ATENEO CENTRAL BAR OPERATIONS 2019 JORGE ALFONSO C. MELO Bar Review Coordinator LEILAS. LIM Bar Review Secrtait ATENEO CENTRAL BAR OPERATIONS PATRICK EDWARD BALISONG. Chima KATRINA Y. COSCOLLUELA, JONATHAN VICTOR NOEL CZARINA CHER CUERPO GENICA THERESE ENDALUZ JOHN STEPHEN PANGILINAN BENIGNO ENCISO ‘Administration Commitee Heads ‘Academics Commitee Heads Hotel Operations Commitee 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 Academies Understudios 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 BAR OPERATIONS 2019 LABOR LAW 1. GENERAL PROVISIONS: ‘A. BASIC POLICY ON LABOR B. CONSTRUCTION IN FAVOR OF LABOR . 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. Toaliving wage; To humane working conditions, To self-organization; To security of tenure; 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 patticipate in policy and decision- making processes affecting their rights and benefits as may be provided by law (Article XIll, 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, GR. No, 85985, 1993). Q: How does the concept of due process work in illegal dismissal casos? ‘A: Due process under the Labor Code, like Constitutional due process, has two aspects: substantive, ie., 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. 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 Il: State Policies : 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 {ree 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 al 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 goverment for redress of grievances, Sec. 8. The right of the people, including those employed in the public and private sectors, to PAGE 1 0F 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW form unions, associations, or societies for purposes nol 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. @ 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 himself (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 : 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 equally of employment opportunites for al. 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 eniilled 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. 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, selfdevelopment, and self-reliance, and their integration into the mainstream of society. Sec. 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will entance 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, Atticle 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 PAGE 2 0F a9ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW PRE-EMPLOYMENT ‘A. RECRUITMENT AND PLACEMENT OF LOCAL AND MIGRANT WORKERS (LABOR CODE AND RA 8042, AS ‘AMENDED BY 10022) 4. Elements Q: What constitutes recruitment and placement activities? ‘A: Art. 13(b) of the Labor Code defines ‘recruitment and placement" activity as referring to any act of: Canvassing; Enlisting; Contracting: Transporting; Utilizing; Or Hiring or procuring workers. Italso includes: 1. Referrals 2. Contract services; 3, Promising; or 4, Advertising for employment, locally or abroad, whether for profit or not. Q: What are the elements of simple illegal recruitment for local employment under the Labor Code? ‘A: The following elements must concur: 1. That the offender undertakes any activity within the meaning of “recruitment and placement” defined under Article 13(b), or any prohibited Practices enumerated under Article 34 of the Labor Code. 2. That the offender has no valid license or authority required by law to enable him to awfully engage in the recruitment and placement of workers, and (Ritualo v. People, 591 SCRA 24, 2009), Q: What are the elements of simple illegal recruitment for migrant workers under the Migrant Workers Act? To constitute illegal recruitment for migrant workers, the following must concur: 1. Person charged commits any of the enumerated acts under Sec. 6 of R.A. 8042, as amended by RA. 10022; 2, Itis immaterial whether he is a holder or not of any license or authority 2. Prohibited Activities Q: What are the prohibited activities under the Labor Code? ‘A: It shall be unlawful for any individual, entity, licensee, or holder of authority 1, To charge or accept, directly or indirectly, any ‘amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance; 2. To fumish or publish any false notice or information or document in relation to recruitment or employment; 3. To give any false notice, testimony, information or document or commit any act of rmisrepresentation for the purpose of securing a license or authority under this Code. 4, To induce or attempt to induce a worker already employed to quit his employment in ‘order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment; 5, To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; 6. To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; 7. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives, & To fail to file reports on the status of employment, placement vacancies, PAGE 3.0F 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW remittance of foreign exchange eamings, 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 cof 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 oF to be engaged directly or indirectly in the ‘management of a travel agency; and 14. 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 ikewise include the following acts, whether committed by any person, whether a non-licensee, 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 tne Philippines 3, Becoming an Officer or member of the Board of a travel agency or io be engaged directly of indirectly in the management of a travel agency {for an officer or agent of recruitment agency) 4, Withholding or denying vavel documents from applicant workers before departure for unauthorized monetary or financial considerations 5. Fumishing 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 & Giving any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing alicense 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 recruit ment/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 18. Failing to file reports on the Status of employment, placement vacancies, remittance of foreign exchange eamings, 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 unlawiul for any person or entity to commit the following prohibited acts: (@- LRA) + Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migiant worker issue, either personally or trough a quarantor or accommodation party, postdated checks in relation tothe said loan + Impose a compulsory and exclusive arrangement whereby an overseas Filipino workers required to aval of a Loan only from specifically designated institutions, entities or persons; + Refuse to condone or incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his orher own; PAGE 4 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW + For a suspended recruitmentimanning agency to engage in any kind of Recruitment activity including the processing of pending workers’ applications + Impose a compulsory and exclusive Arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principalshipowner, + Impose 2 compulsory and exclusive Arrangement whereby an overseas Filipino worker is required to undergo. training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except for recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings; and ‘© For a recruitmenvmanning agency or a foreign principaliemployer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of Insurance fees, premium or other insurance related charges, as provided under the compulsory workers insurance coverage. Q: What are the differences between prohibited acts under the Labor Code (Art. 34)and Migrant Workers Act (Sec.6)? AL Yo ey rol egal recruitment | Itis commited by ether may only be | licensee or non- committed by a licensee (RA No, 6042, | nonsicensee (Labor | Sec. 