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Lyceum of the Philippines University College of Law

PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 1

labor, promote full Employment,


I. FUNDAMENTAL PRINCIPLES AND ensure equal work opportunities
CONCEPTS regardless of sex, race or creed and
regulate the relations between workers
A. LEGAL BASIS and employers. The State shall assure
1. 1987 Constitution the rights of workers to Self-
Promotion of human dignity (Art 2, sec 2) organization, Collective bargaining,
Freedom from poverty (Art 2, sec 9) Security of tenure, and Just and
Principle of distributive justice (Art. 2, sec humane conditions of work.
9)
Freedom of Initiative and Self-reliance 3. Article 1700 of the Civil Code
(Art. 12, sec. 2)
Right to due process The relations between capital and labor
Right to equal protection of the law are not merely contractual. They are so
Right to self-organization impressed with public interest that
Right against involuntary servitude labor contracts must yield to the
Right against imprisonment for debt common good. Therefore, such
contracts are subject to the special laws
Social Justice as the aim: it is neither on labor unions, collective bargaining,
communism, nor despotism, nor atomism, nor strikes and lockouts, closed shop,
anarchy, but the humanization of laws and the wages, working conditions, hours of
equalization of social and economic forces by the labor and similar subjects.
State so that justice in its rational and objectively
secular conception may at least be approximated. Article 1702 of the Civil Code

Social justice means the promotion of the welfare In case of doubt, all labor legislation
of all the people, the adoption by the Government and all labor contracts shall be
of measures calculated to insure economic construed in favor of the safety and
stability of all the competent elements of decent living for the laborer.
society.(Calalang vs. Williams, G.R. No. 47800,
December 2, 1940) B. CONSTRUCTION IN FAVOR OF LABOR

LABOR LAW SOCIAL LEGISLATION Article 4 of the Labor Code


Affects directly Governs effects of All doubts in the implementation and
actual employment, employment, e.g., interpretation of the provisions of this
e.g., wages compensation for death Code, including its implementing rules and
Meets the daily Involves long range regulations, shall be resolved in favor of
needs of workers benefits labor.
Paid by the Paid by government
employer agencies

2. Declaration of Policy II. RECRUITMENT AND PLACEMENT

Article 3 of the Labor code A. ILLEGAL RECRUITMENT


(APE-SC-SJ) 1. Elements
The State shall Afford Protection to

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 2

(a) The accused engages in the (f) To engage in the recruitment or


recruitment and placement of workers, placement of workers in jobs harmful to public
as defined under Article 13 health or morality or to the dignity of the Republic
(b) or in any prohibited activities under of the Philippines;
Article 34 of the Labor Code; and
(g) To obstruct or attempt to obstruct
(b) Accused has not complied with the
inspection by the Secretary of Labor and
guidelines issued by the Secretary of
Employment or by his duly authorized
Labor and Employment, particularly
representatives;
with respect to the securing of a license
or an authority to recruit and deploy (h) To fail to file reports on the status of
workers, whether locally or overseas. employment, placement vacancies, remittance of
(People vs Sadiosa, G.R. No. 107084, foreign exchange earnings, separation from jobs,
May 15, 1998) departures and such other matters or information
as may be required by the Secretary of Labor and
2. Prohibited Activities (Article 34) Employment;
(i) To substitute or alter employment
It shall be unlawful for any individual,
contracts approved and verified by the
entity, licensee or holder of authority:
Department of Labor and Employment from the
(a) To charge or accept directly or time of actual signing thereof by the parties up to
indirectly any amount greater than that and including the period of expiration of the same
specified in the schedule of allowable without the approval of the Department of Labor
fees prescribed by the Secretary of and Employment.
Labor and Employment, or to make a
(j) To become officer or member of the
worker pay any amount greater than
Board of any corporation engaged in travel
that actually received by him as a loan
agency or to be engaged directly or indirectly in
or advance;
the management of a travel agency;
(b) To furnish or publish any false
(k) To withhold or deny travel documents
notice or information or document in
from applicant workers before departure for
relation to recruitment or employment;
monetary or financial considerations other than
(c) To give any false notice, those authorized under this Code and its
testimony, information or document or implementing rules and regulations.
commit any act or misrepresentation for
the purpose of securing a license or
authority under this Code; 3. Types of Illegal Recruiter
(d) To induce or attempt to induce
a. Non-licensee or non-holder of
a worker already employed to quit his
authority- performs:
employment in order to offer him
-any of the acts defined in the law
another unless the transfer is designed
as recruitment and placement; or,
to liberate a worker from oppressive
-any of the 14 acts enumerated in
terms and conditions of employment;
Sec. 6 of RA 8042 as amended by RA
(e) To influence or attempt to influence any 10022
person or entity not to employ any worker who
has not applied for employment through his b. Licensed recruiter- it commits any
agency; if the 14 acts wrongful acts enumerated

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 3

in Sec. 6 of RA 8042 as amended by RA the local employment agency is considered the


10022 agent of the foreign employer, the principal,
knowledge of the former of existing labor and
4. Illegal recruitment vs. Estafa social legislation in the Philippines is binding on
the latter. Consequently, notice to the former of
Illegal Recruitment Estafa any violation thereof is notice to the latter.

The theory of imputed knowledge ascribes


Malum prohibitum Malum in se the knowledge of the agent AND NOT THE OTHER
WAY AROUND (Sunace International Mgmt
Services vs. NLRC, GR No. 161757, 25 January
Criminal intent is not Criminal intent is 2006)
necessary imperative
6. Termination of contract without
Penalized under the Penalized under the RPC just or valid cause
Labor Code In case of termination of overseas
employment without just, valid or authorized
Limited in scope Wider in scope and cause as defined by law or contract, or any
covers deceits whether unauthorized deductions from the migrant
related or not to worker's salary, the worker shall be entitled to
recruitment activities the full reimbursement if his placement fee and
the deductions made with interest at twelve
5. Liability of Local recruitment percent (12%) per annum, plus his salaries for
agency and Foreign employer the unexpired portion of his employment
contract or for three (3) months for every year
Joint and severally- of the unexpired term, whichever is less. (RA
10022)
- liability of the principal/employer and the
licensed recruitment agency, for any and all claims 7. Direct Hiring
arising out of the implementation of the
employment contract involving Overseas Filipino Article 18. Ban on Direct Hiring
Workers. It shall likewise refer to the nature of
liability of partners, or officers and directors with GR: No employer may hire a Filipino worker for
the partnership or corporation over claims arising overseas employment except through the
from an employer-employee relationship. Boards and entities authorized by the
(REVISED POEA RULES AND REGULATIONS Department of Labor and Employment.
GOVERNING THE RECRUITMENT AND
EMPLOYMENT OF LANDBASED OVERSEAS Ex: Direct hiring by
FILIPINO WORKERS OF 2016) (1) Members of the diplomatic service,
(2) Officials and employees of international
Theory of Imputed Knowledge- organizations and,
-This is a doctrine in agency which states (3) Employers as may be allowed by the
that the principal is chargeable with and bound by Department and Labor and Employment is
the knowledge of or notice to his agent received exempt from this provision,
while the agent was acting as such. Simply put, (4) Name hirees – those individuals who are able
notice to the agent is notice to the principal. Since to secure contracts for overseas employment on

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 4

their own efforts and representation without the Article 29 Non-Transferability of


assistance or participation of any agency. Their License or Authority (OPA)
hiring, nonetheless, has to be processed through
the POEA. (Part III, Rule III of the POEA Rules 1. It may be used only by the ONE in
Governing Overseas Employment as amended in whose favor it was issued; it cannot be
2002) assigned, conveyed or transferred;

B. REGULATION OF RECRUITMENT AND 2. It must be used only in the PLACE


PLACEMENT AGENCY stated in the license. Thus, could only
undertake recruitment and placement
Article 25: Private Sector Participation activities in the region where the license
in the Recruitment and Placement of was granted.
Workers 3. The recruitment and placement
activities must be undertaken at their
Pursuant to national development AUTHORIZED official addresses.
objectives and in order to harness and maximize
the use of private sector resources and initiative C. EMPLOYMENT OF NON- RESIDENT
in the development and implementation of a ALIENS
comprehensive employment program, the
private employment sector shall participate in Alien Employment Permit (AEP)- is required
the recruitment and placement of workers, for entry into the country for employment
locally and overseas, under such guidelines, purposes and is issued after determination of the
rules and regulations, as may be issued by the non-availability of a person in the Philippines who
Secretary of Labor and Employment. is COMPETENT, ABLE and WILLING at the time of
application to perform the services for which the
Article 26. Travel Agencies Prohibited alien is desired (Article 40)
to Recruit
It shall be valid for 1 year unless the employment
Article 27. Citizenship Requirement contract, consultancy services, or other modes of
1. Filipino citizens; or engagement provides otherwise, which in no case
2. Corporations, partnerships or entities shall exceed 5 years. (D.O No. 75-06, May 31,
at least 75% of the authorized and and 2006)
capital stock of which is owned and
controlled by Filipino citizens

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 5

D. TRAINING AND EMPLOYMENT OF SPECIAL WORKERS

1. Compare Apprenticeship and Learner

APPRENTICE LEARNER
Nature of Work Highly skilled or technical Semi-skilled & industrial
Training Practical training supplemented by theoretical Practical training WON such is
instructions supplemented by theoretical
instructions
Type of work Apprenticeable occupations approved by the Non-apprenticeable
SOLE (Sec. of Labor & Employment)
Agreement Written Apprenticeship Agreement Learnership Agreement
Hiring At the option of employer At the option of the Learner
Commitment
Period More than 3 months, shall not exceed 6 months Shall not exceed 3 months
Qualifications (1) The person is at least fifteen (15) years of (1) When no experienced workers are
age, provided those who are at least fifteen (15) available;
years of age but less than eighteen (18) may be (2) The employment of learners is
eligible for apprenticeship only in non-hazardous necessary to prevent curtailment of
occupation; employment opportunities; and
(2) Possess vocational aptitude and capacity for (3) The employment does not create
apprenticeship as established through unfair competition in terms of labor
appropriate tests; and costs or impair or lower working
(3) Possess the ability to comprehend and follow standards.
oral and written instructions.

