BAR OPERATIONS 2019

JORGE ALFONSO C. MELO

Bar Review Coordinator

LEILA S. LIM
Bar Review Secretariat

ATENEO CENTRAL BAR OPERATIONS

PATRICK EDWARD BALISONG

Chairman

KATRINA Y. COSCOLLUELA JONATHAN VICTOR NOEL CZARINA CHER CUERPO

GENICA THERESE ENDALUZ JOHN STEPHEN PANGILINAN BENIGNOENCISO
Administration Committee Heads Academics Committee Heads Hotel Operations Committee Heads

MARLON MANUEL
RYAN QUAN
LABOR LAW Faculty Advisers

HEZRO CAANDOY
CZARINA CHER CUERPO
CHARLES DANIEL LOVENSKY FERNANDEZ
DONNA NIKKI VARGAS
LABOR LAW Subject Heads

EUNICE A. MALAYO
FRANCES CHRISTINE F. SAYSON
Central Bar Operations
Academics Understudies

TANYA GAYE INIGO HOSEA SALAZAR ELIEL TIMBOL

REINE GUSTILO JOHN PAULO VICENCIO GIO AGUILA
CHRISTINE FLORES RAMTRINA MARIE ATRIAS JULIA HANNA SORIANO
LABOR LAW Volunteers
ATENEO CENTRAL
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| I. GENERAL PROVISIONS
A. BASIC POLICY ON LABOR
B. CONSTRUCTION IN FAVOR OF LABOR
C. CONSTITUTIONAL AND CIVIL CODE
PROVISIONS RELATING TO LABOR LAW
1987 Constitution
Q: What are the rights of employees under the
1987 Constitution? (WHOSE-CD)
A: The rights granted to employees are the rights:
1. To a living wage;
2. To humane working conditions;
3. To self-organization;
4. To security of tenure;
5. To engage in peaceful concerted
activities, which includes the right to
strike, in accordance with law;
6. To collective bargaining or negotiation
with management;
7. To participate in policy and decision­
making processes affecting their rights
and benefits as may be provided by law
(Article XIII, Sec. 3)
Q: What is the principle of co-determination?
A: The principle of co-determination refers to
the right of workers to participate in the policy and
decision making processes directly affecting their
rights and benefits, without intruding into matters
pertaining to management prerogative. (PAL v.
NLRC, G.R. No. 85985, 1993).
Q: How does the concept of due process work
in illegal dismissal cases?
A: Due process under the Labor Code, like
Constitutional due process, has two aspects:
substantive, i.e., the valid and authorized causes
of employment termination under the Labor
Code; and procedural. Breaches of these due
process requirements violate the Labor Code.
Therefore, statutory due process should be
differentiated from failure to comply with
constitutional due process.
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LABOR LAW
On the other hand, constitutional due process
| protects the individual from the government and
assures him of his rights in criminal, civil or
administrative proceedings; while statutory due
process found in the Labor Code and
Implementing Rules protects employees from
being unjustly terminated without just cause after
notice and hearing. (Agabon v. NLRC, G.R. No.
158693, 2004)
1. Article II: State Policies
Q: What are the State Policies declared in the
1987 Constitution relevant to Labor?
A: Sec. 9. The State shall promote a just and
dynamic social order that will ensure the
prosperity and independence of the nation and
free the people from poverty through policies that
provide adequate social services, promote full
employment, a rising standard of living, and an
improved quality of life for all.
Sec. 10. The State shall promote social justice in
all phases of national development.
Sec. 18. The State affirms labor as a primary
social economic force. It shall protect the rights of
workers and promote their welfare.
Sec. 20. The State recognizes the indispensable
role of the private sector, encourages private
enterprise, and provides incentives to needed
investments.
2. Bill of Rights
Q: What are the constitutional provisions on
Bill of Rights relevant to Labor?
A: Sec. 1. No person shall be deprived of life,
liberty, or property without due process of law, nor
shall any person be denied the equal protection
of the laws.
Sec. 4. No law shall be passed abridging the
freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble
and petition the government for redress of
grievances.
Sec. 8. The right of the people, including those
employed in the public and private sectors, to
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form unions, associations, or societies for
purposes not contrary to law shall not be
abridged.
Sec. 16. All persons shall have the right to a
speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies.
Sec. 18(2). No involuntary servitude in any form
shall exist except as a punishment for a crime
whereof the party shall have been duly convicted.
Q: Under the Labor Code, what are the
requirements for the lawful dismissal of an
employee?
A: To constitute valid dismissal from
employment, two requisites must concur: (1)
dismissal must be for a just or authorized cause;
and (2) employee must be afforded an
opportunity to be heard and defend himseif.
(Nacague v. Sulpicio Lines, G.R. No. 172589,
2010)
Note that a dismissal with cause is not an illegal
dismissal even if procedural requirements are not
followed.
3. Social Justice
Q: What are the constitutional provisions on
Social Justice and Human Rights relevant to
Labor?
A: Sec. 2. The promotion of social justice shall
include the commitment to create economic
opportunities based on freedom of initiative and
self-reliance.
Sec. 3. The State shall afford full protection to
labor, local and overseas, organized and
unorganized, and promote full employment and
equality of employment opportunities for all.
it shall guarantee the right of all workers to self­
organization, collective bargaining and
negotiations, and peaceful concerted activities,
including the right to strike in accordance with
law. They shall be entitled to security of tenure,
humane conditions of work, and a living wage.
They shall also participate in policy and decision­
making processes affecting their rights and
benefits as may be provided by law.
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The State shall promote the principle of shared
responsibility between workers and employers
and the preferential use of voluntary modes in
settling disputes, including conciliation, and shall
enforce their mutual compliance therewith to
foster industrial peace.
The State shall regulate the relations between
workers and employers, recognizing the right of
labor to its just share in the fruits of production
and the right of enterprises to reasonable returns
to investments, and to expansion and growth.
Sec. 13. The State shall establish a special
agency for disabled person for their rehabilitation,
self-development, and self-reliance, and their
integration into the mainstream of society.
Sec. 14. The Slate shall protect working women
by providing safe and healthful working
conditions, taking into account their maternal
functions, and such facilities and opportunities
that will enhance their welfare and enable them
to realize their full potential in the service of the
nation.
C. Articles 1700 to 1703 Civil Code
Q: What are the Civil Code provisions relevant
to Labor?
A: Article 1700. The relations between capital
and labor are not merely contractual. They are so
impressed with public interest that labor contracts
must yield to the common good. Therefore, such
contracts are subject to the special laws on labor
unions, collective bargaining, strikes and
lockouts, closed shop, wages, working
conditions, hours of labor and similar subjects.
Article 1702. In case of doubt, all labor legislation
and all labor contracts shall be construed in favor
of the safety and decent living for the laborer.
Article 1703. No contract which practically
amounts to involuntary servitude, under any
guise whatsoever, shall be valid.
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Q: What are the elements of simple illegal

j II. PRE-EMPLOYMENT |
recruitment for migrant workers under the
Migrant Workers Act?
A. RECRUITMENT AND PLACEMENT OF
LOCAL AND MIGRANT WORKERS A: To constitute illegal recruitment for migrant
(LABOR CODE AND RA 8042. AS workers, the following must concur:
AMENDED BY 100221
1. Person charged commits any of the
1. Elements enumerated acts under Sec. 6 of R.A. 8042, as
amended by R.A. 10022;
Q: What constitutes recruitment and
placement activities? 2. It is immaterial whether he is a holder or not of
any license or authority.
A: Art. 13(b) of the Labor Code defines
“recruitment and placement” activity as referring 2. Prohibited Activities
to any act of:
Q: What are the prohibited activities under the
1. Canvassing; Labor Code?
2. Enlisting;
3. Contracting; A: It shall be unlawful for any individual, entity,
4. Transporting; licensee, or holder of authority:
5. Utilizing; 1. To charge or accept, directly or indirectly, any
6. Or Hiring or procuring workers. amount greater than that specified in the
schedule of allowable fees prescribed by the
It also includes: Secretary of Labor, or to make a worker pay
1. Referrals; any amount greater than that actually
2. Contract services; received by him as a loan or advance;
3. Promising; or 2. To furnish or publish any false notice or
4. Advertising for employment, locally or information or document in relation to
abroad, whether for profit or not. recruitment or employment;
3. To give any false notice, testimony,
Q: What are the elements of simple illegal information or document or commit any act of
recruitment for local employment under the misrepresentation for the purpose of securing
Labor Code? a license or authority under this Code.
4. To induce or attempt to induce a worker
A: The following elements must concur: already employed to quit his employment in
order to offer him to another unless the
1. That the offender undertakes any activity within transfer is designed to liberate the worker
the meaning of “recruitment and placement” from oppressive terms and conditions of
defined under Article 13(b), or any prohibited employment;
practices enumerated under Article 34 of the 5. To influence or to attempt to influence any
Labor Code.2 person or entity not to employ any worker
who has not applied for employment through
2. That the offender has no valid license or his agency;
authority required by law to enable him to 6. To engage in the recruitment or placement of
lawfully engage in the recruitment and placement workers in jobs harmful to public health or
of workers, and (Ritualo v. People, 591 SCRA 24, morality or to the dignity of the Republic of the
2009). Philippines;
7. To obstruct or attempt to obstruct inspection
by the Secretary of Labor or by his duly
authorized representatives;
8. To fail to file reports on the status of
employment, placement vacancies,
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remittance of foreign exchange earnings,
separation from jobs, departures and such
other matters or information as may be
required by the Secretary of Labor.
9. To substitute or alter employment contracts
approved and verified by the Department of
Labor from the time of actual signing thereof
by the parties up to and including the periods
of expiration of the same without the approval
of the Secretary of Labor;
10. To become an officer or member of the Board
of any corporation engaged in travel agency
or to be engaged directly or indirectly in the
management of a travel agency; and
11. To withhold or deny travel documents from
applicant workers before departure for
monetary or financial considerations other
than those authorized under this Code and its
implementing rules and regulations. (Labor
Code, Art. 34; PERT/CPM Manpower v.
Vinuya, G.R. No. 197528, 2012)
Q: What are the prohibited activities under the
Overseas Filipinos and Migrant Workers Act,
as amended?
A: Illegal recruitment shall likewise include the
following acts, whether committed by any person,
whether a non-iicensee, non-holder, licensee or
holder of authority (SHOW-FROG-IN-DISC)
1. Substituting or altering DOLE-approved
employment contracts
2. Recruiting workers in jobs that are Harmful to
public health or morality of the Philippines
3. Becoming an Officer or member of the Board
of a travel agency or to be engaged directly
or indirectly in the management of a travel
agency
(for an officer or agent of recruitment agency)
4. Withholding or denying travel documents
from applicant workers before departure for
unauthorized monetary or financial
considerations
5. Furnishing or publishing any false notice or
information or document in relation, to
recruitment or employment
6. In case of non-deployment, failing to
Reimburse expenses incurred by the worker
in connection with his documentation and
processing for purposes of deployment
7. Obstructing or attempting to obstruct
inspection by the Secretary of Labor or by his
duly authorized representatives
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LABOR LAW
8. Giving any false notice, testimony,
information or document or commit any act of
misrepresentation for the purpose of securing
a license or authority under this Code
9. Inducing or attempting to induce a worker to
quit his employment in place of another
UNLESS the transfer is designed to liberate
the worker from oppressive terms and
conditions of employment
10. Allowing a Non-Filipino citizen to head or
manage a licensed recruitment/manning
agency
11. Failing to actually Deploy without valid
reason as determined by DOLE.
12. Influencing or attempting to influence any
person or entity not to employ any worker
who has not applied for employment through
his agency
13. Failing to file reports on the Status of
employment, placement vacancies,
remittance of foreign exchange earnings,
separation from jobs, departures and such
other matters or information as may be
required by the Secretary of Labor
14. Charging or accepting, directly or Indirectly,
any amount greater than that specified in the
schedule of allowable fees prescribed by the
Secretary of Labor, or to make a worker pay
any amount greater than that actually
received by him as a loan or advance
In addition to the acts enumerated above, it shall
also be unlawful for any person or entity to
commit the following prohibited acts: (8-
LR2A2I)
• Grant a loan to an overseas Filipino worker
with interest exceeding eight percent (8%)
per annum,' which will be used for payment of
Segal and allowable placement fees and
make the migrant worker issue, either
personally or through a guarantor or
accommodation party, postdated checks in
relation to the said loan;
• Impose a compulsory and exclusive
arrangement whereby an overseas Filipino
worker is required to avail of a Loan only from
specifically designated institutions, entities or
persons;
^ Refuse to condone or renegotiate a loan
incurred by an overseas Filipino worker after
the latter’s employment contract has been
prematurely terminated through no fault of his
or her own;
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• For a suspended recruitment/manning worker without valid

agency to engage in any kind of Recruitment reason;
activity including the processing of pending • Failure to reimburse
workers' applications expenses incurred
• Impose a compulsory and exclusive by the worker in
Arrangement whereby an overseas Filipino connection with his
worker is required to undergo health documentation and
examinations only from specifically processing for
designated medical clinics, institutions, purpose of
entities or persons, except in the case of a deployment, in case
seafarer whose medical examination cost is of non-deployment;
shouldered by the principal/shipowner; • To allow a Non-
• Impose a compulsory and exclusive Filipino citizen to
Arrangement whereby an overseas Filipino head or manage a
worker is required to undergo training, licensed
seminar, instruction or schooling of any kind recruitment/manning
only from specifically designated institutions, agency.
entities or persons, except for
recommendatory trainings mandated by There are 7 additional
principals/shipowners where the latter prohibited acts. Note
shoulder the cost of such trainings; and that these prohibited
• For a recruitment/manning agency or a acts will not make the
foreign principal/employer to pass on the entity liable for illegal
overseas Filipino worker or deduct from his or recruitment but only for
her salary the payment of the cost of commission of
Insurance fees, premium or other insurance prohibited acts._______
related charges, as provided under the
compulsory worker's insurance coverage. 3. Types of Illegal Recruitment

Q: What are the differences between Q: What are the types of illegal recruitment?
prohibited acts under the Labor Code (Art.
34)and Migrant Workers Act (Sec.6)? A: There are three (3) types of illegal recruitment
under the Labor Code:
A: 1. Simple illegal recruitment (not economic
LABOR CODE MIGRANT WORKERS sabotage)
ACT 2. Large scale or qualified illegal recruitment
Illegal recruitment It is committed by either (economic sabotage)
may only be licensee or non­ 3. Syndicated illegal recruitment (economic
committed by a licensee (RA No. 8042, sabotage) (R.A. 8042 as amended by R.A.
non-licensee (Labor Sec. 6) 10022)
Code, Art. 34). If the
recruiter is licensed, Q: When is illegal recruitment considered
it may commit a economic sabotage?
prohibited activity
(Labor Code, Art. A: Illegal recruitment is considered economic
38) sabotage in two (2) instances.
11 enumerated acts 14 enumerated acts 1. Committed by a syndicate: where 3 or more
considered as illegal persons conspire with one another in carrying
recruitment, including out any unlawful or illegal transaction or
the following scheme
• Failure to actually 2. Committed in large scale: where committed
deploy a contracted against 3 or more persons individually or as a
group
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Q: W hat are th e e le m e n ts of ille g a l 4. Illegal recruitment versus estafa

recruitment Sn large scale?
Q: Can a person guilty of illegal recruitment
A: To constitute illegal recruitment in large scale, be similarly guilty or estafa?
three elements must concur:
A: Yes. It is well-established in jurisprudence that
1. The offender has no valid license or authority a person may be charged and convicted for both
required by law to enable him to lawfully illegal recruitment and estafa. iliegai recruitment
engage in recruitment and placement of is malum prohibitum where the criminal intent of
workers; the accused is not necessary for conviction, while
estafa is mala in se and such intent is imperative.
2. The offender undertakes any of the activities (People v. Chua, 680 SCRA 575, 2012).
within the meaning of "recruitment and
placement" under Article 13(b) of the Labor Q: What are the differences between illegal
Code, or any of the prohibited practices recruitment and estafa?
enumerated under Article 34 of the same
Code (now Section 6 of Republic Act No. A:
8042); and, ILLEGAL
ESTAFA
RECRUITMENT
3. The offender committed the same against It is malum prohibitum. It is mala in se.
three (3) or more persons, individually or as The criminal intent of
The criminal intent is
a group (People v. Cagalingan, G.R. No. the accused is not
198664, November 23, 2016) Imperative.
necessary.
Penalized under the Penalized under the
Q: What are the elements of iliegai Labor Code. Revised Penal Code.
recruitment by a syndicate? Wider in scope and
covers deceits
A: To constitute illegal recruitment by a Limited in scope whether related or not
syndicate, the following must concur: to recruitment
1. The offender undertakes either any activity activities.
within the meaning of “recruitment and
placement" defined under Art. 13(b), or any 5. Liability of Local Recruitment Agency and
of the prohibited practices enumerated under Foreign Employer
Art. 34 of the Labor Code;
(a) Solidary Liability
2. He has no valid license or authority required
by law. to enable one to lawfully engage- in Q: What kind of liability does the foreign
recruitment and placement of workers; and3 employer and recruitment agency share?

3. The illegal recruitment is committed by a
group of three (3) or more persons conspiring
or confederating with one another. (People v.
Gallo, G.R. No. 187730, 2010)
A: They are soiidariiy liable with each other. This
Is imposed by law against recruitment agencies
and foreign employers as a means to assure the
aggrieved worker of immediate and sufficient
payment of what is due him. This is in line with
the policy of the State to protect and alleviate the
plight of the working class. (P.l. Manpower
Placements, Inc. v. NLRC, 276 SCRA 451, 1997).

PAGE 6 OF 89
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(b) Theory of Imputed Knowledge
Q: How does the theory of imputed knowledge
apply to foreign employers and the
recruitment agency?
A: The theory of imputed knowledge ascribes the
knowledge of the agent or recruitment agency to
the principal and not the other way around. The
knowledge of the principal-foreign employer
cannot, therefore, be imputed to its agent or
recruitment agency. (Sunace International
Management Services, Inc. v. National Labor
Relations Commission, 480 SCRA 146, 2006).
6. Termination of contract of migrant worker
without just or valid cause
Q: What is the effect of the pre-termination of
the contract of a migrant worker?
A: In case of termination of overseas employment
without just, valid, or authorized cause as defined
by law or contract, the workers shall be entitled to
full reimbursement of his placement fee with
interest at 12% per annum plus his salaries for
the unexpired portion of his employment
contract. (Serrano v. Gallant, G.R. No. 167614,
2009)
As to other money claims (e.g. salary for the
unexpired portion) under RA 8042 based on a
final judgment after July 1, 2013 and there was
no stipulation as to the applicable interest rate in
the contract, it shall be subject to the 6%
interest per annum per BSP Circular 799.
(Sameerv. Cabiles, G.R. No. 170139, 2014)
Q: Can a foreign employer and an OFW enter
into a contract that allows termination without
cause provided there is prior notice?
A: Yes, stipulations providing that either party
may terminate a contract even without cause
are legitimate if exercised in good faith. Thus,
while either party has the right to terminate the
contract at will, it cannot not act purposely to
injure the other. The monetary award provided in
Section 10 of R.A. 8042 applies only to an illegally
dismissed overseas contract worker or a worker
dismissed from overseas employment without
just, valid or authorized cause as defined by law
or contract. It finds no application to cases in
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LABOR LAW
which the OFW was not illegally dismissed.
(GBMLT Manpower Services vs Malinao, G.R.
No. 189262, 2015)
In contrast, cite Dagagdag v. Grand Placement
(Jan 18, 2017) and IPAMS v. De Vera (March 7,
2016)
7. Ban on Direct hiring
Q: What is the general rule as regards ban on
direct hiring?
A: GR: No employer may hire a Filipino worker
for overseas employment except through the
boards and entities authorized by the Secretary
of Labor.
EXC:
1. Members of the diplomatic corps;
2. International organizations; and
3. Such other employers as may be allowed by
the Secretary of Labor is exempted from this
provision. (Labor Code, Art. 18)
4. Name hires - those individuals who are able to
secure contracts for overseas employment on
their own efforts and representation without the
assistance or participation of any agency. Their
hiring, nonetheless, has to be processed through
the POEA. (Part III, Rule III of the POEA Rules
Governing Employment as amended in 2002)
Q: What is the reason for said rule?
A: The reason for the ban is to ensure full
regulation of employment in order to avoid
exploitation..
Q: What are the entities authorized to engage
in recruitment and placement?
A:
1. Public employment offices
2. Philippine Overseas Employment
Administration (POEA)
3. Private recruitment entities
4. Private employment agencies
5. Shipping or manning agents or representatives
6. Such other persons as may be authorized by
the DOLE Secretary
7. Construction contractors
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B. REGULATION OF RECRUITMENT AND
PLACEMENT ACTIVITIES
1. Suspension or cancellation of license or
authority
Q: Who has the power to suspend or cancel a
license or authority?
A: Power to suspend or cancel any license or
authority to recruit employees for overseas
employment is concurrently vested with the
POEA and the Secretary of Labor. (Art. 35,
LABOR CODE)
2 Regulatory and Visitorial powers of the
DOLE secretary
Q: What is included in the regulatory and rule-
making powers of the Secretary of Labor
under Art. 36 of the Labor Code?
A: The Secretary of Labor shall have the power
to restrict and regulate the recruitment and
placement activities of all activities of all agencies
within the coverage of this Title and is hereby
authorized to issue orders and promulgate rules
and regulations to carry out the objectives and
implement the provisions of this Title. (Labor
Code, Art. 36)
Q: What is included in the visitorial powers of
the Secretary of Labor?
A: The Secretary of Labor or his duly authorized
. representatives may, at any time, inspect the
premises, books of accounts and records of any
person or entity covered by this Tithe, require it to
submit reports regularly on prescribed forms, and
act on violations of any provisions of this Title.
(Labor Code, Art. 37)
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LABOR LAW
III. LABOR STANDARDS
A. CONDITIONS OF EMPLOYMENT
Q: What labor standards covered by the
provisions of the Labor Code on Book Three
Title I: Working Conditions and Rest Periods?
(RROR-NWACSS)
1. Regular working hours
2. Regular normal working days
3. Overtime work
4. Regular meal period
5. Night shift differential pay
6. Weekly rest periods
7. Additional compensation on scheduled rest
day, Sunday, or special holiday work
8. Compensation for holiday work
9. Service incentive leave/service incentive
leave pay
10. Share in the collected service charges
11. Holiday pay
Q: Who are covered by the provisions on
Working Conditions and Rest Periods?
A: All employees in all establishments and
undertakings, whether for profit or not. Labor
Code, Art. 82)
1. Coverage
Q: Who are excluded from the provisions on
Working Conditions and Rest Periods? (Go-
Ma-FiFa-DoPeR)
A: There are seven (7) classifications of
employees excluded from the provisions:
1. Governmental employees
2. Managerial employees
3. Field personnel
4. Members of the family of the employer
who are dependent on him for support
5. Domestic helpers
6. Persons in the personal service of
another
7. Workers who are paid by result
(Labor Code, Art. 82)
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Q: For purposes of the exclusion, what is
meant by the term “managerial employees”?
A: Managerial employees are those who meet
all the following conditions:
(a) Their primary duty consists of the
management of the establishment in which
they are employed or of a department or sub­
division thereof.
(b) They customarily and regularly direct the work
of two or more employees therein.
(c) They have the authority to hire or fire
employees of lower rank; or their suggestions
and recommendations as to hiring and firing
and as to the promotion or any other change
of status of other employees, are given
particular weight. (IRR Labor Code, Book III,
Rule I, Sec. 1; Penaranda v. Baganga
Plywood Corp., G.R. 159577, 2006)
This definition is only for purposes of the
exemption and is different from the definition
under the Labor Code.
Q: What are the duties and responsibilities of
managerial staff?
A: These help determine whether an employee is
part of the managerial staff, excluded from the
coverage of the provisions on hours of work
(PODATS-20)
1. The primary duty consists of the performance
of work directly related to management
policies of the employer;
2. Managerial staff customarily and regularly
exercise discretion and independent
judgment;
3. They regularly and directly assist a
proprietor/managerial employee, whose
primary duty consists of the management of
the establishment, or execute under general
supervision work along specialized or
technical lines requiring special training,
experience or knowledge, or execute under
general supervision special assignments and
tasks;
4. Managerial staff do not devote more than
. 20 % of their work hours in a week to activities
which are not directly and closely related to
management of the establishment.
(Penaranda v. Baganga Plywood Corp., G.R.
159577, 2006).
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LABOR LAW
Q: Who are field personnel?
A: Field personnel are non-agricultural
employees who regularly perform their duties
away from the principal place of business or
branch office and whose actual hours of work in
the field cannot be determined with reasonable
certainty. (Autobus Transport v. Bautista, G.R.
No. 156367, 2005)
2. Hours of Work
Q: What are the principles in determining
hours worked?
A:
1. All hours are hours worked which the
employee is required to give to his employer,
regardless of whether or not such hours are
spent in productive labor or involve physical
or mental exertion.
2. An employee need not leave the premises of
the workplace in order that his rest period
shall not be counted, it being enough that he
stops working, may rest completely and may
leave his workplace.
3. If the work performed was necessary or it
benefited the employer, or the employee
could not abandon his work at the end of his
normal working hours because he had no
replacement, all time spent or such work shall
be considered as hours worked, if the work
was with the knowledge of his employer or
immediate supervisor.
4. The time during which an employee is
inactive by reason of interruptions in his work
beyond his control shall be considered
working time either if:
a. The imminence of the resumption of work
requires the employee's presence at the
place of work; or
b. The interval is too brief to be utilized
effectively and gainfully in the
employee's own interest. (IRR of Labor
Code, Sec. 4, Book III, Rule I)
Q: What are the normal hours of work?
A: Normal work hours shall not exceed 8 hours
a day. Anything beyond 8 hours is considered
overtime work. (Labor Code, Art. 83)
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Q: What is a Compressed Work Week?
A: A compressed work week scheme is one
wherein the normal 6-day workweek is
compressed to 5 days, which may result in more
than an 8-hour workday. No overtime pay would
be paid for the excess. (Department Order No.
21-90/ DOLE Advisory No. 2-09 and No. 02-04)
Q: What standards must be met for a valid
compressed work week?
A: According to the Department Advisory Opinion
No. 32-2004, CWW schemes must:
1. Result from an express and voluntary
agreement of the majority of the covered
employees.
2. In firms using substances and processes that
prolonged exposure to which may pose
hazards to the employee’s health or safety,
there must be certification that work beyond
8 hours is within the threshold limits to
exposure.
3. Employer must notify DOLE, through the
regional office, of the CWW scheme. This
must follow the CWW Report Form of DOLE.
Q: What standards must be met for a valid
reduction of work hours pursuant to a
compressed work week?
A: While financial losses must be shown to
reduce the work hours of employees, no
guidelines have been set to determine the
sufficiency of losses to justify the reduction.
In the case of Linton Commercial vs. Hellera
(G.R. No. 163147; 2007), the SC applied the
standards for suspension of work [not to exceed
60 days] and retrenchment:
1. The losses incurred are substantial and not
de minimis; -
2. The losses are actual or reasonably
imminent;
3. The retrenchment is reasonably necessary
and is likely to be effective in preventing the
expected losses; and
4. The alleged losses, if already incurred, or the
expected imminent losses sought to be
forestalled, are proven by sufficient and
convincing evidence
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LABOR LAW
Q: What are the regular work hours o f hospital
and clinic personnel?
A: Hospital and clinic personnel can start and end
work at any hour on any day but would not work
for more than 8 hours in a day, nor more than 40
hours in one week. (Labor Code, Art. 83)
Q: Is there overtime work for hospital and
clinic personnel?
A: Yes. Hospital and clinic personnel may be
scheduled to work for more than 5 days or 40
hours in a week, if they are paid overtime. (+ at
least 30% regular rate. (Labor Code, Art. 83)
Q: What are the rules governing
compensability during power interruptions
(brownout)?
A: If a worker’s work is Interrupted due to
brownout and -
1. Brownout does not exceed 20 minutes, it will
be treated as hours worked
2. Brownout exceeds 20 minutes and the
employees can ieave freely, it will not be
compensable
3. Brownout exceeds 20 minutes and the
employees can use the time however they
want, it will not be compensable
In each case, the employer may extend the
working hours of his employees outside the
regular schedules to compensate for the loss of
productive hours without paying overtime.
(Durabuilt Recapping Plant & Co. vs. NLRC, G.R
No. 76746, July 27, 1987)
Q: When is Meal Break compensable?
A: General Rule: Not less than 1-hour time-off
for regular meals - non-compensable
Exception: Meal period of not less than 20
minutes in the following cases are compensable
hours worked:
1. Where the work is non-manual work in nature
or does not involve strenuous physical
exertion'
2. Where the establishment regularly operates
not less than 16 hours a day;
3. In case of actual or impending emergencies
or there is urgent work to be performed on
ATENEO CENTRAL
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machineries, equipment or installations to
avoid serious loss which the employer would
otherwise suffer; and
4. Where the work is necessary to prevent
serious loss of perishable goods (IRR Labor
Code, Sec. 7, Rule I Book III)
Q: When is waiting time considered working
time?
A: Waiting time spent by an employee shall be
considered as working time if:
1. Waiting is an integral part of his work; or
2. The employee is required or engaged by the
employer to wait. (IRR Labor Code, Sec. 5[a],
Rule 1, Book III)
Q: Can the right to claim overtime pay be
waived?
A: No. The right to claim overtime pay is
governed by law and not merely by the
agreement of the parties. (Manila Terminal v.
CIR, G.R. No. L-4148, 1952)
Q: Is there an exception?
A: YES. If the waiver is done in exchange for
certain valuable privileges which compensate for
such work, the waiver may be valid. If there is a
stipulation regarding built-in overtime pay, duly
approved by DOLE, then the non-payment of
overtime is valid. (Bisig Manggagawa sa Tryco v.
NLRC, G.R. No. 151309, 2008)
Q: Is Composite or Package Pay illegal per
se?
A: No. Composite or “package pay” or “all-
inclusive salary” is an arrangement where the
overtime pay is already built-in. (Trans-Asia Phils.
Employees Association v. NLRC, G.R. No.
118289, 1999.)
Q: May under-time be offset by overtime?
A: No. Under-time work on any particular day
shall not be offset by overtime work on any other
day. Permission given to the employee to go on
leave on some other day of the week shall not
exempt the employer from paying the additional
compensation. (Labor Code, Art. 88)
PAGE 11 OF 89
LABOR LAW
Q: Is Emergency OT work allowed? (P2W2IM)
A:
General Rule: Employees cannot be compelled
to render overtime work against their will.
Exceptions:
1. Country at War/National or Local Emergency
2. Completion of work started before the 8th
hour and is necessary to prevent serious
obstruction or prejudice to the business
3. Urgent work to be performed on Machines to
avoid serious loss or damage to employer
4. Necessary to Prevent loss of life/property or
Imminent danger to public safety
5. Necessary to prevent loss or damage to
Perishable goods
6. Necessary to avail of favorable Weather or
environmental condition (Labor Code, Art.
89)
Q: How much is an employee entitled to for
overtime?
A: Regular wage rate + at least 25% (Labor
Code, Art. 87)
Q: How much is an employee entitled to for
night shift differential?
A: at least 10%. (10pm-6am) (Labor Code, Art.
86)
Q: What if someone is certified unfit for
nightwork?
A: They should be transferred, whenever
practicable, to another job similar to their old one.
If not practicable, these workers they should be
granted the same benefits as other workers unfit
for work.
If the unfitness is temporary, he enjoys the same
protection against dismissal or notice as other
workers prevented for work by reason of health.
(R.A. No. 10151)
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Q: What if a woman is pregnant? SPECIAL WORKING HOLIDAYS - only the

