and
Q: Since the Wage Order was declared void with b. the Er cannot normally be
respect to its application to employees receiving expected to resort to other remedial
more than the prevailing minimum wage rate at measures. (Sec. 4(2), Rule III, Book III,
the time of the passage of the Wage Order, should IRR)
these Ees refund the wage increase received by
them? Q: When should employees (Ees) be informed of
their schedule of WRD?
A: No. The Ees should not refund the wage increase
that they received under the invalidated Wage A: Er shall make known rest period by means of:
Order. Being in good faith, the employees need not 1. Written notice
refund the benefits they received. Since they 2. Posted conspicuously in the workplace
received the wage increase in good faith, in the 3. At least 1 week before it
honest belief that they are entitled to such wage becomes effective. (Sec.5, Rule III, Book
increase and without any knowledge that there was III. IRR)
no legal basis for the same, they need not refund
the wage increase that they already received. Q: Can an Ee be compelled to work on his rest
day?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

A: GR: No.

XPN:
1. Urgent work to be performed on
the machinery, equipment or installation,
to avoid serious loss which the Er would
otherwise suffer;
2. Nature of work requires
continuous operations for 7 days in a
week or more and stoppage of the work
may result in irreparable injury or loss to
the Er;
3. Abnormal pressure of work due
to special circumstances, where the Er
cannot be ordinarily expected to resort to
other measures;
4. Actual or impending emergencies
(serious accident, fire, flood, typhoon,
earthquake, etc.)
5. Prevent loss or damage to
perishable goods;
6. Analogous or similar
circumstances as determined by the SLE;
7. Work is necessary to avail of
favorable weather or environmental
conditions where performance or quality
of work is dependent thereon.

Q. What is the rule when an Ee volunteers to work


on his rest day under other circumstances?

A: He shall express it in writing subject to additional


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

Q: What is premium pay?

A: It is the additional compensation for work


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

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


pay other than that provided by law?

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


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

Q: What are the rates of compensation for rest Q: Jose applied with Mercure Drug Company for
day, Sunday or holiday work? the position of Sales Clerk. Mercure Drug Company
maintains a chain of drug stores that are open
A: everyday till late at night. Jose was informed that
RATES OF ADDITIONAL he had to work on Sundays and holidays at night as
INSTANCES
COMPENSATION part of the regular course of employment. He was
presented with a contract of employment setting
forth his compensation on an annual basis with an
express waiver of extra compensation for work on
Sundays and holidays, which Jose signed. Is such a
waiver binding on Jose? Explain.
A: As long as the annual pay for late night work, considering the laws and
compensation is an amount that is wage orders providing for minimum wages, and the
not less than what Jose should pertinent provisions of the LC, then the waiver that
receive for all the days that he works, Jose signed is binding on him for he is not really
plus the extra compensation that he waiving any right under Labor Law. It is not contrary
should receive for work on his weekly
rest WRD and for night differential
LABOR LAW TEAM:
38 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
LABOR STANDARDS
A: They are compensable whether worked or
unworked subject to certain conditions. They
to law, morals, good customs, public order or public are also called legal holidays. The following are
policy for an Er and Ee to enter into a contract
where the Ees compensation that is agreed upon
already includes all the amounts he is to receive for
OT work and for work on weekly rest days and
holidays and for night differential pay for late night
work. (1996 Bar Question)

4.HOLIDAYS

a.Right to Holiday Pay

Q: What is holiday pay (HP)?

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


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

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

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

XPN: Otherwise declared by the


President

2. Local Special Public Holiday


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

NATIONAL SPECIAL DAYS


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

2.
3.

4.

LOCAL SPECIAL DAYS


Those declared by:

Q: What are regular holidays (RH)?


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

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


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

Araw ng Kagitingan 1. After the approximate date of the


Islamic holiday has been determined in
accordance with the:
Labor Day a. Islamic Calendar (Hijra) or
Independence Day b. Lunar Calendar or
c. Upon astronomical calculations
National Heroes Day d. Whichever is possible or convenient
2. The Office of Muslim Affairs shall
inform the Office of the President on
Bonifacio Day
which day the holiday shall fall. (Sec.2,
Proc. No. 1841)
Christmas Day
Q: Can a Christian employee (Ee) working within
the Muslim area be compelled to work during MH?
Rizal Day
A: No. Christians working within the Muslim areas
may not report for work during MH. Not only
Muslim but also Christian Ee in the designated
Note: RA 9492 has already been superseded by Presidential provinces and cities are entitled to HP on the MH.
Proclamation No. 18 issued by President Benigno C. Aquino
(SMC v. CA, G.R. 146775, Jan. 30, 2002)
III placing the observance of regular holidays and national
special days according to their respective dates in the
calendar.
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

Q: Can a Muslim Ee working outside the Muslim 8. Ee paid fixed amount for
area be compelled to work during the observance performing work irrespective of the time
of the MH? consumed in the performance thereof.
(Sec. 1, Rule IV, Book III, IRR)
A: GR: No. Muslim Ees shall be
excused from work during MH without Q: What are retail establishments?
diminution of salary or wages.
A: They are engaged in the sale of goods to end
XPN: Those who are permitted or suffered to users for personal or household use. (e.g. Grocery)
work on MH are entitled to at least 100% basic
pay + 100% as premium of their basic pay. (SMC Q: What are service establishments?
v. CA, G.R. No. 146775, Jan. 30, 2002)
A: They are engaged in the sale of services to
Note: RH falling within temporary or periodic individuals for their own or household use. (e.g. TV
shutdown and temporary cessation of work are repair shop)
compensable. However, if the temporary or periodic
shutdown and cessation of work is due to business Q: Is an exercise of profession retail or service?
reverses, the employer may not pay the RHs during
such period. A: It is neither retail nor service.

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

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


REGULAR HOLIDAY regular rate.

Q: What are the rates of compensation for RH on


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

under Art. 94, LC


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

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

Q: Distinguish between monthly paid and daily cleaning of machineries


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

the Sec. of Labor)


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

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

A: A legal holiday falling on a Sunday creates no


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

(1)In Case of Absences

Q: Discuss the concept of absences.

A:

(2)In Case of Temporary Cessation of Work

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


or periodic shutdown and temporary cessation of
work?

A:
TEMPORARY OR PERIODIC SHUTDOWN and TEMPORARY
CESSATION OF WORK (Sec. 7, Rule IV, Book III, IRR)
Q: Are the school faculty who according to their
teachers (Faculty contracts are paid per lecture hour entitled to
unworked HP?
members
A:
1. If during regular holiday No. Art. 94 of
colleges
LC is silent with respect to faculty members
paid by the hour who because of their teaching
universities) contracts are obliged to work and consent to
be paid only for work actually done (except
when an emergency or a fortuitous event or a
Ee paid by: national need calls for the declaration of
1. results or special holidays). RH specified as such by law
are known to both school and faculty members
2. output
as "no class days" certainly the latter do not
(Piece
expect payment for said unworked days, and
payment) this was clearly in their minds when they
entered into the teaching contracts. (Jose Rizal
College v. NLRC, G.R. No. 65482, Dec. 1, 1987)
Seasonal Workers
2. If during special public holidays Yes. The
Workers having no law and the IRR governing HP are silent as to
payment on Special Public Holidays. It is readily
apparent that the declared purpose of the HP
regular work days
which is the prevention of diminution of the
Seafarers monthly income of the Ees on account

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

of work interruptions is defeated when a


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

Q: Lita, a full time professor in San Ildefonso


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

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


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

5.LEAVES

a.Service Incentive Leave Pay

Q: What is service incentive leave (SIL)?

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


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

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


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

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

practice or policy, or that provided in the the SIL may be on a prorata basis. (No. VI(c), DOLE
employment contract is less than 12 months, in Handbook on Workers Statutory Monetary Benefit)
which case said period shall be considered as one
year. (Sec. 3, Rule V, Book III, IRR) Q: Are parttime workers entitled to the full
benefit of the yearly 5 day SIL?
Q: Who are entitled to SIL?
A: Yes. Art. 95 of Labor Code speaks of the number
A: GR: Applies to every Ee who has of months in a year for entitlement to said benefit.
rendered at least 1 year of service. (Art. (Bureau of Working Conditions Advisory Opinion to
95[a]) Phil. Integrated Exporters, Inc.)

XPNS: Q: Are piecerate workers entitled to the full


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

Q: What is the basis for cash conversion?

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


commutation. The availment and commutation of
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

b.Maternity Leave said Ee would otherwise have been


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

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


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

2. The payment shall be advanced Q: What are the requirements in order to avail
by the Er in 2 equal installments within 30 paternity leave?
days from the filing of the maternity leave
application A: The male employee (Ee) applying for paternity
leave shall:
3. In case of caesarian delivery, the
Ee shall be paid the daily maternity 1. Notify his employer (Er) of the
benefit for 78 days pregnancy of his legitimate spouse and
2. The expected date of such delivery.
4. Payment of daily maternity
benefits shall be a bar to the recovery of Q: What are the conditions for entitlement to
sickness benefits for the same paternity leave?
compensable period of 60 days for the
same childbirth, abortion, or miscarriage A: The male Ee is;
5. The maternity benefits provided 1. Legally married to, and is
under Section 14A shall be paid only for cohabiting with the woman who delivers
the first four deliveries the baby
2. Ee of private or public sector;
6. The SSS shall immediately 3. Only for the first 4 deliveries of
reimburse the Er of 100% of the amount legitimate spouse with whom he is
of maternity benefits advanced to the Ee cohabiting; and
by the Er upon receipt of satisfactory 4. Notify his Er of the pregnancy of
proof of such payment and legality his legitimate spouse and the expected
thereof; and date of such delivery

7. If an Ee should give birth or suffer Note: For purposes of this Act, delivery shall include
abortion or miscarriage without the childbirth or any miscarriage.
required contributions having been
Q: Jemuel is a bank employee of BPI. He is
remitted for her by her Er to the SSS, or
cohabiting with Paula for straight five years with
without the latter having been previously
whom he has four children. On the fifth year of
notified by the Er of the time of the
their cohabitation, Paula had her miscarriage.
pregnancy, the Er shall pay to the SSS
Jemuel is availing himself of his paternity leave. Is
damages equivalent to the benefits which
he entitled to paternity leave?

LABOR LAW TEAM:


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

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

A: No. Jemuel is not entitled to paternity he/she is entrusted with the custody
leave because the facts of the case only show that of the children;
he is only cohabiting with Paula. The law expressly e. Nullity or annulment of marriage as
provides that the male must be legally married to decreed by a court or by a church as
the woman with whom he is cohabiting as a long as he/she is entrusted with the
condition for entitlement of paternity leave. Even custody of the children;
assuming that Jemuel is legally married to Paula, he f. Abandonment of spouse for at
cannot avail also of the paternity leave because the least 1 yr;
law limits the deliveries only to four which include 3.Unmarried mother/father who has
childbirth or miscarriage. Based on the facts, it is preferred to keep and rear his or her
already the fifth delivery of the woman. child/children instead of:
a. having others care for them or
d.Parental Leave b. give them up to a welfare institution;
4. Any other person who solely provides:
Q: What is parental leave? a. parental care and
b. support to a child or children;
A: Leave benefits granted to a solo parent to enable 5. Any family member who assumes
him/her to perform parental duties and the responsibility of head of family as a
responsibilities where physical presence is result of the:
required. a. death,
b. abandonment,
In addition to leave privileges under existing laws, c. disappearance or
parental leave of not more than 7 working days d. prolonged absence of the parents
every year shall be granted to any solo parent Ee or solo parent.
who has rendered service of at least 1 year. (Sec. 8)
Note: A change in the status or circumstance of the
Q: What are the conditions for entitlement of parent claiming benefits under this Act, such that
parental leave? he/she is no longer left alone with the responsibility of
parenthood, shall terminate his/her eligibility for these
A: benefits. (Sec.3)
1. He or she must fall among those referred to as
solo parent e.Leaves for victims of violence against women
2. Must have the actual and physical custody of
the child or children Q: What is the leave for victims of violence against
3. Must have at least rendered service of one women or otherwise known as battered woman
year to his or her employer leave?
4. He or she must remain a solo parent
A: A female employee who is a victim of violence
Q: Who are those referred to as solo parent (physical, sexual, or psychological) is entitled to a
entitled to parental leave? paid leave of 10 days in addition to other paid
leaves. (R.A. 9262, Anti VAWC Act)
A: Any individual who falls under any
of the ff. categories: 6.SERVICE CHARGES

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


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

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


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

Note: Applies only to hotels, restaurants and similar Q: What would be your advice to your client, a
establishment collecting service charges. manufacturing company, who asks for your legal
opinion on whether or not the 13th Month Pay
XPN: Managerial Ees. (Sec. 2, Rule VI, Book III, IRR) Law covers a casual Ee who is paid a daily wage?

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


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

monthly share of each Ees for the past 12 months Month pay before the opening of the regular school yr.
immediately preceding the abolition. and the other half on or before the Dec. 24.

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


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

LABOR LAW TEAM:


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

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

2. Electricity last 2 years, subject to the provision


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

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


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

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


Q: How are claims adjudicated? 15, 2005)

th
A: Nonpayment of the 13 month pay provided by XPN: Ees who are paid a guaranteed minimum
th
P.D. 851 and the rules of NLRC shall be treated as wage or commissions earned are entitled to 13
money claims cases. month pay based on total earnings. (Philippine
Agricultural Commercial and Industrial Workers
th
Q: Are the following Ees entitled to 13 month Union v. NLRC, G.R. No. 107994, Aug. 14, 1995)
pay?
th
Q: Is 14 Month Pay legally demandable?
a. Ees who are paid by results
b. Ees with multiple Ers th
A: No. The granting of 14 month pay is a
c. Private school teachers management prerogative and is not legally
d. Resigned or separated Ees demandable. It is basically a bonus and is gratuitous
in nature. (Kamaya Point Hotel v. NLRC, G.R. No.
A: 75289, Aug. 31, 1989)
1. Ee paid by results entitled to
th th
13 month pay. c.Commissions visvis 13 month pay
th
Note: Ees paid a fixed or guaranteed wage Q: What is commission in relation to 13 month
plus commission are also entitled to the pay?
th
mandated 13 month pay, based on their
total earnings during the calendar year, i.e. A:
on both their fixed or guaranteed wage and 1. The salesmans commissions,
commission comprising a predetermined percent of
the selling price of the goods sold by each
2. Those with Multiple Ers salesman, were properly included in the
Government Ees working part time in a term basic salary for purposes of
private enterprise, including private th
computing their 13 month pay.
educational institutions, as well as Ees
working in 2 or more private firms,
2. The so called commission paid
whether full or part time basis, are
th to or received by medical representatives
entitled to the required 13 month pay of BoieTakeda Chemicals or by the rank
from all their private Ers regardless of and file Ees of Phil. Fuji Xerox were
their total earnings from each or all their excluded from the term basic salary
Ers. because these were paid as productivity
bonuses. Such bonuses closely resemble
3. Private School Teachers, profit sharing, payments and have no
including faculty members of universities clear, direct, necessary relation to the
and colleges entitled regardless of the amount of work actually done by each
number of months they teach or are paid individual employee.
within a year, if they have rendered
service for at least 1 month within a year. d.CBA visvis 13 month pay
th

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


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

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

Q: What are the unlawful acts against women Ee?

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

a. Payment of lesser com

female Ee as against a

work of equal value

b. Favoring a male Ee w

promotion,
study

account of gender. (A

c. Favoring

respect to hiring w
particular job can equ
by a woman
d. Favoring a male Ee over a female
with respect to dis
personnel.
2. Stipulating,
employment
employment:
a. That a
married, or
b. That upon marriage, such woman
shall be deemed r
separated. (Art. 136)
Note: A woman worker may not be
dismissed on the ground of dishonesty for
having written single on the space for civil

status on the application sheet, contrary to

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

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

3. Dismissing,

prejudice a woman Ee by reason of her

being married. (Art. 136)

4. Denying any woman Ee benefits provided


by law. (Art. 137)

5. Discharge any woman for the purpose of

preventing her from enjoying any of the


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

her pregnancy, or while

confinement due to her pregnancy. (Art.

137)

7. Discharging or refusing the admission of

such woman upon returning to her work

for fear that she may again be pregnant.

(Art. 137)

Note: Discrimination in any form from


employment to post

promotion or assignment,

perceived or suspected HIV status of an individual is

unlawful. (Philippine AIDS Prevention and Control Act


of 1998, [R.A. 8504])

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

Q: What is the nospouse employment policy? Glaxo does not impose an absolute prohibition
against relationships between its Ees and those of
A: GR: competitor companies. Its Ees are free to cultivate
1. Policy banning spouses from relationships with and marry persons of their own
working in the same company. choosing. What the company merely seeks to avoid
2. May not facially violate Art. 136 is a conflict of interest between the Ee and the
of the LC but it creates a disproportionate company that may arise out of such relationships.
effect and the only way it could pass Furthermore, the prohibition forms part of the
judicial scrutiny is by showing that it is employment contract and Tecson was aware of such
reasonable despite the discriminatory restrictions when he entered into a relationship
albeit disproportionate effect. with Bettsy. (Duncan Asso. of DetailmanPTGWO v.
Glaxo Wellcome Phil. Inc., G.R. No. 162994, Sep.17,
XPN: Bona fide occupational qualification rule 2004)
(BFOQ)
c.Classification of Certain Women Workers (Art.
Q: What is the BFOQ rule? 138, LC)

A: There must be a finding of any BFOQ to justify an Q: Who are covered under this Title?
Ers no spouse rule. There must be a compelling
business necessity for which no alternative exist A: Any women who is permitted or suffered to
other than the discriminating practice. work:

To justify a BFOQ the employer must prove two 1. With or without compensation
factors: 2. In any night club, cocktail
lounge, massage clinic, bar or similar
1. That the employment establishment
qualification is reasonably related to the 3. Under the effective control or
essential operation of the job involved; supervision of the Er for a substantial
and period of time
2. That there is a factual basis for 4. Shall be considered as an Ee of
believing that all or substantially all such establishment for purposes of labor
persons meeting the qualification would and social legislation.
be unable to properly perform the duties
of the job. (Star Paper v. Simbol, G.R. No. d.Anti Sexual Harrasment Act
164774, April 12, 2006) RA 7877

Q: What is the importance of the BFOQ Rule? Q: What is the policy of the State in enacting the
AntiSexual Harassment law?
A:
1. To ensure that the Ee can A: The State shall:
effectively perform his work
2. So that the nospouse rule will 1. Value the dignity of every individual
not impose any danger to business. 2. Enhance the development of it
human resources
Q: Tecson was employed by Glaxo as medical 3. Guarantee full respect for
representative who has a policy against Ees having human rights and
relationships against competitors Ees. Tecson 4. Uphold the dignity of workers,
married Bettsy, a Branch coordinator of Astra, Ee, applicants for employment, students
Glaxos competitor. Tecson was transferred to or those undergoing training, instruction
another area. Tecson did not accept such transfer. or education. (Sec. 2)

Is the policy of Glaxo valid and reasonable so as to Q: Who may be held liable for sexual harassment?
constitute the act of Tecson as willful
disobedience? A: In a work, education or trainingrelated
environment sexual harassment may be committed
A: The prohibition against personal or marital by an:
relationships with Ees of competitors companies
upon Glaxos Ees is reasonable under the 1. Ee
circumstances because relationships of that nature 2. Manager
might compromise the interest of the company. 3. Supervisor

LABOR LAW TEAM:


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

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

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


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

hostile or unfriendly to the applicant's chances for a


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

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

9.MINOR WORKERS iii. the conditions


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

Q:What are the general prohibitions? Q: What is the duty of the Er before engaging child
into work?
A: GR:
1. No person under 18 years of age A: The Er shall first secure a work permit from the
will be allowed to be employed in an DOLE which shall ensure observance of the
undertaking which is hazardous or requirements. (Sec. 12, R.A. 7160)
deleterious in nature.
2. No Er shall discriminate against any Q: What is the rule regarding the issuance of work
person in respect to terms and conditions certificates/ permits for children at least 15 but
of employment on account of his age. below 18 years of age?

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


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

(c) of the LC provides that a person below 18 yrs of the employment of persons below 18 years of age
age shall not be allowed to work in an undertaking in an undertaking which is hazardous or deleterious
which is hazardous or deleterious in nature as in nature as determined by the SLE.
determined by the SLE. Paint manufacturing has
been classified by the SLE as a hazardous work. 2. An 11year old boy who is an accomplished
(2002 Bar Question) singer and performer in different parts of the
country.
Q: What are the prohibitions on the employment
of children in certain advertisements? A: No, he should not be prohibited from being hired
and from performing as a singer. Under Art. VIII Sec.
A: No employment of child models in all 12 par. 2 of R.A. 7619 as amended by R.A. 7658, this
commercial advertisements promoting: constitutes an exception to the general prohibition
against the employment of children below 15 years
1. Violence of age, provided that the following requirements
2. Alcoholic beverages are strictly complied with:
3. Intoxicating drinks
4. Tobacco and its by products 1. The Er shall ensure the
protection, health safety and morals of
Q: A spinster school teacher took pity on one of the child
her pupils, a robust and precocious 12year old boy 2. The Er shall institute measures
whose poor family could barely afford the cost of to prevent the childs exploitation or
his schooling. She lives alone at her house near the discrimination taking into account the
school after her housemaid left. In the afternoon, system and level of remuneration, and
she lets the boy do various chores as cleaning, the duration and arrangement of working
fetching water and all kinds of errands after school time; and
hours. She gives him rice and P30.00 before the 3. The Er shall formulate and
boy goes home at 7:00 every night. The school implement, subject to the approval and
principal learned about it and charged her with supervision of competent authorities, a
violating the law which prohibits the employment continuing program for training and skill
of children below 15 years of age. In her defense, acquisition of the child. Moreover, the
the teacher stated that the work performed by her child must be directly under the sole
pupil is not hazardous, and she invoked the responsibility of his parents or guardian
exception provided in the Department Order of and his employment should not in any
DOLE for the engagement of persons in domestic way interfere with his schooling.
and household service. Is her defense tenable?
Reason? 3. A 15year old girl working as a library assistant
in a girls' high school.
A: No, her defense is not tenable. Under Art. 139 of
the LC on minimum employable age, no child A: No, she should not be prohibited from working
below 15 years of age shall be employed except as a library assistant because the prohibition in the
when he works directly under the sole responsibility LC against employment of persons below 18 years
of his parents or guardian, the provisions of the of age merely pertains to employment in an
alleged DO of DOLE to the contrary undertaking which is hazardous or deleterious in
notwithstanding. A mere DO cannot prevail over the nature as identified in the guidelines issued by the
express prohibitory provisions of the LC. (2004 Bar SLE working as a library assistant is not one of
Question) undertakings identified to be hazardous under D.O.
No 04 Series of 1999.
Q: Determine whether the following minors
should be prohibited from being hired and from 4. A 16year old girl working as model promoting
performing their respective duties indicated alcoholic beverages.
hereunder:
A: Yes, she should be prohibited from working as a
1. A 17year old boy working as miner at the model promoting alcoholic beverages. R.A. 7610
Walwadi Mining Corporation. categorically prohibits the employment of child
models in all commercials or advertisements
A: Yes, he should be prohibited from being hired promoting alcoholic beverages and intoxicating
and from performing the duties of a miner because drinks, among other things.
such constitutes hazardous work under D.O. No. 04
Series of 1999. Art. 139 (c) of LC expressly prohibits 5. A 17year old boy working as a dealer in a
casino.