Wages May be paid or not; if paid, 75% of minimum Must always be paid; 75% of minimum
a) No compensation if SOLE authorizes, as OJT (a) Learners in piecework shall be paid
is required by the school in full for the work done.
DOLE Approval Yes DOLE approval is essential No, DOLE approval not required;
inspection only.
Deduction of Yes, expenses for training deductible from income NONE.
Training tax
Expenses

GR: Title I, Book III of the Labor Code covers all


2. Handicapped Workers (Article 78) employees in all establsihments, whether for
Handicapped workers are those whose profit or not
earning capacity is impaired by age or
Ex: (GMFF – DPR)
physical or mental deficiency or injury.
1. Government Employees
A worker is not necessarily considered as a 2. Managerial Employees including the
handicapped worker if he is capable, as an Managerial staff
able-bodied worker, to function suitably in 3. Field personnel
relation to the work to which he was hired. 4. Members of the Family of the employer who
(i.e. one-legged transcriptionist). are dependent on him for support
5. Domestic Helpers or persons in the personal
No disabled person shall be denied access
service of another
to opportunities for suitable employment.
[R.A. 7277, Sec. 5: Magna Carta for 6. Workers paid by result
Disabled Persons]
Managerial employees - refer to those
whose primary duty consists of the management
Labor standards of the establishment in which they are employed
A. Conditions of Employment or of a department or subdivision thereof, and to
other officers or members of the managerial staff.
a. Coverage
Field personnel - shall refer to non-
agricultural employees who regularly perform
their duties away from the principal place of

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 6

business or branch office of the employer and (1) Brown outs of short duration not exceeding 20
whose actual hours of work in the field cannot be minutes is compensable and regarded as
determined with reasonable certainty. hours worked
Note: Fishermen are not field personnel but under (2) Brown outs more than 20 minutes may not be
the fisheries code are field personnel (Mercidar treated as compensable hours provided that:
Fishing Corp. vs NLRC, GR no. 112574, 8
(a) The employees can leave their workplace
October 1998)
(b) The employees can use the time for their
own interest
A. Principles of determining hours worked:
ii. Compressed work week –
1. All hours worked which the employee is
required to give to his employer, regardless resorted to by employer to prevent losses due to
whether or not such hours are spent in causes beyond his control. To be an exception to
productive labor or involve physical or mental the “8-hr work a day”, employees must agree to
exertion the temporary change of work schedule and they
2. An employee need not to leave the premises must not suffer any loss of overtime pay, fringe
of the workplace in order that his rest periods benefits, or their weekly or monthly take home
shall be counted, it being enough that he pay (DOLE Explanatory Bulletin, 23 July 1985)
stops working, may rest completely, to go
elsewhere whether within or outside the C. Meal break
workplace
3. If the work performed was necessary, or it Rules on Meal Periods (Article 85)
benefited the employer, or the employee
1. Should not be less than 60 minutes which is
could not abandon his work at the end of his
not compensable except where employees
normal working hours because he had no
are required to standby for emergency work
replacement, all time spent for such work
2. A meal period of not less than twenty (20)
shall be considered as hours worked, if the
minutes may be given by the employer
work was with the knowledge of his employer
provided that such shorter meal period is
or immediate supervisor.
credited as compensable hours worked of the
4. The time during which an employee is inactive
employee:
by reason of interruptions in his work beyond
a. Where the work is non-manual work in
his control shall be considered working time
nature or does not involve strenuous physical
either if the imminence of the resumption of
exertion;
work requires the employee's presence at the
b. Where the establishment regularly operates
place of work or if the interval is too brief to
not less than sixteen (16) hours a day;
be utilized effectively and gainfully in the
c. In case of actual or impending emergencies
employee's own interest.
or there is urgent work to be performed on
machineries, equipment or installations to
B. Hours of work avoid serious loss which the employer would
otherwise suffer; and
Hours worked include (Article 84): d. Where the work is necessary to prevent
1. All time the employee is on duty or be at the serious loss of perishable goods.
prescribed workplace 3. Rest periods or coffee breaks running from
2. All time the employee suffered or permitted to five (5) to twenty (20) minutes shall be
work considered as compensable working time
3. Rest Periods that shall not be more than 20
minutes D. Waiting Time
i. Power Interruptions
Considered working hours if:
DOLE Policy no. 36 provides that:
o Waiting is an integral part of work
o Employee is required to wait by the employer

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 7

o Employee is required to remain on-call on Not mutually exclusive - an employee can be


employer’s premises or so near thereto that he entitled to both pay at the same time
cannot use time effectively for his own purpose

F. Nightshift differential (Article 86)


D.1 Travel time
An additional compensation of not less than 10%
Travel from home Travel that is all Travel away of an employee’s regular wage for every work
to work in a day’s work from home done from 10:00PM to 6:00AM, even if such
GR: Not work time Work time Worktime when period is part of the regular work shift
EX: it cuts across
(1)Made to work on an employee’s GR: All workers are entitled to Nightshift
an emergency work day differential
(2)Travel by because it EX:
Conveyance substitute 1. Provided in Art. 82 of the Labor Code
provided by hours that the
2. Employers engaging in retail and service
employer employee
(3)Travel under the should be in establishments employing not more than 5
supervision or office employees
control of the
employer NSD is not waivable for it is founded in public
(4)Travel is done
policy (Mercury Drug vs Dayao, GR Np. L-30452,
under vexing and
dangerous 30 September 1982)
circumstances
1. G. Rest periods (Article 91)

- Rest period shall be not less than 24 hours


E. Overtime (Article 87) after every 6 consecutive normal days
- All establishments and enterprises may
- Any employee covered by this Rule who is operate on a Sunday and/or holidays
permitted or required to work beyond eight (8) provided that the employees are given the
hours on ordinary working days shall be paid weekly rest day and their benefits (IRR of
an additional compensation for the overtime the Labor Code, Book III, Rule III, Section
work in the amount equivalent to his regular 2)
wage plus at least twenty-five percent (25%)
thereof. H. HOLIDAY PAY and 13th Month Pay

- Under time is not offset by Overtime (Article Regular Holiday Special Holiday
88) – the undertime hours represent only the Compensable even Not compensable if
if he did not go to he did not go to
employee’s hourly rate while overtime reflect
work work
both the hourly rate and the overtime premium
Limited by RA 9492 Not limited since a
and offsetting shall deprive the overtime local ordinance can
premium of employees (NWSA vs NWSA give special
Consolidated Unions, GR No. 18939, 31 holidays
August 1964) Rate: 200% Rate: 130%

Premium pay Overtime pay Regular Holidays and Nationwide Special


Additional Payment for the work Days under RA 9492
compensation required performed beyond
by law to be paid for the regular 8 hours of 1. New Year’s Day January 1
work performed within work per day 2. Maundy Thursday Movable Date
the 8 regular hours on 3. Good Friday Movable Date
non-working days, such 4. Eid’l Fitr Movable Date
as rest days, and special
5. Eid’l Adha Movable Date
holidays

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 8

6. Araw ng Kagitingan Monday nearest April 9 employees at Omnibus Rules To Implement


7. Labor Day Monday nearest May 1 The Labor Code Of The Philippines
8. Independence Day Monday nearest June
12 Frequency of distribution (IRR of the Labor
9. National Heroes Day Last Monday of August Code, Rule VI, Sec. 4)
10. Bonifacio Day Monday nearest The shares referred to herein shall be distributed
November 30 and paid to the employees not less than once
11. Christmas Day December 25 every two (2) weeks or twice a month at intervals
12. Rizal Day Monday nearest not exceeding sixteen (16) days.
December 30

Successive Holiday Rule


- To be entitled to 2 successive holidays, the
employee must:
1. Be present on the day immediately
preceding the first holiday
2. Be on leave with pay

13th Month Pay


- Additional income based on wage REQUIRED
by law (PD 851) basic on Basic Salary
Basic Salary
- Includes all remunerations or earnings paid to
an employee including Cost of living
allowances
 It does not include allowances, monetary
benefits, unused vacation overtime, NSD, and
holiday pay

I. Service Charge (Rule VI of the Labor


Code IRR)

Coverage:
- Shall apply only to establishments collecting
service charges such as hotels, restaurants,
lodging houses, night clubs, cocktail lounge,
massage clinics, bars, casinos and gambling
houses, and similar enterprises, including
those entities operating primarily as private
subsidiaries of the Government.

Distribution of service charges (IRR of the


Labor Code, Rule VI, Sec. 3)
- All service charges collected by covered
employers shall be distributed at the rate of
85% for the employees and 15% for the
management. The 85% shall be distributed
equally among the covered employees. The
15% shall be for the disposition by
management to answer for losses and
breakages and distribution to managerial

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 9

WORKING CONDITIONS SUMMARY

X – NOT ENTITLED
 – ENTITLED
Overtime Service Holiday 13th Month Wage Premium
Pay Incentive Pay Pay Increase Pay for
Leave Pay from Wage Holiday
Order and Rest
Day
Managers
and X X X   
members of
managerial
staff
Field X X  X  
Personnel
Dependent
Family X X X  X 
Members
Domestic X X X   X
Servants
Piece X X    
Workers

NOTE: If below 10 employees, No Service Incentive Leave.

Applicable Labor Standards For Retail & Service Establishments


Employing 1 to 5 workers Employing 1 to 9 workers
Minimum Wage  
Holiday pay N/A N/A
Premium pay  
Overtime pay  
Night shift pay N/A 
Service charge  
Service incentive leave N/A N/A
Maternity leave  
Paternity leave  
Parental leave  
Leave for VAWC  
Special leave for women  
13th month pay  
Separation pay  
Retirement pay N/A N/A
ECC benefits  
PhilHealth benefits  
SSS benefits  

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 10

WAGES TIME PLACE

A. SCOPE GR: GR:


(1) Once every 2 weeks; Near or at the workplace
Coverage Exclusions (2) Twice a month at
The rule on wages 1) Farm Tenancy/Leasehold intervals of not exceeding
apply to ALL 2) Domestic servants 16 days
workers 3) Homeworkers engaged in needle EX: EX:
work / cottage industry (1) Force Majeure; (1) Deterioration of peace
4) Workers employed in a business (2) In case of payment (2) Employer provides free
registered in National Cottage when work cannot be transportation
Industry Development Authority completed in 2 weeks (3) Other related
5) Workers in duly registered provided that there is no circumstances
Cooperatives CBA or arbitration award
6) Workers of a Barangay Micro
Business

FACILITIES v SUPPLEMENT

FACILITIES SUPPLEMENT
Constitute extra Items of expense
remuneration or special necessary for the laborer’s
B. WAGE v SALARY
privileges or benefits and his family’s existence
given to or received by and subsistence so that by
WAGES SALARY the laborers over and express provision of law
above their ordinary
Remuneration or earnings, Paid to white collar earnings or wages.
however designated, workers and denote a Independent of wages form part of the wage and
capable of being expressed higher grade of Not wage deductible when furnished by the
in terms of money, whether employment employer are deductible
fixed or ascertained on a therefrom
time, task, piece, or meals and snacks -
deduction cannot be more
commission basis, or other
than 70% of the value of
method of calculating the the meals and snacks,
same, which is payable by provided that such
an employer to an employee deduction must be
under a written or unwritten authorized in writing by the
contract of employment for employee; remaining 30%
has to be subsidized by the
work done or to be done, or
employer
for services rendered or to
be rendered of Labor and
Employment, of board,
NON-DIMUNITION OF BENEFITS
lodging, or other facilities
customarily furnished by the When Applicable:
employer to the employee 1. The practice is consistent and deliberate
(Art. 97).
(Metrobank vs NLRC, GR No. 152928, 18
Under Art. 1708 of the Civil It is not exempt from June 2009)
Code, it is exempted execution, 2. Diminution is done unilaterally by the
execution, garnishment, garnishment, or employer (Steel Corp. vs NMS-IND-APL, GR
or attachment except for attachment (Gaa vs No.185556, 28 March 2011)
debts related to food, CA, GR No. L-44169, 3 3. It has been a Practice for a long period of
clothing, shelter and December 1985) time (Phil. Appliance Corp. vs CA, GR
medicines No.149434, 3 June 2004)
4. Practice is not due to error (Vergara vs Coca
C. PAYMENT OF WAGES Cola, GR No. 176985, 1 April 2013)

Exceptions:

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 11

1. Correction of error Standards/Criteria for Min wage fixing


2. Negotiated benefits a. Living Wage
3. Wage order compliance b. Consumer price index
4. Benefits on reimbursement basis c. Cost of living
5. Re-classification of position d. Needs of workers and their families
6. Contingent benefits e. Induce industries to invest in countryside
7. Productivity incentives f. Improvements in standards of living
g. Prevailing wage levels
PROHIBITION REGARDING WAGES h. Fair return of capital
i. Effects on employment generation and
Payment of wages cannot be in the form of: family income
1. Vouchers j. Equitable distribution of income and wealth
2. Promissory notes
3. Coupons Varying minimum wages
4. Chits To justify different minimum wages for
5. Tokens different localities, the economic and other
6. Tickets conditions found in a particular locality must not
7. Any object other than legal tender only be more or less uniform therein but also
different from those prevailing in other localities.
GR: Payment by legal tender
EX: Publication of Wage Order
1. Customary on the date of the implementation Only such portions of a Wage Order shall
of the Labor Code be published as shall effectively give notice to all
2. Necessary because of special circumstances interested parties that such an Order has been
set by the Secretary of Labor issued, the industry affected, the minimum wages
3. Stipulated in the CBA prescribed and the date of its effectivity
4. Where the following conditions are met:
a. There is a bank for encashment within 1KM Wage Distortion
radius from the workplace situation where an increase in prescribed
b. The employer does not receive any pecuniary wage rates results in the elimination or severe
benefit on this arrangement contraction of intentional quantitative differences
c. Employees are given reasonable time to in wage of salary rates among employee groups,
withdraw obliterating the distinctions as to skills, length of
d. Payment by Check is with a written consent service or other logical bases of differentiation.
Requisites:
1. Significant change or increase in salary rate of
a lower paying class without the relative
Wage Order, Wage Distortion increase of salary rate of a higher one
2. Existence of Hierarchy in positions with
Wage Order corresponding salary rates
Shall specify the industry or branch to 3. There will be elimination of that distinction
which the minimum wages prescribed therein shall 4. Distortion exists in the same region
apply; Provided, That no definite rates shall be
prescribed for specific job titles in the industry.