6) Code, Art. 34). the recruiter is licensed, it’ may commit a prohibited activity (Labor Code, Art 38) 1 enumerated acts | 14 enumerated acts considered as_ illegal recruitment, including the following + Failure to actually deploy a contracted worker without valid ‘+ Failure to reimburse | expenses incurred by the worker in connection with his documentation and processing for purpose of deployment, in case of non-deployment; * To allow a Non Filipino citizen to head or manage a licensed | recruitmentimanning agency. There are 7 additional prohibited acts. Note that these prohibited acts will not make the entity liable for illegal recruitment but only for ‘commission of | prohibited acts. 3. Types of legal Recruitment Q: What are the types of illegal recruitment? A: There are three (3) types of illegal recruitment under the Labor Code: 4. Simple illegal recruitment (not economic sabotage) 2. Large scale or qualied illegal recruitment (economic sabotage) 3. Syndicated illegal. recruitment (economic sabotage) (R.A. 8042 as amended by R.A 10022) Q: When is illegal recruitment considered economic sabotage? AA; Iilegal recruitment is considered economic. sabolage in two (2) instances. 1. Committed by a syndicate: where 3 or more persons conspire with one another in carrying ‘out any unlawful or illegal transaction. or scheme 2. Committed in large scale: where committed against 3 or more persons individually or as a group PAGE 5 OF a9ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW Q: What are the elements of illegal recruitment in large scale? A: To constitute illegal recruitment in large scale, three elements must concur: 41, The offender has no valid license or authority required by law to enable him to lawfully engage in recruitment and placement of workers; 2. The offender undertakes any of the activities within the meaning of “recruitment and placement" under Article 13(b) of the Labor Code, or any of the prohibited practices enumerated under Article 34 of the same Code (now Section 6 of Republic Act No. 8042); and, 3. The offender committed the same against three (3) or more persons, individually or as a group (People v. Cagalingan, G.R. No, 198664, November 23, 2016), Q: What are the elements of illegal recruitment by a syndicate? A: To constitute illegal recruitment by a syndicate, the following must concur 1. The offender undertakes either any activity within the meaning of “recruitment and placement" defined under Art. 13(b), or any of the prohibited practices enumerated under Ar 34 of the Labor Code: 2. He has no valid license or autivority required by law to enable one to lawfully engage in recruitment and placement of workers; and 3. The illegal recruitment is committed by a ‘group of three (3) or more persons conspiring cr confederating with one another. (People v. Gallo, G.R. No. 187730, 2010) 4. Illegal recruitment versus estata Can a person guilty of illegal recruitment be similarly guilty or estafa? A: Yes. Itis well-established in jurisprudence that a person may be charged and convicted for both illegal recruitment and estafa, illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for conviction, while ‘estafa is mala in se and such intent is imperative, (People v. Chua, 680 SCRA 575, 2012} Q: What are the differences between illegal recruitment and estafa? A os eens Cora Isr pont [hs naa necessar | ] | Petzed und Ws | Pena nar Te Later Cote.” "| Ronsed Penal Cove Wider in scope and covers dceits | Limited in scope | whetherrelated or not to recruitment activities 5. Liability of Local Recruitment Agency and Foreign Employer (a) Solidary Liability ‘@: What kind of liability does the foreign employer and recruitment agency share? ‘A: They are solidarily 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 fine with the policy of the State to protect and alleviate the plight of the working class. (PJ. Manpower Placements, inc. v. NLRC, 276 SCRA 451, 1997). PAGE 6 OF 89ATENEO CENTRAL BAR OPERATIONS 201 (b) Theory of Imputed Knowledge 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. (Samieer v. 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 LABOR LAW which the OFW was not illegally dismissed. (GBMLT Manpower Services vs Malinao, GR. 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 : 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: 41. 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. (Pat ill, Rule Il of the POEA Rules Governing Employment as amended in 2002) Q: What is the reason for said rule? : 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 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 PAGE 7 OF 89ATENEO CENTRAL BAR OPERATIONS 2018 LABOR LAW 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 DOLE secretary isitorial powers of the 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 shail have the power to restrict and regulate the recruitment and placement activities of all activities ofall 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 Tile, (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 Title, require it to submit reports regularly on prescribed forms, and act on violations of any provisions of this Tile. (Labor Code, Art. 37) ll, LABOR STANDARDS ‘A. CONDITIONS OF EMPLOYMENT Q: What labor standards covered by the ns of the Labor Code on Book Three Title: Working Conditions and Rest Periods? (RROR-NWACSS) Regular working hours Regular normal working days Overtime work ‘Regular meal period [Night shit differential pay Weekly rest periods ‘Additional compensation on scheduled rest day, Sunday, or special holiday work ‘Compensation for holiday work 9. Service incentive leavelservice incentive leave pay 410. 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 ‘Ma-FiFa-DoPeR) ‘A: There are seven (7) classifications of employees excluded from the provisions 1. Governmental employees Managerial employees Field personnel Members of the family of the employer Who are dependent on him for support Domestic helpers Persons. in the personal service of another 7. Workers who are paid by result (Labor Code, Art. 82) PAGE 8 OF 89ATENEO CENTRAL BAR OPERATIONS 201 LABOR LAW 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. (©) 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 Il, Rule |, 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 Cade. 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 proprietorimanagerial 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). ‘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 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 oF 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 contro! 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 I), Rule I) : What are the normal hours of work? A: Normal work hours shall not exceed 8 hours: a day. Anything beyond hours is considered overtime work. (Labor Code, Art. 83) PAGE 9 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW 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) : 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. Infirms using substances and processes that prolonged exposure to which may pose hazards lo 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 (GR. 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 Q: What are the regular work hours of 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 hhours in one week. (Labor Code, Art. 83) : Is there overtime work for hospital and clinic personnel? : Yes. Hospital and clinic personnel may be scheduled to work for more than § days or 40 hours in a week, if they are paid overtime. (+ at least 30% regular rate, (Labor Code, Art. 83) @: 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 leave freely, it will not be compensable 3. Brownout exceeds 20 minutes and the employees can use the time however they want, it wll 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 avertime, (Ourabuilt Recapping Plant & Co. vs. NLRC, G.R. No. 76746, July 27, 1987) @: 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 2. Where the establishment regularly operates not less than 16 hours a day; 3. In case of actual or impending emergencies F there is urgent work to be performed on PAGE 10 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW 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 | Book I!) 19 time considered working ‘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. 