A: The amendment by R.A. 10151 dictates that
measures shall be taken to ensure that an
alternative to night work is available to women
workers who would otherwise be called upon to
perform such work -
basic rate
Q: What are the Regular Holidays?
A: The following regular holidays for the year
2019 shall be observed in the country:

1. Before or after childbirth, for a period of at New Year’s Day 1 January

least 16 weeks, which shall be divided Araw ng Kagitingan 9 April
between the time before and after childbirth; Maundy Thursday 18 April
2. For additional periods in respect of which a Good Friday 19 April
medical certificate is produced stating that Labor Day 1 May
said additional periods are necessary for the Independence Day 12 June
health of the mother or the child - August (Last Monday
a. During pregnancy National Heroes Day
of August)
b. Determined by DOLE after consultation Bonifacio Day 30 November
with employer and labor representatives Christmas Day 25 December
Rizal Day 30 December
Q: When are pregnant women allowed to work Eidul Fitr To be determined
at night?
Eidul Adha To be determined
( P r n r .la m a tin n A In fyQ S 2016; .Proclamation No.
A: Only if a competent physician other than the
555, August 15, 2018)
company physician shall certify their fitness to
render night work, and specify the period of the
Q: What are the Special Non-Working Days?
pregnancy that they can safely work. (RA 10151)
A: The following special days for the year 2019
Q: What are the different rates of premium pay shall be observed in the country:
for holidays?
REGULAR HOLIDAYS Chinese New Year 5 February
| Falling on a regular work day EDSA People Power
100% (EXCEPT: in retail and Revolution 25 February
Unworked service establishments employing Anniversary
less than 10 workers)- Holiday Black Saturday 20 April
Pay Ninoy Aquino Day 21 August
First 8 Hours 200% AM Saints* Day 1 November
Worked Excess of 8+ 30% of hourly Feast of the
Hours rate^n sard day immaculate 8 December
Falling on a rest day Conception of Mary
Un worked 100% I Last Day of the Year 31 December
First 8 hours + 30% of 200% Additional Special 2 November
Excess of 8 + 30% of hourly (Non-working) Days 24 December
Worked
hours rate on said day (Proclamation No. 555, August 15, 2018)
SPECIAL HOLIDAYS

NO PAY, unless there is a

favorable company policy, practice
Un worked
or CBA granting payment of wages
on special days even if unworked

+ 30% of the daily

First 8 hours
rate (100%).
Worked Excess of 8 + 30% of hourly
hours rate on said day

PAGE 12 OF 89
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Q: What is a double holiday pay? Q: Can an employee volunteer to work on his

rest day?
A:
1. If unworked - employee entitled to 200% of A: Yes. This must, however, be in writing, subject
basic wage, provided he was present or on to payment of additional compensation. (Sec. 6,
leave with pay on the preceding work day Rule III, Book Three, IRR Labor Code)
2. If worked-employee entitled to 300% of basic
wage. Only an employee who works on the Q: What is the remuneration of an employee
day immediately preceding or after a regular working on a rest day?
holiday shall be entitled to the holiday pay. A
paid legal holiday occurring during the A:
scheduled vacation leave will result in holiday SCENARIO REMUNERATION
payment in addition to normal vacation pay + at least 30% of his
but will not entitle the employee to another regular wage.
vacation leave. (Asian Transmission v. CA, Where employee is An employee shall be
GR No. 144664, March 15, 2004) made or permitted entitled to such
to work on his additional compensation
scheduled rest day for work performed on
Q: When is work on a rest day authorized?
Sunday only when it is
(UAAP FAN) his established rest day.
Nature of the work
A: Work on a rest day is authorized: of the employee is
1. In case of Urgent work to be performed on + at least 30% of his
such that he has no
regular wage for work
machineries, equipment or installations to regular workdays
performed on Sundays
avoid serious loss which the employer would and no regular rest
and holidays
otherwise suffer days can be
2. In case of Actual or impending scheduled
i
emergencies caused by serious accident, Where
such
fire, flood, typhoon, earthquake, epidemic, or
holidays
other disaster or calamity, to prevent loss of + at least
falls on the
life or property, or in cases of force majeure 30% of the
employee’s
or imminent danger to public safety Work performed on regular
scheduled
3. In the event of Abnormal pressure of work any special holiday wage of
rest day, +
the
due to special circumstances, where the at least
employee.
employer cannot ordinarily be expected to 50% of his
resort to other measures 1regular
. 4. To Prevent serious loss of perishable wage
goods Where the CBA or
5. When the work is necessary to avail of other applicable
employment Employer shall pay such
Favorable weather conditions where
contract stipulates higher rate.
performance or quality of work is dependent payment of a
thereon higher premium
6. Under other Analogous or similar (Labor Code, Art. 93)
circumstances
7. Where the Nature of the work is such that
the employees have to work continuously for
7 days a week or more as in the case of crew
members of a vessel to complete a voyage
and in other similar cases (Labor Code, Art.
92)

PAGE 13 OF 89
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Q: Can an employer and an employee enter
into an agreement reducing or increasing the
minimum percentage provided for night
differential pay, overtime pay, and premium
pay?
A: While as a general rule, the parties may enter
into any kind of stipulation in a contract and the
same shall be considered as the law between
them, however, it must be emphasized that a
labor contract is not an ordinary contract since it
is impressed with public interest. Thus, the
parties are prohibited to enter into any
stipulation which may result in the reduction
of any employee benefits. (Labor Code, Art.
100; Republic Planters Bank v. NLRC, G.R.
117460, 1997).
However, the same may not be said on the matter
of increasing said benefits. The employer and
the employee are not prohibited under the law
to enter into an agreement for the increase of
whatever benefit being mandated by law for
the simple reason that any such increase
certainly redounds to the benefit of the employee.
Thus, the employer and the employee may legally
and validly agree to increase the minimum
percentage provided for night differential pay,
overtime pay, and premium pay. (Republic
Planters Bank v. NLRC, G.R. 117460, 1997).
Q: Who are entitled to claim 13th month pay
and other bonuses?
A: All employers are required to pay all their rank-
and-file employees, a 13th month pay not later .
than December 24 of every year. (P.D. No. 851)
Q: Who are the employers not required to give
the 13th month pay and other bonuses?
A: The following are excluded:
1. Government and any of its political
subdivisions, including GOCCs, except those
corporations operating essentially as private
subsidiaries of the Government;
2. Employers already paying their employees
13th month pay or more in a calendar year or
its equivalent at the time of issuance of PD
851
NOTE: “Its equivalent” - includes Christmas
bonus, mid-year bonus, cash bonuses and
other payments amounting to not less than
PAGE 14 OF 89
LABOR LAW
1/12 of the basic salary but shall not include
cash and stock dividends, COLA and all other
allowances regularly enjoyed by the
employee as well as non-monetary benefits.
3. Employers of persons in the personal service
of another in relation to such workers
4. Employers of those who are paid on
commission, boundary, or task basis, and
those who are paid a fixed amount for
performance of a specific work, irrespective
of the time consumed in the performance
thereof
EXCEPTION: where the workers are paid on
a piece-rate basis, in which case the
employer shall grant the required 13th month
pay to such workers.
5. Distressed employers, such as (1) those
which are currently incurring substantial
losses or (2) in the case of non-profit
institutions and organizations, where their
income, whether from donations,
contributions, grants and other earnings from
any source, has consistently declined by
more than forty (40%) percent of their normal
income for the last two (2) years, subject to
the provision of Section 7 of this issuance
(IRR, Section 3(a) P.D. No. 851).
Q: What are the rules on distribution of
service charges?
A:
1. 85% distributed equally among the covered
employees
2. 15% for the disposition by management to
answer for losses and breakages and
distribution to managerial employees at the
discretion of the management in the latter
case
c Distributed and paid to the employees not
less than once every 2 weeks or twice a
month at intervals not exceeding 16 days.
3. Supervisors share in the 15%. Labor Code
speaks of “management” and not
“managerial employee.” (Labor Code, Art.
96)
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B. WAGES 5. Upon request of the concerned employee/s,

the employer shall issue a record of payment
Q: Differentiate Wage from Salary. of wages, benefits, and deduction for a
particular period;
WAGE ! SALARY 6. There shall be no additional expenses and no
Paid to white collar diminution of benefits and privileges as a
Paid for skilled or
workers and denote a result of the ATM system of payment;
unskilled manual
higher grade of 7. The employer shall assume responsibility in
labor
employment case the wage provisions of law and
Not subject to regulation are not complied with under the
Not exempt from
execution, arrangement. (Labor Advisory on Payment of
execution,
garnishment or Salaries thru Automated Teller Machine
garnishment or
attachment except for (ATM), 1996 November 25)
attachment. (Gaa v.
debts related to
CA, G.R. No. L- Q: Differentiate Facilities from Supplements.
necessities (Art.
44169, 1985)
1708, Civil Code)
FACILITIES SUPPLEMENTS
Q: What are the allowable forms of Payment What it is 1
of wages? Necessary items of Extra remuneration or
expense, articles, or special privileges/
A: General Rule: No employer shall pay the services benefits/ articles or
wages of an employee by any other means other services / tools of the
than legal tender, even when expressly trade
requested by the employee. (Congson v. NLRC, Who!benefits
G.R. No. 114250, April 5, 1995) For the benefit of the For the benefit or
employee and his convenience of the
Exception: Payment of wages by check or family; for their employer
money order shall be allowed when such manner existence and
of payment is customary on the date of effectivity subsistence
of this Code, or is necessary because of special 1 Deductibility from wage
circumstances as specified in appropriate Part of the wage Independent of the
regulations to be issued by the Secretary, or as wage
stipulated in a CBA. (Labor Code, Art. 102) Deductible from the Not wage deductible
wage
Q: When is payment through automated teller Deductible from the Not wage deductible
machine (ATM) of banks allowed? wage
(State Marine v: Cebu, G.R. No. L-12444, 1963)
A: It is allowed when the following conditions are
met: Q: What “benefits” are covered by Article
100?
1. The ATM system of payment is with the written
consent of the employees concerned; A: The term “benefits” mentioned in the non-
2. The employees are given reasonable time to diminution rule refers to monetary benefits or
withdraw their wages from the bank facility privileges given to the employee with monetary
which time, if done during working hours, shall equivalents. This, removed the chairs provided to
be considered compensable hours worked; the employees from the purview of Article 100 of
3. The system shall allow workers to receive the Labor Code. (Royal Plant Workers Union vs.
their wages within the period or frequency and Coca-Cola Bottlers Philippines, Inc.-Cebu Plant,
in the amount prescribed under the Labor G.R. 198783, 2013).
Code, as amended;
4. There is a bank or ATM facility within a radius
of one kilometer to the place of work;

PAGE 15 OF 89
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Q: When is there a diminution of benefits?
A: There is diminution of benefits when it is
shown that:
1. The grant or benefit is founded on a policy
or has ripened into a practice over a long
period of time
2. The practice is consistent and deliberate
3. The practice is not due to error in the
construction or application of a doubtful or
difficult question of law
4. Diminution or discontinuance is done
unilaterally by the employer. (Supreme Steel
v. Nagkakaisang Manggagawa, G.R. No.
185556, 2011).
Q: What is the rule regarding non-diminution
of benefits?
A: General Rule: Nothing in the Labor Code shall
be construed to eliminate or in any wav diminish
supplements, or other employee benefits being
enjoyed at the time of promulgation of the Labor
Code. Benefits being given to employees shall
not be taken back or reduced unilaterally by the
employer because the benefit has become part of
the employment contract, written or unwritten.
(Labor Code, Art. 100)
Exception: To correct an error, otherwise, if the
error is left uncorrected for a reasonable period of
time, it ripens into a company policy and
employees can demand for it as a matter of right.
The non-diminution principle is applicable if it is
shown that:
• 1. The practice is consistent and deliberate
(Metrobank v. NLRC, G.R. No. 152928,
. 2009)
2. The diminution or discontinuance Is done
unilaterally by the employer (Steel
Corporation v. Nagkakaisang
Manggagawang Supreme Independent
Union, G.R. No. 185556, 2011)]
3. The grant of the benefit is founded on a policy
or has ripened into a practice over a long
period (Phil. Appliance Corp. v. CA, G.R. No.
149434, 2004); and
4. The practice is not due to error in the
construction or application of a doubtful or
difficult question of law (Vergara, Jr., v. Coca
Cola, G.R. No. 176985, 2013)
PAGE 16 OF 89
LABOR LAW
Q: Ss a bonus demandable and enforceable?
A: From a legal point of view, a bonus is not
demandable. It becomes so when it is made part
of the wage or salary or compensation. In that
case, the latter would be a fixed amount and the
former would be a contingent one dependent
upon the realization of profits. Without profit, no
bonus. (Luzon Stevedoring v. CIR, G.R. L-17411,
1965).
Q: What is the rule on prohibition regarding
wages?
A: As a general rule, an employer, by himself or
through his representative, is prohibited from
making any deductions from the wages of his
employees. The employer is not allowed to make
unnecessary deductions without the knowledge
or authorization of the employees. (Galvadores v.
Trajano, G.R. No, L-70067, 1986)
Q: What deductions arc allowed under Article
113?
A:
1. In cases where the worker is insured with his
consent by the employer, and the deduction
is to recompense the employer for the
amount paid by him as premium for the
insurance;
2. For union dues, in cases where the right of
the worker or his union to check-off has been
recognized by the employer or authorized in
writing by said worker;
3. In cases where xhe employer is authorized
by law or regulations issued by the SOLE.
Q: What are the other deductions allowed?
A: The Labor Code and other laws provide for
other allowable deductions: (DUMP-LAW-CAT)
1. In cases where the employee is indebted to
employer, where such indebtedness has
become Due and demandable
2. Union dues
3. Deductions for value of Meals and other
facilities
4. In court awards, Wages may be the subject
of execution or attachment, but only for debts
incurred for food, shelter, clothing, and
medical attendance
5. SSS, Medicare, Pag-IBIG Premiums
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6. Deductions for Loss or damage
7. Agency fee
8. Salary deductions of a legally established
Cooperative
9. Deductions for payment to 3rd persons, upon
written Authorization of the employee
10. Withholding Tax (Azucena, Volume I)
Q: Is a union prohibited from offering and
agreeing to reduce wages and benefits of the
employees?
A: NO. The Labor Code prohibits elimination or
diminution of benefits already being enjoyed at
the time of its promulgation. It does not prohibit a
union from offering and agreeing to reduce wages
and benefits of the employees during CBA
negotiations. (Insular Hotel Employees Union v.
Waterfront, G.R. 174040-41, 2010).
The term “benefits” mentioned in the non­
diminution rule refers to monetary benefits or
privileges given to the employee with monetary
equivalents. This removed the chairs provided to
the employees from the purview of Article 100 of
the Labor Code. (Royal Plant Workers Union vs.
Coca-Cola Bottlers Philippines, Inc.-Cebu Plant,
G.R. 198783, 2013).
Q: What is a wage order?
A: An order issued by the Regional Board
whenever the conditions in the region so warrant
after studying and investigating and studying all
pertinent facts and based on the standards and
criteria prescribed by the Labor Code. (Labor
Code, Art. 123)
A wage order adjusts the minimum level, but not
the levels above the minimum. It does not
mandate across the board salary increase.
Q: Who are not included in a Wage Order?
A: Household or domestic helpers and persons
employed in the personal service of another,
including family drivers, from its coverage (Sec.
4(c), R.A. No. 6727).
Under the Kasambahay law, Regional Wage
Boards must issue separate Wage Order for
Kasambahay.
PAGE 17 OF 89
LABOR LAW
Exempt upon application:
1. Distressed establishments
2. New business enterprises
3. Retail/Service establishments employing not
more than 10 workers and
4. Establishments adversely affected by natural
calamities (Section 2, NWPC Guidelines No.
2, s. 2007).
Q: What is a wage distortion?
A: A wage distortion is a situation where an
increase in the prescribed wage rates results in
the elimination or severe contraction of intentional
quantitative differences in wage or salary rates
between and among employee groups in an
establishment as to effectively obliterate the
distinctions embodied in such wage structure
based on skills, length of service, or other logical
bases of differentiation. (Labor Code, Art. 124)
Q: What are the elements of a wage
distortion? (HCEE)
A: The elements are:
1. An existing hierarchy of positions with
corresponding salary rates;
2. A significant change in the salary rate of a
lower pay class without a concomitant
increase in the salary rate of a higher one;
3. The elimination of the distinction between the
two levels; and
4. The existence of the distortion in the same
region of the country. (Bankard Employees
Union-Workers Alliance v. NLRC, 423 SCRA
148, 2004).
Q: How would one correct a wage distortion?
(VACAC)
A: The following are valid ways for correcting a
wage distortion:
1. By voluntary arbitration after prior referral
to grievance machinery. (Labor Code, art.
124).
2. By compulsory arbitration after prior
referral to NCMB conciliation. (Labor Code,
art. 124)\ or
3. By provisions in the CBA, which re­
establishes the wage gap, or a unilateral
grant by the employer which also restores
said gap are valid wage distortion schemes.
(.National Federation of Labor v. NLRC, 234
SCRA 311, 1994).
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Q: What Is the formula for wage distortion?
A:
NOTE: There is no mandated formula but the
following equation has been provided in
jurisprudence:
[Minimum Wage / Actual Salary] = % * Prescribed
Increase = Distortion Adjustment
(Metropolitan Bank & Trust Company Employees
Union v. NLRC, G.R. No. 102636, 1993)
Q: Summarize the principles on wage
distortion.
A: The concept of wage distortion assumes an
existing grouping or classification of employees
which establishes distinctions among such
employees on some relevant or legitimate basis.
This classification is reflected in a differing wage
rate for each of the existing classes of
employees. Wage distortions have often been the
result of government-decreed increases in
minimum wages. There are, however, other
causes of wage distortions (such as merger).
Should a wage distortion exist, there is no legal
requirement that the gap which had been
previously existed he restored in precisely the
same amount. Correction of a wage distortion
may be done by re-establishing a substantial or
significant gap (as distinguished from the
historical gap) between the wage rages of the
differing classes of employees.
The re-establishment of a significant wage
difference may be done through the grievance
procedure or collective bargaining negotiations.
PAGE 18 OF 89
LABOR LAW
C. LEAVES
1. Service Incentive Leave
Q: Who are covered by the Service Incentive
Leave (SIL)? (Go-MaMa-FiA-5-10)
A: Every employee who has rendered at least 1
year of service shall be entitled to a yearly SIL of
5 days with pay.
EXCEPT:
1. Government employees, whether
employed by the National Government or
any of its political subdivisions, including
those employed in GOCCs with original
charters or created under special laws;
2. House helpers and persons in the
personal service of another
3. Managerial employees, if they meet all of
conditions provided for
4. Officers or members of a managerial staff
if they perform duties and responsibilities
enumerated
5. Field personnel and those whose time
and performance is unsupervised by the
employer;
6. Those already enjoying this benefit;
7. Those enjoying vacation leave with pay
of at least five (5) days; and
8. Those employed in establishments
regularly employing less than ten (10)
employees.
(Labor Code, Art. 95; Section 2, Rule V, Book III
of the Omnibus Rules)
2. Maternity Leave
Q: What is a Maternity Leave?
A female member who has paid at least 3 monthly
contributions in the 12-month period immediately
preceding the semester of her
childbirth/miscarriage shall be paid a daily
maternity benefit equivalent to 100% of her
average daily salary credit for 60 days (in case of
normal delivery) or 78 days (in case of caesarian
delivery). (R.A. No. 9282, Sec. 14-A)
The maternity leave benefits shall be paid only for
the first 4 deliverles/miscarriages.
ATENEO CENTRAL
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Q: How can Maternity Leave be availed of?
A:
1. Employee shall have Notified her employer of
her pregnancy and the probable date of her
childbirth, which notice shall be transmitted to
the SSS.
2. Full payment shall be Advanced by the
employer within 30 days from the filing of the
maternity leave.
3. Payment of daily maternity benefits shall be
a Bar to the recovery of sickness benefits
provided by the SSS Law for the same period
for which daily maternity benefits have been
received.
4. The maternity benefits provided under this
section shall be paid only for the first 4
deliveries/miscarriages.
5. The SSS shall immediately Reimburse the
employer of 100% of the amount of maternity
benefits advanced to the employee by the
employer upon receipt of satisfactory proof of
such payment and legality thereof;
6. If an employee member should give birth or
suffer miscarriage without the required
contributions having been remitted for her by
her employer to the SSS, or without the latter
having been previously notified by the
employer of the time of the pregnancy, the
employer shall pay to the SSS Damages
equivalent to the benefits which said
employee member would otherwise have
been entitled to (R.A. No. 9282, Sec. 14-A)
3. Paternity Leave
Q: What is a Paternity Leave?
A: Paternity Leave refers to the benefits granted
to a married male employee allowing him not to
report for work for seven (7) days but continues
to earn the compensation therefor, on the
condition that his spouse has delivered a child or
suffered a miscarriage for purposes of enabling
him to effectively lend support to his wife in her
period of recovery and/or in the nursing of the
newly-born child. (R.A. No. 8187, Sec. 3)
Every married male employee in the private and
public sectors shall be entitled to paternity leave
of seven (7) days with full pay for the first four (4)
deliveries of the legitimate spouse with whom he
is cohabiting. (R.A. No. 8972)
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LABOR LAW
Q: What are the conditions for entitlement of
Paternity Leave? (MAC-BG)
A:
1. A married male employee at the time of
delivery of his child;
2. Cohabiting with his spouse at the time she
gives birth or suffers a miscarriage;
3. Applied for paternity leave within a
reasonable period from the expected date of
delivery or within such period as may be
provided by company rules or by CBA; prior
application is not required in case of
miscarriage;
4. Wife has given birth or suffered a
miscarriage.
5. Where a male employee is already enjoying
the paternity leave benefits by reason of
contract, company policy or CBA, the greater
benefit prevails.
4. Parental Leave for solo parents
Q: What is a solo parent’s leave and how can
it be availed?
A: A parental leave of not more than 7 working
days every year shall be granted to any solo
parent employee who has rendered service of at
least 1 year.
Conditions for Entitlement: (INI)
1. Has rendered at least 1 year of service,
whether continuous or broken;
2. Has notified the employer within a reasonable
period
3. Has presented a Solo Parent ID to the
employer which may be obtained from the DSWD
office of the city or municipality where the
employee resides (R.A. No. 8972)
5. Special Leaves for women workers
Q: What are special leave benefits under the
Magna Carta for Women?
A: Gynecological Leave benefits of two (2)
months with full pay based on gross monthly
compensation, for women employees who
undergo surgery caused by gynecological
disorders, provided that they have rendered
continuous aggregate employment service of at
least six (6) months for the last twelve (12)
ATENEO CENTRAL
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months. The certification of a competent
physician as required period for recuperation
shall be controlling.
Conditions for Entitlement:
1. A woman employee must have rendered
continuous aggregate employment service of
at least six (6) months for the twelve (12)
months immediately prior to the surgery
2. She has filed an application for special leave
with her employer within a reasonable period
of time from the expected date of surgery or
within such period as may be provided by
company rules and regulations or collective
bargaining agreement; and
3. She has undergone surgery due to
gynecological disorders as certified by a
competent physician.
Q: What are the leave benefits for Women
Workers under the VAWC Law?
A: Under R.A. 9262 or the Anti-Violence Against
Women and their Children Act of 2004, victims of
violence may apply for the issuance of a
protection order. If such victim is an employee,
she is entitled to a paid leave of up to 10 days in
addition to other paid leaves under the Labor
Code, other laws and company policies.
Conditions to entitlement
1. The employee has to submit a certification
from the Punong Barangay or Kagawad or
prosecutor or Clerk of Court that an action
under RA 9262 has been filed and is pending.
2. The use of the 10-day leave is at the option
of the employee
3. It shall be usecLfor the days that she need to
attend to medical and legal concerns.
4. Leaves not availed of are non-cumulative and
not convertible to cash.
Availment
Leave of up to ten (10) days in addition to other
paid leaves under the Labor Code, or other laws.
(Sec. 43, RA 9262)
NOTE: The VAWC leave may be extended
beyond 10 days. It is extendible when the
necessity arises as specified in the protection
order. (R.A. No. 9262, Sec. 43)
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LABOR LAW
P. SPECIAL GROUPS OF EMPLOYEES
1- Women
Q: What is the rule against discrimination?
A: It is unlawful for any employer to discriminate
against any woman employee with respect to
terms and conditions of employment solely on
account of her sex (Labor Code, Art. 135)
Q: What are considered acts of
discrimination?
A:
1. Payment of a lesser compensation, including
wage, salary or other form of remuneration
and fringe benefits, to a female employees as
against a male employee, for work of equal
value
2. Favoring a male employee over a female
employee with respect to promotion, training
opportunities, study and scholarship grants
solely on account of their sexes
a. Person guilty of committing these acts
are criminally liable under Arts. 288-289
of the Labor Code
b. That the institution of any criminal action
under this provision shall not bar the
aggrieved employee from filing an
entirely separate and distinct action for
money claims, which may include claims
for damages and other affirmative reliefs.
The actions hereby authorized shall
proceed independently of each other.
3. Favoring a male applicant with respect to
hiring where the particular job can equally be
handled by a woman; and
4. Favoring a male employee over a female
employee with respect to dismissal of
personnel
Q: When is a rule against marriage valid?
When is it not valid?
A: As a general rule, the Labor Code considers
as an unlawful act of the employer to require as a
condition for or continuation of employment that a
woman employee shall not get married or
stipulate expressly or tacitly that upon getting
married, a woman employee shall be deemed
resigned or separated.
ATENEO CENTRAL
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In Duncan v. Glaxo Welcome, where the
stipulation prohibits an employee from having a
relationship with another employee from a
competitor company, this stipulation is a valid
exercise of management prerogative, n laying
down the assailed company policy, the employer
only aims to protect its interests against the
possibility that a competitor company will gain
access to its trade secrets, manufacturing
formulas, marketing strategies and other
confidential programs and information. (G.R. No.
162994, 2004)
However, in PT&T v. NLRC, a company policy of
not accepting or considering as disqualified from
work any woman worker who contracts marriage
runs afoul of the right against discrimination
afforded all women workers by our labor laws and
by no less than the Constitution. (G.R. No.
118978, 1997)
Q: What are the prohibited acts under Art.
137?
A: Art. 137 Prohibited Acts (DEP-R-TeC)
It is unlawful for any employer:
1. To Deny any woman the benefits provided for
under the Code
2. To discharge any woman employed by him
for the purpose of preventing such woman
from Enjoying the maternity leave, facilities
and other benefits provided under the Code
3. To discharge such woman employee on
account of her Pregnancy, or while on leave
or in confinement due to her pregnancy (Del
Monte v. Velasco, G.R. No. 153477 (March
6,2007).
4. To discharge or refuse the admission of such
woman upon Returning to her work for fear
that she may be pregnant
5. To discharge any woman or child or any other
employee for having filed a complaint or
having Testified or being about to testify
under the Code
6. To require as a Condition for a continuation
of employment that a woman employee shall
not get married or to stipulate expressly or
tacitly that upon getting married, a woman
employee shall be deemed resigned or
separated, or to actually dismiss, discharge,
discriminate or otherwise prejudice a woman
employee merely by reason of her marriage
PAGE 21 OF 89
LABOR LAW
Q: Who commits sexual harassment?
A: When a person demands, requests, or
otherwise requires any sexual favor from the
other, regardless of whether the demand, request
or requirement for submission is accepted by the
latter. It is not necessary that a demand, request
or requirement of sexual favor be articulated in a
categorical oral or written statement. It may be
discerned, with equal certitude, from acts of the
offender. (Domingo v. Rayala, G.R. No. 155831
February 18, 2008).
It is committed by one having authority, influence,
moral ascendancy in a work, education, training-
related environment. (AIM-WET) (R.A. 7877)
2. Minors
Q: What are the conditions in order that a
child below 15 years of age is allowed to
work? (SH-20-4-8-6)
A: The following conditions must be met:
1. Must be directly under the sole supervision of
his parents or guardian (Labor Code, art.
139)
2. Cannot be made to work for more than 20
hours a week
3. Work shall not be more than 4 hours per day
4. Should not work between 8pm and 6am
5. Work is not hazardous or deleterious to the
child’s health or morals (R.A. 9231, Sec. 3)
Q: What are the hazardous workplaces?
A:
• Exposure to dangerous environmental
elements, contaminants
• Construction work, deep sea fishing and
mechanized farming
• Handling of explosives and other pyrotechnic
products
• Exposure to use of heavy power-driven
machinery
• Exposure to or use of power-driven tools
(sec. 12-D, R.A. 7610, as amended)
ATENEO CENTRAL
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Q: What are the maximum working hours and Q: May a Kasambahay be assigned to work in
night work prohibition for minors? commercial, industrial or agricultural
enterprise?
A:
15 AND A: As a general rule, the employer shall not
AGE BELOW 15
BELOW 18 assign the Kasambahay to work, whether in full
Not more Not more or part-time, in a commercial, industrial, or
DAY
than 4 hours than 8 hours agricultural enterprise at a wage rate lower than
Not more Not more that provided for agricultural or non-agricultural
than 20 than 40 workers.
hours hours
8pm to 6am 10pm to 6am The mere fact that the househelper or domestic
PROHIBIT!© servant is working within the premises of the
of the of the
N business of the employer and in relation to or in
following day following day
connection with its business, as in its staffhouses
3. Kasambahay for its guests or even for its officers and
employees, warrants the conclusion that such
Q: What are the rights and privileges of a househelper or domestic servant is and should be
Kasambahay? (ANPACE) considered as a regular employee of the
employer and not as a mere family househelper
a. The domestic worker shall not be subjected or domestic servant as contemplated in Rule X!!l,
to any kind of Abuse or any form of physical Section 1(b), Book 3 of the Labor Code, as
violence or harassment or any act tending to amended. (Apex Mining Co., Inc. v. National
degrade his or her dignity. Labor Relations Commission, G.R. No. 94951,
b. The employer shall provide for the basic April 22, 1991)
Necessities of the domestic worker to include
at least three (3) adequate meals a day and 4. Homeworkers
humane sleeping arrangements that ensure
safety. Q: Who Is a Homeworker?
c. Respect for the Privacy of the domestic
worker shall be guaranteed at ail times and A: Any person who performs industrial homework
shall extend to all forms of communication for an employer, contractor or sub-contractor.
and personal effects. (Labor Code, Art. 153)
d. The employer shall grant the domestic
worker Access to outside communication 5. Night workers
during free time.
e. All communication and information pertaining Q: Who is a night worker?
to the employer or members of the household
shall be treated as privileged and A; A night worker is any employed person
Confidential, and shall not be publicly whose work requires performance of a
disclosed by the domestic worker during and substantial number of hours of night work which
after employment. exceeds a specified limit. (Labor Code, Art. 154)
f. The employer shall afford the domestic
worker the opportunity to finish basic Q: Who are covered by the provisions on
Education and may allow access to night work?
alternative learning systems and, as far as
practicable, higher education or technical and A: All persons who shall be employed or
vocational training. (R.A. 10361 - permitted or suffered to work at night. (Labor
K a S a f f i b a h a y LaVv)