LABOR LAW TEAM:


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

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

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


dealer in casino, because Art. 140 of the LC 8:00 pm 6:00 am
prohibits the employment of persons below 18
years of age in an undertaking which is hazardous or 2. At least 15 years of age but
deleterious in nature identified in the guidelines below 18 years of age will not exceed 8
issued by the SLE. Working as a dealer in a casino is hours a day or 40 hours a week
classified as hazardous under D.O. No. 04 Series of - Not allowed to work between
1999 as it exposes children to physical, 10:00 pm 6:00 am
psychological or sexual abuses. (2006 Bar Question)
Q: What are the worst forms of labor?
b.Act Against Child Labor (RA 9231) and Child Abuse
Law (RA 7610) A:
1. All forms of slavery (Anti
Q: What is child labor? Trafficking of Persons Act of 2003) or
practices similar to slavery such as sale
A: Any work or economic activity performed by a and trafficking of children, debt bondage
child that subjects him or her to any form of and serfdom and forced or compulsory
exploitation or is harmful to his or her health and labor, including recruitment of children for
safety or physical, mental or psychosocial use in armed conflict;
development. 2. The use, procuring, offering or
exposing of a child pornography or for
Q: Who is a working child? pornographic performances;
3. The use, procuring, offering or
A: Any child engaged as follows: exposing of a child for illegal or illicit
activities, including the production and
1. When the child is below 18 years of trafficking of dangerous drugs and volatile
age in substances prohibited under existing laws;
a work or economic activity that is not 4. Employing child models in all
child labor; or commercials or advertisements promoting
2. When the child is below 15 years of alcoholic beverages, intoxicating drinks,
age: tobacco and its byproducts and violence;
a. In work where he/she is and
directly under the responsibility of 5. Work which, by its nature or
his/her parents or legal guardian and circumstances in which it is carried out, is
where only members of the childs hazardous or likely to be harmful to the
family are employed; or health, safety or morals of children.
b. In public entertainment or
information Q: Who can file a complaint for unlawful acts
committed against children?
Q: When may the State intervene in behalf of the
child? A:
1. Offended party
A: 2. Parents or guardians
1. The parent, guardian, teacher or 3. Ascendants or collateral
rd
person having care or custody of the child relatives within the 3 degree of
fails or is unable to protect the child consanguinity
against abuse, exploitation and 4. Officer, social worker or
discrimination; or representative of a licensed childcaring
institution
2. When such acts are committed
against the child by the said parent, 5. Officer or social worker of DSWD
guardian, teacher or person having care 6. Barangay chairman of the place
and custody over the child where the violation occurred, where the
child is residing or employed
Q: What is the limitation on the hours of work of a 7. At least 3 concerned,
working child? responsible citizens where the violation
occurred
A: If the child is:
Q: Which courts have jurisdiction over offenses
punishable under R.A. 9231?
1. Below 15 years of age not more
than 20 hours a week and not more than
A: The Family Courts shall have original jurisdiction
4 hours a day
over all cases involving offenses punishable under
this Act
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

5. Nonassignment to a work in a
commercial, industrial or agricultural
10.EMPLOYMENT OF HOUSEHELPERS enterprise at a wage or salary rate lower
than that provided for agricultural or non
a.Definition agricultural workers. (Art. 145)
Q: What is domestic or household service? 6. Ees under 18 years of age shall
A: be given opportunity for at least
1. Services in the Ers home elementary education. The cost of
2. Usually necessary or desirable education shall be part of the HHs
3. For the maintenance and compensation, unless otherwise
employment thereof stipulated. (Art 146)
4. Includes ministering to the 7. Should be treated in a just and
personal comfort and convenience of the humane manner. (Art. 147)
members of the Ers household 8. Not to be treated with physical
5. Including services of family violence (Art. 147)
drivers. 9. Suitable and sanitary living
headquarters as well as adequate food
Q: Who is a househelper? and medical attendance. (Art. 148)
10. Termination of employment should be
A: A househelper is synonymous to domestic a. upon expiration of term of
servant employment, or
b. based on just cause (Art. 149)
1. Any person, male or female; 11. Indemnity for unjust
2. Who renders services in and termination of service
about the Ers home and; 12. Employment certification as to
3. Services are usually necessary or nature and duration of service and
Desirable for the maintenance and efficiency and conduct of househelper.
enjoyment thereof, and
4. Ministers exclusively to the Q: What is the minimum wage for househelpers?
personal comfort and enjoyment of Ers
family A:
1. Meto ManilaP 800 / month
Note: The children and relatives of a househelper who 2. Other Chartered Cities or First Class
live under the Ers roof and who share the MunicipalitiesP 650 / month
accommodations provided for the househelper by the 3. In other MunicipalitiesP 550 / month
Er shall not be deemed as househelpers if they are not
otherwise engaged as such and are not required to Note: The minimum cash wage rates shall be paid to
perform any substantial household work. (Sec 3, Rule the househelpers in addition to lodging, food and
XII, Book III, IRR) medical attendance.

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


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

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


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

4. The deduction is made at such


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

A: It shall be the duty of the Er to provide in such Q: Distinguish househelpers from homeworkers.
contract that the Ees or HWs of the contractor and
the latters subcontractor shall be paid in A:
HOUSEHELPERS HOMEWORKERS
accordance with the LC. Performs in or about his
own home any processing
Q: What is the liabilty of the Er if the contractor or or fabrication of goods or
subcontractor fails to pay the wages or earnings of Minister to the personal materials, in whole or in
his Ees? needs and comfort of his part, which have been
Er in the latters home furnished directly or
A: Er shall be jointly and severally liable with the indirectly, by an Er and
contractor or subcontractor to the workers of the sold thereafter to the
latter to the extent that such work is performed latter.
under such contract, in the same manner as if the Q: Josie is the confidential secretary of the
Ees or HWs were directly engaged by the Er. Chairman of the Board of the bank. She is
presently on maternity leave. In an arrangement
Q: Can Homeworkers form labor organizations? where the Chairman of the Board can still have
access to her services, the bank allows her to work
A: Yes. DO No. 5, replacing Rule XIV of the IRR in her residence during her leave. For this purpose,
Book the bank installed a fax machine in her residence,
3 of the LC, authorizes the formation and and gave her a cellphone and a beeper. Is Josie a
registration of labor organization of industrial HWs. homeworker under the law? Explain.
It also makes explicit the Ers duty to pay and remit
SSS, Philhealth and ECC premiums. A: No, she is actually an office worker. She is not an
industrial homeworker who accepts work to be
Q: What are the prohibitions against fabricated or processed at home for a contractor,
homework? which work, when finished, will be returned to or
repurchased by said contractor. (Art. 155, LC) (2000
A: No homework shall be performed on: Bar Question)

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


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

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

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

A: Those which are engaged in the application of A: They are contractual workers whose length of
advanced technology. service depends on the term provided for in the
apprenticeship agreement. Thus, the employer is
Q: What are related theoretical instructions? not obliged to employ the apprentice after the
completion of his training.
A: Technical information based on apprenticeship
standards approved by the Bureau. Q: What is the period of apprenticeship?

Note: Prior approval by TESDA (formerly DOLE) of the A: Must not exceed 6 months:
proposed apprenticeship program is a condition sine
qua non. Otherwise, apprentice becomes a regular Ee. 1. 2 months/400 hours: Trades or
(Nitto Enterprises v. NLRC, G.R. No. 114337, Sep. 29, occupations which normally require 1
1995). year or more for proficiency
2. 1 month/200 hours:
Q: What are the qualifications of an apprentice? Occupations and jobs which require more
than 3 months but less than 1 year for
A: proficiency. (Sec. 19, Rule VI, Book II, IRR)
1. At least 15 years of age
Note: Those below 18 years of age shall not Q: What is the status of an apprentice hired after
work in hazardous occupations such term?
2. Physically fit for the occupation
3. Possess vocational aptitude and A: He is deemed a regular Ee. He cannot be hired as
capacity a probationary Ee since the apprenticeship is
4. Possess: deemed the probationary period.
a. The ability to
comprehend, and Q: What is the wage rate of an apprentice?
b. Follow oral and written
instructions A: Start at not less than 75% of the statutory
5. The company must have an st
minimum wage for the 1 6 months (except OJT);
apprenticeship program duly approved by thereafter, shall be paid in full minimum wage,
the DOLE. including the full COLA.

Note: Trade and industry associations may recommend Note: GR: Apprenticeship programs shall be primarily
to the SLE appropriate educational requirements for voluntary
different occupations.
XPN: Compulsory apprenticeship:
Q: When is an occupation deemed hazardous? 1. National security or economic
development so demand, the President
A: may require compulsory training
1. Nature of work exposes worker to 2. Services of foreign technicians are
dangerous environmental elemental utilized by private companies in
contaminants or work conditions apprenticeable trades.
2. Workers are engaged in
construction work, logging, firefighting, Q: What are the rules regarding apprenticeship
mining, quarrying, blasting, stevedoring, agreements?
deepsea fishing, and mechanized farming
3. Workers are engaged in the A: Apprenticeship agreements, including the wage
manufacture or handling of explosives rates of apprentices, shall:
and other pyrotechnic products
1. Conform to the rules issued by SLE.
4. Workers use, or are exposed to
2. The period of apprenticeship
heavy or powerdriven machinery or
shall not exceed 6 months.
equipment.
3. Apprenticeship agreements
providing for wage rates below the legal
Q: Who may employ apprentices?
minimum wage, which in no case shall
start below 75% of the applicable min.
A:
wage, may be entered into only in
1. Only employers in highly technical
accordance with
industries and
2. Only in apprenticeable occupations
approved by SLE

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

apprenticeship programs duly approved A: Gomburza College is not liable for the acts of
by the SLE. Padilla because there is no ErEe relationship
4. The DOLE shall develop standard between them. As provided in the Rules and
model programs of apprenticeship. (Sec. Regulations Implementing the LC "there is no ErEe
18, Rule VI, Book II, IRR) relationship between students on one hand, and
schools, colleges, or universities on the other, where
Q: Who signs the apprenticeship agreement? students work with the latter in exchange for the
privilege to study free of charge, provided the
A: Every apprenticeship agreement shall be signed students are given real opportunity, including such
by: facilities as may be reasonable and necessary to
finish their chosen courses under such
1. The employer or his agent, or arrangement." (1997 Bar Question)
2. An authorized representative of
any of the recognized organizations, Q: Who may terminate an apprenticeship
associations or groups, and agreement?
3. The apprentice.
A:
Q: Who will sign if the apprentice is a minor? 1. Either party may terminate an
agreement after the probationary period
A: An apprenticeship agreement with a minor shall but only for a valid cause.
be signed in his behalf by: 2. It may be initiated by either
party upon filing a complaint or upon
1. His parent or guardian, or if the DOLEs own initiative.
latter is not available,
2. An authorized representative of Q: Who may appeal the decision of the authorized
the DOLE. agency of the DOLE?

A: It may be appealed by any aggrieved person to


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

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

A: The party terminating shall:

1. Serve a written notice on the other at


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

b.Learners

Q: Who are learners?

A:
1. They are persons hired as trainees in
semiskilled
occupations
2. Which are nonapprenticeable and
3. Which may be learned through practical
training on the job in a relatively short

period of time
4. Which shall not exceed 3 months
5. Whether or not such practical training is

supplemented by theoretical instructions.

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

Q: When may learners be employed?

A:

1. When no experienced worker is available

2. It is necessary to prevent curtailment of

employment opportunities; and

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

Q: What is a learnership agreement?

A: Any employer desiring to employ learners shall

enter into a learnership agreement with

which agreement shall include:

1. The names and addresses of the learners;


2. The duration
which shall not exceed 3 months;

3. The wages or salary rates of the learners

which shall begin at not less than 75% of

the applicable minimum wage; and

4. A commitment to employ the learners if

they so desire, as regular employees upon

completion of the learnership.

Q: What is the qualification of a learner?

A: Must be at least 15 years of age.

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


hazardous occupations.

Q: Who may employ learners?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

disability he can still efficiently perform his work, he


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

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

A: Those whose earning capacity is impaired Q: What are the rights and privileges of disabled
by: workers?

1. Physical deficiency A:
2. Age 1. Equal opportunity for employment
3. Injury 2. Sheltered employment (the govt
4. Disease shall endeavour to provide them work if
5. Mental deficiency suitable employment for disabled persons
6. Illness cannot be found through open employment)
3. Apprenticeship
Q: What is the duration of the employment period 4. Vocational rehabilitation (means
of handicapped workers? to develop the skills and potentials of
disabled workers and enable them to
A: There is no minimum or maximum duration. It compete in the labor market)
depends on the agreement but it is necessary that 5. Vocational guidance and counselling
there is a specific duration stated.
c.Prohibitions on discrimination against disabled
Q: May handicapped workers be hired as persons
apprentices or learners?
Q: What is the prohibition on discrimination
A: Yes, if their handicap is not such as to effectively against disabled workers?
impede the performance of job operations in the
particular occupations for which they are hired. A: No disable person shall be denied access to
(Art. 81) opportunities for suitable employment. A qualified
disabled employee shall be subject to the same
Q: Can a handicapped workers acquire the status terms and conditions of employment and the same
of a regular Ee? compensation, privileges, benefits, fringe benefits,
incentives or allowances as a qualified able bodied
A: Yes, if work is usually or necessarily or person.
desirable
to the business. (Bernardo v. NLRC, G.R No. 122917, Five percent (5%) of all casual emergency and
July 12, 1999) contractual positions in the Departments of Social
Welfare and Development; Health; Education,
Q: Who may employ handicapped workers? Culture and Sports; and other government agencies,
offices or corporations engaged in social
A: Employers in all industries. Provided, the development shall be reserved for disabled persons.
handicap is not such as to effectively impede the
performance of job operations in the particular d.Incentives for employers
occupations for which they are hired
Q: What are the incentives provided for employers
Q: When can handicapped workers be in employing disabled workers?
employed?
A: 1. Entitled to an additional deduction, from their
A: gross income, equivalent to twentyfive percent
1. When their employment is (25%) of the total amount paid as salaries and
necessary to prevent curtailment of wages to disabled persons: Provided, however, That
employment opportunities and such entities present proof as certified by the
2. When it will not create unfair Department of Labor and Employment that disabled
competition in labor costs or lower persons are under their employ: Provided, further,
working standards. (Art. 79) That the disabled employee is accredited with the
Department of Labor and Employment and
Q: Does the mere fact that a worker has a
disability, make him a handicapped worker?

A: No, because his disability may not impair his


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

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

the Department of Health as to his disability, skills


and qualifications

2. Private entities that improve or modify their


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

Q: Distinguish handicapped from disabled?

A:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

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


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

Q: The employment contract stipulates that there Is there an ErEe relationship between the BARON,
is no ErEe relationship between the parties. Is that on one hand, and the ASIA security guards, on the
valid? other hand? Explain briefly.
A: No. The existence of an ErEe relation is a
A: As a general rule, the security guards of a private
question of law and being such, it cannot be made
security guard agency are the employees of the
the subject of agreement. (Tabas v. California
latter and not of the establishment that has entered
Manufacturing Co., G.R. No. L80680, Jan. 26, 1989)
into a contract with the private security guard
agency for security services. But under the facts in
Q: Banco de Manila and the Ang Husay Janitorial
the question, Baron Hotel appear to have hired the
and Pest Control Agency entered into an
security guards, to have paid their wages, to have
Independent Contractor Agreement with the usual
the power to promote, suspend or dismiss the
stipulations: specifically, the absence of ErEe
security guards and the power of control over them,
relationship, and the relief from liability clauses.
namely, the security guards were under orders of
Can the bank, as a client, and the agency, as an
Baron Hotel as regard their employment. Because
independent contractor, stipulate that no ErEe
of the abovementioned circumstances, Baron Hotel
relationship exists between the bank and the Ees
is the Er of the security guards.
of the Agency who may be assigned to work in the
Bank? Reason.
Q: Assuming that ASIA is the Er, is the act of ASIA
A: Yes, they can stipulate provided the relationship in placing the security guards on "floating status"
is job contracting. However the stipulation cannot lawful? Why?
prevail over the facts and the laws. The existence of
ErEe relationship is determined by facts and law A: It is lawful for a private security guard agency to
and not by stipulation of the parties. (Insular Life place its security guard on a "floating status" if it
Assurance Co.. Ltd. v. NLRC, G.R. No. 119930, March has no assignment to give to said security guards.
12,1998) But if the security guards are placed on a "floating
status" for more than 6 months, the security guards
Q: ASIA executed a 1year contract with the Baron may consider themselves as having been dismissed.
Hotel (BARON) for the former to provide the latter (1999 Bar Question)
with 20 security guards to safeguard the persons
and belongings of hotel guests, among others. The Q: Lacson was one of more than 100 Ees who were
security guards filled up Baron application form terminated from employment due to the closure of
and submitted the executed forms directly to the LBM Construction Corporation. LBM was a sister
Security Department of Baron. The pay slips of the company of Lastimoso Construction, Inc. and RL
security guards bore BARON's logo and showed Realty & Devt Corp. All 3 entities formed what
that Baron deducted therefrom the amounts for came to be known as the Lastimoso Group of
SSS premiums, medicare contributions and Companies. The 3 corporations were owned and
withholding taxes. Assignments of security guards, controlled by members of the Lastimoso family;
who should be on duty or on call, promotions, their incorporators and directors all belonged to

LABOR LAW TEAM:


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

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

the Lastimoso family. The 3 corporations were 4. Power of control. (The Labor
engaged in the same line of business, under one Code with Comments and Cases 2007,
management, and used the same equipment Azucena, Vol I, p.158)
including manpower services. Lacson and his co
Ees filed a complaint with the Labor Arbiter against Q: What is control test?
LBM, RL Realty and Lastimoso Construction to hold
them jointly and severally liable for backwages and A: The person for whom the services are performed
separation pay. Lastimoso Construction, Inc. RL reserves a right to control not only the end to be
Realty & Development Corporation interposed a achieved but also the means to be used in reaching
Motion to Dismiss contending that they are such end.
juridical entitles with distinct and separate
personalities from LBM Construction Corporation Note: However, in certain cases the control test is not
and therefore, they cannot be held jointly and sufficient to give a complete picture of the relationship
severally liable for the money claims of workers between the parties, owing to the complexity of such a
who are not their Ees. Rule on the motion to relationship where several positions have been held by
dismiss. Should it be granted or denied? Why? the worker. The better approach is to adopt the two
tiered test. (Francisco vs. NLRC, G.R. No. 170087, Aug.
31, 2006)
A: It is very clear that even if LBM Construction
company, Lastimoso Construction Company, Inc. Q: Genesis entered into a Careers Agent
and RL Realty & Devt Corp. all belong to the Agreement with EmoLife Insurance Company, a
Lastimoso family and are engaged in the same line domestic corporation engaged in insurance
of business under one management and used the business. In the Agreement, it provides that the
same equipment including manpower services, agent is an independent contractor and nothing
these corporations were separate juridical entities. therein shall be construed or interpreted as
Thus, only the LBM Construction Corp. is the Er of creating an employer employee relationship. It
Teofilo Lacson. The other corporation do not have further provides that the agent must comply with
any ErEe relations with Lacson. The case in three requirements: (1) compliance with the
question does not include any fact that would regulations and requirements of the company; (2)
justify piercing the veil of corporate fiction of the maintenance of a level of knowledge of the
other corporations in order to protect the rights of company's products that is satisfactory to the
workers. In a case (Concept Builders, Inc. v. NLRC, company; and (3) compliance with a quota of new
G.R. No. 108734, May 29, 1996) the SC ruled that it businesses. However, EmoLife insurance company
is a fundamental principle of corporation law that a terminated Genesis services. Genesis filed an
corporation is an entity separate and distinct from illegal dismissal complaint alleging therein that an
its stockholders and from other corporations to employeremployee relationship exists and that he
which it may be connected. But this separate and was illegally dismissed. Is he an employee of the
distinct personality of a corporation is merely a insurance company?
fiction created by law for convenience and to
promote justice. So, when the notion of separate A: Genesis is not an employee of EmoLife Insurance
juridical personality is used to defeat public Company. Generally, the determinative element is
convenience, justify wrong, protect fraud or defend the control exercised over the one rendereing the
crime, or is used as a device to defeat the labor service. The concept of control in Labor Code has
laws, this separate personality of the corporation to be compared and distinguished with control
maybe disregarded or the veil of corporate fiction that must necessarily exist in a principalagent
pierced. (1999 Bar Question) relationship. The employer controls the employee
both in the results and in the means and manner of
a.Four fold test achieving this result. The principal in an agency
relationship, e.g. insurance agent, on the other
Q: What factors determine the existence of an Er hand, also has the prerogative to exercise control
Ee relationship? over the agent in undertaking the assigned task
based on the parameters outlined in the pertinent
A: The fourfold test: laws. In the present case, the Agreement fully
serves as grant of authority to Genesis as EmoLifes
1. Selection and engagement of the insurance agent. This agreement is supplemented
employee; by the companys agency practices and usages, duly
2. Payment of wages; accepted by the agent in carrying out the agency.
3. Power of dismissal; and Foremost among these are the directives that the
principal may impose on the agent to achieve the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

assigned tasks, to the extent that they do not just cause, when he fails to qualify as a regular Ee in
involve the means and manner of undertaking these accordance with reasonable standards prescribed
tasks. The law likewise obligates the agent to render by the Er.
an account; in this sense, the principal may impose
on the agent specific instructions on how an Q: Michelle Miclat was employed on a
account shall be made, particularly on the matter of probationary basis as marketing assistant by
expenses and reimbursements. To these extents, Clarion Printing House but during her employment
control can be imposed through rules and she was not informed of the standards that would
regulations without intruding into the labor law qualify her as a regular employee (Ee). 30 days
concept of control for purposes of employment. after, Clarion informed Miclat that her
(Gregorio Tongko v. ManuLife Insurance Company, employment contract had been terminated
G.R. No. 167622, Jun. 29, 2010) without any reason. Miclat was informed that her
termination was part of Clarions costcutting
b.Two tiered Test measures. Is Miclat considered as a regular Ee and
hence entitled to its benefits?
Q: What is the twotiered test?
A: Yes. Probationary employment shall be governed
A: by the following rules: (d) In all cases of
1. The putative Ers power to probationary employment, the Er shall make known
control the Ee with respect to the means to the Ee the standards under which he will qualify
and methods by which the work is to be as a regular Ee at the time of his engagement.
accomplished; and Where no standards are made known to the Ee at
2. The underlying economic that time, he shall be deemed a regular Ee. In the
realities of the activity or relationship. case at bar, she was deemed to have been hired
from day one as a regular Ee. (Clarion Printing
Note: This twotiered test would provide us with a House Inc., vs. NLRC, G.R. No. 148372, June 27,
framework of analysis, which would take into 2005)
consideration the totality of circumstances surrounding
the true nature of the relationship between the Q: What are the characteristics of probationary
parties. This is especially appropriate in this case where employment?
there is no written agreement or terms of reference to
base the relationship on and due to the complexity of
A:
the relationship based on the various positions and
1. It is an employment for a trial period;
responsibilities given to the worker over the period of
the latters employment. (Francisco vs. NLRC, G.R. No. 2. It is a temporary employment
170087, Aug. 31, 2006) status prior to regular employment;
3. It arises through a contract with
Q: What is the proper standard for economic the following elements:
dependence? a. The employee (Ee) must learn
and work at a particular type of work
A: The proper standard is whether the worker is b. Such work calls for certain
dependent on the alleged employer for his qualifications
continued employment in that line of business c. The probation is fixed
d. The Er reserves the power to
c.Probationary employment terminate during or at the end of the
trial period
Q: What is probationary employment? e. And if the Ee has learned the job
to the satisfaction of the Er, he
A: Employment where the employee (Ee), upon his becomes a regular Ee.
engagement:
Q: What is the period of probationary
1. Is made to undergo a trial period employment?
2. During which the Er determines
his fitness to qualify for regular A: GR: It shall not exceed 6 months.
employment,
3. Based on reasonable standards XPNs:
made known to the Ee at the time of 1. Covered by an apprenticeship or
engagement. (Sec 6, Rule I, Book VI, IRR) learnership agreement stipulating a
different period
Note: The services of an Ee who has been engaged
on probationary basis may be terminated only for
LABOR LAW TEAM:
66 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

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

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


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

A: No. The evil sought to be prevented is to Q: What is the purpose of the period?
discourage scheming employers from using the
system of double or successive probation to A: To afford the employer an opportunity to
circumvent the mandate of the law on observe the fitness of a probationary employee at
regularization and make it easier for them to work.
dismiss their employees. (Holiday Inn Manila v.
NLRC, G.R. No. 109114, Sep. 14, 2003) Q: In what instances is a probationary employee
(Ee) deemed a regular Ee?
Q: Middleby Phils. Corp. hired Alcira as engg
support services supervisor on a probationary A:
basis for 6 months. Apparently unhappy with 1. If he is allowed to work after a
Alciras performance, Middleby terminated his probationary period. (Art. 281)
services. Alcira contends that he was already a
regular employee (Ee) when he was terminated.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

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


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

Note: The probationary employee is entitled to In the instant case where the CSA did not wish to
procedural due process prior to dismissal from service. renew the contract of employment for the next
school year, the Gela has no ground to protest. She
Q: R.L. Cruz was employed as gardener by Manila was not illegally dismissed. Her contract merely
Hotel on probation status effective Sep. 22, 76. expired. (CSA v. NLRC, G.R No. 87333, Sep. 6, 1991)
The appointment signed by Cruz provided for a 6
month probationary period. On Mar. 20, 77, or a Q: During their probationary employment, 8 Ees
day before the expiration of the probationary were berated and insulted by their supervisor. In
period, Cruzs was promoted to lead gardener protest, they walked out. The supervisor shouted
position. On the same day Cruz position was at them to go home and never to report back to
abolished by Manila Hotel allegedly due to work. Later, the personnel manager required
economic reverses or business recession, and to them to explain why they should not be dismissed
salvage the enterprise from imminent danger of from employment for abandonment and failure to
collapse. Was Cruz illegally dismissed? qualify for the positions applied for. They filed

LABOR LAW TEAM:


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

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

a complaint for illegal dismissal against their Er. Regular employment does not mean permanent
As a LA, how will you resolve the case? employment. A probationary Ee becomes a regular Ee
after 6 months. A regular Ee may only be terminated
A: As a LA I will resolve the case in favor of the 8 for just/authorized causes.
probationary Ees due to the ff::
The practice of entering into employment contracts
which would prevent the workers from becoming
1. Probationary Ees also enjoy
regular should be struck down as contrary to public
security of tenure. (Biboso v. Victoria
policy and morals. (Universal Robina Corp. v. Catapang,
Milling, G.R. No. L44360, Mar. 31, 1977)
G.R. No. 164736, Oct. 14, 2005)
2. In all cases involving Ees on
probationary status, the Er shall make
(a)Reasonable connection rule
known to the Ee at the time he is hired,
the standards by which he will qualify for
Q: What is the test to determine regular
the positions applied for.
employment?
3. The filing of the complaint for
illegal dismissal effectively negates the A:
Ers theory of abandonment. (Rizada v. 1. The primary standard of
NLRC, G.R. No. 96982, Sep. 21, 1999) determining regular employment is the
4. The order to go home and not to reasonable connection between the
return to work constitutes dismissal from particular activity performed by the
employment. employee (Ee) to the usual trade or
5. The 8 probationary Ees were business of the employer. The test is
terminated without just cause and whether the former is usually necessary
without due process or desirable in the usual business or trade
of the Er. (De Leon v. NLRC, G.R. No.
In view of the foregoing, I will order reinstatement 70705, Aug. 21, 1989)
to their former positions without loss of seniority
rights with full backwages, plus damages and attys Note: The connection can be determined by
fees. (2006 Bar Question) considering the nature of the work
performed and its relation to the scheme of
d.Kinds of employment the particular business or trade in its
entirety. (Highway Copra Traders v. NLRC,
(1)Regular employment G.R. No. 108889, July 30, 1998)
Q: What is regular employment?
A: 2. Also, the performance of a job
1. An employment shall be deemed to for at least a year is sufficient evidence of
be regular where the Ee has been the jobs necessity if not indispensability
engaged to perform activities which are to the business. This is the rule even if its
usually necessary or desirable in the usual performance is not continuous and
business or trade of the Er, the provisions merely intermittent. The employment is
of written agreements to the contrary considered regular, but only with respect
notwithstanding and regardless of the oral to such activity and while such activity
agreements of the parties. (Sec. 5 [a], exists. (Universal Robina Corp. v.
Rule I, Book VI, IRR) Catapang, G.R. No. 164736, Oct. 14,
2005).
2. Any Ee who has rendered at least
one year of service, whether such service Note: The status of regular employment attaches to
is continuous or broken, shall be the casual Ee on the day immediately after the end of
considered a regular Ee with respect to his first year of service. The law does not provide the
the activity in which he is employed and qualification that the Ee must first be issued a regular
his employment shall continue while such appointment or must first be formally declared as such
before he can acquire a regular status. (Aurora Land
activity exists. (Sec. 5 [b], Rule I, Book VI,
Projects Corp. v. NLRC, G.R. No. 114733, Jan. 2, 1997)
IRR)
Q: Is the mode of compensation determinative of
Note: Regularization is not a management prerogative;
regular employment?
rather, it is the nature of employment that determines
it. It is a mandate of the law. (PAL v. Pascua, G.R. No.
143258, Aug. 15, 2003) A: No, while the Ees mode of compensation was on
a per piece basis the status and nature of their
employment was that of regular Ees. (Labor

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

Congress of the Phils v. NLRC, G.R. No. 123938, May were directly related to the business of the
21, 1998) Tanjangcos as lessors of residential and apartment
bldgs. Moreover, such a continuing need for his
Q: When does Art. 280 not apply? services by the Tanjangcos is sufficient evidence of
the necessity and indispensability of his services to
A: It does not apply in case of OFWs. their business or trade.

Note: Seafarers cannot be considered as regular Ees. Dagui should likewise be considered a regular Ee by
Their employment is governed by the contracts they the mere fact that he rendered service for the
sign everytime they are hired and their employment Tanjangcos for more than one year, that is,
terminated when the contract expires. Their beginning 53 until 82, under Doa Aurora; and
employment is fixed for a certain period of time. then from 1982 up to June 8, 91 under the
(Ravago v. Esso Eastern Maritime Ltd., G.R. No. daughter, for a total of 29 and 9 years respectively.
158324, Mar. 14, 2005) Owing to Dagui's length of service, he became a
regular Ee, by operation of law, one year after he
Q: Moises was employed by La Tondea at the was employed in 53 and subsequently in 82.
maintenance section of its Engg Dept paid on a (Aurora Land Projects Corp. v. NLRC, G.R. No.
daily basis through petty cash vouchers. His work 114733, Jan. 2, 1997)
consisted mainly of painting company building and
equipment and other odd jobs relating to Q: A total of 43 Ees who are deafmutes were
maintenance. After a service of more than 1 year, hired and rehired on various periods by Far East
Moises requested that he be included in the Bank and Trust Co. as money sorters and counters
payroll of regular workers, instead of being paid through a uniformly worded agreement called
through petty cash vouchers. Instead La Tondeas Employment Contract for Handicapped Workers.
dismissed Moises and claimed that Moises was The company disclaimed that these Ees were
contracted on a casual basis specifically to paint regular Ees and maintained among others that
certain company buildings and that its completion they are a special class of workers, who were hired
terminated Moises employment. Can Moises be temporarily under a special employment
considered as a regular Ee? arrangement which was a result of overtures made
by some civic and political personalities to the
A: Yes, the law demands that the nature and Bank. Should the deafmute Ees be considered as
entirety of the activities performed by the Ee be regular Ees?
considered. Here, the painting and maintenance
work given Moises manifests a treatment consistent A: Yes. The renewal of the contracts of the
with a maintenance man and not just a painter, for handicapped workers and the hiring of others leads
if his job was only to paint a building there would be to the conclusion that their tasks were beneficial
no basis for giving him other work assignments in and necessary to the bank. It also shows that they
between painting activities. were qualified to perform the responsibilities of
their positions; their disability did not render them
It is not tenable to argue that the painting and unqualified or unfit for the tasks assigned to them.
maintenance work of Moises are not necessary in
La Tondeas business of manufacturing liquors; The Magna Carta for Disabled Persons mandates
otherwise, there would be no need for the regular that a qualified disabled Ee should be given the
maintenance section of the companys engg dept. same terms and conditions of employment as a
(De Leon v. NLRC, G.R. No. 70705, Aug. 21, 1989) qualified ablebodied person. The fact that the Ees
were qualified disabled persons necessarily
Q: Honorio Dagui was hired by Doa Aurora removes the employment contracts from the ambit
Suntay Tanjangco in 1953 to take charge of the of Art. 80. Since the Magna Carta accords them the
maintenance and repair of the Tanjangco rights of qualified ablebodied persons, they are
apartments and residential bldgs. He was to thus covered by Art. 280 of the LC. (Bernardo v.
perform carpentry, plumbing, electrical and NLRC, G.R. No. 122917, July 12, 1999)
masonry work. Upon the death of Doa Aurora
Tanjangco in 82 her daughter, Teresita Tanjangco Q: CocaCola Bottlers Phils, Inc., (CCBPI) engaged
Quazon, took over the administration of all the the services of the workers as sales route helpers
Tanjangco properties, and dismissed Dagui. Is for a period of 5 months. After 5 months, the
Honorio Dagui a regular employee (Ee)? workers were employed by the company on a day
today basis. According to the company, the
A: Yes. The jobs assigned to Dagui as maintenance workers were hired to substitute for regular route
man, carpenter, plumber, electrician and mason helpers whenever the latter would be unavailable

LABOR LAW TEAM:


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

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

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


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

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


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

e. The termination of his projects. These facts are the basis in considering them
employment in the particular as regular Ees of the company. (Maraguinot v. NLRC,
project/undertaking is reported to the G.R. No. 120969, Jan. 22, 1998)
Department of Labor and Employment
Regional Office having jurisdiction over Members of a work pool from which a construction
company draws its project Ees, if considered Ees of the
the workplace within 30 days following
construction company while in the work pool, are non
the date of his separation from work,
project Ees or Ees for an indefinite period. If they are
using the prescribed form on employees employed in a particular project, the completion of the
termination/dismissal/suspensions project or any phase thereof will not mean severance
of ErEe relationship. Unless the workers in the work
f. An undertaking in the pool are free to leave any time and offer their services
employment contract by the employer to to other Ers. (L.T. Datu & Co., Inc. v. NLRC, G.R. No.
pay completion bonus to the project 113162, Feb. 9, 1996)
employee as practiced by most
construction companies Q: What is the day certain rule?

Q: What are the requisites in determining whether A: It states that a project employment that ends on
an employee (Ee) is a project Ee? a certain date does not end on an exact date but
upon the completion of the project.
A:
1. The project Ee was assigned to Q: Are project Ees entitled to separation pay?
carry out a specific project or undertaking,
and A: GR: Project Ees are not entitled to
2. The duration and scope of which separation pay if they are terminated as a result
were specified at the time the Ee was of the completion project.
engaged for that project. (Imbuido v.
NLRC, G.R. No. 114734, Mar. 31, 2000) XPN: If the projects they are working on have
3. The Ee must have been dismissed not yet been completed when their services are
every after completion of his project or terminated; project Ees also enjoy security of
phase tenure during the limited time of their
4. Report to the DOLE of Ees employment. (De Ocampo v. NLRC, G.R. No.
dismissal on account of completion of 81077, June 6, 1990)
contract (Policy Inst. No. 20; D.O. 19
[1997]) Q: Roger Puente was hired by Filsystems, Inc.,
initially as an installer and eventually promoted to
Q: What is a project? mobile crane operator, and was stationed at the
companys premises. Puente claimed in his
A: A "project" has reference to a particular job or complaint for illegal dismissal, that his work was
undertaking that may or may not be within the continuous and without interruption for 10 years,
regular or usual business of the Er. In either case, and that he was dismissed from his employment
the project must be distinct, separate and without any cause. Filsystems on its part averred
identifiable from the main business of the Er, and its that Puente was a project Ee in the companys
duration must be determined or determinable (PAL various projects, and that after the completion of
v. NLRC, G.R. No. 125792, Nov. 9, 1998). each project, his employment was terminated, and
such was reported to the DOLE. Is Roger Puente a
Q: Can a project employee (Ee) or a member of a regular Ee?
work pool acquire the status of a regular Ee?
A: No, Puente is a project Ee. The contracts of
A: Yes, when the following concur: employment of Puente attest to the fact that he was
hired for specific projects. His employment was
1. There is a continuous rehiring of coterminous with the completion of the projects for
project Ees even after cessation of a which he had been hired. Those contracts expressly
project; and provided that his tenure of employment depended
2. The tasks performed by the on the duration of any phase of the project or on
alleged project Ee are vital, necessary the completion of the construction projects.
and indispensable to the usual business or Furthermore, the company regularly submitted to
trade of the employer (Er). the labor dept reports of the termination of
services of project workers. Such compliance with
Note: The length of time during which the Ee was
continuously rehired is not controlling, but merely
serves as a badge of regular employment. Enero and
Maraguinot have been employed for a period of not
less than 2 years and have been involved in at least 18
LABOR LAW TEAM:
72 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO
MEMBERS: PALMA CLARISSA V. CARILLO, RANDOLPH IAN CLET, MICHAEL AARON P. GACUTAN, LORRAINE TAGUIAM
TERMINATION OF EMPLOYMENT

the reportorial reqt confirms that Puente was a duration of the season does not detract from
project Ee. considering them in regular employment. Seasonal
workers who are called to work from time to time
The mere rehiring of Puente on a projecttoproject and are temporarily laid off during offseason are
basis did not confer upon him regular employment not separated from service in that period, but
status. The practice was dictated by the practical merely considered on leave until reemployed.
consideration that experienced construction
workers are more preferred. It did not change his If the Ee has been performing the job for at least a
status as a project Ee. (Filipinas PreFabricated year, even if the performance is not continuous and
Building Systems (FILSYSTEMS), Inc. v. Puente, G.R. merely intermittent, the law deems repeated and
No. 153832, Mar. 18, 2005) continuing need for its performance as sufficient
evidence of the necessity if not indispensability of
(3)Seasonal employment that activity to the business. Hence, the
employment is considered regular, but only with
Q: What is seasonal employment? respect to such activity and while such activity
exists. (Benares v. Pancho, G.R. No. 151827, April
A: Employment where the job, work or service to 29, 2005)
be performed is seasonal in nature and the
employment is for the duration of the season. Q: Carlito Codilan and Maximo Docena had been
(Sec.5 [a], Rule I, Book VI, IRR) working for the rice mill for 25 years, while
Eugenio Go, Teofilo Trangria and Reynaldo Tulin
An employment arrangement where an employee have been working for 22, 15, and 6 years
(Ee) is engaged to work during a particular season respectively. The operations of the rice mill
on an activity that is usually necessary or desirable continue to operate and do business throughout
in the usual business or trade of the employer (Er). the year even if there are only two or three
harvest seasons within the year. This seasonal
Note: For seasonal Ees, their employment legally ends harvesting is the reason why the company
upon completion of the project or the season. The considers the workers as seasonal Ees. Is the
termination of their employment cannot and should company correct in considering the Ees as seasonal
not constitute an illegal dismissal. (Mercado v. NLRC, Ees?
G.R. No. 79869, Sept. 5, 1991)
A: No, the fact is that big rice mills such as the one
One year duration on the job is pertinent in deciding
owned by the company continue to operate and do
whether a casual Ee has become regular or not, but it
is not pertinent to a seasonal or project Ee. Passage of business throughout the year even if there are only
time does not make a seasonal worker regular or two or three harvest seasons within the year. It is a
permanent. (Mercado v. NLRC, G.R. No. 78969, Sep. 5, common practice among farmers and rice dealers to
1991) store their palay and to have the same milled as the
need arises. Thus, the milling operations are not
During offseason, the relationship of ErEe is not seasonal. Finally, considering the number of years
severed; the seasonal Ee is merely considered on LOA that they have worked, the lowest being 6 years, the
without pay. Seasonal workers who are repeatedly workers have long attained the status of regular Ees
engaged from season to season performing the same as defined under Art. 280. (Tacloban Sagkahan Rice
tasks are deemed to have acquired regular Mill v. NLRC, G.R. No. 73806, Mar. 21, 1990)
employment. (Hacienda Fatima v. National Federation
of Sugarcane WorkersFood and General Trade, G.R.
No. 149440, Jan. 28, 2003)
(4)Casual employment
Q: Are seasonal Ees entitled to separation pay? Q: What is casual employment?

A: When the business establishment is sold which A:


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

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


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

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


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

The workers are casual Ees. Nevertheless, they may


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

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


for the commencement and the termination of their
employment relation.

Q: What is a fixedterm employment?

A: It is an employment where a fixed period of


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

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

dominance whatever being exercised by Q: Does the Reasonable Connection Rule applies
the former over the latter. (Brent School, in fixed term employment for a fixed term
Inc. v. Zamora, G.R. No. 48494, Feb. 5, employee be eventually classified as regular
1990) employee?