LEAVES
COVERAGE AND EXCLUSIONS

Coverage Exclusions

Service Incentive Employees who have rendered at least ONE YEAR 1) Employers with LESS THAN 10
Leave Pay of service WORKERS regardless of nature of
business
2) Employers exempted by DOLE
Secretary on account of

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 12

viability/financial condition of the


establishment

Maternity Leave A female member who has paid at least 3 monthly


(SSS Law) contributions in the 12-month period immediately
preceding the semester of her childbirth or
miscarriage

Paternity Leave Every married male employee in the private and


public sector

Parental Leave (for 1) A parent left alone with the responsibility of


Solo Parents) parenthood because of the death of spouse

2) A parent left alone with the responsibility of


parenthood because of any physical and/or
mental incapacity of the spouse as certified by a
public medical practitioner

3) A parent left alone with the responsibility of


parenthood because he has legally separated
from his spouse or because he has been
separated for at least one year and the child is in
his custody

4) A parent left alone with the responsibility of


parenthood because the marriage was annulled
by a court or a church decree, and the child is in
his custody

5) A parent left solo or alone with the


responsibility of parenthood because the spouse
abandoned him for at least one year

6) A parent left solo or alone with the


responsibility of parenthood because spouse is
detained or is serving sentence for a crime for at
least one year

7) An unmarried mother or father who has


preferred to keep and rear for the child
herself/himself, instead of having others care for
them or give them up to a welfare institution

8) solely provided parental care and support to a


child or children

9) assumes the responsibility of head of the


family as a result of the death, abandonment,
disappearance or prolonged absence of the
children’s parents or solo parent

10) a victim of rape and/or other crimes against


chastity, have given birth to a child as a result
and have decided to keep and raise the child

Leave for victims of An employee (not only for women) who is a


violence against victim of violence, either physical, sexual or
women psychological

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 13

D. Special Groups of Employees


If the employer can prove that the reasonable
1. Women demands of the business require distinction based
A. Discrimination on marital status and there is no better available
RA 9710, Magna Carta of Women or acceptable policy which would better
accomplish the business purpose.
"Discrimination Against Women" refers to any
gender-based distinction, exclusion, or restriction C. Prohibited acts
which has the effect or purpose of impairing or
nullifying the recognition, enjoyment, or exercise It shall be unlawful for any employer:
by women, irrespective of their marital status, on (PPFFD)
a basis of equality of men and women, of human
rights and fundamental freedoms in the political, (1) To discharge any woman employed by him for
economic, social, cultural, civil, or any other field. the purpose of Preventing such woman from
It includes any act or omission, including by law; enjoying the maternity leave, facilities and other
policy, administrative measure, or practice, that benefits provided under the Code;
directly or indirectly excludes or restricts women
in the recognition and promotion of their rights (2)To discharge a woman employee on account of
and their access to and enjoyment of her Pregnancy, or while on leave or in
opportunities, benefits, or privileges. confinement due to her pregnancy;

B. Stipulation against marriage (3) To discharge or refuse the admission of a


woman upon returning to work for Fear that she
It shall be unlawful for an employer to: (CAS) may be pregnant;
require as a condition of employment or
continuation of employment that a woman (4) To discharge any woman or child or any other
employee shall not get married, or to stipulate employee for having Filed a complaint or having
expressly or tacitly that upon getting married, a testified or being about to testify under the Code;
woman employee shall be deemed resigned or and
separated, or to actually dismiss, discharge,
discriminate or otherwise prejudice a woman (5) To Deny any woman the benefits of
employee merely by reason of her marriage. employment or other statutory benefits under the
laws by reason of her sex, age, ethnic origin or
Rule against marriage, when valid: In the case beliefs, or relations, either by affinity or
of Duncan Association of Detailman-PTGWO v. consanguinity.
Glaxo Welcome Philippines, Inc., [G.R. No.
162994, September 17, 2004], what the company D. Sexual harassment
merely seeks to avoid is a conflict of interest RA 7877 Anti-Sexual Harassment Act of 1995
between the employees and the company that
may arise out of such relationships. Work, education or training-related sexual
harassment is committed by an employer,
Rule against marriage, when not valid: In PT employee, manager, supervisor, agent of the
& T v. NLRC, [G.R. No. 118978, May 23, 1997, 272 employer, teacher, instructor, professor, coach,
SCRA 596, 605], it was held that a company policy trainor, or any other person who, having
of not accepting or considering as disqualified from authority, influence or moral
work any woman worker who contracts marriage ascendancy over another in a work or training
runs afoul of the test of, and the right against, or education environment, demands, requests or
discrimination afforded all women workers by our otherwise requires any sexual favor from the
labor laws and by no less than the Constitution. other, regardless of whether the demand, request
or requirement for submission is accepted by the
object of said Act.
“Reasonable business necessity rule” as
applied to the prohibition against marriage policy: 2. Minors
In Star Paper Corp. v. Simbol, Comia and Estrella, GR: Children below 15 years of age shall not be
[G.R. No. 164774, April 12, 2006], it was held the employed
only way it could pass judicial scrutiny is a showing Ex:
that it is reasonable despite the discriminatory,
albeit disproportionate, effect.

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 14

(1) When the child works directly under the sole transportation, school projects and school
responsibility of his/her parents or legal guardian activities.
who employs member of his/her family provided:
a. employment does not endanger the child’s Rights and Privileges (GRABS)
life, safety, health and morals (1) Guarantee of privacy
b. employment does not impair the child’s (2) Right to education and training
normal development (3) Access to outside communication
c. the parent/legal guardian provides the (4) Board, lodging and medical assistance
child with primary and/or secondary (5) Standard treatment
education by DEPed.
4. Homeworkers
(2) Where the child’s employment or participation
in public entertainment or information through An industrial homeworker is a worker who
cinema, theater, radio, or tv is essential, provided: is engaged in industrial homework, a system of
a. employment does not involve production under which work for an employer or
advertisements or commercials promoting contractor is carried out by a homeworker at
alcoholic beverages, intoxicating his/her home. The materials may or may not be
drinks, tobacco and its by-products or furnished by the employer or contractor.
exhibiting violence;
b. there is w written contract approved by 5. Night Workers
the DOLE; and
c. The conditions prescribed for the A night worker is any employed person
employment of minors are met. whose work requires performance of a substantial
number of hours of night work which exceeds a
Hours of work: specified limit. This limit shall be fixed by the
(1) A child below 15 years of age may be allowed Secretary of Labor after consulting the workers'
to work for not more tan 20hours a week, not representatives/labor organizations and
more than 4hours any given day. employers.

(2) A child 15 years of age but below 18 years shall IV. POST-EMPLOYMENT
not be allowed for more than 8 hours a day, and
in no case beyond 40 hours a week. A. Employer-employee relationship
-No child below 15 years of age shall be 1. Tests in determine employer-
allowes to work between 8pm to 6am of employee relationship
the following day and no child 15 years
of age but below 18 years shall be The “four–fold test”:
allowed to work between 10pm and a. Selection and engagement of the
6am of the following day.
employee;
b. Payment of wages;
3. Kasambahay
c. Power of dismissal;
RA 10361 Domestic Workers Act" or "Batas d. Power of control
Kasambahay"
Control test- most important test. The employer
has reserved the right to control not only the work
Domestic worker or "Kasambahay" refers
to be achieved but the manner and method by
to any person engaged in domestic work within an
which such work is to be achieved.
employment relationship such as, but not limited
to, the following: general househelp, nursemaid or
Economic Test- The economic realities prevailing
"yaya", cook, gardener, or laundry person, but
within the activity or between the parties are
shall exclude any person who performs domestic
examined.
work only occasionally or sporadically and not on
an occupational basis.
The two‐tiered test
a. The putative Employer’s power to control
The term shall not include children who are under the Employee with respect to the means
foster family arrangement, and are provided
and methods by which the work is to be
access to education and given an allowance
accomplished; and
incidental to education, i.e. "baon",

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 15

b. The underlying economic realities of the and undertakes the service under its own
activity or relationship. contract work on his account and responsibility;
ACCOUNT, under his own and the employees
RESPONSIBILITY, using his recruited, supplied or
2. Kinds of employment
own MANNER AND placed by such contractors
METHODS, FREE from the are performing activities
TYPE DESCRIPTION
control of the principal in which are DIRECTLY
REGULAR Those who are hired for activities all matters connected with RELATED to the main
EMPLOYEES which are necessary or the performance of work business of the principal;
desirable in the usual trade or excepting the results
business of the employer. thereof.
PROBATIONARY Those who are hired generally for He has his own CAPITAL in The CONTRACTOR has NO
regular positions but are placed the form of TOOLS, CONTROL over the conduct
on a probationary status for a EQUIPMENT, MACHINERY, of the work to be done by
period of 6 months (as a general WORK PREMISES, and that his employees. (Sec. 5 of
rule). May become regular once the agreement between Department Order No. 18-
he has qualified as such in the contractor and 02 requires any two of the
accordance with reasonable principal assures the elements to be present)
standards made known to him at former’s employees of ALL
the time of hiring. They are RIGHTS AND BENEFITS (Memory Aid: No Cap Direct
considered regular if they are under the law. OR No Control)
allowed to work beyond the
ELEMENTS: (MEMORY AID:
probationary period.
I ARM FREE CAPITAL
TEMWORK R&B)
TERM EMPLOYEES those who are hired for a specific TRILATERAL RELAT.
period, the arrival of the date NONE
specified in the contract of which 1. Contract between
automatically terminates the Principal and the Agency:
employer-employee relationship. CIVIL CONTRACT
(Brent School vs. NLRC, 181
SCRA 702) 2. Contract between
PROJECT The principal test for determining Agency and its employees:
EMPLOYEES whether particular employees are LABOR CONTRACT
properly characterized as "project SOLIDARY LIAB.
employees" as distinguished from The employer is deemed
"regular employees" is whether or The employer is considered the DIRECT employer and is
not the project employees were an INDIRECT EMPLOYER, made liable to the
assigned to carry out a "specific and is made solidarily employees of the contractor
project or undertaking," the liable with the contractor to for a more comprehensive
duration and scope of which were the employees of the latter purpose (wages and all
specified at the time the for a more limited purpose. other benefits in LC). The
employees were engaged for that labor-only contractor is
project. deemed merely an agent.
SEASONAL Those hired for work or services
EMPLOYEES which is seasonal in nature, and
the employment is for the A. Termination of Employment
duration of the season.
a. Resignation versus Constructive
dismissal
3. Job-contracting versus Labor-Only
Resignation Constructive Dismissal
Contracting
It is the voluntary act of Quitting, because
employees who are continued employment is
compelled by reasons to rendered impossible,
Job-Contracting Labor-Only disassociate themselves unreasonable or unlikely,
Contracting from their employment. It as an officer involving
ELEMENTS must be done with intention demotion in rank and
There is a job-contracting The contractor or sub- of relinquishing the office, diminution in pay. (Jo
permissible by law where contractor DOES NOT HAVE accompanied by the act of Cinema Corp vs Abellana
the contractor/agency SUBSTANTIAL CAPITAL or abandonment. Where 360 SCRA 142 (2001)
carries on an investment to actually evidence reveals otherwise,
INDEPENDENT business perform the job, work or then illegal dismissal.