PAGE 22 OF 89
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Q: Who are excluded from the provisions on 7. Apprentices and Learners

night work?
Q: Differentiate between apprentices and
A: Those employed in learners.
1. agriculture,
2. stock raising, A:
3. fishing, LEARNERS APPRENTICES
4. maritime transport and inland navigation, 1. Practical training on
during a period of not less than 7 consecutive 1. Persons hired as
the job
hours, including the interval from midnight until trainees in semi­
2. Supplemented by
5am, to be determined by the SOLE after skilled and other
related
consulting the workers’ representatives and industrial
3. theoretical
employers. (Labor Code, Art. 154) occupations
4. instruction
2. Non-
5. Covered by a
Q: What are night workers entitled to? apprenticeable
6. Written
3. May be learned
apprenticeship
A: Under R.A. 10151, amendments to the Labor through practical
agreement with an
Code, they are entitled to - training on the job in
individual employer
1. A health assessment, at their request, a relatively short
or entity
without charge, and to receive advice on how period of time
7. Needs DOLE
to reduce health problems associated with 1. Shall not exceed 3
approval
their work months
8. Shall not exceed 6
a. Before taking up assignment as a night months
worker, or
Training Agreement
b. At regular intervals during such
Governed by Apprenticeship
assignment, or
Learnership Agreement
c. If they experience health problems during
Agreement
such an assignment which are not
Occupation
caused by factors other than the
performance of nightwork. learnable Apprenticeable
occupations occupations or any
2. Mandatory facilities consisting of semi­ trade, form of
a. Suitable first aid facilities skilled and other employment or
b. Arrangements where workers, when industrial occupation approved
necessary, can be immediately taken to occupations which for apprenticeship by
a place for appropriate treatment are non- the DOLE Secretary
c. Safe and healthful working conditions apprenticeable
d. Resting quarters Theoretical instructions
e. Transportation to and from work to Learnership may or Apprenticeship should
nearest point to residence. may not be j always be
f. These are subject to guidelines and supplemented by supplemented by
exceptions by DOLE6 related theoretical related theoretical
instructions instructions
6. Migrant Workers (see Part II, supra) Ratio of theoretical instructions and on
OJT
For both, the normal ratio is one hundred (100)
hours for every two thousand 2,000 hours of
practical or on-the-job training
Competency-based system
It is required that Not required
learnership be
implemented on the

PAGE 23 OF 89
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TESDA-approved
competency-based
system
Duration of training
Not exceeding three More than three (3)
(3) months of months, but not over Limitation on the number of trainees
practical training six (6) months
In leamership, a No similar cap is
Qualifications participating imposed in the case of
Law does not Art. 59 of the Labor enterprise is allowed apprenticeship
mention any Code: to take in learners
qualification 1. Be at least fifteen only up to a
(15) years of age; maximum of twenty
(IRR and R.A. percent (20%) of its
7610, as total regular
amended by R.A. workforce
7658) Option to employ
2. Possess
The enterprise is The enterprise is given
vocational
obliged to hire the only an “option” to hire
aptitude and
learner after the the apprentice as an
capacity for
lapse of the employee.
appropriate tests;
learnership period;
and
Wage rate
3. Possess the
ability to The wage rate of a learner or an apprentice is
set at seventy-five percent (75%) of the
comprehend and
statutory minimum wage.
follow oral and
written
instructions.
Circumstances justifying hiring of trainees
Art. 74. Pre­ Law does not
requisites before expressly mention any
iearners may be
validly employed:
1. When no
experienced
workers are -
........ available-;...............
2. The employment
of learners is
necessary to
prevent
curtailment of
employment
opportunities;
and
3. The employment
does not create
unfair competition
in terms of labor
costs or impair or
iower working
standards

PAGE 24 OF 89
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Q: What are the requisites for a valid
apprenticeship?
A: The following are the requisites for a valid
apprenticeship:
1. Qualifications of apprentice are met
2. The apprentice earns not less than 75% of the
prescribed minimum salary
3. Apprenticeship agreement duly executed and
signed
4. Apprenticeship program approved by the
Secretary of Labor; otherwise, the apprentice
shall be deemed as a regular employee
5. Period of apprenticeship not exceed 6 months
At the termination of the apprenticeship, the
employer is not required to continue the
employment.
8. Disabled Workers
Q: What are handicapped workers?
A: Those whose earning capacity is impaired by
age or physical or mental deficiency or injury,
disease or illness. (Labor Code, Art. 78)
There must be a link between the deficiency and
the work which entitles the employer to lessen the
worker’s wage. If the disability of the person is not
in any way related to the work for which he was
hired, he should not be so considered as a
handicapped worker.
Q: Define persons with disability under R.A.
7277 as amended by R.A. 9442 vis-a-vis
Impairment and Disability.
A: Persons with Disability are those suffering
from restriction or different abilities, as a result of
a mental, physical or sensory impairment, to
perform an activity in the manner or within the
range considered normal for a human being.
Q: What is the meaning of equal opportunity
for employment?
A: No disabled person shall be denied access to
opportunities for suitable employment. Qualified
disabled employees shall be subject to same
terms and conditions of employment and the same
compensation, privileges, benefits, fringe benefits,
PAGE 25 OF 89
LABOR LAW
incentives or allowances as a qualified able-
bodied person.
Q: What are the rights of PWDs?
A: Under the law, PWDs are entitled to equal
opportunity for employment. Consequently, no
PWD shall be denied access to opportunities for
suitable employment. A qualified employee with
disability shall be subject to the same terms and
conditions of employment and the same
compensation, privileges, benefits, fringe benefits,
incentives or allowances as a qualified able-
bodied person.
Q: What is the rule against discrimination on
employment?
A: No entity, whether public or private, shall
discriminate against a qualified PWD by reason of
disability in regard to job application procedures,
the hiring, promotion, or discharge of employees,
employee compensation, job training, and other
terms, conditions and privileges of employment.
(R.A. No. 7217, Sec. 32)
Q: What are incentives for employers that
employ disabled persons?
A: Private entities that employ disabled persons
who met the required skills or qualifications, either
as regular employee, apprentice or learner, shall
be entitled to an additional deduction, from their
gross income, equivalent to 25% of the total
amount paid as salaries and wages to disabled
persons.
Private entities that improve or modify their
physical facilities in order to provide reasonable
accommodation for disabled persons shall also be
entitled to an additional deduction from their net
taxable income, equivalent to 50% of the direct
costs of the improvements or modifications.
 ATENEO CENTRAL
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j IV. SOCIAL WELFARE LEGISLATION 1 Q: Who are considered as dependents under

the SSS and GSIS Law?
A. SSS ACT AND B. GSIS ACT
A: Under both laws, the following shall be
Q: What are the coverage and exclusions of considered as dependents:
the SSS and GSIS Law? 1. Legal spouse entitled for support;
2. Child, whether legitimate, legitimated, legally
A: adopted or illegitimate;
3. Parents receiving regular support from the
S
i
1. Employer - any
person, natural or
GSIS ACT member.

Q: Who are considered as beneficiaries?

A:
judicial, domestic or
SSS ACT GSIS ACT
foreign who carries on
1. Dependent 1. Legal
in the Philippines any
Spouse, until Dependent
trade, business,
remarriage; AND Spouse
industry undertaking,
2. Dependent until
or activity of any kind 1. Employer - the
Legitimate or remarriage
and uses the services national government,
Legitimated or ; AND
of another person who its political
Legally Adopted 2. Dependent
is under his orders as SUbdiViSiOnS,
and Illegitimate Children
regards employment. branches, agencies
Children.
‘ EXCEPT: or Instrumentalities,
SECOND 1. Dependent 1. Dependent
Government and any including GOCCs,
ARY Parents Parents
of its political and financial
2. Absent primary AND
subdivisions, Institutions with
and secondary 2. Legitimate
branches and original charters, the
beneficiaries, descendan
instrumentality, constitutional
any other person ts, subject
including GOCCs, i.e., commissions and the
designated by to
those under GSIS. judiciary
member as restrictions
2. Employee - any 2. Employee - any
secondary on
person who person receiving
beneficiary dependent
performs services compensation while
children
for an employer in service of an
who receives employer as defined OTHERS As to
compensation for herein, whether by BENEFITS,
such services, election or beneficiary
under the Act,
where there is an appointment
employer- benefits shall be paid
employee to Legal Heirs In
relationship. accordance with Law
3. Self-Employed - of Succession
considered both DEATH if no
employer and qualifies.
employee.

PAGE 26 OF 89
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Q: What are the exclusions from coverage? Q: What are the benefits under the SSS and
GSIS Law?
SSS ACT GSIS ACT