Note: A fixedperiod Ee does not become a regular Ee A: No. It should be apparent that this settled and
because his employment is coterminus with a specific familiar notion of a period, in the context of a
period of time. contract of employment, takes no account at all of
the nature of the duties of the employee; it has
Ee hired on a fixedterm is regular if job is necessary absolutely no relevance to the character of his
and desirable to the business of Er. (Philips duties as being usually necessary and desirable to
Semiconductor v. Fadriquela, G.R. No. 141717, April the usual business of the employer, or not.
2004)
Q: Dean Jose and other employees are holding
Q: Is term employment a circumvention of the administrative positions as dean, dept heads and
law on security of tenure? institute secretaries. In the implementation of the
Reorganization, Retrenchment and Restructuring
A: No, it is not a circumvention of the law if it program effective Jan. 1, 1984, Dean Jose and
follows the requisites laid down by the Brent ruling. other employees were retired but subsequently
(Romares v. NLRC, G.R. No. 122327, Aug. 19, 1998) rehired. Their appointment to their administrative
positions as dean, dept heads and institute
Q: Rene was hired as an athletic director in secretaries had been extended by the company
ChristOmarDiviva School for a period of five years. from time to time until the expiration of their last
As such, he oversees the work of coaches and appointment on May 31, 1988. Were Dean Jose
related staff involved in intercollegiate or and other employees illegally dismissed?
interscholastic athletic programs. However, he was
not rehired upon the expiration of said period. A: No. Petitioners were dismissed by reason of the
Rene questions his termination alleging that he was expiration of their contracts of employment.
a regular employee and could not be dismissed Petitioners' appointments as dean, dept heads and
without valid cause. Is he a regular employee? institute secretaries were for fixed terms of definite
periods as shown by their respective contracts of
employment, which all expired on the same date,
A: No. Rene was not a regular employee but an May 31, 1988. The validity of employment for a fixed
employee under a fixed term contract. While it can be period has been acknowledged and affirmed by the
said that the services he rendered were usually SC. (Blancaflor v. NLRC, G.R. No. 101013, Feb. 2,
necessary and desirable to the business of the school, 1993)
it cannot also be denied that his employment was for a
fixed term of five years. The decisive determinant in e.Job contracting and labor only contracting
fixed term employment should not be the activities
that the employee is called upon to perform, but the Q: When is there job contracting?
day certain agreed upon by the parties for the
commencement and termination of their employment A: Specifically, there is job contracting where:
relation (Brent School Inc. v. Zamora, G.R. No. 48494,
Feb. 5, 1990). 1. The contractor carries on an
independent business and
Q: In the above mentioned facts, will Rene undertakes the contract work on his
automatically become a regular employee if he is own account under his own
rehired by the school for another definite period responsibility according to his own
of employment? manner and method, free from the
control and direction of his employer
A: No. The decisive determinant in term or principal in all matters connected
employment is the day certain agreed upon by the with the performance of the work
parties for the commencement and termination of except as to the results thereof; and
their employment relationship, a day certain being
understood to be that which must necessarily come, 2. The contractor has substantial
although it may not be known when and not capital or investment in the form of
whether the work is usually necessary and desirable tools, equipment, machineries, work
to the business of the employer. premises, and other materials which

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

are necessary in the conduct of his Phils., Inc., G.R. No. 179807, July 31, 2009,
business. J. CarpioMorales)

Q: When is there laboronly contracting? Q: What are the factors to consider in determining
whether contractor is carrying on an independent
A: A person is deemed to be engaged in labor business?
only contracting where:
A:
1. The person supplying workers to 1. Nature and extent of work
an employer does not have 2. Skill required
substantial capital or investment in 3. Term and duration of the relationship
the for of tools, equipment, 4. Right to assign the performance
machineries, work premises, among of specified pieces of work
others; and 5. Control and supervision of worker
6. Power of employer to hire, fire
2. The workers recruited and placed and pay wages
by such person are performing 7. Control of the premises
activities which are directly related to 8. Duty to supply premises, tools,
the principal business of such appliances, materials and labor
employer. (Baguio v. NLRC, G.R. No. 9. Mode, manner and terms of
7900408, Oct. 4, 1991) payment. (Vinoya v. NLRC, G.R. No.
126286, Feb 2, 2000)
Q: What is a permissible job contracting or
subcontracting? Note: Individuals with special skills, expertise or talent
enjoy the freedom to offer their services as
A: It refers to an arrangement whereby a principal independent contractors. An individual like an artist or
agrees to farm out with a contractor or talent has a right to render his services without any
subcontractor the performance of a specific job, one controlling the means and methods by which he
work, or service within a definite or predetermined performs his art or craft. (Sonza vs. ABSCBN, G.R. No.
period, regardless of whether such job, work or, 138051, June 10, 2004)
service is to be performed or completed within or
outside the premises of the principal. Q: Who are the parties in contracting and
subcontracting?
Q: What are the conditions that must be met in
order to be considered as permissible job A:
contracting or subcontracting? 1. Contractor/subcontractor Refers to any
person engaged in a legitimate contracting or
A: The following conditions must be met: subcontracting arrangement.

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


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

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


capital or investment; and contractual arrangements.

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


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

LABOR LAW TEAM:


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

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

A: They shall be entitled to all the rights and A: The principal shall be solidarily liable with the
privileges due to a regular Ee as provided in the LC, contractor in the event of any violation of any
as amended to include the ff: provision of the LC, including the failure to pay
wages. This will not prevent the principal from
1. Safe and healthful working claiming reimbursement from the contractor.
conditions
2. Service Incentive Leave, rest days, Q: What does substantial capital or investment
th mean?
OT pay, holiday pay, 13 month pay and
separation pay
3. Social security and welfare benefits; A: It refers to the capital stocks and subscribed
4. Selforganization, CBA and peaceful capitalization in case of corporations, tools,
concerted actions equipments, implement, machineries and work
5. Security of tenure (Sec. 8, DO 18 premises, actually and directly used by the
02) contractor or subcontractor in the performance or
completion of the job, work or service contracted
Q: What are the effects of termination of CEe to out. (D.O. 1802)
separation pay and other benefits?
Note: The law does not require both substantial capital
and investment in the form of tools, equipments,
A:
machineries, etc. This is clear from the use of
1. If prior to the expiration of the
conjunction or. If the contention was to require the
employment contract between the
contractor to prove that he has both capital and
principal and the contractor or requisite investment, then the conjunction and
subcontractor The right of CEe to should have been used. (Virginia Neri v. NLRC, G.R. No.
separation pay or other related benefits 97008, July 21, 1993)
shall be governed by the applicable laws
and jurisprudence on termination of Q: What does the right to control mean?
employment
A: It refers to the right reserved to the person for
2. If the termination results from the whom the services of the contractual workers are
expiration of the contract between the performed, to determine not only the end to be
principal and the contractor or achieved, but also the manner and means to be
subcontractor The Ee shall not be used in reaching that end. (D.O. 1802)
entitled to separation pay. However, this is
w/o prejudice to completion bonuses or Q: SMC and Sunflower Cooperative entered into a
other emoluments including retirement 1yr Contract of Services, to be renewed on a
pay as may be provided by law or in the month to month basis until terminated by either
contract between the principal and the party. Pursuant to the contract, Sunflower engaged
contractor. private respondents to render services at SMCs
Bacolod Shrimp Processing Plant. The contract was
Q: When is the principal deemed the employer of deemed renewed by the parties every month after
the contractual employee? its expiration on Jan. 1, 94 and respondents
continued to perform their tasks until Sep. 11, 95.
A: Where: In July 95, private respondents filed a complaint
before the NLRC, praying to be declared as regular
1. There is laboronly contracting Ees of SMC, with claims for recovery of all benefits
2. The contracting arrangement falls and privileges enjoyed by SMC rank and file Ees.
within the prohibited acts Respondents subsequently filed an Amended
Complaint to include illegal dismissal as additional
Q: May the Er or indirect Er require the contractor cause of action following SMCs closure of its
or subcontractor to furnish a bond equal to the Bacolod Shrimp Processing Plant on which resulted
cost of labor under contract to answer for the in the termination of their services. SMC filed a
wages due to Ees in case the contractor or Motion for Leave to File Attached Third Party
rd
subcontractor fails to pay the same? Complaint to implead Sunflower as 3 Party
Defendant. Are private respondents Ees of the
A: Yes. The Er or indirect Er may require the independent cooperative contractor (Sunflower) or
contractor or subcontractor to furnish a bond that of the SMC?
will answer for the wages due to the Ees.

Q: What is the liability of the principal?

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

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


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

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


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

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


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

LABOR LAW TEAM:


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

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

production or the number of workers and the time A: Substantive Due Process provides the ground for
used in certain areas of work. All work activities disciplinary action, i.e. corrective or retributive
and schedules were fixed by the company.
(a)Just causes
1. Is Arnold a job contractor? Explain briefly
Q: What are the just causes for termination (Art.
2. Who is liable for the claims of the workers hired 282, LC)?
by Arnold? Explain briefly.
A:
A: 1. Serious misconduct or willful
1. No. In the problem given, Arnold disobedience by the employee (Ee) of the
did not have sufficient capital or lawful orders of his employer (Er) or
investment for one. For another, Arnold representative in connection with his
was not free from the control and work
direction of SMPC because all work
activities and schedules were fixed by the 2. Gross and habitual neglect by
company. Therefore, Arnold is not a job the Ee of his duties
contractor. He is engaged in laboronly 3. Fraud or willful breach by the Ee
contracting. of the trust reposed in him by his Er or
2. SMPC is liable for the claims of the duly organized representative
workers hired by Arnold. A finding that 4. Commission of a crime or
Arnold is a labor only contractor is offense by the Ee against the person of his
equivalent to declaring that there exist an Er or any immediate member of his family
ErEe relationship between SMPC and or his duly authorized representative.
workers hired by Arnold. This is so 5. Other causes analogous to the foregoing
because Arnold is considered a mere
agent of SMPC (Lim v. NLRC, G.R. No. Note: The burden of proving that the termination was
124630, Feb. 19, 1999); 2002 Bar for a valid or authorized cause shall rest on the Er. (Art.
Question) 277[b])

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


contractors or subcontractors?
Q: What is serious misconduct?
A:
1. Nonsubmission of contracts A: It is an improper or wrong conduct; the
between the principal and the contractor transgression of some established and definite rule
or subcontractor when required to do so; of action, a forbidden act, a dereliction of duty,
2. Nonsubmission of annual report; willful in character, and implies wrongful intent and
3. Findings through arbitration that not mere error in judgment. To be serious within
the contractor or subcontractor has the meaning and intendment of the law, the
engaged in laboronly contracting and misconduct must be of such grave and aggravated
other prohibited activities; character and not merely trivial or unimportant.
4. Noncompliance with labor (Villamor Golf Club v. Pehid, G.R. No. 166152, Oct. 4,
standards and working conditions. (Sec. 2005)
16, D.O. 1802)
Q: What are the elements of serious misconduct?
Q: What are the effects of finding that there is
laboronly contracting? A:
1. It must be serious or of such a
A: A finding that a contractor is a laboronly grave and aggravated character;
contractor is equivalent to declaring that there is an 2. Must relate to the performance
employeremployee relationship between the of the employees (Ee) duties;
principal and the employees of the laboronly 3. Ee has become unfit to continue
contractor. (Assoc. AngloAmerican Tobacco Corp. working for the employer. (Philippine
v. Clave, G.R. No. 50915, Aug. 30, 1990) Aeolus Automotive United Corp. v. NLRC,
G.R. No. 124617, April 28, 2000)
2.TERMINATION OF EMPLOYMENT
Q: Give some examples of serious misconduct.
a.Substantive due process
A:
Q: What is Substantive due process?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

1. Sexual harassment 2. The disobeyed orders,


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

LABOR LAW TEAM:


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

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

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


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

Q: When is there Habitual Neglect of duties? A: Sleeping on the job as a valid ground for
dismissal only applies to security guards whose duty
A: Habitual Neglect implies repeated failure to necessitates that they be awake and watchful at all
perform ones duties over a period of time, times. Gambidos single act of sleeping further
depending upon the circumstance. (JGB and shows that the alleged negligence or neglect of duty
Associates v. NLRC, GR No. 10939, Mar. 7, 1996) was neither gross nor habitual. (VH Manufacturing
v. NLRC, G.R. No. 130957, Jan. 19, 2000)
Q: Antiola, as assorter of baby infant dress as for
Judy Phils. erroneously assorted and packaged
2,680 dozens of infant wear. Antiola was dismissed Q: Give some forms of neglect of duty.
from employment for this infraction.
Does the single act of misassortment constitute A:
gross negligence? 1. Habitual tardiness and absenteeism
2. Abandonment:
A: No. Such neglect must not only be gross but also a. Failure to report for work or
habitual in character. Hence, the penalty of absence without justifiable reason
dismissal is quite severe considering that Antiola b. Clear intention to sever ErEe
committed the infraction for the first time. (Judy relationship manifested by some
Phils. v. NLRC, G.R. No. 111934. April 29, 1998) overt acts. (Labor et. al v. NLRC, GR
No. 110388, Sep.14, 1995)
Q: Does the failure in performance evaluations
amount to gross and habitual neglect of duties? 4.Abandonment
A: As a general concept poor performance is Q: What is abandonment as a just cause for
equivalent to inefficiency and incompetence in the termination?
performance of official duties. The fact that an
employees (Ees) performance is found to be poor A: It means the deliberate, unjustified refusal of an
or unsatisfactory does not necessarily mean that employee to resume his employment.
the Ee is grossly and habitually negligent of his
duties. Gross negligence implies a want or absence Q: What are the requirements for a valid finding of
of or failure to exercise slight care of diligence or abandonment?
the entire absence or care. He evinces a thoughtless
disregard of consequences without exerting any A: For a valid finding of abandonment, 2 factors
effort to avoid them. (Eastern Overseas must be present:
Employment Center Inc. v. Bea, G.R. 143023, 1. The failure to report for work, or
Nov.29, 2005) absence without valid or justifiable
reason; and
Q: Is inefficiency a just cause for dismissal? 2. A clear intention to sever ErEe
relationship, with the 2nd element as the

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

more determinative factor, being money or property to this class


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

Q: Mejila a barber at Windfield Barber Shop, had 3. The act constituting the breach
an altercation with a fellow barber which resulted must be workrelated such as would
in his subsequent turning over the duplicate keys show the Ee concerned to be unfit to
of the shop to the cashier and took away all his continue working for the Er. (Gonzales V.
belongings there from and worked at different NLRC, G.R. No. 131653, Mar. 26, 2001)
barbershop. Mejila then filed an illegal dismissal
case but did not seek reinstatement as a relief. Did 4. It must be substantial and
Mejila commit abandonment? founded on clearly established facts
sufficient to warrant the Ees separation
A: Mejilas acts such as surrendering the shops from employment. (Sulpicio Lines Inc. V.
keys, not reporting to the shop anymore without Gulde, G.R. No. 149930, Feb. 22, 2002)
any justifiable reason, his employment in another
barber shop, and the filing of a complaint for illegal 5. Fraud must be committed
dismissal without praying for reinstatement clearly against the Er or his representatives, e.g.:
show that there was a concurrence of the intention a. Falsification of time cards
to abandon and some overt acts from which it may b. Theft of company property
be inferred that the Ee concerned has no more c. Unauthorized use of company
interest in working. (Jo v. NLRC, G.R. No. 121605, vehicle
Feb. 2, 2000)
Note: The treatment of rank and file personnel and
5.Fraud; Breach of Trust / Loss of Confidence managerial Ees in so far as the application of the
doctrine of loss of trust and confidence is concerned is
Q: When is breach of trust/loss of confidence a different. As regards managerial Ees, such as Caoile,
mere existence of a basis for believing that such Ee has
just cause for termination?
breached the trust of his Er would suffice for his
dismissal. (Caoile v. NLRC, G.R. No. 115491, Nov. 24,
A:
1998)
1. It applies only to cases involving:
a. Employees (Ees) occupying Q: What are the guidelines for the doctrine of loss
positions of trust and confidence of confidence to apply?
(confidential and managerial Ees)
to this class belong managerial Ees, A:
i.e., those vested with the powers or 1. Loss of confidence should not
prerogativesto lay down be simulated (reasonable basis for loss of
management policies and/or to hire, trust and confidence)
transfer, suspend, layoff, recall, 2. Not used for subterfuge for
discharge, assign or discipline Ees or causes which are improper and/or illegal
effectivelyrecommend such and unjustified
managerial actions 3. Not arbitrarily asserted in the
face of overwhelming evidence to the
b. Ees routinely charged with the contrary
care and custody of the employers
(Ers)
LABOR LAW TEAM:
82 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

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

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


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

officers expelled by the federation for allegedly 9.Analogous Cases


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

The right of an Ee to be informed of the charges A: Must be due to the voluntary and/or willful act
against him and to be given a reasonable or omission of the employee (Nadura v. Benguet
opportunity to present his side in a controversy with Consolidated, G.R. No. L17780, Aug. 24, 1962), e.g.:
either the company or his own union is not wiped
away by a union security clause in a CBA. Even 1. Violation of company rules and
assuming that a federation had valid grounds to regulations
expel union officers, due process requires that these 2. Drunkenness
union officers be accorded a separate hearing by 3. Gross inefficiency
the company. (MSMG v. Ramos, G.R. No. 113907, 4. Illegally diverting employers products
Feb. 28, 2000) 5. Failure to heed an order not to
join an illegal picket
7.Totality of Infractions doctrine 6. Violation of safety rules and
code of discipline
Q: What is the totality of infractions doctrine?
Q: What is the doctrine of incompatibility?
A: It is the totality, not the compartmentalization of
company infractions that the Ee has committed, A: Where the employee has done something that is
which justifies the penalty of dismissal. (MERALCO contrary or incompatible with the faithful
v. NLRC, G.R. No. 114129, Oct. 24, 1996) performance of his duties, his employer has a just
cause for terminating his employment. (Manila
Note: Where the Ee has been found to have repeatedly Chauffeurs League v. Bachrach Motor Co., G.R. No.
incurred several suspensions or warnings on account of L47071, June 17, 1940 )
violations of company rules and regulations, the law
warrants their dismissal as it is akin to habitual
(b).Authorized Causes
delinquency. (Villeno v. NLRC, G.R. No. 108153, Dec.
26, 1995)
Q: What are the authorized causes of termination
by the employer (Er)?
Q: What are the guidelines to determine the
validity of termination?
A:
1. Installation of laborsaving
A: Gravity of the offense
devices (automation/robotics)
1. Position occupied by the
employee
2. Redundancy (superfluity in the
2. Degree of damage to the
performance of a particular work) exists
employer
where the services of an employee (Ee)
3. Previous infractions of the same
are in excess of what is reasonably
offense
demanded by the actual reqts of the
4. Length of Service
enterprise. (Wiltshire File Co., Inc. v. NLRC,
G.R. No. 82249, Feb. 7, 1991)
8.Commission of a Crime
Note: The redundancy should not have been
Q: What do you mean by commission of a crime created by the Er.
or offense as a just cause for termination of an
Ee?
3. Reorganization
A: It refers to an offense by the Ee against the Note: An Er is not precluded from adopting a
person of his employer or any immediate member new policy conducive to a more economical
of his family or his duly authorized representative and effective management, and the law
and thus, conviction of a crime involving moral does not require that the Er should be
turpitude is not analogous thereto as the element suffering financial losses before he can
of relation to his work or to his employer is lacking. terminate the services of the employee on
the ground of redundancy (DOLE Phil., Inc. v.
Note: A criminal case need not be actually filed. NLRC, G.R. No. L55413, July 25, 1983)
Commission of acts constituting a crime itself is
sufficient.

LABOR LAW TEAM:


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

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

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


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

Furthermore, a position is redundant where it is


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

2. The substantial loss apprehended A: There must be fair and reasonable criteria to be
must be reasonably imminent as such used in selecting Ees to be dismissed such as:
imminence can be perceived objectively 1. Less preferred status;
and in good faith by the employer (Er). 2. Efficiency rating;
There should be a certain degree of 3. Seniority. (Phil. Tuberculosis
urgency for the retrenchment. Society, Inc. v. National Labor Union, G.R.
No. 115414, Aug. 25, 1998)
3. It must be reasonably necessary
and likely to prevent the expected losse Q: What is the last in first out (LIFO) rule?
The Er should have taken other measures
prior or parallel to retrenchment to A: It applies in the termination of employment in
forestall losses such as cutting other costs the line of work. What is contemplated in the LIFO
than labor costs. rule is that when there are two or more Ees
occupying the same position in the company
4. The alleged losses if already affected by the retrenchment program, the last one
realized, and the expected imminent employed will necessarily be the first one to go.
losses sought to be forestalled, must be (Maya Farms Ees Organization v. NLRC, G.R. No.
proved by sufficient and convincing 106256, Dec. 28, 1994)
evidence The reason for requiring this
quantum of proof is readily apparent: any Q: Is the seniority rule or "last in first out" policy
less exacting standard of proof would to be strictly followed in effecting a retrenchment
render too easy the abuse of this ground or redundancy program?
for termination of services of employees.
(Lopez Sugar Corp. v. Federation of Free A: Again, in Asian Alcohol Corp., the SC stated that
Workers, G.R. No. 7570001, Aug. 30, with regard the policy of "first in, last out" in
1990) choosing which positions to declare as redundant
or whom to retrench to prevent further business
losses, there is no law that mandates such a policy.
Note: The losses which the company may suffer or is The reason is simple enough. A host of relevant
suffering may be proved by financial statements factors come into play in determining cost efficient
audited by independent auditors (Asian Alcohol measures and in choosing the Ees who will be
Corporation v. NLRC, G.R. No. 131108, Mar. 25, 1999) retained or separated to save the

LABOR LAW TEAM:


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

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

company from closing shop. In determining these from bankruptcy. (Asian Alcohol Corp. v. NLRC, G.R.
issues, management plays a preeminent role. The No. 131108, Mar. 25, 1999)
characterization of positions as redundant is an
exercise of business judgment on the part of the Er. Closure
It will be upheld as long as it passes the test of
arbitrariness. (2001 Bar Question) Q: What are the requisites of a valid closure?

