fLabor Law Review Questions.

FIRST SET OF Q&A

1. Who was the former ILO President and lawyer of Labor Ministers throughout the world?
Answer: Senator Blas Ople
2. What are the matters that fall under the term Labor Law?
Answer: Labor laws consist of statutes, regulations, (rules or directive issued by
DOLE), and jurisprudence governing the relation between capital and labor, by
providing for certain standards of terms and conditions of employment or providing
a legal framework which these terms and conditions and the employment
relationship may be negotiated, adjusted, and administered.
3. Classify Labor Laws and Labor statutes.
Answer: Labor Standards- Set out the minimum terms, conditions, and benefits of
employment that employers must provide or comply with and to which employees
are entitled as a matter of legal rights.
Labor Relations- Status, rights, duties, and the institutional mechanisms that
govern the individual and collective interaction of employers or their
representatives.
Social Legislation- are enactments of states in order to promote social justice. This
principle is the guide of every civilized state to come up a social system that would
approximate closeness to a perfect society.
4. Cite different remedies available in labor disputes.
Answer: The remedies are grievance machinery, conciliation, mediation, arbitration
Grievance Procedure- in-house adjustment of complaint, problem or dispute following the
steps prescribed in CBA or company policy
Conciliation “to draw together” - a process where a disinterested third party meets with
management and labor at their request or otherwise during a labor dispute or in collective
bargaining conferences and by cooling tempers aids in reaching an agreement

Mediation “to be in the middle”- a third party studies each side of the dispute then makes
proposal for the disputants to consider. But a mediator, like a conciliator, cannot render
an award or render a decision; they do not adjudicate. Conciliation and mediation, usually
combined, are done primarily by conciliators-mediators of the NCMB

Arbitration- the submission of a dispute to an impartial person for determination on the

basis of evidence and arguments of the parties. Arbitration, unlike conciliation or
mediation, is adjudication and the arbitrator’s decision or award is enforceable upon the
disputants.

Voluntary- if submission of the dispute is by agreement of the parties and the arbitrators
or panel of arbitrators is chosen by them. Done by “voluntary arbitrators”, the award is
final and unappealable except through certiorari.
Compulsory- if submission of the dispute is by directive of law. Unlike a conciliator or a
mediator, an arbitrator is a judge; he makes decisions and awards that the parties must
accept. Done primarily by the Labor Arbiters of the NLRC. The decision is appealable to
the NLRC then to the CA through special civil action through certiorari.
5. Are Labor Law Standards and Labor Law Relations mutually exclusive?
LABOR STANDARDS law is that labor law which prescribes terms and conditions of
employment like Book in Book IV, Title I and Book VI of the Labor Code. These Books of
the Labor Code deal with working conditions, wages, working conditions for women,
minors, househelpers and homeworkers, medical and dental services, occupational
health and safety, termination and retirement.
On the other hand, LABOR RELATIONS law is that labor law which regulates the relations
between employers and workers like Book V of the Labor Code which deals with labor
organizations, collective bargaining, unfair labor practices and strikes and lockouts. Labor
standards laws and labor relations laws are not mutually exclusive; they are complement
to each other. Thus, the law on strikes and lockouts which is an example of labor relations
law includes some provisions on the security of tenure of workers who go on strike or who
are locked out. These provisions are examples of labor standards law.
6. Distinguish labor legislation from social legislation.
Labor legislation is sometimes distinguished from social legislation by the former referring
to labor statutes, like Labor Relations Law and Labor Standards, and the latter to Social
Security Laws. Labor legislation focuses on the rights of the worker in the workplace.
Social legislation is a broad term and may include not only laws that give social security
protection, but also those that help the worker secure housing and basic necessities. The
Comprehensive Agrarian Reform law could also be considered a social legislation.

Alternative Answer:
Yes. Labor Legislation is limited in scope, and deals basically with the rights and duties
of employees and employers. Social Legislation is more encompassing and includes such
subjects as agrarian relations, housing and human settlement, protection of women and
children, etc. All labor laws are social legislation, but not all social legislation is labor law.