SSS ACT GSIS ACT

1. Employment purely
1. Members of the
casual and not for the 1. Monthly Pension
AFP and PNP, 1. ALL MEMBERS
purpose of 2. Dependents A. Life
subject to the
occupation, or Pension Insurance
condition that they
business of the 3. Retirement B. Retirement
must settle first
employer 4. Death C. Disability
their financial
Service performed on 5. Permanent D. Survivorship
obligation with the Disability E. Separation
or in connection with
GSIS; 6. Funeral F. Unemploym
alien vessel, if
2. Contractual 7. Sickness ent
employed when such
employees, who 8. Maternity (ONLY
vessel is outside of
have no 1st FOUR 2. JUDICIARY
Philippines DELIVERIES OR a. Life Insurance
employer-
Employees of MISCARRIAGES) ONLY - ALL TAX
employee
Philippine 9. Loan Grant EXEMPT
relationship with
government or
the agencies they
instrumentality or C. EMPLOYEES COMPENSATION - COVERAGE
serve;
agency thereof AND WHEN COMPENSABLE
3. Uniformed
4. Service performed in
personnel of the
the employ of a Q: Who are covered under the ECC Law?
Bureau of Fire
foreign government,
Protection (BFP);
or international A:
4. Uniformed
organizations, or 1. Every employer
personnel of the
wholly owned 2. Every employee not over 60 years old
Bureau of Jail 3. Any employee over 60 years of age if he had
instrumentality
Management and been paying contributions prior to age 60 and
employing workers in
Penology (BJMP); has not been compulsorily retired.
the Philippines or
5. Barangay and 4. An employee who is coverable by both the
employing Filipinos
Sanggunian GSIS and SSS shall be compulsorily covered
outside of the by both systems. (Sec. 2, Rule I, Amended
Officials who are
Philippines Rules on Employees’ Compensation,
not receiving fixed
5. Services performed implementing Title II, Book IV of the Labor
monthly
by temporary Code.)
compensation;
employees and other 5. Filipinos working abroad in the service of an'
6. Employees who
employees excluded employer as defined in Section 3 hereof shall
do not have be covered by the System, and entitled to the
by SSS regulation;
monthly regular same benefits as are provided for employees
employees of bona
hours of work and working in the Philippines. (Sec. 5, Rule I)
fide independent
are not receiving
contractors shall not
fixed monthly Q: What are the grounds for compensability
be deemed
compensation under the ECC law?
employees of the
(IRR of R.A. No.
employer engaging
8291, Rule II, Sec A:
the services of an
3, Par. 2) 1. For the injury and the resulting disability or
independent
death to be compensable, the injury must be
contractor the result of accident arising out of and in the
course of the employment.
2. For the sickness and the resulting disability or
death to be compensable, the sickness must
be the result of an occupational disease listed
under the Annex of the IR dealing with
occupational diseases with the conditions set
PAGE 27 OF 89
ATENEO CENTRAL
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therein satisfied. Otherwise, proof must be
shown that the risk of contracting the disease
is increased by the working conditions
D. DISABILITY AND DEATH BENEFITS
1. Temporary total disability
Q: When is an employee entitled to disability
benefits due to temporary total disability?
A:
As a result of injury or sickness, the employee is
unable to perform any gainful occupation for a
continuous period not exceeding 120
days. (Barko International v. Alcayno, G.R. No.
188190, 2014)
Q: What are the benefits the employee is
entitled to?
A:
Income benefit equivalent to 90% of his average
daily salary credit subject to the following:
1. Benefit shall not be less than PI 0 or more
than P90; not paid lower than 120 days
unless injury or sickness requires more
extensive treatment that lasts beyond 120
days not exceeding 240 days from the
onset of disability, in which case he shall
be paid benefit for Temporary Total
Disability during the extended period (PI 0
- P200 per day, maximum 120 days).
2. Benefit shall be suspended if employee
failed to submit monthly medical report
certified by attending
physician. (Amended Rules on
Employees' Compensation, Rule X, Sec.
3)
Q: What happens if he suffers from any
relapse?
The period covered by any relapse he suffers, or
recurrence of the illness, which results in disability
and is determined to be compensable, shall be
considered independent of, and separate from, the
period covered by the original disability. Such a
period shall not be added to the period covered by
his original disability (Amended Rules on
Employees' Compensation, Rule X, Sec. 2[b])
2. Permanent total disability
When is an employee entitled to disability
benefits due to permanent total disability?
A:
In means incapacity to perform gainful work which
is expected to be permanent. This status does not
PAGE 28 OF 89
LABOR LAW
require a condition of complete helplessness. Nor
is it affected by the performance of occasional odd
jobs.
There is permanent total disability if as a result of
the injury or sickness, the employee is unable to
perform any gainful occupation for a continuous
period exceeding 240 days. (Abaya v. ECC, G.R.
No. 64255, 1989)
Q: What is the test to determine whether an
employee suffers from permanent total
disability?
A: The test of whether an employee suffers from
“permanent total disability” is a showing of the
capacity of the employee to continue performing
his work notwithstanding the disability he
incurred. (Vicente v. ECC, G.R. No. 85024, 1991)
Q: What are instances of Permanent Total
Disability?
A:
1. Temporary total disability lasting
continuously for more than one hundred
twenty days, except as otherwise
provided for in the Rules;
2. Complete loss of sight of both eyes;
3. Loss of two limbs at or above the ankle or
wrist;
4. Permanent complete paralysis of two
limbs;
5. Brain injury resulting in incurable
imbecility or insanity; and
6. Such cases as determined by the Medical
Director of the System and approved by
the Commission. (Labor Code, Art.
198[c])
Q: When does temporary total disability
becomes permanent total disability?
A:
1. Declared by the company-designated
physician within 120 or 240 day treatment
period; or
2. in case of absence of such a declaration
either of fitness or permanent total
disability, upon the lapse of the 120 or 240
day treatment period, while the
employee’s disability continues and he is
unable to engage in gainful employment
during such period, and the company
physician faiis to arrive at a definite
assessment of the employee’s fitness or
disability (Alpha Ship Management
v. Calo, G.R. No. 192034, 2014)
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Q: What happens when the company-
designated physician and employee-
designated physician disagree?
A: If a doctor appointed by the seafarer disagrees
with the assessment of the company-designated
doctor, a 3rd doctor may be agreed jointly between
the employer and the seafarer, and the 3rd doctors’
decision shall be final and binding on both
parties. (Bahia Shipping v. Constantino, G.R. No.
180343, 2014)
Q: When can income benefits be suspended?
A: Monthly income benefits can be suspended
under any of the following conditions:
1. Failure of the employee to present himself
for examination at least once a year upon
notice by the System;
2. Failure to submit a quarterly Medical
Report certified by the attending
physician;
3. Complete or full recovery from his
permanent disability; or
4. Upon being Gainfully
employed. (Amended Rules on
Employees' Compensation, Rule XI, Sec.
2)
3. Permanent partial disability
Q: When is an employee entitled to disability
benefits due to permanent partial disability?
A: A disability is partial and permanent if as a
result of the injury or sickness, the employee
suffers a permanent partial loss of the use of any
part of his body. (Abaya v. ECC, G.R. No. 64255,
1989)
Q: Distinguished Permanent Partial Disability
from Permanent Total Disability
A: The test of whether an employee suffers from
“permanent total disability” is a showing of the
capacity of the employee to continue performing
his work notwithstanding the disability he
incurred. (Vicente v. ECC, G.R. No. 85024, 1991)
Q: When is an employee precluded from
claiming loss of future earning?
A: Once given disability compensation for loss of
earning capacity, an additional award for loss of
earnings (future earnings) no longer lies,
otherwise, it will result in double
PAGE 29 OF 89
LABOR LAW
recovery. (Magsaysay Maritime Corp.v. Chin, Jr.,
G.R. No. 199022, 2014)
NOTES: It must be shown that the injury or illness
was contracted during the term of employment.
The unqualified phrase “during the term” covers all
injuries or illnesses occurring during the lifetime of
the contract. (Wallem Maritime Services
v. Tanawan, G.R. No. 160444, 2012)
Reimbursement for Medical Expenses are
separate and distinct from Disability
Benefits. (Javier v. PH, Inc., G.R. No. 204101,
2014)
Q: When is an employee entitled to death
benefits?
A:
The System shall pay to the primary beneficiaries,
upon the death of the covered employee, an
amount equivalent to his monthly income benefit,
plus 10% thereof, for each dependent child, but
not exceeding 5, beginning with the youngest and
without substitution. The income benefit shall be
guaranteed for 5 years. (Amended Rules on
Employees' Compensation, Rule XIII, Sec.3)
Q: What are the conditions to entitlement?
A:
1. The employee has been duly reported to
the System;
2. He died as a result of an injury or
sickness; and
3. The System has been duly notified of his
death, as well as the injury or sickness which
caused his death.
NOTES: Employer shall be liable for the benefit if
such death occurred before the employee is duly
reported for coverage to the System.
If the employee has been receiving monthly
income benefit for permanent total disability at the
time of his death, the surviving spouse must show
that the marriage has been validly subsisting at the
time of his disability.
The cause of death must be a complication or
natural consequence of the compensated
Permanent Total Disability (Amended Rules on
Employees' Compensation, Rule XIII, Sec.1)
Q: What are the benefits the employee is
entitled to?
A:
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1. Pay the deceased’s beneficiary ail
outstanding obligations due the seafarer-
under the Contract.
2. Transport the remains and personal
effects of the seafarer to the Philippines at
employer’s expense EXCEPT:
a. If death occurred in a port where
local government laws or
regulations do not permit the
transport of such remains.
b. In case death occurs at sea, the
disposition of the remains shall be
handled or dealt with in
accordance with the master’s
best judgment.
In all cases, the employer/master shall
communicate with the manning agency to
advise for disposition of seafarer’s
remains.
3. Pay the beneficiaries of the seafarer
$1,000 in Philippine currency for burial,
expenses at the exchange rate prevailing
during the time of payment. (Sec. 20 (B)
(4), P O E A -S E C )
Q: What if the injury/incapacity/disability/death
is a result of a willful or criminal act or
intentional breach of duties?
A: Compensation and benefits shall not be
payable in case of injury, incapacity, disability or
death of the seafarer resulting from his willful or
criminal act or intentional breach of his duties.
PROVIDED HOWEVER, that the employer can
prove that such injury, incapacity, disability or
death is directly attributable to the seafarer. (Sec.
20 (C) POEA-SEC)
Q: When can a seafarer be disqualified to
receive disability/death benefits?
A: A seafarer who knowingly conceals a pre­
existing illness or condition in the Pre-
Employment Medical Examination (PEME) shall
be liable for misrepresentation and shall be
disqualified from any compensation and benefits.
This is likewise a just cause for termination of
employment and imposition of appropriate
administrative sanctions. (Sec. 20 (D) POEA-
SEC)
PAGE 32 OF 89
LABOR LAW
V. LABOR RELATIONS
A. RIGHT TO SELF-ORGANIZATION
Q: What does the Right to self-organization
include?
A: The right includes:
• Forming, joining, or assisting labor
organizations for the purpose of collective
bargaining through representatives of their
own choosing.
• To engage in lawful concerted activities for the
purpose of collective bargaining or for their
mutual aid and protection. (Labor Code, Art.
257)
1. Who may/ may not exercise the right
Q: Can security guards form, join and assist
labor organizations for purposes of collective
bargaining?
A: Yes. Linder RA 6715, security guards may
freely join a labor organization of the rank and file
orthat of the supervisory union, depending on their
rank.
Q: Do government employees have the right to
self-organization?
A: Yes. The right to self-organization applies to all
employees of all branches, subdivisions,
instrumentalities and agencies of the government
including GOCCs with original charters. It does not
cover members of the AFP, police officers,
policemen, firemen and jail guards.
The government employees’ right to organize is
limited to the formation of unions or associations
WITHOUT the right to strike. (Gesite v. Court of
Appeals, 444 SCRA 51, 2004)
Q: Do employees of non-stock, non-profit
organizations or alien employees have the
right to self-organization?
A: Yes. All persons employed in commercial,
industrial and agricultural enterprises and in
religious, charitable, medical, or educational
institutions, whether operating for profii or not,
shall nave the right to self-organization and to
form, join, or assist labor organizations of their own
choosing for purposes of collective bargaining.
Ambulant, intermittent and itinerant workers, self-
ATENEO CENTRAL
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employed people, rural workers and those without
any definite employers may form labor
organizations for their mutual aid and protection.
(Labor Code, Art. 253)
Q: Are positions with access to salary and
compensation excluded from the bargaining
unit?
A: No. In SMFI vs. SMC Supervisors and Exempt
Union (G.R. No. 146206, 2011), Confidential
employees are those who (1) assist or act in a
confidential capacity, in regard (2) to persons who
formulate, determine, and effectuate management
policies in the field of labor relations. They should
be excluded from the bargaining unit, as their
access to confidential information may become
the source of undue advantage. The Payroll
Master and employees with access to salary and
compensation data are not considered confidential
employees, because their positions do not involve
dealing with confidential labor relations
information.
Q: Do alien employees have the right to self­
organization and join or assist labor unions for
purposes of collective bargaining?
A: Yes. The following requisites must be present:
a. The alien employee must have a valid working
permit issued by DOLE; and
b. The alien employee must be a national of a
country which grants the same or similar rights
to Filipino workers, as certified by DFA or
which has ratified either ILO Convention No.
87 or ILO Convention No. 98. (Labor Code,
. Art. 284)
Q: What is the minimum membership
requirement for an independent union to be
valid?
A: The Labor Code merely requires a 20%
minimum membership during the application for
union registration. It does not mandate that a union
must maintain the 20% minimum membership
requirement all throughout its existence. (NAGA-
PEMA vs. NASECO, G.R. No. 165442, 2010)
PAGE 33 OF 89
LABOR LAW
Q: Who are prohibited to form, join and assist
labor organizations for the purpose of
collective bargaining?
A:
1. Managerial employees - refers to an
employee who is vested with powers or
prerogatives to lay down and execute
management policies or to hire, transfer,
suspend, layoff, recall, discharge, assign or
discipline employees. (Art. 255 LABOR
CODE)
2. Confidential employees - Confidential
employees are those who (1) assist or act in a
confidential capacity, (2) to persons who
formulate, determine, and effectuate
management policies in the field of labor
relations. The prohibition is based on the
DOCTRINE OF NECESSARY IMPLICATION
wherein the reason behind disqualifying
managerial employees to form unions can be
similarly applied to confidential employees
(NATU v. Torres, G.R. No. 93468,1994)
3. Member-Owner of Cooperatives - An owner
cannot bargain with himself or his co-owners.
Employees who are neither members nor co­
owners of the cooperative are entitled to
exercise the rights to self-organization,
collective bargaining and negotiation
(Benguet v. Ferrer-Calleja, G.R. No. 79025,
1989)
4. Employees of International Organizations
which have been granted diplomatic immunity
cannot unionize EXCEPT if the international
organizations expressly waived their immunity
(I.CMC v. Calleja, G.R. No. 85750, 1990).
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Q: Do employees h a v e a right NOT to join a
labor organization?
A: Yes. What the Constitution guarantees is the
right to form or join organizations. It is the
employee who should decide for himself whether
he should join or not in an association. The right to
join a union includes the right to abstain from
joining any union. (Victoriano v. Elizalde Rope
Workers’ Union, G.R. L-25246, 1974).
Q: What is the Doctrine of Necessary
Implication?
A: While Art. 255 of the Labor Code singles out
managerial employees as ineligible to join, assist
or form any labor organization, under the doctrine
of necessary implication, confidential employees
are similarly disqualified. This doctrine states that
what is implied in a statute is as much a part
thereof as that which is expressed. (NATU v.
Republic Planters Bank, G.R. No. 93468, Dec. 29,
1994)
Q: May the company file a petition for
cancellation of union registration?
A: (DEL CASTILLO) Yes, the company may be
considered a party-in-interest and file a petition for
cancellation of union registration where it appears
that the Union members are managerial
employees, and hence, absolutely prohibited from
forming a union (AIM v. AIM Faculty Association,
G.R. No. 207971, January 23, 2017)
Q: What is union busting?
A: (PERLAS-BERNABE) Under Article 276(c) of
the Labor Code, there is union busting when the
existence of the union is threatened by the
employer’s act of dismissing the former’s officers
who have been duly-elected in accordance with its
constitution and by-laws
2. Commingling/ Mixture Of Membership
Q: May managerial employees join a labor
organization?
A: No. Managerial employees are not eligible to
join, assist or form any labor organization (Labor
Code, Art. 255)
PAGE 34 OF 89
LABOR LAW
Q: May Supervisors join a labor organization?
A: Yes. HOWEVER, Supervisory employees shall
not be eligible for membership in the collective
bargaining unit of the rank-and-file employees but
may join, assist or form separate collective
bargaining units and/or legitimate labor
organizations of their own (Labor Code, Art. 255)
Q: What is the effect of inclusion of members
outside of the bargaining unit?
A: Said employees are automatically deemed
removed from the list of membership of said union.
(Labor Code, Art. 256)
3. Rights and Conditions Of Membership
a) Nature Of Relationship
(Y) Member - Labor Union
Q: What is the relationship between the union
and its members?
A: The relationship of the union and the member
is fiduciary in nature. The union may be
considered the agent of its members for the
purpose of securing for them fair and just wages
and good working conditions and is subject to the
obligation of giving the members as its principals
all information relevant to union and labor matters
entrusted to it. (Heirs of Teodolo Cruz v. CIR, G.R.
No. L-23331-32, Dec. 27, 1969)
(2) Local Union-Federation
Q: What is the relationship between the local
union and the federation?
A: Mere affiliation does not divest the local union
of its own personality, neither does it give the
mother federation the license to act independently
of the local union. It only gives rise to a contract
of agency, where the former acts in
representation of the latter. (Insular Hotel
Employees v. Waterfront Insular Hotel, G.R. No.
174040-41, Sept. 22, 2010)
ATENEO CENTRAL
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(i) Disaffiliation
Q: What is Disaffiliation and when may it be
exercised?
A: It is a right granted to affiliates to disassociate
from the mother union.
General Rule: a labor union may disaffiliate from
the mother union to form a local or independent
union ONLY during the 60 day freedom period
immediately preceding expiration of CBA.
Exception: Shift of allegiance of majority. In such
a case, however, the CBA continues to bind
members of the new or disaffiliated and
independent union up to the CBA’s expiration
date. (Tanduay Distillery Labor Union v. NLRC,
G.R. No. 75037, April 30, 1987) Either way, any
disaffiliation must be supported by the majority.
Otherwise, the act may constitute disloyalty.
(b) Substitutionary Doctrine
Q: What is substitutionary doctrine?
A: A new collective bargaining agency cannot
repudiate an existing collective bargaining
agreement, because the existing collective
bargaining agreement must be honored by a new
exclusive bargaining representative because of
the policy of stability in labor relations between an
employer and the workers. (General Maritime v.
South Sea Shipping Line, G.R. No. L-14689, July
26, 1960; 2010 Bar)
PAGE 35 OF 89
LABOR LAW
B. BARGAINING UNIT
Q: How is the CBU determined?
A: There are 4 factors considered in determining
the appropriate bargaining unit:
1. The will of the employees (Globe Doctrine)
2. Affinity and unity of the employees’ interest,
such as substantial similarity of work and
duties, or similarity of compensation and
working conditions (Substantial Mutual
Interests Rule)
3. Prior collective bargaining history; and
4. Similarity of employment status. (International
School Alliance of Educators v. Quisumbing,
G.R. No. 128845, 2000)
Q: What is the Globe Doctrine?
A: The Globe Doctrine, as is enunciated in the
Globe Machine & Stamping Company case (3
NLRB 294, 1937), refers to the method of
determining the will or desire of the employees
which is an important factor in determining the
appropriate bargaining unit. The best way to
determine such preference is through referendum
or plebiscite.
Q: What is the Community of Interest Rule?
A: According to the case of San Miguel
Corporation vs. Laguesma (G.R. 100485, 1994),
the Community of Interest Rule states that the
employees within an appropriate bargaining unit
must have commonality of collective bargaining
interests in the terms of employment and working
conditions as evidenced by the type of work they
perform,
NOTE: (DEL CASTILLO) The labor organization’s
charter certificate need not be certified under oath
in order for it to be considered a legitimate labor
organization (Samahang Manggagawa sa Charter
Chemical v. Charter Chemical, G.R. No. 169717,
March 16, 2011)
ATENEO CENTRAL
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C. BARGAINING REPRESENTATIVE
1. Determination of representation status
Q: How can a legitimate labor organization
become the Exclusive Bargaining
Representative/Agent?
A: It has to be certified as such through either:
1. Sole and exclusive bargaining agent
(SEBA) Certification proceeding - applies to
an unorganized establishment with only one
LLO
2. Certification Election - the process of
determining, through secret ballot, the sole
and exclusive bargaining agent of the
employees in an appropriate bargaining unit,
for purposes of collective bargaining.
3. Consent Election - one that is voluntarily
agreed upon by the parties, with or without the
intervention by the DOLE, in determining the
sole and exclusive bargaining representative
of the employees in an appropriate bargaining
unit. C0.0. No. 40-1-15.)
Q: How are the terms “certification election,”
“consent election,” “SEBA certification,” and
“run-off election” defined?
A: The following are the distinctions:
• Certification Election - process of
determining through secret ballot, the sole and
exclusive bargaining agent of the employees
in an appropriate bargaining unit, for purposes
of collective bargaining (Sec. 1 (x), Rule /,
Book V, Rules & Regulations Implementing
the Labor Code)
• Run-off Election - an election between the '
labor unions receiving the 2 highest number of
votes in a certification or consent election with
3 or more choices, where such a certified or
consent results in none of the 3 or more
choices receiving the majority of the valid
votes cast; provided that the total number of
votes for all contending unions is at least 50%
of the number of votes cast (DO 40-03)
• Consent Election - election voluntarily
agreed upon by the parties, with or without the
intervention of the DOLE, to determine the
issue of majority representation of all the
workers in the appropriate bargaining unit
(Rule I, D O No. 9, as amended by D.O. No.
40-03)
PAGE 36 OF 89
LABOR LAW
• SEBA Certification - process by which a
legitimate labor union is recognized by the
employer as the Sole and Exclusive
Bargaining Agent in a bargaining unit upon
Request of a Legitimate Labor Organization. It
may be done in an either an organized or
unorganized establishment. Unlike the
repealed voluntary recognition, SEBA
certification is allowed even when there are
more than 1 legitimate labor organizations in
an unorganized establishment.
Q: What are the Instances when certification
election is mandatory? What is the rational for
the legal mandate of making some instances of
certification election mandatory?
A: The Labor Code lists Articles 256, 257, 258
which prescribe a mandatory certification election.
• Article 256 - In organized establishments, a
petition for certification election can be filed,
questioning the majority status of the
incumbent bargaining agent
• Article 257 - In unorganized establishments,
a petition for certification election can be filed
and it shall automatically be conducted by the
Med-Arbiter
• Article 258 - When requested to bargain
collectively, an employer may file a petition for
certification election
• DO 4Q-I-15 - If the Regional Director finds the
establishment unorganized with more than
one (1) legitimate organization, he/she shall
refer the same to the election officer for the
conduct of certification election.
The purpose of certification election, as
enunciated in the case of DHL Philippines
Corporation United Rank and File Association -
Federation of Free Workers v. Buklod ng
Manggagawa ng DHL Philippines Corporation
(G.R. 152094, 2004) is precisely to ascertain the
majority of the employees’ choice of an
appropriate bargaining unit - to be or not to be
represented by a labor organization and, in the
affirmative case, by which one. The rationale for
the conduct of certification elections is to provide
democratic space to everyone in the bargaining
unit, and to ensure that the union has the support
of the majority.
ATENEO CENTRAL
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Q: Who may file Petition for Certification
Election?
A:
1. Legitimate Labor Organization
2. The Federation on behalf of its chapter (Arts.
268, 269, LC; 2012 Bar); or
3. The employer, when requested to bargain
collectively. (Art. 270, LABOR CODE)
Q: Can a “no-union” win in a certification
election?
A: Yes. “No Union” is always a choice in a
certification election. This proceeds from the
premise that the right to join a union carries with it
the concomitant right not to join a union. Hence, in
a certification election, the voter is required to put
a cross or check mark in the square opposite the
name of the union of his choice or “No Union” if he
does not want to be represented by any union.
Where majority of the valid votes cast results in
“No Union” obtaining the majority, the Med-Arbiter
shall declare such fact in the order, as prescribed
by Sec. 20, Rule IX, Book V, Implementing Rules
of the Labor Code, as amended by DO 40-03) But
in a run-off election, “No Union” shall not be a
choice. (Sec i Rule X, Book V, Implementing
Rules of the Labor Code)
Q: Is a certification election held by a labor
union, whose validity was being contested,
valid?
A: Yes. The court applied Legends International
vs. Kilusang Mangagawa (G.R. No. 169754, 2011)
the established rule correctly followed by the
public respondent that an order to hold a
certification election is proper despite the
pendency of the petition for cancellation of the
registration certificate of the respondent
union. The rationale for this is that at the time the
respondent union filed its petition, it still had the
legal personality to perform such act absent an
order directing the cancellation.”
Q: When may a Petition for CE be filed in an
unorganized establishment?
A: General Rule: Anytime. (Labor Code, Art. 269)
PAGE 37 OF 89
LABOR LAW
Exceptions:
1. When SEBA has been entered, or a valid
certification, consent or run-off election has
been conducted within 1 year prior to the filing.
2. Sustained negotiations in good faith with the
employer
3. Bargaining deadlock had been submitted to
conciliation or arbitration or had become the
subject of a valid notice of strike or lockout.
4. Registered CBA
5. May file only within 60 days prior to the
expiration of the CBA’s representational
aspect. (Rule VIII, Sec. 3, D.O. 40-03)
Q: What are the grounds for denying a Petition
for Certification Election?
A:
1. Non-registration in the DOLE
2. Non-submission of the Charter Certificate
upon filing of the PCE
3. Contract Bar/Election Bar - Filing the petition
before or after the freedom period of a duly
registered CBA; provided that the 60-day
period based on the original CBA shall not be
affected by any amendment, extension or
renewal of the CBA;
4. Certification Year Bar/1 2-Month Bar - Filing
a petition within one (1) year from the date of
recording of SEBA certification, or within the
same period from a valid certification, consent
or run-off election where no appeal on the
results is pending;
5. Where a duly certified union has commenced
and sustained negotiations with the employer
within the one-year period (Negotiation. Bar)
or where there exists a bargaining deadlock
which has been submitted to conciliation or
arbitration or has become the subject of a valid
notice of strike or lockout where an incumbent
or certified bargaining agent is a party
(Deadlock Bar);
6. In an organized establishment, the failure to
submit the 25% signature requirement to
support the filing of the PCE
7. Non-appearance of the petitioner for 2
consecutive scheduled conferences before
the mediator-arbiter despite due notice; and
8. Absence of ER-EE relationship between all
the members of the petitioning union and the
establishment where the proposed bargaining
unit is sought to be represented (D.O. No. 40-
F-03, 2008)
ATENEO CENTRAL
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Qi What is the difference between “contract
bar rule” and “deadlock bar rule?”
A: In contract bar rule, no petition for certification
election may be filed where there is an existing
CBA which has been duly registered. A petition for
certification election may on be filed within the last
60 days of the fifth year of the CBA. On the other
hand, in deadlock bar rule, no certification
election may be held if there is a pending
bargaining deadlock which has been submitted to
conciliation or arbitration or has become the
subject of a valid notice of strike or lockout. (Labor
Code, Art, 268; Capitol Medical v. Laguesma, G.R.
No. 118915, 1997)
Q: What is the “automatic renewal clause” in a
collective bargaining agreement?
A: Automatic renewal clause means that at the
expiration of the freedom period, the employer
shall continue to recognize the majority status of
the incumbent bargaining agent where no petition
for certification election is filed. It shall be the duty
of both parties to keep the status quo and to
continue in full force and effect the terms and
conditions of the existing agreement during the 60-
day period and/or until a new agreement is
reached by the parties. (Labor Code, Art. 264)
Q: What are the requirements for validity of a
certification election?
A:
1. The union should be legitimate which means
that it is duly registered and listed in the
registry of legitimate labor unions of the BLR
or that its legal personality has not been
revoked or cancelled with finality.
2. In case of organized establishments, the
petition for certification election is filed during
(and not before or after) the 60-day freedom
period of a duly registered CBA.
3. In case of organized establishments, the
petition complied with the 25% written support
of the members of the bargaining unit.
4. The petition is filed not in violation of any of the
four (4) bar rules (See above discussion
4U
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PAGE 38 OF 89
LABOR LAW
Q: Who may file and on what ground may a
protest arising from the conduct of
certification be filed?
A: Any party-in-interest and on a ground based on
the conduct or mechanics of election. (Sec. 12,
Rule IX, Book V)
Q: How is a protest done?
A:
1. Record the protest in the minutes of the
election proceedings; AND
2. Formalize and perfect the protest within five
(5) days after the close of the election
proceedings, formalize the protest with
specific grounds, arguments before the Med-
Arbiter. (Sec. 12, Rule IX, Book V)
Q: What are the election mechanics?
1. Preliminary Conference
The Med-Arbiter shall conduct a preliminary
conference and hearing within 10 days from the
receipt of the petition to determine the following:
a. The bargaining unit to be represented;
b. Contending labor unions;
c. Possibility of consent elections;
d. Existence of any of the bars to certification
election; and
e. Such other matters as may be relevant for the
final disposition of the case.
2. Order/Decision on the Petition
Within 10 days from the date of the last hearing,
the Med-Arbiter shall issue a formal order granting
or denying the petition.
in organized establishments, no order or decision
shall be issued during the freedom period.
The order granting the petition shall state the
following:
a. Name of the employer or establishment
b. Description of the bargaining unit
c. Statement that none of the grounds for
dismissal exists
d. Names of contending labor unions
6. Directive to an unregistered local/chapter or a
federation/national union representing an
unregistered iocai/chapter to personally
submit to the Election Officer its certificate of
creation at least 5 working days before the
ATENEO CENTRAL
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actual conduct of the certification election.
Non-submission of this requirement as
certified by the Election Officer shall disqualify
the local/chapter frpm participating in the
certification election
f. Directive upon the employer and the
contending union(s) to submit within 10 days
from receipt of the order, the certified list of
employees in the bargaining unit, or where
necessary, the payrolls covering the members
of the bargaining unit of at least 3 months prior
to the issuance of the order. (Labor Code IRR)
Q: When are run-off and re-run elections
conducted?
A: A run-off election refers to an election
between the labor unions receiving the 2 highest
number of votes in a certification or consent
election:
a. When such certification or consent election
provides for 3 or more choices (including "no
union")
b. Results in none of the contending unions
receiving a MAJORITY of the valid votes cast,
and
c. There are no objections or challenges which if
sustained can materially alter the results,
d. Provided, that the total number of votes for all
contending unions is at least 50% percent of
the number of votes cast.
e. "No Union" shall not be a choice in the run-off
election.
A re-run election occurs when a certification,
consent or run-off election results to a TIE
between the 2 choices, The choice receiving the
highest votes cast during the re-run election shall
be declared the winner and shall be certified
accordingly. (D.O. No. 40-1-15.)
NOTE FROM ATTY MANUEL: In relation to the
re-run election, ADD in relation to failure of
election.
Q: Who are qualified to vote in a
certification/consent election?
A: All employees who are members of the
appropriate bargaining unit 3 MONTHS PRIOR to
the PCE shall be eligible to vote.
An employee who has been dismissed from work
but has contested the legality of the dismissal in a
PAGE 39 OF 89
LABOR LAW
forum of appropriate jurisdiction at the time of the
issuance of the order for the conduct of a
certification election shall be considered a
qualified voter, unless his/her dismissal was
declared valid in a final judgment at the time of the
conduct of the certification election. (D.O. No. 40-
1-15.)
Q: Can probationary employees vote in a
certification/consent election?
A: Yes. All employees in the appropriate
bargaining unit, whether probationary or
permanent are entitled to vote. (National Union of
Workers In Hotels, Restaurant and Allied
Industries-Manila Pavilion Hotel Chapter v.
Secretary of Labor, July 31, 2009)
Q: What is the "double majority rule"?
A: For there to be a valid certification election,
majority of the bargaining unit must have voted
AND the winning union must have garnered
majority of the valid votes cast. (National Union of
Workers In Hotels, Restaurant and Allied
Industries-Manila Pavilion Hotel Chapter v.
Secretary of Labor, G.R. No. 181531, 2009)
Q: Is a certification election held by a labor
union, whose validity was being contested,
valid?
A: Yes. An order to hold a certification election is
proper despite the pendency of the petition for
cancellation of the registration certificate of the
respondent union. The rationale for this is that at
the time the respondent union filed its petition, it
still had the legal personality to perform such act
absent an order directing the cancellation.
(Legends International vs. Kilusang Mangagawa,
G.R. No. 169754, 2011)
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D. RIGHTS OF LABOR ORGANIZATiON
1. Check Off, Assessment Fees, Agency Fees
Q: When can Special Assessments and
Extraordinary Fees be (a) levied and (b)
checked off?
A: A special assessment or extraordinary fee may
be levied when authorized by a WRITTEN
resolution of a MAJORITY of all the members in a
general membership meeting duly called for the
purpose. The Secretary of the organization shall
record the minutes of the meeting including the (a)
list of all members present, (b) votes cast, (c)
purpose of the special assessment or fees and (d)
recipient of such assessment or fees. The record
shall be attested to by the president (Labor Code,
Art. 249)
A check-off is a process whereby the employer, on
agreement with the EBR, deducts union dues or
agency fees from the latter's wages and remits
them directly to the union. No special
assessments, attorney’s fees, negotiation fees or
any other extraordinary fees may be may be
checked off from any amount due to an employee
without
a. An INDIVIDUAL WRITTEN authorization duly
signed by the employee
b. The authorization should specifically state the
(1) amount, (2) purpose and (3) Beneficiary of
the deduction. (Labor Code, Art. 249)
Q: What is an agency fee?
A: This is an amount, equivalent to union dues,
which a nonunion member pays to the union
because he benefits from the CBA negotiated by
the union. It is an agency fee because in
negotiation the CBA, the union served as the
employees’ agent. (Labor Code, Art, 259)
Q: What are the rules on levying assessments
and collecting dues from union members?
1. Rule on Levy:
Article 241, par. (o) of the Labor Code provides
that no special assessment or extraordinary fees
may be levied upon the members of a labor
organization . unless authorized by a written
resolution of a majority of all the members at a
PAGE 40 OF 89
LABOR LAW
general membership meeting duly called for the
purpose. The secretary of the organization shall
record the minutes of the meeting including the list
of all members present, the votes cast, the
purpose of the special assessment or fees and the
recipient of such assessment or fees. The record
shall be attested to by the president.
2. Rule on Collection:
Article 241, par (n) of the Labor Code provides
that other than for mandatory activities under the
Code, no special assessments, attorney’s fees,
negotiation fees or any other extraordinary fees
may be checked off from any amount due to an
employee without an individual written
authorization duly signed by the employee. The
authorization should specifically state the amount,
purpose and beneficiary of the deduction.
A valid collection presupposes a valid levy.
2. COLLECTIVE BARGAINING
Q: What is a Collective Bargaining Unit (CBU)?
A: A CBU is a group of employees sharing mutual
interests within a given employer unit, comprised
of all or less than all of the entire body of
employees in the employer unit or any specific
occupation or geographical grouping within such
employer unit. (Rule i, § 1(d), Omnibus Rules)
Q: Does the Union have the authority to
compromise individual rights?
A: No. Absent a showing of the Union’s special
authority to compromise the individual claims of
private respondents for reinstatement and
backwages, there is no valid waiver of the
aforesaid rights. (Golden Donuts vs. NLRC, G.R.
No. 113666-68, 2000)
a) Duty to bargain collectively
Q: How is the ‘duty to bargain collectively’
defined?
A: The performance of a mutual obligation to meet
and convene promptly and expeditiously in good
faith for the purpose of negotiating an agreement
with respect to wages, hours of work, and all other
terms and conditions of employment including
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proposals for adjusting any grievance or questions
arising under such agreements if requested by
either party but such duty does not compel any
party to agree to a proposal or to make any
concessions. (Labor Code, Art. 263)
Q: What are the jurisdictional requirements to
trigger the duty to bargain collectively?
A: [MPD]
1. Possession of the status of Majority
representation of the employees’
representative
2. Proof of majority representation
3. Demand to bargain (Kiok Loy vs. NLRC, G.R.
No. L-54334, 22 January 1986)
Q: Would an agreement that effectively
abrogates the right of workers to self­
organization and collective bargaining be void
for being unconstitutional and against public
policy?
A: Generally, YES, however in Rivera vs. Espiritu
(G.R. No. 135547, 2002), the Court ruled that the
assailed PAL-PALEA agreement was the result of
voluntary collective bargaining negotiations
undertaken in the light of the severe financial
situation faced by the employer, with the peculiar
and unique intention of not merely promoting
industrial peace at PAL, but preventing the latter’s
closure. It was PALEA, as the exclusive bargaining
agent of PAL’s ground employees that voluntarily
entered into the CBA with PAL. It was also PALEA
that voluntarily opted for the 10-year suspension
of th.e CBA. Either case was the union’s exercise
of its right to collective bargaining. The right to free
collective bargaining, after all, includes the right to
suspend it.
Q: What is the difference between Surface
Bargaining and Blue-Sky Bargaining?
A: Surface Bargaining means conducting a
negotiation process without any intent to conclude
a CBA. Such intent can be derived from the totality
of the party’s words and actions either during or
outside the actual bargaining process.
Blue-Sky Bargaining refers to unrealistic and
unreasonable demands in negotiations by either
or both labor and management, where neither
concedes anything and demands the impossible.
PAGE 41 OF 89
LABOR LAW
(Standard Chartered Bank Employees Union v.
Confesor, 432 SCRA 308, 2004)
b) Collective Bargaining Agreement
Q: What is a Collective Bargaining Agreement
or CBA?
A: A CBA is executed upon the request of either
the employer or the exclusive bargaining
representative incorporating into the agreement
reached after negotiations with respect to wages,
hours of work, and all other terms and conditions
of employment, including the mandatory
provisions for grievance and arbitration
machineries. (Davao Integrated Stevedoring
Services v. Abarquez, G.R. 102132, 1993).
(1) Mandatory Provisions of the CBA
Q: What are the mandatory subjects of the
CBA?
A:
1. Wages
2. Hours of Work
3. Other Terms and Conditions of Employment
4. Grievance procedure (Labor Code, Art. 263)
Where the subject of the dispute is a mandatory
bargaining subject, either party may bargain to an
impasse as long as he bargains in good faith.
.Where the subject is non-mandatory, a party may
not insist on bargaining to the point of impasse. His
insistence may be construed as evasion of the
duty to bargain.
Q: What does the hold-over principle in CBA
mean?
A: Until a new agreement is reached by the
parties, both parties shall keep the status quo and
continue to abide with the provisions of the CBA,
even after its expiration. The automatic renewal
shall only apply to economic provisions of the CBA
and does not include the representation aspect of
the CBA. (Picop Resources Inc., v. Dequilla, G.R.
No. 172666, 2011)
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Q: When is the reckoning period fo r the CBA 2 u lp gy Employers

arbitral awards of the Secretary of Labor?
Q: What are the acts which constitute ULP by
A: In general, a CBA negotiated within 6 months employers?
after the expiration of the existing CBA retroacts to
A: Rundown of Acts Constituting Unfair Labor
the day immediately following such date and if
Practice of Employers (YIP-C2-D2-V2)
agreed thereafter, the effectivity depends on the
1. Interference
agreement of the parties.
2. Yellow dog condition
3. Contracting out
CBA arbitral awards granted after 6 months from
4. Company unionism
the expiration of the last CBA shall retroact to such
5. Discrimination for or against union
time agreed upon by both employer and the
membership
employees or their union.
6. Discrimination because of testimony
7. Violation of duty to bargain
Absent such an agreement as to retroactivity, the
8. Paid negotiation
award shall retroact to the first day after the six-
9. Violation of CBA
month period following the expiration of the last
day of the CBA should there be one.
Q: Can the commission of unfair labor
practices of an employer be subjected to
In the absence of a CBA, the Secretary's
criminal action?
determination of the date of retroactivity as part of
his discretionary powers over arbitral awards shall
A: Generally, no. ULPs are also criminal offenses
control.
against the State which shall be subject to
prosecution and punishment. However, no
Where the arbitral award was made to retroact to
criminal prosecution may be made without a prior
the first day after the six-month period following
final judgment in such administrative case shall
the expiration of the last day of the CBA because
neither be binding on the criminal case, nor be
of the enormous cost that the petitioner
considered as evidence of guilt. At best, it would
(MERALCO) will have to bear as a consequence
only serve as proof compliance of the requirement
of the full retroaction of the arbitral award to the
set forth in Article 247. (Labor Code, Art. 260)
date of expiry of the CBA. (MERALCO v.
Quisumbing, G.R. No. 127598, 2001)
Q: What is the successor-employer doctrine?
E. UNFAIR LABOR PRACTICE
A: The rule is that unless expressly assumed,
labor contracts such as employment contracts and
1. Nature and Aspects
collecting bargaining agreements are not
enforceable against a transferee of an enterprise,
Q: What is unfair labor practice?
labor contracts being in personam, thus binding
only between the parties. A labor contract merely
A: Unfair labor practices (hereinafter “ULP”)
creates an action in personam and does not create
violate the constitutional right of workers and
any real right that should be respected by their
employers to self-organization, are inimical to the
parties. This conclusion draws its force from the
legitimate interests of both labor and
right of an employer to select his employees and
management, including their right to bargain
to decide when to engage them as protected under
collectively and otherwise deal with each other in
our constitution, and the same can only be
an atmosphere of freedom and mutual respect.
restricted by law through the exercise of the police
(Arizaia v. CA, G.R. Nos. 43633-34, 1990)
power.

As a general rule, there is no law requiring a bona

fide purchaser of assets of an ongoing concern to
absorb in its employ to employees of the latter.
However, although the purchaser of the assets or

PAGE 42 OF 89
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enterprise is not legally bound to absorb the
employees of the seller of such assets or
enterprise, the parties are liable to the employees
if the transaction between the parties is colored
with bad faith. (Sundowner Development Corp. v.
NLRC, 180SCRA 14, 1989).
Q: Is a profit-sharing scheme implemented
only for managers and supervisors a form of
discrimination against rank and file
employees?
A: No. The Court in Wise and Co vs. Wise and Co
Union (G.R. No. 87672, 1989), ruled that there
could be no discrimination committed by petitioner
as the situation of the union employees is different
and distinct from the non-union employees.
Discrimination per se is not unlawful.
Q: What is a yellow-dog contract?
A: A yellow-dog contract is an agreement between
an employer and an employee in which the
employee agrees, as a condition of employment,
not to be a member of a labor union. (Labor Code,
Art. 260)
3. ULP By Labor Organizations
Q: What are the acts which are ULP by Labor
Organizations?
A:
1. To restrain or coerce employees in the
exercise of their right to self-organization.
2. To attempt to or cause an employer to
discriminate against an employee to whom
membership in the labor organization was
denied or to terminate an employee on any
ground other than the usual terms and
conditions under which membership or
continuation of membership is made available
to other members.
3. To refuse to bargain collectively with the
employer, if it is the representative of the
employee.
4. To attempt to or cause the employer to pay
money or other things of value, in the nature
of an exaction, for services which are not
performed or not to be performed. This
includes fees for union negotiations.
PAGE 43 OF 89
LABOR LAW
5. To ask or accept negotiations or attorney’s
fees from employers as part of the settlement
in any dispute.
6. Violation of CBA. (Labor Code, Art. 260)
F. PEACEFUL CONCERTED ACTIVITIES
1. By Labor Organization
a) Strike
Q: What are the statutory requirements for a
valid strike?
1. Status of the striking union - For a ULP strike
or bargaining deadlock, on lay a duly certified
or recognized bargaining representative may
declare such strike
2. Procedural requirements
a. Notice of strike - file notice of intent to
strike with the NCMB
b. Cooling-off Period must be observed
o ULP 15 days before intended strike
o Bargaining deadlock 30 days
3. Strike vote and filing of the same with the
NCMB
4. 7-day strike ban must be observed
5. Cause - a labor or industrial dispute (Labor
Code, Art. 279)
Compliance with all the legal requirements, as
stated by National Federation of Sugar Workers
vs. Ovajera) G.R. L-59743, 1982), are meant to be
and should be mandatory. Necessarily, a
strike must comply with the purpose and means
test which means that both the purpose and the
means to carry out the strike must be legal. The
purpose must be based solely on bargaining
deadlock (economic) and/or unfair labor practice
(political). The means to carry out the strike should
also be legal where there should be no illegal acts
committed in the course of the strike.
Q: What comprises a strike?
A: A strike comprises not only concerted work
stoppages but also slowdowns, mass leaves,
sitdowns, attempts to damage, destroy or
sabotage plant equipment. The fact that the
conventional term “strike" isn’t used is of no
moment. (Solidbank v. Gamier, G.R. No. 159460,
2010 )
ATENEO CENTRAL
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Q: Is the act of not showing up for work Q: What are the different kinds of strike?
considered a form of strike?
A:
A: Yes. The Court held in Toyota vs. NLRC (G.R. 1. LEGAL STRIKE - one called for a valid
158786, 2007) that the strikes were illegal purpose and conducted through means
because they were in reality temporary stoppages allowed by law.
of work perpetrated through the concerted action 2. ILLEGAL STRIKE - one staged for a purpose
of the employees who deliberately failed to report not recognized by law, or if fora valid purpose,
for work. Apart from the fact that they defied the conducted through means not sanctioned by
assumption order of the Secretary of DOLE, it was law
apparent that the ultimate goal of the union 3. ECONOMIC STRIKE - one staged by workers
members was to coerce Toyota to acknowledge to force wage or other economic concessions
them as the sole bargaining agent of the company. from the employer which he is not required by
law to grant (Consolidated Labor Association
Q: What are the effects of a strike on an of the Phil. vs. Marsman and Company, 11
employer-employee relationship? SCRA 589)
4. ULP STRIKE - one called to protest against
A: Strikers remain as employees while they are on the employer’s acts of unfair labor practice
strike; the effects of employment are merely enumerated in the Labor Code
suspended during that time. Mere participation of 5. SLOWDOWN STRIKE - one staged without
a worker in a lawful strike shall not constitute the workers quitting their work but merely
sufficient ground for termination of his slackening or by reducing their normal work
employment, even if a replacement had been hired output
by the employer during such lawful strike. 6. WILD-CAT STRIKE - one declared and
staged without filing the required notice of
Even if declared illegal, the strike need not have strike and without the majority approval of the
been attended with such a drastic consequence as recognized bargaining agent.
termination of employment of relationship. (Labor 7. SIT DOWN STRIKE - one where the workers
Code, Art. 279) stop working but do not leave their place