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 16

Redundancy Separation pay of 1


Note: If the resignation is not voluntary, the same month pay for every
can be deemed to be a constructive dismissal year of service
Closing or cessation of Separation pay of 1/2
operation of the month pay for every
1. Termination by Employer
establishment or year of service
a. Just Causes

a. Serious misconduct or willful disobedience by c. Due Process


the employee of the lawful orders of his employer 1. Substantive – it must be for a just cause
or representative in connection with his work 2. Procedural – there must be notice and hearing
b. Gross and habitual neglect by the Employee of a. Twin-notice requirement
his duties
The twin requirements of NOTICE and
c. Fraud or willful breach by the Employee of the
HEARING are the essential elements of due
trust reposed in him by his Employer or duly
process in termination cases, which cannot be
organized representative
dispensed with without violating the constitutional
d. Commission of a crime or offense by the right to due process. A written notice should be
Employeee against the person of his Employer or served to the Employee specifying the ground/s
any immediate member of his family or his duly for termination and giving the said Employee
authorized representative. reasonable opportunity to explain.
e. Other causes analogous to the foregoing
b. Hearing: Ample opportunity to be
heard
b. Authorized Causes
Two Notice Required:
1. Disease – must be incurable within 6 months (a) Notice of appraisal
and the continued employment is prohibited by
(b) Notice of termination
law or prejudicial to his health as well as to the
health of his co‐Ees.
2. Installation of labor‐saving devices-
3 Relief of Illegal Dismissal
(automation/robotics)
ILLEGALITY OF THE ACT OF DISMISSAL -
3. Retrenchment – cutting of expenses and
DISMISSAL WITHOUT JUST CAUSE:
includes the reduction of personnel; It is a
Remedies under the Labor Code:
management prerogative. To be an authorized
cause it must be affected in good faith (GF). 1. Reinstatement to his former position without
4. Redundancy- exists where the services of an loss of seniority rights. If no longer available nor
employee are in excess of what is reasonably any equivalent position, then separation pay to be
demanded by the actual requisites of the given in lieu or reinstatement computed 1 month
pay for every year of service.
enterprise. (Wiltshire File Co., Inc. v. NLRC,
G.R. No. 82249, Feb. 7, 1991) The redundancy 2. Payment of FULL backwages corresponding
should not have been created by the Employer. to the period from his illegal dismissal up to actual
reinstatement.
5. Closing or cessation of operation of the
establishment or undertaking – must be done 3. Damages plus attorney’s fees.
in good faith and not for the purpose of
circumventing pertinent labor laws. ILLEGALITY IN THE MANNER OF DISMISSAL
- DISMISSAL WITHOUT DUE PROCESS:
(WENPHIL, SERRANO AND AGABON RULING)
Disease Separation pay of 1/2
month pay for every In any event, NO REINSTATEMENT. However,
year of service as regards penalty for non-compliance with due
Installation of labor‐saving Separation pay of 1 process requirements, the newest Supreme Court
devices month pay for every ruling circa November 2004 is that the employer
year of service
shall be sanctioned with penalty of P30,000.00 in
Retrenchment Separation pay of 1/2
month pay for every
accordance with the Agabon vs. NLRC case, which
year of service

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 17

now affirms the Wenphil doctrine and abandoning It is the result of a bilateral act of the parties, a
the Serrano ruling. voluntary agreement between the employer and
the employees whereby the latter after reaching a
Difference in separation pay.(Jaka certain age agrees and/or consents to sever his
Food Processing v. Pacot, G.R. No. employment with the former. (Soberano v. Sec. of
151378; 28 March 2005) Labor, G.R. Nos. L‐43753‐56 and L‐50991, Aug. 29,
1980)
 If the dismissal is based on a just cause
under Article 282 but the employer failed GR:
to comply with the notice requirement, the (1) MANDATORY upon reaching 65 years of age,
sanction to be imposed upon him should be no service requirement;
tempered because the dismissal process (2) OPTIONAL- upon reaching the age of 60 years
of age, at least 5yrs of service, at the option of the
was, in effect, initiated by an act imputable
employer.
to the employee. Hence: P30,000.00
nominal damages for non-compliance with EX:
due process, because employee has Where the company provides for a Retirement Plan
committed an infraction with earlier retirement age, then the company’s
Retirement Plan will apply.
 On the other hand, if the dismissal is based
on an authorized cause under Article 283
but the employer failed to comply with the MANAGEMENT PREROGATIVE
notice requirement, the sanction should be
stiffer because the dismissal process was What is Management Prerogative?
initiated by the employer’s exercise of his
management prerogative. Hence, Except as limited by special law, an employer is
free to regulate according to his own discretion
P50,000.00 nominal damages for non-
and judgment, all aspects of employment,
compliance with due process, because
including, hiring, work assignments, working
employee did not commit anything wrong methods, time, place, and manner of work, tools
but that the termination was due to an to be used, processes to be followed, supervision
exercise of management prerogatives. of workers, working regulations, transfer of
employees, work supervision, lay-off of workers
4 Preventive Suspension and the discipline, dismissal and recall of work.
It is a disciplinary measure for a protection of the
Valid Exercise of Management Prerogatives
company’s property pending investigation of any
alleged malfeasance committed by the employee.
The free will of the management to conduct its
own affairs to achieve its purpose cannot be
Q: May a second preventive suspension be
denied, PROVIDED THAT THE SAME IS
imposed on the employee, on account of additional
EXERCISED:
charges found against him?
1. IN GOOD FAITH (BONA-FIDE IN
A: YES. If the employee is charged with another
CHARACTER),
offense, then the employer is entitled to impose a
2. FOR THE ADVANCEMENT OF THE
preventive suspension not to exceed 30 days
EMPLOYER’S INTEREST; AND
specifically for the new infraction. Indeed, a fresh
3. NOT TO CIRCUMVENT THE RIGHTS OF
preventive suspension can be imposed for a
THE EMPLOYEES. (Capitol Medical Center
separate or distinct offense. Thus, an employer is
vs. Meriz; San Miguel Brewery and Union
well within its rights to preventively suspend an
Carbide cases).
employee for other wrongdoings that may be later
discovered while the first investigation is ongoing.
A. Discipline
(Smart Communications, Inc., Mr. Napoleon L.
Nazareno, and Mr. Ricky P. Isla and Mr. Ricky P.
Isla, vs. Jose Leni Z. Solidum, G.R. No. 197763, 07
The Employer has the prerogative to instill
December 2015) discipline in his Employees and to impose
reasonable penalties, including dismissal, on
d. Retirement erring Employees pursuant to company rules and

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 18

regulations. (San Miguel Corporation v. NLRC, G.R. A: No. There is no law that compels an Ee to
No. 87277, May 12, 1989) accept promotion, as a promotion is in the nature
of a gift or a reward, which a person has a right to
Q: Is the power of the Employer to discipline refuse. When an Ee refused to accept his
his Emplyees absolute? promotion, he was exercising his right and cannot
be punished for it. While it may be true that the
A: No. While management has the prerogative to right to transfer or reassign an Ee is an Er’s
discipline its Employees and to impose appropriate exclusive right and the prerogative of
penalties on erring workers, pursuant to company management, such right is not absolute. (Dosch
rules and regulations, however, such management vs. NLRC and Northwest Airlines, G.R. No. 51182,
prerogatives must be exercised in good faith for July 5, 1983)
the advancement of the Employer’s interest and
not for the purpose of defeating or circumventing Q: Who has the burden of proving that the
the rights of the Ees under special laws and valid transfer was reasonable?
agreements. (PLDT vs. Teves, G.R. No. 143511,
November 10, 2010) A: Employer has the burden of proving that the
transfer is not unreasonable inconvenient or
B. Transfer of Employees prejudicial to the Ee; nor does it involve a
demotion in rank or a diminution of his salaries,
The employer has the inherent right to transfer or privileges and other benefits. Should the Er fail to
assign an employee in the pursuance of its overcome this burden of proof, the Ee’s transfer
legitimate business interest subject only to the shall be tantamount to constructive dismissal.
condition that it be not motivated by (Blue Dairy Corporation v. NLRC, 314 SCRA 401
discrimination or bad faith. (Pt&T v Laplana, GR [1999])
no. 76645 July 23, 1991)
The mere fact that it would be inconvenient does
not by itself make the transfer illegal. ( OSS
Q: Discuss briefly the Er’s right to transfer Security v NLRC, 325 SCRA 157 [2000])
and reassign Ees.
C. Productivity Standard
A: In the pursuit of its legitimate business
interests, especially during adverse business Q: May an Er impose productivity standards
conditions, management has the prerogative to for its workers?
transfer or assign Ees from one office or area of
operation to another provided there is no A: An Er is entitled to impose productivity
demotion in rank or diminution of salary, benefits standards for its workers, and in fact, non‐
and other privileges and the action is not compliance may be visited with a penalty even
motivated by discrimination, bad faith, or effected more severe than demotion. The practice of a
as a form of punishment or demotion without company in laying off workers because they failed
sufficient cause. This privilege is inherent in the to make the work quota has been recognized in
right of Ers to control and manage their this jurisdiction. Failure to meet the sales quota
enterprises effectively. assigned to each of them constitute a just cause
of their dismissal, regardless of the permanent or
Q: Can security of Tenure prevent transfer? probationary status of their employment.

A: The right of Ees to security of tenure does not Failure to observe prescribed standards of work,
give them vested rights to their positions to the or to fulfill reasonable work assignments due to
extent of depriving management of its prerogative inefficiency may constitute just cause for
to change their assignments or to transfer them. dismissal. Such inefficiency is understood to mean
(Endico v. Quantum Foods Distribution Center, failure to attain work goals or work quotas, either
G.R. No. 161615, Jan. 30, 2009) by failing to complete the same within the allotted
reasonable period, or by producing unsatisfactory
Q; May the Er exercise his right to transfer results. This management prerogative of requiring
an Ee and compel the latter to accept the standards may be availed of so long as they are
same if said transfer is coupled with or is in exercised in good faith for the advancement of the
the nature of promotion? Er’s interest. (Leonardo vs. NLRC, G.R. No.
125303, June 16, 2000)

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 19

D. Bonus 1. That the employment qualification is


reasonably related to the essential
It is an amount granted and paid to an Ee for his operation of the job involved; and
industry and loyalty which contributed to the 2. That there is a factual basis for believing
success of the Ers business and made possible the that all or substantially all persons meeting
realization of profits. the qualification would be unable to
properly perform the duties of the job.
Q: Can bonus be demanded? (Star Paper et al. vs. Simbol, G.R. No.
164774, April 12, 2006)
A:
GR: Bonus is not demandable as a matter of right. Q: What is the importance of the BFOQ Rule?
It is a management prerogative given in addition
to what is ordinarily received by or strictly due to A:
recipient. (Producers Bank of the Phil. v. NLRC, 1. To ensure that the Ee can effectively
G.R. No. 100701, March 28, 2001) perform his work
2. So that the no‐spouse rule will not impose
EX: Given for a long period of time any danger to business.
1. Consistent and deliberate – Er continued
giving benefit without any G. Post-Employment Ban
condition imposed for its payment
2. Employer knew he was not required to Q: Is a restrictive covenant valid?
give benefit
3. Nature of benefit is not dependent on A: Restrictive covenants are not necessarily void
profit for being in restraint of trade. In deciding to
4. Made part of the wage or compensation include a restrictive covenant in the employment
agreed and stated in the employment contract, employers must see to it that there are
contract. reasonable limitations as to time, trade and place
(Tiu v. Platinum Plans Phils., Inc. [G.R. No.
E. Change of Working Hours 163512, 28 February 2007]).