7. What are the rules in determining jurisdiction in labor tribunals?

PRELIMINARY CONSIDERATIONS ON PROCEDURE AND JURISDICTION
1. EXISTENCE OF EMPLOYER-EMPLOYEE RELATIONSHIP.
The existence of employer-employee relationship between the parties-litigants, or a
reasonable causal connection to such relationship is a jurisdictional pre-requisite for the
exercise of jurisdiction over a labor dispute by the Labor Arbiters or any other labor
tribunals.
THE CAUSE OF ACTION MUST ARISE FROM THE EMPLOYER-EMPLOYEE
RELATIONSHIP.
Even if there is employer-employee relationship, if the cause of action did not arise out of
or was not incurred in connection with the employer-employee relationship, Labor Arbiters
and other labor tribunals have no jurisdiction thereover. Actions between employers and
employees where the employer-employee relationship is merely incidental are within the
exclusive original jurisdiction of the regular courts.
REASONABLE CAUSAL CONNECTION RULE – THE RULE IN CASE OF CONFLICT
OF JURISDICTION BETWEEN LABOR COURT AND REGULAR COURT.
Under this rule, if there is a reasonable causal connection between the claim asserted
and the employeremployee relations, then the case is within the jurisdiction of labor
courts. In the absence of such nexus, it is the regular courts that have jurisdiction.
8. Is Section 3, Article 13 of the 1987 Constitution judicially enforceable?
The labor-related provisions of the Constitution are merely statements of principles and
are all NOT self-executing provisions. They are used only as guides for judicial decisions
or legislative enactments. Being mere statement of principles and policies, no case can
be filed for their violation. Only violation of the laws passed to implement these principles
and policies can be proper subject of court litigation.
9. What is the purpose behind the constitutional mandate for protection of labor?
According to Sec. 3, The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and equality of employment
opportunities for all.
It shall guarantee the right of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in accordance
with law. They shall be entitled to security of tenure, humane conditions of work, and a living
wage. They shall also participate in policy and decision-making processes affecting their rights
and benefits as may be provided by law
10. Distinguish constitutional due process from statutory due process.
Constitutional due process under Article III, section 1 of the Constitution cannot be
invoked against a private party like the employer. It can only be asserted against the state
or government. Hence, the employee being investigated cannot invoke constitutional due
process but only statutory and contractual due process.
Statutory due process refers to the one prescribed in the Labor Code (Article 292[b]
277[b])
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.
11. Differentiate welfare state from laissez faire.
The welfare state is a form of government in which the state protects and promotes the
economic and social well-being of the citizens, based upon the principles of equal
opportunity, equitable distribution of wealth, and public responsibility for citizens unable
to avail themselves of the minimal provisions for a good life.
Laissez faire is an economic system in which transactions between private parties are absent
any form of government intervention such as regulation, privileges, imperialism, tariffs and
subsidies. Proponents of laissez-faire argue for a complete separation of government from the
economic sector. The phrase laissez-faire is part of a larger French phrase and literally translates
to "let [it/them] do", but in this context the phrase usually means to "let go".

12. What property right is conferred upon the employee once there is employer-employee
relationship?
The right to employment and the right to continue in one's employment constitute the
property right conferred upon an employee once there is an employer- employee
relationship. Thus, the very important constitutional right that "no person may be deprived
of life, liberty or property without due process of law is violated when an employer
terminates the employment of an employee without due process of law because said
employment is a property right of the latter.

ANOTHER SUGGESTED ANSWER: In Callanta. v. NLRC, SCRA , the Court ruled: “it
is a principle in American jurisprudence which, undoubtedly, is well-recognized in this
jurisdiction that ones employment, profession, trade or calling is a “property right," and
the wrongful interference therewith is an actionable wrong. The right is considered to be
property within the protection of a constitutional guaranty of due process of law.”

13. Is the purchaser of assets of a corporation considered employer of the latter’s

employees?
The rule is that unless expressly assumed, labor contracts such as employment contracts
and collective bargaining agreements are not enforceable against a transferee of an
enterprise, labor contracts being in personam, thus binding only between the parties .5 A
labor contract merely creates an action in personally and does not create any real right
which should be respected by third parties. This conclusion draws its force from the right
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.6

As a general rule, there is no law requiring a bona fide purchaser of assets of an on-going
concern to absorb in its employ the employees of the latter. 7

However, although the purchaser of the assets or enterprise is not legally bound to absorb
in its employ the employers of the seller of such assets or enterprise, the parties are liable
to the employees if the transaction between the parties is colored or clothed with bad
faith. 8

14. Discuss briefly the relevance of compassionate justice in Labor Relations.

The social justice policy mandates a compassionate attitude toward the working class in
its relation to management. In calling for protection to labor, the Constitution does not
condone wrong doing by the Ee. However, it urges a moderation of the sanctions that
maybe applied to him in the light of the many disadvantages that weigh heavily on him
like an albatross on his neck. It is disregarding rigid rules and giving due weight to all
equities of the case.(Gandara Mill Supply and Milagros Sy v. NLRC and Silvestre
Germano, G.R. No. 126703, December 29, 1998)