A:
Q: What is the difference between redundancy 1. Written notice served on both
and retrenchment? the employees (Ees) and the DOLE at least
1 month prior to the intended date of
A: In redundancy, company has no financial closure
problems, unlike in retrenchment where the 2. Payment of separation pay
company will suffer financial losses. equivalent to at least one month pay or at
least 1/2 month pay for every year of
Q: Philippine Tuberculosis Society, Inc. retrenched service, whichever is higher, except when
116 Ees after incurring deficits amounting to 9.1 closure is due to serious business losses
million pesos. Aside for retrenching some of its 3. Good faith
Ees, the company also implemented cost cutting 4. No circumvention of the law
measures to prevent such losses for increasing and 5. No other option available to the Er
minimizing it. The NLRC ruled that the
retrenchment was not valid on the ground that the Q: What is the test for the validity of closure or
Society did not take seniority into account in their cessation of establishment or undertaking?
selection. Was the retrenchment done by the
Society not valid for its failure to follow the criteria A: The ultimate test of the validity of closure or
laid down by law? cessation of establishment or undertaking is that it
must be bona fide in character. And the burden of
A: No. The Society terminated the employment of proving such falls upon the Er. (Capitol Medical
several workers who have worked with the Society Center, Inc. vs. Dr. Meris, G.R. No. 155098, Sep. 16,
for great number of years without consideration for 2005, J. CarpioMorales)
the number of years of service and their seniority
indicates that they had been retained for such a Q: When is separation pay required in case of
long time because of loyal and efficient service. The closure?
burden of proving the contrary rest on the Society.
(Phil. Tuberculosis Society, Inc. v. National Labor A: Only where closure is not due to serious business
Union, G.R. No. 115414, Aug. 25, 1998) losses nor due to an act of govt. (North Davao
Mining Corp v. NLRC, G.R. No. 112546, Mar. 13,
Q: Due to mounting losses the former owners of 1996; NFL v. NLRC, G.R. No. 127718, Mar. 2, 2000)
Asian Alcohol Corporation sold its stake in the
company to Prior Holdings. Upon taking control of Q: Galaxie Steel Corp. decided to close down
the company and to prevent losses, Prior Holdings because of serious business loses. It filed a written
implemented a reorganization plan and other cost notice with the DOLE informing its intended
saving measures and one of them is the closure and the termination of its employees (Ees).
retrenchment of 117 employees (Ees) of which It posted the notice of closure on the corporate
some are members of the union and the majority bulletin board.
held by nonunion members. Some retrenched
workers filed a complaint for illegal dismissal Q: Does the written notice posted by Galaxie on
alleging that the retrenchment was a subterfuge the bulletin board sufficiently comply with the
for union busting activities. notice reqt under Art. 283 of the LC?

Was the retrenchment made by Asian Alcohol A: No. In order to meet the purpose, service of the
valid and justified? written notice must be made individually upon each
and every Ee of the company. However, the Court
A: Yes. Even though the bulk of the losses were held that where the dismissal is for an authorized
suffered under the old management and continued cause, noncompliance with statutory due process
only under the new management ultimately the new should not nullify the dismissal, or render it illegal,
management of Prior Holdings will absorb such losses. or ineffectual. Still, the employer should indemnify
The law gives the new management every right to the Ee, in the form of nominal damages, for the
undertake measures to save the company violation of his right to statutory due process.

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

(Galaxie Steel Workers Union v. NLRC, G.R. No. damages and claim for employment benefits. Were
165757, Oct. 17, 2006) the losses incurred by the company enough to
justify closure of its operations?
Are Ees entitled to separation pay?
A: The determination to cease operations is a
A: No. Galaxie had been experiencing serious prerogative of management that is usually not
financial losses at the time it closed business interfered with by the State as no business can be
operations. Art. 283 of the LC governs the grant of required to continue operating at a loss simply to
separation benefits "in case of closures or cessation maintain the workers in employment. That would
of operation" of business establishments "not due be a taking of property without due process of law
to serious business losses or financial reverses." which the employer has a right to resist. But where
Where, the closure then is due to serious business it is manifest that the closure is motivated not by a
losses, the LC does not impose any obligation upon desire to avoid further losses but to discourage the
the employer to pay separation benefits. (Galaxie workers from organizing themselves into a union for
Steel Workers Unin v. NLRC, G.R. No. 165757, Oct. more effective negotiations with management, the
17, 2006) State is bound to intervene. The losses of less than
P2,000 for a corporation capitalized at P3 million
Q: Rankandfile workers of SIMEX filed a petition cannot be considered serious enough to call for the
for direct certification and affiliated with Union of closure of the company. (Carmelcraft Corp.
Filipino Workers (UFW). Subsequently, 36 workers v. NLRC, G.R. No. 9063435, June 6, 1990)
of the companys lumpia dept and 16 other
workers from other depts were effectively locked Q: Is the transferee of the closed corporation
out when their working areas were cleaned out. required to absorb the employees (Ees) of the old
The workers through UFW filed a complaint for corporation?
unfair labor practices against the company. SIMEX
then filed a notice of permanent shutdown/total A:
closure of all units of operation in the GR: There is no law requiring a bona fide purchaser
establishment with the DOLE allegedly due to of assets of an ongoing concern to absorb in its
business reverses brought about by the enormous employ the Ees of the latter except when the
rejection of their products for export to the United transaction between the parties is colored or
States. clothed with bad faith (BF). (Sundowner Devt Corp.
v. Drilon, G.R. No. 82341, Dec. 6, 1989)
Was the closure warranted by the alleged business
reverses? XPNs:
1. Where the transferee was found
A: The closure of a business establishment is a to be merely an alter ego of the different
ground for the termination of the services of any merging firms. (Filipinas Port Services, Inc.
employee unless the closing is for the purpose of v. NLRC, G.R. No. 97237, Aug. 16, 1991)
circumventing the provisions of the law. But, while 2. Where the transferee voluntarily
business reverses can be a just cause for agrees to do so. (Marina Port Services,
terminating employees, they must be sufficiently Inc. v. Iniego, G.R. No. 77853, Jan. 22,
proved. In this case, the audited financial statement 1990)
of SIMEX clearly indicates that they actually derived
earnings. Although the rejections may have reduced Q: Marikina Dairy Industries, Inc. decided to sell its
their earnings they were not suffering losses. There assets and close operations on the ground of heavy
is no question that an employer may reduce its losses. The unions alleged that the financial losses
work force to prevent losses but it must be serious, were imaginary and the dissolution was a scheme
actual and real otherwise this ground for maliciously designed to evade its legal and social
termination would be susceptible to abuse by obligations to its employees (Ees). The unions want
scheming employers who might be merely feigning the buyers of the corporations assets restrained to
business losses or reverses in their business operate unless the members of the unions were
ventures to ease out employees. (Union of Filipino the ones hired to operate the plant under the
Workers v. NLRC, G.R. No. 90519, Mar. 23, 1992) terms and conditions specified in the collective
bargaining agreements.
Q: Carmelcraft Corporation closed it business
operations allegedly due to losses of P1, 603.88 Is the buyer of a companys assets required to
after the Carmelcraft Ees Union filed a petition for absorb the Ees of the seller?
certification election. Carmelcraft Union filed a
complaint for illegal lockout and ULP with A: There is no law requiring that the purchaser of a
companys assets should absorb its Ees and the

LABOR LAW TEAM:


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

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

losses.
most that can be done for reasons of public policy
and social justice was to direct that buyers of such
assets to give preference to the qualified separated
Ees in the filling up of vacancies in the facilities of Disease
the buyer. (MDII Supervisors & Confidential Ees
Assn (FFW) v. residential Assistant on Legal Affairs, Q: When is disease a ground for dismissal?
G.R. Nos. L4542123, Sep. 9, 1977)
A: Where the Ee suffers from a disease, and:
Q: What is the difference between closure and
1. His continued employment is
retrenchment?
prohibited by law or prejudicial to
his health or to the health of his co
A: Ees. (Sec.8, Rule I, Book VI, IRR)

Is
fortune
whereby
complete
business
prevent further financial
drain upon an Er who
cannot pay anymore his
Ees
already stopped.

One of the prerogatives

of

decision

entire establishment or

to

department

thereof

reasons,

minimize expenses and

reduce capitalization.

Does not obligate the Er

for

separation

there
business due to serious
a. There is a certification by a
competent public health authority
2. With a certification by competent b. That the disease is of such
public health authority that the disease is nature or at such a stage that it
incurable within 6 months despite due cannot be cured within a period of 6
medication and treatment. (Solis v. NLRC, GR months even with proper medical
No. 116175, Oct. 28,1996) treatment.

Note: The reqt for a medical certification cannot be 2. If the disease or ailment can be
dispensed with; otherwise, it would sanction the cured within the period, the Er shall not
unilateral and arbitrary determination by the Er of the terminate the Ee but shall ask the Ee to
gravity or extent of the Ees illness and thus defeat the take a leave. The Er shall reinstate such Ee
public policy on the protection of labor. (Manly Express to his former position immediately upon
v Payong, G.R. No. 167462, Oct.25, 2005)
the restoration of his normal health. (Sec.
8, Rule I, Book VI, IRR)
Termination of services for health reasons must be
effected only upon compliance with the above
requisites. The reqt for a medical certificate under Art. Q: Is an employee suffering from a disease entitled
284 of the LC cannot be dispensed with; otherwise, it to reinstatement?
would sanction the unilateral and arbitrary
determination by the Er of the gravity or extent of the A: Yes, provided he presents a certification by a
Ees illness and thus defeat the public policy on the competent public health authority that he is fit to
protection of labor. (Sy et. al v. CA, G.R. No. 142293, Feb. return to work. (Cebu Royal Plant v. Deputy
27, 2003) Minister, G.R. No. L58639, Aug. 12, 1987)

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


(Ee) on the ground of disease? mandatory?

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


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

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


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

Note: Termination from work on the sole basis of business


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

Q: Anna Ferrer has been working as bookkeeper reverses


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

Q: DAP Corp. ceased its operation due to the


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

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

written notice, the Ees are informed of the specific 1. The reqt of notice is intended
date of the termination, at least a month prior to to inform the Ee concerned of the Ers
the date of effectivity, to give them sufficient time intent to dismiss him and the reason for
to make necessary arrangements. In this case, the proposed dismissal
notwithstanding the Ees knowledge of the 2. On the otherhand the reqt of
cancellation of the distributorship agreement, they hearing affords the Ee the opportunity to
remained uncertain about the status of their answer his Ers charges against him and
employment when DAP failed to formally inform accordingly to defend himself there from
them about the redundancy. (DAP Corp. v. CA, G.R. before dismissal is effected. (Salaw v.
No. 165811, Dec. 14, 2005) NLRC G.R. No. 90786 Sep. 27, 1991)

b.Procedural due process Note: Failure to comply with the reqt of the
2 notices makes the dismissal illegal. The
Q: What are the 2fold requirements of a valid procedure is mandatory. (Loadstar Shipping
dismissal for a just cause? Co. Inc. v. Mesano, G.R. No. 138956, Aug. 7,
2003)
A:
1. Substantive it must be for a just Q: While it may be true that the Er enjoys wider
cause latitude of discretion in terminating employees
2. Procedural there must be notice (Ees) should there exists valid and just cause,
and hearing would this be sufficient for the Er to depart from
giving the Ee the right to be heard?
Q: What is the process to be observed by the
employer (Er) for termination of the employment A: Art. 277(b) of the LC mandates that an Er who
based on any of the just causes for termination? seeks to dismiss an Ee must afford the latter ample
opportunity to be heard and to defend himself with
A: the assistance of his representative if he so desires.
1. A written notice should be served to Expounding on this provision, the SC held that
the Ee specifying the ground/s for ample opportunity connotes every kind of
termination and giving the said Ee assistance that management must accord the Ee to
reasonable opportunity to explain. enable him to prepare adequately for his defense
including legal representation. (UBIX Corp. vs.
Note: This first written notice must apprise Bravo, G.R. No. 177647, Oct. 31, 2008)
the Ee that his termination is being
considered due to the acts stated in the Q: What is included in the opportunity to be
notice. (Phil. Pizza Inc. v. Bungabong, G.R. heard?
No. 154315, May 9, 2005)
A: The issue was addressed in an en banc decision
2. A hearing or conference should be rendered by the Supreme Court. With a 141 vote
held during which the Ee concerned, with the Court through Chief Justice Corona held as
the assistance of counsel, if the Ee so follows:
desires, is given the opportunity to
respond to the charge, present his a) Ample opportunity to be
evidence and present the evidence heard in an employee dismissal case
presented against him. means any meaningful opportunity
(verbal or written) given to the employee
3. A written notice of termination If to answer the charges against him or her
termination is the decision of the Er, it and submit evidence in support of the
should be served on the Ee indicating that defences, whether in a hearing,
upon due considerations of all the conference or some other fair, just and
circumstance, grounds have been reasonable way.
established to justify his termination, at b) A formal hearing or conference
least one month prior to his termination. becomes mandatory only when requested
by the employee in writing or substantial
Note: Single notice of termination does not evidentiary disputes exist or a company
comply with the requirements of the law. rule or practice requires it, or when
(Aldeguer & Co., Inc. vs. Honeyline Tomboc, similar circumstance justify it.
G.R. No. 147633, July 28, 2008) c) The ample opportunity to be
heard standard in the Labor Code
Q: What is the purpose of notice and hearing? prevails over the hearing or conference
requirement
A:
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

in the implementing rules and regulations. opportunity to explain his side and (2) another
(Perez v. PT&T, G.R. No. 152048, Apr. 7, written notice indicating that, upon due
2009) consideration of all circumstances, grounds have
been established to justify the Er's decision to
Q: Who has the burden of proof? dismiss the Ee.

A: The burden of proof rests upon the employer to There is however, no need for a hearing or
show that the dismissal of the employee is for a just conference. To be heard does not mean verbal
cause, and failure to do so would necessarily mean argumentation alone inasmuch as one may be
that the dismissal is not justified, consonant with heard just as effectively through written
the constitutional guarantee of security of tenure. explanations, submissions or pleadings. In other
words, the existence of an actual, formal trial
Note: Due process refers to the process to be followed; type hearing, although preferred, is not absolutely
burden of proof refers to the amount of proof to be necessary to satisfy the employees right to be
adduced. heard. (Perez. v. Phil. Telegraph and Telephone
Company, G.R. No. 152048, April 7, 2009)
In money claims, the burden of proof as to the amount
to be paid the Ees rests upon the Er since he is in Q: What are the guidelines in determining
custody of documents that would be able to prove the whether penalty imposed on Ee is proper?
amount due, such as the payroll.
A:
Q: What is the degree of proof? 1. Gravity of the offense
2. Position occupied by the Ee
A: In administrative or quasijudicial proceedings, 3. Degree of damage to the employer (Er)
substantial evidence is considered sufficient in 4. Previous infractions of the same offense
determining the legality of an employers dismissal 5. Length of service (ALUTUCP v.
of an employee. (Pangasinan III Electric NLRC, G.R. No. 120450, Feb. 10, 1999; PAL
Cooperative, Inc. v. NLRC, G.R. No. 89878, Nov. 13, v. PALEA, G.R. No.L24626, June 28,1974)
1992)
Q: Felizardo was dismissed from Republic Flour
Q: Perez and Doria were employed by PT&T. After
MillsSelecta ice cream Corporation for dishonesty
investigation, Perez and Doria were placed on
and theft of company property for bringing out a
preventive suspension for 30 days for their alleged
pair of boots, 1 piece aluminum container and 15
involvement in anomalous transactions in the
pieces of hamburger patties. Is the penalty of
shipping section. PT&T dismissed Perez and Doria
dismissal commensurate with the offense
from service for falsifying documents. They filed a
committed?
complaint for illegal suspension and illegal
dismissal. The LA found that the 30day extension
A: There is no question that the employer has the
of suspension and the subsequent dismissal were
inherent right to discipline its Ees which includes
both illegal. The NLRC reversed the LAs decision, it
the right to dismiss. However this right is subject to
ruled that Perez and Doria were dismissed for just
the police power of the State. In this case the Court
cause, that they were accorded due process and
finds that the penalty imposed upon Felizardo was
that they were illegally suspended for only 15 days
not commensurate with the offense committed
(without stating the reason for the reduction of
considering the value of the articles he pilfered and
the period of petitioners illegal suspension). On
the fact that he had no previous derogatory record
appeal, CA held that they were dismissed without
during his 2 years of employment in the company.
due process. Whether petitioners were illegally
Moreover, it should also be taken into account that
dismissed?
Felizardo was not a managerial or confidential Ee in
whom greater trust is reposed by management and
A: Yes. The Er must establish that the dismissal is
from whom greater fidelity to duty is
for cause in view of the security of tenure that Ees
correspondingly expected. (ALUTUCP v. NLRC, G.R.
enjoy under the Constitution and the LC. PT&T
No. 120450, Feb. 10, 1999)
failed to discharge this burden. PT&Ts illegal act of
dismissing Perez and Doria was aggravated by their
(1) Agabon Doctrine
failure to observe due process. To meet the reqts of
due process in the dismissal of an Ee, an Er must Q: If the dismissal is for a just or authorized cause
furnish the worker with 2 written notices: (1) a but the requirement of due process of notice and
written notice specifying the grounds for hearing were not complied with should the
termination and giving to said Ee a reasonable dismissal be held illegal?

LABOR LAW TEAM:


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

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

A: No, In Agabon v. NLRC, G.R. No. 158693, Nov. Note: An order of reinstatement by the LA is not the
17, 2004, it was held that when dismissal is for just same as actual reinstatement of a dismissed or
or authorized cause but due process was not separated Ee. Thus, until the Er continuously fails to
observed, the dismissal should be upheld. actually implement the reinstatement aspect of the
decision of the LA, their obligation to the illegally
dismissed Ee, insofar as accrued backwages and other
However, the employer (Er) should be held liable for benefits are concerned, continues to accumulate. It is
noncompliance with the procedural reqts of due only when the illegally dismissed Ee receives the
process (e.g. damages). The Agabon ruling was separation pay (in case of strained relations) that it
modified by JAKA Food Processing v. Pacot (G.R. No. could be claimed with certainty that the ErEe
515378, Mar. 28, 2005) where it was held that: realtionship has formally ceased thereby precluding
the possibility of reinstatement. In the meantime, the
1. If based on just cause (Art. 282) but th
illegally dismissed Ees entitlement to backwages, 13
the Er failed to comply with the notice month pay, and other benefits subsists. Until the
reqt, the sanction to be imposed upon payment of separation pay is carried out, the Er should
him should be tempered because the not be allowed to remain unpunished for the delay, if
dismissal process was, in effect, initiated not outright refusal, to immediately execute the
by an act imputable to the Ee; and reinstatement aspect of the LAs decision.
2. If based on authorized causes (Art.
283) but the Er failed to comply with the Further, the Er cannot refuse to reinstate the illegally
notice reqt, the sanction should be stiffer dismissed Ee by claiming that the latter had already
because the dismissal process was found a job elsewhere. Minimum wage earners are left
initiated by Ers exercise of his with no choice after they are illegally dismissed from
management prerogative. their employment, but to seek new employment in
order to earn a decent living. Surely, we could not fault
them for their perseverance in looking for and
c.Reliefs for illegal dismissal
eventually securing new employment opportunities
instead of remaining idle and waiting the outcome of
(1)Reinstatement aspect the case. (Triad Security & Allied Services, Inc. et al v.
Ortega, G.R. No. 160871, Feb. 6, 2006).
Q: What are the remedies available to an illegally
dismissed employee (Ee)? Q: Distinguish Arts. 223 from 279 of the LC?

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


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

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

Rehabilitation Receiver for appropriate action. not include a prayer for reinstatement, unless, of
Whether Garcia may collect their wages during the course the Ee has waived his right to reinstatement.
period between the LAs order of reinstatement By law, an Ee who is unjustly dismissed is entitled to
pending appeal and the NLRC decision overturning reinstatement among others. The mere fact that the
that of the LA? complaint did not pray for reinstatement will not
prejudice the Ee, because technicalities of law and
A: Par. 3 of Art. 223 of the LC provides that the procedure are frowned upon in labor proceedings
decision of the LA reinstating a dismissed or (Pheschem Industrial Corp. v. Moldez, G.R. No.
separated Ee, insofar as the reinstatement aspect is 1161158, May 9, 2005).
concerned, shall immediately be executory, pending
appeal. Q: What happens if there is an Order of
Reinstatement but the position is no longer
Even if the order of reinstatement of the LA is available?
reversed on appeal, it is obligatory on the part of
the Er to reinstate and pay the wages of the A: The employee (Ee) should be given a
dismissed Ee during the period of appeal until substantially equivalent position. If no substantially
reversal by the higher court. On the other hand, if equivalent position is available, reinstatement
the Ee has been reinstated during the appeal period should not be ordered because that would in effect
and such reinstatement order is reversed with compel the employer to do the impossible. In such
finality, the Ee is not required to reimburse a situation, the Ee should merely be given a
whatever salary he received for he is entitled to separation pay consisting of 1month salary for
such, more so if he actually rendered services every year of service (Grolier Intl Inc. v. ELA, G.R.
during the period. No. 83523, Aug. 31, 1989)

In other words, a dismissed Ee whose case was (2)Separation pay in lieu of reinstatement
favorably decided by the LA is entitled to receive
wages pending appeal upon reinstatement, which is Q: How can separation pay be viewed?
immediately executory. Unless there is a restraining
order, it is ministerial upon the LA to implement the A: Under present laws and jurisprudence,
order of reinstatement and it is mandatory on the separation pay may be viewed in 4 ways:
Er to comply therewith. (Garcia vs. PAL, G.R. No.
164856, Jan.20, 2009) 1. In lieu of reinstatement in illegal
dismissal cases, where Ee is ordered
Q: What is the effect of the reversal of LAs reinstated but reinstatement is not
decision to the reinstated employee (Ee) feasible.
2. As Ers statutory obligation in
A: If the decision of the LA is later reversed on cases of legal termination due to
appeal upon the finding that the ground for authorized causes under Art. 283 and 284
dismissal is valid, then the Er has the right to of the LC.
require the dismissed Ee on payroll reinstatement to 3. As financial assistance, as an act
refund the salaries he/she received while the case of social justice and even in case of legal
was pending appeal, or it can be deducted from the dismissal under Art. 282 of the LC.
accrued benefits that the dismissed Ee was entitled 4. As employment benefit granted
to receive from the employer under existing laws, in CBA or company policy. (Poquiz, 2005)
CBA provisions, and company practices. However, if
the Ee was reinstated to work during the pendency Q: Is an illegally dismissed employee entitled to
of the appeal, then the Ee is entitled to receive the reinstatement as a matter of right?
compensation received for actual services rendered
without need of refund (Citibank v. NLRC, G.R. No. A: GR: Yes.
14273233, Dec. 4, 2007).
XPNS: Proceeds from an illegal dismissal
Q: May a court order the reinstatement of a wherein reinstatement is ordered but cannot be
dismissed employee (Ee) even if the prayer of the carried out as in the following cases:
complaint did not include such relief?
1. Reinstatement cannot be
A: Yes. So long as there is a finding that the Ee was effected in view of the long passage of
illegally dismissed, the court can order the time or because of the realities of the
reinstatement of an Ee even if the complaint does situation.
2.It would be inimical to the employers
interest.When reinstatement is no longer
feasible.