5fa), Rule 1, Book il) 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 builin 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) : 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 builtin. (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) Q: Is Emergency OT work allowed? (PW'IM) nr 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 8” 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 salety 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-Gam) (Labor Code, Art. 86) What if someone is certified unfit for ightwork? ‘A; They should be transferred, whenever practicable, to another job similar to their old one. IW not practicable, these workers they should be granted the same benefits as other workers unfit for work, Ifthe unfitness is temporary, he enjoys the same protection against dismissal or notice as other ‘workers prevented for work by reason of health. (RA. No, 10151) PAGE 11 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW Q: What if a woman is pregnant? A: The amendment by R.A. 10154 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 pperform such work — 1. Before or after childbirth, for a period of at least 16 weeks, which shall be divided between the time before and after childbirth; 2. For additional periods in respect of which a medical certificate is produced stating that said additional periods are necessary for the health of the mother or the child — a. During pregnancy b. Determined by DOLE after consultation with employer and labor representatives Q: When are pregnant women allowed to work. at night? A: Only if 2. competent physician other than the company physician shall certify their fitness to render night work, and specify the period of the pregnancy that they can safely work. (RA 10151) Q: What are the different rates of premium pay for holidays? GEN Falling on a regular work day } 100% (EXCEPT: in retail an lunworked service establishments employin jess than 10 workers) — Holiday (ee ee ed First 8 Hours 200% jorked [Excess of + 30% of hour Hours rate on said day Falling of a rest day [Unworked [100% [30% of 200% forked INO PAY, unless there is favorable company policy, practic > CBA granting payment of wages n special days even if unwarked lunworked forked SaaS enrnD A Pee co Q: What are the Regular Holidays? A: The following regular holidays for the year 2019 shall be observed in the country 4 January 3 Apri —— 418 April _ 19Apal + May 12 June _ | ‘August (Last Monday of August) 30 November 25 December ‘30 December _ err To be determined eer To be determined (Proclamation No. 50, s. 2016; Proclamation No 555, August 15, 2018) Pacey Cerny Dag Good Friday erry ence Lg RC et Cee Ly Car rot Q: What are the Special Non-Working Days? ‘A; The following special days for the year 2019 shall be observed in the country: a ead ernie erg ecco Ped Eo Feast of the Ce) eee et Additional Special [YR CEA 24 December (Proclamation No. 555, August 15, 2078) SFebuay | 25 Febrary | ‘November 8 December 31 December PAGE 12.0F 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW Q: What is a double holiday pay? A 1. IF unworked — employee entitled 10 200% of basic wage, provided he was present or on leave with pay on the preceding work day 2. Ifworked ~ employee entilled to 300% of basic wage. Only an employee who works on the day immediately preceding or after a regular holiday shall be entitled to the holiday pay. A paid legal holiday occurring during the scheduled vacation leave will result in holiday payment in addition to normal vacation pay but will not entitle the employee to another vacation leave. (Asian Transmission v. CA, GR No. 144664, March 15, 2004) Q: When is work on a rest day authorized? (UAAP FAN) ‘A: Work on a rest day is authorized 1. In case of Urgent work to be performed on 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, of other disaster or calamity, to prevent loss of life or property, orn cases of force majeure cr imminent danger to public safety 3. Inthe event of Abnormal pressure of work due to special citcumstances, where the employer cannot ordinarily be expected to resort to other measures 4, To. Prevent serious loss of perishable goods 5, When the work is necessary to avail of Eavorable 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 (Labor Code, Art 92) : Can an employee volunteer to work on his rest day? /es. This must, however, be in writing, subject to payment of additional compensation. (Sec. 6, Rule Ill, Book Three, IRR Labor Code) : What is the remuneration of an employee working on a rest day? cS EES PEE + at least 30% of his regular wage. Where employee is | An employee shall be made or permitted | entitled — to such to work on his | additional compensation scheduled rest day | for work performed on Sunday only when it is his established rest day. Nature of the work Oi'the employes fs + at least 20% of his such nat netes 0 | tr wage fer Work gt YS | performed on ‘Sundays: and no regular rest St | and holidays days" can scheduled Where such holidays 4 at last Sorbet ine | 8 08 the Work performed on | regular | employee's me any special holiday | wage of | Scheduled the | fest day, a east empoyee. | Sy, ast togular wage Where the CBA or other applicable ‘employment Employer shall pay such contract. stipulates | higher rate | payment of a higher premium (Labor Code, Art. 93) PAGE 13 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW 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, GR. 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 13" month pay and other bonuses? ‘A: All employers are required to pay all thelr rank- and-fle 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 13" month pay and other bonuses? ‘A: The following are excluded: 1, Goverment 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 413th month pay or more in a calendar year or its equivalent at the time of Issuance of PD ast NOTE: “Its equivalent” includes Christmas bonus, mid-year bonus, cash bonuses and other payments amounting to not less than 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 nonprofit 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 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) PAGE 14 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW B.WAGES Q; Differentiate Wage from Salary. Ee a twit. clar| workers and denote a | Moher grade ef | : erpoynent | Rt] not exert tom | | ereoton Nat ox | |comenment or @xzalon, | attachment except for | Sam anmer (cee v. feomuiles (at | CA OR NO nesses | ate, 1909 | Paid for skilled or unskilled manual | Tabor Q: What are the allowable forms of Payment of wages? ‘A: General Rule: No employer shall pay the wages of an employee by any other means other than legal tender, even when expressly requested by the employee. (Congson v. NLRC, GR. No. 114250, April 5, 1995) Exception: Payment of wages by check or money order shall be allowed when such manner of payment is customary on the date of effectivity of this Code, or is necessary because of special circumstances as specified in appropriate regulations to be issued by the Secretary, or as stipulated in a CBA. (Labor Code, Art. 102) Q: When is payment through automated teller machine (ATi) of banks allowed? A: Itis allowed when the following conditions are met 1, The ATM system of payment is with the written consent