Q: What is a good faith strike? (1) Valid versus Illegal Strikes

A: As a general rule, where a union believes that Q: What are the differences between a legal
an employer committed ULP and the surrounding and illegal strike?
circumstances warranted such belief in good faith,
the resulting strike may be: considered legal ILLEGAL STRIKE LEGAL STRIKE
although, subsequently, such allegations of unfair Contrary to a specific Not contrary to a
labor practices were found to be groundless. prohibition of law, specific prohibition of
(Hotel Enterprises v. Samahan Manggagawa ng such as strike by law (government
Hyatt, G.R. No. 165756, 2009). government employees do not have
employees; or the right to strike)
Q: What is the difference between a sympathy Observes the
strike and a general strike? procedural
Violates a specific requirements, which are
A: Workers go on a sympathy strike to show their requirement of law mandatory, and non-
sympathy for certain workers who are on strike. (failure to comply observance makes
with the procedural strikes illegal
In a general strike, workers in the country or in a requirements set by i. notice of strike
re o
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strike to publicly protest a certain policy or action iii. strike vote

taken by the government. (,Azucena, Volume.!!) iv. strike vote report
Is declared for an Conducted for a lawful
unlawful purpose, purpose. The only two
PAGE 44 OF 89
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such as inducing the strikeable grounds that
employer to commit may validly support a
a ULP against non­ strike are:
union employees; or i. collective
bargaining
deadlock; and/or
ii. employer’s unfair
labor practice
Pursued within the
bounds of law or means
employed within the
bounds of law. Does not
commit any of the
Employs unlawful following activities
means in the pursuit i. act of violence,
of its objectives, coercion, or
such as widespread intimidation
terrorism of non­ ii. obstruct the free
strikers; or ingress to or egress
from the employer’s
premises for lawful
purposes
iii. obstruct public
thoroughfares
Strike is not committed
in violation of an
injunction Under Article
264 (o) of the Labor
Code, the holding of a
Declared in violation
strike or lock-out after
of an existing
assumption of
injunction; or
jurisdiction of the
President or the
Secretary of Labor or
after certification or
arbitration
Contrary to an
existing agreement, Not contrary to a valid
such as no-strike agreement between the
clause or conclusive parties
arbitration clause
Q: Can the issue of wage distortion be raised
in a notice of strike?
A: No, a strike is illegal if based on alleged salary
distortion. It is specifically provided in the law that
“any issue involving wage distortion shall not be a
ground for a strike/lockout.” Wage distortions
should be sought by voluntary negotiation or
arbitration. (IBM v. NLRC, G.R. No. 91980, 1991)
PAGE 45 OF 89
LABOR LAW
b) Picket
Q: What is picketing?
A: This involves the presence of striking workers
or their union brothers who pace back and forth
before the place of business of an employer
considered “unfair to organized labor.” The
purpose of such act is to peacefully persuade
other workers not to work in the establishment,
and customers not to do business there.
(Azucena)
Q: What are the requisites for lawful picketing?
A: Lawful purpose AND lawful means. (Azucena,
Volume II)
Q: Is picketing legal if non-employees of the
strike-bound employer participate in the
activity?
A: Yes. Peaceful picketing may be legally carried
out even in the absence of employer-employee
relationship for it is guaranteed under the freedom
of speech and of the press under the Constitution.
(PAFLU v. Coribel, G.R. No. L-25878, 1969)
Q: Can picketing activity be curtailed when
illegal acts are committed by the picketing
workers in the course of the activity?
A: The picketing must be peaceful as the law
provides that “no person engaged in picketing
shall commit any act of violence, coercion or
intimidation, or obstruct the free ingress to or
egress from the employer’s premises for lawful
purposes, or obstruct public thoroughfares. (Labor
Code, Art. 264 (e)) While the law provides that
police force should be kept out of the picket lines,
a proviso provides that nothing herein shall be
interpreted to prevent any public officer from taking
any measure necessary to maintain peace and
order, protect life and property, and/or enforce the
law and legal order.
Q: What is the Innocent Bystander Rule?
A: Innocent bystander: They are third parties
whose enjoyment of their premises is adversely
affected by activities of the union in picketing.
They are neutral to the labor dispute between the
union and the employer.
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The right of the union to picket may be regulated:
if such would result to create an impression
that an “innocent by-stander” is included in the
labor dispute or
if the picketing activity constitute to an
invasion of the rights of the “innocent by-
sXar\6ef(PAFLU v. Coribel, G.R. No. L-25878,
1969)
Q: If the picketing is peaceful and moving, can
it still be declared as an illegal strike?
A: Yes. Despite the validity of the purpose of a
strike and compliance with the procedural
requirements, a strike may still be held illegal
where the means employed are illegal. Protected
picketing does not extend to blocking ingress to
and egress from the company premises. That the
picket was moving, was peaceful and was not
attended by actual violence may not free it from
taints of illegality if the picket effectively blocked
entry to and exit from the company premises.
(Phinco Industries, Inc. vs. PILA, 628 SCRA 119,
2010)
2. By Employer
a) Lockout
Q: What are the requisites for a lawful lockout?
A: A lock-out is proper only when the following
requisites are met:
1. Notice of intention to declare a lock-out has
been filed with the DOLE;
2. At least thirty days has elapsed since the filing
of the notice before lock-out is declared;
3. An impasse has resulted in the negotiations;
and
4. The lock-out is not discriminatory (San Pablo
Oil Factory v. CIR, G.R. 147749, 2006).
Q: What are the provisions on illegal lockout?
i.e., when is it committed?
A:
1. Art. 263 (b): The right of legitimate labor
organizations to strike and picket and of
employers to lockout, consistent with the
national interest, shall continue to be
recognized and respected. However, no labor
union may strike and no employer may
PAGE 46 OF 89
LABOR LAW
declare a lockout on grounds involving inter­
union and intra-union disputes.
2. Art. 263 (c): In case of bargaining deadlocks,
the duly certified or recognized bargaining
agent may file a notice of strike or the
employer may file a notice of lockout with the
Ministry at least 30 day before the intended
date thereof.
3. Art. 263 (e): During the cooling-off period, it
shall be the duty of the Ministry to exert all
efforts at mediation and conciliation to effect a
voluntary settlement. Should the dispute
remain unsettled until the lapse of.-the requisite
number of days from the mandatory filing of
the notice, the labor union may strike or the
employer may declare a lockout.
4. Art. 263 (f): A decision to declare a lockout
must be approved by a majority of the board
of directors of the corporation or association or
of the partners in a partnership, obtained by
secret ballot in a meeting called for that
purpose. The decision shall be valid for the
duration of the dispute based on substantially
the same grounds considered when the strike
or lockout vote was taken. The Ministry may,
at its own initiative or upon the request of any
affected party, supervise the conduct of the
secret balloting. In every case, the union or the
employer shall furnish the Ministry the results
of the voting at least seven days before the
intended strike or lockout, subject to the
cooling-off period herein provided.
D.O. No. 40-03 as amended by D.O. No. 40A-03
A strike or lock-out may be declared in cases of
bargaining deadlocks and ULP. Violations of
CBAs, except flagrant and/or malicious refusal to
comply with its economic provisions, shaii not be
considered ULP and shall not be strikeable. No
strike or lock-out may be declared on grounds
involving inter-union and intra-union disputes or
without first having filed a notice of strike or lock­
out or without the necessary strike or lock-out vote
having been obtained and reported to the Board.
Neither will a strike, or lock-out be declared after
assumption of jurisdiction by the Secretary or after
certification or submission of the dispute to
compulsory or voluntary arbitration or during the
pendency of cases involving the same grounds for
the strike or iock-out. (Ruie XXii, Sec. 5)
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3. Assumption Of Jurisdiction
Q: What is the Nature of an Assumption Order?
A: The power to issue assumption or certification
orders is an extraordinary authority granted to the
President and to his alter ego, the DOLE
Secretary, the exercise of which is strictly limited
to national interest cases. (Tabangao Shell
Refinery Employees Association v. Pilipinas Shell
Petroleum Corp., G.R. No. 170007, 2014)
Q: When and under what circumstances can
the Secretary of Labor issue an assumption of
jurisdiction order?
A: The Secretary of Labor may issue an
assumption of jurisdiction order when in his
opinion there exists a labor dispute causing or
likely to cause a strike or lock-out in an industry
indispensable to the national interest. (Labor
Code, Art. 278)
The impending strike in Philtranco, a public
transportation company whose business is
imbued with public interest, required that the
Secretary of Labor assume jurisdiction n over the
case, which in fact, he did. (Philtranco Service
Enterprises v. Philtranco Workers, G.R. No.
180692, February 16, 2014)
Q: What are the legal effects of an assumption
of jurisdiction order?
A: The legal effects are the following:
Automatically enjoins the intended or impending
strike or lock-out; and
If one has already taken place, all striking or
locked-out employees shall immediately return to
work and the employer shall immediately resume
operations and readmit all workers under the same
terms and conditions prevailing before the strike or
lock-out. (Labor Code, Art. 278)
Q: Is there a need to issue a return-to-work
order after the issuance of an assumption of
jurisdiction order?
A: No. The moment the Secretary of Labor
assumes jurisdiction over a labor dispute in an
industry indispensable to national interest, such
PAGE 47 OF 89
LABOR LAW
assumption shall have the effect of automatically
enjoining the intended or impending strike. It was
not even necessary for the Secretary of Labor to
issue another order directing them to return to
work. (Telefunken Semiconductors Union v. CA,
G.R. 143013-14, 2000).
Q: Requirements of a Valid Assumption Order
or Certification Order
A:
1. There exist a labor dispute causing or likely to
cause a strike or lockout; and
2. That the labor dispute is in an industry
indispensable to the national interest. (Labor
Code, Art. 278[g])
Q: What are 'national interest’ industries?
A: The NLRC vests the President of the
Philippines and the Secretary of Labor almost
unlimited discretion to determine what industries
may be considered as indispensable to the
national interest.
Industries Indispensable to the National
Interest
1. Hospital Sector
2. Electric Power Industry
3. Water Supply Services, to exclude small water
supply such as bottling and refilling stations
4. Air traffic control
5. Such other industries as maybe
recommended by the National Tripartite
Peace Council (TIPC) (DO No.40-H-13)
Examples of “National Interest” disputes:
1. Nestle Philippines, Inc. is engaged in an
undertaking affected with public interest being
one of the largest manufacturers of food
products. (Union of Filipro v. NLRC, G.R. No.
91025, 1990 )
2. Academic institutions (Philippine School of
Business Administration v. Noriel, G.R. No.
80648, 1988)
3. A company supplying the sulfate requirements
ofMWSS
4. Banking is expressly classified by the General
Banking Law as an industry indispensable to
the national interest.
5. However, the Court ruled that the production
of telephone directories is not an industry
affecting the national interest. (GTE
Directories Corp v. Sanchez, G.R. No. 76219,
1991)
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Q: Are retrenched employees excluded from
the coverage of a return-to-work order?
A: No, in YSS Employees Union vs. YSS
Laboratories (G.R. 155125, 2009), the primary
reason why the strike was conducted in the first
place was to protest the implementation of the
retrenchment program. The determination of who
among the strikers could be admitted back to work
cannot be made to depend upon the discretion of
employer, Accordingly, when the Secretary of
Labor directed YSS Laboratories to accept all the
striking workers back to work, the Secretary did
not exceed his jurisdiction, or gravely abuse the
same, said the Supreme Court.
Q: What happens upon defiance of the
assumption or certification order?
A: Non-compliance shall be considered as an
illegal act committed in the course of strike or
lockout. (Union of Filipro Employees v. Nestle
Phils., Inc., G.R. Nos. 88710-13, 1990). Thus, they
may be subject to:
1. Immediate disciplinary action
2. Dismissal / loss of employment status
3. Criminal prosecution (San Juan De Dios
Educational Foundation Employees Union-
Alliance of Filipino Workers v. San Juan De Dios
Educational Foundation, Inc., G.R. No. 143341,
May 28, 2004)
Q: What are the objectives of the Secretary of
Labor in certifying a labor dispute to the
NLRC?
A: While the assumption by the Secretary of Labor
of jurisdiction over the labor dispute has, for its
main purpose, the resumption of the employer’s
operations so essential to national interest or to
the right of the patients to life and health, the
referral by the Secretary of Labor of the labor
dispute to the NLRC for compulsory arbitration
was in recognition of the intense need to settle the
nagging dispute between the parties so that the
national interest could be enhanced by lasting and
enduring industrial peace in the employer’s
establishment. (Marcopper Mining Corporation v.
Brillantes, G R 1193817 1996)
PAGE 48 OF 89
LABOR LAW
| Vi. POST-EMPLOYMENT
A. EMPLOYER-EMPLOYEE RELATIONSHIP
1. Tests To Determine Employer-Employee
Relationship
Q: How do you determine the existence of an
employer-employee relationship?
A: Through the four-fold test. The elements are:
1. The selection and engagement of the
employee;
2. The payment of wages;
3. The power of dismissal; and
4. The power to control the employee's conduct
(Means and Methods)
Q: What is the most important element of the
four-fold test?
A: (PERLAS-BERNABE) The control test is
commonly regarded as the most important
indicator of the presence or absence of an
employer-employee relationship. Under this test,
an employer-employee relationship exists where
the person for whom the services are performed
reserves the right to control not only the end
achieved, but also the manner and means to be
used in reaching that end. (Century Properties,
Inc. v. Babiano, G.R. No. 220978, Juiy 5, 2016)
HOWEVER: Not every form of control that a hiring
party imposes on the hired party is indicative of
employee-employer relationship. Rules and
regulations that merely serve as guidelines
towards the achievement of a mutually desired
result without dictating the means and methods of
accomplishing it do not establish employer-
employee relationship (Royale Homes
Marketing Corp v. Alcantara, G.R. No. 195190,
2014)
NOTE: There is a secondary test - The Economic
Reality/Dependence Test
Existing economic conditions between the parties
are used to determine whether EER exists. This is
resorted to when there is serious doubt as to the
relationship of the employee with the employer.
(Francisco v. NLRC, G.R. 170087, 2006)
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The standard of “economic dependence” of the
employee is whether the worker is dependent on
the alleged employer for his continued
employment in that line of business. (Orozco v.
CA, G. R. No. 155207, 2008)
Thus, the determination of the relationship
between employer and employee depends upon
the circumstances of the whole economic activity,
such as:
1. The extent to which the services performed are
an integral part of the employer’s business;
2. The extent of the worker’s investment in
equipment and facilities;
3. The nature and degree of control exercised by
the employer;
4. The worker’s opportunity for profit and loss;
5. The amount of initiative, skill, judgment or
foresight required for the success of the
claimed independent enterprise;
6. The permanency and duration of the
relationship between the worker and the
employer; and
7. The degree of dependency of the worker upon
the employer for his continued employment in
that line of business. (Francisco v. NLRC,
G.R. No. 170087, 2006)
2. Kinds of Employment
Q: What are the different kinds of
employment?
1. Probationary - one who is on trial by an
employer during which the employer determines
whether or not he is qualified, for permanent
employment. (Labor Code, Art. 29.6)
General Rule: Not to exceed 6 months
Exceptions:
a. Covered by an apprenticeship agreement
stipulating a longer period
b. Voluntary agreement of parties (especially
when nature of work requires a longer period)
c. The employer gives the employee a second
chance to pass the standards set
d. When a longer period is required and
established by company policy
The employer and employee may extend by
agreement the probationary period of employment
beyond 6 months, but it cannot be ad infinitum.
PAGE 49 OF 89
LABOR LAW
(Mariwasa Manufacturing v. Leogardo, G.R. No.
74246, 1989)
2. Regular
Regular employment is an arrangement where the
employee:
1. Has been engaged to perform tasks usually
necessary or desirable to the usual trade or
business of the employer;
2. Has rendered at least 1 year of service,
whether such service is continuous or broken,
with respect to the activity in which he is
employed; or
3. When an employee is allowed to work after a
probationary period (Labor Code, Art. 295)
The primary standard of determining regular
employment is the reasonable connection
between the particular activity performed by the
employee to the usual trade or business of the
employer. (Lopez v. MWSS, G.R. No. 154472,
2005)
3. Project employment - One whose employment
has been fixed for a specific project or
undertaking, the completion of which has been
determined at the time of engagement of the
employee. (Labor Code, Art. 295)
(PERLAS-BERNABE) The project could either
be
1. A particular job or undertaking that is
within the regular or usual business of the
employer company, but which is distinct
and separate, and identifiable as such,
from the other undertakings of the
company; or
2. A particular job or undertaking that is n o t.
within the regular business of the
corporation. (Lopez v. Irvine Construction
Corp., G.R. No. 207253, August 20, 2014)
4. Seasonal - Work or services to be performed is
seasonal in nature and the employment is for the
duration of the season (Labor Code, Art. 295)
5. Casual
General Rule: Activity performed is not usually
necessary or desirable in the usual business or
trade of the employer, not project and not seasonal
Exception. If he has rendered at least 1 year of
service, whether such service is continuous or
broken, he is considered a REGULAR employee
with respect to the activity in which he is employed
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and his employment shall continue while such
activity exists. (Labor Code, Art. 295)
6. Fixed-term
Fixed-term employment was repealed by Labor
Code. But the Civil Code, a general law, allows
fixed-term employment. (Brent School, Inc. v.
Zamora, G.R, No. 48494, 1990)
The elements of a valid fixed-term employment are
the following:
1. The fixed period of employment was
knowingly and voluntarily agreed upon by the
parties without any force, duress, or Improper
pressure being brought to bear upon the
employee and absent any other
circumstances vitiating his consent;
2. It satisfactorily appears that the employer and
the employee dealt with each other on more or
less equal terms with no moral dominance
exercised by the former or the latter.
Q: Does the DOLE Secretary have the power to
decide whether or not an employer-employee
relationship exists?
A: Yes. DOLE now has the authority to determine
the existence of an employer-employee
relationship. Under Article 128(b) of the Labor
Code, as amended by RA 7330, the DOLE is fully
empowered to make a determination as to the
exercise of an employer-employee relationship in
the exercise of its visitorial and enforcement
power, subject to judicial review, not review by the
NLRC (see People’s Broadcasting Service v.
Secretary of Labor, G.R. 179652, 2012)
Q: What limitations, if any, do law and
jurisprudence impose on an employer’s right
to terminate the services of a probationary
employee?
A: A probationary employee may be terminated at
any time but only for just and authorized causes.
Termination is also valid, according to Article 281
of the Labor Code, when such employee fails to
qualify as a regular employee in accordance with
reasonable standards made known by the
employer to the employee at the time of his
engagement.
(PERLAS-BERNABE) Thus, the services of an
employee who has been engaged on probationary
PAGE 50 OF 89
LABOR LAW
basis may be terminated for any of the following: a
just OR an authorized cause; AND when he fails
to qualify as a regular employee in accordance
with reasonable standards prescribed by the
employer. Corollary thereto, Section 6(d), Rule I,
Book VI of the Implementing Rules of the Labor
Code provides that if the employer fails to inform
the probationary employee of the reasonable
standards upon which the regularization would be
based on at the time of the engagement, then the
said employee shall be deemed a regular
employee (Abbott Laboratories, Phils, v. Alcaraz,
G.R. No. 192571, July 23, 2013).
In all cases of probationary employment, the
employer shall make known to the employee the
standards under which he will qualify as a regular
employee at the time of his engagement. Where
no standards are made known to the employee at
the time he shall be deemed a regular employee.
(Aberdeen Court vs. Agustin, G.R. 149371, 2005).
Double or successive probation is not allowed.
The evil sought to be prevented is to discourage
scheming employers from using the system to
circumvent the mandate of the law on
regularization and make It easier for them to
terminate their employees. (Holiday Inn Manila vs.
NLRC, G.R. No. 109114, 1993)
The determination of "adequate performance" is
not, in all cases, measurable by quantitative
specification. It is also hinged on the qualitative
assessment of the employee’s work; by its nature,
this largely rests on the reasonable exercise of the
employer’s management prerogative. A good
example would be. the case of probationary
employees whose tasks involve the application of
discretion and intellect, such as - to name a few -
lawyers, artists, and journalists. (Abbott v. Alcaraz,
G.R. No. 192571, 2014)
(The fixed-term character of employment
essentially refers to the period agreed upon
between the employer and the employee;
employment exists only for the duration of the term
and ends on its own when the term expires. In a
sense, employment on probationary status also
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meaning "probation" carries in Philippine labor law
— a maximum period of six months, or in the
academe, a period of three years for those
engaged in teaching jobs. Their similarity ends
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there, however, because of the overriding 3. Subcontracting versus Labor-Only

meaning that being "on probation" connotes, Contracting
i.e., a process of testing and observing the
character or abilities of a person who is new to Q: Differentiate legitimate contracting from
a role or job. (Colegio del Santissimo Rosario vs. labor-only contracting?
Rojo, G.R. 170388, September 3, 2013)
Job Contracting v. Labor-Only Contracting
NOTE: For teachers on probationary employment, JOB LABOR-ONLY
in which case a fixed term contract is not CONTRACTING CONTRACTING
specifically used for the fixed term it offers, it is Flas sufficient
incumbent upon the school to have not only substantial capital OR Flas NO substantial
set reasonable standards to be followed by
investment in capital OR investment
said teachers in determining qualification for
regular employment, the same must have also machinery, tools or in the form of
been communicated to the teachers at the start equipment directly or machinery, tools or
of the probationary period, or at the very least, intended to be related equipment
at the start of the period when they were to be to the job contracted
applied. These terms, in addition to those Carries an
expressly provided by the Labor Code, would independent business Flas no independent
serve as the just cause for termination of the different from the business
probationary contract. The specific details of this employer’s
finding of just cause must be communicated to the
Undertakes to
affected teachers as a matter of due process.
perform the job under Performs activities
Corollarily, should the teachers not have been
apprised of such reasonable standards at the its own account and directly related to the
time specified above, they shall be deemed responsibility, FREE main business of the
regular employees. (Colegio del Santissimo from the principal’s principal
Rosario vs. Rojo, G.R. 170388, Sep. 3, 2013) control
Principal treated as
Q: What are the rules on students who are NO EER except when
direct employer of the
allowed to work in their schools in exchange the contractor or
person recruited in all
for a free education (is there an employer- subcontractor fails to
instances (contractor
employee relationship)? pay the employees’
is deemed agent of the
wages.
principal)
A: There is no EER between the student and the LIMITED liability
school, college or university, where the student (principal solidarily
work for the latter in exchange for the privilege to liable with contractor Principal's liability
study free of charge, provided the student is given or subcontractor only extends to all rights,
real opportunity, including such facilities as may be when latter fails to duties and liabilities
reasonable, necessary to finish their chosen comply with under labor standard
courses under such arrangement. (IRR Labor requirements as to laws including the right
Code, Sec. 14, Rule X, Book III) unpaid wages and to self-organization
other labor standards
violations.
PERMISSIBLE PROHIBITED
(D.O. No. 174-17)

Q: What are the elements in labor-only

contracting?

A: The elements are as follows -

1. The contractor does NOT
a. have substantial capital
-or-

PAGE 51 OF 89
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b. have investments in the form of tools,
equipment, machineries, supervision,
work premises among others, and
2. The contractor’s or subcontractor’s
employees recruited and placed are
performing activities which are directly
related to the main business operation of
the principal; or
3. The contractor or subcontractor does not
exercise the right of control over the work of
the employee (D.O. No. 174-17, Sec. 5)
Performing activities directly related to the
principal business of the employer is only one of
the two indicators that "labor-only" contracting
exists; the other is lack of substantial capital or
investment. Labor-only contracting exists when
any of the two elements is present. (Quintanar,
e ta l v. Coca-Cola, G.R. No. 210565, 2016)
Q: How does one determine whether or not
there is labor-only contracting?
A: To determine whether a contractor is engaged
in labor-only contracting or permissible job
contracting, “the totality of the facts and the
surrounding circumstances of the case are to be
considered.”
The law presumes a contractor to be a labor-
only contractor and the employees are not
expected to prove the negative fact that the
contractor is a labor-only contractor. As held
in Alllin v. Petron Corporation, “where the
principal is the one claiming that the contractor is
a legitimate contractor, the burden of proving the
supposed status of the contractor rests on the
principal."(Petron v. Caberte. G.R. No. 182255,
June 15, 2015)
Q: What are the effects of labor-only
contracting?
A: Worker supplied by agency (contractor)
becomes employee of the client company. Client
company is liable to the worker as if he/she had
been directly employed. (PBCom v. NLRC, G.R.
No. 66598, 1986).
Furthermore, agency-hired employee becomes
entitled to benefits under the CBA of client
company. (Tabas, et al. v. California
PAGE 52 OF 89
LABOR LAW
Manufacturing Company, Inc., G.R. No. 80680,
1999).
Q: What is a trilateral relationship in job
contracting?
A: It refers to a job contracting or subcontracting
arrangement where there is a contract for a
specific job, work or service between the principal
and the contractor, and a contract of employment
between the contractor and its workers.
Three parties involved in contracting or
subcontracting arrangements:
1. Principal - who decides to farm out the job,
work or service to a contractor
2. Contractor - who has the capacity to
independently undertake the performance of
the job, work or service
3. Workers - who are engaged by the contractor
to accomplish the job, work or service
Q: What is the liability of a principal in a labor
only contracting agreement?
A:
1. Liable directly as an employer for all money
claims including those punitive in nature
2. Liable to pay employees of supposed
contractor the same rate for regular
employees performing similar functions,
because they are deemed employees of the
principal now
3. Liable for salary differentials
The labor-only contractor is solidarily liable with
the principal. Thus, releases, waivers, and
quitclaims in favor of the contractor redounds to
the benefit of the principal. (Labor Code, Arts. 106-
109)
B. TERMINATION OF EMPLOYMENT
Q: What is security of tenure?
A: it is a constitutionally protected right and
applies to all workers (PHIL. CONST, art. XIII, Sec.
3)
Security of tenure is the constitutional right granted
to the employee, that the employer shall not
terminate the services of the employee except for
just cause or when authorized by law. it extends to
ATENEO CENTRAL
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regular (permanent) as well as non-regular
(temporary) employment. (Kiamco v. NLRC, G.R.
No. 129449, 1999)
C. Termination By Employee
1. Resignation versus Constructive dismissal
Q: What is constructive dismissal?
A: It exists when an act of clear discrimination,
insensibility or disdain on the part of the employer
has become so unbearable as to leave an
employee with no choice but to forego continued
employment. In the case of Banares vs.
TAWTRASCO (694 SCRA 312, 2013), the SC
found that by not providing proper office space,
office supplies, or a living allowance after being
transferred to the province, there was a clear case
of constructive dismissal.
Q: When is constructive dismissal considered
an involuntary resignation?
A:
1. Continued employment becomes impossible,
unreasonable, or unlikely;
2. There is a demotion in rank or diminution in
pay; or
3. Clear discrimination, insensibility or disdain by
an employer becomes unbearable to the
employee. (Leonardo v. NLRC, G.R. No.
125303, June 16, 2000)
Q: When is there Constructive Dismissal
despite voluntary resignation?
A: Constructive dismissal exists when an act of
clear discrimination, insensibility or disdain on the
part of the employer has become so unbearable
as to leave an employee with no choice but to
forego continued employment. (McMer v. NLRC,
G.R. No. 193421, 2014)
Q: What are the legal implications of an
employee being on “floating status?”
A: Being placed on floating status is legal. It
means “waiting to be posted.” However, this status
must not exceed 6 months. Otherwise, it would
amount to constructive dismissal. (Reyes vs. RP
Guardians Security Agency, Inc., 695 SCRA 620,
2013).
PAGE 53 OF 89
LABOR LAW
(PERLAS-BERNABE) The concept of temporary
"off-detail" or "floating status" of security guards
employed by private security agencies is a form of
a temporary retrenchment or lay-off. This relates
to the period of time when security guards are in
between assignments or when they are made to
wait after being relieved from a previous post until
they are transferred to a new one. (Quillopa v.
Quality Guards Services, G.R. No. 213814,
December 2, 2015)
When a security guard is placed on a "floating
status," he or she does not receive any salary or
financial benefit provided by law.
Q: Does the concept of temporary off-detail or
floatinq status for security auards mean
severance of emplover-emplovee
relationship?
A: (PERLAS-BERNABE) Placing a security guard
in temporary "off-detail" or "floating status" is part
of management prerogative of the employer-
security agency and does not, perse, constitute a
severance of the employer-employee relationship.
(Quillopa v. Quality Guards Services, G.R. No.
213814, December 2, 2015)
Q: What shall be the period of the floating
status?
A: (PERLAS-BERNABE) Floating status must not
exceed 6 months. A security guard must not
. remain in a floating status for a period of more than
six (6) months; otherwise, he is deemed
terminated. (Quillopa v. Quality Guards Services,
G.R. No. 213814, December 2, 2015)
D. Termination By Employer
1. Just Causes
Q: What are the various just causes for
termination?
A: Just causes: (SoMe WiD GAN FWeT CO)
1. Serious Misconduct or Willful Disobedience by
the employee of the lawful orders of his
employer or representative in connection with
his work (work-related)
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2. Gross And habitual Neglect by the employee
of his duties
3. Fraud or Willful breach by employee of the
Trust reposed in him by his employer or duly
authorized representative (not mere
suspicion)
4. Commission of a Crime or offense by the
employee against the person of his employer
or any immediate member of his family or duly
authorized representative
5. Other analogous cases (Labor Code, Art. 297)
Q: What are the elements of serious
misconduct?
A:
1. There must be misconduct;
2. The misconduct must be of such grave and
aggravated character;
3. Relates to the performance of the employee’s
duties; and
4. A showing that the employee becomes unfit to
continue working for the employer. (D.G. No.
147-15, Sec. 5.2[a])
Q: is theft of company property a serious
misconduct?
A: (DEL CASTILLO) YES. Jurisprudence has
classified theft of company property as a serious
misconduct and denied the award of separation
pay to the erring employee. The employee in this
case attempted to steal the property of her long­
time employer. (Reno Foods v. Nagkakaisang
Lakas ng Manggagawa-Katipunan, G.R. No.
164016, March 15, 2010)
Q: What is the ‘totality of infractions’ doctrine?
A: The totality of infractions or the number of
violations committed during the period of
employment shall be considered in determining
the penalty to be imposed upon an erring
employee. Fitness for continued employment
cannot be compartmentalized into tight little
cubicles of aspects of character, conduct and
ability separate and independent of each other.
While it may be true that petitioner was penalized
for his previous infractions, this does not and
should not mean that his employment record
would be. wiped clean of his Infractions. After all,
the record of an employee is a relevant
consideration. in determining the penalty that
PAGE 54 OF 89
LABOR LAW
should be meted out since an employee's past
misconduct and present behavior must be taken
together in determining the proper imposahle
penalty. (Merin v. NLRC, G.R. No. 171790)
Q: Is the existence of a pregnancy out of
wedlock a disgraceful or immoral conduct?
A: Pre-marital sexual relations between two
consenting adults who have no impediment to
marry each other, and, consequently, conceiving
a child out of wedlock, gauged from a purely public
and secular view of morality, does not amount to a
disgraceful or immoral conduct. (Leus v. St
Scholastica, G.R. No. 187226, 2015)
Q: What are the elements of willful
disobedience?
A:
1. There must be disobedience or
insubordination;
2. The disobedience or insubordination must be
willful or intentional characterized by a
wrongful and perverse attitude;
3. The order violated must be reasonable, lawful,
and made known to the employee; and
4. The order must pertain to the duties which he
has been engaged to discharge. (D.O. No.
147-15)
Q: What are the elements of gross and habitual
neglect?
A:
1. There must be neglect of duty; and
2. The negligence must be both gross and
habitual in character. (D.O. No. 147-15)
Q: What are the elements of fraud or willful
breach of trust?
A:
1. There must be an act, omission, or
concealment;
2. The act, omission or concealment involves a
breach of legal duty, trust, or confidence justly
reposed;
3. It must be committed against the employer or
his/her representative; and
4. it must be in connection with the employees’
work. (D.O. No. 147-15, Sec. 5.2[d])
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Q: What are the elements of loss of (Salvador v. Philippine

confidence?’
A:
1. There must be an act, omission or
concealment;
2. The act, omission or concealment justifies the
loss of trust and confidence of the employer to
the employee;
3. The employee concerned must be holding a
position of trust and confidence;
4. The loss of trust and confidence should not be
simulated;
5. It should not be used as a subterfuge for
causes which are improper, illegal, or
unjustified; and
6. It must be genuine and not a mere
afterthought to justify an earlier action taken in
bad faith. (D.O. No. 147-15, Sec. 5.2[e])
Q: Distinguish between managerial employees
and fiduciary rank-and-file employees.
A:
Managerial employees: Those vested with the
powers or prerogatives to lay down management
policies and to hire, transfer, suspend, lay-off,
recall, discharge, assign or discipline employees
or effectively recommend such managerial
actions.
Mining Service Corp.,
G.R. No. 148766,
2003)
Confidential employees are those charged with
custody and protection of employer’s property like
a cashier (this is different from the “confidential
employees” in labor relations)
Q: In what instances are the procedural and
substantive requirements of due process in
the termination of an employee based on loss
of trust and confidence deemed violated?
A: For the procedural aspect, there is a violation
when the employee was not given notice nor an
opportunity to face the accusations against him.
For the substantive aspect, there is a violation
when the purported loss of trust and confidence
was inexistent at the time the employee received
his notice of termination. The employer is held
liable for full backwages, separation pay and
attorney’s fees. (Mega-Pro International
Resources, Inc v Maximo Domingo, GR No.
213146, November 12, 2014)
Q: What is the process to be observed in the
dismissal of a rank-and-file employee for loss
of confidence?