LABOR LAW TEAM:


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

3. When it will not serve the best as that provided under Art. 283 of the LC in case of
interest of the parties involved. retrenchment to prevent losses?
4. Company will be prejudiced by
reinstatement. A: No. The separation pay awarded to employees
5. When it will not serve a prudent due to illegal dismissal is different from the amount
purpose. of separation pay provided for in Art. 283 of the LC.
6. When there is resultant strained Prescinding from the above, Phil. Tobacco is liable
relation (applies to both confidential and for illegal dismissal and should be responsible for
managerial employees (Ees) only). the reinstatement of the Lubat group and the
7. When the position has been payment of their backwages. However, since
abolished (applies to both managerial, reinstatement is no longer possible as Phil. Tobacco
supervisory and rankandfile Ees). have already closed its Balintawak plant, members
of the said group should instead be awarded normal
Note: In such cases, it would be more prudent to order separation pay (in lieu of reinstatement) equivalent
payment of separation pay instead of reinstatement. to at least one month pay, or one month pay for
(Quijano v. Mercury Drug Corporation, G.R. No. every year of service, whichever is higher. It must be
126561, July 8, 1998) stressed that the separation pay being awarded to
the Lubat group is due to illegal dismissal; hence, it
Q: Respondents are licensed drivers of public is different from the amount of separation pay
utility jeepneys owned by Moises Capili. When provided for in Article 283 in case of retrenchment
Capili assumed ownership and operation of the to prevent losses or in case of closure or cessation
jeepneys, the drivers were required to sign of the Ers business, in either of which the
individual contracts of lease of the jeepneys. The separation pay is equivalent to at least one (1)
drivers gathered the impression that signing the month or onehalf (1/2) month pay for every year of
contract was a condition precedent before they service, whichever is higher. (Phil. Tobacco Flue
could continue driving. The drivers stopped plying Curing & Redrying Corp. v. NLRC, G.R. No. 127395,
their assigned routes and a week later filed with Dec. 10, 1998)
the Labor Arbiter a complaint for illegal dismissal
praying not for reinstatement but for separation (a)Strained relation rule
pay. Are the respondents entitled to separation
pay? Q: What is the doctrine of strained relations?

A: No. When drivers voluntarily chose not to return A: When the Er can no longer trust the Ee and vice
to work anymore, they must be considered as versa, or there were imputations of bad faith to
having resigned from their employment. The each other, reinstatement could not effectively
common denominator of those instances where serve as a remedy. This doctrine applies only to
payment of separation pay is warranted is that the positions which require trust and confidence (Globe
employee was dismissed by the employer. (Capili v. Mackay v. NLRC, G.R. No. 82511, March 3, 1992).
NLRC, G.R. 117378, Mar. 26, 1997)
Note: Under the circumstances where the employment
Q: Two groups of seasonal workers claimed relationship has become so strained to preclude a
separation benefits after the closure of Phil. harmonious working relationship and that all hopes at
Tobacco processing plant in Balintawak and the reconciliation are naught after reinstatement, it would
transfer of its tobacco operations to Candon, Ilocos be more beneficial to accord the Ee backwages and
Sur. Phil. Tobacco refused to grant separation pay separation pay.
to the workers belonging to the first batch (Lubat
group), because they had not been given work Q: What must be proven before the principle of
during the preceding year and, hence, were no strained relations can be applied to a particular
longer in its employ at the time it closed its case?
Balintawak plant. Likewise, it claims exemption
from awarding separation pay to the second batch A:
(Luris group), because the closure of its plant was 1. The Ee concerned occupies a
due to "serious business losses," as defined in Art. position where he enjoys the trust and
283 of the LC. Both labor agencies held that the confidence of his Er; and
Luris and Lubat groups were entitled to separation 2. That it is likely that if reinstated,
pay equivalent to 1/2 month salary for every of an atmosphere of antipathy and
service, provided that the Ee worked at least 1 antagonism may be generated as to
month in a given year. Is the separation pay adversely affect the efficiency and
granted to an illegally dismissed Ee the same productivity of the Ee concerned. (Globe
Mackay Cable & Wire

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

Corp. v. NLRC G.R. No. 82511, Mar. 3, A: The payment of backwages is generally granted
1992) on the ground of equity. It is a form of relief that
restores the income that was lost by reason of the
Q: Does the doctrine of strained relationship unlawful dismissal; the grant thereof is intended to
always bar reinstatement in all cases? restore the earnings that would have accrued to the
dismissed Ee during the period of dismissal until it is
A: No. The doctrine should be applied on a case to determined that the termination of employment is
case basis, based on each cases peculiar conditions for a just cause. It is not private compensation or
and not universally. Otherwise, reinstatement can damages but is awarded in furtherance and
never be possible simply because some hostility is effectuation of the public objective of the LC. Nor is
invariably engendered between the parties as a it a redress of a private right but rather in the nature
result of litigation. That is human nature. (Anscor of a command to the employer to make public
Transport v. NLRC, G.R. No. 85894, Sept. 28, 1990) reparation for dismissing an Ee either due to the
formers unlawful act or bad faith. (Tomas Claudio
Besides, no strained relations should arise from a Memorial College Inc., v. CA, G.R. No. 152568, Feb.
valid and legal act of asserting one's right; 16, 2004)
otherwise an Ee who shall assert his right could be
easily separated from the service, by merely paying Q: What is the period covered by the payment of
his separation pay on the pretext that his backwages?
relationship with his employer (Er) had already
become strained. (Globe Mackay Cable & Wire A: The backwages shall cover the period from the
Corp. v. NLRC, G.R. No. 82511, Mar. 3, 1992) date of dismissal of the employee up to the date of:

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


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

Note: The backwages to be awarded should not be


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

(a)Components of the amount of backwages

Q: What is included in the computation of


backwages?

A: They cover the following:

(3)Backwages 1. Transportationand emergency


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

Q: What is the basis of awarding backwages to an Q: What does the term full backwages mean?
illegally dismissed employee (Ee)?
LABOR LAW TEAM:
96 ADVISER: ATTY. JOEVEN D. DELLOSA; SUBJECT HEAD: ANGELO S. DIOKNO; ASST. SUBJECT HEADS: KAREN SABUGO, GENESIS R. FULGENCIO

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

A: The Labor Code as amended by R.A. 6715 points Q: Reynaldo was hired by Geminilou Trucking
to "full backwages" as meaning exactly that, i.e., Service (GTS) as a truck driver to haul and deliver
without deducting from backwages the earnings products of San Miguel Pure Foods Company, Inc.
derived elsewhere by the concerned Ee during the He was paid P 400 per trip and made 4 trips a day.
period of his illegal dismissal. (Buenviaje v. CA, G.R. He claimed that he was requested by GTS to sign a
147806, Nov. 12, 2002) contract entitled Kasunduan Sa PagUpa ng
Serbisyo which he refused as he found it to alter
The underlying reason for this ruling is that the his status as a regular Ee to merely contractual. He
employee, while litigating the legality (illegality) of averred that on account of his refusal to sign the
his dismissal, must still earn a living to support Kasunduan, his services were terminated
himself and family, while full backwages have to be prompting him to file a complaint before the NLRC
paid by the employer as part of the price he has to for constructive dismissal against the GTS. Would
pay for illegally dismissing his Ee. (Bustamante v. Reynaldos refusal to sign the Kasunduan
NLRC, G.R. No. 111651, Mar. 15, 1996) adequately support his allegation of constructively
dismissal?
Q: Is an Ee entitled to backwages even after the
closure of the business? A: No. The test of constructive dismissal is whether
a reasonable person in the employees (Ee's)
A: Yes. The closure of the business rendered the position would have felt compelled to give up his
reinstatement of complainant to her previous job under the circumstances. In the present case,
position impossible but she is still entitled to the the records show that the lone piece of evidence
payment of backwages up to the date of dissolution submitted by Reynaldo to substantiate his claim of
or closure. An employer found guilty of unfair labor constructive dismissal is an unsigned copy of the
practice in dismissing his Ee may not be ordered to Kasunduan. This falls way short of the required
pay backwages beyond the date of closure of quantum of proof which is substantial evidence, or
business where such closure was due to legitimate such relevant evidence as a reasonable mind might
business reasons and not merely an attempt to accept as adequate to support a conclusion.
defeat the order of reinstatement. (Pizza Inn v. Reynaldo was not dismissed, but that he simply
NLRC, G.R. No. 74531, June 28, 1988) failed to report for work after an altercation with a
fellow driver. (Madrigalejos vs. Geminilou Trucking
Q: What are the circumstances that prevent award Service, G.R. No. 179174, Dec. 24, 2008)
of backwages?
Q: Flores, a conductor of JAM Transportation Co.,
A: Inc., had an accident where he had to be
1. Dismissal for cause hospitalized for a number of days. Upon reporting
2. Death, physical or mental incapacity back to the company he was told to wait. For
of the employee several days this continued and he was promised a
3. Business reverses route assignment which did not materialize. Upon
4. Detention in prison speaking to Personnel Manager Medrano, he was
told that he will be accepted back to work but as a
(4)Constructive Dismissal new employee. Flores rejected the offer because it
would mean forfeiture of his 18 years of service to
Q: What is constructive dismissal? the company. Is the offer for reinstatement as a
new employee (Ee) a constructive dismissal?
A: An involuntary resignation resorted to when:
A: Yes. Flores reemployment as a new Ee would be
1. continued employment becomes very prejudicial to him as it would mean a demotion
impossible, unreasonable, or unlikely in rank and privileges, retirement benefits as his
2. there is a demotion in rank or previous 18 years of service with the company
diminution in pay or would simply be considered as non existent. It
3. clear discrimination, insensibility or amounts to constructive dismissal. (JAM
disdain by an Er becomes unbearable to Transportation Co., Inc. v. Flores, G.R. No. 82829,
the Ee. (Leonardo v. NLRC, G.R. Mar. 19, 1993)
No.125303, June 16, 2000)
Q: Quinanola was transferred from the position of
Note: There is no formal dismissal. The Ee is placed in a Executive Secretary to the Executive Vice President
situation by the Er such that his continued and General Manager to the Production Dept as
employment has become unbearable. Abandonment is Production Secretary. Quinanola rejected the
incompatible with constructive dismissal. assignment and filed a complaint for illegal

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

dismissal due to constructive dismissal. Did the This period is intended only for the purpose of
transfer of Quinanola amount to constructive investigating the offense to determine whether he is
dismissal? to be dismissed or not. It is not a penalty.

A: No. Quinanolas transfer was not unreasonable Note: The Er may continue the period of preventive
since it did not involve a demotion in rank nor a suspension provided that he pays the salary of the Ee.
change in her place of work nor a diminution in pay,
benefits and privileges. It did not constitute a If more than 1 month, the Ee must actually be
constructive dismissal. Furthermore, an employees reinstated or reinstated in the payroll. Officers are
liable only if done with malice.
security of tenure does not give him a vested right
in his position as would deprive the company of its
Q: Cantor and Pepito were preventively suspended
prerogative to change his assignment or transfer
pending application for their dismissal by Manila
him where he will be most useful. (Philippine Japan
Doctors Hospital after being implicated by one
Active Carbon Corp. v. NLRC, G.R. No. 83239, Mar. 8,
Macatubal when they refused to help him when he
1989)
was caught stealing xray films from the hospital.
Was the preventive suspension of Cantor and
Q: Sangil was a utility man/assistant steward of
Pepito proper?
the passenger cruise vessel Crown odyssey under a
oneyear contract. Sangil suffered head injuries
A: Where the continued employment of an Ee
after an altercation with a Greek member of the
poses a serious and imminent threat to the life and
crew. He informed the captain that he no longer
property of the employer or on his coEes, the Ees
intends to return aboard the vessel for fear that
preventive suspension is proper. In this case, no
further trouble may erupt between him and the
such threat to the life and property of the Er or of
other Greek crewmembers of the ship. Was Sangil
their coEes is present and they were merely
constructively dismissed?
implicated by the Macatubal. (Manila Doctors
Hospital v. NLRC, G.R. No 64897, Feb. 28, 1985)
A: Yes. There is constructive dismissal where the act
of a seaman in leaving ship was not voluntary but
(6)Quitclaim
was impelled by a legitimate desire for self
preservation or because of fear for his life Q: What is a quitclaim?
Constructive dismissal does not always involve
diminution in pay or rank but may be inferred from A: It is a document executed by an employee in
an act of clear discrimination, insensibility or favor of the employer preventing the former from
disdain by an Er may become unbearable on the filing any further money claim against the latter
part of the Ee that it could foreclose any choice by arising from employment.
him except to forego his continued employment.
(Sunga Ship Management Phils., Inc. v. NLRC, G.R. Q: What are the elements of a valid quitclaim?
No. 119080, April 14, 1998)
A:
(5)Preventive Suspension 1. Voluntarily entered into with full
understanding of what the employee is
Q: What is preventive suspension? doing
2. Represents a reasonable settlement
A: During the pendency of the investigation, the Er
may place the Ee under preventive suspension
Q: What constitutes reasonable settlement?
leading to termination when there is an imminent
threat or a reasonable possibility of a threat to the A: Reasonable settlement requires that the
lives and properties of the Er, his family and consideration for the quitclaim is credible and
representatives as well as the offenders coworkers reasonable. (Periquet v. NLRC, G.R. No. 91298, June
by the continued service of the Ee. 22, 1990)
Q: What is the duration of preventive suspension?
Q: Is dire necessity a ground to nullify a
quitclaim?
A: It should not last for more than 30 days. The Ee
should be made to resume his work after 30 days. It A: Dire necessity is not an acceptable ground for
can be extended provided the Ees wages are paid annulling the releases, especially since it has not
after the 30day period. been shown that the employees had been forced to
execute them. It has not even been proven that the
considerations for the quitclaims were

LABOR LAW TEAM:


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

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

unconscionably low and that the petitioners had A: It is the result of a bilateral act of the parties, a
been tricked into accepting them. Furthermore, no voluntary agreement between the employer and
deception has been established on the part of the the employees whereby the latter after reaching a
employer that would justify the annulment of the certain age agrees and/or consents to sever his
employees quitclaim. (Veloso v. DOLE, G.R. No. employment with the former. (Soberano v. Sec. of
87297, August 5, 1991.) Labor, G.R. Nos. L4375356 and L50991, Aug. 29,
1980)
(7)Termination of employment by employee
Q: What are the kinds of retirement schemes?
Q: How can an employee (Ee) terminate his service
with his employer (Er)? A:
1. Compulsory and contributory in nature;
A: 2. One set up by the agreement
1. Without just cause by serving between the employer (Er) and
written notice on the Er at least 1 month employees (Ees) in the CBA or other
in advance. The Er upon whom no such agreements between them (other
notice was served may hold the Ee liable applicable employment contract);
for damages. 3. One that is voluntarily given by
the Er, expressly as announced company
2. With just cause an Ee may put an policy or impliedly as in the failure to
end to employment without serving any contest the Ees claim for retirement
notice on the Er for any of the following benefits. (Marilyn Odchimar Gertach v.
just causes: Reuters Limited, Phils., G.R. No. 148542,
a. Serious insult by the Er or Jan. 17, 2005)
his representative on the hour and
person of the Ee Q: Who are covered by the LC provisions on
b. Inhuman and unbearable retirement?
treatment accorded the Ee by the Er
or his representative A:
c. Commission of a crime or GR: All employees (Ees) in the private sector:
offense by the Er or his 1. Regardless of their position,
representative against the person of designation or status; and
the Ee or any of the immediate 2. Irrespective of the method by
members of his family which their wages are paid. (Sec.1, Rule II,
d. Other causes analogous to Book VI, IRR)
any of the foregoing
XPN:
Q: When is employment not deemed 1. Ees of the National Govt and its
terminated? political subdivisions, including GOCCs (if
they are covered by the Civil Service Law)
A: 2. Domestic helpers and persons in
1. Bona fide suspension of the the personal service of another
operation of a business or undertaking for 3. Ees of retail, service, and
a period not exceeding 6 months, or agricultural establishments or operations
2. The fulfillment by the Ee of a employing not more than 10 Ees (Sec.2,
military or civic duty shall not terminate Rule II, Book VI, IRR)
employment.
Q: What is the retirement age?
Note: In all such cases, the Er shall reinstate the Ee to
his former position without loss of seniority rights if he A: It is the age of retirement that is specified in the:
indicates his desire to resume his work not later than 1 1. CBA; or
month from the resumption of operations of his Er or 2. Employment contract; or
from his relief from the military or civic duty. (Art. 286) 3. Retirement plan (Sec. 3, Rule II,
Book VI, IRR).
3.RETIREMENT PAY LAW 4. Optional retirement age for
underground mining employees: 5060
a.Coverage, Exclusions from coverage, Components years provided they have at least served
of retirement pay for a period of 5 years. (Art.285 as
Q: What is retirement? amended by R.A. 8558)

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II


VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

Q: What is the retirement age in the absence of a 6 months being considered as 1 whole year.
retirement plan or other applicable agreement? (Sec.5.1, Rule II, Book VI, IRR)

A: Q: What comprises month salary or retirement


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

2. Compulsory 65 years old, Note: Under Sec. 26 of R.A. No. 4670,otherwise known
regardless of years of service (company is as Magna Carta for Public School Teachers, public
not bound to dismiss Ee; it is automatic). school teachers having fulfilled the age and service
(Sec. 4, Rule II, Book VI, IRR) reqts of the applicable retirement laws shall be given
one range salary raise upon the retirement, which shall
Note: Retirement benefits, where not be the basis of the computation of the lump sum of the
mandated by law, may be granted by retirement pay and monthly benefit thereafter.
agreement of the Ees and their Er or as a
voluntary act on the part of the Er. Q: Can Art. 287 of the LC (on retirement) as
Retirement benefits are intended to help the amended by R.A. 7641 be applied retroactively?
Ee enjoy the remaining years of his life,
lessening the burden of worrying for his A: Yes, provided:
financial support, and are a form of reward 1. The claimant for retirement
for his loyalty and service to the Er (Aquino benefits was still the employee of the
v. NLRC, G.R. No. 87653, Feb. 11, 1992) employer at the time the statute took
effect; and
Q: Is compulsory retirement age below 60 2. The claimant was in compliance
allowed? with the reqts for eligibility under the
statute for such retirement benefits.
A: Yes. Art. 287 permits Er and Ee to fix the (PSVSIA v. NLRC, G.R. No. 115019, April
applicable retirement age at below 60. The same is 14, 1997)
legal and enforceable so long as the parties agree to
be governed by such CBA. (Pantranco North Express Q: Are the provisions of the retirement plan
v. NLRC, G.R. No. 95940, July 24, 1996) binding as part of the employment contract?
Q: What is the rule for extension of service of A: Yes. The retirement plan forms part of the
retiree upon his reaching the compulsory employment contract since it is made known to the
retirement age? Ees and accepted by them, and such plan has an
express provision that the company has the choice
A: Upon the compulsory retirement of an employee to retire an Ee regardless of age, with 20 years of
(Ee) or official in the public or private service, his service, said policy is within the bounds
employment is deemed terminated. The matter of contemplated by the LC. Moreover, the manner of
extension of service of such Ee or official is computation of retirement benefits depends on the
addressed to the sound discretion of the Er. (UST stipulation provided in the company retirement
Faculty Union v. NLRC, G.R. No. 89885, Aug. 6,1990) plan. (Progressive Devt Corporation v. NLRC, G.R.
No. 138826, Oct.30, 2000)
Q: What are retirement benefits?
Q: Rivera was employed as senior manufacturing
A: In the absence of an applicable agreement or
pharmacist by UNILAB. She later became Director
retirement plan A retiree is entitled to a
of UNILAB's Manufacturing Division. UNILAB
retirement pay equivalent to at least month salary
adopted a comprehensive retirement plan (the
for every year of service, a fraction of at least
plan or retirement plan) supported by a retirement
fund. A member is compulsorily retired upon
reaching age 60 or has completed 30

LABOR LAW TEAM:


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

years of service, whichever comes first. Rivera Q: In 55, Hilaria was hired as a grade school
completed 30 years of service and UNILAB retired teacher at the Sta. Catalina College. In 70, she
her pursuant to the terms of the plan, she received applied for and was granted a 1 yr LOA without pay
the benefits in 88. At Rivera's request, UNILAB due to the illness of her mother. After the
allowed her to continue working for the company. expiration in 71 of her LOA, she had not been
She continued working beyond the compulsory heard from by Sta. Catalina. In the meantime, she
separation from service that resulted from her was employed as a teacher at the San Pedro
retirement. From 1993 to 1994, Rivera served as a Parochial School during SY 8081 and at the Liceo
personal consultant under contract for UNILABs de San Pedro, during SY 8182. In 82, she applied
sister companies which assigned Rivera to render anew at Sta. Catalina which hired her. On Mar 22,
st
service involving UNILAB. In 1992, the company 97, during the 51 Commencement Exercises of
amended its retirement plan, providing, among Sta. Catalina, Hilaria was awarded a Plaque of
others, for an increase in retirement benefits. Appreciation for 30 yrs of service and P12,000 as
Rivera asked that her retirement benefits be gratuity pay. On May 31, 97, Hilaria reached the
increased in accordance with the amended compulsory retirement age of 65. Sta. Catalina
retirement program. Whether Rivera is entitled to pegged her retirement benefits at P59,038.35.
the additional retirement benefits of the amended Deducted was the amount of P12,000 representing
retirement plan? the gratuity pay which was given to her.