Q: Can management change the agreed Q: What are the factors to test WON a
working time? restrictive covenant is reasonable or not?

A: The working hours may be changed, at the A: The following factors should be considered:
discretion of the company, should such change be (a) whether the covenant protects a legitimate
necessary for its operations, and that the business interest of the employer;
employees shall observe such rules as have been (b) whether the covenant creates an undue
laid down by the company. (Interphil Laboratories burden on the employee;
Employees Union-FFW v. Interphil Laboratories, (c) whether the covenant is injurious to the public
Inc., 372 SCRA 658 [2001]) welfare;
(d) whether the time and territorial limitations
F. Marriage between employees of contained in the covenant are reasonable; and
competitor employers (e) whether the restraint is reasonable from the
standpoint of public policy (Rivera v. Solidbank
Q: Is a company policy prohibiting marriage Corporation [G.R. No. 163269, 19 April 2006]).
between co‐workers valid?

A: There must be a finding of a bona fide


occupational qualification (BFOQ) to justify an Er’s
No Spouse Rule. There must be a compelling
business necessity for which no alternative exists
other than the discriminating practice. (Star Paper
vs. Simbol, G.R. No. 164774, April 12, 2006)

Q: What are the factors that the Er must


prove inorder to justify BFOQ?

A: The Er must prove 2 factors:

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 20

SSS GSIS
COVERAGE 1) ALL EMPLOYEES not over 60 years of age and 1. COMPULSORY MEMBERSHIP
their employers All government personnel, whether
2) A DOMESTIC WORKER who has rendered at elective or appointive, irrespective of
least 1 month of service status of appointment , provided:
3) SELF-EMPLOYED persons as may be (a) receiving fixed monthly
determined by the Commission, including but not compensation and
limited to the following: (b) have not reached the mandatory
(a) self-employed professionals retirement age of 65 years
(b) partners and single proprietors
(c) actors and actresses, directors, 2. Employees who have reached the
scriptwriters and news correspondents who do retirement age of 65 or more shall also
not fall within the definition of the term employee be covered under the following
of this act conditions:
(d) professional athletes, coaches, trainers (a) an ELECTIVE OFFICIAL who at the
and jockeys time of election to public office is below
(e) individual farmers and fishermen 65 years of age and will be 65 years or
more at the end of his term of office,
including the period/s of his re-election
to public office thereafter without
interruption
(b) APPOINTIVE OFFICIALS who,
before reaching the mandatory age of
65, are appointed to government
position by the President of the Republic
of the Philippines and shall remain in
government service at age beyond 65.
(c) CONTRACTUAL EMPLOYEES
including casuals and other employees
with an employee-government agency
relationship are also compulsory covered,
provided they are receiving fixed monthly
compensation and rendering the required
number of working hours for the month
EXCLUSION Excluded employer: 1. UNIFORMED PERSONNEL of the AFP,
Government and any of its political PNP, Bureau of Fire Protection, and BJMP
subdivisions, branches or instrumentalities, 2. Barangay and Sanggunian Officials
including corporations owned or controlled by the who are not receiving fixed monthly
Government with original charters. compensation
3. CONTRACTUAL EMPLOYEES who are
Excluded employees: not receiving fixed monthly
(1) Employment purely CASUAL and not for compensation
the purpose of occupation or business of the 4. Employees who do not have MONTHLY
employer REGULAR HOURS OF WORK and are NOT
(2) Services performed on or in connection RECEIVING FIXED MONTHLY
with an ALIEN VESSEL by an employee if he is COMPENSATION.
employed when such vessel is outside the
Philippines
(3) Services performed by TEMPORARY
EMPLOYEES; which may be excluded by

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 21

regulation of the Commission. Employees of bona


fide independent contractors shall not be deemed
employees of the employer engaging the service
of said contractors
(4) Service performed in the employ of the
PHILIPPINE GOVERNMENT, instrumentality or
agency thereof; and
(5) Service performed in the employ of a
FOREIGN GOVERNMENT, international
organization, or their wholly-owned
instrumentality
BENEFICIARIES/ A. Primary Beneficiaries (SC) SAME except that RA 8291 does not
1. Dependent Spouse until he/she remarries distinguish share of legitimate and
2. Dependent legitimate, legitimated, illegitimate children.
illegitimate, or legally adopted Children;

NB Illegitimate children are entitled only


to 50% of the share of legitimate children
unless there are no legitimate children, in
which case, they get 100%.

B. Secondary Beneficiaries in the absence of


Primary Beneficiaries (PO)
1. Dependent Parents
2. Other persons designated by the covered
persons

DEPENDENTS (1) The legal spouse entitled by law to receive SAME, except that a child here is below
support from the member; 18.
(2) The legitimate, legitimated or legally adopted,
and illegitimate child who is unmarried, not
gainfully employed, and has not reached twenty-
one (21) years of age, or if over twenty-one (21)
years of age, he is congenitally or while still a
minor has been permanently incapacitated and
incapable of self-support, physically or mentally;
and
(3) The parent who is receiving regular support
from the member.
BENEFITS (a) Monthly pension (a) Monthly pension
(b) Dependents’ pension (b) Retirement benefits
(c) Retirement benefits (c) Permanent disability benefits
(d) Permanent disability benefits (d) Death Benefits
(e) Death benefits (e) Funeral benefits
(f) Funeral benefits (f) Loan – GSIS website provides for this
(g) Loan – Social Security Commission Resolution (g) Temporary disability benefits [similar
No. 669. Moreover, several SSS-issued circulars to sickness]
such as Circular No. 21-P and No. 52 pertain to the (h) Separation benefits
treatment of salary loans, sometimes providing for (i) Unemployment benefits – Sec 11
more flexible payment terms or condonation for (j) Survivorship benefits
delinquent payers; Santiago v. CA and SSS, GR # (k) Life insurance benefits

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 22

L-39949 [1984] resolved an issue involving the Note: Judiciary and Constitutional
treatment of salary loan repayments; SSS website Commissions are entitled to life insurance
also shows loans only.
(h) Sickness benefits
(i) Maternity leave benefits

 Who wish to retain their membership in


Q: Can a wife be a dependent if separated de both systems
facto?
Definition of terms
A: NO. Wife who is separated de facto from her
husband cannot be said to be dependent for Portability – shall refer to the transfer of funds
support upon the husband absent any showing of for the account and benefit of a worker who
the contrary. But if it proved that husband and wife transfers from one system to the other.
were still living together at the time the husband
died, it would be safe to presume that she was Totalization – shall refer to the process of adding
dependent unless it is proved that she is capable up the period of creditable services or
of providing herself (SSS vs Aguas, GR NO. contributions under each of the Systems, for
165545, 27 February 2006) purposes of eligibility and computation of benefits

Q: What are the classes of membership in When is totalization applicable?


the GSIS? If a worker is not qualified for any benefits from
both Systems
A: As to type of members, REGULAR and
SPECIAL. If a worker in the public sector is not qualified
for any benefits from the GSIS
Regular members – those employed by the
government of the Republic of the Philippines, If a worker in the private sector is not qualified
national or local, legislative bodies, GOCC with for any benefits from the SSS
original charters, government financial
institutions, except uniformed personnel of the For purposes of computation of benefits,
AFP, PNP, BJMP, who are required by law to remit totalization applies in all cases so that the
regularly monthly contributions to the GSIS. contributions made by the worker-member in both
Systems shall provide maximum benefits which
Special members – constitutional otherwise will not be available. In no case shall the
commissioners, members of the judiciary, contribution be lost or forfeited.
including those with equivalent ranks, who are
required by law to remit regular monthly I. Employees Compensation
contributions for life insurance policies to the GSIS
in order to answer for their life insurance benefits. COVERAGE
(a) Every employer shall be covered.
H. Portability Law
(b) Every employee not over sixty (60) years of
Coverage age shall be covered.
All members of GSIS and/or SSS who: (c) An employee over sixty (60) years of age shall
 Transfer from one sector to another be covered if he had been paying contributions to

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 23

the System prior to age sixty (60) and has not Right to form, join, not join or assist labor
been compulsorily retired. organizations for the purpose of collective
bargaining or for their mutual aid and protection.
(d) An employee who is coverable by both the
GSIS and SSS shall be compulsorily covered by
both Systems. [Sec. 2, IRR of Title II, Book IV of 1. Who may exercise the right
LC]
Any employee may be eligible to join and be a
(e) Filipinos working abroad in the service of an member of labor union, beginning on his first day
employer as defined in Section 3 hereof shall be of service, whether employed for a definite period
covered by the System, and entitled to the same or not. (UST faculty Union vs Bitonio 318 SCRA
benefits as are provided for employees working in 185)
the Philippines. [Sec. 5, IRR of Title II, Book IV of
LC] Exceptions:
WHEN COMPENSABLE
Grounds: (1) Managerial employees (Art. 245, Labor
Code.)
(1) For the injury and the resulting disability or
death to be compensable, the injury must be the Note: Supervisory employees may unionize and
result of accident arising out of and in the course form labor organizations of their own, but may not
of the employment. join rank-and-file union.
(2) For the sickness and the resulting disability or
death to be compensable, the sickness must be (2) Supervisory union affiliate with a
the result of an occupational disease listed under Federation with rank-and-file unions
Annex “A” of these Rules with the conditions set Article 245 has now been amended by Congress
therein satisfied, otherwise, proof must be shown under Rep. Act No. 9481.The rank and file union
that the risk of contracting the disease is increased and the supervisors’ union operating within the
by the working conditions. same establishment may join the same federation
or national union.”
Limitation: No compensation shall be allowed to
the employee or his dependents when the injury, (3) Confidential employees -- Confidential
sickness, disability, or death was occasioned by employees are those who: (1) assist or act in a
any of the following: confidential capacity, (2) to persons who
(1) his intoxication; formulate, determine, and effectuate
(2) his willful intention to injure or kill himself or management policies in the field of labor relations.
another; or The two criteria are cumulative, and both must be
met if an employee is to be considered a
(3) his notorious negligence confidential employee — e.g., the confidential
(4) As otherwise provided by law. relationship must exist between the employee and
his supervisor, and the supervisor must handle the
prescribed responsibilities relating to labor
Vll. Labor Relations relations. The exclusion from bargaining units of
the employees who, in the normal course of their
A. Right to self-organization duties, become aware of management policies
relating to labor relations is a principal objective
Fundamental right guaranteed by the Constitution
sought to be accomplished by the “confidential
and the Labor Code.
employee rule”. (Tunay na Pagkakaisa ng

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 24

Manggagawa sa Asia Brewery vs. Asia Brewery, to read as follows ART. 245. Ineligibility of
G.R. No. 162025, 03 August 2010) Managerial Employees to Join any Labor
Organization; Right of Supervisory Employees.)
(4) Employees of International
Organizations or Specialized Agencies which
are registered with the United Nations and 3. Rights and Conditions of membership
which enjoys diplomatic immunity. a. Nature of relationship