of the employees concerned; 2, The employees are given reasonable time to withdraw their wages from the bank facility which time, if done during working hours, shall be considered compensable hours worked: 3. The system shall allow workers to receive their wages within the period or frequency and in the amount prescribed under the Labor Code, as amended; 4, There is a bank or ATM facility within a radius of one kilometer to the place of work; 5. Upon request of the concerned employee/s, the employer shall issue a record of payment of wages, benefits, and deduction for a particular period, 6. There shall be no additional expenses and no diminution of benefits and privileges as a result of the ATM system of payment, 7. The employer shall assume responsibilty in case the wage provisions of law and regulation are not complied with under the arrangement. (Labor Advisory on Payment of Salaries thru Automated Teller Machine (ATW), 196 November 25) Q: Differentiate Facil ies from Supplements. is | Necessary items of | Extra remuneration or expense, rcs, or | special privlepee | terdoea benefsy ales or services / tools of the trade whe Benefits Forth benefit of the] For the benefit or employee end tis | convenience ‘of the fami. for ter | employer erictonce and subsistence Deductibility from wage Par ofthe wage | Independent of the wage Deducibie Wom the | Not wage deductible wage Deductibie Fomthe | Not wage deducibie wage (Sate Marine v. Cebu, GR. No. U-12444, 1963) Q: What “benefits” are covered by Article 1007 : 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, GR. 198783, 2013), PAGE 15 OF 69ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW = Ooo 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 fr 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 Stoel 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 bbe construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed atthe time of promulgation of the Labor Code. Benefits being given to employees shall nol be taken back or reduced unilaterally by the ‘employer because the beneft has become part of the employment contract, written or unwritten, (Labor Code, Art. 100) Exception: To correct an error, otherwise, if the errors 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 itis shown that: 1. The practice is consistent and deliberate (Metrobank v. NLRC, G.R. No. 152926, 2009) 2. The diminution or discontinuance is done unilaterally by the employer (Stee! Corporation v. Nagkakaisang Manggagawang Supreme Independent Union, G.R. No. 185556, 2011); 3. The grant of the benefit is founded on a policy of has ripened into a practice aver 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) : Is a bonus demandable and enforceable? 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, GR. 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 oF authorization of the employees. (Galvadores v. Trajano, GR. No. L-70067, 1986) Q: What deductions arc allowod under Article 1132 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 the employer is authorized by law or regulations issued by the SOLE: : 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 facities 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 PAGE 16 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW 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 writen Authorization of the employee 10, Withholding Tax (Azucena, Volume I) : 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 Hote! Employees Union v. Waterfront, G.R. 174040-41, 2010). 1e erm “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, GR. 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, : 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), RA. No, 6727). Under the Kasambahay law, Regional Wage Boards must issue separate Wage Order for Kasambahay. Exempt upon application 1. Distressed establishments 2. New business enterprises 3. RetaillService establishments employing not more than 10 workers and 4, Establishments adversely affected by natural calamities (Section 2, NWPC Guidelines No, 2, s. 2007). Inat 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 skis, length of service, or other logical bases of diferentiation. (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 conelliation. (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) PAGE 17 OF 89ATENEO CENTRAL BAR OPERATIONS 2 8 LABOR LAW oo :: 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) @: 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 be restored in precisely the same amount. Correction of a wage distortion may be done by re-establishing a substantial or significant gap (as distinguished trom the historical gap) between the wage rages of the Uiffering classes of employees, The re-establishment of a significant wage difference may be done through the grievance procedure or collective bargaining negotiations. EAVES 4. 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. Goverment employees, whether employed by the National Government or any of ts 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, ifthey meet al of conditions provided for 4. Officers or members of a managerial staf! ifthey perform duties and responsibilities ‘enumerated 5. Field personnel and those whose time and performance is unsupervised by the employer ©. Those already enjoying this benefit; 7. Those enjoying vacation leave with pay of al 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 Hi of the Omnibus Rules) 2. Maternity Leave Q: What is a Maternity Leave? ‘Afemale member who lias paid at least3 monthly Contributions in the 12-month period immediately Preceding the semester_—of—sher 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). (RA, No. 9282, Sec. 14-A) The matemity leave benefits shal the first 4 deliveriesimiscariages. paid only for PAGE 18 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 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/miscartiages. 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 eam the compensation therefor, on the Condition that his spouse has delivered a child or suffered @ 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 rnewly-bom child. (RA. 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) 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 periad 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 : 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: (1NI) 1. Has rendered al 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 : 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) PAGE 19 OF 89ATENEO CENTRAL, BAR OPERATIONS 2019 LABOR LAW months. The certification of a competent Physician as required period for recuperation shall be controling. 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. 926? ar 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 used for 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) D. SPECIAL GROUPS OF EMPLOYEES 4. Women. Q: What is the rule against discrimination? A: ILis 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) @: What are considered acts of iscrimination? 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 fo promotion, training opportunities, study and scholarship grants solely on account of their sexes ‘a, Person quilly of committing these acts are criminally liable under Arts. 288-289 of the Labor Code bb. That the institution of any criminal action under this provision shall not bar the aggrieved employee from fling an entirely separate and distinct action for money claims, which may include claims for damages and other affirmative relies, ‘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 @ 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 stipulate expressly or tacily that upon getting married, a woman employee shall be deemed resigned or separated. PAGE 20 OF 69ATENEO CENTRAL BAR OPERATIONS 2018 LABOR LAW 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 rnot accepting or considering as disqualified fram 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. 