A: No. Whether these terms included renewed


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

Q: Is a special retirement plan different from those


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

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


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

VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE


ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

A:

Social

Security Law

Compulsory
upon a
notover60
years of
and their Ers.

1.Filipinos
recruited
the Ph
foreign based
Ers
employment
abroad may be
covered by the
SSS on
voluntary
basis.

2.
Compulsory
upon a
employed
persons
earning P1,800
or more
annum.

Note: The Ees Compensation Commission shall ensure


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

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

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


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

Note: So long as a companys prerogatives are A: Yes, because this is a management prerogative
exercised in good faith for the advancement of the which is not due any legal or contractual
Ersinterest and not for the purpose of defeating or obligation. The facts of the case do not state the
circumventing the rights of the Ees under special laws circumstances through which the shuttle service
or under valid agreements, the Supreme Court will may be considered as a benefit that ripened into a
uphold them. demandable right. There is no showing that the
benefit has been deliberately and consistently
Q: 1. An exclusive school for girls, run by a granted, i.e. with the employers full consciousness
religious order, has a policy of not employing that despite its not being bound by law or contract
unwed mothers, women with livein partners, and to grant it, it just the same granted the benefit.
lesbians. Is the policy violative of any provision of (2005 Bar Question)
the LC on employment of women?
1.DISCIPLINE
2. The same school dismissed 2 female faculty
members on account of pregnancy out of wedlock. Q: Discuss briefly the Ers right to discipline his Ees.
Did the school violate any provision of the LC on
employment of women? A: The Er has the prerogative to instill discipline in
his Ees and to impose reasonable penalties,
A: including dismissal, on erring Ees pursuant to
1. No, the policy does not violate the company rules and regulations. (San Miguel
LC. The practice is a valid exercise of Corporation v. NLRC, G.R. No. 87277, May 12, 1989)
management function. Considering the
nature and reason for existence of the Q: Is the power of the Er to discipline his Ees
school, it may adopt such policy as will absolute?
advance its laudable objectives. In fact,
the policy accords with the constitutional A: No. While management has the prerogative to
precept of inculcating ethical and moral discipline its Ees and to impose appropriate
values in schools. The school policy does penalties on erring workers, pursuant to company
not discriminate against women solely on rules and regulations, however, such management
account of sex (Art. 135, LC) nor are the prerogatives must be exercised in good faith for the
acts prohibited under Art. 137 of the LC. advancement of the Ers interest and not for the
purpose of defeating or circumventing the rights of
2. No, because to tolerate pregnancy the Ees under special laws and valid agreements.
out of wedlock will be a blatant
contradiction of
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

(PLDT vs. Teves, G.R. No. 143511, November 10, or a reward, which a person has a right to refuse.
2010) When an Ee refused to accept his promotion, he
was exercising his right and cannot be punished for
Q: May the Er be compelled to share with its Ees it. While it may be true that the right to transfer or
the prerogative of formulating a code of discipline? reassign an Ee is an Ers exclusive right and the
Is a code of discipline unilaterally formulated by prerogative of management, such right is not
the Er enforceable? absolute. (Dosch vs. NLRC and Northwest Airlines,
G.R. No. 51182, July 5, 1983)
A: The Er has the obligation to share with its Ees its
prerogative of formulating a code of discipline. This Q: Who has the burden of proving that the
is in compliance with the States policy stated in transfer was reasonable?
Article 211 of the Labor Code, to ensure the
participation of workers in decision and policy A: The Er must be able to show that the transfer is
making processes affecting their rights, duties and not unreasonable, inconvenient or prejudicial to the
welfare. The exercise of management prerogatives Ee; nor does it involve a demotion in rank or a
has, furthermore, never been considered to be diminution of his salaries, privileges and other
boundless. This obligation is not dispensed with by benefits. Should the Er fail to overcome this burden
a provision in the collective bargaining agreement of proof, the Ees transfer shall be tantamount to
recognizing the exclusive right of the Er to make and constructive dismissal. (Blue Dairy Corporation v.
enforce company rules and regulations to carry out NLRC, 314 SCRA 401 [1999])
the functions of management without having to
discuss the same with the union and much less 3.PRODUCTIVITY STANDARD
obtain the latters conformity thereto. A code of
discipline unilaterally formulated and promulgated Q: May an Er impose productivity standards for its
by the Er would be unenforceable. (Philippine workers?
Airlines, Inc. vs. NLRC et al., G.R. No. August 13,
1993.) A: Yes. An Er is entitled to impose productivity
standards for its workers, and in fact, non
2.TRANSFER OF EMPLOYEES compliance may be visited with a penalty even
more severe than demotion. The practice of a
Q: Discuss briefly the Ers right to transfer and company in laying off workers because they failed to
reassign Ees. make the work quota has been recognized in this
jurisdiction. Failure to meet the sales quota
A: In the pursuit of its legitimate business interests, assigned to each of them constitute a just cause of
especially during adverse business conditions, their dismissal, regardless of the permanent or
management has the prerogative to transfer or probationary status of their employment. Failure to
assign Ees from one office or area of operation to observe prescribed standards of work, or to fulfill
another provided there is no demotion in rank or reasonable work assignments due to inefficiency
diminution of salary, benefits and other privileges may constitute just cause for dismissal. Such
and the action is not motivated by discrimination, inefficiency is understood to mean failure to attain
bad faith, or effected as a form of punishment or work goals or work quotas, either by failing to
demotion without sufficient cause. This privilege is complete the same within the allotted reasonable
inherent in the right of Ers to control and manage period, or by producing unsatisfactory results. This
their enterprises effectively. management prerogative of requiring standards
may be availed of so long as they are exercised in
Note: The right of Ees to security of tenure does not good faith for the advancement of the Ers interest.
give them vested rights to their positions to the extent (Leonardo vs. NLRC, G.R. No. 125303, June 16,
of depriving management of its prerogative to change 2000)
their assignments or to transfer them. (Endico v.
Quantum Foods Distribution Center, G.R. No. 161615, 4.GRANT OF BONUS
Jan. 30, 2009)
Q: What is a bonus?
Q: May the Er exercise his right to transfer an Ee
and compel the latter to accept the same if said A: It is an amount granted and paid to an Ee for his
transfer is coupled with or is in the nature of industry and loyalty which contributed to the
promotion? success of the Ers business and made possible the
realization of profits.
A: No. There is no law that compels an Ee to accept
promotion, as a promotion is in the nature of a gift Q: Can bonus be demanded?

LABOR LAW TEAM:


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

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

of time has been paying his Ees wages due for eight
A: hours work although the work shift less than eight
GR: Bonus is not demandable as a matter of hours (e.g. seven) it cannot later on increase the
right. It is a management prerogative given in working hours without an increase in the pay of the
addition to what is ordinarily received by or employees affected. An Er is not allowed to
strictly due to recipient. (Producers Bank of the withdraw a benefit which he has voluntarily given.
Phil. v. NLRC, G.R. No. 100701, March 28, 2001) An Er is not allowed to withdraw a benefit which he
has voluntarily given.
XPNs: Given for a long period of time
1. Consistent and deliberate Er 6.MARITAL DISCRIMINATION
continued giving benefit without any
condition imposed for its payment Q: Is a company policy prohibiting marriage
2. Er knew he was not required to give between coworkers valid?
benefit
3. Nature of benefit is not dependent A: There must be a finding of a bona fide
on profit occupational qualification (BFOQ) to justify an Ers
4. Made part of the wage or No Spouse Rule. There must be a compelling
compensation agreed and stated in the business necessity for which no alternative exists
employment contract. other than the discriminating practice. (Star Paper
vs. Simbol, G.R. No. 164774, April 12, 2006)
Q: The projected bonus for the Ees of Suerte Co.
was 50% of their monthly compensation. Q: What are the factors that the Er must prove
Unfortunately, due to the slump in the business, inorder to justify BFOQ?
the president reduced the bonus to 5% of their
compensation. Can the company unilaterally A: The Er must prove 2 factors:
reduce the amount of bonus? Explain briefly. 1. That the employment
qualification is reasonably related to the
A: Yes. The granting of a bonus is a management essential operation of the job involved;
prerogative, something given in addition to what is and
ordinarily received by or strictly due the recipient. 2. That there is a factual basis for
An Er cannot be forced to distribute bonuses when believing that all or substantially all
it can no longer afford to pay. To hold otherwise persons meeting the qualification would
would be to penalize the Er for his past generosity. be unable to properly perform the duties
(Producers Bank of the Phil. v NLRC, G.R. No. of the job. (Star Paper et al. vs. Simbol,
100701, March 28, 2001). (2002 Bar Question) G.R. No. 164774, April 12, 2006)

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


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

Q: May the normal hours fixed in Article 83 be A: The prohibition against personal or marital
reduced by the Er? Explain. relationships with Ees of competitorscompanies
upon Glaxos Ees is reasonable under the
A: The present article provides that the normal circumstances because relationships of that nature
hours of work of an Ee shall not exceed eight (8) might compromise the interest of the company.
hours a day. This implies that the Er, in the exercise Glaxo does not impose an absolute prohibition
of its management prerogatives, may schedule a against relationships between its Ees and those of
work shift consisting of less than eight hours. And competitor companies. Its Ees are free to cultivate
following the principle of a fair days wage for a fair relationships with and marry persons of their own
days labor, the Er is not obliged to pay an Ee, choosing. What the company merely seeks to avoid
working for less than eight hours a day, the wages is a conflict of interest between the Ee and the
due for eight hours. Nonetheless, if by voluntary company that may arise out of such relationships.
practice or policy, the Ee for a considerable period Furthermore, the prohibition forms part of the
employment contract and Peds was aware of such

VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE


ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

restrictions when he entered into a relationship 3. General principles of fair play and justice
with Jali. (Duncan Association of DetailmanPTGWO
v. Glaxo Wellcome Phil. Inc., G.R. No. 162994, Sep. Furthermore, a line must be drawn between
17, 2004) management prerogatives regarding business
operations per se and those which affect the rights
7.POSTEMPLOYMENT BAN of Ees. In treating the latter, management should
see to it that its Ees are at least properly informed
Q: Genesis Fulgencio had been working for of its decisions and modes of actions. So long as a
Solidbank Corporation since 1977. He later on companys prerogatives are exercised in good faith
applied for retirement. Solidbank required Genesis for the advancement of the Ersinterest and not for
to sign an undated Undertaking where he the purpose of defeating or circumventing the rights
promised that "[he] will not seek employment of the Ees under special laws or under valid
with a competitor bank or financial institution agreements, the Supreme Court will uphold them.
within one (1) year from February 28, 1995, and (PAL v. NLRC, G.R. No. 85985, Aug. 13, 1993; San
that any breach of the Undertaking or the Miguel Brewery Sales v9. Ople, G.R. No. 53515,
provisions of the Release, Waiver and Quitclaim February 8, 1989)
would entitle Solidbank to a cause of action
against him before the appropriate courts of law. Note: It must be established that the prerogative being
Equitable Banking Corporation (Equitable) invoked is clearly a managerial one
employed Genesis. Is the postretirement
employment ban incorporated in the Undertaking
which Genesis executed upon his retirement is
unreasonable, oppressive, hence, contrary to
public policy?

A: No. There is a distinction between restrictive


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

8.LIMITATIONS IN ITS EXERCISE

Q: Is the exercise of management prerogative


unlimited?

A: No. It is circumscribed by limitations found


in:
1. Law,
2. CBA, or

LABOR LAW TEAM:


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

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

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

A: It consists of statutes, regulations and


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

1.SOCIAL SECURITY LAW


(RA 8282)

Q: What is the policy objective in the enactment


of
(SSS) Law?

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


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

The enactment of SSS law is a legitimate exercise of


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

Q: Are the premiums considered as taxes?


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

A: Any person, natural or juridical, domestic or


foreign, who carries into the Phils. any trade,
business, industry, undertaking or activity of any
kind and uses the services of another person who is
under his orders as regards the employment, except
the Government and any of its political subdivisions,
branches or instrumentalities, including
corporations owned or controlled by the
Government: Provided, That a selfemployed person
shall be both Ee and Er at the same time. (Sec 8[c])
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

discontinued, reduced or
Q: Who is an employee (Ee)? otherwise impaired;
b. Existing private plans shall
A: Any person who performs services for an Er in be integrated with the SSS but if
which either or both mental and physical efforts are the Er under such plan is
used and who receives compensation for such contributing more than what is
services, where there is an ErEe relationship: required by this Act, he shall pay
Provided, That a selfemployed person shall be both to the SSS the amount required
Ee and Er at the same time. (Sec. 8[d]) to him, and he shall continue
with his contributions less the
Q: What is employment? amount paid to SSS;
c. Any changes, adjustments,
A: GR: Any service performed by an Ee for his Er. modifications, eliminations or
improvements in the benefits of
XPNs: the remaining private plan after
1. Employment purely casual and not the integration shall be subject
for the purpose of occupation or business to agreements between the Ers
of the Er; and the Ees concerned; and
2. Service performed on or in d. The private benefit plan
connection with an alien vessel by an Ee if which the Er shall continue for
he is employed when such vessel is his Ees shall remain under the
outside the Phils; Ers management and control
3. Service performed in the employ unless there is an existing
of the Phil. Government or agreement to the contrary
instrumentality or agency thereof; c. All selfemployed
4. Service performed in the employ considered both an Er and Ee
of a foreign government or international d. Professionals;
organization, or their whollyowned e. Partners and single
instrumentality: proprietors of business;
5. Such other services performed by f. Actors and actresses, directors,
temporary and other Ees which may be scriptwriters and news
excluded by regulation of the SSC. Ees of correspondents who do not fall
bona fide independent contractors shall within the definition of the term
not be deemed Ees of the Er engaging the Ee;
services of said contractors. (Sec. 8[j]) g. Professional athletes,
coaches, trainers and jockeys; AND
Q: What is a contingency? h. Individual farmers and
fisherman. (Sec. 9)
A: The retirement, death, disability, injury or
sickness and maternity of the member. 2. Voluntary
a. Spouses who devote full
a.Coverage time to managing the household and
family affairs, unless they are also
Q: Who are covered by SSS? engaged in other vocation or
employment which is subject to
A: mandatory coverage ; (Sec. 9[b])
1. Compulsory Coverage b. Filipinos recruited by
a. All Ees not over 60 years of age foreignbased Ers for employment
and their Ers; abroad may be covered by the SSS on
b. Domestic helpers whose income is a voluntary basis; (Sec. 9[c])
not less than P 1000/month and not c. Ee separated from
over 60 years of age and their Ers; employment to maintain his right to
Limitations: full benefits
a. Any benefit earned by d. Selfemployed who realizes
the Ees under private benefit no income for a certain month
plans existing at the time of the
approval of the Act shall not be 3. By Agreement
Any foreign government, international
organization, or their whollyowned

LABOR LAW TEAM:


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

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

instrumentality employing workers in the A: No. It is not necessary, for the enjoyment of
Phils., may enter into an agreement with benefits under the SSS Law that the injury is work
the Phil. government for the inclusion of connected. What is important is membership in the
such Ees in the SSS except those already SSS and not the causal connection of the work of
covered by their respective civil service the Ee to his injury or sickness.
retirement systems.
Claims based on workconnected injuries or
Q: When is the compulsory coverage deemed occupational diseases are covered by the State
effective? Insurance Fund.

A: b.Exclusions from coverage


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

VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE


ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

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


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

Q: What are the reportorial requirements of the Er 2. If he dies within 60 months from
and selfemployed? the start of his pension and he has no
primary beneficiaries, his secondary
A: beneficiaries will receive a lump sum
1. Er Report immediately to SSS the benefit equivalent to the difference of 60
names, ages, civil status, occupations, multiplied by the monthly pension and
salaries and dependents of all his covered the total monthly pensions paid by the
Ees SSS excluding the dependent's pension.
(Sec. 12B [d])
2. Selfemployed Report to SSS
within 30 days from the first day of his Q: Bonifacio and Elena are living together as
operation, his name, age, civil status, husband and wife without the benefit of marriage.
occupation, average monthly net income Bonifacio declared Elena and their children as his
and his dependents primary beneficiaries in his self employed data
record in SSS. A few months prior to his death,
Monthly Pension Bonifacio married Elena.Is Elena entitled to the
survivors pension?
Q: How much is the monthly pension?
A: Yes, she is considered primary beneficiary of
A: Bonifacio. The phrase Upon the death of the
1. The monthly pension shall be the retired member, his primary beneficiaries as of the
highest of the following amounts: date of his retirement will get 100 per cent of his
a. The sum of the following: monthly pension xxx of Sec. 12B d of RA 8282 is
ii. P300.00; plus unconstitutional because it violates the: (1) equal
iii. 20% of the average protection clause because it impermissibly
monthly salary credit; plus discriminates against dependent spouses whose

LABOR LAW TEAM:


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

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

respective marriages to the SSS members were


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

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

A: A: The monthly pension of a retirement pensioner


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

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


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

VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE


ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

entitled to a lump sum benefit


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

Q: What is the difference between death benefits A:


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

Q: What is the effect of retirement or death to


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

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

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


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

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


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

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


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

Note: The law does not require that sickness must be Q: What are the qualifications for entitlement to
related to the duties of the beneficiaries. the maternity benefit?

Q: When will compensable confinement A:


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

A: Q: How much is the maternity benefit?


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

VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE


ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

any gainful occupation for


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

2. Count 12 months backwards A:


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

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


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

4. Add the six highest monthly salary Q: Who are secondary beneficiaries?
credits to get the total monthly salary
credit. A: In the absence of primary beneficiaries, the
dependent parents.
5. Divide the total monthly salary
credit by 180 days to get the average daily In the absence of all the foregoing, any other person
salary credit. This is equivalent to the daily designated by the member as his or her secondary
maternity allowance. beneficiary. (Sec. 8[k])

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


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

Q: What is meant by dependent for support?

A: The entitlement to benefits as a primary


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

If a wife who is already separated de facto from her


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

LABOR LAW TEAM:


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

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

the contrary. Conversely, if it is proved that the performed by these 50 people is not in connection
husband and wife were still living together at the with the purpose of the business of the factory.
time of his death, it would be safe to presume that Hence, the employment of these 50 persons is
she was dependent on the husband for support, purely casual. They are, therefore, excepted from the
unless it is shown that she is capable of providing compulsory coverage of the SSS law. (2000 Bar
for herself. (SSS v. Aguas, G.R. No. 165546, Feb. 27, Question)
2006)
2.GSIS
Q: Who is entitled to the benefits of an SSS (R.A. 8291)
member who was survived not only by his legal
wife, who is not dependent upon the member, but Q: What are the purposes behind the enactment
also by two commonlaw wives with whom he had of the GSIS Act?
illegitimate minor children?
A: To provide and administer the following social
A: The illegitimate minor children shall be entitled security benefits for government employees (Ee):
to the death benefits as primary beneficiaries
because the legal wife is not dependent upon the 1. Compulsory life insurance
member. The SSS Law is clear that for a minor child 2. Optional life insurance
to qualify as a dependent the only requirements 3. Retirement benefits
are that he/she must be below 21 yrs. of age, not 4. Disability benefits to work
married nor gainfully employed. (Signey v. SSS, G.R. related contingencies; and
No. 173582, Jan.28, 2008) 5. Death benefits

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


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

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


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

VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE


ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

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


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

The per diems paid to Baradero and Belo were in Q: Who are covered by life insurance, retirement
the nature of compensation or remuneration for and other social security protection?
their services as Sangguniang Bayan and Vice
Governor, respectively, rather than a A:
reimbursement for incidental expenses incurred GR: All members of the GSIS shall have life
while away from their home base. insurance, retirement, and all other social
security protections such as disability,
If the remuneration received by a public official in survivorship, separation, and unemployment
the performance of his duties does not constitute a benefits. (Sec. 3)
mere allowance for expenses but appears to be
his actual base pay, then no amount of categorizing XPNs: Members of:
the salary as a per diem would take the 1. The judiciary; and
allowances received from the term service with 2. Constitutional commissions who
compensation for the purpose of computing the shall have life insurance only.
number of years of service in government. (GSIS v.
CSC, G. R. Nos. 98395 and 102449, June 19, 1995) b.Exclusions from coverage

Q: What are the sources of funds of the GSIS? Q: Who, under the GSIS, are excluded from the
coverage?
A: It comes from the monthly contributions of the
covered Ees and Ers. (Sec. 5) A:
1. Ees who have separate
The contributions of the Ees are deducted and retirement schemes (members of the
withheld by the Er each month from the monthly Judiciary, Constitutional Commissions and
salary of the former and are remitted by the latter, others similarly situated)
together with its own share, to the System within 2. Contractual Ees who have no Er
the first 10 days of each calendar month following Ee with the agencies they serve
the month to which the contributions apply. (Sec. 6) 3. Uniformed members of the AFP,
BJMP, whose coverage by the GSIS has
Q: What is the penalty in case of delayed ceased effective June 24, 1997
remittance or nonremittance of contributions? 4. Uniformed members of the PNP
whose coverage by the GSIS has ceased
A: The unremitted contributions shall be charged effective February 1, 1996. (Sec. 2.4, Rule
interests as prescribed by the GSIS Board of II, IRR)
Trustees but shall not be less than 2% simple
interest per month from due date to the date of Q: For the purpose of benefit entitlement, how are
payment by the employers concerned. the members classified?

A:
1. Active members
a. Still in the service and are
paying integrated premiums.