(5) Aliens with valid working permits i. Member-Labor Union


(Department Order No. 9 [1997], Rule II, Sec. 2)
The relationship between the union and its
members is fiduciary in character. The union is but
a. Doctrine of necessary implication an agent of its members for the purpose of
securing them fair and just wages and proper good
Q: What is the doctrine of necessary working conditions. It includes the obligation to
implications? give its members as its principals, all relevant
information and labor matters entrusted to it.
A: The doctrine of necessary implications, (Heirs of Cruz vs Court of Industrial Relations 30
disqualifies a confidential employee from joining SCRA 917)
union activities. Under the doctrine of necessary
implication, the disqualification of managerial
employees equally applies to confidential ii. Labor union-Federation
employees. The confidential-employee rule
justifies exclusion of confidential employees A duly registered federation or national union may
because in the normal course of their duties they directly create a local/ chapter by issuing a charter
become aware of management policies relating to certificate indicating the establishment of a
labor relations. It must be stressed, however, that local/chapter.
when the employee does NOT have access to 1. The chapter shall acquire legal personality only
confidential labor relations information, there is no for purposes of filing a petition for certification
legal prohibition against confidential employees election from the date it was issued a charter
from forming, assisting, or joining a union. certificate
(Sugbuanon Rural Bank, v. Laguesma, [G.R. No.
116194. February 2, 2000) 2. The chapter shall be entitled to all other rights
and privileges of a legitimate labor organization
2. Commingling/Mixture of membership (LLO) only upon the submission of the documents
in addition to its charter certificate:
Managerial employees are not eligible to join,
assist or form any labor organization. Supervisory 3. The genuineness and due execution of the
employees shall not be eligible for membership in supporting requirements shall be: Certified under
the collective bargaining unit of the rank-and-file oath by the secretary or treasurer of the
employees but may join, assist or form separate local/chapter, and Attested to by its president
collective bargaining units and/or legitimate labor (Sec.2[e], Rule III, Book V, IRR, as amended by
D.O. 40‐F‐03)
organizations of their own. The rank and file union
and the supervisors’ union operating within the
same establishment may join the same federation Independent labor unions, chartered locals
or national union. (Section 8 of new law provides: or worker’s associations – It is filed with the
“Article 245 of the Labor Code is hereby amended Regional Office (RO), where the applicant

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 25

principally operates. It shall be processed by the A group of employees of a given employer


Labor Relations Division at the RO. comprised of all or less than all of the entire body
of Employees which the collective interest of all the
Federations, national unions or worker’s
Employees consistent with equity to the Employer
association operating in more than one
Indicate to be best suited to serve the reciprocal
region – It is filed with the BLR of the RO, but
rights and duties of the parties under the collective
shall be processed by the BLR.
bargaining provisions of the law.

Determination of the appropriate bargaining


a. Disaffiliation unit
(a) GLOBE DOCTRINE - the will of the
A labor union may disaffiliate from the mother employees;
union to form an independent union only during
the 60‐day freedom period immediately preceding (b) COMMUNITY OF INTERESTS RULE -
the expiration of the CBA. which takes into consideration the affinity
Exception: Even before the onset of the freedom and unity of employees’ interests, such as
period, disaffiliation may still be carried out, but substantial similarity of work and duties, or
such disaffiliation must be effected by the majority similarity of compensation and working
of the union members in the bargaining unit. conditions;

(c) Prior bargaining history; and

b. Substitutionary doctrine (d) Similarity of employment status,


It is where there occurs a shift in the Ees union
General Rule: community or mutuality of
allegiance after the execution of a collective
interests. San Miguel vs. Laguesma, 236
bargaining (CB) contract with the Er, the Ees can
SCRA 595:
change their agent (labor union) but the CB
contract which is still subsisting continues to bind
the Ees up to its expiration date. They may
however, bargain for the shortening of said
C. Bargaining Representative
expiration date.
The labor organization designated or selected by
the majority of the employees in an appropriate
B. Bargaining Unit bargaining unit shall be the exclusive
representative of the employees in such unit for
It is a group of Employees of a given Employer,
the purpose of the collective bargaining.
comprised of all or less than all of the entire body
of the Employees which the collective interest of
1. Determination of representation
all the Employee consistent with equity to the
employer, indicate to be best suited to serve the status
reciprocal rights and duties of the parties under
the collective bargaining provisions of the law.
a. Voluntary recognition- The process by
Appropriate bargaining unit which a legitimate labor union is recognized
by the employer (Er) as the exclusive
bargaining representative or agent in a

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 26

bargaining unit, reported with the Regional a bargaining deadlock which had been
Office. submitted to conciliation or arbitration
or had become the subject of a valid
notice of strike or lockout to which an
b. Certification election with or without
incumbent or certified bargaining agent
run‐off- It is the process of determining
is a party;
through secret ballot the sole and exclusive
representative of the Ees in an appropriate
bargaining unit, for purposes of CB or Run‐off election
negotiation. (Sec. 1 [h], Rule I, Book V, An election conducted when:
IRR)
1. An election which provides for 3 or more choices
results in none of the contending unions receiving
No duly registered CBA a majority of the valid votes cast, and
2. There are no objections or challenges which if
Petition for certification election may be sustained can materially alter the results, provided
filed any time.
3. The total number of votes for all the contending
unions is at least 50% of the number of votes cast.
With duly registered CBA (Sec. 1, Rule X, Book V, IRR)
a. Contract Bar Rule- the petition was 4. Not one of the choices obtained the majority of
filed before or after the freedom period the valid votes cast (50%+ 1 second majority);
of a duly registered collective
5. The two choices which garnered the highest
bargaining agreement; provided that
votes will be voted and the one which garners the
the sixty-day period based on the
highest number of votes.
original collective bargaining
agreement shall not be affected by any
amendment, extension or renewal of Double majority rule
the collective bargaining agreement; 1. In determining the eligible votes cast (first
majority) include spoiled ballots
b. One Year Bar Rule: the petition was 2. In determining valid votes (second majority),
filed within one (1) year from entry of eliminate spoiled ballots but included the
voluntary recognition or a valid challenged votes
certification, consent or run-off election
and no appeal on the results of the c. Consent election- An election voluntarily
certification, consent or run-off election agreed upon by the parties, with or without
is pending; the intervention by DOLE. (Sec.1 [h], Rule
I, Book V, IRR)

c. Deadlock Bar Rule: a duly certified


union has commenced and sustained d. Direct Certification
negotiations with the employer within
the one-year period referred to in D. Rights of labor organization
Section 14.c of this Rule, or there exists
1. Check off, Assessment, Agency fees

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 27

Union dues- regular monthly contributions


imposed by the Union upon their members and 1. Authorization by a written resolution of the
form part of the Union funds used to finance the majority of all members at the general
activities and as seed money for services and/or membership meeting duly called for that purpose;
benefits extended by the said labor union. 2. Secretary’s record of the minutes of the
meeting, which must include the:
Check‐off a. List of members present
All unions are authorized to collect reasonable b. Votes cast
membership fees, union dues, assessments and c. Purpose of the special assessments
fines and other contributions for labor education d. Recipient of such assessments;
and research, mutual death and hospitalization 3. Individual written authorization to check‐off
benefits, welfare fund, strike fund and credit and duly signed by the Ee concerned – to levy such
cooperative undertakings. assessments.

Requisites of a valid check‐off Requisites for assessment of Agency Fee


No special assessments, atty’s fees, negotiation a. The employee is part of the bargaining
fees or any other extraordinary fees may be unit;
checked off from any amount due to an employee b. He is not a member of the Union;
(Ee) without individual written authorization duly c. He partook of the benefits of the CBA.
signed by the Ee.
The authorization should specifically state the: 2. Collective Bargaining Agreement
1. Amount (CBA)
2. Purpose & It is the obligation to meet and convene promptly
3. Beneficiary of the deduction. and expeditiously in good faith for the purpose of
negotiating an agreement with respect to wages,
hours of work and all other terms and conditions
of employment including proposals for adjusting
Exceptions: any grievances or questions arising under such
1. For mandatory activities under the LC agreement and executing a contract incorporating
2. For agency fees such agreements if requested by either party but
3. When non‐members of the union avail of the such does not compel any party to agree to a
benefits of the CBA: proposal or to make any concession.
a. Non‐members may be assessed union dues
equivalent to that paid by union members; i. Mandatory provisions of CBA
b. Only by board resolution approved by majority
of the members in general meeting called for the i.1. Grievance machinery
purpose.
It refers to the mechanism for the adjustment and
Special assessments resolution of grievances arising from the
These are assessments for any purpose or object interpretation or enforcement of company
other than those expressly provided by the labor personnel policies. It is part of the continuing
organization’s constitution and by‐laws. process of collective bargaining (CB).

Requisites for a valid levy of special ULP in Collective Bargaining


assessment a. Bargaining in bad faith

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 28

b. Refusal to bargain Court of Industrial Relations, 122


Phil. 794, cited in Philippine Law
c. Individual bargaining
Dictionary by Moreno, 2nd Edition.)
d. Gross violation of CBA
Union Shop There is union shop where an
employer may hire new employees,
i.2. Voluntary arbitration but once they become regular
employees, they are required to
It refers to the mode of settling labor management join the union within a certain
disputes by which the parties select a competent, period as a condition for their
trained and impartial third person who shall decide continued employment. (PICOP
on the merits of the case and whose decision is Resources, Inc. (PRI) vs. Anacleto
L. Taneca et. al., G.R. No. 160828,
final and executory. (Sec.1 [d], Rule II, NCMB
09 August 2010)
Revised Procedural Guidelines in the Conduct of
Modified Union A union shop agreement with a
Voluntary Arbitration Proceedings, Oct. 15, 2004) Shop Agreement provision exempting certain
employee groups from its
Union Security Clauses operation, such as old employees
already with the company at a
GR: All employees in the bargaining unit covered designated date, key personnel,
by a Union Shop Clause in their CBA with persons with religious scruples in
management are subject to its terms. joining labor unions. (PICOP
Resources, Inc. (PRI) vs. Anacleto
EX: However, under law and jurisprudence, the L. Taneca et. al., G.R. No. 160828,
following kinds of employees are exempted from 09 August 2010)
its coverage, namely: Maintenance of There is maintenance of
membership membership shop when
(a) employees who at the time the union shop shop employees, who are union
agreement takes effect are bona fide members of members as of the effective date of
a religious organization which prohibits its the agreement, or who thereafter
members from joining labor unions on religious become members, must maintain
union membership as a condition
grounds (Elizalde Rope Workers case);
for continued employment until
(b) employees already in the service and already they are promoted or transferred
members of a union other than the majority at the out of the bargaining unit, or the
time the union shop agreement took effect (Art. agreement is terminated. (PICOP
Resources, Inc. (PRI) vs. Anacleto
248 [e]); L. Taneca et. al., G.R. No. 160828,
(c) confidential employees who are excluded from 09 August 2010)
the rank and file bargaining unit; and Open shop An arrangement on recruitment
whereby an employer may hire any
(d) employees excluded from the union shop by employee, union member or not,
express terms of the agreement. but the new employee must join the
union within a specified time and
remain a member in good standing.
KINDS OF UNION SECURITY CLAUSES Agency shop An arrangement whereby non-
members of the contracting union
Closed Shop A form of union security whereby must pay the union a sum equal to
only union members can be hired union dues known as agency fees
and the workers must remain union for the benefits they received as a
members as a condition of consequence of the bargaining
continued employment. (Juat vs.

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 29

negotiations effected through the Parties


efforts of the union. Employer and the representative of the employees
has a duty to bargain.