1372 A: Art. 137 Prohibited Acts (DEP-R-TeC) Itis 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 (r in confinement due to her pregnancy (De! 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. Todischarge 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 ot get married or to stipulate expressly or lacily that upon gelting married, @ 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 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 Cor requirement for submission is accepted by the latter. It is not necessary that a demand, request (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). 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 Work shall not be more than 4 hours per day ‘Should not work between 8pm and 6am Work is not hazardous or deleterious to the chila's health or morals (R.A. 9231, Sec. 3) gee : What are the hazardous workplaces? 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, RA, 7610, as amended) PAGE 21 OF 89ATENEO CENTRAL BAR OPERATIONS 2018 LABOR LAW : What are the maximum working hours and night work prohibition for minors? A: rr) tone cd Cee) Not more | Not more Ng | than 4 hours | than 8 hours Not more | Not more | than 20] than 40} hours | hours, 8pm to Gam | 10pm to 6am of the | of the following day | following day rae Gerd N 3. Kasambahay Q: What are the rights and privileges of a Kasambahay? (ANPACE) ‘a. The domestic worker shall not be subjected to any kind of Abuse or any form of physical Violence or harassment or any act tending to degrade his or her dignity b. 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. ©. Respect for the Privacy of the domestic worker shall be guaranteed at all times ang shall extend to all forms of communication and personal effects. d. The employer shall grant the domestic worker Access to outside communication during free time. 8. All communication and information pertaining tothe employer or members of the household shall be \eated as privileged and Confidential, and shall not be publicly disclosed by the domestic worker during and after employment, {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. (RA. 10361 — Q: May a Kasambahay be assigned to work in commercial, industrial or agricultural enterprise? ‘A: As a general rule, the employer shall not assign the Kasambahay to work, whether in full or part-time, in a commercial, industrial, or agricultural enterprise at a wage rate lower than that provided for agricultural or non-agricultural workers, ‘The mere fact that the househelper or domestic servant is working within the premises of the business of the employer and in relation to or in connection with its business, as in its stafthouses for its guests or even for its officers and employees, warrants the conclusion that such househelper or domestic servant is and should be considered as a regular employee of the employer and not as a mere family househelper or domestic servant as contemplated in Rule XII Section 1(b), Book 3 of the Labor Code, as amended. (Apex Mining Co., Inc. v. National Labor Relations Commission, G.R. No. 94951, April 22, 1991) 4, Homeworkers Q: Who is a Homeworker? A: Any person who performs industrial homework for an employer, contractor or sub-contractor. (Labor Code, Art. 153) light workers @: Who Is a night worker? ‘A: A night worker is any employed person whose work requires pertormance of a substantial number of hours of night work which exceeds a specified limit. (Labor Code, Art. 154) @: Who are covered by the provisions on night work? ‘A: All persons who shall be employed or Permitted or suffered 10 work at night. (Labor PAGE 22.0F 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW Who are excluded from the provisions on night work? ‘Those employed in agriculture, stock raising, fishing ‘maritime transport and inland navigation, during a period of not less than 7 consecutive hhours, including the interval from midnight until Sam, to be determined by the SOLE afler consulting the workers’ representatives and employers. (Labor Code, Art. 154) appep Q: What are ‘A: Under R.A. 10151, amendments to the Labor Code, they are entitled to ~ 1. A health assessment, at their request, ‘without charge, and to receive advice on how to reduce health problems associated with their work a. Before taking up assignment as a night worker, or b. At regular intervals during such assignment, or . Ifthey experience health problems during such an assignment which are not caused by factors other than the performance of nightwork, 2. Mandatory facilities a. Suitable first aid facities b. Arrangements where workers, when necessary, can be immediately taken to a place for appropriate treatment Safe and healthful working conditions Resting quarters fe. Transportation to and from work to nearest point to residence. {These are subject to guidelines and ‘exceptions by DOLE 6, Migrant Workers (see Part Il, supra) 7. Apprentices and Learners Q: Differentiate between apprentices and learners. A: Cae [!. Practical training on} Pees Persons hired as| trainees in semi, elo? skilled and other2 Supplemented by industrial related occupations, [3. theoretical B. Non b. instruction apprenticeable [Covered bya ay ls. writen May be teamed} through practical training on the job i] a relatively shor apprenticeship agreement with ar individual employer orenty perod of me fi Srat no exces 9” Needs | OLR oe Shall not exceed mnt [ Training Agreement Governed by | Apprenticeship Leamership ‘Agreement Agreement ‘Occupation Teamable ‘Apprenticeable occupations occupations or any consisting of semi- trade, form of, skilled and other employment or industrial occupation approved ‘occupations which for apprenticeship by are non- | the DOLE Secretary apprenticeable Theoretical instructions Teamership may or’ Apprenticeship should may not_—_be_ always be supplemented by supplemented by related theoretical related theoretical instructions instructions Ratio of theoretical instructions and on out. For both, the normal ratiois one hundred (100) hours for every two thousand 2,000 hours of practical or on-the-job training ‘Competency-based system Tt is required that | Not required leamership be implemented on the PAGE 23 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW TESDA-approved competency-based | system Duration of training Not exceeding three | More than three Gy (3) months of | months, but not over practical training | six (6) months Limitation on the number of trainees Qualifications Taw does not | Ant. 89 of the Labor mention any | Code: qualification 1. Be at least fiteen (45) years of age | RR and RA. | 7610, as | | amended by RA. 7658) 2. Possess vocational | aptitude and | capacity for | appropriate tests; | and 3. Possess the ability to ‘comprehend and follow oral_and writen instructions. Th leamership, a] No similar cap 1s participating imposed in the case of enterprise is allowed | apprenticeship to take in learners only up to a maximum of twenty Percent (20%) of its total regular workforce ‘Option to employ The enterprise is | The enterprise Is given obliged to hire the | only an “option” to hire leamer after the | the apprentice as an lapse ofthe, employee. leamership period; | ‘Wage rate The wage rate of a leamer or an apprentice Is set at seventy-five percent (75%) of the statutory minimum wage. Circumstances justifying hiring of trainees An 74. Pre-|Law does nat requisites before | expressly mention any leamers may be | employed: 1. When no | experienced workers are available; 2. The employment of leamers is | necessary to | prevent eurtaiment of employment opportunities: and 3. The employment does not create unfair competition in terms. of labor costs or impair or | lower working | standards PAGE 24 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW 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 eaming 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 RA. 7277 as amended by RA. 