Fiduciary Rank and File: Those who in the A:

normal and routine exercise of their functions, 1. Loss of confidence should not be simulated;
regularly handle significant amounts of money or 2. It should not be used as subterfuge for causes
property. Examples are cashiers, auditors, which are improper, illegal or unjustified;
property custodians, etc. (Prudential Guarantee 3. It may not be arbitrarily asserted in the face of
and Assurance Employee Labor Union v. NLRC, overwhelming evidence to the contrary; and
G.R. No. 185335, 2012) 4. It must be genuine, not mere afterthought to
justify their action. (Nokom v. NLRC, G.R. No.
FIDUCIARY RANK- 140034, July 18, 2000)
MANAGERIAL
AND-FILE
Proof of involvement
Mere existence of a in the alleged events
basis for the belief of in question required;
employee’s guilt mere uncorroborated
(Grand Asian assertions and
Shipping Lines v. accusations are not
Galvez, G.R. No. enough (Etcuban v.
178184, 2014) Sulpicio Lines, G.R.
No. 148410, 2005)
Employment for a long
time is counted
against the employee
PAGE 55 OF 89
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Q: What are the elements of ‘commission of a
crime or offense?’
A:
1. There must be an act or omission punishable/
prohibited by law; and
2. The act or omission must be voluntary and/or
willful on the part of the employees. (D.O. No.
147-15, Sec. 5.2[f])
Conviction or prosecution of the employee is not
necessary. A criminal case need not be actually
filed. Commission of acts constituting a crime is
sufficient. (Nicolas v. NLRC, G.R. No. 113948,
1996)
Previous offenses may be used as justification for
dismissal from work only if the past infractions are
related to the subsequent offense upon which the
basis of termination is decreed. (Salas v. Aboitiz
One Inc., G.R. No. 178236, 2008)
Q: What is the Bona Fide Occupational
Qualification (BFOQ)?
A: General Rule: Where the job itself necessarily
requires a particular qualification, then the job
applicant or worker who does not possess it may
be disqualified on that basis and such will not be
considered unlawful discrimination.
Exception: To justify a BFOQ, the employer must
prove that:
1. The employment qualification is reasonably
related to the essential operation of the job
involved; and
2. There is factual basis for believing that all or
substantially all persons meeting the
qualification would be unable to properly
perform the duties of the job (Star Paper
Corporation, et. a l vs. Simbol, et. aI., G.R. No.
164774,2006).
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LABOR LAW
Q: What are the elements of ‘analogous
causes?’
A:
1. There must be an act or omission similar to
those specified just causes;
2. The act or omission must be voluntary and/or
willful on the part of the employees (D.O. No.
147-15, Sec. 5.2[gJ)
NOTE: No act or omission shall be considered as
analogous cause unless expressly specified in
the company rules and regulations or policies.
2. Authorized Causes
Q: What are the Authorized causes for
termination? (RRLCD)
1. Redundancy
2. Retrenchment
3. Introduction of labor-saving devices
4. Cessation or Closure of Establishment of
Operation of the Establishment or Undertaking
5. Disease
Q: What are the elements of ‘redundancy?’
A: The elements are the following:
1. There must be superfluous positions or
services of employees;
2. The positions or services are in excess of what
is reasonably demanded by the actual
requirements of the enterprise to operate in an
economical and efficient manner;
3. There must be good faith in abolishing
redundant positions;
4. There must be fair and reasonable criteria in
selecting the employees to be terminated; and
5. There mustbe an adequate proof of
redundancy such as but not limited to the new
staffing pattern, feasibility studies/ proposal,
on the viability of the newly created positions,
job description and the approval by the
management of the restructuring. (DO 147-15)
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Q: What are the requisites for an employer to
justify or effect a valid redundancy program?
A:
1. A written notice served on both the employees
and the DOLE at least one month prior to the
intended date of retrenchment;
2. Payment of separation pay equivalent to at
least one month pay or at least one month pay
for every year of service, whichever is higher;
3. Good faith in abolishing the redundant
positions; and
4. Fair and reasonable criteria in ascertaining
what positions are to be declared redundant
and accordingly abolished. (DAP v. CA, G.R.
165811, 2005).
Q: How is the “last in first out” policy to be
effected in a retrenchment or redundancy
program?
A: The decisions of the Supreme Court only posits
the rule that seniority need not be strictly followed
in effecting a retrenchment or redundancy
program and should be included in the fair and
reasonable criteria along with a) less-preferred
status (i.e. temporary employees); and b)
efficiency rating. (Asiaworld v. Ople, G. R. No.
56398, 1987)
In Philippine Tuberculosis Society vs. National
Labor Union, (G.R. No. 115414, 1998), the
Supreme Court held a retrenchment invalid for
failing to consider the seniority factor in choosing
those to be retrenched, a failure which, to their
mind, should invalidate the retrenchment, as the
omission - immediately makes the selection
process unfair and unreasonable.
Q: What are the elements of ‘retrenchment?’
A:
1. The retrenchment must be reasonably
necessary and likely to prevent business
losses;
2. The losses, if already incurred, are not merely
de minimis, but substantial, serious, actual
and real, or if only expected, are reasonably
imminent.
3. The expected or actual losses must be proved
sufficient and convincing evidence such as
financial statements (audited by an
independent firm) over a span of several years
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LABOR LAW
OR a some reasonable period of time, and not
merely the actual year of business loss;
4. The retrenchment must be in good faith for the
advancement of its interest and not to defeat
or circumvent the employees’ right to security
of tenure; and
5. There must be fair and reasonable criteria in
ascertaining who would be dismissed and who
would be retained among the employees,
such as status, efficiency, seniority, physical
fitness, age, and financial hardship for certain
workers. (D.O. No. 147-15, Sec. 5.4[c])
Q: What does “prevent losses” mean?
A: The phrase “to prevent losses” means that
retrenchment or termination from the service of
some employees is authorized to be undertaken
by the employer sometime before the losses
anticipated are actually sustained or realized.
Actual losses need not set in prior to retrenchment
(Cajucom VII v. TPI Phil. Cement Corp., G.R. No.
149090, 2005)
Q: When is retrenchment justified?
A: Management cannot be denied recourse to
retrenchment if it can successfully prove the
existence of the following:
1. Substantial losses which are not merely de
minimis in extent;
2. Imminence of such substantial losses;
3. Retrenchment would effectively prevent the
expected additional losses; and
4. Alleged losses and expected losses must be
proven by sufficient and convincing evidence
Financial documents, which are audited by the CA,
are the normal and reliable method of proof of the
profit and loss performance of a GOCC. (NDC-
GUTHRIE Plantations vs. NLRC, G.R. 110740,
2001).
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Q: What are the elements of a valid termination before the intended date of termination of
based on Installation of labor-saving employment.
devices?’
3. The employer can lawfully close shop even if
A: not due to serious business losses or financial
1. There must be introduction of machinery, reverses but separation pay, which is
equipment or other devices; equivalent to at least one month pay as
2. The introduction must be done in good faith; provided for by the Labor Code as amended,
3. The purpose for such introduction must be must be given to all the affected employees,
valid such as to save on cost, enhance
efficiency and other justifiable economic 4. If the closure or cessation of operations of
reasons; establishment or undertaking is due to serious
4 There is no other option available to the business losses or financial reverses, the
employer than the introduction of machinery, employer must prove such allegation in order
equipment or device and the consequent to avoid the payment of separation pay.
termination of employment of those affected Otherwise, the affected employees are entitled
thereby; and to separation pay.
5. There must be fair and reasonable criteria in
selecting employees to be terminated. (D.O. 5. The burden of proving compliance with all the
No. 147-15) above-stated falls upon the employer. (Manila
Polo Club Employees' Union v. Manila Polo
Q: What are the elements of ‘closure or Club, Inc., G.R. No. 172846, 2013)
cessation of business operations?’
Q: Does the closure of a department or division
A: constitute retrenchment or closure?
1. There must be a decision to close or cease
operation of the enterprise by the A: The closure of a department or division of a
management; company constitutes retrenchment by, and not
2. The decision was made in good faith; and closure of, the company itself. (Waterfront Cebu
3. There is no other opinion available to the City Hotel v. Jimenez, G.R No. 174214, 2012)
employer except to close or cease operations.
(DO No. 147-15) Q: Differentiate Redundancy, Retrenchment,
and Closure.
Q: What are the guidelines to follow in
closure? Retrenchment Redundancy Closure
Reduction of The service The reversal
1. Closure or. cessation of operations of personnel of an of the fortune
establishment or undertaking may either be usually due to Employee is of the
partial or total. poor financial in excess of employer
returns so as to what is whereby there
2. Closure or cessation of operations of cut down on required by is a complete
establishment or undertaking may or may not costs of ! an cessation of
be due to serious business losses or financial operations in enterprise business
reverses. However, in both instances, proof terms of operations
must be shown that: salaries and and/or actual
a. It was done in good faith to advance the wages locking-up of
employer's interest and not for the purpose the doors of
of defeating or circumventing the rights of the
employees under the law or d veniu establishment,
agreement; and usually due to
b. A written notice on the affected employees financial
and the DOLE is served at least one month losses

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Resorted to To save Aims to Q: What are the elements of ‘termination due

primarily to production prevent further to ailment or disease?’
avoid or costs financial drain
minimize upon the A:
business Employer 1. An employee has been found to be suffering
losses from any disease, whether contagious or not;
Employee is Employee is In case of 2. His continued employment is prohibited by law
entitled to entitled to closure of or prejudicial to his health, or to the health of his
separation pay separation business not co-employees;
of 1 month pay pay of 1 due to serious 3. A competent public health authority certifies that
or 1/2 month month pay business the disease is of such nature or at such a stage
pay per year of or 1 month losses, the that it cannot be cured within a period of six
service, pay per year employer pays months even with proper medical treatment;
whichever is of service, the employees and
higher whichever is terminated 4. Payment of separation pay equivalent to at least
higher separation one month salary or to one-half month salary
pay of 1 month for every year of service, whichever is greater,
pay or 1/2 a fraction of at least six months being
month pay per considered as one whole year.
year of
service, 3. Due Process
whichever is
higher a) Twin Notice Requirement

Q: Does a temporary closure / bona fide Q: What is the twin-notice requirement?

suspension of business operators terminate
employment?
A: A bona fide suspension of business operations
for not more than 6 months does not terminate
employment.
After 6 months, the employee may be recalled to
work or be permanently laid off. (SKM Art Craft
Corp v. Bauca, G.R. No. 171282, 183484, 2013)
A: The employer has the burden of proving that a
dismissed worker has been served two notices:
1. First written notice: served on the employee
specifying the ground or grounds for
termination, and giving said employee
reasonable opportunity within which to explain
his side.
2. Second written notice: served upon the
employee, indicating that upon due
. consideration of all the circumstances,
grounds have been established to justify his
termination.

Q: The Labor Code is silent on the requirement

of procedural due process due to disease.
Must the two-notice rule be followed?

A: YES. The Labor Code and its IRR are silent on

the procedural due process required in
terminations due to disease. Despite the seeming
gap in the law, Section 2, Rule 1, Book VI of the
IRR expressly states that the employee should
be afforded procedural due process in all
cases of dismissals. (Deoferio v. Intel
Technology, G.R. No. 202996, 2014)

PAGE 59 OF 89
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FIRST NOTICE conference" requirement in the implementing rules

1. Contain specific causes or grounds for and regulations (Perez v. PT&T, G.R. No. 152048,
termination as provided under Art. 297 and 2009)
company policies, if any;
2. Contain a detailed narration of the facts and Q: Distinguish the procedural requirements in
circumstances that will serve as basis for termination cases.
the charge against the employee, (general
description of the charge will not suffice); A:
and AUTHORIZED
JUST CAUSES
3. Contain a directive that the employee is CAUSES
given the opportunity to submit his written First Notice specifying Notice to the following:
explanation within the reasonable period of the grounds for which - Employee; and
FIVE (5) CALENDAR DAYS from receipt of dismissal is sought -DOLE
the notice:
a. to enable him to prepare adequately for Hearing or At least 1 month prior
his defense; opportunity to be to effectivity of the
b. to study the accusation against him; heard separation
c. to consult a union official or lawyer;
d. to gather data and evidence; and Second Notice of the
e. to decide on the defenses he will raise decision to dismiss
against the complaint. (DO No. 147-15)
NOTE: For Notice in Authorized Causes:
SECOND NOTICE
1. Notice is not needed when Employee consented
After determining that termination of
to the retrenchment or voluntarily applied for one
employment is justified, the employer shall
(Infl Hardware v. NLRC, G.R. No. 80770, 1989)
serve the employees a written notice of
termination indicating that:
2. Notice must be individual, and not collective
1. all circumstances involving the charge/s
(Shoppers Gain Supermart v. NLRC, G.R. No.
against the employee have been
110731, 1996)
considered; and
2. grounds have been established to justify the
3. Voluntary Arbitration satisfies notice
severance of his employment. requirement for authorized causes (Revidad v.
NLRC, G.R. No. 111105, 1995)
b) Hearing; Ample Opportunity To Be Heard
Q: What are the consequences for non-
Q: What are the guiding principles with respect compliance with the due " process
to the hearing requirement? requirements?

A: "Ample opportunity to be heard" means any A: Consequences for Non-Compliance of

meaningful opportunity (verbal or written) given to Procedural Due Process
the employee to answer the charges against him
and submit evidence in support of his defense, Just or Authorized Cause Exists + Due
whether in a hearing, conference or some other Process
fair, just and reasonable way. 1. Valid Dismissal
2. Employer is not liable; but pays separation pay
A formal hearing or conference becomes only in authorized causes.
mandatory oniy when requested by the employee
in writing or substantial evidentiary disputes exist Just or Authorized Cause + No Due Process
or a company rule or practice requires iL o r w h e n 1. Valid Dismissal
similar circumstances justify it. 2. Employer is liable for damages due to
procedural infirmities.
The "ample opportunity to be heard" standard in 3. Employer pays separation pay if for authorized
the Labor Code prevails over the "hearing or causes.
PAGE 60 OF 89
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No Just or Authorized Cause + Due Process
1. Illegal Dismissal
2. Employer is liable to reinstate employee or
pay separation pay.
3. If reinstatement is not possible, separation
pay. Backwages should always be given,
whether with reinstatement or separation pay
in lieu of reinstatement.
No Just or Authorized Cause + No Due Process
1. Illegal Dismissal
2. Employer is liable to reinstate employee or
pay separation pay.
3. If reinstatement is not possible, separation
pay. Backwages should always be given,
whether with reinstatement or separation pay
in lieu of reinstatement.
E. Reliefs from Illegal Dismissal
Q: What are the various remedies for an illegal
dismissal?
A: An employee who is unjustly dismissed from
work shall be entitled to reinstatement without
loss of seniority rights and other privileges and to
his full backwages, inclusive of allowances and to
his other benefits or their monetary allowances,
and to his other benefits or their monetary
equivalent computed from the time his
compensation was withheld from him up to the
time of his actual reinstatement. (Section 34, R.A.
No. 6715)
Q: What is Reinstatement?
A: Reinstatement restores the employee who was
unjustly dismissed to the position from which he
was removed, that it, to his status quo ante
dismissal, while the grant of backwages allows the
same employee to recover from the employer that
which he had lost by way of wages as a result of
his dismissal. (Santos v. NLRC, 238 Phil 161
[1987])
Q: May reinstatement and backwages be
awarded together?
A: General Rule: Yes, reinstatement and
backwages may be awarded together.
Exceptions:
• Separation pay
PAGE 61 OF 89
LABOR LAW
• Closure of business (Retuya v. Hon.
Dumarpa, G.R. No. 148848, 2003)
• Economic Business Conditions (Union of
Supervisors v. Secretary of Labor, G.R. No. L-
39889, 1981)
• Employee’s unsuitability (Divine Word High
School v. NLRC, G.R. No 72207, 1986)
• Employee’s retirement / overage (New Phil.
Skylanders v. Dekila, G.R. No. 199547, 2012)
• Antipathy and antagonism (Wensha Spa
Center v. Yung, G.R. No. 185122, 2010)
• Job with a totally different nature (DUP Sound
Phils, v. CA, G.R. No. 168317, 2011)
• Long passage of time
• Inimical to the employer’s interest
• Supervening facts have transpired which
make execution unjust or inequitable, to an
increasing extent (Emeritus Security v. Dailig,
G.R. No. 204761, 2014)
Q: What are the instances when reinstatement
is no longer possible?
A:
1. In case establishment has closed or ceased
operations
2. Company has been declared insolvent
3. Former position no longer exists for reasons
not attributable to the employer
4. Where the employee does not want to be
reinstated (Book VI, Rule 1, Section 4 (b),
Rule I, IRR)
Additional:
1. When employer-employee relationship has
already been strained
2. Where a considerable time has lapsed
between the dismissal and the resolution of
the case (Manila Jockey Club v. Trajano,
2013)
Q: What is the effect if reinstatement is no
longer possible?
A: According to the SC, “in lieu of reinstatement,
petitioner is entitled to separation pay equivalent
to one (1) month salary for every year of service
reckoned from the time he commenced his
employment with TAWTRASCO until finality of this
Decision.” (Bahares vs. TAWTRASCO, 694 SCRA
312, 2013).
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Q: What salaries may be paid after a decision
for reinstatement has been reversed?
A: (PERLAS-BERNABE) Notwithstanding the
reversal of the finding of illegal dismissal, an
employer, who, despite the LA's order of
reinstatement, did not reinstate the employee
during the pendency of the appeal up to the
reversal by a higher tribunal may still be held liable
for the accrued wages of the employee, i.e., the
unpaid salary accruing up to the time of the
reversal. By way of exception, an employee may
be barred from collecting the accrued wages if
shown that the delay in enforcing the
reinstatement pending appeal was without fault on
the part of the employer. (Manila Doctors College
v. Olores, G.R. No. 224044, October 3, 2016)
Q: What are the four kinds of separation pay?
A:
1. Statutory separation pay, in authorized causes
(Labor Code, Arts. 288-299)
2. Separation pay as financial assistance
3. Separation pay in lieu of reinstatement where
reinstatement is not feasible; and
4. Separation pay as a benefit in the CBA or
company policy
Q: When may separation pay as financial
assistance be awarded?
Separation pay may be awarded, in the name of
compassionate justice, to an employee dismissed
for a “just cause”, except in the following:
1. Serious misconduct; or
2. Other offenses reflecting on his moral character
(PLOT v. NLRC, G.R. No. 80609, 1988)
However: In the Toyota case, the Supreme Court
ruled that if the dismissal is based on any of the
just causes in Art. 297 of the. Labor Code - No
financial assistance can be granted, except
perhaps under “analogous causes.” (Toyota Motor
Phil. Corp. Workers Ass’n. v. NLRC, G.R. No.
158786, 2007)
But note: In the International School case, the
Supreme Court granted “separation pay” of Yi
month per year of service while upholding the
teacher’s dismissal on the ground of “gross
inefficiency” resulting from the lack of skills,
thereby failing to meet the standards of. the
PAGE 62 OF 89
LABOR LAW
employer of the school. (International School v.
International School Alliance, 2014)
Q: May the separation pay that is warranted in
the collective bargaining agreement be given
despite the closure of business?
A: (PERLAS-BERNABE) When the obligation to
pay separation benefits, however, is not sourced
from law (particularly, Article 297 of the Labor
Code), but from contract, such as an existing
collective bargaining agreement between the
employer and its employees, an examination of
the latter’s provisions becomes necessary in order
to determine the governing parameters for the said
obligation. To reiterate, an employer which closes
shop due to serious business losses is exempt
from paying separation benefits under Article 297
of the Labor Code for the reason that the said
provision explicitly requires the same only when
the closure is not due to serious business losses;
conversely, the obligation is maintained when the
employer’s closure is not due to serious business
losses. (Benson Industries Employees v. Benson
Industries, Inc., G.R. No. 200746, August 6, 2014)
Q: What economic components constitute
backwages for a rank-and-file employee? Are
these components equally applicable to a
managerial employee?
A: An employee illegally dismissed is entitled to
full backwages and reinstatement pursuant to
Article 279 of the Labor Code, as amended by RA.
6715:
1. An employee who is unjustly dismissed from
work shall be entitled to reinstatement without
loss of seniority rights and other privileges and
to his full backwages, inclusive of allowances,
and to his other benefits or their monetary
equivalent computed from the time his
compensation was withheld from him up to the
time of his actual reinstatement. (Labor Code,
art. 279).
2. An unqualified award of backwages means
that the employee is paid at the wage rate at
the time of his dismissal. The base figure to be
used in the computation of backwages due to
the employee should include not just the basic
salary, but also the regular allowances that he
had been receiving such as the emergency
living allowances and the 13th month pay
ATENEO CENTRAL
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mandated under the law. (Paramount Vinyl
Product Corporation v. NLRC, et. at, G.R.
81200, 1999).
3. Backwages to be awarded to an illegally
dismissed employee should not, as a general
rule, be diminished or reduced by the earnings
derived by him elsewhere during the period of
his illegal dismissal. (Bustamante, e t al. v.
NLRC and Evergreen Farms, G.R. No.
111651, 1996).
4. A salary increase cannot be interpreted to
mean an allowance or a benefit. Salary
increases are not akin to allowances or
benefits. Allowances and benefits are granted
to the employee apart or separate from the
wage or salary. In contrast, salary increases
are amounts which are added to the
employee’s salary as an increment thereto.
(Equitable Bank v. Sadac, G.R. No. 164772,
2006).
5. Once there is a finding of illegal dismissal, the
components constituting the award of
backwages is the same for managerial and
other employees. Art. 294 of the Labor Code
speaks of “employees”. Where the law does
not distinguish, one must not also distinguish.
Labor Code, Art. 294)6
6. As a general rule, the normal consequences
of a finding that an employee has been
illegally dismissed are, firstly, that the
employee becomes entitled to reinstatement
without loss of seniority rights; and secondly,
the payment of backwages corresponding to
the period from his illegal dismissal up to his
actual reinstatement. The two forms of relief
are, however, distinct and separate from each
other. Though the grant of reinstatement
commonly carries with it an award of
backwages, the appropriateness or non­
availability of one does not carry with it the
inappropriateness or non-availability of the
other. In accordance with Moreno v. San
Sebastian College (G.R. 175283, 2008), the
Court may not only mitigate, but also absolve
entirely, the liability of the employer to pay
backwages where good faith is evident.
Likewise, backwages may be withheld from a
dismissed employee where exceptional
circumstances are availing.
PAGE 63 OF 89
LABOR LAW
Q: What is the rule on dismissed employees’
quitclaims?
A: Quitclaims do not estop employees from
pursuing their claim arising from ULP. That the
employee has signed a satisfaction receipt does
not result in a waiver, the law does not consider as
valid any agreement to receive less compensation
than what a worker is entitled to recover. A deed
of release cannot bar an employee from
demanding benefits to which he is legally entitled.
Not all waivers and quitclaims are invalid as
against public policy. If the agreement was
voluntarily entered in to and represented as
reasonable settlement, it is binding on the parties
and may not later be disowned simply because of
a change of mind. (Alfaro vs. CA, G.R. 140812,
2001) .
Q: Does the filing of a criminal case against an
employee have the effect of suspending or
interrupting the running of the prescriptive
period for the filing of an action for illegal
dismissal?
A: No. The filing of the criminal case against an
employee does not have the effect of suspending
or interrupting the prescriptive period for the filing
of an action for illegal dismissal. Such an action is
an administrative case which is entirely separate
and distinct from a criminal action. Each may
proceed independently of the other. (Pepsi Cola
Bottling Company vs. Guanzon, G.R. 81612,
1989)
Q: What damages can an illegally dismissed
employee collect from his employer?
A: Moral, exemplary and nominal damages.
1. Moral damages are recoverable only where
the dismissal of the employee was attended
by bad faith or fraud, or constituted an act
oppressive to labor, or was done in a manner
contrary to morals, good customs or public
policy. (PAL vs. NLRC, G.R. 132805, 1999).
An award of moral damages cannot be
justified solely upon the premise (otherwise
sufficient for redress under the Labor Code)
that the employer fired his employee without
just cause or due process. Additional facts
must be pleaded and proven to warrant the
ATENEO CENTRAL
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grant of moral damages under the Civil Code Q: Differentiate the reliefs of local workers
(Primero vs. (AC, 56 SCRA 435, 1987). versus those of migrant workers?

2. Exemplary damages may be awarded only if A:

the dismissal was shown to have been Sec. 10, RA 8042
Art. 279, LC
effected in a wanton, oppressive or (MIGRANT
(LOCAL WORKERS)
malevolent manner. (Cocoland Development WORKERS)
Corp. vs. NLRC. G.R. No. 98458, 1996). Full reimbursement of
Reinstatement
his placement fee with
Exemplary damages, however, may not be interest of 12% per
recovered where the party involved is not annum
entitled to moral or compensatory damages. Full backwages from
(Dee Hua Uong vs. Reyes, G.R. No. 72182, the time his Salaries for tie
1986). compensation was unexpired portion of
3. Nominal damages may be granted only if the withheld from him up
dismissal is for an authorized or just cause yet to the time of his contract
effected without procedural due process actual reinstatement
excluding illegal dismissal. (Agabon vs.
NLRC, G.R. No. 158693, 2004) (DEL Q: What are the applicable rules pertaining to
CASTILLO) ‘employer’s indemnity?5

Q: When is separation pay allowed as a A: Nov. 2004 to Present (Agabon Doctrine)

measure of social justice?
A: Only in those instances where the employee is
validly dismissed for causes other than serious
misconduct or those reflecting on his moral
character. A series of misconducts, when put
together, may constitute a serious misconduct.
(PLDTv. NLRC, G.R. Np. 80609, 1988)
Q: What is “payroll reinstatement55 and when
does it apply?
A: Payroll reinstatement is a form of reinstatement
which an employer may opt to exercise in lie of an
actual reinstatement. Here, the illegally dismissed
employee is to receive his basic pay without the
obligation of rending any service to the employer.
This occurs when a Labor Arbiter decides that an
employee was illegally dismissed and as a
consequence awards reinstatement, pursuant to
Article 279. Such award of reinstatement is
immediately executor even pending appeal,
pursuant to Article 223. (Maranaw Hotel v. NLRC,
G.R. No. 110027, 1994)
• Dismissal is valid
• Employer’s liability: Nominal damages
Jaka Food v. Pacot, G.R. No. 151378, 2005
If the dismissal is based on a just cause but the
employer failed to comply with the notice
requirement, the sanction to be imposed upon him
should be tempered because the dismissal
process was, in effect, initiated by an act imputable
to the employee.
If the dismissal is based on an authorized cause
but the employer failed to comply with the notice
requirement, the sanction should be stiffer
because the dismissal was initiated by the
employer’s exercise of management prerogative.
Industrial Timber v. Ababan, G.R. No. 164518,
2006 (Distinction o f Authorized Causes)
If the authorized cause that terminates
employment arises from losses, the penalty to the
employer who disregarded due process may be
lighter than if the authorized cause has no relation
to losses.

HSBC Employees Union v. NLRC, G.R. No.