Duration of a CBA?
E. Unfair Labor Practice
With respect to the representation aspect (refers
to the identity and majority status of the union ULP are prohibited acts which contravene the
that negotiated the CBA as the exclusive constitutional rights of the employees to self-
bargaining representative): 5 years organization. They are considered as inimical to
With respect to all other provisions (refers to the the legitimate interest of both labor and
rest of the CBA, economic as well as non‐economic management, the commission of which may give
provisions other than representational rise to both civil and criminal liabilities in the
provisions): 3 years after the execution of the CBA manner provided for by law

Requirements for registration 1. Nature, aspect

The application for CBA registration shall be ULP refers to ‘acts that violate the workers right to
accompanied by the original and 2 duplicate copies organiza.’ The prohibited acts are related to the
of the following req’ts: workers’ right to self-organization, and to the
1. CBA observance of a collective bargaining agreement.
2. A statement that the CBA was posted in at Without the element, the acts, even if unfair, are
least 2 conspicuous places in the not unfair labor practices. (General Santos Coca-
establishment concerned for at least 5 cola Plant Free Workers Union – TUPAS v Coca-
cola Bottlers Phils. Inc., Court of Appeals and
days before its ratification
NLRC)
3. Statement that the CBA was ratified by the
majority of the Ees in the bargaining unit. Violations of the provisions of the Collective
Barganinig Agreement which are NOT gross in
Automatic renewal clause character, are no longer considered as ULP.

Although a CBA has expired, it continues to have 2. By Employers


legal effects as between the parties until a new
CBA has been entered into (Pier & Arrastre Q: What are the ULP that may be committed by
Stevedoring Services, Inc. v. Confessor, G.R. No. Ers?
110854, February 13, 1995). This is so because
the law makes it a duty of the parties to keep the 1. Interference - The act of Er to interfere
status quo and to continue in full effect the terms with, restrain or coerce Ees in the exercise
and conditions of the existing agreement until a of their right to self-organization.
new agreement is reached by the parties. 2. Yellow dog condition - It is to require as
a condition of employment that a person or
ii. Duty to Bargain Collectively an Ee shall not join a labor organization or
The mutual obligation to meet and convene shall withdraw from one to which he
promptly and expeditiously in good faith for the belongs.
purpose of negotiating an agreement. 3. Contracting out - It is to contract out
services or functions being performed by

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 30

union members when such will interfere bargaining. (Insular Life Assurance Co. Ltd.,
with, restrain or coerce Ees in the exercise Employees Association-NATU v Insular Life
of their rights to self‐organization. Assurance Co. Ltd., 37 SCRA 244)
4. Company unionism - Any labor
organization whose formation, function or Q: What are the reliefs available in ULP
administration has been assisted by any act cases?
defined as ULP. (Art. 212[i])
5. Discrimination for or against union A: The following reliefs may be availed of:
membership - It is to discriminate in 1. Cease and desist order
regard to wages, hours of work and other 2. Affirmative order
terms and conditions of employment in 3. Court may order the employer to bargain.
order to encourage or discourage CBA may be imposed.
membership in any labor organization. 4. Strike by union members
6. Discrimination because of testimony –
To dismiss, discharge or otherwise ULP cases are not subject to compromise in view
prejudice or discriminate against an of the public interest involve. The relation between
employee for having given or being about capital and labor is not merely contractual. They
to give testimony are impressed with public interest that labor
7. Violation of duty to bargain - This is the contracts must yield to common good.
act of violating the duty to bargain
collectively as prescribed in the LC.
8. Paid negotiation - : It is the act of the Q: Is the commission of an ULP by an
employer to pay negotiation or atty’s fees employer subject to criminal prosecution?
to the union or its officers or agents as part
of the settlement of any issue in collective A: Yes, because ULPs are not only violations of
bargaining or any other dispute. the civil rights of both labor and management but
9. Gross violation of CBA - There must be a are also criminal offenses against the State which
flagrant and/or malicious refusal to comply shall be subject to prosecution and punishment.
with the economic provision of the CBA (Art. 247 LC). However, criminal aspect can
only be filed when the decision of the labor
tribunals, finding the existence of ULP, shall have
Test to determine whether or not employer is become final and executory.
guilty of ULP

The test of whether and employer has interfered 3. By Labor Organizations


with and coerced employees within the meaning of
Art. 248 (a) of the Labor Code is whether the It shall be ULP for a LO, its officers, agents or
employer has engaged in conduct which it may representatives:
reasonably be said tends to interfere with the free
exercise of employees’ rights (to self-organization) 1. To restrain or coerce Ees in the exercise of
and it is not necessary that there be direct their rights to self‐organization. However, a
evidence that any employee was in fact LO shall have the right to prescribe its own
intimidated or coerced by statements of threats o rules with respect to the acquisition or
the employer if there is reasonable inference that retention of membership
anti-union conduct of the employer does have an 2. To cause or attempt to cause an Er to
adverse effect on self-organization and collective discriminate against an Ee, including

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 31

discrimination against an Ee with respect to A: No. A union violates the law when, to restrain
whom membership in such organization or coerce non‐strikers from working during the
has been denied or to terminate an Ee on strike, it:
any ground other than the usual terms and
conditions under which membership or 1. Assaults or threatens to assault them
continuation of membership is made 2. Threatens them with the loss of their jobs
available to other members 3. Blocks their ingress to or egress from the
3. To violate the duty, or refuse to bargain plant
collectively with the Er, provided it is the 4. Damages non‐strikers’ automobiles or
representative of the Ees forces them off the highway
4. To cause or attempt to cause an Er to pay 5. Physically preventing them from working
or deliver or agree to pay or deliver any 6. Sabotages the Er’s property in their
money or other things of value, in the presence, thereby creating an atmosphere
nature of an exaction, for services which of fear or violence
are not performed or not to be performed, 7. Demonstrates loudly in front of a non‐
including the demand for fee for union strikers’ residence with signs and shouts
negotiations accusing the non‐striker of “scabbing”
5. To ask for or accept negotiations or atty’s 8. Holding the non-striker up to ridicule
fees from Ers as part of the settlement of 9. Seeking public condemnation of the non‐
any issue in collective bargaining (CB) or striker
any other dispute or
6. To violate a CBA. Q: What is a case of union induced
discrimination by labor organization (LO)?
Q: Is interference by a LO an ULP?
A: This pertains to the arbitrary use of union
A: No, because interference by a LO in the security clause.
exercise of the right to organize is itself a function
of self‐ organizing. A union member may not be expelled from the
union, and consequently from his job, for personal
Q: What are examples of interference which and impetuous reasons or for causes foreign to the
does not amount to ULP? closed shop agreement. (Manila Mandarin Ees
Union v. NLRC, G.R. No. 76989, Sep. 29, 1987)
A:
1. Union campaigns for membership even Labor unions are not entitled to arbitrarily exclude
among members of another union qualified applicants for membership and a closed‐
2. Filing by a union of a petition to dislodge an shop applicants provision will not justify the
incumbent bargaining union employer in discharging, or a union in insisting
3. A bargaining union, through a union upon the discharge of an employee whom the
security clause, requires an incoming union thus refuses to admit to membership
employee to join the union. without any reasonable ground thereof. ( Salunga
v. CIR, G.R. No. L‐22456, Sep. 27, 1967)

Q: May a union coerce Ees to join a strike?


F. Peaceful Concerted activities

Q: What is a concerted action?

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 32

A: It is an activity undertaken by 2 or more Valid vs. Illegal Strikes


employees, by one on behalf of the others.
Requisites for a valid strike:
Q: Are all concerted actions strikes?
1. It must have a lawful purpose
A: Not all concerted activities are strikes. They 2. Conducted through lawful means
may only be protest actions – they do not 3. Must be in compliance with the procedural
necessarily cause work stoppage by the requirements under the Labor Code
protesters. A strike in contrast is always a group
action accompanied by work stoppage Six categories of an illegal strikes
(Dusit Hotel Nikko Chapter v Court of Appeals, 570
1. By Labor Organizations SCRA 598)

a. Strike - It means any temporary 1. Contrary to a specific prohibition of law


stoppage of work by the concerted such as strike by employees performing
action of employees as a result of an governmental functions
industrial or labor dispute. (Sec.1, 2. Violation of a specific requirement of law
Rule I, Book V, IRR) 3. When declared for an unlawful purpose
4. When it employs unlawful means in the
Q: What is a strike area? pursuit of it objective
5. Declared in violation of an existing
A: It means the establishment, warehouses, injunction
depots, plants or offices, including the sites or 6. Contrary to an existing agreement, such as
premises used as runaway shops, of the Er struck a no-strike clause or conclusive arbitration
against, as well as the immediate vicinity actually clause
used by picketing strikers in moving to and fro
before all points of entrance to and exit from said Other kinds of Illegal Strikes
establishment. (Sec. 1 [vv], Rule I, Book V, IRR)
Wildcat strike – strike which is conducted by
Q: What are the characteristics of a strike? employees without the authority of the certified
bargaining agent
A:
1. Existence of an Er‐Ee relationship Lightning Strike – a strike which is conducted
2. Existence of a labor dispute without the requisite notice provided for by law
3. Employment relation is deemed to
continue although in a state of Slowdown Strike – a “strike on the installment
belligerent suspension plan”; a willful reduction in the rate of work by
4. Temporary work stoppage concerted action of workers for the purpose of
5. Work stoppage is done through restricting the output o the employer, in relation
concerted action to a labor dispute.
6. The striking group is a legitimate
labor organization; in case of a Sympathetic Strike – workers refuse to go back
bargaining deadlock, it must be the to work because their co-federation workers of
employees’ sole bargaining another company are on a strike.
representative

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 33

What are the valid grounds for declaring a


strike or lockout? Q: Who may declare a strike or lockout?

The Labor Code only allows two (2) kinds of A: Any certified or duly recognized bargaining
strike/Lockout namely Economic Strike and ULP representative may declare a strike in cases of
Strike bargaining deadlock and unfair labor
practice. Likewise, the employer may declare a
lockout in the same cases. 2. In the absence of a
Economic Strike ULP Strike certified or duly recognized bargaining
As to nature representative, any legitimate labor organization
Voluntary strike because Involuntary strike; the LO in the establishment may declare a strike but only
the Ee will declare a is forced to go on strike on the ground of unfair labor practice. (Section
strike to compel because of the ULP 2, Rule XIII Book V, Omnibus Rules Implementing
management to grant its committed against them by The Labor Code, as amended).
demands the Er. It is an act of self‐
defense since the Ee’s are
Q: What are the tests in determining the
being pushed to the wall
and their only remedy is to legality of strike?
stage a strike
Who will initiate A: The following must concur:
The CB agent of the n declare an economic
appropriate bargaining strike Either the CB agent 1. Purpose test – the strike must be due to
unit can declare an or the LLO in behalf of its either bargaining deadlock and/or the ULP
economic strike members 2. Compliance with the procedural and
As to the cooling‐off period substantive req’ts of the law. (See
30 days from notice of 15 days from the filing of requisites of a valid strike)
strike before the intended the notice of strike
3. Means employed test – It states that a
date of actual strike
strike may be legal at its inception but
subject to the 7‐ day
strike ban eventually be declared illegal if the strike is
As to the exception to the cooling‐off period accompanied by violence which is
No exception – The cooling‐off period may widespread, pervasive and adopted as a
mandatory be dispensed with, and the matter of policy and not mere violence
union may take immediate which is sporadic which normally occur in a
Note: notice of strike and action in case of dismissal strike area.
strike vote may be from employment of their
dispensed with; they may officers duly elected in What are the instances when a strike or
strike immediately accordance with the lockout cannot be declared?
union’s constitution and by‐
laws, which may constitute
union busting where the Non‐strikable issues:
existence of the union is
threatened. It must still 1. CBA violations not gross in character
observe the mandatory 7‐ 2. Grounds involving inter/intra‐union
day strike ban period disputes
before it can stage a valid 3. When there is no notice of strike or lockout
strike or without the strike or lockout vote
4. After assumption of jurisdiction by the SLE