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, 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. (RA. No. 7277, Sec. 32) Q: What are incentives for employers that employ disabled persons? A: Private entities that employ disabled persons ‘who met the required skils 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 facities 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. PAGE 25 OF 89ATENEO CENTRAL BAR OPERATIONS 2079 LABOR LAW IV. SOCIAL WELFARE LEGISLATION A. SSS ACT AND B. GSIS ACT Q: What are the coverage and exclusions of the SSS and GSIS Law? A: 11. Employer — lperson, natural judicial, domestic of foreign who carries on} in the Philippines trade, business jindustry undertaking | for activity of any and uses the services| lof another person MEXCEPT: (Government and lof its political subdivisions, lbranches instrumentality, including GOCCs, {those under GSIS. '2. Employee — der his orders ag} |egards employment. performs services| for an employer an or any} king) wh any| who} who receives} | compensation for} | such services| where there is an| employer- ‘employee relationship. 3. Self-Employed -| considered both] employer * and} [__ employee. Employer — the | national goverment, | its political ubdivisions, branches, agencies, of instrumentals, including GOC and financial institutions with original charters, the constitutional commissions and the judiciary Employee - any| compensation while | in service of an employer as defined herein, whether by election or} appointment | PAGE 26 OF 69 Q: Who are considered as dependents under the SSS and GSIS Law? A Under both laws, the following shall be considered as dependents: 1 2. Legal spouse entitled for support Child, whether legitimate, legitimated, legally adopted or illegitimate; Parents receiving regular support from the member. Q: Who are considered as beneficiaries? A: EEG GSIS ACT Dependent 1. Legal Spouse, until] Dependent remarriage; AND | Spouse 2 Dependent =| until | Legitimate or remarriage | Legitimated or AND Legally Adopted | 2. Dependent and legitimate | Children Children, SECOND [ry Dependent rod Parents Parents 2. Absent primary | AND. and secondary |2. Legitimate beneficiaries, descendan any other person | ts, subject | designated by) to member a8 | _ restrictions secondary on beneficiary dependent children OTHERS 7 to - BENEFITS, | beneficiary under the Act, | benefits shall be paid to Legal Heirs in accordance with Law of Succession DEATH if, no qualifiesATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW Q: What are the exclusions from coverage? Ec Coo |1. Employment purely casual and not forthe |" Members of ine AFP and PNP, purpose tL subject tothe gecupaon, oF | onion thatthe | business must setle tet | ther financial P. Series perormed on | pigaon with te esis alien vessel, if ‘employed when such vessel Is outside of l2. Contractual employees, who raven Philippines ove Employecs of | cmpner Philippine | epee government for | (elationship with government, 9F | the agencies they agency thereof [3. Uniformed |4. Service performed in the employ of a foreign government, or —_ international personnel of the | Bureau of Fire Protection (BFP); fs. Uniformed organizations, or |* Uniformed wat any | Bara of al instrumentality employing workers in | Management and the Phipnes or |, Pendlogy ®.MP) employing Filipinos Sanggunian outside ofthe | Sangaunian Philippines not receiving fixed [5. Services performed | eon $ by. temporary compensation (6. Employees who do not have monthly regular hours of work and employees and other ‘employees excluded by SSS regulation; employees of bona fide independent | contractors shall not Had vee ae on deemed | CSmnpensation employees of the | Teer a No, employer £79299 | 3291, Rule Il, Sec | the services of an | $221" 0 | independent contractor | Q: What are the benefits under the SSS and GSIS Law? SSS ACT Coos Monthly Pension ‘ALL MEMBERS Dependents A. Life Pension Insurance 3. Retirement B. Retirement 4. Death ©. Disability 5. Permanent D. Survivorship Disability E. Separation 6. Funeral F. Unemploym 7. Sickness cent | 8 Matemity (ONLY 1 FOUR | 2. JUDICIARY DELIVERIES OR| a. Life Insurance MISCARRIAGES) | ONLY ~ ALL TAX 9._Loan Grant EXEMPT, C. EMPLOYEES COMPENSATION — COVERAGE ‘AND WHEN COMPENSABLE. Q: Who are covered under the ECC Law? A: 1. Every employer 2. Every employee not over 60 years old 3. Any employee over 60 years of age if he had been paying contributions prior to age 60 and has not been compulsorily retired ‘An employee who is coverable by both the GSIS and SSS shall be compulsorily covered by both systems. (Sec. 2, Rule |, Amended Rules on Employees’ Compensation, implementing Tile 1, 800k IV of the Labor Code.) 5. Filipinos working abroad in the service of an’ employer as defined in Section 3 hereof shall be covered by the System, and entitled to the same benefits as are provided for employees ‘working in the Philippines. (Sec. 5, Rule |) Q: What are the grounds for compensability under the ECC law? A 1. For the injury and the resulting disability or death to be compensable, the injury must be the result of accident arising out of and in the course of the employment. 2. Forthe 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 BAR OPERATIONS 2019 LABOR LAW 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? i {As a result of injury or sickness, the employee is tunable to perform any gainful occupation for a continuous period not exceeding 120 days. (Barko Intemational 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 41. Benefit shall not be less than P10 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 (P10 =P200 per day, maximum 120 days) 2. Benefit shall be suspended if employee Tailed 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 ofthe iliness, 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 Es ES isabitity? A In means incapacity to perform gainful work which 's expected to be permanent. This status does not require a condition of complete helplessness. Nor is it affected by the performance of occasional odd jobs. ‘There is permanent total disabily it 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 @ 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 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}) incurable @: 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 fails to arrive at a definite assessment of the omployee’s fitness or isability (Alpha Ship Management v. Calo, G.R. No, 192034, 2014) PAGE 28 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW @: 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 3° doctor may be agreed jointly between the employer and the seafarer, and the 3" 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 2 quarterly Medical Report certified by the attending physician, 3. Complete or full recovery from his permanent disability; or 4, Upon being Gaintully 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 disabilty 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” isa showing of the capacity of the emplayee to continue performing his work notwithstanding the disability he incurred. (Vicente v. ECC, G.R. No. 85024, 1991) @: When is an employee precluded from claiming loss of future earning? ‘A: Once given disability compensation for loss of eaming capacity, an additional award for loss of eamings (future earings) no longer lies, otherwise, it will result. in double recovery. (Magsaysay Maritime Corp.v. Chin, Jr, GR. 