LABOR LAW TEAM:


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

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

b. Covered for the entire Separation Benefits


package benefits and privileges being
extended by GSIS. Q: When will a member be entitled to separation
benefits and what comprises these separation
2. Policyholders benefits?
a. Covered for life insurance
only A: A member who has rendered a minimum of 3
b. Can avail of policy loan years creditable service shall be entitled to
privilege only separation benefit upon resignation or separation
c. May also apply for housing under the following terms:
loans
d. Judiciary and 1. A member with at least 3 years
Constitutional Commissions but less than 15 years: Cash payment
equivalent to 100% of the AMC for every
3. Retired Members year of service the member has paid
a. Former active members contributions:
who have retired from the service a. not less than P12,000.00
and are already enjoying the b. Payable upon reaching 60 years
corresponding retirement benefits of age or upon separation, whichever
applied for comes later.
b. Not entitled to any loan
privilege, except stock purchase loan 2. A member with less than 15
(Sec. 2.2, Rules II, IRR) years of service and less than 60 years of
age at the time of resignation or
c.Benefits separation:
a. Cash payment equivalent to 18
Q: What are the benefits provided by the GSIS times the basic monthly pension
Act? (BMP), payable at the time of
resignation or separation
A: b. An oldage pension benefit
1. Separation equal to the basic monthly pension,
2. Unemployment or involuntary payable monthly for life upon
separation reaching the age of 60.
3. Retirement
4. Permanent disability Q: What are the effects of separation from service
5. Temporary disability with regard to membership?
6. Survivorship
7. Funeral A: A member separated from the service shall
8. Life Insurance continue to be a member and shall be entitled to
9. Such other benefits and protection whatever benefits he has qualified to.
as may be extended to them by the GSIS
such as loans. Note: A member separated for a valid cause shall
automatically forfeit his benefits, unless the terms of
Q: What are the benefits under P.D. 1146 (Revised resignation or separation provide otherwise.
GSIS Act of 1977) that may be granted to the
In the case of forfeiture, the separated employee shall
separated members of the PNP, BJMP and BFP?
be entitled to receive only of the cash surrender
value of his insurance.
A: GR:
1. Oldage benefit
Unemployment Benefits
2. Permanent disability benefit
3. Survivorship benefit
Q: What are the conditions for entitlement to
4. Funeral benefit unemployment benefits?
5. Retirement benefit
A:
XPN: Judiciary (Life insurance only tax exempt)
1. The recipient must be a
permanent employee at the time of
Q: What are the reportorial separation;
requirements of the 2. His separation was involuntary
Er? due to the abolition of his office or
position resulting from reorganization;
A: Er must report to GSIS the names, employment and
status, positions, salaries of the employee and such
other matter as determined by the GSIS.
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
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VICE CHAIRS FOR LAYOUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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3. He has been paying the Q: What are the options of the retiree with regard
contribution for at least 1 year prior to to his or her retirement benefits?
separation.
A: The retiree may get either of the following:
Q: What will consist of an unemployment
benefit? 1. Lump sum equivalent to 6
months of the basic monthly pension
A: It will consists of cash payment equivalent to (BMP) payable at the time of retirement
50% of the average monthly compensation and an oldage pension benefit equal to
BMP payable for life, starting upon the
Note: A member who has rendered at least 15 years of expiration of the 5 years covered by the
service will be entitled to separation benefits instead lump sum; or
of unemployment benefits. 2. Cash payment equivalent to 18
times his BMP and monthly pension for
Retirement Benefits life payable immediately. (Sec. 13[a])

Q: What are the conditions in order to be entitled Permanent Disability Benefits


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

Q: What is the rule in case of extension of service A: Complete incapacity to continue with present
in order to be entitled for retirement benefit? employment or engage in any gainful occupation
due to the loss or impairment of the normal
A: The doctrine in Cena vs. CSC (G.R. No. 97419, functions of the physical and/or mental faculties of
July 3, 1992), was modified in Rabor vs. CSC, (G.R. the member.
No. 111812, May 31, 1995), where the SC held that:
The head of the government agency concerned is Q: What is permanent total disability (PTD)?
vested with discretionary authority to allow or
disallow extension of the service of an official or Ee A: Accrues or arises when recovery from
who has reached 65 years old without completing impairment mentioned in Sec.2(q) (defining
the 15 years of government service. However, this disability) is medically remote.
discretion is to be exercise conformably with the
provisions of Civil Service Memorandum Circular Q: What is permanent partial disability (PPD)?
No. 27, series of 1990 which provides that the
extension shall not exceed 1 year. A: Accrues or arises upon the irrevocable loss or
impairment of certain portions of the physical
Q: What is the reason for compulsory retirement? faculties, despite which the member is able to
pursue a gainful occupation.
A: The compulsory retirement of government
officials and Ees upon their reaching the age of 65 Q: What are the conditions in order to be entitled
years is founded on public policy which aims by it to for permanent disability benefits?
maintain efficiency in the government service and
at the same time give to the retiring public servants A: The permanent disability was not due to any of
the opportunity to enjoy during the remainder of the ff:
their lives the recompense, for their long service
and devotion to the government , in the form of a 1. Grave misconduct
comparatively easier life, freed from the rigors of 2. Notorious negligence
civil service discipline and the exacting demands 3. Habitual intoxication
that the nature of their work and their relations 4. Willful intention to kill himself or another
with their superiors as well as the public would
impose upon them. (Beronilla v. GSIS, G.R. No.
21723, Nov. 26, 1970)

LABOR LAW TEAM:


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

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

Q: What are the two types of permanent contribution prior


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

Q: When will the payment of these benefits be


1. Complete loss of sight suspended?

2. Loss of 2 limbs at or A:
1. In case a member is reemployed; or
2. Member recovers from disability
3. as determined by the GSIS; or
3. Fails to present himself for
4. medical examination when required by
the GSIS. (Sec. 16 [c])

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


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

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

which he was hospitalized several times in 97 a. He has exhausted all sick leaves
developed from his workrelated illnesses. The b. CBA sick leave benefits
GSIS disapproved Maniosos request. Provided, that:
i. He was in the service at time of
Do Maniosos ailments which later developed fall disability; or
under the category of permanent total disability? ii. If separated, he has rendered at
least 3 years of service and has
A: Yes. Under Art. 192 (c) of P.D. No. 442, as paid at least 6 monthly
amended (the LC), the following disabilities are contributions in the year
deemed total and permanent: (1) Temporary total preceding his disability
disability lasting continuously for more than 120 2. The temporary total disability
days. Under Section 2(b), Rule VII of the Amended benefits shall in no case be less than P70 a
Rules on Ees Compensation, [a] disability is total day.
and permanent if as a result of the injury or sickness
the Ee is unable to perform any gainful occupation Note: A member cannot enjoy the temporary total
for a continuous period exceeding 120 days, except disability benefit and sick leave pay simultaneously.
as otherwise provided under Rule X of these Rules.
In the case at bar, Manioso was on sick leave from An application for disability must be filed with the GSIS
Jan 11, 95 up to his date of retirement on May 15, within 4 years from the date of the occurrence of the
contingency.
95 or for a period of more than 120 days. Surely,
the DENR, in approving his more than 120 days
leave must have passed upon his Medical Certificate Survivorship Benefits
relative to his ailments. Maniosos disability having
lasted for more than 120 days, he is entitled to PTD Q: Who are entitled to survivorship benefits?
benefits. (Manioso,
v. GSIS, G.R. No. 148323, Apr. 29, 2005) A: Upon the death of a member or pensioner, his
beneficiaries shall be entitled to survivorship
benefits. Such benefit shall consist of:
Q: Does Maniosos retirement from service
prevent him from entitlement to PTD benefits?
1. The basic survivorship pension
which is 50% of the basic monthly
A: No. Benefits due an Ee due to workrelated
pension; and
sickness shall be provided until he becomes
gainfully employed, or until his recovery or death. 2. The dependent childrens
None of these are present in Maniosos case. It pension not exceeding 50% of the basic
would be an affront to justice if Manioso, a monthly pension
government Ee who had served for 36 years, is
deprived of the benefits due him for workrelated Q: Under what conditions are the primary
ailments that resulted in his Permanent Total beneficiaries entitled to the basic monthly
Disability. (Manioso v. GSIS, G.R. No. 148323, Apr. pension?
29, 2005)
A: Upon the death of a member, the primary
Temporary Disability Benefits beneficiaries shall be entitled to:

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


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

LABOR LAW TEAM:


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

his death with at least 3 years of service; P12,000.00: Provided, That the member is
OR in the service at the time of his death and
has at least 3 years of service; or
3. A cash payment equivalent to 100% 2. In the absence of secondary
of his average monthly compensation for beneficiaries, the benefits under this par.
each year of service he paid contributions, shall be paid to his legal heirs. (Sec. 21[c])
but not less than P12,000.00: Provided,
That the deceased has rendered at least 3 Q: What are the benefits that the beneficiaries are
years of service prior to his death but entitled to upon the death of the pensioner?
does not qualify for the benefits under
item (1) or (2) of this paragraph. [Sec. 21 A:
(a)] 1. Upon the death of an oldage
pensioner or a member receiving the
Q: After the end of the guaranteed 30 months, are monthly income benefit for permanent
the beneficiaries still entitled to any survivorship disability, the qualified beneficiaries shall
benefits? be entitled to the survivorship pension
defined in Sec. 20 of this Act, subject to
A: Yes. The survivorship pension shall be paid as the provisions of par. (b) of Sec.21.
follows: 2. When the pensioner dies within
the period covered by the lump sum, the
1. When the dependent spouse is the survivorship pension shall be paid only
only survivor, he/she shall receive the after the expiration of the said period.
basic survivorship pension for life or until
he or she remarries; Q: Gary Leseng was employed as a public school
teacher at the Marinduque High. On April 27, 1997,
2. When only dependent children are a memorandum was issued by the school principal
the survivors, they shall be entitled to the designating Gary to prepare the model dam project,
basic survivorship pension for as long as which will be the official entry of the school in the
they are qualified, plus the dependent search for Outstanding Improvised Secondary
childrens pension equivalent to 10% of Science Equipment for Teachers. Gary complied
the basic monthly pension for every with his superior's instruction and took home the
dependent child not exceeding 5, counted project to enable him to finish before the deadline.
from the youngest and without While working on the model dam project, he came
substitution; to contact with a live wire and was electrocuted.
The death certificate showed that he died of cardiac
3. When the survivors are the arrest due to accidental electrocution.
dependent spouse and the dependent
children, the dependent spouse shall Bella (Garys commonlaw wife) and Jobo (his only
receive the basic survivorship pension for son) filed a claim for death benefits with the GSIS
life or until he/she remarries, and the which was denied on the ground that Garys
dependent children shall receive the death did not arise out of and in the course of
dependent childrens pension. (Sec. 21[b]) employment and therefore not compensable
because the accident occurred in his house and
Note: The dependent children shall be entitled to the not in the school premises. Is Bella entitled to file
survivorship pension as long as there are dependent a claim for death benefits with the GSIS? Why?
children and, thereafter, the surviving spouse shall
receive the basic survivorship pension for life or until
he or she remarries. A: The beneficiaries of a member of the GSIS are
entitled to the benefits arising from the death of
Q: When are secondary beneficiaries entitled to said member. Death benefits are called
survivorship benefits? survivorship benefits under the GSIS Law. Not
being a beneficiary, Bella is not entitled to receive
A: In the absence of primary beneficiaries, the survivorship benefits. She is not a beneficiary
secondary beneficiaries shall be entitled to: because she is a commonlaw wife and not a legal
dependent spouse. (1991 Bar Question)
1. The cash payment equivalent to
100% of his average monthly Q: Is the cause of death of Gary (cardiac arrest
compensation for each year of service he
paid contributions, but not less than
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

due to accidental electrocution in his house)


compensable? Why? Funeral Benefits

A: Yes. To be compensable under the GSIS Law, the Q: What comprises the funeral benefit?
death need not be work connected.
A: Cash not less than P12,000 to be increased to at
Q: Abraham, a policeman, was on leave for a least P18,000 after 5 years (specifically year 2002).
month. While resting in their house, he heard two The amount shall be determined and specified by
of his neighbors fighting with each other. the GSIS through an information circular distributed
Abraham rushed to the scene intending to pacify to all Ers for posting at their premises. (Sec. 23,
the protagonists. However, he was shot to death par.1)
by one of the protagonists. Eva Joy, a housemaid,
was Abraham's surviving spouse whom he had Q: When will it be paid?
abandoned for another woman years back. When
she learned of Abraham's death, Eva Joy filed a A: Upon the death of:
claim with the GSIS for death benefits. However,
her claim was denied because: (a) when Abraham 1. An active member
was killed, he was on leave; and (b) she was not 2. A member who has been
the dependent spouse of Abraham when he died. separated from the service but is entitled
Resolve with reasons whether GSIS is correct in to future separation or retirement
denying the claim. benefits
3. A member who is a pensioner
(excluding survivorship pensioners)
A: Yes, because under the law, a dependent is one 4. A retiree who is at the time of
who is a legitimate spouse living with the Ee. (Art. his retirement was of pensionable age, at
167 [i], LC) In the problem given, Eva Joy had been least 60 years old, who opted to retire
abandoned by Abraham who was then living already under RA 1616 (An act further amending
with another woman at the time of his death. Sec.12, C.A. 186, as amended, by
prescribing two other modes of
retirement and for other purposes).
Moreover, Abraham was on leave when he was
killed. The 24hour duty rule does not apply when Life Insurance
the policeman is on vacation leave. (ECC v. CA, G.R.
No. 121545, Nov. 14, 1996) Taking together Q: What are the classes of life insurance coverage?
jurisprudence and the pertinent guidelines of the
ECC with respect to claims for death benefits, A:
namely: 1. Compulsory life insurance
2. Optional life insurance
1. That the Ee must be at the place
where his work requires him to be; Note: The plans may be endowment or ordinary life.
2. That the Ee must have been
performing his official functions; and Q: When does compulsory life insurance coverage
3. That if the injury is sustained take effect?
elsewhere, the Ee must have been
executing an order for the Er, it is not A: All Ees including the members of the Judiciary
difficult to understand then why Eva Joy's and the Constitutional Commissioners except for
claim was denied by the GSIS. (Tancinco v. Members of the AFP, the PNP, BFP and BJMP, shall,
GSIS, G.R. No. 132916, Nov. 16, 2001) under such terms and conditions as may be
promulgated by the GSIS, be compulsorily covered
In the present case, Abraham was resting at his with life insurance, which shall automatically take
house when the incident happened; thus, he was effect as follows:
not at the place where his work required him to be.
Although at the time of his death Abraham was 1. Those employed after the
performing a police function, it cannot be said that effectivity of this Act, their insurance shall
his death occurred elsewhere other than the place take effect on the date of their
where he was supposed to be because he was employment;
executing an order for his Er. (2005 Bar Question) 2. For those whose insurance will
mature after the effectivity of this Act,
their insurance shall be deemed renewed
on the day following the maturity or
expiry date of their insurance;

LABOR LAW TEAM:


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

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

3. For those without any life insurance 2. Within 15 days from receipt of
as of the effectivity of this Act, their the notice of decision or award, the
insurance shall take effect following said aggrieved party may appeal the decision
effectivity. of the GSIS Board of Trustees to the CA.
Appeal shall be taken by filling a verified
Q: When may a member obtain optional life petition for review with the CA. (Sec 1 to
insurance coverage? 5, Rule 43, Rules of Court)
3. When no appeal is perfected
A: and there is no order to stay by the Board,
1. A member may at any time apply by the CA or by the SC, any decision or
for himself and/or his dependents an award of the Board shall be enforced and
insurance and/or preneed coverage executed in the same manner as decisions
embracing: of the RTC. Note: The social security
a. Life benefits shall be exempt from attachment,
b. Memorial plans garnishment, execution, levy or other
c. Health processes issued by the courts, quasi
d. Education judicial bodies or administrative agencies
e. Hospitalization including the Commission on Audit,
f. Other plans as maybe disallowances, and from all financial
designed by obligations of the members.
GSIS
Q: May a member enjoy the benefits provided for
2. Any employer may apply for group in the Revised GSIS Act simultaneous with similar
insurance coverage for its employees. benefits provided under other laws for the same
contingency?
Q: Where can GSIS loans be invested in?
A: Whenever other laws provide similar benefits for
A: the same contingencies covered by this Act, the
1. In direct housing loans to members member who qualifies to the benefits shall have the
and group housing projects secured by option to choose which benefits will be paid to him.
first mortgage giving priority to the low However, if the benefits provided by the law chosen
income groups are less than the benefits provided under this Act,
2. In short and medium term loans to the GSIS shall pay only the difference. (Sec. 55)
members such as salary, policy,
educational, emergency stock purchase d.Beneficiaries
plan, and other similar loans
Q: Who are the considered beneficiaries?
Q: What is the prescriptive period to claim the
benefits? A:
1. Primary beneficiaries
A: a. The legal dependent spouse
GR: 4 Years from the date of contingency until he/she remarries and
b. The dependent children. (Sec. 2[g])
XPN: Life insurance and retirement (Sec. 28)
2. Secondary beneficiaries
a. The dependent parents and
Q: What is the process for the adjudication of b. Subject to the restrictions on
claims and disputes regarding the GSIS benefits? dependent children, the legitimate
descendants. (Sec. 2[h])
A: The quasijudicial functions of the GSIS shall be
vested in its Board of Trustees. Q: Who are considered dependents?

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


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

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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

b. not gainfully employed, 4.EMPLOYEESS COMPENSATION


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

All contributions paid by such member personally, 1. Public sector covered by the GSIS,
and those that were paid by his employers to both comprising the National Government, including
Systems shall be considered in the processing of GOCCs, Philippine Tuberculoses Society, the
benefits which he can claim from either or both Philippine National Red Cros, and the
Systems. (Sec. 4) Philippine Veterans Bank; and
2. Private sector covered by the SSS,
Q: How are the "portability" provisions of R.A. No. comprising all Ers other than those defined in
7699 beneficial or advantageous to SSS and GSIS the immediately preceding paragraph.
members in terms of their creditable employment
services in the private sector or the government, as The Ee may belong to either the:
the case may be, for purposes of death, disability or
retirement? 1. Public sector comprising the employed
workers who are covered by the GSIS, including
A: Portability provisions of R.A. No. 7699 shall the members of the AFP, elective officials who
benefit a covered worker whose creditable services are receiving regular salary and any person
or contributions in both systems credited to his employed as casual emergency, temporary,
service or contribution record in each of the system substitute or contractual;
and shall be totalized for purposes of old age, 2. Private sector comprising the employed
disability, survivorship and other benefits. (Sec. 3) workers who are covered by the SSS.

The "portability" provisions of R.A. 7699 allow the Q: When does compulsory coverage take effect?
transfer of funds for the account and benefit of the
worker who transfers from one system to another. A:
1. Employer on the first day of operation
This is advantageous to the SSS and GSIS members
for purposes of death, disability or retirement 2. Employee on the day of his employment
benefits. In the event the employees transfer from
the private sector to the public sector, or viceversa, Q: What is an Occupational Disease?
their creditable employment services and
contributions are carried over and transferred as A: One which results from the nature of the
well. (2005 Bar Question) employment, and by nature is meant conditions
which all Ees of a class are subject and which
produce the disease as a natural incident of a
particular occupation, and attach to that

LABOR LAW TEAM:


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

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

occupation a hazard which distinguishes it from the 4. Claim was filed beyond three (3)
usual run of occupations and is in excess of the years from the time the cause of action
hazard attending the employment in general accrued (Art. 201, LC, as amended by P.D.
1921)
To be occupational, the disease must be one wholly
due to causes and conditions which are normal and Note: Notorious negligence is equivalent to gross
constantly present and characteristic of the negligence; it is something more than mere
particular occupation. carelessness or lack of foresight.

Q: Abraham Dino works as a delivery man in a


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

Q: Discuss briefly the theory of Increased Risk. 1. Is the disability suffered by Abraham
Dino compensable?
A: The term sickness as defined in Article 167(l) of 2. If Abraham Dino recovers compensation
the Labor Code is a recognition of the theory of from the SIF, can he still recover from
increased risk. To establish compensability under Abraham Julius damages in the criminal case?
the same, the claimant must show substantial proof Why?
of workconnection, but what is required is merely a
reasonable workconnection and not a direct causal A:
relation. Proof of actual cause of the ailment is not 1. Yes. The injury was sustained by Abraham
necessary. The test of evidence of relation of the Dino in his place of work and while in the
disease with the employment is probability and not performance of his official functions.
certainty. (Jimenez v. Employees Compensation
Commission, G.R. No. L58176, March 23, 1984; 2. No. Under Article 173 of the Labor Code,
Panotes vs. ECC, G.R. No. L64802, March 29, 1984) as amended by P.D. 1921, the liability of the
State Insurance Fund under the Employees
Q: May an illness not listed by the Employees Compensation Program shall be exclusive and
Compensation Commission as an occupational in place of all other liabilities of the Er to the Ee
disease be compensable? or his dependents or anyone otherwise
entitled to recover damages on behalf of the
A: Where the illness is not listed by the Employees Ee or his dependents.
Compensation Commission as an occupational
disease, it must be established that the risk of Q: Socrates Benjie, a truck driver employed by a
contracting the same is increased by working local construction company, was injured in an
conditions. accident while on assignment in one of his
employers project in Iraq. Considering that his
Q: What defenses may be interposed by the State injury was sustained in a foreign country, is
Insurance Fund (SIF) against a claim for Socrates Benjie entitled to benefits under the ECP?
compensation made by a covered Ee or his
dependents? A: Yes. Filipinos working abroad in the service of an
Er, domestic or foreign, who carries on in the
A: The following defenses may be set up: Philippines any trade, business, industry,
undertaking or activity of any kind, are covered by
1. Injury is not workconnected or the the ECP. (Rule 1, Section 5, ECC Rules; Art.169, LC)
sickness is not occupational
2. Disability or death was occasioned Q: What is the Going and Coming Rule? Is this
by the Ees intoxication, wilful intention to rule absolute?
injure or kill himself or another, or his
notorious negligence (Art. 172, LC) A: GR: In the absence of special circumstances, an
3. No notice of sickness, injury or Ee injured while going to or coming from his place
death was given to the Er (Art. 206, LC) of work is excluded from the benefits of Workmens
Compensation Act.

XPNS:
VICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA

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

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


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

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

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


1. Legitimate, legitimated, legally total disability, permanent total disability and
adopted or acknowledged natural child permanent partial disability
who is unmarried, not gainfully employed,
and not over twentyone (21) years of age Q: What are the disabilities that are considered
or over twentyone (21) years of age total and permanent?
provided he is incapacitated and
incapable of selfsupport