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 34

5. After certification or submission of dispute a. If in his opinion there exists a labor


to compulsory or voluntary arbitration or dispute causing or likely to cause a
during the pendency of cases involving the strike or lockout in an industry
same grounds for strike or lockout indispensable to the national
6. Labor standards cases such as wage interest.
orders. (Guidelines governing Labor b. He may certify the same to the
Relations [Oct. 19, 1987] issued by Sec. NLRC for compulsory arbitration
Drilon. See also Art. 261, LC) c. Effect – Automatically enjoins the
intended or impending
b. Picket - It is the act of marching to strike/lockout but if one has already
and fro the employers premises taken place, all striking or locked
which is usually accompanied by the out Ees shall immediately return to
display of placard and other signs, work and the Er shall immediately
making known the facts involved in resume operations and re‐admit all
a labor dispute workers under the same terms and
conditions prevailing before the
strike or lockout (Trans‐ Asia
Q: Is the right to picket an absolute right? Shipping Lines, Inc.‐Unlicensed
Crews Ee’s Union v. CA, G.R. No.
A: No, while peaceful picketing is entitled to 145428, July 7, 2004)
protection as an exercise of free speech, the courts
are not without power to confine or localize the Note: A motion for reconsideration does not
sphere of communication or the demonstration to suspend the effects as the assumption order is
the parties to the labor dispute, including those immediately executory.
with related interests, and to insulate
establishments or persons with no industrial 2. Mandatory (within 24 hours)
connection or having interest totally foreign to the a. In labor disputes adversely affecting
context of the dispute. (Liwayway Pub., Inc. v. the continued operation of
Permanent Concrete Workers Union, G.R. No. L‐ hospitals, clinics or medical
25003, Oct. 23, 1981) institutions.
b. May assume jurisdiction or certify it
to the NLRC for compulsory
2. By Employer arbitration
a. Lockout - It means any temporary c. Duty of striking union or locking out
refusal of an employer to furnish Er to provide and maintain an
work as a result of an industrial or effective skeletal workforce of
labor dispute. (Art. 212 [p]) medical and other health personnel,
where movement and service shall
be unhampered and unrestricted as
3. Assumption of Jurisdiction are necessary to insure the proper
and adequate protection of the life
Discuss the assumption of jurisdiction by the and health of its patients most
Secretary of Labor and Employment (SLE) especially emergency cases for the
on strikes/lockouts. duration of the strike or
lockout (Art. 263 [g])
1. Discretionary

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 35

a. Nature
(b) It automatically results in a return-to-work
Q: What is the nature of the power of SLE of all striking workers (if one has already taken
under Art. 263(g)? place), or enjoins the taking place of a strike
(Union of Filipro Employees vs. Nestle Philippines,
A: The assumption of jurisdiction is in the nature Inc., 192 SCRA 396)
of a police power measure. This is done for the
promotion of the common good considering that a (c) While termination by reason of an illegal strike
prolonged strike or lockout can be inimical to the requires hearing, replacement by reason of
national economy. The SLE acts to maintain violation of a return-to-work order does not. (Free
industrial peace. Thus, his certification for Telephone Workers Union vs. PLDT, 113 SCRA
compulsory arbitration is not intended to impede 663, 678)
the worker’s right to strike but to obtain a speedy
settlement of the dispute. (Philtread Workers
Union v. Confesor, G.R. No. 117169, Mar. 12, Q: What is the effect of defiance to the
1997) return to work order?

Art. 263(g) does not interfere with the workers A: It shall be considered an illegal act committed
right to strike but merely regulates it, when in the in the course of the strike or lockout and shall
exercise of such right national interest will be authorize the SLE or the NLRC, as the case may
affected. The LC vests upon the SLE the discretion be, to enforce the same under pain or loss of
to determine what industries are indispensable to employment status or entitlement to full
national interest. employment benefits from the locking‐out Er or
backwages, damages and/or other positive and/or
Q: What is the nature of assumption and affirmative reliefs, even to criminal prosecution
certification orders of the Secretary of Labor? against the liable parties. (Sec. 6, Rule IX, of the
New Rules of Procedure of the NLRC; St.
A: The underlying principle embodied in Art. 264 Scholastica’s College v. Torres, G.R. No. 100158,
(g) on the settlement of labor disputes is that June 2, 1992)
assumption and certification orders are executor
in character and are strictly complied with by the "A Strike that is undertaken despite the issuance
parties even during the pendency of any petition by the Secretary of Labor of an assumption or
questioning their validity. This extraordinary certification order becomes a prohibited activity
authority given to the Secretary of Labor is aimed and thus illegal, pursuant to the second paragraph
at arriving at a peaceful and speedy solution to of Art. 264 of the Labor Code as amended
labor disputes, without jeopardizing national (Zamboanga Wood Products, Inc. vs. NLRC, G.R.
interests. 82088, October 13, 1989; 178 SCRA 482). The
Union, officers and members, as a result, are
Nature and Effect of Assumption and deemed to have lost their employment status for
Certification having knowingly participated in an illegal act."
(Union of Filipino Employees vs. Nestle
(a) Assumption and certification orders are Philippines, Inc. [192 SCRA 396])
executory in character and are strictly to be
complied with by the parties even during the JURISDICTION AND REMEDIES
pendency of any petition questioning their
validity. A. Labor Arbiter

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 36

Except as otherwise provided under the Code the A money claim arising The Regional Director
Labor Arbiters shall original and exclusive from employer- has jurisdiction if:
jurisdiction to hear and decide: employee relations,
(1) the money claim is
except SSS,
not accompanied by
ECC/Medicare claims, is
(1) Unfair labor practices cases; reinstatement AND
within the jurisdiction of
(2) Termination disputes; a labor arbiter if: (2) the claim does not
exceed P5,000
(3) If accompanied with a claim for reinstatement, (1) The claim,
those cases that workers may file involving wages, regardless of amount, is
accompanied with a
rates of pay, hours of work and other terms and
claim of reinstatement;
conditions of employment; or
(4) Claims for actual, moral, exemplary and other (2) The claim exceeds
forms of damages arising from the employer- P5,000, whether or not
employee relations; there is a claim for
reinstatement.
(5) Cases arising from any violation of Art. 264 of
this Code, including questions involving the
legality of strikes and lockouts;
REQUIREMENTS TO PERFECT APPEAL TO
(6) Except claims for Employees Compensation, NLRC
Social Security, Medicare and maternity benefits,
(1) The appeal should be filed within the
all other claims, arising from employer-employee
reglementary period;
relations, including those of persons in domestic or
household service, involving an amount exceeding (2) The Memorandum of Appeal should be under
five thousand pesos (P5,000) regardless of oath;
whether accompanied with a claim for
(3) The appeal fee should be paid;
reinstatement. [Art. 217]
(4) There should be posting of cash or surety
(7) Money claims arising out of employer-
bond, if judgment involves monetary award; and
employee relationship or by virtue of any law or
contract, involving claims for actual, moral, (5) There should be proof of service to the adverse
exemplary an other forms of damages, as well as party.
employment termination of OFWs;
REINSTATEMENT PENDING APPEAL
(8) Wage distortion disputes in unorganized
An order for reinstatement entitles an employee to
establishments not voluntarily settled by the
receive his accrued backwages from the moment
parties. [Art. 124]
the reinstatement order was issued up to the date
(9) Enforcement of compromise agreements when when the same was reversed by a higher court
there is non-compliance by any of the parties. without fear of refunding what he had received.
[Art. 227] (Garcia v. Philippine Airlines, Inc., G.R.
No.164856, January 20, 2009)
(10) Other cases as may be provided by law.
The reinstatement order of the Labor Arbiter is
immediately executory even pending appeal.
MONEY CLAIM (Article 223 (3), Labor Code; cf Pioneer
Texturizing vs. NLRC (280 SCRA 806 [1997]).
LABOR ARBITER REGIONAL DIRECTOR

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 37

NATIONAL LABOR RELATIONS COMMISSION The Secretary of the Department of Labor and
Employment may suspend the effects of the
(a) Original Jurisdiction: Over petitions for
termination pending resolution of the dispute in
injunction or temporary restraining order under
the event of a prima facie finding by the
Art. 218 (e).
appropriate official of the Department of Labor and
(b) Exclusive Appellate Jurisdiction: over all cases Employment before whom such dispute is pending
decided by labor arbiters [Art 217(b)] and the that the termination may cause a serious labor
DOLE regional directors under Art 129. dispute or is in the implementation of a mass lay-
off. (Article 277 (b))
VOLUNTARY ARBITRATOR
BUREAU OF LABOR RELATIONS (BLR) – MED
ARBITERS ORIGINAL AND APPELLATE Jurisdiction
The Bureau of Labor Relations and the Labor Exclusive and original jurisdiction over grievances
Relations Divisions in the regional offices of the
The VA or panel of VAs shall have original and
Department of Labor and Employment shall have
exclusive jurisdiction to hear and decide all
original and exclusive authority to act, at their own
unresolved grievances (see definition).
initiative or upon request of either or both parties,
on all inter-union and intra-union conflicts, and all Violations of a CBA, except those which are gross
disputes, grievances or problems arising from or in character, shall no longer be treated as ULP and
affecting labor-management relations in all shall be resolved as grievances under the CBA.
workplaces whether agricultural or non-
Note: Gross violations of CBA shall mean flagrant
agricultural, except those arising from the
and/or malicious refusal to comply with the
implementation or interpretation of collective
economic provisions of such agreement.
bargaining agreements which shall be the subject
of grievance procedure and/or voluntary PRESCRIPTION OF ACTION
arbitration.
ACTION PERIOD
DOLE SECRETARY
MONEY CLAIM All money claims arising
(a) VISITORIAL AND ENFORCEMENT from employer-employee
POWERS relations accruing during the
effectivity of this Code shall
The Secretary of Labor and Employment or his be filed within three (3)
duly authorized representatives, including labor years from the time the
regulation officers, shall have access to employer’s cause of action accrued;
records and premises at any time of the day or otherwise they shall be
night whenever work is being undertaken therein, forever barred.
and the right to copy therefrom, to question any
employee and investigate any fact, condition or
matter which may be necessary to determine
violations or which may aid in the enforcement of
this Code and of any labor law, wage order or rules
and regulations issued pursuant thereto.
(b) POWER TO SUSPEND EFFECTS OF
TERMINATION

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto
Lyceum of the Philippines University College of Law
PRE-WEEK NOTES ON LABOR LAW AND SOCIAL LEGISLATION 38

ILLEGAL In illegal dismissal cases, the


DISMISSAL employee concerned is given
a period of four years from
the time of his dismissal
within which to institute a
complaint. This is based on
Article 1146 of the New Civil
Code which states that
actions based upon an injury
to the rights of the plaintiff
must be brought within four
years. [Victory Liner, Inc. v
Race, 2007]

UNFAIR LABOR All unfair labor practice


PRACTICES arising from Book V shall be
filed with the appropriate
agency within one (1) year
from accrual of such
unfair labor practice;
otherwise, they shall be
forever barred.

OFFENSES UNDER Art. 290. Offenses. –


LABOR CODE Offenses penalized under
this Code and the rules and
regulations issued pursuant
thereto shall prescribe in
three (3) years.

ILLEGAL Section 7. Prescription.


RECRUITMENT Illegal recruitment cases
under this Rule shall
prescribe in five (5) years;
Provided, however, that
illegal recruitment cases
involving economic sabotage
shall prescribed in twenty
(20) years. [RA 8042]

Dean Ma. Soledad Deriquito-Mawis, Dean


Atty. Janice Kristine R. Ramos, College Secretary (Makati)
Atty. Uella Vida V. Mancenido-Gayo, College Secretary (Cavite)

BarOps Acads Head: Napolyn Fernandez


Subject Head: Mohamma Ali Bantao
Contributors: Kristine Mei Ann Dy, Philip Gerald Fulgueras, Tin Garcia, Carla Villadolid
Layout: Brian Mey Tomas, Princess Joy Quinto