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 XI, Sec.3) ‘Q: What are the conditions to entitlement? he 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 nolified 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, I 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 hratural consequence of the compensated Permanent Total Disability (Amended Rules on Employees’ Compensation, Rule Xill, Sec.1) Q: What are the benefits the employee is entitled to? A PAGE 29 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW 1. Pay the deceased's beneficiary all V. LABOR RELATIONS: ‘outstanding obligations due the seafarer pacers Conree A. RIGHT TO SELF-ORGANIZATION 2. Transport the remains and personal effects of the seatarer 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 employerimaster 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 af the exchange rate prevailing during the time of payment. (Sec. 20 (B) (4), POEA-SEC) 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 attrbutable to the seafarer. (Sec. 20 (C) POEA-SEC) Q: When can a seafarer be disqualified to receive disability/death benefits? ‘A: A seatarer who knowingly conceals a pre- existing ilness 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) 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, + Toengage in lawful concerted activities for the purpose of collective bargaining or for their ‘mutual aid and protection, (Labor Code, Art 257) 41. Who may/ may not exercise the right Q: Can security guards form, join and assist labor organizations for purposes of collective bargaining? A: Yes. Under RA 6715, security guards may freely join a labor organization of the rank and file or that 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 commer industrial and agricultural enterprises and in religious, charitable, medical, or educational tions, whether uperaiing for profit or noi, shall have the right to self-organization and to orm, join, or assist labor organizations of their own ‘choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self- PAGE 32 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW ‘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. : 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 lo 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) 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 (ICMC v. Calleja, G.R. No. 85750, 1990) PAGE 33 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW Q: Do employees have 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). @: 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) @: 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, GR. No. 207971, January 23, 2017) : 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) 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 andlor legitimate labor ‘organizations of their own (Labor Code, Art. 255) : What is the effect of inclusion of members outside of the bargaining unit? ‘A: Said employees are automatically deemed removed from the lst of membership of said union. (Labor Code, Art. 256) 3, Rights and Conditions Of Membership a) Nature Of Relationship (1) Member - Labor Union : 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 ail information relevant to union and labor matters entrusted to it. (Heirs of Teodolo Cruz v. CIR, GR. 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 afflition 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 Tepresentation of the alter. (Insular Hotel Employees v. Watertront Insular Hotel, G.R. No. 174040-41, Sept. 22, 2010) PAGE 34 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW (i) Disaffitiation BARGAINING UNIT Q: What is Disaffiliation and when may it be: Hows the CBU determined? exercised? ‘A: Itis a right granted to affiliates to disassociate from the mother union. General Rule: a labor union may disaffiate 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 case, however, the CBA continues to bind members of the new or disaffiated and independent union up to the CBA’s expiration date. (Tanduay Distillery Labor Union v. NLRC, GR. No. 75037, April 30, 1987) Either way, any isaffiliation must be supported by the majority. Otherwise, the act may constitute disloyalty (b) Substitutionary Doctrine : 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) ‘A: There are 4 factors considered in determining the appropriate bargaining unit 4. The will of the employees (Globe Doctrine) 2. Affinity and unity of the employees’ interest, such as substantial similarity of work and dulies, or similarity of compensation and working conditions (Substantial Mutual Interests Rule) 3. Prior collective bargaining history; and 4, Similarity of employment status. (International Schoo! Alliance of Educators v. Quisumbing, GR. 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) PAGE 35 OF 89ATENEO CENTRAL BAR OPERATIONS 20° LABOR LAW C. BARGAINING REPRESENTATIVE 4. Determination of representation status Q: How can a legitimate labor organization become the Exclusive Bargaining Representative/Agent? ‘A: Ithas to be certified as such through either: 1. Sole and exclusive bargaining agent (SEBA) Certification proceeding - applies to {an unorganized establishment with only one Lo 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, (D.0. No. 40-1-18) 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 1, 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 voles 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 workers in the appropriate bargaining unit (Rule 1, 0.0. No. 9, a amended by D.0. No, 40-03) + 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 cettification 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 ‘+ Atticle 257 — In unorganized establishments, petition for certification election can be fled and it shall automatically be conducted by the Med-Artiter + Article 258 - When requested to bargain collectively, an employer may file a petition for certification election + 0404-15 — Ifthe Regional Director finds the establishment unorganized with more than fone (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 Philppines 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 Uni, and to ensure thai the union has the support of the majority PAGE 36 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW @: 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) @: Can a * 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 ctoss 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 @ choice. (Sec |, 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 corectly followed by the public respondent that an order to hold a cerlifeation 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 cancelation.” Q: When may a Petition for CE be filed in an unorganized establishment? A: General Rule: Anylime. (Labor Code, Art. 269) Exceptions: 1. When SEBA has been entered, or a valid certification, consent or run-off election has been conducted within 1 year prior tothe fling, 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 VII, Sec. 3, D.O. 40-03) Q: What are the grounds for denying a Petiti for Certification Election? 1. Non-registration in the DOLE 2. Non-submission of the Charter Certificate upon fling of the PCE 3. Contract BariElection 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! 12-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 fling 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.0. No. 40- F-03, 2008) PAGE 37 OF 89ATENEO CENTRAL BAR OPERATIONS 2018 LABOR LAW Q: 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 fith year of the CBA. On the other hand, in deadlock bar rule, no certification election may be held if there is a pending bargaining deadiock which has been submitted to conciliation or arbitration or has become the subject ofa valid notice of strike or lockout. (Labor Code, Art. 268; Capitol Medical v. Laquesma, GR. 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 fled. 