156635. 2016
A dismissal iacking in valid cause or valid
procedure is “illegal.” In a dismissal based on just
or authorized cause, but effected without due

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process, the employee remains dismissed, but the
employer must pay nominal damages.
F. Preventive Suspension
Q: When is Preventive suspension be
imposed?
A: Preventive suspension may be imposed upon
an employee who is under investigation for certain
serious offenses. As its purpose is to prevent harm
from befalling the company/business/other
workers, this can only be resorted to when an
employee’s continued presence poses a serious
and imminent threat to the life or property of the
employer. (Sec. 3, Rule XIV, Omnibus Rules
Implementing the Labor Code)
G. Retirement
Q: What is the age of retirement?
A:
1. Where there is a CBA or other applicable
employment contract (or retirement plan): any
employee may be retired upon reaching the
retirement age established therein
2. Where there is no CBA/retirement plan:
a Optional retirement: an employee upon
reaching the age of 60 or more (but not
beyond 65) who has served at least 5
years in said establishment, may retire
b. Compulsory retirement: upon reaching
the age of 65. (Labor Code, Art. 302)
Q: May the optional and compulsory
retirement ages be lowered?
1. Written policy - such as in the CBA
(Pantranco North Express v. NLRC & U.
Suniga, G.R. No. 95940, 1996); or
2. Assented to by the employees (Jaculbe v.
Silliman University, G.R, No. 156934, 2007)
Q: What must the nature of the employees’
acceptance be of early retirement age?
A: Acceptance by the employees of an early
retirement age option must be explicit, voluntary,
free, and uncompelled. (Cercado v. Uniprom,
Inc., G.R. No. 188154, 2010, cited in Laya, Jr. v.
CA, G.R. No. 205813, January 10, 2018)
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LABOR LAW
Q: Who are eligible to the Retirement Pay Law?
A: All employees in the private sector, regardless
of their position, designation or status and
irrespective of the method by which their wages
are paid.
The only exceptions are [CDR-SA10]
1. Employees covered by the Civil Service Law
2. Domestic helpers and persons in the personal
service of another
3. Employees in retail, service and agricultural
establishments or operations regularly
employing not more than 10 employees. (IRR
R.A. No. 7641, Sec. 2)
Q: When is retirement due for underground
miners?
A: Optional retirement is due for underground
miners upon reaching the age of 50 years or more
and compulsory retirement at age 60 provided he
has served at least 5 years as such. (R.A. No.
8558)
Q: Is an employee who was terminated for
authorized causes (redundancy), also entitled
to avail of early retirement benefits? Otherwise
stated, may an employee be paid both
retirement and separation pay benefits?
A: YES, as a general rule.
Exception: When there is an explicit provision in
the company rules prohibiting the availment of
both. Employees are legally entitled to recover
both separation pay and retirement benefits in the
absence of a specific prohibition in the Retirement
Plan or CBA. In such an instance where both the
company rules or CBA and the retirement plan are
silent, an employee is not barred from claiming his
early retirement benefits, even if he/she had
already received his retrenchment pay, and has
executed a Quitclaim to that effect. This must be
so because he is legally entitled thereto as a
general rule. (Goodyear vs. Marina Angus, G.R.
No. 185499, November 14, 2014)
Q: Can retirement be voluntary? How do you
differentiate this from involuntary retirement?
A: (PERLAS-BERNABE) Retirement is the result
of a bilateral act of both the employer and the
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employee based on their voluntary agreement that
upon reaching a certain age, the employee agrees
to sever his employment. Since the core premise
of retirement is that it is a voluntary agreement, it
necessarily follows that if the intent to retire is not
clearly established or if the retirement is
involuntary, it is to be treated as a discharge.
Q: When is R.A.No. 7641 which amended
Article 287 of the Labor Code applicable?
A: (PERLAS-BERNABE) The foregoing provision
is applicable where
1. There is no CBA or other applicable
agreement providing for retirement
benefits to employees, or
2. There is a CBA or other applicable
agreement providing for retirement
benefits but it is below the requirement set
by law.
I V. MANAGEMENT PREROGATIVE
Q: What are other allowable exercises of
management prerogative?
A: In the case of Republic Planter’s Bank v. NLRC
(G.R. No. 117460, 1997), the Court ruled that it
was valid for an employer to establish as policy
that once an employee is found guilty of an
administrative charge, he shall forfeit his bonus in
favor of the employer. However, as enunciated in
Sime-Darby Pilipinas vs. NLRC (G.R. 119205,
1998), management retains the prerogative to
change the working hours of its employees
whenever exigencies of the service so require.
A. DISCIPLINE
Q: What is the extent of the employer’s right to
discipline?
A: Except as limited by special laws, an employer
is free to regulate, according to his own discretion
and judgment, all aspects of employment,
including hiring, work assignments, working
methods, time, place and manner of work, tools to
be used, process to be followed, supervision of
workers, working regulations, transfer of
employees, work supervision, lay - off workers
and the discipline, dismissal and recall of work.
(NLUv. Insular La Yebana Co., G.R. No. L-15363,
July 31, 1961)
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LABOR LAW
B. TRANSFER OF EMPLOYEE
Q: What is the extent of the right of the
employer to transfer its employees?
A: It is the prerogative of the company to promote,
transfer or even demote its employees to other
positions when the interests of the company
reasonably demand it. Unless there are instances
which directly point to interference by the company
with the employee’s right to self - organization, the
transfer of an employee should be considered
within the bounds allowed by law. (Rubberworld v.
NLRC, G.R. No. 75704, 1989)
Q: What are the jurisprudential guidelines on
the transfer of employees?
A:
1. A transfer is a movement from one position to
another of equivalent rank, level or salary
| without break in the service or a lateral
movement from one position to another of
equivalent rank or salary;
2. The employer has the inherent right to transfer
or reassign an employee for legitimate
business purposes;
3. A transfer becomes unlawful where it is
motivated by discrimination or bad faith or is
effected as a form of punishment or is a
demotion without sufficient cause;
4. The employer must be able to show that the
transfer is not unreasonable, inconvenient, or
prejudicial to the employee. (ICT Marketing
Services v. Mariphil Sales, G.R. 202090,
September. 9, 2015)
C. PRODUCTIVITY STANDARD
Q: Is the imposition of productivity standards
an allowable practice?
A: The SC said, in the case of Leonardo v. NLRC
(G.R. Not 125303, 2000), that this arrangement
appears to be an allowable exercise of company
rights. An employer is entitled to impose
productivity standards for its workers and non-
compliance may be visited with a penalty even
more severe than demotion.
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D. BONUS
Q: Can an employer be forced to distribute
bonuses even when it can no longer afford to
pay?
A: No. The granting of bonus is a management
prerogative, something given in addition to what is
ordinarily received by or strictly due the recipient.
(Producers Bank of the Philippines v. NLRC, 355
SCRA 489, 2001; 2002 and 2003 Bar)
E. CHANGE OF WORKING HOURS
Q: May the employer change the working
hours?
A: Except as limited by special laws, an employer
is free to regulate, according to his own discretion
and judgment, all aspects of employment,
including hiring, work assignments, working
methods, time, place and manner of work, tools to
be used, processes to be followed, supervision of
workers, working regulations, transfer of
employees, work supervision, lay-off of workers
and discipline, dismissal and recall of workers.
(San Miguel Brewery Sales v. Ople, G.R. No. L~
53515, 1989)
F. MARRIAGE BETWEEN EMPLOYEES OF
COMPETITOR-EMPLOYERS
Q: What Is the rule regarding marriage between
employees of competitor-employers?
A: It is unlawful for an employer to require as a
condition of employment or continuation of
employment that:
1. A woman employee shall not get married,
or
2. To stipulate expressly or tacitly that upon
getting married a woman employee shall
be deemed resigned or separated; or
3. To actually dismiss, discharge,
discriminate or otherwise prejudice a
woman employee merely by reason of her
marriage. (Labor Code, Art. 136)
G. POST-EMPLOYMENT BAN
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LABOR LAW
Q: What factors does the Court consider in
deciding the validity of a Post-employment
ban?
A: In determining whether the contract is
reasonable or not, the trial court should consider
the following factors: (a) whether the covenant
protects a legitimate business interest of the
employer; (b) whether the covenant creates an
undue burden on the employee; (c) whether the
covenant is injurious to the public welfare; (d)
whether the time and territorial limitations
contained in the covenant are reasonable; and (e)
whether the restraint is reasonable from the
standpoint of public policy. (Rivera v. Solidbank,
G.R. No. 163269, 2006)
Q: Who has the burden of proof to show the
validity of the exercise of management
prerogatives?
A: It is the Employer.
HOWEVER: The employee initially has the
burden to prove that he is an employee of the
company (Javier v. CA, G.R. No. 192558,
February 15, 2012)
The burden of proof rests upon the party who
asserts the affirmative of an issue’.” Since it is
Valencia here who is claiming to be an
employee of Classique Vinyl, it is thus
incumbent upon him to proffer evidence to
prove the existence of employer-employee
relationship between them. He "needs to show
by substantial evidence that he was indeed an
employee of the company against which he claims
illegal dismissal.”
Corollary, the burden to prove the elements of
an employer-employee relationship, wz.:(1)
the selection and engagement of the employee;
(2) the payment of wages; (3) the power of
dismissal; and (4) the power of control, lies upon
Valencia. (Valencia v. Classique Vinyl, G.R. No.
206390, January 30, 2017)
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j VIII. JURISDICTION AND REMEDIES | Q: Is the termination of a higher management

officer “Assistant VP” “Executive VP” or
simply “VP” a Labor Case or Intra-Corporate
A. LABOR ARBITER
Controversy cognizable by the SEC?

1. Jurisdiction A: It is a LABOR CASE. The better policy to be

followed in determining jurisdiction over a case should
Q: What is the difference between the be to consider concurrent factors such as the status or
jurisdiction of the Labor Arbiter and the regular relationship of the parties or the nature of the question
RTC in relation to damage claims filed by that is subject of their controversy. In the absence of
employees? any of those factors, the SEC will NOT have
jurisdiction.
A: The Labor Arbiter has jurisdiction over claims
for actual, moral, exemplary, and other forms of For the courts to try such cases, two elements must
damages arising from employer-employee
concur: (a) the status or relationship of the parties, and
relations., Art. 217 (a) (4) Labor Code) Hence, a
claim for liquidated damages for breach of (b) the nature of the question that is the subject of their
contractual obligation which is intrinsically a civil controversy.
dispute (Singapore Airlines Ltd. Vs. Pano, G.R.
No. L-47739, 1983) and a cause of action based In this case, the fact alone that petitioner is a
on quasi-delict or tort which has no reasonable stockholder and director of respondent
connection with any of the claims enumerated in corporation automatically classifies this case as an
Art. 217 of the Labor Code are beyond the intra-corporate controversy. Not all conflicts
jurisdiction of the Labor Arbiter and within the between the stockholders and the corporation are
jurisdiction of the regular courts. (Ocheda v. classified as intra-corporate. There are other factors
CAG.R. 85517, 1992)
to consider in determining whether the dispute
involves corporate matters as to consider them as intra­
Q: What is the jurisdiction over the civil and
corporate controversies. (Real v. Sangu Philippines,
criminal aspects of a case involving an unfair
G.R. No. 168757, January 19, 2011)
labor practice for which a charge is pending
with the Department of Labor and
Q: Where do you go from a decision, award, or
Employment?
order of the Labor Arbiter?
A:
A: You appeal to the NLRC within 10 CALENDAR
• Jurisdiction over the civil aspect - Labor
days from the receipt of the decision on the
Arbiters (Labor Code, Art. 258)
grounds of grave abuse of discretion, fraud and
• No criminal prosecution can be instituted
coercion, on pure questions of law and/or serious,
without final judgment that an unfair labor
erroneous factual findings causing grave or
practice has in fact been -committed. The
administrative findings are neither binding in irreparable damage. (NLRC RULE, Rule VI, Sec.
the criminal case nor available as evidence of 1- 2).
guilt, but merely prove procedural compliance.
(Labor Code, Art. 258)
• In a labor dispute involving national interest,
the Secretary of Labor under Art. 278 (g) may
take cognizance of the civil or administrative
aspect of the labor case, depriving the Labor
Arbiter from taking cognizance of the unfair
labor practice case.
• Jurisdiction over the criminal aspect - Regular
Courts (Labor Code, Art. 258)

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Q: May the NLRC of the courts take
jurisdictional cognizance over compromise
agreements/settlements involving Labor
matters?
A: Art. 227 provides that any compromise
agreement involving labor matters entered into by
the parties with the assistance of the DOLE shall
be final and binding upon the parties, except in
cases of non-compliance or, if based on fraud,
when misrepresentation or coercion is present.
Q: May non-lawyers appear before the NLRC or
Labor Arbiter and may they charge attorney’s
fees for such appearance provided it is
charged against union funds and in an amount
freely agreed upon by the parties?
A: Yes, non-lawyers may appear before the
Commission or any Labor Arbiter only:
1. if they represent themselves; or
2. if they represent their own legitimate labor
organization or members thereof; or
3. if they are duly accredited by a Legal Aid
Office which is DOJ or IBP recognized.
Non-lawyers may not charge attorney’s fees
though charged against the union funds and
agreed upon. Attorney’s fees presuppose the
existence of an attorney-client relationship.
(PAFLUvs. BISCOM, G.R. L-18782, 1963).
Q: May a decision of the Labor Arbiter which
has become final and executory be novated
through a compromise agreement of the
parties?
A: Compromise agreement is encouraged and
authorized by law. Hence, they may be made even
when the judgment is final and executor. The
validity of the agreement is determined by the
compliance with the requisites and principles of
contract, and not by the time it was entered into as
provided by the law on contracts, a valid
compromise must have the following elements:
1. The consent of the parties to the
compromise;
2. An objects certain that is the subject
matter of the compromise;
3. The cause of the obligation that is
established.
PAGE 69 OF 89
LABOR LAW
Q: Does the SOLE have the power to give
arbitral awards in the exercise of his authority
to assume jurisdiction over labor dispute?
A: Yes. The arbitral award given by the Secretary
of Labor can be considered as an approximation
of a collective bargaining agreement. While the
award cannot per se be categorized as an
agreement between the parties (because of the
Secretary’s interference), it still has the force and
effect of a valid contract obligation between the
parties, as is stated in (Cirtek Employees vs. Cirtek
Electronics, G.R. 190515, 2011).
2.Requirements to perfect appeal to NLRC
Q: What are the requirements to appeal the
LA’s decision?
A: Appeal from the decision of the Labor Arbiter is
brought by ordinary appeal to the NLRC within 10
calendar days from receipt of the decision. (Vir-jen
Shipping and Marine Services v. NLRC, G.R. No.
58011-12, 1982)
The 10-day period is reckoned from receipt by
counsel of the final decision, order or award. This
applies to both appeals from the LA to NLRC and
NLRC to CA. (Sy. v. Fairland Knitcraft, G.R. No.
182915, 2011)
This 10-day period is both mandatory and
jurisdictional in nature. (Charter Chemical &
Coating Corp v. Tan, G.R. No. 163891, 2009)
NOTE: There is no appeal from the decision of the
NLRC. The only way to elevate the case to the CA
is by way of special civil action of certiorari under
Rule 65, Rules of Court.
From the ruling of the Court of the Appeals, it may
be elevated to the SC by petition for review on
certiorari under Rule 45 of the Rules of Civil
Procedure. (St. Martin Funeral Home v. NLRC, et
al., G.R. No. 130866, 1998)
ATENEG CENTRAL
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Q: What are the grounds for appeal?
A:
1. Prima facie evidence of abuse of discretion on
the part of LA.
2. The decision, order or award was secured
through fraud or coercion including graft and
corruption
3. Pure questions of law
4. Raised serious errors in the findings of facts
which could cause grave or irreparable damage or
injury to the appellant
Additional Requirement: in case of judgment
involving a monetary award, employer (appellant)
may perfect the appeal of the LA’s decision only
upon the posting of a cash or surety bond Issued
by a reputable bonding company duly accredited
by the NLRC in the amount equivalent to the
monetary award in the judgment appealed from.
Q: What is the effect of self-executing order of
reinstatement on back wages?
A: The law intends the award of backwages and
similar benefits to accumulate past the date of the
Labor Arbiter’s decision until the dismissed
employee is actually reinstated. (Siemens
Philippines v. Domingo, G.R. No. 150488. 2008)
However, if reinstatement is no longer possible,
backwages shall be computed from the time of
illegal dismissal until the date the decision
becomes final. (Javeilana v. Belen, G.R. No.
181913 and 182158, 2010)
Note: If there was implementation of
reinstatement pending appeal, either through
actual or payroll reinstatement, and the employee
received his/her salary for the period of such
reinstatement, the said amount received shall be
deducted from the total amount of backwages due
the employee, assuming the final decision of the
case awarded backwages to the employee.
An employee who was dismissed on the ground of
AWOL due to incarceration, is entitled to
reinstatement and under the principle of “no work,
nn npi\/” hiQ full harkw /an D C ehall r\nlw rnmmpnf'o
from the time he is refused work after acquittal.
(Standard Electric v. Standard Electric employees
Union, G.R. No. 166111, 2005)
PAGE 70 OF 89
LABOR LAW
Q: How is the Employer’s Liability Determined
After the Finality of the Case?
A: After finality of the case, the records will have
to be remanded to the Labor Arbiter to determine
the actual liability of the employer to each and
every employee. Both parties will have a chance
to submit further proof and argument in support of
their respective proposed computations.
For the guidance of the labor arbiter, as well as the
parties, this court lays down the following
yardsticks in the computation of the final amount
of liability:
1. Employees who have been re - employed
without loss of seniority rights shall be paid
backwages but only up to actual reinstatement;
2. Employees who have been re - employed as
new hires shall be restored their seniority and
other preferential rights. However, their
backwages shall be computed only to date of
actual re- hiring;
3. Employees who shall have reached compulsory
age of retirement shall receive backwages up to
their retirement only. The same is true as regards
the heirs of those who have passed away;
4. Employees who have not been reemployed plus
those who have executed quitclaims and received
separation pay of financial assistance shall be
reinstated without loss of seniority rights and paid
full backwages, after deduction of whatever
amounts already received; and
5. Employees who had obtained substantially
equivalent or even more lucrative employment
elsewhere in 1998 or thereafter are deemed to
have severed their employment with their previous
employer, and shall be entitled to full backwages
from the date of their retrenchment only up to the
date they found gainful employment elsewhere.
(FASAP v. PAL, G.R No. 172013, 2009)
Q: What are the requisites for perfection of
appeal?
A:
1. Filed within the reglementary period
2. Memorandum of Appeal under oath
Q A fr\/-\
\j. rvpuca! !G U
4. Cash, property, or surety bond, if
judgment involves monetary award 5. Proof of
service to the adverse party
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Q: What is the procedure for the perfection of
appeal?
A:
1. File Memorandum of Appeal within 10 calendar
days, counted from receipt of decision
2. Other party can file an Answer within 10
calendar days from receipt of Memorandum of
Appeal
3. NLRC decides within 20 calendar years
4. NLRC decision becomes final and executory 10
days after it is rendered.
(subject to MR)
NOTE: (PERLAS-BERNABE) A certificate of non­
forum shopping must be attached to the
Memorandum of Appeal. Failure to do so is a
ground for dismissal of the appeal. (Michelin Asia
Pacific Application Support Center, Inc. v. Ortiz,
G.R. No. 189861, 2014)
Appeal By Employer Involving Monetary
Award
A bond equivalent to monetary award should be
posted within the 10-day period for filing of appeal.
If no bond is filed, appeal is not perfected, (see
Catubayv. NLRC, G.R. No. 119289, 2000)
Remedy in case of failure to post bond, remedy is
to file a motion to dismiss.
Q: What is the effect of the appellant’s failure
to furnish the other party with copies of the
notice of appeal and memorandum of appeal?
A: (PERLAS-BERNABE) The mere failure to
serve the same upon the opposing party does not
bar the NLRC from giving due course to an appeal.
Such failure is only treated as a formal lapse, an
excusable neglect, and, hence, not a jurisdictional
defect warranting the dismissal of an
appeal.5lnstead, the NLRC should require the
appellant to provide the opposing party copies of
the notice of appeal and memorandum of appeal.
(Fernandez v. Botica Claudio, G.R. No. 205870,
2014)
PAGE 71 OF 89
LABOR LAW
Q: If there is no monetary award, is an appeal
bond required?
A: No. If LA’s decision does not provide for a
computation of the monetary award, no appeal
bond is required to be filed.
Q: What are the Justifications for Non-Posting
of Bond?
1. No monetary award (Aba v. NLRC, G.R. No.
122627, 1999);
2. Monetary award is not specified in the decision
(Orozco v. CA, G.R. No. 155207, 2005);
3. In case of conflict between body and fallo of the
decision, the latter should prevail (Mendoza Jr. v.
San Miguel Foods, G.R. No. 158684, 2005)
Q: Does the Motion to Reduce Bond Toll the
Running of the Period to Perfect an Appeal?
A: General Rule: Motion to reduce bond does not
toll the running of the period to perfect appeal.
Exception: See below (McBurnie v. Ganzon, G.R.
Nos. 178034 & 178117, 2013)
Q: What are the McBurnie v. Ganzon
Guidelines in Reduction of Appeal Bond?
1. The filing of a motion to reduce appeal bond
shall be entertained by the NLRC subject to the
following conditions:
o There is meritorious ground; and
o A bond in a reasonable amount is posted;
2. For purposes of compliance with the second
condition - bond in reasonable amount - a
motion shall be accompanied by the posting of
a provisional cash or surety bond equivalent to
(10%) of the monetary award subject of the
appeal, exclusive of damages and attorney's
fees;
3. Compliance with the foregoing conditions shall
suffice to suspend the running of the 10-day
reglementary period to perfect an appeal from
the labor arbiter’s decision to the NLRC;
4. The NLRC retains its authority and duty to
resolve the motion to reduce bond and
determine the final amount of bond that shall be
posted by the appellant, still in accordance with
the standards of meritorious grounds and
reasonable amount; and
ATENEO CENTRAL
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5. in the event thai the NLRC denies the motion to
reduce bond, or requires a bond that exceeds
the amount of the provisional bond, the
appellant shall be given a fresh period of 10
days from notice of the NLRC order within
which to perfect the appeal by posting the
required appeal bond.
Note: A substantial monetary award, even if it runs
into millions, does not necessarily give the
employer- appellant a ‘meritorious case’ and does
not automatically warrant a reduction of the appeal
bond. (Calabash Garments v. NLRC, G.R. No.
110827, 1996)
The right to appeal is neither a natural right nor a
component of due process, and it must be
exercised in the manner prescribed by law.
Financial difficulties may not be invoked as a
valid ground to reduce bond. At any rate, it was
not substantiated by proof. (Turks Shawarma v.
Pajaron, G.R. No. 207156, January 16, 2017)
Q: For purposes of justifying the reduction of
the appeal bond, what does “the existence of a
meritorious ground” mean?
A: (PERLAS-BERNABE) The merit may pertain
to (a) an appellant's lack of financial capability to
pay the full amount of the bond, or (b) the merits
of the main appeal such as when there is a valid
claim thai there was no iiiegal dismissal to justify
the award, the absence of an EER, prescription of
claims, and other similarly valid issues that are
raised in the appeal. (Quantum Foods v. Esloyo
and Magsila, G.R. No. 213696, 2015)
Q: Is the simultaneous filing of motion to
reduce bond and posting of the reduced
amount substantial compliance with Article
223 of the Labor Code?
A: Yes. While the bond requirement on appeals
involving a monetary award has been relaxed in
certain cases, this can only be done where there
was substantial compliance with the rules or where
the appellants, at the very least, exhibited
willingness to pay by posting a partial bond.
(Magdala Multipurpose v. KMLMS, G.R. 191138-
39,2011).
PAGE 72 OF 89
LABOR LAW
Q: What are examples of meritorious grounds?
A:
1. Fundamental consideration of substantial
justice;
2. Prevention of miscarriage of justice or of unjust
enrichment; or
3. Special circumstances of the case combined
with its legal merits and the amount and issue
involved (Garcia v. KJ Commercial, G.R. No.
196830, 2012)
NOTE: 10% Appeal Bond is Provisional
The 10% requirement pertains to the reasonable
amount which the NLRC would accept as the
minimum of the bond that should accompany the
motion to reduce bond in order to suspend the
period to perfect an appeal under the NLRC rules.
The 10% is based on the judgment award and
should in no case be construed as the minimum
amount of bond to be posted in order to perfect
appeal. There is no room for a different
interpretation when it was made clear that the
percentage of bond set is provisional. (Sara Lee v.
Macatlang, G.R. No. 180147, 2015)
Enforcement
Any law enforcement agency may be deputized by
the DOLE Secretary or the NLRC.
Issuance of writ of execution on a judgment within
5 years from date it becomes final and executory
motu proprio or in motion of any interested party.
3. Reinstatement pending appeal
Q: What are the rules on reinstatement
pending appeal?
A: If reinstatement is ordered in an illegal
dismissal case, it is immediately executory even
pending appeal. This means that the perfection of
an appeal shall stay the execution of the decision
of the Labor Arbiter except execution of the
reinstatement pending appeal.
Self-executing with no need for a writ of execution
- only applicable to order issued by Labor Arbiter.
Writ of execution required when reinstatement is
ordered by NLRC on appeal, or subsequently by
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the court of appeals or Supreme Court, as the the reinstatement order was issued up to the date
case may be. when the same was reversed by a higher court
without fear of refunding what he had received.
Either admitted back to work under the same (Garcia v. Philippine Airlines, Inc., G.R:
terms and conditions prevailing prior to his No. 164856, 2009)
dismissal or separation or merely reinstated in the
payroll (at the option of the employer, i.e. B. NATIONAL LABOR RELATIONS
confidential employee, but the choice must be COMMISSION (NLRC)
communicated to the employee by the employer)
Posting of a bond shall not stay the execution of Q: Who has the jurisdiction to hear cases over
reinstatement. company-owned property, the Labor Arbiter or
the NLRC?
The unjustified refusal of the employer to reinstate
an illegally dismissed employee entitles the A: Both, although the Labor Arbiter has primary
employee to payment of his salaries. jurisdiction. In Yupangco Cotton vs. CA (G.R.
126322, 16 January 16, 2002), the Court held a
Reinstatement Pending Appeal (Art. 229) vs. third party whose property has been levied upon
Order of Reinstatement (Art. 294) by a sheriff to enforce a decision against a
ART. 229 ART.294 judgment debtor is afforded with several
Order of reinstatement The order of alternative remedies to protect its interests. The
by the LA is reinstatement third party may avail himself of alternative
immediately executory presupposes the remedies cumulatively, and one will not preclude
pending appeal. award thereof is the third party from availing himself of the other
pursuant to a final and alternative remedies in the event he failed in the
It is similar to a return- executory judgment, remedy first availed of. Thus, a third party may
to-work order. and not while the case avail himself of the following alternative remedies:
for illegal dismissal is (a) File a third party claim with the sheriff of the
pending on appeal. Labor Arbiter, and (b) If the third party claim is
Issued by the Labor Issued by the NLRC, denied, the third party may appeal the denial to the
Arbiter CA, or SC NLRC. Even if a third party claim was denied, a
Generally, no need for Requires the issuance third party may still file a proper action with a
the issuance of a writ of a writ of execution. competent court to recover ownership of the
of execution. property illegally seized by the sheriff.
Q: Can a party file with the NLRC a second
NOTE: Jurisprudence On Writ of Execution motion for reconsideration?

If despite several writs of execution, the employer A: (PERLAS-BERNABE) No. A second motion for
still refuses to reinstate the employee, the remedy reconsideration is a prohibited pleading under the
is not the grant of additional backwages to serve NLRC Rules.
as damages but to file a motion to cite the
employer for contempt. (Christian Literature
Crusade v. NLRC, G.R. No. 79106, 1989)

LA upheld the validity of the dismissal; NLRC

reversed. CA held that dismissal was valid. Held:
The employer is liable to pay for the salary of the
employee previously ordered reinstated by the
NLRC although later on, the dismissal of the
employee was held not to be illegal. (Roquero v.
PAL, G.R. No. 152329, 2003)