15. What are the exceptions to the application of compassionate justice?

The 2007 case of 2007 Toyota vs NLRC provides exceptions to the application of
compassionate justice when an employee is dismissed for “just cause” namely:
1. dismissal is based on serious misconduct or wilful disobedience ;
2. gross and habitual neglect of duty;
3. fraud or wilful breach of trust ; or
4. commission of a crime against the person of the employer or his immediate family.
16. What particular form of evidence is required to prove the existence of employer-
employee relationship?
There is no form of evidence required to prove the existence of employer-employee
relationship.
In the case of south cotabato communications corp. vs sta. tomas the court held that:
Although no particular form of evidence is required to prove the existence of the
relationship, and any competent and relevant evidence to prove the relationship may be
admitted, a finding that the relationship exists must nonetheless rest on substantial
evidence, which is that amount of relevant evidence that a reasonable mind might accept
as adequate to justify a conclusion.

17. What do you understand by management prerogatives?

Management prerogatives are granted to the employer to regulate every aspect of their
business, generally without restraint in accordance with their own discretion and
judgment. This privilege is inherent in the right of employers to control and manage their
enterprise effectively. Such aspects of employment include hiring, work assignments,
working methods, time, place and manner of work, tools to be used, processes to be
followed, supervision of workers, working regulations, transfer of employees, lay-off of
workers and the discipline, dismissal and recall of workers.
18. Cite the limitations of management prerogatives.
1. Limitations imposed by:
a) law;
b) CBA;
c) employment contract;
d) employer policy;
e) employer practice; and
f) general principles of fair play and justice.
2. It is subject to police power.
3. Its exercise should be without abuse of discretion.
4. It should be done in good faith and with due regard to the rights of labor.

For example, an employer cannot prescribe more than 8 hours as normal working hours
in a day because there is a law which limits it to 8 hours. In the same vein, the employer
cannot insist that an employee should observe 8 hours as the daily normal working hours
if there is a stipulation in the CBA, employment contract, or there is an employer policy or
practice that the normal working hours is only 7 hours per day.

19. What are the rights of the employer guaranteed under the Labor Code, Constitution,
and prevailing jurisprudence?
Most common Management Prerogatives
The Right to Hire
The Right to Dismiss (Fire/Terminate)
The Right to Transfer
The Right to Promote and Demote
The Right to Discipline
The Right to Lay Down Policies
The Right to Establish Working Hours
The right to Organize and Reorganize
The Right to Reasonable return on investment;
The Right to Expansion and Growth

20. What is Bona fide Occupational Qualifications (BOQ)?

Bona fide Occupational Qualifications allows employers to hire individuals based on their
sex, age, race, national origin, or religion, if these specific qualifications are considered
essential to the job or considered vital to the business operation.
Employment in particular jobs may not be limited to persons of a particular sex, religion,
or national origin unless the employer can show that sex, religion, or national origin is an
actual qualification for performing the job. The qualification is called a bona fide
occupational qualification (BFOQ).
To justify a bona fide occupational qualification, the employer must prove two factors: (1)
that the employment qualification is reasonably related to the essential operation of the
job involved; and, (2) that there is a factual basis for believing that all or substantially all
persons meeting the qualification would be unable to properly perform the duties of the
job.
21. What is the exception to the No Spouse rule?
The exception to the no spouse employment rule is a finding of any Bona fide
occupational qualification rule (BFOQR) to justify an Employer’s no spouse employment
rule. There must be a compelling business necessity for which no alternative exists other
than the discriminating practice.

To justify a BFOQ, the Er must prove two factors:

1. That the employment qualification is reasonably related to the essential operation of

the job involved; and
2. That there is a factual basis for believing that all or substantially all persons meeting
the qualification would be unable to properly perform the duties of the job (Star Paper v.
Simbol, G.R. No. 164774, April 12, 2006).

22. What are the limitations to the prerogatives to hire?

Legal limitations and prohibitions prior to hiring

Stipulation against marriage. It shall be unlawful for an employer to require as a condition

of employment or continuation of employment that a stipulate expressly or tacitly that
upon getting married, a woman employee shall be deemed resigned or separated, or to
actually dismiss, discharge, discriminate or otherwise prejudice a woman employee
merely by reason of her marriage (LC, Art. 136).