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 ofthe existing agreement during the 60- day period andior until a new agreement is reached by the parties. (Labor Code, Aut. 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 fled 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 unt. 4. The petition is fled notin violation of any of the four (4) bar rules (See above discussion }. (0.0, No, 40-1-15 j Q: Who may file and on what ground may a protest arising from the conduct of certification be filed? ‘A: Any party-n-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? % 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; 4d. Existence of any of the bars to certifeation election; and fe. 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 ©. Statement that none of the grounds for dismissal exists 4. Names of contending labor unions federation/national union representing an unregistered localichapter to personally submit to the Election Officer its certificate of Creation at least 5 working days before the PAGE 38 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW actual conduct of the certification election. Non-submission of this requirement as certified by the Election Officer shall disqualify the local/chapter from participating in the certification election {. 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 rumoff 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 ©. There are no objections or challenges which if sustained can materially alter the results, 4d. Provided, that the total number of votes for all contending unions is at least 50% percent of the number of votes cast. fe. No Union” shall not be a choice in the run-off election. A recrun 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 ina 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 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.0. 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 Aled 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 gamered ‘majority ofthe valid votes cast. (National Union of Workers In Hotels, Restaurant and Allied Industries-Manila Pavilion Hotel Chapter v. Secretary of Labor, G.R. No. 181831, 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 Intemational vs. Kilusang Mangagawa, GR. No. 169754, 2011) PAGE 39 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW D. RIGHTS OF LABOR ORGANIZATION 1. Check Off, Assessment Fees, Agency Foes @: When can Special Assessments and Extraordinary Fees be (a) levied and (b) checked off? A: Aspecial 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.checkoff is a process whereby the employer, on ‘agreement with the EBR, deducts union dues or agency fees from the latter's wages and romits them directly to the union. No special assessments, attomey'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) : What are the rules on levying assessments and collecting dues from union members? 41, Rule on Levy: Article 241, par. (0) 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 2 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 foos, 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, altomey’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 : What is a Collective Bargai ng Unit (CBU)? ‘A: ACBUis 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) @: 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 PAGE 40 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW proposals for adjusting any grievance or questions arising under such agreements if requested by either party but such duty does not compel any arty 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? AIP) 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 pul policy? ‘A: Generally, YES, however in Rivera vs. Espintu (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. twas PALEA, as the exclusive bargaining agent of PAL's ground employees that voluntarily entered into the CBA with PAL. Itwas also PALEA that voluntarily opted for the 10-year suspension of the CBA. Either case was the union's exercise ofits 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. (Standard Chartered Bank Employees Union v. Confesor, 432 SCRA 308, 2004) b) Collective Bargaining Agreement : 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? Wages Hours of Work Other Terms and Conditions of Employment Grievance procedure (Labor Code, Art. 263) Sener 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 mpasse. His insistence may be construed as evasion of the duty to bargain. : What does the hold-over principle in CBA mean? ‘A: Untill 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) PAGE 41 OF 89ATENEO CENTRAL BAR OPERATIONS 2019 LABOR LAW Q: When is the reckoning period for the CBA arbitral awards of the Secretary of Labor? ‘A: In general, a CBA negotiated within 6 months after the expiration of the existing CBA retroacts to the day immediately following such date and if agreed thereafter, the effectivity depends on the agreement ofthe partes. CBA arbitral awards granted after 6 months from the expiration of the last CBA shall retroact to such time agreed upon by both employer and the ‘employees or their union, ‘Absent such an agreement as to retroactivity, the ‘award shall retroact to the first day after the six- month period following the expiration of the last day of the CBA should there be one. In the absence of a CBA, the Secretary's determination of the date of retroactivity as part of his discretionary powers over arbitral awards shall control Where the arbitral award was made to retroact to the first day after the six-month period following the expiration of the last day of the CBA because ‘of the enormous cost that the petitioner (MERALCO) will have to bear as a consequence of the full etroaction of the arbitral award to the date of expiry of the CBA. (MERALCO v. Quisumbing, G.R. No. 127598, 2001) E. UNFAIR LABOR PRACTICE 1. Nature and Aspects Q; What is unfair labor practice? ‘A: Unfair labor practices (hereinafter “ULP") violate the constitutional right of workers and ‘employers to self-organization, are inimical to the legitimate interests of both labor and ‘management, including their right to bargain collectively and otherwise deal with each other in ‘an atmosphere of freedom and mutual respect. (Anizaia v. CA, G.R. Nos. 43633-34, 1990) 2. ULP By Employers Q: What are the acts which constitute ULP by employers? ‘A: Rundown of Acts Constituting Unfair Labor Practice of Employers (YIP-C2-02-V2) 1. Interference Yellow dog condition Contracting out Company unionism Discrimination for or membership Discrimination because of testimony Violation of duty to bargain Paid negotiation Violation of CBA against union @: Can the commission of unfair labor practices of an employer be subjected to criminal action? A: Generally, no. ULPs are also criminal offenses against the State which shall be subject to prosecution and punishment. However, no criminal prosecution may be made without a prior final judgment in such administrative case shall neither be binding on the criminal case, nor be considered as evidence of guilt. At best, it would only serve as proof compliance of the requirement set forth in Article 247. (Labor Code, Art. 260) Q: What is the successor-employer doctrine? ‘A: The rule is that unless expressly assumed, labor contracts such as employment contracts and collecting bargaining agreements are not, enforceable against a transferee of an enterprise, labor contracts being in personam, thus binding ‘only between the patties. A labor contract merely creates an action in personam and does not create any real right that should be respected by their parties. This conclusion draws its force from the Tight of an employer to select his employees and to decide when to engage them as protected under ‘our constitution, and the same can only be restricted by law through the exercise of the police 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 0F 89