An order for reinstatement entitles an employee to

receive his accrued backwages from the moment
PAGE 73 OF 89
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C. JUDICIAL REVIEW OF LABOR RULINGS
1. COURT OF APPEALS
1. Rule 65, Rules of Court
Q: Are decisions of a VA appealable to the CA?
A: Yes, via a petition for review under Rule 43. A
petition for certiorari is the wrong remedy, which
may result in outright dismissal.
Q: What are the only instances when a petition
for certiorari under Rule 65 be brought to the
Court of Appeals?
A: If the labor case was decided by:
1. the DOLE Secretary, in his appellate
jurisdiction;
2. the Commission (NLRC); and
3. the Director of the Bureau of Labor Relations
(BLR) in cases decided by him in his appellate
jurisdiction (as distinguished from those he
decides in his original jurisdiction which are
appealable to the DOLE Secretary).
The remedy of ordinary appeal to the Court of
Appeals is not available from their decisions,
orders or awards. The reason for this rule is that
their decisions, orders or awards are final and
executory and therefore unappealable. (Chan
Robles, Labor Code)
Q: What is the requisite before filing a petition
for review under Rule 65?
A: A Motion for Reconsideration must have been
filed before the DOLE Secretary, NLRC, or BLR
Director, as the case may be. This is mandatory
and jurisdictional.
A motion for reconsideration should be filed even
though it is not required or even prohibited by the
concerned government office. This was the rule
enunciated in the 2014 case of Philtranco Service
Enterprises, Inc. v. PWU-AGLO (G.R. No. 180962,
2014). Thus, while a government office may
prohibit altogether the filing of a motion for
reconsideration with respect to its decisions or
orders, the fact remains that certiorari inherently
requires the filing of a motion for reconsideration
which is the tangible representation of the
opportunity given to the office to correct itself.
PAGE 74 OF 89
LABOR LAW
Simply put, regardless of the proscription against
the filing of a motion for reconsideration, the same
may be filed on the assumption that rectification of
the decision or order must be obtained and before
a petition for certiorari may be instituted.
Q: May the Labor Arbiter, NLRC or Court of
Appeals validly award attorney’s fees in favor
of a complainant even if not claimed or proven
in the proceedings?
A: Yes. The provision on attorney’s fees in Article
111 envisions a situation where there is a judicial
or administrative proceeding for recovery of
wages. Upon the termination of the proceedings,
the law allows a deduction for attorney’s fees of
10% from the total amount due to the winning
party. (Vengco v. Trajano, G.R. 74453, 1989).
Hence, even if there is no claim and proof,
attorney’s fees not more than 10% of the amount
entitled may be awarded. The court has also a
liberty of decreasing it if the questions involved in
the litigation are neither novel nor difficult. (D.M.
Consunji v. NLRC, G.R No. 71459, 1986).
2. SUPREME COURT
1. Rule 45, Rules of Court
D. BUREAU OF LABOR RELATIONS
1. Jurisdiction (Original And Appellate)
Q: What is the jurisdiction of the BLR?
BUREAU OF LABOR RELATIONS (BLR)
ORIGitNAiaiMRiSDlCTlON
1. Union registration of federations,
national unions, or workers’
associations operating in more than
one region
2. Change of name or merger or
consolidation of federation or national 1
union
3. Direct or indirect contempt for acts
committed against BLR Director
4. Petition for certification election by an
employer who was requested to
bargain c o l l e c t i v e l y __________
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5. Petitions for conduct of election of
union officers of federations, national or
industry unions and trade union centers
6. Requests or complaint for accounts
examination of federations or national
unions and trade union centers
pursuant to Art. 289
7. Inter/intra-union and other labor
relations disputes involving federations,
national or industry unions, trade union
centers and their chartered locals,
affiliates or member organixations,
except those arising from
implementation and interpretation of
CBA
8. Complaint or petition alleging
mishandling, misappropriation or non­
accounting of funds of federations or
national unions and trade union
centers, in violation of Art. 250 (treated
as an intra-union dispute)
9. Petitions and applications for
cancellation of registration of
federations, national or industry unions
and trade union centers
■ AP^I»MCTfe^umSD»CTIQ^;-: ' 1
A. All disputes from the Labor Relations
Division
B. Med-Artbitration Unit (Med-Arbiter)
1. Accounts examination of independent
unions, chartered locals, and worker’s
associations pursuant to Art. 289
2. Other inter-intra-union and labor
relations disputes of independent
unions, chartered locals, and workers’
association not under RD’s jurisdiction
and not arising from implementation
and interpretation of CBA
3. Complaint or petition alleging
mishandling, misappropriation or non­
accounting of funds of independent
unions, chartered locals, or workers’
associations, in violation of Art. 250
C. All decisions of the Regional Director
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LABOR LAW
E. NATIONAL CONCILIATION AND
MEDIATION BOARD
1. Conciliation vs. Mediation
1. Notice of strike or lockout (treated as a
preventive mediation case)
2. Conduct, upon request or on its own
initiative, of the secret balloting for strike or
lockout vote
3. Conduct, upon request or on its own
initiative, referendum by secret balloting on
improved offer of the employer or reduced
offer of union
4. Conciliation-mediation services to labor
disputes other than strikes or lockouts, upon
request or on its own initiative
5. Disciplinary action against voluntary
arbitrator who failed to render a decision,
resolution, order or award within prescribed
period
With the voluntary arbitrator
1. Intervention upon request or on its own
initiatives, in disputes arising from
differences in CBA proposals
With the Labor Arbiter
1. Wage distortion disputes in unorganized
establishments that were not voluntarily
settled by the parties and not resolved by
NCMB after 10 calendar days___________
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2. Preventive mediation
Q: What labor cases are covered by preventive
mediation?
A: Labor disputes which are the subject of a forma!
or informal request for conciliation and mediation
assistance sought by either or both parties or upon
the initiative of the NCMB (NCMB Manual of
Procedures, section 1(24).
Q: Who may request for preventive mediation?
A: Only a certified or duly recognized bargaining
agent may file a notice or request for preventive
mediation.
In the case of (insular Hotel Employees Union­
istFL v. Waterfront Insular Hotel Davor, G.R. No.
174040-41), the Court ruled that the NCMB has no
jurisdiction to entertain any notice filed by the
federation in behalf of individual union members of
its local.
F. DOLE REGIONAL DIRECTORS
1. Recovery of Adjudicatory Power
Requisites for Regional Director to Decide
Small Money Claims
1. Claim is presented by an employee, or a
person employed in domestic or household
service, or employer;
2. The claim arises from an EER;
3. The claimant does not seek reinstatement;
and
4. The aggregate money claim of each claimant
does not exceed PhP 5,000
Notes: in the absence of any of the above
requisites, the Labor Arbiter will have jurisdiction
over the case, pursuant to ART. 224.
The claimant need not be an employee at the time
the complaint has been filed; it is enough that the
claim arises from employment
Appeal from the Regional Director’s Decision
The Complainant may apnea! to the NLRC within
10 calendar days from a receipt of a copy of the
Regional Director s decision / resolution.
PAGE 76 OF 89
LABOR LAW
Q: When is it appropriate to file a money claim
before the DOLE Regional Director?
A: The DOLE Regional Director has original
jurisdiction over small money claims cases arising
from labor standards violations in the amount not
exceeding P5,000.00 and not accompanied with a
claim for reinstatement under Article 129 of the
Labor Code.
Article 129 contemplates the recovery of wages
and other monetary claims and benefits, including
legal interest, owing to an employee or domestic
worker or kasambahay, arising from employer-
employee relations provided the claim does not
exceed P5,000.00.
Q: What are the requisites for the valid
exercise of jurisdiction by the DOLE Regional
Director?
A: The following requisites must all concur, to wit:
1. The claim is presented by an employee or
domestic worker or kasambahay;
2. The claimant, no longer being employed,
does not seek reinstatement; and
3. The aggregate money claim of the
employee or domestic worker or
kasambahay does not exceed P5,000.00.
(Labor Code, Art. 129)
G. DOLE SECRETARY
1. Visitorial and enforcement powers
Q: What are the visitorial and enforcement
powers of the DOLE Secretary?
A: The Secretary of Labor and Employment or his
duly authorized representatives have the power
to:
1. Access to employer’s records and
premises at any time of the day or night
whenever work is being undertaken therein,
and
2 the right to copy therefrom,
3. to question any employee and investigate
matters which may be (1) necessary to
determine violations or (2) which may aid in
the enforcement of labor laws or rules.
4. to issue compliance orders to give effect to
the labor standards
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5. issue writs of execution, except in cases
where the employer (1) contests the findings
and (2) raises issues supported by
documentary proofs which were not
considered in the course of inspection.
6. (limited to the Secretary) order stoppage of
work due to non-compliance with the law or
IRR that poses grave and imminent danger to
the health and safety of workers in the
workplace, (a hearing within 24 hours shall
determine if the suspension should be lifted
or not.) In case the violation is attributable to
the employer, he shall pay the employees’
salaries during suspension.
7. (limited to the Secretary) by appropriate
regulations, require employers to keep and
maintain such employment records as
may be necessary in aid of his visitorial and
enforcement powers. (Labor Code, Art. 128)
Q: May an inferior court issue a TRO against
the enforcement orders of the Secretary in line
with his regulatory and visitorial powers?
A: "No inferior court or entity shall issue temporary
or permanent injunction or restraining order or
otherwise assume jurisdiction over any case
involving the enforcement orders issued in
accordance with this Article.” (Labor Code, Art.
128)
Q: Under what conditions may the Secretary of
Labor or his duly authorized representative
inquire into the financial activities of legitimate
labor organizations?
A: The Secretary of Labor and Employment or his
duly authorized representative is hereby
empowered to inquire into the financial activities of
legitimate labor organizations upon the filing of a
complaint under oath and duly supported by the
written consent of at least 20% of the total
membership of the labor organization concerned
and to examine their books of accounts and other
records to determine compliance or non-
compliance with the law and to prosecute any
violations of the law and the union constitution and
by-laws:
Provided, That such inquiry or examination shall
not be conducted during the 60-day freedom
period nor within the 30 days immediately
PAGE 77 OF 89
LABOR LAW
preceding the date of election of union officials.
(Labor Code, Art. 289)
Q: Does the SOLE generally have jurisdiction
over appeals?
A: No. In The Heritage Hotel vs. National Union of
Workers (G.R. 178296, 2011), “jurisdiction
remained with the BLR despite the BLR Director’s
inhibition. When the DOLE Secretary resolved the
appeal, she merely stepped into the shoes of the
BLR Director and performed a function that the
latter could not himself perform. She did so
pursuant to her power of supervision and control
over the BLR.”
Q: Does the SOLE have the power to give
arbitral awards in the exercise of his authority
to assume jurisdiction over labor dispute?
A: Yes. The arbitral award given by the Secretary
of Labor can be considered as an approximation
of a collective bargaining agreement. While the
award cannot per se be categorized as an
agreement between the parties (because of the
Secretary's interference), it still has the force and
effect of a valid contract obligation between the
parties, as is stated in (Cirtek Employees vs. Cirtek
Electronics, G.R. 190515, 2011).
Q: May the Secretary of Labor and
Employment issue search and arrest warrants
when it initiates actions against alleged illegal
recruiters?
A: No, the Secretary of DOLE, not being a judge,
cannot issue search or arrest warrants. Under Art.
Ill, sec. 2 of the 1987 Constitution, it is only the
judge, and no other, who may issue warrants of
arrest and search. (Salazar vs. Achacoso, G.R.
81510, 1990)
2. Power to suspend effects of termination
NOTE: The Secretary of Labor and Employment
may suspend the effects of the termination
pending resolution of the dispute in the event of a
prima facie finding by the appropriate official of the
Department of Labor and Employment before
whom such dispute is pending that the termination
may cause a serious labor dispute or is in
implementation of a mass lay-off. (Labor Code,
Art. 292[b])
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Q: Under whai conditions may the Secretary of
Labor or his duly authorized representative
inquire into the financial activities of legitimate
labor organizations?
A: The Secretary of Labor and Employment or his
duly authorized representative is hereby
empowered to inquire into the financial activities of
legitimate labor organizations upon the filing of a
complaint under oath and duly supported by the
written consent of at least 20% of the total
membership of the labor organization concerned
and to examine their books of accounts and other
records to determine compliance or non
compliance with the law and to prosecute any
violations of the law and the union constitution and
by-laws:
Provided, That such inquiry or examination shall
not be conducted during the 60-day freedom
period nor within the 30 days immediately
preceding the date of election of union officials.
(Labor Code, Art. 289)
NOTE: Secretary of Labor generally has NO
jurisdiction over appeals
In The Heritage Hotel vs. National Union of
Workers (G.R. 178296, 2011), the Supreme Court
ruled that jurisdiction remained with the BLR
despite the BLR Director's inhibition.
“When the DOLE Secretary resolved the appeal,
she merely stepped into the shoes of the BLR
Director and performed a function that the latter
could not himself perform.”
Q: What power does the SOLE have with
regard to arbitral awards?
A: The SOLE has the power to give arbitral awards
in the exercise of his authority to assume
jurisdiction over labor dispute.
The arbitral award given by the Secretary of Labor
can be considered as an approximation of a
collective bargaining agreement. While the award
cannot per se be categorized as an agreement
between the parties (because of the Secretary's
interference), it still has the force and effect of a
valid contract obligation between the parties, as is
stated in (Cirtek Employees vs. Cirtek Electronics,
G.R. No. 190515, 2011).
Remedy where no EER exists
PAGE 78 OF 89
LABOR LAW
Where no employer-employee relation exists
between the parties and no issue is involved which
may be resolved by reference to the Labor Code,
other labor statutes, or any collective bargaining
agreement, it is the RTC that has jurisdiction.
The RTC has jurisdiction over the claim of an
independent contractor to adjust the contractor’s
fee. (Urbanes v. Secretary of Labor, G.R. No.
122791, 2003)
H. GRIEVANCE MACHINERY
Q: In the absence of applicable provision in the
collective bargaining agreement, what is the
structure for and the mechanics of grievance
handling?
A: In the absence of a specific provision In the
collective bargaining agreement or existing
company practice prescribing for the procedures
in handling grievance, the following shall apply:
a. An employee shall present his grievance
or complaint orally or in writing to the shop
steward;
b. If the grievance is valid, the shop steward
shall immediately bring the complaint to
the employee’s immediate supervisor.
The shop steward, the employee and his
immediate supervisor shall exert efforts to
settle the grievance at their level.
c. If no settlement Is reached, the grievance
shall be referred to the grievance
committee which shall have ten (10) days
to decide the case.
L VOLUNTARY ARBITRATORS
1. Jurisdiction (Art. 274)
2. Remedies
Q: What issues or controversies may be the
subject of voluntary arbitration?
A:
1. Article 261 of the Labor Code provides
that Voluntary Arbitrator shall have
original and exclusive jurisdiction over
unresolved grievances arising from the
interpretation or implementation of the
CBA and those arising from the
interpretation or enforcement of company
personnel policies.
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2. Violations of the CBA which are not gross
in character if not resolved through the
grievance machinery.
3. All other labor disputes including ULP and
bargaining deadlock upon agreement of
the parties (Labor Code, Art. 262)
Q: Is a dispute settled through voluntary
arbitration inconsistent with Article 217 of the
Labor Code?
A: No. The SC in The University of Immaculate
Concepcion vs. NLRC (G.R. 181146, 2011),
stated that Article 262 provides of an exception,
and “for the exception to apply, there must be
agreement between the parties clearly conferring
jurisdiction to the voluntary arbitrator. Such
agreement may be stipulated in a collective
bargaining agreement. However, in the absence of
a collective bargaining agreement, it is enough
that there is evidence on record showing the
parties have agreed to resort to voluntary
arbitration.”
Q: How do you execute a labor judgment
which, on appeal, had become final and
executory?
A: By filing a motion for execution and serving a
writ of execution to be served by the sheriff or such
law enforcement agency as may be deputized by
the DOLE or NLRC. It may also be issued motu
propio by the Labor Arbiter. (Labor Code, Arts. 223
& 224)
Q: What are the instances when an order of
execution may be appealed?
A:
1. When execution becomes impossible or
unjust, it may be modified or altered on appeal
to harmonize the same with justice and the
facts (Torres vs. NLRC, G.R. No. 107014,
2000 ) .
2. Supervening events may warrant modification
in the execution of judgment, as when
reinstatement is no longer possible because
the position was abolished as a cost-cutting
measure due to losses. (Abalos vs. Philex
Mining Corp, G.R. No. 140374, 2002).
3. Where the writ is found defective, exceeds or
. varies the award and/or is irregularly issued.
(DBP v. Union Bank, G.R. No. 155838, 2004).
PAGE 79 OF 89
LABOR LAW
Q: PD 1508 requires the submission of
disputes before the Barangay Lupong
Tagapamayapa prior to the filing of cases with
the courts or other government bodies. May
his decree be used to defeat a labor case filed
directly with the Labor Arbiter?
A: Labor disputes are the exception to PD 1508.
Linder Art. 226 of the Labor Code, motions to
dismiss before the Labor Arbiter are only allowed
on grounds of lack of jurisdiction, improper venue
and bar by prior judgment or prescription. Hence,
failure to resort to barangay conciliation is not a
valid ground to defeat the labor case.
Q: Can any of the parties appeal the decision
of the voluntary arbitrator despite an
agreement between the parties that the
decision of the arbitrator shall be final and
unappealable?
A: (PERLAS-BERNABE) Yes. in view of the
nature of their functions, voluntary arbitrators act
in a quasi-judicial capacity; hence, their judgments
or final orders which are declared final by law are
not so exempt from judicial review when so
warranted. Any agreement stipulating that the
decision of the arbitrator shall be final and
unappealable and that no further judicial recourse
if either party disagrees with the whole or any part
of the arbitrator’s award may be availed of cannot
be held to preclude in proper cases the power of
judicial review which is inherent in courts. (Coca-
Cola Fernsa Philippines v. Bacolod Sales Force
Union, G.R. No. 220605, 2016)
J. PRESCRIPTION OF ACTIONS
Q: What are the various prescriptive periods
for actions relating to labor disputes?
A: General Rule: 3 years from the time the cause
of action accrued.
Exception: ULP. cases prescribe within 1 year
from accrual of such unfair labor practice. (Labor
Code, Arts. 290-291)
Q: Does the period of prescription in Article
291 of the Labor Code apply only to money
claims so that the period of prescription for
other cases of injury to the rights of employees
is governed by the Civil Code? Thus, an action
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for reinstatement for injury to an e m p l o y e e ’s

rights prescribes in four (4) years as provided
in Article 1146 of the Civil Code?

A: YES. A complaint founded on illegal dismissal

is not an ordinary money claim but a claim for
reinstatement and action which may be brought
within four (4) years from dismissal pursuant to
Article 1146 of the Civil Code. (New Imus Lumber
v.. NLRC, G.R. No. 83631, 1993). The four-year
prescriptive period under Article 1146 of the Civil
Code shall be followed in illegal dismissal cases in
view of the injury of the rights of a working man.
(Reno Foods v. NLRC, G.R. 116462, 1995).

Q: What is the prescriptive period for filing an

action for illegal dismissal?

A: An action for reinstatement by reason of illegal

dismissal must be brought within four (4) years
from the time of dismissal pursuant to Art. 1146 of
the New Civil Code. (Azcor Manufacturing v.
NLRC, February 11, 1999)

Q: May the union president sign the

certification and verification against forum
shopping on behalf of a union?

A: Yes. The union president is in a position to

verify the truthfulness and correctness of the
allegations in the petition. Other allowable officers
include -
1. the Chairperson of the Board of Directors
2. the President of a corporation
3. the GM or acting GM
. 4. Personnel officer
5. Employment specialist In a labor case
(PSTMSDWO v. PNCC Skyway
Corporation, G.R. 171231, 2010).

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Summary Table: Prescription of Actions
ACTION
Money claims
Illegal dismissal
Unfair Labor Practice
Offenses penalized by the Labor
Code and IRR issued pursuant
thereto
HlegalRecruitment Cases
Actions involving union funds
LABOR LAW
PERIOD
a. Prescriptive period is three (3) years under Article 291 of the
Labor Code. - The prescriptive period of all money claims and
benefits arising from employer-employee relations is 3 years from
the time the cause of action accrued; otherwise, they shall be
forever barred.
b. All other money claims of workers prescribe in 3 years. -
Article 291 contemplates all money claims arising from employer-
employee relationship, including:
1. Money claims arising from the CBA. 2. Incremental proceeds
from tuition increases. 3. Money claims of Overseas Filipino
Workers (OFWs).
In the 2010 case of Southeastern Shipping v. Navarra, Jr.,4 the
1-year prescriptive period in Section 28 of POEA-SEC was
declared null and void. The reason is that Article 291 of the Labor
Code is the law governing the prescription of money claims of
seafarers, a class of overseas contract workers. This law prevails
over said Section 28.
Legal basis is not Article 291 of the Labor Code but Article
1146 of the Civil Code. - The 3-year prescriptive period in Article
291 solely applies to money claims but not to illegal dismissal cases
which are not in the nature of money claims. The prescriptive period
of illegal dismissal cases is 4 years under Article 1146 of the Civil
Code.
Prescriptive period of ULP cases is 1 year (Article 290, Labor
Code).
a. Prescriptive period is 3 years (Article 290, Labor Code). - The
prescriptive period of all criminal offenses penalized under the
Labor Code and the Rules to Implement the Labor Code is three
(3) years from the time of commission thereof.
b. Consequence of non-compliance with prescriptive period
• under Article 290. - Failure to initiate or file, the criminal action or
complaint within the prescriptive period shall forever bar such
action.
c. Illegal dismissal is not an “offense5’ under Article 290. - The
act of the employer in dismissing an employee without cause.,
although a violation of the Labor Code and its implementing rules,'
does not amount to an “offense” as this term is understood and
contemplated under Article 290.
a. Simple illegal recruitment cases. - The prescriptive period is five
(5) years.
b. Illegal recruitment cases involving economic sabotage. - The
prescriptive period is twenty (20) years.
A complaint or petition for audit or examination of funds and books
of accounts prescribes within three (3) years: (a) from the date of
submission of the annual financial report to the DOLE; or (b) from
PAGE 81 OF 89
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the date the same should have been submitted as required by law,
whichever comes earlier.
It should be noted, however, that this provision on the prescriptive
period applies only to a legitimate labor organization which has
submitted the financial report required under the Labor Code.
Claims for SSS Benefits a. Action against employer. The right to institute the necessary
action against the employer for non-remittance of contributions may
be commenced within twenty (20) years:(1) from the time the
delinquency is known; or(2) from the time the assessment is made
by the SSS; or(3) from the time the benefit accrues, as the case
may be.

b. Action for disability ciaims.The prescriptive period in the filing of

disability benefit claim is ten (10) years from the date of occurrence
of disability.
Claims for GSIS Benefits Claims for benefits, except for life and retirement, prescribe after
four (4) years from the date of contingency.

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TABLE OF ENUMERATIONS

Topic Acronym Enumeration

1. Constitutional Rights WHOSE-CD 1. To a living Wage;
of Labor 2. To Humane working conditions;
3. To Organize;
4. To Security of tenure;
5. To Engage in peaceful concerted activities,
which includes the right to strike, in
accordance with law;
6. To Conduct collective bargaining or
negotiation with management;
7. To participate in policy and Decision-making
processes affecting their rights and benefits as
may be provided by law
2. How to correct wage VACAC 1. By Voluntary Arbitration after prior referral to
distortion grievance machinery. (Labor Code, art. 124).
2. By Compulsory Arbitration after prior referral
to NCMB conciliation. (Labor Code, art. 124);
or
3. By provisions in the CBA, which re-establishes
the wage gap, or a unilateral grant by the
employer which also restores said gap are
valid wage distortion schemes.
3. Qualifications of 15-VOCA-COFO 1. Be at least fifteen (15) years of age;
Apprentices 2. Possess VOCAtional aptitude and capacity for
appropriate tests;
3. Possess the ability to Comprehend and
FOIlow oral and written instructions
4. Pre-requisites before NUN 1. No experienced workers are available
Learners may be 2. Employment of learners is Necessary to
employed prevent curtailment of employment
opportunities
3. Employment does not create Unfair
competition in terms of labor costs or impair to
lower working standards-
5. Rules on NUCS 1. Their employment is Necessary to prevent
Handicapped curtailment of employment opportunities
Workers 2. Does not create Unfair Competition in labor
costs
3. Does not impair or lower working Standards
(Labor Code, Art. 79)
6. What are the unlawful PDD-CoP-FOE A. It shall be unlawful for an emplover to:
acts under Anti-Age . RR 1. Print or publish, or cause to be printed or
Discrimination in MEC published, in any form of media, including
Employment Act? PP the internet, any notice of advertisement
relating to employment suggesting
preferences, limitations, specifications,
and discrimination based on age;

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2. Require the Declaration of age or birth

date during the application process;
3. Decline any employment application
because of the individual's age;
4. Discriminate against an individual in terms
of Compensation, terms and conditions or
privileges of employment on account of
such individual's age;
5. Deny any employee’s or worker's
Promotion or opportunity for training
because of age;
6 Forcibly lay off an employee or worker
because of old age\ or
7. Impose Early retirement on the basis of
such employee's or worker's age.

B. It shall be unlawful for ajabor contractor or

subcontractor, if anv, to Refuse to Refer for
employment or otherwise discriminate against any
Individual because of such person's age.
C. It shall be unlawful for a labor oraanization to:
1. Deny Membership to any individual because
of such individual's age;
2. Exclude from its membership any individual
because of such individual's age; or
3. Cause or attempt to cause an employer to
discriminate against an individual in violation
of this Act.

D. It shall be unlawful for a publisher to Print or

Publish any notice of advertisement relating to
employment suggesting preferences, limitations,
specifications, and discrimination based on age.
7. Benefits covered by RROR-NWACSS 1. Regular working hours
the provisions on 2. Regular working days
Working Conditions 3. Overtime work
and Rest Periods 4. Regular meal period
5. Night shift differential pay
6. Weekly rest periods
7. Additional compensation on scheduled rest
day, Sunday, or special holiday work
8. Compensation for holiday work
9. Service incentive leave/service incentive
leave pay
10. Share in the collected service charges
8. Employees excluded Go-Ma-FiFa-DoPeR 1. Governmental employees
from provisions on 2. Managerial employees
Working Conditions 3. Field personnel
and Rest Periods 4. Members of the Family of the employer who
are dependent on him for support

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5. Domestic helpers
6. Persons in the personal service of another
7. Workers who are paid by Result
9. Duties and PODATS-20 1. The primary duty consists of the performance
Responsibilities of of work directly related to management
managerial staff Policies of the employer;
2. Managerial staff customarily and regularly
exercise Discretion and independent
judgment;
3. They regularly and directly Assist a
proprietor/managerial employee, whose
primary duty consists of the management of
the establishment, or execute under general
supervision work along specialized or
technical lines requiring special training,
experience or knowledge, or execute under
general supervision special assignments and
tasks;
4. Managerial staff do not devote more than 20%
of their work hours in a week to activities which
are not directly and closely related to
management of the establishment.
10. When compulsory OT P2W2IM 1. Emergency Completion of work started before
work is allowed the 8th hour and is necessary to Prevent
serious obstruction or prejudice to the
business
2. Urgent work to be performed on Machines to
avoid serious loss or damage to employer
3. Necessary to Prevent loss of life/property or
Imminent danger to public safety
4. Necessary to prevent loss or damage to
Perishable goods
5. Necessary to avail of favorable Weather or
environmental condition
11. When work on a rest UAAP FAN 1. In case of Urgent work to be performed on
day is authorized ; machineries, equipment or installations to
avoid serious loss which the employer would
otherwise suffer
2. In case of Actual or impending emergencies
caused by serious accident, fire, flood,
typhoon, earthquake, epidemic, or other
disaster or calamity, to prevent loss of life or
property, or in cases of force majeure or
imminent danger to public safety
3. In the event of Abnormal pressure of work due
to special circumstances, where the employer
cannot ordinarily be expected to resort to other
measures
4. To Prevent serious loss of perishable goods

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5. When the work is necessary to avail of

Favorable weather conditions where
performance or quality of work is dependent
thereon
6. Under other Analogous or similar
circumstances
7. Where the Nature of the work is such that the
employees have to work continuously for 7
days a week or more as In the case of crew
members of a vessel to complete a voyage
and in other similar cases
12. Other deductions DUMP-LAW-CAT 1. In cases where the employee is indebted to
awed employer, where such indebtedness has
become Due and demandable
2. Union dues
3. Deductions for value of Meals and other
facilities
4. SSS, Medicare, Pag-IBIG Premiums
5. Deductions for Loss or damage
6. Agency fee
7. In court awards, Wages may be the subject of
execution or attachment, but only for debts
incurred for food, shelter, clothing, and
medical attendance
8. Salary deductions of a legally established
Cooperative
9. Deductions for payment to 3rd persons, upon
written Authorization of the employee
10. Withholding Tax
13. Excluded from wage HRN 1. Household or domestic helpers, including
orders family drivers and workers in the personal
service of another
2. Workers and employees in Retail/service
establishments regularly employing not more
than 10 workers, when exempted from
compliance, for a period fixed by the
Commission/Boards
3. Workers and employees in New business
enterprises outside the National Capital
Region and export processing zones for a
period of not more than two or three years, as
the case may be, from the start of operations
when exempted
14. Elements of wage HCEE 1. An existing Hierarchy of positions with
distortion corresponding salary rates;
2. A significant Change In the salary rate of a
lower pay class without a concomitant
increase in the salary rate of a higher one;
3. The Elimination of the distinction between the
two levels; and

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4. The Existence of the distortion in the same

region of the country.
15. Excluded from SIL GoMaMa-FiA-5-10 1. Government employees, whether employed
coverage by the National Government or any of its
political subdivisions, including those
employed in GOCCs with original charters or
created under special laws;
2. Managerial employees, if they meet all of the
following conditions.
3. Officers or members of a Managerial staff
4. Field personnel and those whose time and
performance is unsupervised by the employer;
5. Those Already enjoying this benefit;
6. Those enjoying vacation leave with pay of at
least five (5} days; and
7. Those employed in establishments regularly
employing less than ten (10) employees.
16. Conditions for MAC-BG 1. A Married male employee at the time of
Paternity Leave delivery of his child;
2. Cohabiting with his spouse at the time she
gives birth or suffers a miscarriage;
3. Applied for paternity leave within a reasonable
period from the expected date of delivery or
within such period as may be provided by
company rules or by CBA; prior application is
not required in case of miscarriage;
4. Wife has given Birth or suffered a miscarriage.
5. Where a male employee is already enjoying
the paternity leave benefits by reason of
contract, company policy or CBA, the Greater
benefit prevails.
17. How to avail Paternity INI 1. Has rendered at least 1 year of service,
Leave whether continuous or broken;
2. Has Notified the employer within a
reasonable period
3. Has presented a Solo Parent ID-to the
" employer which may be obtained from the
DSWD office of the city or municipality where
the employee resides
18. Sexual harassment AIM-WET 1. Authority,
2. Influence,
3. Moral ascendancy
4. in a Work,
5. Education, or
6. Training-related environment.
19. Conditions so child SH-20-4-8-6 1. Must be directly under the Sole supervision of
under 15 years old his parents or guardian (Labor Code, Art. 139)
and under allowed to 2. Cannot be made to work for more than 20
work hours a week

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3. Work shall not be more than 4 hours per day

4. Should not work between 8pm and 6am
5. Work is not Hazardous or deleterious to the
child’s health or morals (R.A. 9231, Sec. 3)
20. Rights of anpace 1. The domestic worker shall not be subjected to
Kasambahay any kind of Abuse or any form of physical
violence or harassment or any act tending to
degrade his or her dignity.
2. The employer shall provide for the basic
Necessities of the domestic worker to include
at least three (3) adequate meals a day and
humane sleeping arrangements that ensure
safety.
3. Respect for the Privacy of the domestic worker
shall be guaranteed at all times and shall
extend to all forms of communication and
personal effects.
4. The employer shall grant the domestic worker
Access to outside communication during free
time.
5. All communication and information pertaining
to the employer or members of the household
shall be treated as privileged and Confidential,
and shall not be publicly disclosed by the
domestic worker during and after
employment.
6. The employer shall afford the domestic worker
the opportunity to finish basic Education and
may allow access to alternative learning
systems and, as far as practicable, higher
education or technical and vocational training.
21. Just causes for SoMe WiD GAhN 1. Serious Misconduct or Willful Disobedience
termination FWeT CO by the employee of the lawful orders of his
employer or representative in connection with
his work (work-related)
2. Gross A^nd habitual Neglect by the employee,
of his duties
3. Fraud or Willful breach by employee of the
Trust reposed in him by his employer or duly
authorized representative (not mere
suspicion)
4. Commission of a Crime or offense by the
employee against the person of his employer
or any immediate member of his family or duly
authorized representative
5. Other analogous cases
22. Authorized causes for RRLCD 1. Redundancy
termination 2. Retrenchment
3. introduction of labor-saving devices

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4. Cessation or Closure of Establishment of

Operation of the Establishment or
Undertaking
5. Disease
23. Excluded from the CDR-SA-10 1. Employees covered by the Civil Service Law
Retirement Pay Law 2. Domestic helpers and persons in the
personal service of another
3. Employees in retail, service and agricultural
establishments or operations regularly
employing not more than 10 employees.
(Labor Code, Art. 302)
24. Jurisictional MPD 1. Possession of the status of Majority
requirements to representation of the employees’
trigger the duty to representative
bargain collectively 2. Proof of majority representation
3. Demand to bargain
25. National Interest E-WOAH 1. Hospital sector
Cases 2. Electric power industry
3. Water supply services, to exclude water
supply services such as bottling and refilling
stations
4. Air traffic control
5. Such Other industries as may be
recommended by the National Tripartite
Industrial Peace Council (NTIPC)
26. What triggers the MPD 1. Possession of the status of Majority
Duty to Bargain representation of the employees’
collectively? representative
2. Proof of majority representation
3. Demand to bargain

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