To require as a condition of employment that a person or an employee shall not join a

labor organization or shall withdraw from one to which he belongs [LC, Art. 248 (2)].

Minimum employable age

1. No child below fifteen (15) years of age shall be employed, except when he works
directly under the sole responsibility of his parents or guardian, and his employment does
not in any way interfere with his schooling.

2. Any person between fifteen (15) and eighteen (18) years of age may be employed for
such number of hours and such periods of the day as determined by the Secretary of
Labor and Employment in appropriate regulations.

3. The foregoing provisions shall in no case allow the employment of a person below
eighteen (18) years of age in an undertaking which is hazardous or deleterious in nature
as determined by the Secretary of Labor and Employment (LC, Art. 139).

23. What is the international aspect of the labor laws in the country?
The international aspect of Philippine labor laws come in the form of statutes enacted in
order to protect Filipino workers employed abroad, otherwise known as Overseas Filipino
Workers (OFWs). These statutes set standards on the hiring, rights and working
conditions of Filipino migrant workers before, during and after deployment. Another
international aspect of Philippine labor laws come in the form of International Labor
Organization (ILO) Conventions that the Philippines is a party to. 38 of these conventions
the Philippines has ratified, of which 30 are currently in force.
24. What is the rule in case of conflict between the law and the implementing rules?
In case of conflict between the law and the IRR, the provisions of law shall prevail.
Statutory provisions take precedence over the IRR. The law is enacted while the IRR
enacted by administrative agencies by virtue of a valid delegation of legislative power. A
delegated power cannot be superior to that from whence it came. Since administrative
agencies derive its power from a law passed by Congress, the IRR is inferior to the
statute, which is enacted by Congress.

25. What are the requisites of valid exercise of rule-making power of the DOLE?
Requisites for Validity
1. Its promulgation must be authorized by the legislature.
2. It must be within the scope of the authority given by the legislature.
3. It must be promulgated in accordance with the prescribed procedure.
4. It must be reasonable
5. Publication in the Official Gazette or in a newspaper of general circulation
a. Interpretative rules and regulations/mere internal in nature/ letters of instructions
concerning the rules and guidelines to be followed by their subordinates in the
performance of their duties may simply be POSTED in CONSPICUOUS
PLACES in the AGENCY.
b. DOLE Department Order and POEA Memorandum Circulars – proper
publication + filing in the Office of the National Administrative Register (Article 5
of LC)
6. Administrative Rules with Penal Sanctions (additional requisites)
a. law itself must declare as punishable the violation of the administrative rule or
regulation
b. law should define or fix the penalty for the violation of the administrative rule or
regulation
26. What is the rule in the publication of IRR including administrative rules and
regulations?
Publication requirement
Required as a condition precedent to the effectivity of a law to inform the public of the
contents of the law or rules and regulations before their rights and interests are affected
by the same. (Philippine International Trading Corporation v. COA, G.R. No. 132593,
June 25, 1999)
If not otherwise required by law, an agency shall, as far as practicable, publish or
circulate notices of proposed rules and afford interested parties the opportunity to
submit their views prior to the adoption of any rule. [1987 Administrative Code,
Administrative Procedure, Sec. 9(1)] (2000, 2009 Bar)
Exceptions to the requirement of publication 1. Interpretative regulations 2. Internal
regulations 3. Letters of instructions (Tañada v. Tuvera G.R. No. L-63915, December
29, 1986)

Non-applicability of notice and hearing in the issuance of an administrative rule or

regulation

GR: An administrative body need not comply with the requirements of notice and
hearing, in the performance of its executive or legislative functions, such as issuing
rules and regulations. (Corona v. United Harbor Pilots Association of the Philippines,
G.R. No. 111963, December 12, 1997)
 XPNs: The legislature itself requires it and mandates that the regulation shall be based
on certain facts as determined at an appropriate investigation. (Hon. Executive
Secretary v. Southwing Heavy Industries, Inc., G.R. No. 164171, August 22, 2006)

The administrative rule goes beyond merely providing for the means that can facilitate
or render least cumbersome the implementation of the law but substantially adds to or
increases the burden of those governed. (CIR v. CA, G.R. No. 11976, August 26, 1996)
Filing of copies of administrative rules and regulations before the UPLC

Each agency must file with the Office of the National Administrative Register (ONAR)
of the University of the Philippines Law Center three (3) certified copies of every rule
adopted by it. Administrative issuances which are not published or filed with the ONAR
are ineffective and may not be enforced. (Administrative Code of 198, Sec. 3; GMA v.
MTRCB, G.R. No. 148579, February 5, 2007)

Effectivity of administrative rules

GR: Administrative rules take effect depending on the date provided by it.

XPN: If the administrative rule is silent on the matter of its date of effectivity, it shall
take effect after 15 days following the completion of their publication
Penal sanctions in administrative rules and regulations
Requisites to be complied with: 1. Law must declare the act punishable; 2. Law must
define the penalty; 3. Rules must be published in the Official Gazette or in a newspaper
of general circulation . (Hon. Secretary Perez v. LPG Refillers Association of the
Philippines, G.R. No. 159149, June 26, 2006)

Rationale for Publication of Laws

There is a need for publication of laws to reinforce the right to information. In Tañada
v. Tuvera, the Court said that Laws must come out in the open in the clear light of the
sun instead of skulking in the shadows with their dark, deep secrets. Mysterious
pronouncements and rumored rules cannot be recognized as binding unless their
existence and contents are confirmed by a valid publication intended to make full
disclosure and give proper notice to the people.

Publication of regulations
Publication is necessary to apprise the public of the contents of penal regulations and
make the said penalties binding on the persons affected thereby. (Pesigan v. Angeles
G.R. No. L-6427, April 30, 1984)

27. What is the effect accorded to the legislative and executive acts subsequently
declared null and void?
In the case of De Agbayani vs. Philippine National Bank (38 SCRA 429 [1971]),
the Court discussed the effect to be given to a legislative or executive act
subsequently declared invalid: x x x
In the language of an American Supreme Court decision: The actual existence of
a statute, prior to such a determination [of unconstitutionality], is an operative fact
and may have consequences which cannot justly be ignored. The past cannot
always be erased by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects — with
 respect to particular relations, individual and corporate, and particular conduct,
private and official.
(Chicot County Drainage Dist. vs. Baxter States Bank, 308 US 371, 374 [1940])
The “operative fact” doctrine realizes that in declaring a law or rule null and void,
undue harshness and resulting unfairness must be avoided.
Under this doctrine, the law is recognized as unconstitutional but the effects of
the unconstitutional law, prior to its declaration of nullity, may be left undisturbed
as a matter of equity and fair play. It is a rule of equity (League of Cities v.
COMELEC, G.R. No. 176951, Nov. 18, 2008).
28. Enumerate exceptions to the provisions pertaining to working conditions and rest
periods under the labor code.
Under the provisions of Article 82 of the Labor Code of the Philippines, working hours
apply to employees in all establishments and undertakings whether for profit or not,
EXCLUDING the following:
a. government employees;
b. managerial employees;
c. field personnel;
d. family members of the employer who depend on him for support;
e. domestic helpers;
f. persons who provide personal service to other people; and
g. workers who are paid by results as determined by the Secretary of Labor in
appropriate regulations.

Normal working hours

The normal working hours of work an employee has to render must not exceed 8
hours a day and should be exclusive of the one (1) hour daily lunch break. Philippine
Laws, however, do not prohibit work done for less Than 8 hours.
Exception:
An employee may be required to perform overtime work in any of the following
cases:
1. When the country is at war or when any other national or local emergency has
been declared by the National Assembly or the Chief Executive;
2. When it is necessary to prevent loss of Life or property in cases of imminent
danger to public safety due to actual or impending emergencies in the locality
caused by serious accidents, fire, flood, typhoon, earthquake, epidemic or any
other disaster;
3. When there is urgent work to be performed on machines, installations, or
equipment, in order to avoid serious loss or damage to the employer or some
other cause of similar nature;
4. When the work is necessary to prevent loss or damage to perishable goods;
and
5. Where the completion or continuation of the work started before the eighth hour
is necessary to prevent serious obstruction or prejudice to the business or
operations of the employer.
 Right to Weekly Rest Day
It shall be the duty of every employer to provide each of his employees a rest
period of not less than twenty-four (24) consecutive hours after every six (6)
consecutive normal work days.
The employer may require his employees to work on any day:

1. In case of actual or impending emergencies caused by serious accident, fire,

flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss
of life and property, or imminent danger to public safety;
2. In cases of urgent work to be performed on the machinery, equipment, or
installation, to avoid serious loss which the employer would otherwise suffer;
3. In the event of abnormal pressure of work due to special circumstances, where
the employer cannot ordinarily be expected to resort to other measures;
4. To prevent loss or damage to perishable goods;
5. Where the nature of the work requires continuous operations and the stoppage of
work may result in irreparable injury or loss to the employer; ( ex. crew members
of vessel)
6. When the work is necessary to avail of favourable weather or environmental
conditions where performance or quality of work is dependent thereon; and
7. Under other circumstances analogous or similar to the foregoing as determined
by the Secretary of Labor and Employment.

29. What is the exception to the general rule that power of control is the most important
factor in determining the existence of employer-employee relationship?
The two-tiered test enunciated in Francisco v. NLRC, is composed of:
(1) The putative employer’s power to control the employee with respect to the means and
methods by which the work is to be accomplished [control test]; and
(2) The underlying economic realities of the activity or relationship [broader economic
reality test].
Employment relationship under the control test is determined under the same
concept as discussed above, that is, by asking whether “the person for whom the services
are performed reserves the right to control not only the end to be achieved but also the
manner and means to be used in reaching such end.”
Under the economic reality test, the proper standard of economic dependence is
whether the worker is dependent on the alleged employer for his continued employment
in that line of business.
These 2-tiered test applies to cases where there are several parties alleged to be
employers of one individual. The determinant factor is economic dependency of such
individual. In other words, under the economic reality test, the question to ask is - among
the parties alleged to be the employer, to whom is the individual economically dependent?
Following the broader economic reality test, the Supreme Court found petitioner
in Orozco v. The Fifth Division of the Hon. CA, who is a columnist in the Philippine Daily
Inquirer (PDI), not an employee of PDI but an 5 independent contractor. Thus:
“Petitioner’s main occupation is not as a columnist for respondent but as a
women’s rights advocate working in various women’s organizations. Likewise, she
herself admits that she also contributes articles to other publications. Thus, it cannot be
said that petitioner was dependent on respondent PDI for her continued employment in
respondent’s line of business.
“The inevitable conclusion is that petitioner was not respondent PDI’s employee
but an independent contractor, engaged to do independent work.”
30. What is the nature of the relationship between employer and employee?
Employer-employee relationship is the legal link between employers and
employees. It exists when a person performs work or services under certain conditions in
return for remuneration.
Through this, the reciprocal rights and obligations are created between the
employee and the employer. It is the main vehicle through which workers gain access to
the rights and benefits associated with employment in the area of labor law and social
security.
The existence of an employment relationship is the condition that determines the
application of the labor and social security law provisions addressed to the employees. It
is the keypoint of reference for determining the nature and extent of employer’s rights and
obligation toward their workers.
Employer and employee relations include both individual relations as well as
collective relations. Individual relations imply relations between employer and employees.
Collective relations means, relations between employer’s associations and trade unions
as well as the role of the State in regulating these relations

SECOND SET OF Q&A

1. Is there such thing as regular casual employee?

Answer: Yes. The other type of regular employee is the casual employee who,
after one year of service, becomes regular. But he is “regular” only for that work
of activity for which he was hired. His employment may be on-and-off, but every
time the particular work activity occurs, he is the one to be rehired. In this sense
he is a “regular casual.” A casual may become regular even if he is not issued a
regular appointment.

2. When is a violation of the worker’s right to security of tenure considered as Unfair

Labor Practice?

3. Justify the statement that a project employee is considered to have been illegally
dismissed despite the fact the project which he was hired has been completed.

4. When may a probationary employee be entitled to nominal damages despite the

fact that the dismissal of his probationary employment was grounded on just
cause and after the observing of the statutory due process?

Answer: In case the employer’s failure to observe the contractual due process or
its own company-prescribed due process will make it liable to pay an indemnity in
the form of nominal damages.

5. When may a legitimate job contractor be considered as labor only contractor at

the same time.
 Answer: in case the legitimate job contractor's employees recruited and placed
are performing activities which are directly related to the main business operation
of the principal or it does not exercise the right to control over the performance of
the work of the employee.

6. Give exception to the power of control as the most significant element of

determining the existence of employer-employee relationship.

Answer:

Under the economic reality test, the proper standard of economic dependence is
whether the worker is dependent on the alleged employer for his continued
employment in that line of business.

These 2-tiered test applies to cases where there are several parties alleged to be
employers of one individual. The determinant factor is economic dependency of
such individual. In other words, under the economic reality test, the question to ask
is - among the parties alleged to be the employer, to whom is the individual
economically dependent?

7. Distinguish just cause from authorized cause for termination of employment.

Answer: A dismissal based on a just cause means that the employee has
committed a wrongful act or omission; while a dismissal based on an authorized
cause means that there exists a ground which the law itself allows or authorizes to
be invoked to justify the termination of an employee even if he has not committed
any wrongful act or omission such as installation of labor-saving devices,
redundancy, retrenchment, closure or cessation of business operations or disease.

8. When may an employee suffering from a disease be validly terminated?

Answer: Disease is one of the authorized causes to terminate employment. In the

2014 case of Deoferio v. Intel Technology Philippines, Inc., the Supreme Court
divided into two, the requisites that must be complied with 1 before termination of
employment due to disease may be justified, namely: (1) Substantive requisites;
and (2) Procedural requisites.

The following are the three (3) substantive requisites:

(1) An employee has been found to be suffering from any disease;
(2) His continued employment is prohibited by law or prejudicial to his health, as
well as to the health of his co-employees; and
(3) A competent public health authority issues a medical certificate that the disease
is of such nature or at such a stage that it cannot be cured within a period of six
(6) months even with proper medical treatment.

Procedural Requisites:
(1)The notice to apprise the employee of the ground for which his dismissal is
sought; and
(2) The notice informing the employee of his dismissal, to be issued after the
employee has been given reasonable opportunity to answer and to be heard
on his defense.
9. In what cases may the employment of an employee be considered as not
terminated despite the absence of actual employment?

Answer:
In case of temporary retrenchment or suspension of the operation of a business or
undertaking for a period not exceeding six (6) months, or the fulfilment (sic) by the
employee of a military or civic duty shall not terminate employment.

In such all cases, the employer shall reinstate the employee to his former position
without loss of seniority rights if he indicates his desire to resume his work not later
than one (1) month from the resumption of operations of his employer or from his
relief from the military or civic duty.”

10. What do you understand by the doctrine of floating status?

Answer:

a. Floating Status is synonymous to temporary retrenchment of business or

undertaking thereby inevitably forcing or causing its affected employees to go
on leave. It is sometimes called as “Temporary Off – detail” or “off-detailing”
and is a valid exercise of management prerogative.

“The bona fide suspension of the operation of a business or undertaking for a

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

11. May an employee illegally dismissed from service be entitled to separation pay
plus back wages? Reason.

Answer: Yes. Award of separation pay and back-wages are not inconsistent with
each other. Hence, both may be awarded to an illegally dismissed employee.
The payment of separation pay is in addition to payment of back-wages.

12. Justify a grant of separation pay for a validly dismissed employee.

Separation pay is paid to the validly dismissed employees due to authorized
cause, to wit:
(a) If based on
(1) installation of labor-saving device, or
(2) redundancy. - One (1) month pay or at least one (1) month pay for every
year of service, whichever is higher, a fraction of at least six (6) months
shall be considered as one (1) whole year.
(b) If based on
(1) retrenchment, or
(2) closure NOT due serious business losses or financial reverses. - One (1)
month pay or at least one-half (½) month pay for every year of service,
whichever is higher, a fraction of at least six (6) months shall be
considered as one (1) whole year.
(c) If closure is due to serious business losses or financial reverses, NO
separation pay is required to be paid.
 (d) In case the CBA or company policy provides for a higher separation pay, the
same must be followed instead of the one provided in Article 298 [283].

13. What is the prescriptive period on filing for,

a. illegally dismissed
b.
Answer:
a. The prescriptive period of illegal dismissal cases is 4 years under Article 1146
of the Civil Code
14. What is the prescriptive period for?
a. Violation of Labor Code
b. Unfair labor practice committed by the labor organization.
c. Claim for service incentive leave claim.

Answer:
a 1. The prescriptive period of illegal dismissal cases is 4 years under Article
1146 of the Civil Code.
2. Simple illegal recruitment cases. – The prescriptive period is five (5)
years.
3. Illegal recruitment cases involving economic sabotage. – The prescriptive
period is twenty (20) years.
4.The prescriptive period of all criminal offenses penalized under the Labor
Code and the Rules to Implement the Labor Code is three (3) years from
the time of commission thereof.
b. The prescriptive period for all complaints involving unfair labor practices is
one (1) year from the time the acts complained of were committed; otherwise,
they shall be forever barred.
c. The prescriptive period of all money claims and benefits arising from
employer-employee relations is 3 years from the time the cause of action
accrued; otherwise, they shall be forever barred.

15. What is the degree of proof required for termination of managerial employee as
distinguish from the termination of a rank and file employee on the ground of lost
of trust and confidence?

Answer: Rules on termination of managerial and supervisory employees different

from those applicable to rank and-file employees. Thus, with respect to rank-and-
file personnel, loss of trust and confidence as a ground for valid dismissal
requires proof of involvement in the alleged events in question and that mere
uncorroborated assertions and accusations by the employer will not be sufficient.
But as regards a managerial employee, the mere existence of a basis for
believing that he has breached the trust of his employer would suffice for his
dismissal.

16. Cites a requisites for terminating an employment on the ground of

a. Retrenchment
b. Installation of Labor saving device.
Answer:
The following are the five (5) common requisites applicable to the ALL the
grounds under Article 298
[283]:
1. There is good faith in effecting the termination;
2. The termination is a matter of last resort, there being no other option
available to the employer after resorting to cost-cutting measures;
3. Two (2) separate written notices are served on both the affected
employees and the DOLE at least one (1) month prior to the intended date
of termination;
4. Separation pay is paid to the affected employees, to wit:
(a) If based on (1) installation of labor-saving device, or (2) redundancy. -
One (1) month pay or at least one (1) month pay for every year of service,
whichever is higher, a fraction of at least six (6) months shall be
considered as one (1) whole year.
(b) If based on (1) retrenchment, or (2) closure NOT due serious business
losses or financial reverses. - One (1) month pay or at least one-half (½)
month pay for every year of service, whichever is higher, a fraction of at
least six (6) months shall be considered as one (1) whole year.
(c) If closure is due to serious business losses or financial reverses, NO
separation pay is required to be paid.
(d) In case the CBA or company policy provides for a higher separation pay,
the same must be followed instead of the one provided in Article 298 [283].
5. Fair and reasonable criteria in ascertaining what positions are to be affected
by the termination, such as, but not limited to: nature of work; status of
employment (whether casual, temporary or regular); experience; efficiency;
seniority; dependability; adaptability; flexibility; trainability; job performance;
discipline; and attitude towards work. Failure to follow fair and reasonable
criteria in selecting who to terminate would render the termination invalid

What are the additional requisites unique to retrenchment ground? Per latest
issuance of the DOLE, the following are the additional requisites:
1. The retrenchment must be reasonably necessary and likely to prevent
business losses;
2. The losses, if already incurred, are not merely de minimis, but substantial,
serious, actual and real, or if only expected, are reasonably imminent;
3. The expected or actual losses must be proved by sufficient and convincing
evidence; and 4
4. The retrenchment must be in good faith for the advancement of its interest
and not to defeat or circumvent the employees' right to security of tenure.
This is the only statutory ground in Article 283 which requires this kind of
proof. The other grounds of closure or cessation of business operations
may be resorted to with or without losses.

What are the additional requisites unique to LSD ground? In addition to the
five (5) common requisites above, the unique requisites are as follows:
1. There must be introduction of machinery, equipment or other devices; and
2. The purpose for such introduction must be valid such as to save on cost,
enhance efficiency and other justifiable economic reasons.
17. May an employee who has reach an age of 60 be compel to retire from service
by the employer? Reason.

Answer: YES. If there is an agreement or stipulated in retirement plan or CBA.

Based on Article 287 the employers and employees are free to agree and
stipulate on the retirement age, either in a CBA or employment contract. It is only
in the absence of such agreement that the retirement age shall be fixed by law,
that is, in accordance with the optional and compulsory retirement age prescribed
under Article 287.

18. What is the retirement age of a miner?

Answer: An underground or surface mining employee upon reaching the age of

fifty (50) years or more, but not beyond sixty (60) years which is hereby declared
the compulsory retirement age for both underground and surface mine workers,
who has served at least five (5) years as underground or surface mine worker may
retire and shall be entitled to all the retirement benefits

19. May a retirement benefit be granted simultaneously with separation pay?

Answer: Yes. In case, the Supreme Court ordered the payment to the retrenched
employees of both the separation pay for retrenchment embodied in the CBA as
well as the retirement pay provided under a separate Retirement Plan. The reason
is that these two are not mutually exclusive. There is nothing in the CBA nor in the
Retirement Plan that states that an employee who had received separation pay
would no longer be entitled to retirement benefits or that collection of retirement
benefits was prohibited if the employee had already received separation pay
Reason.

20. Explain the doctrine of emancipation of labor relation?